Opinion
No. 05-08-01666-CV
Opinion issued October 20, 2009.
On Appeal from the 68thDistrict Court Dallas County, Texas, Trial Court Cause No. 08-00473-C.
Before Justices WRIGHT, BRIDGES, and RICHTER.
MEMORANDUM OPINION
Dhiren Patel, D.O., Dhiren Patel, D.O., P.A., and Solace Counseling Associates, PLLC appeal the trial court's order denying their motion to dismiss the underlying cause premised on James David Michell's alleged failure to file a sufficient expert report as required by section 74.351 of the civil practice and remedies code. The trial court found that Michell's expert reports were deficient but granted Michell a 30-day extension in which to cure the deficiencies. In two issues, appellants argue (1) some efforts to comply with the expert report requirements of section 74.351 are so deficient that they constitute no report, requiring dismissal by the trial court and (2) the reports in this case constitute no reports, and the trial court was required to dismiss the underlying cause. We affirm the trial court's order and remand for further proceedings.
In March 2003, Michell was prescribed an anti-psychotic medication, Geodon, by another defendant, Dr. Hopper. "At some point," Michell began exhibiting signs of tardive dystonia, a side effect of Geodon. Michell filed suit, alleging appellants, along with the other defendants, failed to recognize and diagnose the side effect and kept him on Geodon. Among other things, Michell filed the expert report of Dr. William Fann, which described his qualifications, his familiarity with Geodon, and Geodon's potential for creating adverse side effects. Fann stated that, within reasonable medical probability, Michell had tardive dystonia as a result of his treatment with Geodon between March 26, 2003, and December 1, 2006. Fann opined that the treatment he received during this time from appellants and others "fell below standards," and the failure of these care-givers to properly and timely evaluate Michell's medication side-effect led to the side effect becoming chronic and irreversible. Fann noted Michell's treatment with Geodon began with Dr. Hopper's addition of Geodon in March 2003 and ended with the discontinuation of the medication by Patel in December 2006.
Appellants objected to Fann's report and the report of another doctor on the basis that they did not satisfy the elements of an expert report under section 74.351 and therefore were "no reports." Accordingly, appellants asked the trial court to dismiss Michell's claims against them for failing to file an expert report. The trial court found the reports deficient but permitted a 30-day extension of time in which to amend the reports. This appeal followed.
In their first issue, appellants argue some documents provided in an effort to comply with section 74.351 are so deficient that they constitute no report. This court has rejected the concept of a "third category" of reports. Kelly Ryan Cook, P.A. v. Spears, 275 S.W.3d 577, 580-81 (Tex. App.-Dallas 2008, no pet.) (declining to create "third category" of expert reports so deficient they are equivalent of having served no report at all). Accordingly, we overrule appellants' first issue.
In their second issue, appellants argue the expert report in this case that referred to appellants is "no report" because it only refers to Patel's discontinuation of Geodon in December 2006 and does not satisfy the requirements of section 74.351 as to issues of liability and causation. We review a trial court's decision on a motion to dismiss a health care liability claim under the expert report provisions of chapter 74 for an abuse of discretion. Spears, 275 S.W.3d at 579. When a party files a health care liability claim, he must file an expert report within 120 days of filing the petition. Tex. Civ. Prac. Rem. Code Ann. § 74.351(a) (Vernon Supp. 2008); Spears, 275 S.W.3d at 580. The expert report must provide a fair summary of the expert's opinion regarding the applicable standard of care, breach of that standard, and causation. Tex. Civ. Prac. Rem. Code Ann. § 74.351(r)(6) (Vernon Supp. 2008); Spears, 275 S.W.3d at 580. A trial court must grant a motion challenging the adequacy of an expert report if it appears to the court, after a hearing, that the report does not represent an objective good faith effort to comply with the definition of an expert report in section 74.351(r)(6). Tex. Civ. Prac. Rem. Code Ann. § 74.351( l) (Vernon Supp. 2008); Spears, 275 S.W.3d at 580. However, a trial court has discretion under section 74.351(c) to grant one thirty-day extension to cure deficiencies in a timely served expert report. Tex. Civ. Prac. Rem. Code Ann. § 74.351(c) (Vernon Supp. 2008); Spears, 275 S.W.3d at 580.
Here, Michell filed Fann's report which referred to Patel and Patel's treatment of Michell with Geodon. Fann stated the treatment Michell received from appellants "fell below standards" and that Michell developed chronic tardive dystonia as a result of his treatment with Geodon between March 2003 and December 2006, when Patel ultimately discontinued the medication. The trial court concluded this report was deficient. However, we cannot conclude the trial court abused its discretion in granting a thirty-day extension to cure the deficiencies in the expert reports in this case. See Spears, 275 S.W.3d at 579-80. We overrule appellants' second issue.
We affirm the trial court's order granting a thirty-day extension to cure deficiencies in the expert reports and remand for further proceedings.