NUMBER 13-10-00159-CV

COURT OF APPEALS

THIRTEENTH DISTRICT OF TEXAS

CORPUS CHRISTI - EDINBURG 

 

WOMEN’S CLINIC OF SOUTH TEXAS, Appellant,

v.

SENAIDA ALONZO, Appellee.

 

On appeal from the 93rd District Court 

of Hidalgo County, Texas.

 

MEMORANDUM OPINION

Before Chief Justice Valdez and Justices Rodriguez and Perkes

Memorandum Opinion by Justice Rodriguez

Appellant Women's Clinic of South Texas (the Clinic) challenges the trial court's 

denial of its motion to dismiss in this health care liability claim brought by appellee 

Senaida Alonzo. By three issues, the Clinic argues that: (1) the trial court abused its 

discretion in denying its motion to dismiss because Alonzo's expert report lacked the 
2

requisite elements to satisfy section 74.351 of the civil practices and remedies code, see

TEX. CIV. PRAC. & REM. CODE ANN. §74.351(a)-(b), (r)(6) (Vernon Supp. 2010); (2) a 

thirty-day extension to cure the report is unavailable to Alonzo despite the trial court's 

purported withdrawal of its earlier thirty-day extension; and (3) the trial court erred in 

failing to award attorneys' fees and costs to the Clinic. See id. § 74.351(c). We affirm, 

in part, and reverse and render, in part.

I. BACKGROUND

On April 23, 2009, Alonzo filed suit against the Clinic, Fernando J. Otero, M.D., 

Orestes Molina, M.D., and Heriberto Rodriguez-Ayala, M.D. claiming negligence in 

connection with their alleged failure to diagnose and treat her ectopic pregnancy before 

emergency surgery required the removal of her left fallopian tube and ovary.1 The Clinic 

answered on May 13, 2009. On August 17, 2009, Alonzo served the Clinic with her 

expert report, authored by Margaret Thompson, M.D., J.D..

2

 On August 28, 2009, the 

Clinic filed its objections to the expert report and its first motion to dismiss, arguing that 

Alonzo's expert report failed to set out the required standard of care, breach, and 

causation elements, that Dr. Thompson's qualifications to author an expert report as to 

the Clinic were not established, and that the report did not contain Dr. Thompson's 

curriculum vitae (CV).

The trial court held a hearing on the Clinic's motion to dismiss on October 28, 

2009. At the hearing, the parties acknowledged that Alonzo had since provided the 

 

1 Drs. Otero, Molina, and Rodriguez-Ayala are not parties to this appeal. 

2

The deadline for serving the expert report was August 21, 2009, or 120 days from the filing of 

Alonzo's original petition. See TEX. CIV. PRAC. & REM. CODE ANN. § 74.351(a) (Vernon Supp. 2010).
3

Clinic with a copy of Dr. Thompson's CV. The parties also briefly discussed the 

remaining inadequacies of the report, as alleged by the Clinic, but the trial court reserved 

ruling on the motion, instead asking the parties to provide briefing on the issue of the 

adequacy of Alonzo's expert report. The Clinic filed its letter brief on November 3, 2009. 

On November 5, 2009, the trial court issued an order denying the Clinic's motion to 

dismiss and granting Alonzo a thirty-day extension "to cure the report's deficiency"; the 

order further stated that Alonzo was "granted thirty (30) days from the date of this order to 

produce a report that attempts to cure the deficiencies in [Alonzo]'s current expert report." 

On November 23, Alonzo filed a motion to correct entry of the trial court's November 5 

order, in which Alonzo argued that

[T]he [extension] Order reflects in global, vague terms, that [Alonzo] 

is to prepare a new expert report. However the rules clearly require that 

the Court must first point out specific deficiencies in the current report. 

Pursuant to CPRC § 74.351(c), the Court must first enter a finding that 

specific elements of the report are found to be deficient. The order as 

submitted by [the Clinic's counsel] failed to set forth any specific 

deficiencies to be cured. No finding that any specific elements of 

[Alonzo]'s expert report are deficient has been made by this Court.

