Scoresby v. Santillan

• Decision Date: 30 September 2011
• Docket Number: No. 09–0497.,09–0497.
• Citation: 54 Tex. Sup. Ct. J. 1413,346 S.W.3d 546
• Parties: Tyler SCORESBY, M.D., Petitioner,v.Catarino SANTILLAN, Individually and As Next Friend of Samuel Santillan, A Minor, Respondent.
• Court: Texas Supreme Court

346 S.W.3d 546
54 Tex. Sup. Ct. J. 1413

Tyler SCORESBY, M.D., Petitioner,
v.
Catarino SANTILLAN, Individually and As Next Friend of Samuel Santillan, A Minor, Respondent.

No. 09–0497.

Supreme Court of Texas.

Argued Nov. 9, 2010.Decided July 1, 2011.Rehearing Denied Sept. 30, 2011.

[346 S.W.3d 548]

Eric Rene Reyes, Jason C.N. Smith, Art Brender, Fort Worth, for Catarino Santillan.

[346 S.W.3d 549]

Michael Alan Yanof, Philipa Remington, Dallas, for Tyler Scoresby, M.D.Randy J. Hall, David Leon Pratt II, Fort Worth, for Yadranko Ducic, M.D.Justice HECHT delivered the opinion of the Court, in which Chief Justice JEFFERSON, Justice MEDINA, Justice GREEN, Justice WILLETT, Justice GUZMAN, and Justice LEHRMANN joined.

The Medical Liability Act ¹ entitles a defendant to dismissal of a health care liability claim if, within 120 days of the date suit was filed, he is not served with an expert report showing that the claim against him has merit.² The trial court's refusal to dismiss is immediately appealable.³ The Act sets specific requirements for an adequate report ⁴ and mandates that “an objective good faith effort [be made] to comply” with them,⁵ but it also authorizes the trial court to give a plaintiff who meets the 120–day deadline an additional thirty days in which to cure a “deficiency” in the elements of the report.⁶ The trial court should err on the side of granting the additional time ⁷ and must grant it if the deficiencies are curable.⁸ The defendant cannot seek review of this ruling ⁹ or appeal the court's concomitant refusal to dismiss the claim before the thirty-day period has expired.¹⁰

While the Act thus contemplates that a document can be considered an expert report despite its deficiencies, the Act does not suggest that a document utterly devoid of substantive content will qualify as an expert report. Based on the Act's text and stated purposes, we hold that a document qualifies as an expert report if it contains a statement of opinion by an individual with expertise indicating that the claim asserted by the plaintiff against the defendant has merit. An individual's lack of relevant qualifications and an opinion's inadequacies are deficiencies the plaintiff should be given an opportunity to cure if it is possible to do so. This lenient standard avoids the expense and delay of multiple interlocutory appeals and assures a claimant a fair opportunity to demonstrate that his claim is not frivolous. The expert report before us meets this test, and therefore the trial court's order allowing thirty days to cure deficiencies and denying the defendants' motions to dismiss were not appealable. Accordingly, we affirm the court of appeals' judgment dismissing the appeal for want of jurisdiction. ¹¹

[346 S.W.3d 550]

I

On behalf of Samuel Santillan, a minor, Catarino Santillan sued Dr. Tyler Scoresby and Dr. Yadranko Ducic, two otolaryngology (ENT) surgeons (collectively, “the Physicians”), alleging that they negligently performed a medial maxillectomy to remove growths from Samuel's sinus cavity. Santillan asserts that an incision made too far into Samuel's brain lacerated a blood vessel and required surgery to stop the bleeding, resulting in brain damage and partial paralysis.

To satisfy the Act's expert report requirement, Santillan timely served the Physicians with a letter from Dr. Charles D. Marable to Santillan's attorney. The letter did not attach Marable's curriculum vitae or describe his credentials or experience other than to state that he is “a Board–Certified neurologist”. From having examined Samuel and reviewed his medical records, Marable explained his condition as follows:

The patient was initially seen on 8/3/07. He is now a 17–year–old Latin–American male who was taken to John Peter Smith on 1/17/06 for a preoperative diagnosis of maxillary sinus neoplasm under the care of Dr. Yadro Ducic, M.D., an ENT physician, and another surgeon, Dr. Tyler Scorsby [sic], with procedures of left mediomaxillectomy [sic], excision of neoplasm of the maxilla, calvarial bone growth and reconstruction of maxilla and excision of tumor of pterygopalatin [sic] structures. During the procedure, an incision was made in the right parietal region in a coronal fashion and carried down the pericranium. As a result of this, there was cortical laceration with active bleeding from several medium size vessels in the area.

