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Reversed and Rendered in Part and = Remanded in Part=20 and Opinion filed March 11, 2008.

 

 

In=20 The

 

Fourteenth Court=20 of Appeals

____________

 

NO. 14-07-00438-CV

____________

 

SCOTT=20 RIVENES, M.D., = Appellant

 

V.

 

DONALD M.=20 HOLDEN AND MARY HOLDEN, = Appellees

 

 

On Appeal from the = 434th District Court

Fort=20 Bend=20 County, Texas

Trial Court Cause = No. 06-CV-151,678

 

 

O P I N I=20 O N

 Appellant,=20 Scott Rivenes, M.D., appeals from the trial court=3Ds denial=20 of his motion to dismiss the claims of appellees, Donald M. Holden = and=20 Mary Holden, for failure to comply with section 74.351 of the = Civil=20 Practice and Remedies Code requiring a plaintiff suing a doctor to = file an=20 expert report.  In two issues, appellant contends that the = trial=20 court abused its discretion when it (1) denied his motion to = dismiss; and=20 (2) granted the Holdens a 90-day extension to amend or supplement = the=20 medical expert report completed by Dr. Robert Lamberg.  = Because we=20 agree that the trial court abused its discretion in denying=20 appellant=3Ds motion=20 to dismiss, we reverse the judgment of the trial court, render = judgment=20 dismissing the Holdens=3D = claims=20 against appellant with prejudice, and remand the case for a = determination=20 of reasonable attorney=3Ds fees and=20 court costs.

Factual=20 and Procedural Background

According=20 to the parties=3D = pleadings, on June 13, 2004, at approximately 7:00 p.m., Donald = Holden=20 (AHolden@) suddenly=20 lost vision in his left eye.  He was rushed to the emergency = room of=20 Methodist Sugar Land Hospital (Athe=20 Hospital@), where=20 he was examined by appellant at approximately 7:15 p.m.  = Appellant=20 diagnosed Holden with a central retinal artery occlusion, and = referred him=20 to Dr. Matthew McMenemy (AMcMenemy@), the=20 ophthalmologist on call at the Hospital that night.  However, = McMenemy did not see Holden until 8:30 p.m., and at 10:30 p.m. = prescribed=20 him Retavase. Unfortunately, Holden permanently lost complete = vision in=20 his left eye.

On August=20 25, 2006, Holden and his wife, Mary Holden, (Athe=20 Holdens@) filed=20 suit against McMenemy, appellant, and the Hospital,[1]=20 asserting causes of action for medical malpractice and = negligence. =20 On December 19, 2006, the Holdens timely served the parties with = the=20 medical expert report and curriculum vitae of Dr. Robert Lamberg=20 (ALamberg@). =20 Lamberg=3Ds one and=20 one-half page report contained the following facts and=20 opinions:

I have read the = documents=20 forwarded to me in regard to the complaint of your client, Donald = Holden,=20 in regard to Dr. Mathew McMenemy and Methodist Sugar Land=20 Hospital.

Mr. Holden says = that at 6:45=20 p.m. on June 13, 2004, he suddenly lost the vision in his left eye = and=20 called the emergency room which told him to come to the hospital = right=20 away.  He arrived at the hospital at 7:15 p.m.  He was = seen in=20 the emergency room with light perception vision.  A diagnosis = of=20 central retinal artery occlusion (CRAO) was made, and he was = admitted to=20 the hospital.  He was seen in Dr. Menemy=3Ds office about 8:30 = that=20 evening, and a decision to try to lyse the occlusion with Retavase = was=20 made.  About 10:30 p.m. the patient received the Retavase, = but there=20 was no improvement in the vision.

The following day = in the=20 hospital, the patient received a large number of tests to try to = determine=20 the etiology of the CRAO.  The right carotid artery was = relatively=20 clean but the left carotid artery was 40-50% occluded.  The = sed rate=20 and other tests were non-contributory.  The patient was = discharged on=20 aspirin, Plavix, Lisinopril, and Zocor.