As per CPRC § 74.351(l), the Court can only find specific elements 

are deficient if the Court first finds that it appears to the Court that, after 

hearing, that the report does not represent an objective good faith effort to 

comply with the definition of an expert report. No such finding has been 

entered by this Court.

WHEREFORE, PREMISES CONSIDERED, Plaintiff requests the 

Court to strike the Order as submitted by [the Clinic's counsel] and to enter 

an order in the future regarding correcting deficiencies in the expert report 

after such time as there is a proper hearing and the Court makes a specific 

finding of what, if any, specific deficiencies must be cured.

It is undisputed that Alonzo did not serve an amended report in the thirty-day extension 

period.
4

On December 17, 2009, the Clinic filed its second motion to dismiss Alonzo's 

claims for failure to serve an expert report that complied with the requirements of section 

74.351. On March 10, 2010, the trial court held a hearing on the Clinic's second motion 

to dismiss. At the hearing, counsel for Alonzo suggested to the trial court that, at its 

October 28, 2009 hearing, the court had actually found that Alonzo's expert report was 

not deficient and, as such, inadvertently signed the November 5, 2010 order granting the 

thirty-day extension. The trial court then orally adopted counsel's suggestion and set 

aside its November 5 order.3 On April 15, 2010, the trial court issued a written order in 

which it (1) granted Alonzo's motion to correct entry of the November 5 order, (2) 

withdrew its November 5 order granting Alonzo a thirty-day extension to amend her 

expert report, and (3) denied the Clinic's August 28, 2009 motion to dismiss. This 

interlocutory appeal followed. See TEX. R. APP. P. 28.1; TEX. CIV. PRAC. & REM. CODE 

ANN. § 51.014(a)(9) (Vernon 2008) (authorizing an interlocutory appeal of the denial of a 

motion to dismiss filed under section 74.351(b)).

II. STANDARD OF REVIEW

We review a trial court's decision on a motion to dismiss under section 74.351 of 

the civil practice and remedies code for abuse of discretion. Jernigan v. Langley, 195 

S.W.3d 91, 93 (Tex. 2006); Am. Transitional Care Ctrs. of Tex., Inc. v. Palacios, 46 

S.W.3d 873, 878 (Tex. 2001). The trial court abuses its discretion if it acts unreasonably 

or arbitrarily or without reference to any guiding rules or principles. Walker v. Gutierrez, 

111 S.W.3d 56, 62 (Tex. 2003).

 

3

The trial court also indicated that it was not considering the Clinic's December 17, 2009 motion to 

dismiss because it was striking its November 5 order that initially denied the Clinic's August 28, 2009 motion 

to dismiss.
5

III. DISCUSSION

By three issues, the Clinic challenges the trial court's denial of its motion to dismiss 

Alonzo's health care liability claims.

A. Availability of Thirty-Day Extension

Because the availability of the thirty-day extension for amending Alonzo's expert 

report will affect our disposition, we first address the Clinic's second issue. By that issue,

the Clinic argues that, despite the trial court's purported withdrawal of its November 5, 

2009 order, a thirty-day extension is unavailable to Alonzo because Alonzo relied on the 

extension to serve Dr. Thompson's CV on the Clinic outside the 120-day deadline. We 

agree.

At the March 10, 2010 hearing on the Clinic's second motion to dismiss, counsel 

for Alonzo attempted to persuade the trial court that, at the October 28, 2009 hearing, the 

court had, in fact, concluded that Alonzo's expert report was sufficient. Counsel further 

took the position that the trial court was required to make findings of specific deficiencies 

in the report before it could grant a thirty-day extension. For these reasons, counsel 

argued that the trial court's November 5, 2009 order allowing Alonzo a thirty-day 

extension was mistakenly issued. The trial court appeared to adopt all of counsel's 

suggestions. We are troubled by counsel's assertions at the March 10 hearing for 

several reasons. 

