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NUMBER
13-06-386-CV

COURT OF
APPEALS

THIRTEENTH DISTRICT OF TEXAS

CORPUS CHRISTI - EDINBURG

JORGE E. MIRANDA,
Appellant,

v.

GUADALUPE
ADRIANA

MARTINEZ,
Appellee.

On appeal from the 389th District Court of Hidalgo County,
Texas.

MEMORANDUM OPINION

Before Justices Yañez, Benavides, and
Vela

Memorandum Opinion by Justice Yañez

Appellant, Jorge E. Miranda, M.D., challenges
the trial court's denial of his motion to dismiss the claim filed by
appellee, Guadalupe Adriana Martinez, for failure to provide an expert
report and curriculum vitae within the 120-day statutory period.
(1) We reverse and remand.

Factual
Summary

In her original petition, filed on
January 24, 2006, Martinez alleged that she incurred severe bodily
injuries after Dr. Miranda negligently left a surgical sponge in her body
when he assisted in delivering her baby by C-section. The sponge was
discovered and removed from Martinez's body approximately four months
later when she returned to the hospital complaining of abdominal pain.
Martinez filed an expert's report on May 18, 2006. The report, prepared by
Dr. William R. Beaty, M.D., is included in the appellate record. Dr.
Miranda asserted that the report as prepared and produced was deficient
for a variety of reasons, including substantive defects as to the form and
content of the report. He contended that because it did not comport with
the requirements of section 74.351 of the civil practice and remedies
code, the cause against him should be dismissed pursuant to subsection
(b)(2).
(2)

Dr. Miranda moved to dismiss
Martinez's claim against him. The court conducted a hearing to address the
adequacy of the report on June 20, 2006. At the hearing, Dr. Miranda
argued, as he does now on appeal, that the report was deficient because
"it failed to set forth the applicable standard of care for Dr. Miranda;
failed to state how Dr. Miranda allegedly breached the standard of care;
and wholly failed to explain any causal connection between the alleged
deviation from the unstated applicable standard of care and [Martinez's]
alleged injuries." He also argued that the purported expert's curriculum
vitae was not included with the report. Martinez's counsel argued that the
tendered report should be considered a good faith effort to comply with
the requirements of section 74.351.
(3) After a hearing on the issue, the trial court denied Dr.
Miranda's motion.

The
Statute

Chapter 74 of the Texas Civil Practice
and Remedies Code currently governs medical tort liability in Texas.
(4) In order to encourage the screening of medical malpractice
claims by an expert prior to filing, Chapter 74 requires a plaintiff to
provide each defending physician or health care provider with one or more
expert reports relating to liability and causation.
(5) The expert report, along with a curriculum vitae for each
expert, must be furnished to the defendant not later than the 120th day
after the date on which a health care liability claim is filed or the last
day of any extended period as permitted under the statute.
(6) If a plaintiff fails to comply with this provision, then a
trial court shall, on the motion of the defendant, award the defendant
reasonable attorneys' fees and costs of court incurred by the defendant,
and dismiss the claim with respect to the defendant, with prejudice to the
refiling of the claim.
(7) The trial court is authorized to grant a motion to dismiss
only if it appears to the court, after a hearing, that the report does not
represent a good faith effort to comply with the definition of an expert
report in subsection (r)(6).
(8)

Standard of
Review

We review a trial court's decision
regarding the adequacy of an expert report under an abuse of discretion
standard.
(9) "A trial court abuses its discretion if it acts in an
arbitrary or unreasonable manner without reference to any guiding rules or
principles."
(10) A trial court also abuses its discretion if it fails to
analyze or apply the law correctly.
(11)

Discussion

One basis for dismissal asserted by
Dr. Miranda was that the expert report failed to include the expert's
curriculum vitae, which was not provided until after 120 days had passed
from the date Martinez filed her original petition.
(12) Dr. Miranda thus asserts that Martinez failed to comply
with the requirements of section 74.351, and as a result, the trial court
should have dismissed Martinez's claim with prejudice.
(13)