It was imperative = from the=20 outset to do first aid for central retinal artery occlusion.  = Some or=20 all of the following could have been done by the emergency room = staff=20 and/or Dr. McMenemy: manually massage the eye to try and break up = the=20 clot, breathe into a paper bag to try to dilate the retinal artery = with=20 increased CO2 in the blood, topical beta blocker drops and/or = Diamox IV to=20 lower the pressure in the eye, and/or a paracentesis of the eye to = immediately lower the pressure in the eye.

The office notes = from Dr.=20 McMenemy only include a page that is dated 6/13/06.  This is = very=20 disturbing, as the incident occurred on 6/13/04 and no other notes = were=20 obtained from the office with a request for records.  One = must wonder=20 if this note was altered or constructed at a later date.  I = only=20 received one page of written notes.  There is no mention of = any=20 treatment, impression or plan noted on this page.

There were no = attempts made=20 to resuscitate the stroke in the blind eye other tha[n] the=20 Retavase.  If the occlusion were a cholesterol plaque and not = a clot,=20 the Retavase would not be expected to work.

It is my=20 opinion that the emergency room and Dr. McMenemy failed to provide = the=20 standard of care for the catastrophic central retinal artery = occlusion=20 that presented within 2 = hour of=20 the event.  While the outcome of CRAO is variable, even when = all the=20 above steps are taken, there is still a significant percentage of = eyes=20 that recuperate some level of useful vision even 24 hours after an = artery=20 occlusion.

The=20 Holdens did not serve upon the parties any further expert reports = before=20 the expiration of the 120-day deadline imposed by section = 74.351(a) of the=20 Civil Practice and Remedies Code.

Pursuant=20 to section 74.351(a), appellant had until January 9, 2007, to file = and=20 serve any objections to the sufficiency of Lamberg=3Ds expert=20 report.  On January 11, 2007, appellant untimely filed = objections to=20 that report, accompanied by a motion to dismiss.  Appellant = objected=20 on the basis that Lamberg, an ophthalmologist, was not qualified = to render=20 an expert opinion regarding the standard of care expected of = appellant, an=20 emergency room physician.  Appellant further objected that=20 Lamberg=3Ds report=20 failed to mention appellant by name, thereby failing to notify him = of the=20 specific conduct forming the basis of the Holdens=3D = claims,=20 and precluding the trial court from evaluating the merits of those = claims.  However, appellant subsequently withdrew those = objections=20 and the motion to dismiss on January 18, 2007.

On January=20 31, 2007, appellant filed a second motion to dismiss the=20 Holdens=3D = claims.  In this motion to dismiss, appellant asserted that = section=20 74.351 required the Holdens to file an expert report by December = 23, 2006=20 addressing appellant=3Ds alleged=20 negligence, and, if no report was filed, the Holdens=3D = claims=20 against appellant must be dismissed.[2] =20 Appellant contended that Lamberg=3Ds expert=20 report addressed solely the alleged negligence of the other = defendants,=20 and because no other expert report was served upon appellant by = the=20 expiration of the 120-day deadline, section 74.351(b) mandated = dismissal=20 of the claims against appellant with prejudice.  Appellant = also=20 sought the recovery of reasonable attorney=3Ds fees and=20 court costs.  The trial court denied appellant=3Ds motion=20 to dismiss.  The court also granted appellant an additional = 21 days=20 to object to the sufficiency of Lamberg=3Ds expert=20 report, and further granted the Holdens an additional 90 days to = amend=20 Lamberg=3Ds expert=20 report and/or supplement his report with that of an emergency = medicine=20 physician.  Appellant then appealed the denial of its motion = to=20 dismiss.