First, the trial court's November 5 order granting Alonzo a thirty-day extension "to 

cure the report's deficiency," plainly acknowledged the deficiency in Alonzo's expert 

report. (Emphasis added.) Second, after reviewing the record from the October 28 
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hearing, it is clear to this Court that the trial court did not broadly conclude that Alonzo's 

expert report was sufficient. The only aspect of the report discussed in detail at the 

October 28 hearing was the absence of Dr. Thompson's CV. The Clinic asserted that it 

did not receive the CV within the 120-day deadline. And although Alonzo refuses to 

concede on appeal that her timely expert report did not contain Dr. Thompson's CV, 

statements made by Alonzo's counsel at the October 28 hearing indicated an 

acknowledgement that the CV was not included in the timely-served expert report—in 

particular, Alonzo's counsel asked the court for "the additional 30 days as to the 

curriculum vitae." Finally, neither the rules nor chapter 74 of the civil practice and 

remedies code require the trial court to clearly specify deficiencies in the current report or 

find that specific elements are deficient before granting a plaintiff the thirty-day extension 

available under section 74.351(c), a rule of law that was advanced by Alonzo both in her 

motion to correct entry of the trial court's November 5 order and in her argument to the 

trial court at the March 10 hearing. 

Under section 74.351, a health care liability plaintiff is allowed one thirty-day 

extension to cure deficiencies in her otherwise timely-served expert report. See TEX.

CIV. PRAC. & REM. CODE ANN. § 74.351(c). Alonzo requested her extension at the 

October 28, 2009 hearing, the trial court granted it in its November 5, 2009 order, and 

Alonzo took full advantage of it to produce Dr. Thompson's CV outside the 120-day 

deadline for serving her expert report. Without the extension, Alonzo's expert report 

would have been patently deficient because it lacked Dr. Thompson's CV. See id. § 

74.351(a). Further, in its objections and motion to dismiss, the Clinic specified the other 
7

alleged deficiencies in the report, namely that the expert report failed to set out the 

required standard of care, breach, and causation elements and that Dr. Thompson's 

qualifications to author an expert report as to the Clinic were not established. Thus, 

Alonzo was on notice of the potential deficiencies in her report and acted at her own risk in 

failing to remedy those alleged deficiencies by serving an amended report within the

thirty-day extension period granted by the trial court. For these reasons, we conclude 

that the trial court was without authority to withdraw its November 5, 2009 order because 

Alonzo already availed herself of the one-time thirty-day extension available to her under 

section 74.351. She is not entitled to another. See id. § 74.351(c). The Clinic's 

second issue is sustained.4

B. Deficiency of the Expert Report

By its first issue, the Clinic argues that Alonzo's expert report is deficient because it 

does not set forth the applicable standard of care and breach or explain the causal 

connection between the Clinic's breach and Alonzo's injuries. Under section 74.351 of 

the Texas Civil Practice and Remedies Code, a claimant must "serve on each party or the 

party's attorney" an expert report and curriculum vitae "not later than the 120th day after 

the date the original petition was filed." TEX. CIV. PRAC. & REM. CODE ANN. § 74.351(a). 

An expert report is "a written report by an expert that provides a fair summary of the 

expert's opinions . . . regarding applicable standards of care, the manner in which the care 

rendered . . . failed to meet the standards, and the causal relationship between that failure 

 

4

As such, the trial court's November 5, 2009 order, which denied the Clinic's first motion to 

dismiss, stands; it was the Clinic's second motion to dismiss, which made the same arguments as its first 

motion, that was properly before the trial court at the March 10, 2010 hearing; and the denial of that second 

motion to dismiss is what we now address.
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and the injury, harm, or damages claimed." Id. § 74.351(r)(6).

