De Leon v. Vela

• Decision Date: 28 November 2001
• Docket Number: No. 04-00-00844-CV.,04-00-00844-CV.
• Citation: 70 S.W.3d 194
• Parties: San Juana DE LEON, Appellant, v. Raul VELA, M.D., Appellee.
• Court: Texas Court of Appeals

70 S.W.3d 194

San Juana DE LEON, Appellant, v. Raul VELA, M.D., Appellee.

No. 04-00-00844-CV.

Court of Appeals of Texas, San Antonio.

November 28, 2001.

Rehearing Overruled December 18, 2001.

Dinah Gaines, Attorney At Law, San Antonio, for Appellant.

Edward P. Waller, Jr., Brin & Brin, P.C., San Antonio, Linda C. Breck, Thomas F. Nye, Brin & Brin, P.C., Corpus Christi, for Appellee.

Sitting: ALMA L. LOPEZ, Justice, CATHERINE STONE, Justice and KAREN ANGELINI, Justice.

OPINION

CATHERINE STONE, Justice.

San Juana De Leon appeals the trial court's order dismissing her health care liability claim against Dr. Raul Vela. On appeal, we must consider whether: (1) De Leon's expert report is sufficient to satisfy the requirements of the Medical Liability and Insurance Improvement Act of Texas (Article 4590i); (2) the trial court erroneously denied De Leon an extension of time to file a supplemental expert report; and (3) the trial court erroneously awarded attorney's fees and costs to Vela. We hold that the report is insufficient and the trial court did not err in denying De Leon an extension of time to file a supplemental expert report. The trial court's order is affirmed as to these issues. Further, we hold that the trial court erred in awarding Vela attorney's fees and costs. We therefore reverse the award and render judgment that Vela take nothing for attorney's fees and costs.

FACTUAL & PROCEDURAL BACKGROUND

De Leon sought Vela's medical expertise regarding a small lump on her body in September 1994. Vela determined that De Leon's condition required surgery and proceeded to perform approximately 13 surgeries over the next five years to treat it. Following De Leon's final surgery, she visited a physician in San Antonio to obtain a second opinion regarding her condition. This physician diagnosed De Leon as having lipomas and fibrocystic disease, conditions which are not customarily treated with surgery.¹ Upon her discovery, De Leon filed a health care liability claim against Vela alleging that he performed unnecessary surgeries that left her body mutilated and left her emotionally depressed.²

On August 7, 2000, De Leon served Vela with a copy of a report by Dr. Robert Trevino, an internal medicine and critical care medicine specialist at the San Antonio Institute of Medicine, detailing his assessment of De Leon. After receiving Trevino's report, Vela challenged the sufficiency of the report under Article 4590i and moved to dismiss De Leon's action on September 21, 2000. Six days later, De Leon responded by filing a motion to extend the time to file her expert's report, attaching an affidavit from Treviño explaining that if his first report did not comply with Article 4590i, it was due to his lack of awareness of the requirements of the statute. Treviño's supplemental report was not filed until October 23, 2000.

After hearing the arguments, the court entered its order dismissing De Leon's action with prejudice. The court awarded Vela sanctions against De Leon for reasonable attorney's fees and costs incurred in the amount of $3,296.50. It is from these rulings that De Leon appeals. On appeal, De Leon argues that the trial court: (1) erred in granting Vela's motion to dismiss; (2) erred in denying her motion for an extension of time to file a supplemental expert report; and (3) erred in awarding attorney's fees and costs to Vela.

STANDARD OF REVIEW

We apply an abuse of discretion standard when reviewing a dismissal under section 13.01 of Article 4590i, reversing only if the trial court acts unreasonably or arbitrarily. American Transitional Care Ctrs. of Tex., Inc. v. Palacios, 46 S.W.3d 873, 875 (Tex.2001); Morrill v. Third Coast Emergency Physicians, P.A., 32 S.W.3d 324, 327 (Tex.App.-San Antonio 2000, pet. denied). A trial court will be deemed to have acted arbitrarily and unreasonably if it is demonstrated that the trial court could have reached only one decision. Morrill, 32 S.W.3d at 327. We may not disturb the trial court's resolution of factual issues, even if we would have decided the issues differently. Id.