Issues on=20 Appeal

On appeal,=20 appellant challenges the trial court=3Ds denial=20 of his motion to dismiss and its grant of a 90-day extension to = the=20 Holdens to amend and/or supplement Lamberg=3Ds expert=20 report.  In two issues, appellant contends that the trial = court=20 abused its discretion when it (1) denied his motion to dismiss; = and (2)=20 granted the Holdens a 90-day extension to amend or supplement=20 Lamberg=3Ds expert=20 report.  Because we find that the medical expert report of = Dr.=20 Lamberg does not implicate appellant=3Ds conduct,=20 and thus does not constitute an expert report as to appellant, we = hold=20 that the trial court abused its discretion in denying=20 appellant=3Ds motion=20 to dismiss.  We further find that, pursuant to section = 74.351(b),=20 appellant is entitled to the award of reasonable = attorney=3Ds fees and=20 court costs.  We therefore reverse the judgment of the trial = court,=20 render judgment dismissing the Holdens=3D = claims=20 against appellant with prejudice, and remand the case for a = determination=20 of reasonable attorney=3Ds fees and=20 court costs.

A.     =20 Standard of Review

When a=20 trial court rules on a defendant physician=3Ds motion=20 to dismiss a health care liability claim, we review the ruling for = an=20 abuse of discretion. Am. Transitional Care Ctrs. of Tex., Inc. = v.=20 Palacios, 46 S.W.3d 873, 877B78 (Tex.=20 2001); Rittmer v. Garza, 65 S.W.3d 718, 721 (Tex. = App.BBHouston=20 [14th Dist.] 2001, no pet.).  An abuse of discretion occurs = when the=20 trial court acts in an unreasonable and arbitrary manner, or when = it acts=20 without reference to any guiding rules or principles. Walker v. = Gutierrez, 111 S.W.3d 56, 62 (Tex. 2003).  A trial court = will be=20 deemed to have acted arbitrarily and unreasonably if the trial = court could=20 have reached only one decision, yet reached a different one. = Teixeira=20 v. Hall, 107 S.W.3d 805, 807 (Tex. App.BBTexarkana=20 2003, no pet.).  To that end, a trial court abuses its = discretion=20 when it fails to analyze or apply the law correctly. In re Sw. = Bell=20 Tel. Co., 226 S.W.3d 400, 403 (Tex. 2007) (citing In re = Kuntz,=20 124 S.W.3d 179, 181 (Tex. 2003)).  However, to the extent = resolution=20 of the issue presented requires interpretation of the statute, we = review=20 the ruling under a de novo standard. See Buck v. Blum, 130 = S.W.3d=20 285, 290 (Tex. App.CHouston=20 [14th Dist.] 2004, no pet).

B.     =20 Applicable Law

Section=20 74.351(a) of the Civil Practice and Remedies Code requires a = claimant in a=20 health care liability claim to serve on each party or the=20 party=3Ds attorney=20 one or more expert reports, with the curriculum vitae of each = expert=20 listed in the report. Tex. Civ.=20 Prac. & Rem. Code _ = 74.351(a).  The fault of each physician sued must be = addressed in an=20 expert report. Id.=20  To be considered timely, the expert report must be = served=20 Anot later=20 than the 120th day after the date the original petition was=20 filed.@ = Id.=20  Barring a written agreement between the parties = extending the=20 date for serving the report, failure to timely serve an expert = report as=20 to a particular defendant physician results in the trial = court=3Ds=20 dismissal of the claims against that defendant with prejudice, = along with=20 the award of reasonable attorney=3Ds fees and=20 court costs to the defendant. Id. _ = 74.351(b).  In fact, if the plaintiff does not timely serve = an expert=20 report as to a particular defendant, the trial court has no = discretion to=20 do anything other than dismiss the case with prejudice. Estate = of Regis=20 ex rel. McWashington v. Harris County Hosp. Dist., 208 S.W.3d = 64,=20 67B = 68 (Tex.=20 App.BBHouston=20 [14th Dist.] 2006, no pet.) (citing Valley Baptist Med. Ctr. v. = Azua, 198 S.W.3d 810, 815 (Tex. App.BBCorpus=20 Christi 2006, no pet.); Herrera v. Seton Nw. Hosp., 212 = S.W.3d 452,=20 455 (Tex. App.BBAustin=20 2006, no pet.); Thoyakulathu v. Brennan, 192 S.W.3d 849, = 852 (Tex.=20 App.BBTexarkana=20 2006, no pet.); Mokkala v. Mead, 178 S.W.3d 66, 76 (Tex.=20 App.BBHouston=20 [14th Dist.] 2005, pet. granted)).

