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COURT OF
APPEALS

THIRTEENTH DISTRICT OF TEXAS

CORPUS CHRISTI - EDINBURG

NUMBER 13-07-014-CV

VICTOR HADDAD, M.D.,
Appellant,

v.

CESAR MARROQUIN,
Appellee.

NUMBER
13-07-109-CV

MCALLEN HOSPITALS, L.P.,
D/B/A

MCALLEN MEDICAL CENTER,

IMPROPERLY NAMED AS

MCALLEN MEDICAL CENTER, INC.,
Appellant,

v.

CESAR MARROQUIN,
Appellee.

On appeal from the 332nd District Court

of Hidalgo County,
Texas.

MEMORANDUM OPINION

Before Justices Yañez, Rodriguez, and
Garza

Memorandum Opinion by Justice Garza

Victor Haddad, M.D. (Haddad) and McAllen
Hospitals, L.P., d/b/a/ McAllen Medical Center (McAllen Medical),
appellants, filed this interlocutory appeal challenging the trial court's
order denying their motions to dismiss appellee, Cesar Marroquin's, health
care liability claim brought against Dr. Haddad and McAllen Medical.
See Tex. Civ. Prac. & Rem. Code Ann. §§ 51.014(a)(9),
74.351(a)-(b), (l) (Vernon Supp. 2006). Although Dr. Haddad and
McAllen Medical filed separate motions to dismiss and have filed separate
appeals, the issues are sufficiently similar that they can be disposed of
in one opinion. We reverse and remand to the trial court.

I. Factual and
Procedural Background

On April 26, 2004, Marroquin was
admitted to McAllen Medical Center for treatment. Dr. Haddad admitted
Marroquin. Dr. Haddad performed an appendectomy on Marroquin. Following
surgery, Marroquin continued to experience severe abdominal pain and a
general feeling of malaise. On January 3, 2005, experiencing unbearable
pain, Marroquin presented himself to Rio Grande Regional Hospital. He was
admitted for surgery. This surgery revealed that Marroquin's small
intestine and sac formation was filled with a firmly attached surgical
cotton sponge that had caused him acute and chronic inflammation.

On June 29, 2006, Marroquin filed a
health care liability action against McAllen Medical and Dr. Haddad,
alleging medical malpractice in his medical treatment. Specifically,
Marroquin alleged that McAllen Medical and Dr. Haddad were negligent
during the appendectomy. Marroquin alleged that McAllen Medical Center and
Dr. Haddad failed to perform a proper sponge count, which resulted in a
retained sponge at the surgical site.

On October 25, 2006, Marroquin filed
an expert report by Diego Camacho, M.D. On November 8, 2006, Dr. Haddad
filed a motion to dismiss Marroquin's expert report pursuant to section
74.351(a), (b), and (r)(6). Tex. Civ. Prac. & Rem. Code Ann. §
74.351(a)-(b), (r)(6).
(1) Dr. Haddad claimed the report was inadequate because it
failed to set out the standard of care applicable to him, failed to
identify any alleged breach by him, and failed to identify and explain any
causal link between any alleged breaches and Marroquin's complained-of
injuries. See id. § 74.351(r)(6). Dr. Haddad requested that the
trial court award him reasonable attorney's fees and costs, and that it
dismiss Marroquin's cause of action with prejudice.

On November 15, McAllen Medical filed
its motion to dismiss Marroquin's expert report pursuant to section 74.351
on grounds that Dr. Camacho's report did not satisfy the requirements of
section 74.351(r)(6). Id. Specifically, the motion to dismiss
alleged that the report fails to "state the specific ways in which the
care and treatment rendered by [McAllen Medical] failed to meet the
standard of care." Additionally, the motion alleged the report "does not
specifically state how [McAllen Medical's] alleged breach of care caused
[Marroquin's] injuries." McAllen Medical then asked the trial court to
dismiss the cause of action with prejudice. See id. §
74.351 (b), (l). After a hearing, the trial court
denied the motions. This interlocutory appeal ensued. See id. §
51.014(a)(9).