The language of section 74.351 is
unambiguous; it states that a claimant shall provide a defendant with a
curriculum vitae for each expert listed in a report no later than the
120th day after the date the original petition was filed.
(14) At the hearing on Dr. Miranda's motion to dismiss, the
trial court needed to assess whether Martinez had complied with section
74.351 based solely on the evidence she provided within the 120-day
period.
(15) In Carreras v. Marroquin, we stated that the
"purpose of the curriculum vitae requirement is to permit the trial court
to perform its 'gatekeeper' function by assessing the qualifications,
experience, and expertise of the expert."
(16) We went on to say that a claimant could be excused from
separately serving a curriculum vitae if the information commonly
contained within it was incorporated into the body of the report.
(17)

Upon reviewing Dr. Beaty's report, we
find that the only information it provides about its author is contained
within the report's letterhead. The letterhead states "William R. Beaty,
M.D., F.A.C.O.G." and "Gynecology & Gynecologic Surgery." In her
brief, Martinez asserts that the trial court was able to take judicial
notice that the acronym "F.A.C.O.G." stands for "Fellow of the American
College of Obstetricians and Gynecologists," thus sufficiently
establishing that Dr. Beaty is qualified to testify about standards
applicable to gynecological surgery.
(18)

In Broders v. Heise, the
Texas Supreme Court stated that "given the increasingly specialized and
technical nature of medicine, there is no validity, if there ever was, to
the notion that every licensed doctor should be automatically qualified to
testify as an expert on every medical question."
(19) The supreme court held that an offering party is required
to "establish that the expert has 'knowledge, skill, experience, training,
or education' regarding the specific issue before the court which would
qualify the expert to give an opinion on that particular subject."
(20)

In reaching its
holding in Broders, the supreme court noted that its focus--as to
"whether the expert's expertise goes to the very matter on which he or she
is to give an opinion"--was shared by federal courts.
(21) The supreme court then cited to a number of federal cases
as examples of this shared focus, including two cases which generally held
that a doctor should not be considered an expert simply because of his
certification in a medical specialty.
(22)

In a suit against a
physician, the expert report required by section 74.351 is a written
report by an expert qualified to testify under the requirements of section
74.401, which mandates the witness: (1) be practicing medicine at the time
of his testimony or at the time the claim arose; (2) have knowledge of the
accepted standards of care for the diagnosis, care, or treatment of the
condition involved in the claim; and (3) be qualified on the basis of
training or experience to offer an expert opinion on those accepted
standards of care.
(23) Section 74.401(c) provides a court with factors it is to
consider in determining whether a witness's training or experience
qualifies the witness as an expert under Chapter 74.
(24) The factors are whether, at the time the claim arose or
when testimony is given, the witness (1) is board certified or has other
substantial training or experience in an area of medical practice relevant
to the claim, and (2) is actively practicing medicine rendering medical
care services relevant to the claim.
(25)

In light of
Broders and the express requirements in section 74.401, it cannot
be said that Martinez provided the trial court with nearly sufficient
information by which to assess that the written report was authored by an
expert. Martinez, by simply informing the trial court that the author was
a doctor with a specialty in either gynecology or obstetrics (or both),
did not address any of the factors that ultimately determine whether one
is a qualified expert--i.e., knowledge, skill, experience, training, and
education.
(26)

From reading Dr.
Beaty's report, one cannot tell whether she (1) is actively practicing
medicine; (2) was performing medicine at the time of her testimony or at
the time the claim arose; (3) has knowledge of the accepted standards for
the diagnosis, care, or treatment of the condition involved in the claim;
or (4) is qualified on the basis of training or experience to offer an
expert opinion on accepted standards of care. This information, as
previously discussed, is necessary for determining whether one is
qualified to testify as an expert under the requirements of section
74.401. Without this information, the trial court could not assess Dr.
Beaty's qualifications, experience, and expertise; therefore, the court
was unable to competently perform its "gatekeeper" function. Accordingly,
we find the trial court abused its discretion in not finding the report
deficient.
(27)

May the Trial Court
Consider Granting an Extension?

