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Opinion filed December 21, 2006

In The

Eleventh Court
of Appeals

__________

No. 11-05-00315-CV

__________

BRUCE EVAN FOSTER, EXECUTOR OF THE ESTATE

OF NILES REID FOSTER, D.P.M.,
Appellant

V.

MARGARITA B. ZAVALA, Appellee

On Appeal from the
161st District Court

Ector County,
Texas

Trial Court Cause No. B-118,623

O P I N I O N

This
is an appeal from the trial court=s
denial of a motion to dismiss a medical malpractice claim.  See Tex. Civ. Prac. & Rem. Code Ann.
'
74.351 (Vernon Supp. 2006).  In the motion to dismiss, the
executor for the estate of Dr. Niles Reid Foster, a podiatrist, requested
that the health care liability claim against Dr. Foster be dismissed
because Margarita B. Zavala=s
expert, Alan C. Leshnower, M.D., a cardiovascular surgeon, was not
qualified to offer an expert opinion on the accepted standard of care for
a podiatrist as required by Tex.
Civ. Prac. & Rem. Code Ann. ' 74.402 (Vernon 2005).  The trial court denied the motion,
and the executor for Dr. Foster=s
estate filed this interlocutory appeal pursuant to Tex. Civ. Prac. & Rem. Code Ann. '
51.014(a)(9) (Vernon Supp. 2006).  We reverse and remand.

Background Facts

Zavala
went to see Dr. Foster because she was having problems with her feet.  In December 2002, Dr. Foster
performed surgery on Zavala=s
left foot to remove neuromas.[1]  Because her foot did not heal,
Zavala went to see Alan C. Leshnower, M.D., a cardiovascular surgeon, who
observed that there was gangrene on the toes of her left foot.  Dr. Leshnower determined that
Zavala had chronic vascular disease, diabetes, and inadequate blood flow
to her feet.  Dr. Leshnower
performed vascular surgery, a femoral tibial bypass, on Zavala in February
2003.  According to Dr.  Leshnower, his surgery corrected
Zavala=s
blood flow problem, but she then had four toes amputated by another
doctor.

Prior
to Zavala bringing this suit, Dr. Foster died.  Zavala sued the executor of his
estate alleging that Dr. Foster failed to properly diagnose her condition,
failed to properly treat her condition, and performed unnecessary surgery
in a negligent manner.  Zavala
further alleged that Dr. Foster=s
unnecessary and negligent surgeries caused irreparable harm to her
foot.  Zavala filed the report
of her medical expert Dr. Leshnower as required by Section 74.351.

In
his report, Dr. Leshnower set forth his reasons why Zavala=s
foot problems were the result of diminished blood flow, not the
neuromas.  According to Dr.
Leshnower, Dr. Foster should have confirmed whether there was adequate
blood flow to Zavala=s
foot by conducting non-invasive testing such as segmental artery
studies.  Dr. Leshnower stated
that Zavala Ahad
an improper workup by Dr. Foster and evaluation of her vascular
status@
and that the surgery on her foot was improper because Athe
last thing a diabetic patient with vascular disease needs is unnecessary
surgical intervention.@  Dr. Leshnower concluded that, but
for Dr. Foster=s
negligence in diagnosing and treating Zavala, Zavala=s
toe amputations and subsequent disability, pain, and impairment would have
been avoided.

Appellant
filed a motion to dismiss Zavala=s
suit, arguing that Dr. Leshnower=s
expert report failed to comply with the requirements of Sections 74.351
and 74.402 that Zavala=s
expert must practice health care in a field of practice that involves the
same type of care and treatment as that delivered by Dr. Foster, a
podiatrist.  Appellant
asserted that neither Dr. Leshnower=s
report nor his curriculum vitae demonstrated that Dr. Leshnower was
qualified to opine on the standard of care for Dr. Foster.