DISCUSSION

Article 4590i

According to Article 4590i section 13.01(d), a health care liability claimant is required to provide a defendant physician with an expert report and the expert's curriculum vitae within 180 days of filing suit. Tex.Rev.Civ. Stat. Ann. art. 4590i § 13.01(d) (Vernon Supp.2001). If the claimant files his report timely, the defendant may move to challenge the adequacy of the claimant's report. Id. at § 13.01(l). The trial court must grant the defendant's motion if it determines that the report does not represent a "good faith" effort on the part of the claimant to comply with section 13.01(r)(6)'s definition of an expert report. Id. Section 13.01(r)(6) defines an expert report as a:

written report by an expert that provides a fair summary of the expert's opinions as of the date of the report regarding applicable standards of care, the manner in which the care rendered by the physician or health care provider failed to meet the standards, and the causal relationship between that failure and the injury, harm, or damages claimed.

Id. at § 13.01(r)(6). The trial court must dismiss with prejudice the claims against the defendant who has challenged the report if the requirements of section 13.01(r)(6) are not met and the time for filing a report has passed. Id. at § 13.01(e); Palacios, 46 S.W.3d at 877.

Treviño's Report

Here, De Leon had to file her expert's report by August 14, 2000 to comply with section 13.01(d)'s 180 day filing requirement. De Leon filed her first expert report and curriculum vitae on August 7, 2000. In so filing, De Leon initially complied with section 13.01(d). Therefore, we consider whether the report De Leon filed satisfies section 13.01(r)(6)'s definition of an "expert report."

Pursuant to sections 13.01(l) and 13.01(r)(6), an expert report must represent only a "good faith" effort to provide a fair summary of the expert's opinions to qualify as an expert report under the statute. Palacios, 46 S.W.3d at 878. The report need not formally organize all of the plaintiff's proof, but it is imperative that it include the expert's opinion on each of the elements set forth within the statute. Id.

In setting out the expert's opinions on each of those elements, the report must provide enough information to fulfill two purposes if it is to constitute a good faith effort. First, the report must inform the defendant of the specific conduct the plaintiff has called into question. Second, and equally important, the report must provide a basis for the trial court to conclude that the claims have merit.

Id. at 879. If the report merely states the expert's conclusions about the statutory elements, it will not fulfill either of these two purposes. Id. Similarly, "a report will not meet these purposes and thus constitute a good faith effort if it omits any of the statutory requirements." Id. The trial court is limited to the four corners of the document when conducting its inquiry into the sufficiency of the report. Id. at 878.

In this case, Dr. Treviño's original report states as follows:

I saw Mrs. De Leon, a 51y/o Latin American female, in my office on 10/4/99 with the chief complaint of severe pain to multiple surgical sites. She also presented with signs and symptoms of depression because of the body mutilation caused by the multiple surgeries.

On examination, her vital signs were B/P 114/78, P 67, T 97.1 and WT. 157 lbs. She was in no acute distress. Her integuments showed multiple scars to the chest, breast, and abdomen and the surgical sites were tender on palpation and with gross deformity because of queloide scarring. The heart and lung were normal but the abdomen was tender on palpation again because of the tender surgical sites. Rest of her physical examination was normal.

Previous records were reviewed from Dr. Raul Vela and all laboratory tests were normal and the pathology from the multiple breast surgeries was fibrocystic disease and the pathology from the multiple body surgeries was lipomas. ASSESSMENT: 1) Intractable pain secondary to surgery related neuromas.

2) Depression secondary to surgery related body deformity.

My assessment, after reviewing the patient's medical records, is that so many surgeries were not indicated and that these unnecessary surgeries contributed to the patient's current condition.

In her first three points of error, De Leon contends that this report is sufficient to comply with the statutory requirements of Article 4590i because it puts Vela on notice that the surgeries he performed were unnecessary, resulted in her body's mutilation, caused her severe pain, and put her into a depression. Moreover, De Leon argues that the trial court should have considered her report in the context of her pleadings and the affidavit she attached to her motion for an extension of time to file a supplemental expert report. Had the trial court done so, De Leon believes that the court would have concluded that Treviño's original report was sufficient to comply with Article 4590i. We disagree.

As set forth in Palacios, an expert report must include the expert's opinion on each of the elements within Article 4590i with sufficient specificity to serve the dual purposes of informing the defendant of the conduct the plaintiff has called into question and providing the trial court with a basis to conclude that the claims have merit. Palacios, 46 S.W.3d at 879. Here, Treviño's original report neither states his opinion on the applicable standard of care, nor whether there was a breach of that standard. TreviÑo merely states that "so many surgeries were not indicated" and "unnecessary," but fails to indicate what the acceptable standard of care was for a patient in De Leon's position. TreviÑo implies that he knows the standard of care De Leon was entitled to and concludes that Vela failed to meet that level of care. In turn, Treviño's...