Under=20 section 74.351(r)(6), an expert report is defined as a written = report by=20 an expert that provides a fair summary of the expert=3Ds opinions=20 regarding (1) the applicable standard of care; (2) the manner in = which the=20 care provided failed to meet that standard; and (3) the causal=20 relationship between that failure and the injury, harm, or damages = claimed. Tex. Civ. Prac. = &=20 Rem. Code _ = 74.351(r)(6); Patel v. Williams ex rel. Estate of Mitchell, = 237=20 S.W.3d 901, 904 (Tex. App.CHouston=20 [14th Dist.] 2007, no pet.).  An expert report need = not=20 marshal all the plaintiff=3Ds proof,=20 but it must include the expert=3Ds opinion=20 on each of these statutorily-required elements. Palacios, = 46 S.W.3d=20 at 878.  With this in mind, we now turn to our analysis of=20 appellant=3Ds=20 issues.

C.     =20 Analysis of Appellant=3Ds=20 Issues

We analyze=20 appellant=3Ds issues=20 in the order he has presented them.  In so doing, we find = that=20 resolution of appellant=3Ds first=20 issue disposes of his second as well.

1.      =20 The Trial Court Abused Its Discretion by Denying=20 Appellant=3Ds Motion=20 to Dismiss.

In his=20 first issue, appellant contends that the trial court abused its = discretion=20 in denying his motion to dismiss for the Holdens=3D = failure=20 to comply with section 74.351(a).  Specifically, he asserts = that=20 Lamberg=3Ds expert=20 report addresses solely the alleged negligence of McMenemy and the = HospitalCnot=20 appellantCand that=20 the Holdens otherwise failed to serve an expert report addressing = any=20 negligence attributable to him before the expiration of the = 120-day=20 deadline.[3] =20 He argues that the Holdens=3D = failure=20 to comply with the requirements of section 74.351 requires = dismissal of=20 the Holdens=3D = claims=20 against him with prejudice, and the award of reasonable=20 attorney=3Ds fees and=20 court costs.

Conversely,=20 the Holdens contend that any objection to Lamberg=3Ds expert=20 report was waived because appellant (1) failed to timely file his = original=20 objections and motion to dismiss; and (2) subsequently withdrew = those=20 objections and his first motion to dismiss.  The Holdens = further=20 contend that appellant was Aclearly=20 implicated@ = in=20 Lamberg=3Ds expert=20 report, and cite Bowie Memorial Hospital v. Wright, 79 = S.W.3d 48,=20 53 (Tex. 2002), for the proposition that an expert report under = section=20 74.351 does not have to contain any Amagical=20 words,@ = presumably like the defendant physician=3Ds name.[4] =20 Although we agree that an expert report need not contain magical = words, it=20 must satisfy the requirements set forth in section 74.351. We = disagree=20 that this report satisfies the requirements of section = 74.351.

The=20 Holdens=3D = argumentCthat=20 appellant filed his objection too lateCcan=20 succeed only if Lamberg=3Ds report=20 is a good-faith expert report as to appellant. See Tex. Civ. Prac. & Rem. = Code=20 _ = 74.351(a)=20 (providing that a defendant physician whose conduct is implicated = in an=20 expert report must object to the sufficiency of that report within = twenty-one days of its service, or else all objections to that = report are=20 waived); see also Jain v. Stafford, No. 2-06-450-CV, 2007 = WL=20 1502084, at *3 (Tex. App.BBFort Worth=20 May 24, 2007, pet. denied) (mem. op).  If the expert report = does not=20 address appellant, the section 74.351 time requirements do not = apply, and=20 appellant can object any time after the 120-day time=20 period.