Standard of Review

A
trial court=s
ruling on a motion to dismiss a health care liability claim is reviewed
for an abuse of discretion.
Am. Transitional Care Ctrs. of Tex., Inc. v. Palacios, 46
S.W.3d 873, 877-78 (Tex. 2001); Kendrick v. Garcia, 171 S.W.3d 698,
702-03 (Tex. App.CEastland
2005, pet. den=d)
(applying the abuse of discretion standard from Palacios, which
dealt with a former health care liability statute, to the denial of a
motion to dismiss under Section 74.351).  A trial court abuses its
discretion if it acts in an arbitrary or unreasonable manner or without
reference to any guiding rules or principles.  Downer v. Aquamarine Operators,
Inc., 701 S.W.2d 238, 241-42 (Tex. 1985).  In determining whether an expert
report constitutes a good-faith attempt to comply with the statute, a
trial court is limited to a review of the four corners of the report.  Palacios, 46 S.W.3d at
878.

Texas Medical Liability
Act

In
2003, the Texas Legislature enacted the Texas Medical Liability Act making
significant changes in the requirements for medical malpractice
cases.  See Tex. Civ. Prac. & Rem. Code
Ann. ch. 74 (Vernon 2005 & Supp. 2006);  In re Huag, 175 S.W.3d 449
(Tex. App.CHouston
[1st Dist.] 2005, no pet.); Group v. Vicento, 164 S.W.3d 724, 727
(Tex. App.CHouston
[14th Dist.] 2005, pet=n
filed).  The legislation
enacting Chapter 74 listed a number of findings regarding the then current
state of health care in Texas.  Those findings included
determinations that the number of health care liability claims (frequency)
had increased since 1995 inordinately, that the filing of legitimate
health care liability claims in Texas was a contributing factor affecting
medical professional liability rates, that the amounts being paid out by
insurers in judgments and settlements (severity) had likewise increased
inordinately in the same short period, that the situation had created a
medical malpractice insurance crisis in Texas, and that the crisis had had
a material adverse effect on the delivery of medical and health care in
Texas.

Because
of the conditions found by the legislature to have created the medical
malpractice insurance crisis in Texas, the legislature stated that it was
the purpose of Chapter 74 to improve and modify the system by which health
care liability claims are determined in order to reduce excessive
frequency and severity of health care liability claims through reasonable
improvements and modifications in the Texas insurance, tort, and medical
practice systems; to decrease the cost of those claims and ensure that
awards are rationally related to actual damages; and to do so in a manner
that will not unduly restrict a claimant=s
rights any more than necessary to deal with the crisis.  Tex. Civ. Prac. & Rem. Code
Ann. '
74.001 historical note (Vernon 2005) [Act of June 2, 2003, 78th Leg.,
R.S., ch. 204, '
10.11, 2003 Tex. Gen. Laws 847, 884-85].

Our
review of the statutory provisions of Chapter 74 begins with the plain and
common meaning of the words.
McIntyre v. Ramirez, 109 S.W.3d 741, 745 (Tex. 2003).  We must consider the statute as a
whole, rather than analyze a provision in isolation.  Tex. Dep=t
of Transp. v. City of Sunset
Valley, 146 S.W.3d 637, 642
(Tex. 2004); Helena Chem. Co. v.
Wilkins, 47 S.W.3d 486, 493 (Tex. 2001).  Our primary objective is, of
course, to determine and give effect to the legislature=s
intent.  To achieve that
objective, a court may consider the object sought to be attained, the
circumstances under which the legislature enacted the statute, the
legislative history, the common law or former statutory provisions
including laws on the same or similar subjects, and the consequences of a
particular construction.
Tex. Gov=t Code Ann. '
311.023(1), (3), (5) (Vernon 2005).

Section
74.351 provides the statutory requirements for expert reports in health
care liability claims.
Section 74.351(a) requires a plaintiff who files a Ahealth
care liability claim@
to file an expert report within 120 days of filing its claim and serve the
opposing parties with Aone
or more expert reports, with a curriculum vitae of each expert listed in
the report for each physician or health care provider against whom a
liability claim is asserted.@  The date for serving the report
may be extended by written agreement of the affected parties.[2]  Section 74.351(a) also provides
that each defendant physician or health care provider whose conduct is
implicated in a report must file and serve any objection to the
sufficiency of the report not later than the twenty-first day after the
date it was served, otherwise all objections are waived.

An
expert report is defined 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.

Section
74.351(r)(6).

