Opinion issued =
June 19,=20
2008
In The
Appellants=20
Aaron Lee Woofter, M.D., Danny Chu, M.D., Jonathan Charles Daniel, =
M.D.,=20
and Fred Milton Sutton, Jr. M.D. bring this statutory =
interlocutory appeal=20
from the probate court's denial of their challenge to the expert =
report.=20
See Tex. Civ. Prac. & Rem. Code Ann. =A7 51.014(a)(9) =
(Vernon=20
Supp. 2007) (authorizing interlocutory appeal if trial court =
denies relief=20
sought under Tex. Civ. Prac. & Rem. Code Ann. =A7 74.351(b) =
(Vernon=20
Supp. 2007)); see also Lewis v. Funderburk, 51 =
Tex. Sup.=20
Ct. J. 747 (Apr. 11, 2008). The doctors asked the probate court to =
dismiss=20
the wrongful death and survival claims of appellees (1) Molly =
Benitez,=20
individually and as the representative of the estate of Andrea =
Jimenez=20
Islam, deceased, and (2) Kazi M. Islam. We reverse. Benitez and=20
Kazi Islam sued the doctors, claiming they negligently caused the =
death of=20
Andrea Islam, who was a cancer patient. While Andrea was being =
treated for=20
cancer with chemotherapy, she had difficulty eating. Woofter and =
Sutton=20
inserted a feeding tube into Andrea's stomach, and her esophagus =
was torn=20
during the insertion of the tube. Chu and Daniel performed surgery =
to=20
repair the tear. A barium swallow revealed a leak, and further =
surgery was=20
performed to repair it. Andrea later died of respiratory failure, =
which=20
Benitez and Kazi claim was caused by pneumonia that developed =
after barium=20
leaked out of Andrea's esophagus into adjacent tissue. Benitez and=20
Kazi timely served the doctors with an expert report and =
curriculum vitae=20
of their expert, Mark S. Sanders, M.D., as required by Civil =
Practice and=20
Remedies Code section 74.351(a). See Tex. Civ. Prac. =
& Rem.=20
Code Ann. =A7 74.351(a) (Vernon Supp. 2007). The doctors objected =
to the=20
sufficiency of the expert report and filed a motion to dismiss =
pursuant to=20
Civil Practice and Remedies Code section 74.351(b), (l).=20
See Tex. Civ. Prac. & Rem. Code Ann. =A7 74.351(b),=20
(l) (Vernon Supp. 2007). After Benitez and Kazi filed a =
response=20
and a request for a 30-day extension to cure any deficiency, the =
probate=20
court denied the doctors' motion to dismiss.
The doctors=20
bring three issues, all challenging the inadequacy of Sanders's =
expert=20
report. Benitez and Kazi do not defend the adequacy of Sanders's =
expert=20
report in this Court, but instead they initially argued that this =
Court=20
had no subject-matter jurisdiction to hear this interlocutory =
appeal.=20
Benitez and Kazi now concede the Texas Supreme Court resolved the=20
jurisdictional issue in Lewis v. Funderburk, and this =
Court has=20
jurisdiction over the appeal. See Lewis, 51 Tex. =
Sup.=20
Ct. J. at 748-49. In issue 1,=20
the doctors contend Sanders's expert report is inadequate because =
the=20
report does not provide a sufficient basis for the trial court to =
find=20
that Sanders was qualified to render an expert opinion on the =
appropriate=20
standards of care. See Tex. Civ. Prac. & Rem. Code =
Ann. =A7=20
71.351(r)(6) (Vernon Supp. 2007) (defining "expert report"), =A7 =
74.401=20
(Vernon 2005) (specifying qualifications of expert witness). =
Woofter and=20
Sutton are gastroenterologists and Daniel and Cho are =
cardiothoracic=20
surgeons. In contrast, the report states that Sanders is board =
certified=20
in orthopaedic surgery and has practiced medicine for 25 years =
with a=20
specialization in orthopaedic surgery. The report does not state =
that=20
Sanders has any substantial training or experience necessary to =
offer an=20
opinion about the procedures performed by the doctors sued in this =
case,=20
who are not orthopaedic surgeons. Civil=20
Practice and Remedies Code section 74.401 provides in part that a =
person=20
may qualify as an expert in a suit involving a health care =
liability claim=20
against a physician if the person is a physician who is qualified =
on the=20
basis of training or experience to offer an expert opinion =
regarding those=20
accepted standards of medical care. See Tex. Civ. Prac. =
&=20
Rem. Code Ann. =A7 74.401(a)(3) (Vernon 2005). Section 74.401 =
additionally=20
provides that, in determining qualification based on training or=20
experience, the court shall consider whether the physician (1) was =
board=20
certified or had other substantial training or experience in an =
area of=20
medical practice relevant to the claim and (2) was actively =
practicing=20
medicine in rendering medical care services relevant to the claim. =
See Tex. Civ. Prac. & Rem. Code Ann. =A7 74.401(c) =
(Vernon=20
2005). Sanders's report is silent on both of the criteria =
mentioned above,=20
and does not otherwise demonstrate Sanders's qualifications, as =
required=20
by section 74.401(a), on the basis of training or experience to =
offer an=20
expert opinion regarding the accepted standards of medical care in =
gastroenterology and cardiothoracic surgery. See =
Forrest v.=20
Danielson, 77 S.W.3d 842, 847-48 (Tex. App.--Tyler 2002, no =
pet.).=20
Further, Benitez and Kazi do not argue on appeal that Sanders was=20
qualified. Because Benitez and Kazi have not met their burden to =
show that=20
Sanders is qualified as an expert, we hold that the trial court =
abused its=20
discretion in denying the challenge to the expert report. =
See=20
Am. Transitional Care Ctrs., Inc. v. Palacios, 46 S.W.3d =
873, 875=20
(Tex. 2001) (adopting abuse-of-discretion test). We sustain=20
issue 1. Because we=20
sustain issue 1, we need not reach issues 2 and 3. We reverse the =
trial=20
court's order denying the doctors' challenge to the expert report. =
The=20
Clerk of this Court is directed to issue the mandate immediately =
to allow=20
further proceedings in the trial court, including consideration of =
Benitez's and Kazi Islam's request for a 30-day extension to cure =
the=20
deficient expert report. See Tex. R. App. P. 18.6 =
(expediting=20
issuance of mandate in accelerated appeals); Tex. Civ. Prac. & =
Rem.=20
Code Ann. =A7 74.351(c) (Vernon Supp. 2007) (allowing trial court =
to grant=20
30-day extension); Leland v. Brandal, No. 06-1028, slip =
op. at=20
5-8 (Tex. June 13, 2008) (discussing 30-day extension); =
Ogletree v.=20
Matthews, 51 Tex. Sup. Ct. J. 165, 168 (Nov. 30, 2007) =
(discussing=20
30-day extension). Sam Nuchia=20
Panel=20
consists of Justices Nuchia, Hanks, and=20
Bland.