An=20 examination of Lamberg=3Ds report=20 reveals that the report is not an expert report as to appellant. = See=20 Jain, 2007 WL 1502084, at *3.   First, = Lamberg=3Ds expert=20 report expressly states, AI have=20 read the documents forwarded to me in regard to the complaint of = your=20 client, Donald Holden, in regard to Dr. Mathew McMenemy and = Methodist=20 Sugar Land Hospital@ = (emphasis=20 added).  His report continues, AIt was=20 imperative from the outset to do first aid for central artery=20 occlusion.  Some or all of the following could have been done = by=20 the emergency room staff and/or Dr.=20 McMenemy . . .@ = (emphasis=20 added).  Finally, Lamberg concludes his report with the = following,=20 AIt is my=20 opinion that the emergency room and Dr. McMenemy failed to = provide=20 the standard of care for the catastrophic central retinal artery = occlusion=20 that presented within 2 = hour of=20 the event@ = (emphasis=20 added).  Lamberg=3Ds report=20 offers no opinions concerning appellant=3Ds=20 conduct.  Instead, Lamberg focuses his attention solely on = McMenemy,=20 the Hospital, and the Hospital staff without explaining what = people he=20 means to include within the term AHospital=20 staff.@[5]

As a=20 result, Lamberg=3Ds report=20 cannot be considered merely deficient as to appellant; it is, in = fact, no=20 report at all as to him. See id.; Garcia v. = Marichalar, 198=20 S.W.3d 250, 255 (Tex. App.BBSan=20 Antonio 2006, no pet.).  Lamberg=3Ds report=20 does not refer to appellant by name or position,[6]=20 or explain how any of Lamberg=3Ds=20 statements apply to him. See Norris v. Tenet Houston Health = Sys.,=20 No. 14-04-01029-CV, 2006 WL 1459958, at *4 (Tex. App.BBHouston=20 [14th Dist.] May 30, 2006, no pet.) (mem. op.).  The report = fails to=20 discuss how the care rendered by appellant failed to meet = the=20 applicable standard of care, or how = appellant=3Ds=20 failure=20 caused Holden to suffer injury, harm, or damages. See = Garcia, 198=20 S.W.3d at 255.  With these deficiencies, Lamberg=3Ds report=20 cannot be construed to inform appellant (1) of the applicable = standard of=20 care; (2) how he performed negligently; or (3) how his specific = negligence=20 caused Mr. Holden=3Ds damages.=20 See id.  Thus, even if we were to conclude that=20 Lamberg=3Ds report=20 was merely deficient as to appellant, we would still be = constrained to=20 hold that the trial court abused its discretion in denying=20 appellant=3Ds motion=20 to dismiss, as Lamberg=3Ds expert=20 report would not constitute a good-faith effort to comply with the = statutory definition of an expert report as contained in section=20 74.351(r)(6).[7]=20 See id.

Therefore,=20 we hold that Lamberg=3Ds expert=20 report does not implicate appellant=3Ds conduct,=20 and thus is not a report as to appellant.  Because the = Holdens failed=20 to otherwise serve an expert report addressing = appellant=3Ds alleged=20 negligence before the expiration of the 120-day deadline, the = trial court=20 abused its discretion in denying appellant=3Ds motion=20 to dismiss.  Furthermore, because the Holdens failed to = timely serve=20 an expert report as to appellant, we hold that, pursuant to = section=20 74.351(b)(1), appellant is entitled to the award of reasonable=20 attorney=3Ds fees and=20 court costs.  We sustain appellant=3Ds first=20 issue.