In
a change from the predecessor statute, former Tex. Rev. Civ. Stat. art. 4590i
(1979),  the legislature chose
to separate the qualifications for experts testifying on the standards of
care for physicians versus those for health care providers. See
Sections 74.351(r)(5), 74.401, and 74.402.  Section 74.351(r)(5) defines Aexpert@
to mean:

(A)
with respect to a person giving opinion testimony regarding whether a
physician departed from accepted standards of medical care, an expert
qualified to testify under the requirements of Section 74.401;

(B)
with respect to a person giving opinion testimony regarding whether a
health care provider departed from accepted standards of health care, an
expert qualified to testify under the requirements of Section 74.402.

For expert testimony on the causal
relationship between the failure to meet the standard of care and the
injury claimed, Section 74.351(r)(5) contains separate definitions for
Aexpert.@  Section 74.351(r)(5)(E) defines
Aexpert@
for the causal relationship in the case of a podiatrist:

(E)
with respect to a person giving opinion testimony about the causal
relationship between the injury, harm, or damages claimed and the alleged
departure from the applicable standard of care for a podiatrist, a
podiatrist or physician who is otherwise qualified to render opinions on
such causal relationship under the Texas Rules of Evidence.

See
also Section 74.403(c) (qualifications of an expert where the
health claim is against a podiatrist).

Because
podiatrists are Ahealth
care providers,@
Dr. Leshnower had to demonstrate in his report and curriculum vitae that
he met the qualifications set forth in Section 74.402 in order to give an
expert opinion on the standards of care for podiatrists.

Qualifications of a Witness under Section 74.402

Section
74.402(b) lists three specific qualifications an expert witness must
possess in order to provide opinion testimony on how a health care
provider departed from accepted standards of health care:

(b)
In a suit involving a health care liability claim against a health care
provider, a person may qualify as an expert witness on the issue of
whether the health care provider departed from accepted standards of care
only if the person:

(1)
is practicing health care in a field of practice that involves the same
type of care or treatment as that delivered by the defendant health care
provider, if the defendant health care provider is an individual, at the
time the testimony is given or was practicing that type of health care at
the time the claim arose;

(2)
has knowledge of accepted standards of care for health care providers for
the diagnosis, care, or treatment of the illness, injury, or condition
involved in the claim; and

(3)
is qualified on the basis of training or experience to offer an expert
opinion regarding those accepted standards of health care.

Section
74.402(b)(1) requires that the expert be Apracticing
health care in a field of practice that involves the same type of care or
treatment as that delivered by [Dr. Foster].@  The first question presented is
whether Dr. Leshnower was Apracticing
health care@
as that phrase is used in Section 74.402.

Throughout
Chapter 74, the legislature carefully distinguished between (i) a
physician and a health care provider and (ii) medical care and health
care.[3]  AHealth
care@
means any act or treatment performed or furnished or that should have been
performed or furnished by any health care provider for, to, or on behalf
of a patient during the patient=s
medical care, treatment, or confinement.  Section 74.001(a)(10).  Health care is, thus, limited to
those acts or treatments being performed or furnished by a health care
provider. AMedical
care@
means any act defined as practicing medicine under Tex. Occ. Code Ann. '
151.002 (Vernon Supp. 2006) performed or furnished, or that should have
been performed, by one licensed to practice medicine in this state for,
to, or on behalf of a patient during the patient=s
care, treatment, or confinement. Section 74.001(a)(19).

Section
1.03(a)(3) of former Article 4590i limited the term A[h]ealth
care provider@
to only those licensed or chartered by the State of Texas Ato
provide health care as a registered nurse, hospital, dentist, podiatrist,
pharmacist, or nursing home, or an officer, employee, or agent thereof
acting in the course and scope of his employment.@  Section 74.001(a)(12)(A) of the
newer Medical Liability Act broadened the definition of Ahealth
care provider@:

(12)(A)
AHealth
care provider@
means any person, partnership, professional association, corporation,
facility, or institution duly licensed, certified, registered, or
chartered by the State of Texas to provide health care, including:

(i)
a registered nurse;

(ii)
a dentist;

(iii)
a podiatrist;

(iv)
a pharmacist;

(v)
a chiropractor;

(vi)
an optometrist; or

(vii)
a health care institution.