Dr. Miranda asserts
that we should reverse the order of the trial court and render an order
that dismisses Martinez's claim with prejudice. This assertion is
predicated upon section 74.351(b)(2), which generally states that if an
expert report has not been served by the 120th day after the date the
original petition was filed, a court shall dismiss the claim with
prejudice.
(28) Subsection (b), however, is subject to subsection (c),
which states that when an expert report has not been served within the
120-day period "because elements of the report are found
deficient, the court may grant one 30-day extension to the claimant
in order to cure the deficiency."
(29) This provision appears to serve as an after-the-fact
extension, a second chance at getting the report right. (30)
That is, the claimant must still serve the expert report by the 120-day
deadline, but if the trial court determines the timely-filed report is
deficient, it may grant an extension in which the claimant may cure any
deficiencies in the report.
(31)

In the instant case,
an expert report was filed within the 120-day deadline. As a result, even
if the trial court had determined that the expert report was deficient for
all the reasons asserted by Dr. Miranda, the court nonetheless had the
authority to grant Martinez a 30-day extension in order to cure those
deficiencies.
(32) We note that although Martinez did not request a 30-day
extension either in her response to Dr. Miranda's motion to dismiss or at
the hearing, the trial court had the discretion to grant a 30-day
extension without the necessity of a formal request, and no appeal could
have been taken from that order.
(33) The trial court still has that discretion.
(34)

Conclusion

We reverse the trial
court's order denying Dr. Miranda's motion to dismiss and remand for
further proceedings consistent with this opinion.
(35)

LINDA REYNA YAÑEZ,

Justice

Memorandum opinion
delivered and filed

this the 8th day of
March, 2007.

1. See Tex. Civ. Prac. & Rem. Code Ann. §
74.351 (Vernon 2006). Unlike the instant case, medical malpractice cases
filed prior to September 1, 2003 are governed by former article 4590i.
See Act of May 30, 1977, 65th Leg., R.S., ch. 817, 1977 Tex. Gen.
Laws 2039 (formerly codified at Tex. Rev. Civ. Stat. Ann. art. 4590i, §§
1.01-16.02), repealed by Act of June 2, 2003, 78th Leg., R.S., ch. 204, §
10.09, 2003 Tex. Gen. Laws 864, 884. Upon the repeal of article 4590i, the
relevant sections governing expert reports were recodified with amendments
in chapter 74 of the civil practice and remedies code. See Tex.
Civ. Prac. & Rem. Code Ann. § 74.351 (Vernon 2006).

2. Id. § 74.351(b)(2).

3. Id.

4. Id. §§ 74.001-.507.

5. Id. § 74.351(i).

6. Id. § 74.351(a), (c).

7. Id. § 74.351(b).

8. Id. § 74.351(l).

9. Am. Transitional Care Ctrs. of Tex., Inc. v.
Palacios, 46 S.W.3d 873, 877 (Tex. 2001).

10. Bowie Mem'l Hosp. v. Wright, 79 S.W.3d
48, 52 (Tex. 2002).

11. Walker v. Packer, 827 S.W.2d 833, 840
(Tex. 1992).

12. For clarity, we list herein, in chronological
order, the dates and events that are relevant to this discussion: (1)
Martinez filed her original petition on January 24, 2006; (2) Martinez
served the expert report on May 18, 2006; (3) the last day, under section
74.351(a), that Martinez could serve her expert report and curriculum
vitae was on May 24, 2006; (4) Dr. Miranda objected to the expert report
on May 26, 2006; (5) Martinez served the curriculum vitae on June 1, 2006;
and (6) the court held a hearing on Dr. Miranda's motion to dismiss and
denied the motion on June 20, 2006.