II. Applicable
Law

The Medical Liability and Insurance
Improvement Act ("MLIIA"), codified in Chapter 74 of the Texas Civil
Practice and Remedies Code, governs the adjudication of health care
liability claims in Texas. See id. § 74.013(a) (Vernon Supp.
2006). Section 74.351(a) requires plaintiffs in suits involving health
care liability claims to submit an expert report. Id. §
74.351(a). The statute defines an expert report as "a written report by an
expert that provides a fair summary of the expert's opinions . . .
regarding applicable standards of care, the manner in which the care
rendered . . . failed to meet the standards, and the causal relationship
between that failure and the injury, harm, or damages claimed."
Id. § 74.351(r)(6). An expert report "need not marshal all the
plaintiff's proof," but it must represent "a good-faith effort to comply
with the statutory definition of an expert report" in the MLIIA. Bowie
Mem'l Hosp. v. Wright, 79 S.W.3d 48, 52 (Tex. 2002) (quoting Am.
Transitional Care Ctrs. of Tex., Inc. v. Palacios; 46 S.W.3d 873, 879
(Tex. 2001)); see Tex. Civ. Prac. & Rem. Code Ann. §
74.351(l) ("A court shall grant a motion challenging the adequacy
of an expert report only if it appears to the court, after hearing, that
the report does not represent an objective good faith effort to comply
with the definition of an expert report in Subsection (r)(6)."). A
good-faith effort informs the defendant of the specific conduct called
into question and provides a basis for the trial court to conclude that
the claims have merit. Palacios, 46 S.W.3d at 879 (holding that
trial court is limited to four corners of expert report when determining
whether the report constitutes a good-faith attempt to comply with the
statute).

III. Standard of
Review

We review a district court's ruling on
a motion to dismiss under section 74.351 for an abuse of discretion.
Id. at 877-78. A trial court abuses its discretion when 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). A trial court does not abuse its
discretion simply because it may decide a matter within its discretion
differently than an appellate court. Id. at 242. However, a trial
court has no discretion in determining what the law is or applying the law
to the facts. Walker v. Packer, 827 S.W.2d 833, 840 (Tex. 1992).
"[A] clear failure by the trial court to analyze or apply the law
correctly will constitute an abuse of discretion." Id. In
assessing the trial court's decision, we are especially mindful of the
claimant's responsibility to provide as to each defendant, a fair summary
of the expert's opinions about the applicable standard of care, the manner
in which the care failed to meet that standard, and the causal
relationship between that failure and the claimed injury. See
Tex. Civ. Prac. & Rem. Code Ann. § 74.351(r)(6);
Palacios, 46 S.W.3d at 879.

IV. Analysis

On appeal, Dr. Haddad re-asserts his
contention that Marroquin's expert report failed to set out the standard
of care applicable to him because it failed to identify any alleged breach
by him, and failed to identify and explain any causal link between any
alleged breach and the complained-of injuries. McAllen Medical also
re-asserts its allegation that the report is inadequate because it failed
to state the specific ways in which the care and treatment it rendered
failed to meet the standard of care, and that the report fails to state
how any alleged negligence by McAllen Medical caused Marroquin's
injuries.

The report, prepared by Dr. Camacho,
states his qualifications and an overview of the medical facts.
(2) The relevant portions of the report read as
follows:

SPECIFIC FINDINGS CALLED INTO
QUESTION

1. Patient was not evaluated by a
surgeon at Edinburg Regional Medical Center emergency department. An acute
care hospital. [sic]

2. Patient was not evaluated in the
emergency room by a surgeon at McAllen Medical Center and proceeded to
surgery anyway.

3. There is not evidence in the nurses
notes that Dr. Haddad actually examined the patient and evaluated the
history and CT scan of this patient prior to surgery.

4. Exploratory laparotomy lasted for
one hour when there was nothing else done other than leaving a large
sponge in the abdominal cavity.

5. The count of the large cotton
sponges was incorrectly performed by hospital staff.

APPLICABLE STANDARDS OF
CARE

The standards of care of general surgery dictates the complete
evaluation of a patient by the surgeon with complete explanation of the
procedure including the benefits and possible complications by the
surgeon. Dr. Haddad failed [to] evaluate Mr. Marroquin at the emergency
department of McAllen Medical Center before the patient was transferred
to the operating room.

A large cotton sponge was left in the abdomen of Mr. Marroquin after
an apparently non-complicated surgical procedure. Dr. Haddad failed to
perform an appropriate evaluation and personal assessment and control
the material that he used and placed in the abdominal cavity of the
patient.

McAllen Medical Center OR employee failed to perform an appropriate
count of large cotton sponges in an apparent non-complicated case that
lasted for 1 hour.

Mr. Marroquin received inappropriate follow-up for his chronic
abdominal pain after a surgical procedure. Dr. Haddad did not follow a
patient in whom he had performed surgery who continued to have abdominal
pain.

PROXIMATE CAUSE OF
INJURY

Mr. Marroquin suffered pain and a
second invasive surgical procedure due to carelessness on the part of the
McAllen Medical Center OR employee and Dr. Haddad.