While
former Article 4590i, section 1.03(a)(3) specifically stated who was a
Ahealth
care provider,@
the current legislative definitions of Ahealth
care@
and Ahealth
care provider@
involve circular reasoning.
AHealth
care@
is an act or treatment provided Aby
any health care provider,@
and a Ahealth
care provider@
is any person who is licensed or chartered by the state to provide Ahealth
care.@
We are unable to tell from the definitions of Ahealth
care@
and Ahealth
care provider@
in Section 74.001 whether a physician Apractices
health care@
for purposes of Section 74.402.

As
in former Article 4590i, section 1.03(a)(3), Section 74.001 distinguishes
a health care provider from a physician. A A[p]hysician@
is an individual licensed to practice medicine in Texas or a
professional association involving an individual physician or group of
physicians. Section 74.001(a)(23).[4]  Dr. Leshnower was a physician who
practiced medicine under the statutory definition in Section 74.001(a)(23)
and (19).

Despite
the separate definitions for health care providers and physicians, there
are other statutory provisions indicating that the legislature considered
physicians to be  practicing
health care.  Section
74.001(a)(13) emphasizes the distinctions between health care providers
and physicians and between health care and medical care but includes them
in its definition of a health care liability claim:

(13)
AHealth
care liability claim@
means a cause of action against a health care provider or physician for
treatment, lack of treatment, or other claimed departure from accepted
standards of medical care, or health care.

Another
section indicating that a physician is also a health care provider is
Section 74.451(c) which refers to a violation of that section Aby
a health care provider other than a physician.@  Zavala relies on Group, 164
S.W.3d 724, for her argument that Dr. Leshnower was practicing health
care.

In
Group, the court found that an anesthesiologist was practicing
health care in a field of practice that involved the same type of care as
a chiropractor and, thus, was qualified to be an expert witness under
Section 74.402.  The
chiropractor argued that the anesthesiologist was not Apracticing
health care@
as defined by Section 74.402(a) because that section requires a qualified
expert in a chiropractic malpractice case to either be a chiropractor,
train chiropractors at an accredited educational institution, or serve as
a consulting health care provider to chiropractors and to be licensed,
certified, or registered as a chiropractor.  See Section 74.402(a):

(a)
For purposes of this section, Apracticing
health care@
includes:

(1)
training health care providers in the same field as the defendant health
care provider at an accredited educational institution; or

(2)
serving as a consulting health care provider and being licensed,
certified, or registered in the same field as the defendant health care
provider (emphasis added).

The
court rejected the chiropractor=s
argument that Aincludes@
restricts the practice of health care.  The court held that the term Aincludes@
is a term of enlargement and not of limitation.  Although we agree that the term
Aincludes@
is a term of enlargement, the question remains whether a physician can be
considered to be Apracticing
health care.@  The Houston court simply assumed that the
anesthesiologist was Apracticing
health care@
without stating the basis for its assumption.

We
will assume, without deciding, that Dr. Leshnower was Apracticing
health care@
as a cardiovascular surgeon.
But he was required to be practicing that health care Ain
a field of practice that involves the same care or treatment@
as a podiatrist. A Afield@
is an area or division of an activity or profession.[5]  Under the common meaning, Dr.
Foster practiced in the field of podiatry in the profession of health care
and Dr. Leshnower practiced in the field of cardiovascular surgery in the
profession of medical care.
The common meaning of podiatry is the medical care and treatment of
the human foot, whereas cardiovascular surgery relates to the heart and
blood vessels.[6]  Dr. Leshnower was not practicing
in the same field B
podiatry B
as Dr. Foster.  However,
Section 74.402(b)(1) states that the expert be practicing health care
Ain
a field of practice that involves the same type of care or treatment@
as provided by the defendant health care provider.

The
Texas House of Representatives=
version of what became Section 74.402(b)(1) required the expert to be
practicing health care Ain
the same field of practice@
as the defendant health care provider.  The senate=s
version required the expert to be practicing health care in Aa
field of practice that involves the same type of care or treatment as that
delivered by the defendant health care provider.@  The senate=s
version became law.
Conference Comm. Report, Tex. H.B. 4, 78th Leg., R.S. 2003.  It appears, therefore, that the
legislature intended that an expert in another field be able to testify as
to the standard of care for a health care provider only if that expert was
practicing health care in a field of practice that Ainvolve[d]
the same type of care or treatment@
as delivered by the defendant health care provider.  However, there are indications in
the legislative history that the senate version may have been adopted for
reasons which would not preclude a holding that an expert on a
podiatrist=s
standard of care be practicing in the same field.  See Hearings on Tex. H.B. 4
Before the Senate State Affairs Committee, 78th Leg., R.S. 17-18 [Tape
4] (April 15, 2003) (testimony that a doctor should be judged by a doctor,
but the term Ain
the same field@
is unclear where a nursing home is concerned).