2.      =20 The Trial Court Abused Its Discretion in Granting the Holdens a = 90-Day=20 Extension to Amend or Supplement Lamberg=3Ds Expert=20 Report.

In his=20 second issue, appellant contends that the trial court abused its=20 discretion when it granted the Holdens a 90-day extension to amend = Lamberg=3Ds expert=20 report or supplement his report with one authored by an emergency = medicine=20 physician.  The Holdens counter that the trial court did not = abuse=20 its discretion in this regard, as the trial court=3Ds grant of=20 the 90-day extension reflected an attempt to balance the competing = interests of the parties.  The Holdens further contend that = the=20 parties agreed on the record to an extension of time, and this = constituted=20 a Awritten=20 agreement of the affected parties@ = sufficient to extend the date for serving the expert report under = section=20 74.351(a).  Because of this alleged agreement, the Holdens = claim that=20 appellant waived his objections on this issue.  Again, we=20 disagree.

The=20 hearing was convened for the trial court to rule on = appellant=3Ds motion=20 to dismiss the Holdens=3D = claims=20 against him for failure to file an expert report.  That was = the first=20 order of business before the court.  Appellant argued that = the=20 Lamberg report was not a report as to him.  The Holdens = responded=20 that it was, and also argued that the trial court could not = consider the=20 motion to dismiss because it was filed too late.  After = hearing=20 arguments, the trial court denied the motion to dismiss.  = Only at=20 that pointCafter=20 denying the motion to dismissCdid the=20 trial court broach the subject of giving both parties extra time = to file=20 objections and reports.  Our review of the hearing leads us = to=20 conclude that appellant did not abandon the motion to = dismissCwhich had=20 been ruled on alreadyCand that=20 appellant feebly acquiesced to the trial court=3Ds plan=20 only because appellant=3Ds counsel=20 believed she had no other choice.

If we=20 review the hearing with these things in mind, then we conclude, as = we=20 already have held, that the trial court had before it an expert = report=20 that did not address appellant=3Ds=20 negligence or his responsibility in causing Mr. Holden=3Ds=20 injuries, and that did not set forth the standard of care as to=20 appellant.  It was, in short, no report as to appellant. = See=20 Palacios, 46 S.W.3d at 878B79. =20 The trial court also had before it a motion to dismiss the = report. =20 At this point, the trial judge had no discretion other than to = grant the=20 motion to dismiss. See Estate of Regis ex rel. = McWashington, 208=20 S.W.3d at 67B68;=20 Valley Baptist Med. Ctr., 198 S.W.3d at 815; = Herrera, 212=20 S.W.3d at 455; Thoyakulathu, 192 S.W.3d at 852; = Mokkala, 178=20 S.W.3d at 76.  But, the trial court did not do this.  = Instead,=20 it did what it had no discretion to doCdenied the=20 motionCand=20 considered other alternatives, including giving the Holdens an = additional=20 90 days to amend or supplement Lamberg=3Ds=20 report.  This was an abuse of discretion.  We therefore = sustain=20 appellant=3Ds second=20 issue.

Conclusion

For the=20 foregoing reasons, we conclude that the trial court abused its = discretion=20 in denying appellant=3Ds motion=20 to dismiss.  We therefore reverse the judgment of the trial = court and=20 render judgment dismissing the Holdens=3D = claims=20 against appellant with prejudice.  Because appellant is = entitled to=20 the award of reasonable attorney=3Ds fees and=20 court costs, and the trial court did not consider the award of = either=20 reasonable attorney=3Ds fees or=20 court costs, we must remand the case for a determination of=20 both.

 

 

/s/     =20 Wanda McKee Fowler

Justice

 

Judgment rendered = and Opinion=20 filed March 11, 2008.

Panel=20 consists of Justices Yates, Fowler, and Guzman.


[1] McMenemy and the Hospital are not = parties to this=20 appeal.