Although an expert report "need not
marshal all the plaintiff's proof, it must include the expert's opinion on
each of the three elements that the statute identifies: standard of care,
breach, and causal relationship." Bowie, 79 S.W.3d at 52;
Palacios, 46 S.W.3d at 878; Garcia v. Marichalar, 198
S.W.3d 250, 254 (Tex. App.-San Antonio 2006, no pet.). "A report cannot
merely state the expert's conclusions about these elements."
Bowie, 79 S.W.3d at 52; Palacios, 46 S.W.3d at 879.
"'Rather, the expert must explain the basis of his statements to link his
conclusions to the facts.'" Bowie, 79 S.W.3d at 52 (quoting
Earle v. Ratliff, 998 S.W.2d 882, 890 (Tex. 1999)). To constitute
a good-faith effort, an expert report, "must provide enough information to
fulfill two purposes: (1) it must inform the defendant of the specific
conduct the plaintiff has called into question; and (2) it must provide a
basis for the trial court to conclude that the claims have merit."
Bowie, 79 S.W.3d at 52 (citing Palacios, 46 S.W.3d at
879).

We conclude that the report is
deficient. It is obvious to this Court, as it apparently was to the trial
court, that Marroquin's primary complaint against Dr. Haddad and McAllen
Medical concerns the sponge that was left inside Marroquin during the
surgery.
(3) However, the report
does not set forth the appropriate standard of care relating to the use
and count of sponges as to Dr. Haddad or McAllen Medical. In his report,
Dr. Camacho faults both Dr. Haddad and McAllen Medical, or McAllen
Medical's employee, but he fails to explain what the respective standards
are as to each and how they were breached. Further, Dr. Camacho's report
does not state how Dr. Haddad's follow-up care of Marroquin was
"inappropriate" nor does it provide a fair summary regarding the causal
relationship between the allegedly inappropriate follow-up care and the
injury, harm, or damages claimed. Moreover, Dr. Camacho's vague statement
that the "carelessness" of Dr. Haddad and/or McAllen Medical is the
proximate cause of Marroquin's injury is likewise insufficient. We,
therefore, hold that the expert report filed by Marroquin did not
constitute a good-faith effort to comply with the statutory
requirements.

Section 74.351(r)(6) requires that an
expert report explain how the care rendered by the physician failed to
meet the applicable standard of care and the causal relationship between
that failure and the injury suffered by the claimant. See Tex.
Civ. Prac. & Rem. Code Ann. §74.351(r)(6); Palacios, 46
S.W.3d at 878. We, therefore, hold that the expert report filed by
Marroquin was inadequate and did not comply with the requirements of
section 74.351(r)(6). See Tex. Civ. Prac. & Rem. Code Ann. §
74.351(r)(6).

V. Res Ipsa Loquitur

In response to Dr. Haddad and McAllen
Medical's motions to dismiss, Marroquin argued that an expert report was
unnecessary for his claim because it is based on the theory of res ipsa
loquitur.
(4) We
disagree.

"Res ipsa loquitur is
not a cause of action separate and apart from negligence; instead, it is
an evidentiary rule by which negligence may be inferred by a jury."
Garcia, 198 S.W.3d at 255 (citing Haddock v. Arnspiger,
793 S.W.2d 948, 950 (Tex. 1990); Vick v. Rangel, No.
04-05-00362-CV, 2005 Tex. App. LEXIS 8196, at *3 (Tex. App.-San Antonio
2005, no pet.); Hector v. Christus Health Gulf Coast, 175 S.W.3d
832, 837 (Tex. App.-Houston [14th Dist.] 2005, pet. denied)). "Res ipsa
loquitur is applicable when the following two circumstances are present:
(1) the character of the accident is such that it would not ordinarily
occur in the absence of negligence, and (2) the instrumentality causing
the injury is shown to have been under the management and control of the
defendant." Id. (citing Haddock, 793 S.W.2d at
950).

Even if the doctrine
of res ipsa loquitur applies to Marroquin's claim, he would still be
required to file an expert report under section 74.351. See id.
While section 74.201 allows for the applicability of res ipsa
loquitur, it is not an exception to section 74.351's expert report
requirement. Id. (citing Hector, 175 S.W.3d at 838).
(5)

Res ipsa loquitur is
an evidentiary rule. Id. at 256. In contrast, section 74.351's
expert report requirement establishes a threshold requirement which a
claimant must meet to continue a lawsuit; "it does not establish a
requirement for recovery." Id. (citing Hector, 175
S.W.3d at 838 (quoting Murphy v. Russell, 167 S.W.3d 835, 838
(Tex. 2005)).

It may be that once
discovery is complete and the case is tried, there is no need for expert
testimony. . . . But the Legislature envisioned that discovery and the
ultimate determination of what issues are submitted to the factfinder
should not go forward unless at least one expert has examined the case and
opined as to the applicable standard of care, that it was breached, and
that there is a causal relationship between the failure to meet the
standard of care and the injury, harm, or damages claimed.

See Hector,
175 S.W.3d at 838 (quoting Murphy, 167 S.W.3d at 838) (alteration
in original)). Thus, because res ipsa is an evidentiary rule, while the
expert report is a threshold requirement to bringing a lawsuit, we
conclude that the Legislature did not intend for section 74.201 to
eliminate the procedural requirement of an expert report at the
commencement of litigation. Garcia, 198 S.W.3d at 256
(citing Hector, 175 S.W.3d at 838).