Zavala
also relies on Group for her argument that Dr. Leshnower was
practicing health care Ain
a field that involves the same type of care or treatment@
as that delivered by Dr. Foster.
The Group court held that Section 74.402 does not require
that the expert be practicing in the same field as the defendant and that,
because of his practice in pain management, an anesthesiologist was
qualified to testify on the standard of care of a chiropractor.  We agree with the Group
court that the statute only requires that the expert be practicing Ain
a field,@
not necessarily the same field.
This conclusion is supported by the legislative history that
reflects that the phrase Ain
the same field@
was rejected in favor of the senate version.

But
we find that Dr. Leshnower=s
report and curriculum vitae do not demonstrate that his field Ainvolved
the same type of care or treatment@
as that delivered by Dr. Foster.
The report and curriculum vitae of the anesthesiologist in
Group provided much more information on how the anesthesiologist
considered himself to be practicing in a field that involved the same type
of care or treatment as that delivered by the chiropractor.  The expert report in Group
contained five lengthy paragraphs describing in great detail how the
fields of anesthesiology and chiropractic involved similar methods and
treatments in pain management.
The anesthesiologist also stated that he had supervised, been
assisted by, and even taught chiropractors.  Here, Dr. Leshnower simply stated
that there was Asignificant
overlap among the many subspecialties that treat diabetic patients@
and then made the conclusory statement that the standard of care for a
cardiovascular surgeon was the same as that for a podiatrist.

We
find that Dr. Leshnower did not show that he was practicing health care in
a field of practice that involved the same type of care or treatment as
that delivered by Dr. Foster.
A podiatrist and a cardiovascular surgeon approach the care and
treatment of a patient from two different disciplines.  This is a podiatry case.  Zavala went to see Dr. Foster
Abecause
of problems with her feet@;
she did not go to him for treatment for diabetes or vascular disease.  Although Dr. Leshnower refers to
Zavala in his report as a Aknown
diabetic patient,@
the record does not contain evidence demonstrating that Dr. Foster was
aware that she had diabetes or vascular disease.  It is not surprising that an
expert whose discipline involves the heart and blood vessels would
evaluate a person=s
vascular health first.

Turning
to the second requirement, Section 74.402(b)(2) required that Dr.
Leshnower demonstrate that he Ahas
knowledge of accepted standards of care for health care providers for the
diagnosis, care, or treatment of the illness, injury, or condition
involved in the claim.@  The diagnosis and treatment in
this case involved the diagnosis and treatment of neuromas on Zavala=s
foot.

Zavala
argues that the following portion of Dr. Leshnower=s
report demonstrates that he had the knowledge required by Section
74.402(b)(2):

There
is a significant overlap among the many subspecialties that treat diabetic
patients in general and diabetic foot problems in particular.  That is to say, the standard of
care would be the same for me as a cardiovascular surgeon as it would for
Dr. Foster, a podiatrist, as it applies to Mrs. Zavala.  I would have been obligated to
provide the same type of care or treatment, consistent with the standard
of care, as would Dr. Foster.
The standard of care for treating this patient requires that you
must confirm the presence of adequate blood flow by non-invasive testing
such as segmental artery studies.