In our review of the expert report, we are limited to the four corners of the report in 

determining whether the report manifests a good faith effort to comply with the statutory 

definition of an expert report. Palacios, 46 S.W.3d at 878; see TEX. CIV. PRAC. & REM.

CODE ANN. § 74.351(l) (requiring that the trial court "grant a motion challenging the 

adequacy of the expert report only if appears to the court, after hearing, that the report 

does not represent an objective good faith effort to comply" with the statutory definition). 

The report "need not marshal all the plaintiff's proof." Palacios, 46 S.W.3d at 878; 

Jernigan, 195 S.W.3d at 93. If the expert report puts the defendant on notice of the 

specific conduct complained of and provides the trial court a basis on which to conclude 

the claims have merit, the report represents a good faith effort to comply with the statute. 

Palacios, 46 S.W.3d at 879.

Here, Alonzo's expert report meaningfully addresses only the actions and 

decisions of Drs. Otero, Molina, and Rodriguez-Ayala. The only specific reference in Dr. 

Thompson's report to the Clinic was that it "failed to meet the standard of care by refusing 

to see Ms. Alonzo on 4/18/07." But the report is wholly devoid of any standard of care 

applicable to the Clinic. Neither does the report include any analysis of the causal 

relationship between the breach alleged—apparently, the refusal of the Clinic to give 

Alonzo an appointment on April 18, 2007—and the injuries suffered by Alonzo. The 

report is therefore deficient as to the direct liability of the Clinic for Alonzo's injuries as it 

fails to set forth the standard of care or causation elements. See TEX. CIV. PRAC. & REM.

CODE ANN. § 74.351(r)(6).
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However, Alonzo argues that because she also sued the Clinic under the theory of 

respondeat superior for the actions of Drs. Otero, Molina, and Rodriguez-Ayala, whom 

Alonzo alleged were employees of the Clinic, her expert report that purportedly

sufficiently sets forth the standard of care, breach, and causation elements as to the 

doctors is also sufficient as to the Clinic. Alonzo first raised her vicarious liability claim in 

her amended petition, filed September 4, 2009. In her amended petition, Alonzo alleged 

that Drs. Otero, Molina, and Rodriguez-Ayala were employees of the Clinic. Alonzo 

alleged that the Clinic "provided medical service by its . . . employees" to Alonzo and that 

all such . . . employees were acting within the course and scope of their employment" with 

the Clinic. Alonzo then alleged that the Clinic "is liable . . . for the negligence of its 

employees under the doctrine of Respondeat Superior." In the record before us on 

appeal, we find neither an amendment by the Clinic to its August 28 objections and 

motion to dismiss or any additional objections or motion to dismiss addressing the 

vicarious liability theory advanced in Alonzo's amended petition.

Dr. Thompson's report specifically addresses the conduct of Drs. Otero, Molina, 

and Rodriguez-Ayala, whom Alonzo alleged in her amended petition to be employees of 

the Clinic and for whose actions Alonzo alleged the Clinic to be liable under the theory of 

respondeat superior. A health care liability plaintiff fulfills her expert report requirement 

as to a defendant hospital, clinic, or other facility alleged to be vicariously liable if the 

report is adequate as to the employees alleged to be directly liable. See Gardner v. U.S. 

Imaging, Inc., 274 S.W.3d 669, 671-72 (Tex. 2008) (per curiam) (holding that, if a 

defendant surgical facility's liability is vicarious, the expert report requirement is fulfilled as 
10

to the surgical facility if the report is adequate as to the employees alleged to be directly 

liable); RGV Healthcare Assocs., Inc. v. Estevis, 294 S.W.3d 264, 273 (Tex. App.–Corpus 

Christi 2009, pet. denied) ("When a plaintiff's claim against a hospital is not for direct 

negligence, but is based on the conduct of an employee through the doctrine of 

respondeat superior," the report "is sufficient as against the hospital to satisfy the expert 

report requirement for the vicarious liability claims" if "the report identifies conduct by the 

hospital's employee, the hospital is implicated, and . . . the report adequately addresses 

the standard of care applicable to the employee, how the employee breached the 

standard of care, and that the breach caused the plaintiff's injury."); Univ. of Tex. Med. 