According to Dr. Scorsby's [sic] note, the patient awoke in the operating room without complications and was taken to the post anesthesia care unit. However, on awakening he did not have a normal neurologic exam, in fact, had a right-sided hemiparesis, and due to the progression of his neurological deficit, increasing intercerebral hemorrhage was noted by CT scanning.

He was taken back to the operating suite on 1/18/06 by Dr. Gregory Smith, D.O., a neurosurgeon. Dr. Smith's preoperative diagnosis was that of expanding inter-cerebral hematoma, status post split thickness skull harvesting, with postoperative diagnosis of expanding intercerebral hematoma and intercerebral hematoma skull perforation. Procedure performed was that of a left parietal craniotomy with evacuation of intercerebral hematoma, repair and hemostasis. Dr. Smith's operative report states there was cortical laceration with active bleeding from several medium-sized vessels in the left parietal area, which were then cauterized with bipolar cautery for hemostatis. An underlying intercerebral hematoma was entered and eventually evacuated successfully with suction.

* * *

It appears he was in the hospital until 2/11/06, and at that time was transferred to HealthSouth Rehabilitation Hospital, Cityview, admitted on 2/11/06, date of discharge 2/21/06. He was discharged with the diagnosis of left parietal hemorrhage, maxillary sinus tumor resection, right hemiparesis, persistent pain, apraxia, seizure prophylaxis, peptic ulcer prophylaxis and right hemisensory deficit. During his stay at HealthSouth Hospital he progressed in all areas of mobilization and self-care. He was ambulating greater than 400', but still had significant right upper extremity weakness and spasticity. It was then deemed necessary to transfer him to an outpatient brain injury program and work on his strength, cognition and overall mobilization....

[346 S.W.3d 551]

He was seen on 8/3/07. He still has weakness of his right arm and leg. Walking seems to still be a problem.... He is still having headaches in the occipital region.

Marable's letter concluded:

As a Board–Certified neurologist, my opinion is that Dr. Ducic violated the standards of care, as well as Dr. Scorsby [sic], and as a result his damages are that of a right-sided hemiparesis with possibility of seizure foci in the future. Although he has not had any seizures, he certainly does meet the criteria for a seizure disorder. Had it not been for Dr. Ducic and Dr. Scorsby's [sic] negligent activity in causing cortical laceration of this patient's left parietal lobe, he would not have needed further hospitalization at John Peter Smith or the ICU therapy, or going to HealthSouth Rehab, and is now left with a right hemiparesis at a young age.

The Physicians each timely objected that the letter was inadequate as an expert report, asserting that: (i) a neurologist is not qualified to testify regarding the standard of care for an ENT surgeon in performing the procedures the Physicians performed on Samuel; (ii) Marable's opinions regarding the Physicians' standard of care, breach, and causal relationship to Samuel's injuries were conclusory and directed to Scoresby and Ducic collectively rather than individually; and (iii) Marable's curriculum vitae was not included, as the Act requires.¹² The Physicians argued Marable's letter was so woefully deficient, it did not even qualify as an expert report under the Act to meet the 120–day deadline. They moved the court to dismiss the case with prejudice and award them their reasonable attorney fees and costs.

After the 120–day deadline, Santillan served the Physicians with Marable's curriculum vitae and his amended report, in which he added that “the applicable standard of care would have been to perform the procedure of a calvaria bone transplant without nicking or lacerating the parietal cortex [and] to get the appropriate surgeon, such as a neurosurgeon, instead of an ENT physician to do a calvaria bone grafting procedure”, and that “Dr. Ducic and Dr. Scorsby [sic] ... failed to perform a careful and well-planned surgery, causing a laceration of the cortical hemisphere, causing substantial bleeding”. At the hearing on the Physicians' objections and motions, the trial court refused to consider Marable's post-deadline amended report. The Physicians complained that Marable's original letter did not show that he had sufficient qualifications and experience to render an opinion regarding the surgery, and did not define the standard of care, state how it was breached, or explain how a breach resulted in Samuel's injuries. The Physicians acknowledged that Samuel suffered a lacerated artery but argued that such things are inevitable in surgery, no matter how carefully it is performed, and do not necessarily indicate a breach of the standard of care. The trial court denied the motions to dismiss and granted Santillan a thirty-day extension to cure deficiencies in the report.

The Physicians appealed, persisting in their contention that Marable's letter was too inadequate to qualify as an expert report; therefore, Santillan had not met the 120–day deadline; and consequently, the Act did not permit an additional thirty days to cure the deficiencies but instead required that the case be dismissed.¹³ The court of appeals construed our analysis in Ogletree v. Matthews¹⁴ to mean that deficiencies

[346 S.W.3d 552]

in a document tendered as an expert report will not preclude it from qualifying as such.¹⁵ The court concluded that an interlocutory appeal in these circumstances was not permitted.¹⁶

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