13. See Tex. Civ. Prac. & Rem. Code Ann.
§ 74.351(a), (b) (Vernon Supp. 2006).

14. Tex. Civ. Prac. & Rem. Code Ann. § 74.351(a)
(Vernon 2006).

15. The trial court was thus precluded from
considering Martinez's late-filed curriculum vitae while making this
determination, even though it was before the trial court at the time of
the hearing.

16. Carreras v. Marroquin, No. 13-05-082-CV,
2005 Tex. App. LEXIS 8269 at *5 (Tex. App.-Corpus Christi Oct. 6, 2005,
pet. filed) (not designated for publication).

17. Id. at *5-6.

18. We note that at the hearing on Miranda's motion
to dismiss, Martinez did not request for the trial court to take judicial
notice of what the acronym "F.A.C.O.G." represented. Neither the acronym,
or any other part of the letterhead, was discussed at the hearing or in
"Plaintiff's Response to Defendant's Motion to Dismiss."

19. Broders v. Heise, 924 S.W.2d 148, 152
(Tex. 1996).

20. Id. at 153 (citing Ponder v.
Texarkana Mem'l Hosp., 840 S.W.2d 476, 477-78 (Tex. App.-Houston
[14th Dist.] 1991, writ denied)).

21. Id.

22. Id. The supreme court cited Nunley
v. Kloehn, 888 F. Supp. 1483, 1488 (E.D. Wis. 1995) ("The focus,
then, is on the 'fit' between the subject matter at issue and the expert's
familiarity therewith, and not on a comparison of the expert's title or
specialty with that of the defendant or a competing expert."), and
O'Conner v. Commonwealth Edison Co., 807 F. Supp. 1376, 1390
(C.D. Ill. 1992) ("No medical doctor is automatically an expert in every
medical issue merely because he or she has graduated from medical school
or has achieved certification in a medical specialty.").

23. Tex. Civ. Prac. & Rem. Code Ann. § 74.401(a)
(Vernon 2006).

24. Id. § 74.401(c).

25. Id.

26. See Broders, 924 S.W.2d at 153.

27. Based on the reasoning still to follow, we
decline to address Dr. Miranda's remaining arguments on appeal. Our
decision to abstain from addressing these arguments should not be
interpreted as a reflection of our disagreement with them. We emphasize
that we have not subjected the contents of Martinez's expert report to the
scrutiny exhibited in Palacios. 46 S.W.3d 873, 878-79.

28. Tex. Civ. Prac. & Rem. Code Ann. § 74.351(b)
(Vernon 2006).

29. Id. § 74.351(c) (emphasis added).

30. Thoyakulathu v. Brennan, 192 S.W.3d 849,
852 (Tex. App.-Texarkana 2006, no pet.).

31. Id.

32. Nothing in the record indicates that the trial
court has previously granted Martinez a 30-day extension.

33. See Foster v. Zavala, No.
11-05-00315-CV, 2006 Tex. App. LEXIS 10887 at *28 (Tex. App.-Eastland Dec.
21, 2006) (no pet. hist.) (not designated for publication).

34. We take time to comment on Dr. Miranda's use of
the Texas Supreme Court's decision in Palacios, through which he
asserts the trial court erred in declining to dismiss Martinez's claim
with prejudice. Palacios, 46 S.W.3d 873. There is a pivotal
distinction between the instant case and Palacios that Dr.
Miranda does not acknowledge. In Palacios, the defendant moved to
dismiss the case against it, the plaintiffs then moved for an extension of
time to file, the extension was granted, and the defendants again moved
for dismissal, which the trial court granted. Id. at 876. When
the case finally reached the supreme court, the trial court was no longer
at liberty to grant a 30-day extension.

35. In his brief, Dr. Miranda seeks an award of
costs. Because we are remanding the case to the trial court so that the
court may exercise its discretion in determining whether or not to afford
Martinez a 30-day extension, a determination of entitlement to costs would
be premature.