Even if the doctrine
of res ipsa constituted an exception to the expert report requirement,
Marroquin still needed an expert report to prove causation. Id.
The Texas Supreme Court has noted that res ipsa loquitur is generally
inapplicable in medical malpractice cases, but it explained that res ipsa
loquitur has been applied when "the nature of the alleged malpractice and
injuries are plainly within the common knowledge of laymen, requiring no
expert testimony." Id. (citing Haddock, 793 S.W.2d at
951; Hector, 175 S.W.3d at 837). According to the court, examples
of such common knowledge include "negligence in the use of mechanical
instruments, operating on the wrong portion of the body, or leaving
surgical instruments or sponges within the body." Haddock, 793
S.W.2d at 951. Marroquin's claim falls into the last category described by
the supreme court. Thus, "res ipsa loquitur, an evidentiary rule, would
allow a jury to infer breach of the standard of care." Garcia,
198 S.W.3d at 256.

However, "even if res
ipsa loquitur allows for a jury to infer breach, an expert report would
still be required with regard to causation." Id. (citing
Vick, 2005 Tex. App. LEXIS 8196, at **3-4; Hector, 175
S.W.3d at 839). In his response, Marroquin claimed, "Expert testimony in
[this] case is not essential to the determination of an obvious fact."
While we may agree that leaving a sponge inside a body is within the
knowledge of a common layperson, "what the necessary treatment
and the damages resulting from them are not." Id. (emphasis
original). Therefore, an expert report is still needed to show causation.
Accordingly, we sustain Dr. Haddad and McAllen Medical's issue.

VI.
Conclusion

Although we have
sustained the issues raised on appeal, we are compelled to follow our own
precedent, and we conclude that it would be inappropriate to dismiss
Marroquin's claims with prejudice, as requested by appellants. See
Valley Bapt. Med. Ctr. v. Azua, 198 S.W.3d 810, 815 (Tex.
App.-Corpus Christi 2006, no pet.); Valley Baptist Med. Ctr. v.
Gonzales, No. 13-06-371-CV, 2007 Tex. App. LEXIS 996, at **11-12
(Tex. App.-Corpus Christi 2007, no pet.) (citing Azua, 198 S.W.3d
at 815; Longino v. Crosswhite, 183 S.W.3d 913, 918 n.2 (Tex.
App.-Texarkana 2006, no pet.)). The report is deficient, but it was timely
filed. The MLIIA specifically provides that the trial court has discretion
to grant one 30-day extension to cure deficiencies in a timely-filed
expert report. See Tex. Civ. Prac. & Rem. Code Ann. §
74.351(c) (Vernon 2007). In his response to the motions filed by Dr.
Haddad and McAllen Medical, Marroquin defended the adequacy of the expert
report, but he also requested a 30-day extension to cure any deficiencies
found by the trial court. See id. Having concluded that the
report is deficient, we further conclude that it is appropriate for the
trial court to determine whether Marroquin should be granted a 30-day
extension to cure the deficiencies. See Azua, 198 S.W.3d at 815;
Longino, 183 S.W.3d at 918 n.2.

Accordingly, the case
is reversed and the cause remanded for further proceedings consistent with
this opinion.

__________________________

DORI CONTRERAS
GARZA,

Justice

Memorandum Opinion
delivered and

filed this the 29th
day of August, 2007.

1. Section
74.351(r)(6) states:

"Expert report" means 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 the failure and
the injury, harm, or damages claimed.

Tex. Civ. Prac. & Rem. Code Ann. §
74.351(r)(6) (Vernon Supp. 2006).

2. The parties do not dispute Dr. Camacho's
qualification to render an opinion.

3. During the
hearing on the motions to dismiss, the trial court engaged in the
following colloquy with counsel for Dr. Haddad:

Counsel: [T]he whole purpose of this
expert's report is to -to allow the Court, Your Honor, to determine
whether or not this is a valid claim. In other words, are we trying to get
rid of a frivolous lawsuit.

Trial Court: And you're saying -
you're simply saying if there is a sponge left, it's not
adequate?

. . . .

Trial Court: Is that what you are
seriously telling me?

The motions to dismiss were denied
immediately after this colloquy.

4. Appellee made this argument before the trial court.
However, he did not file an appellate brief in response to Dr. Haddad's
and McAllen Medical's appeal.

5. Section 74.201 provides, "The common law doctrine
of res ipsa loquitur shall only apply to health care liability claims
against health care providers or physicians in those cases to which it has
been applied by the appellate courts of this state as of August 29, 1977."
Tex. Civ. Prac. & Rem. Code Ann. § 74.201 (Vernon 2005).