Dr.
Leshnower may be correct, but the report does not demonstrate how he had
knowledge of the accepted standards of care for a podiatrist in treating
Zavala=s
neuromas.  It may be that
another podiatrist who regularly was involved in the diagnosis, care, or
treatment of foot neuromas would agree with Dr. Leshnower.  However, we only have Dr.
Leshnower=s
conclusory statement that the standard of care for a cardiovascular
surgeon in this instance was the same as for a podiatrist.[7]  See Gray v. CHCA Bayshore
L.P., 189 S.W.3d 855, 859 (Tex. App.CHouston
[1st Dist.] 2006, no pet.); Olveda v. Sepulveda, 141 S.W.3d
679, 682-83 (Tex. App.CSan
Antonio 2004, pet. denied).
The standard of care for Dr. Foster is what an ordinarily prudent
podiatrist would have done under the same or similar circumstances.  See Palacios, 46 S.W.3d at
880; Hardy v. Marsh, 170 S.W.3d 865, 869 (Tex. App.CTexarkana
2005, no pet.); Strom v. Mem=l
Hermann Hosp. Sys., 110 S.W.3d 216, 222 (Tex. App.CHouston
[1st Dist.] 2003, pet. denied).
We find that the second requirement of Section 74.402(b)(2) was not
met.

Finally,
the third requirement in Section 74.402(b)(3) requires that Dr. Leshnower
demonstrate that he was Aqualified
on the basis of training or experience to offer an expert opinion
regarding those accepted standards of health care.@  In determining whether Dr.
Leshnower was qualified on the basis of training or experience, the
legislature mandated that we consider two factors.  Section 74.402(c) provides as
follows:

(c)
In determining whether a witness is qualified on the basis of training or
experience, the court shall consider whether, at the time the claim arose
or at the time the testimony is given, the witness:

(1)
is certified by a licensing agency of one or more states of the United
States or a national professional certifying agency, or has other
substantial training or experience, in the area of health care relevant to
the claim; and

(2)
is actively practicing health care in rendering health care services
relevant to the claim.

Dr.
Leshnower=s
curriculum vitae and report did not indicate that he was certified or had
other substantial training or experience in the area of podiatry.  Nor did he demonstrate that he was
actively practicing health care in rendering medical care and treatment of
the human foot.  Having
considered the factors set forth in Section 74.402(c), we find that Dr.
Leshnower did not demonstrate that he was qualified on the basis of
training or experience as required by Section 74.402(b)(3).

Courts
must demand strict compliance with the requirements of Section
74.402.  From the legislative
findings and statement of purpose, it is a reasonable inference that the
legislature did not want a health care provider, such as a podiatrist, to
be judged by the elevated standard of care for a specialist such as a
cardiovascular surgeon.

An expert report by a person who is
not qualified to testify under Section 74.402 regarding the standard of
care does not represent an objective good faith effort to comply with the
definition of an expert report in Section 74.351.  See In re Windisch, 138
S.W.3d 507, 511 (Tex. App.C
Amarillo 2004, orig. proceeding) (construing Article 4590i, section 13.01,
the predecessor to Section 74.351).
The report and accompanying curriculum vitae must demonstrate that
the person is qualified to testify.
See Palacios, 46 S.W.3d at 878; In re Windisch, 138
S.W.3d at 511.  In assessing
the adequacy of the report, the trial court must look only within the four
corners of the report, and inferences are not permitted.  Bowie Mem=l
Hosp. v. Wright, 79 S.W.3d 48, 53 (Tex. 2002); Palacios, 46 S.W.3d
at 879.  Because Dr.
Leshnower=s
report and curriculum vitae do not demonstrate that he was qualified to
testify as to the standard of care for Dr. Foster, a podiatrist, Zavala
failed to serve an expert report as defined and required by Section
74.351.  The trial court
abused its discretion in refusing to dismiss Zavala=s
claim.

May the Trial Court Consider Granting an
Extension?

Zavala
urges that we remand this case for the trial court to consider granting a
Section 74.351(c) extension to cure the deficiency in her expert report
rather than remand with an instruction to dismiss with prejudice.  Failure to serve an adequate
expert report mandates dismissal with prejudice.  Section 74.351(b).  However, if an expert report
cannot be considered served because the report is found to be deficient,
the trial court has discretion to grant one thirty-day extension to the
claimant to cure the deficiency.
Section 74.351(c); Hardy, 170 S.W.3d at 870-71.

In
response to appellant=s
motion to dismiss, Zavala argued that Dr. Leshnower=s
report was adequate and filed a motion for sanctions against appellant for
filing the motion to dismiss.
The motion for sanctions was denied.  Zavala did not request an
extension in the event her report was found inadequate.

