Opinion
No. 05-02-01712-CV.
Opinion Filed October 14, 2003.
Appeal from the 162nd Judicial District Court, Dallas County, Texas, Trial Court Cause No. 01-07583.
Affirm.
Before Justices MOSELEY, RICHTER and FRANCIS.
MEMORANDUM OPINION
We are asked to weigh the sufficiency of a purported medical expert's affidavit filed in a medical malpractice case pursuant to section 13.01(g) of the Medical Liability and Insurance Improvement Act. Tex. Rev. Civ. Stat. Ann. art. 4590i (Vernon Supp. 2003). The appellee filed a motion to dismiss the lawsuit on the ground that the expert's report did not comply with that statute. The motion was granted, and the case was dismissed with prejudice.
The facts are known to the parties and we do not recite them in any detail. Further, because all dispositive issues are settled in law, we issue this memorandum opinion. See Tex.R.App.P. 47.1. We overrule appellants' issues and affirm the trial court's order dismissing appellants' claims.
In their first issue, the appellants claim the affidavit meets the requirements of the statute and Am. Transitional Care Centers of Texas v. Palacios, 46 S.W.3d 873 (Tex. 2001). In their second issue, the appellants claim, in substance, a due process violation stemming from allegedly defective notice of a change in the time, location, and court where the motion to dismiss the lawsuit was heard, and ultimately, granted.
As a preliminary matter, the appellee claims the appellants' notice of appeal was defective because it specified an incorrect final judgment. The trial court initially entered a dismissal order on August 5, 2002. Thereafter, the appellants filed a motion to reinstate, which the court denied by written order dated October 4, 2002. We note the October 4, 2002 order addressed the merits of the motion to dismiss and ordered the cost bond forfeited. The August order addressed the merits of the motion to dismiss but did not address the cost bond issue. We conclude that the August 5, 2002 order was not final as it did not dispose of all issues pending before the court. See e.g. Lehmann v. Har-Con Corp., 39 S.W.3d 191, 205 (Tex. 2001). The final appealable order was the October 4, 2003 order and, therefore, appellants' notice of appeal was proper. This Court has jurisdiction to consider the merits of this appeal.
The substance of appellants' first issue is their contention the trial court abused its discretion by determining their expert report was not a "good faith effort" under section 13.01 of the Act. To constitute a "good faith effort" the report must (1) inform the defendant of the specific conduct the plaintiff has called into question, and (2) the report must provide a basis for the trial court to conclude the claims have merit. Am. Transitional Care Ctrs., Inc. v. Palacios, 46 S.W.3d 873, 879 (Tex. 2001). A report that merely states the expert's conclusions about the standard of care, breach, and causation does not fulfill these two requirements. Id. The report must provide specific information about what the defendants should have done differently. Hansen v. Starr, 2003 Tex. App. LEXIS 6316, *11 (Tex.App.-Dallas Jul. 23, 2003, no pet. h.). The report must include the expert's opinion on each of the statutory requirements to constitute a good faith effort. See Bowie Mem. Hosp. v. Wright, 79 S.W.3d 48, 52 (Tex. 2002). The definition of what constitutes a good faith effort is narrow. Hansen, 2003 Tex. App. LEXIS at *11. A good faith effort always produces a report that satisfies the statutory requirements for an expert report. Id. at *12.
We have reviewed the report at issue in this case and conclude it does not represent a good faith effort to comply with the statutory definition of an expert report. See Tex. Rev. Civ. Stat. Ann. art. 4590i § 13.01(l) (Vernon Supp. 2003); Palacios, 46 S.W.3d at 878-79. In the purported expert report at issue in this case, the expert doctor stated that he was familiar with the standard of care, but he did not specifically articulate what that standard is. Further, in his discussion of the breach and causation elements of the analysis, the expert doctor does not specify how surgery was performed unsatisfactorily or what, if anything, the treating doctor should have done differently. Similarly, the expert doctor characterized the surgery performed as incomplete, yet he fails to say why it was incomplete, or what the treating doctor should have done to insure that the operation was complete. Thus, the trial court could have reasonably determined the report was conclusory with regard to the standard of care, breach and causation and that it did not meet the Palacios test. Id. We overrule appellants' first issue.
In their second issue, the appellants claim they did not receive notice of the hearing on the motion to dismiss. Yet, at oral argument, the appellants' attorney acknowledged that he did sign for the mailed notice that clearly set forth the correct date, time, and room where the hearing would be conducted, and the green certified mail receipt bearing his signature appears in the record. Appellants' claim is patently frivolous and could reasonably be construed as sanctionable conduct. We overrule appellants' second issue.
Finally, in two sentences, the appellants' briefly argue the doctrine res ipsa loquitur applies in this case. They argue the fact that the surgery was incomplete is sufficient by itself to establish the standard of care and breach of that standard. However, res ipsa loquitur applies to health care liability claims only in those cases to which it has been applied as of the August 1977 effective date of the act. Tex. Rev. Civ. Stat. Ann. art. 4590i, § 7 (Vernon Supp. 2003). Such applicability has been generally limited to alleged malpractice and injuries that are plainly within the common knowledge of lay people, such as operating on the wrong part of the body or leaving a sponge or surgical instrument in the body. Traut v. Beaty, 75 S.W.3d 661, 665 (Tex.App.-Texarkana 2002, no pet.)(citing Haddock v. Arnspiger, 793 S.W.2d 948, 950 (Tex. 1990)). We conclude the doctrine has no applicability to the facts of this case.
We affirm the judgment of the trial court.