[2]  At the hearing on = appellant=3Ds second motion to dismiss, = appellant=3Ds counsel explained that = appellant=3Ds objections and initial motion to = dismiss were=20 withdrawn because they were made untimely, and because it was her = position=20 that Lamberg=3Ds report did not trigger the 21-day = deadline of=20 section 74.351(a) for appellant to object.  Murphy = stated that=20 the objections were only filed Aout of an abundance of = caution,@ and that they were withdrawn, and the = subsequent=20 motion to dismiss was filed, because there was never any duty for=20 appellant to object to the sufficiency of Lamberg=3Ds expert report.

[3]  Appellant further = contends=20 that Lamberg=3Ds expert report = does not=20 constitute a good-faith effort to comply with section = 74.351(r)(6). =20 As stated above, we agree with appellant that Lamberg=3Ds expert report is = not a=20 report as to appellant.  Therefore, we need not reach the = question of=20 whether that report constitutes a good faith effort to comply with = section=20 74.351(r)(6).

[4]  The Holdens also = assert that=20 Lamberg=3Ds expert report = constitutes a=20 good-faith effort to comply with the statutory requirements laid = out in=20 section 74.351, and that Lamberg was qualified under section = 74.401 to=20 render an expert opinion regarding whether appellant was=20 negligent.  As noted = above,=20 because we find that Lamberg=3Ds expert report does not implicate=20 appellant=3Ds conduct, and thus is not a report as = to=20 appellant, we need not address these arguments.

[5]  The Texas Supreme Court has held = that=20 Athe only information relevant to whether = a report=20 represents a good-faith effort to comply with the statutory = requirements=20 is the report itself.@ Bowie, 79 S.W.3d at 53 (citing=20 Palacios, 46 S.W.3d at = 878). =20 The Holdens would like us to examine Lamberg=3Ds report in light = of=20 attendant circumstances.  But, even if we were to consider = additional=20 facts as the Holdens would have us do, we find that it is even = clearer=20 that Lamberg=3Ds expert report is = not a=20 report as to appellant.  Notably, the Holdens have sued the Hospital both = for its=20 direct negligence and under a theory of respondeat superior.  = With=20 respect to the latter, the Holdens sought to hold the Hospital = liable=20 Afor the negligent acts and/or omissions = committed=20 by its agents, representatives, employees and/or servants, = including but=20 not limited to Dr. Rivenes and the rest of the emergency room=20 staff.@  Consistent with a theory of = vicarious=20 liability, an expert report addressing the negligence of Dr. = Rivenes and=20 the emergency room staff would be required under section = 74.351. =20 And, as appellant correctly notes, Lamberg=3Ds report fails to mention appellant by = name, or=20 even refer to an emergency medicine physician at all.  = Instead,=20 Lamberg=3Ds report merely references AMethodist Sugar Land = Hospital,@ Athe emergency room staff,@ and Athe emergency room.@

[6]  Although Lamberg may have = considered=20 appellant part of the emergency room staff, we cannot tell that = from the=20 report.  We also cannot tell from the report how many = emergency room=20 Astaffers@ there were.

[7]  In Palacios, = 46 S.W.3d=20 at 878B79, the Texas Supreme Court explained = precisely what=20 constitutes a good-faith effort to comply with the statutory = definition of=20 an expert report.  AA report need not marshal all the=20 plaintiff=3Ds proof, but it must include the=20 expert=3Ds opinion on each of the elements = identified in=20 the statute,@ i.e., the applicable standard of care, = the manner=20 in which the care failed to meet that standard, and the causal=20 relationship between that failure and the claimed injury. See = id.=20 at 878.  Moreover, to constitute a good-faith effort, the = expert=20 report must incorporate enough information to fulfill two = purposes: (1)=20 the report must inform the defendant of the specific conduct the = plaintiff=20 has called into question; and (2) the report must provide a basis = for the=20 trial court to conclude the claims have merit. Id. at=20 = 879.

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