Zavala
relies on Longino v. Crosswhite, 183 S.W.3d 913 (Tex. App.CTexarkana
2006, no pet.), as authority for this court to grant her request that the
trial court be allowed to consider an extension.  In Longino, the court held
that the trial court erred in denying the doctor=s
challenge to the Crosswhites=
expert report, remanded the case for further proceedings, and pointed out
that the trial court could grant the Crosswhites an extension of time
under Section 74.351(c).
Longino, 183 S.W.3d at 918 n.2.  Relying on Longino, the
court in McKenna Mem=l
Hosp., Inc. v. Quinney, No. 03-06-00119-CV, 2006 WL 3246524 (Tex.
App.CAustin
November 10, 2006, no pet. h.) (mem. op.), after finding the report to be
insufficient, also remanded for further proceedings and pointed out that
the trial court had discretion to grant Quinney an extension of time to
cure the deficiency.  A third
court in Wells v. Ashmore, 202 S.W.3d 465 (Tex. App.CAmarillo
2006, no pet.), followed the same course.

Appellant
argues that, in creating an interlocutory appeal, the legislature intended
for the court of appeals to decide issues regarding the expert report with
finality and that a remand under the circumstances of this case would
conflict with the legislative purpose of Chapter 74 to reduce the
frequency, severity, and cost of health care liability claims.  We are not persuaded by this
argument.

Chapter
74 shortened the time to file the requisite expert report after the filing
of the malpractice claim to 120 days from 180 days under former Article
4590i, section 12.01; but the new statute also addressed the issue of
defendants waiting to attack expert reports until it was too late for
plaintiffs to timely file amended reports.  Objections to the sufficiency of
the report must be made no later than the twenty-first day after the date
the report was served or all objections are waived.  Section 74.351(a); George C.
Hanks, Jr. and Rachel Polinger-Hyman, Redefining the Battlefield,
67 Tex.
B.J. 936 (2004).  Section
74.351(c) gives the trial court the discretion to grant a thirty-day
extension to the claimant to remedy a deficient report.  As part of the 2003 legislation
creating Chapter 74, the legislature created an interlocutory appeal in
Tex. Civ. Prac. & Rem. Code.
Ann. '
51.014(a)(9) and (10) (Vernon Supp. 2006) from the denial or the grant of
a motion to dismiss under Section 74.351.  These are accelerated appeals with
quicker deadlines and quicker dispositions by the appellate courts.  Tex. R. App. P. 28.1; 6 Roy W.
McDonald & Elaine A. Grafton Carlson, Texas Civil Practice '
1:17 (2d ed. 1998).   By
providing for interlocutory appeals, the legislature provided for a quick
appellate review of the trial court=s
denial or grant of a defendant=s
motion to dismiss.  Had the
trial court reached the same decision we have concerning Dr.
Leshnower=s
report and curriculum vitae, the trial court would have had the discretion
to grant a thirty-day extension, and no appeal could have been taken from
that order.  Section
51.014(a)(9).  The trial court
still has that discretion.

This Court=s
Ruling

We
reverse the trial court=s
order denying appellant=s
motion to dismiss and remand for further proceedings consistent with this
opinion.

TERRY
McCALL

JUSTICE

December
21, 2006

Panel consists
of:  Wright, C.J.,

McCall, J., and
Strange, J.

[1]ANeuroma@ refers to any type of tumor composed of nerve
cells. Taber=s Cyclopedic Medical Dictionary 1443 (19th ed.
2001).

[2]In this case, the parties entered into a Rule 11
agreement extending the 120-day deadline.  Tex. R. Civ. P.
11.

[3]The same can be said of former Article
4590i.

[4]Former Article 4590i, section 1.03 also defined
Ahealth care,@ Ahealth care provider,@ Amedical care,@ and Aphysician.@  The
definitions of these terms in Section 74.001 take on added significance in
light of the new Sections 74.401 and 74.402.  A podiatrist was considered a
health care provider under former Article 4590i, section
1.03.

[5]Merriam-Webster=s Collegiate Dictionary
465 (11th ed.
2004).

[6]Merriam-Webster=s Collegiate Dictionary
956 (11th ed.
2004).

[7]Section 74.351(i) provides that a claimant may
satisfy any requirement of
Section 74.351 for serving an expert report by serving reports of
separate
experts.