Branch v. Railsback, 259 S.W.3d 860, 869 (Tex. App.–Houston [1st Dist.] 2008, no pet.) 

(same); Univ. of Tex. Sw. Med. Ctr. v. Dale, 188 S.W.3d 877, 879 (Tex. App.–Dallas 

2006, no pet.) (holding that "because appellants were not alleging UT Southwestern was 

directly negligent, the expert report was not required to mention UT Southwestern by 

name"). But we need not determine if Alonzo's report is actually sufficient under section 

74.351 because the Clinic does assert on appeal that Dr. Thompson's report was 

deficient in explaining how the actions and decisions of its alleged employees were 

negligent; the Clinic therefore failed to present reversible error regarding the expert report 

as it relates to Alonzo's vicarious liability claim. See Dale, 188 S.W.3d at 879 (holding 

that "because [the defendant hospital] does not assert the expert report was defective in 

explaining how the conduct of each of its [employee] residents constituted negligence, we 

conclude [the hospital] does not present reversible error"); see also TEX. R. APP. P. 

38.1(i). Alonzo fulfilled the expert report requirement as to her vicarious liability claim 
11

against the Clinic by serving a report addressing the conduct of the Clinic employees 

alleged to be directly liable for Alonzo's injuries. See Estevis, 294 S.W.3d at 273 

(holding that an expert report in the vicarious liability context need not even mention the 

defendant hospital or that the employees were acting in the course and scope of their 

employment because the author of the report would not be qualified to draw such a legal 

conclusion); Dale, 188 S.W.3d at 879 & n.1 (same).

In sum, because her expert report is deficient as to the direct liability of the Clinic, 

we conclude that the trial court abused its discretion in denying the Clinic's motion to 

dismiss with regard to that claim. No thirty-day extension is available because Alonzo 

already availed herself of that extension through the trial court's November 5, 2009 order. 

See TEX. CIV. PRAC. & REM. CODE ANN. § 74.351(c). We sustain the Clinic's first issue in 

so far as it relates to the direct liability claim. However, because the Clinic failed to 

assert and argue on appeal that the expert report was deficient as to the actions and 

decisions of the defendant doctors, the Clinic has presented no reversible error as to the 

vicarious liability claims asserted by Alonzo in her amended petition, and the trial court did 

not abuse its discretion in denying the Clinic's motion to dismiss in this regard. We 

overrule the Clinic's first issue in so far as it relates to the vicarious liability claim.

C. Attorneys' Fees

By its third issue, the Clinic argues that the trial court erred in failing to award it 

attorneys' fees and costs. However, because Alonzo did timely serve an expert report in 

regard to a portion of her claims, we need not address the Clinic's request for attorneys'

fees at this stage. See TEX CIV. PRAC. & REM. CODE ANN. § 74.351(b) (stating that, if 
12

"expert report has not been served within the period specified by [s]ubsection (a), the 

court, on the motion of ... health care provider, shall . . . award[ ] . . . reasonable attorney's 

fees"); see also Railsback, 259 S.W.3d at 870 n.14 (declining to reach attorneys' fees 

issue in case where plaintiff timely served a report on part of her vicarious liability claims). 

The Clinic's third issue is overruled.

IV. CONCLUSION

We affirm the order of the trial court denying the Clinic's motion to dismiss in so far 

as it relates to Alonzo's vicarious liability claim against the Clinic. We reverse the order 

of the trial court denying the Clinic's motion to dismiss in so far as it relates to Alonzo's 

direct liability claim against the Clinic and render judgment dismissing that claim with 

prejudice. See TEX. CIV. PRAC. & REM. CODE ANN. § 74.351(b).

NELDA V. RODRIGUEZ

Justice

Delivered and filed the 

24th day of March, 2011.