RENOVE MEDICAL SPA PLLC v. ELIZONDO (2026)

OPINION

The Texas Medical Liability Act (TMLA) weeds out meritless health-care-liability claims by requiring the claimant to serve each defendant with one or more expert reports containing a fair summary of the expert's opinion regarding the applicable standard of care, the manner in which the defendant breached the standard of care, and the causal relationship between that breach and the injury, harm, or damages claimed.¹ A claimant has 120 days from the date of a defendant's answer to serve an expert report implicating that defendant's conduct; otherwise, the trial court must grant a motion by that defendant to dismiss the claims against it and to recover its attorney's fees and costs.² But a defendant timely served with an expert report implicating that defendant's conduct must file and serve any objections to the report's sufficiency within twenty-one days; otherwise, all objections to the report are waived.³

The defendants in this health-care-liability case were timely served with an expert report authored by a nurse, and they allowed the twenty-one-day deadline to pass before moving unsuccessfully for dismissal on the ground, among others, that the expert report addressed matters on which only a physician is qualified to opine. In the sole issue presented in their interlocutory appeal from the denial of their motion, they argue that a report from an unqualified expert is the equivalent of no report at all, and thus, they did not waive their complaint concerning the expert's qualifications by failing to raise such an objection within twenty-one days after the report was served. The trial court disagreed, as do we. We accordingly affirm the trial court's denial of the motion to dismiss.

I. Background

Charlotte Elizondo alleges that while she was a patient of Dr. Afia Naqvi at health-care provider Renove Medical Spa, PLLC, Naqvi injected her face with too much “filler,” and that the resulting inflammation and compression compromised her blood flow, leading to a life-threatening infection. Elizondo sued Renove and Naqvi for negligence and gross negligence, asserting various theories of direct, vicarious, and joint liability.

Under the TMLA, a claimant asserting a health care liability claim is required to serve on each defendant physician or health care provider the curriculum vitae of a qualified expert and the expert's report providing a fair summary of the expert's opinion regarding the applicable standard of care, the manner in which the defendant breached the standard of care, and the causal relationship between that failure and the injury, harm, or damages claimed. Tex. Civ. Prac. & Rem. Code § 74.351(a), (r)(6). Elizondo timely served the report and curriculum vitae of Melissa Beccario, who is a licensed family nurse practitioner with various certifications, as well as a licensed senior laser technician.

More than a year later, Renove and Naqvi moved to dismiss Elizondo's claims, arguing that under the TMLA, only a physician is qualified (a) to opine that another physician departed from accepted standards of medical care, and (b) to opine on the subject of causation in a claim against a health-care provider. See TEX. CIV. PRAC. & REM. CODE § 74.401(a) (physician departure from standard of care); id. § 74.403 (causation). Because Beccario is not a physician, they maintained that her report is the equivalent of no report at all. From this, they reasoned that Elizondo's claims must be dismissed for failure to serve an expert report within 120 days of their answer. In her response, Elizondo argued that because Renove and Naqvi did not object to the report within twenty-one after it was served, they waived all such objections.

The trial court denied their motion to dismiss. In their sole issue on appeal, Renove and Naqvi reurge their argument that Beccario's report cannot be considered a timely served expert report because Beccario is not a physician. We review a trial court's ruling on a motion to dismiss for an abuse of discretion. Gray v. Iversen, No. 14-22-00625-CV, 2023 WL 8724187, at *1 (Tex. App.—Houston [14th Dist.] Dec. 19, 2023, pet. denied).

II. Analysis

This appeal turns on the question whether a timely served report by an expert who lacks the qualifications required by the TMLA is the equivalent of no report, or is simply deficient. If it is no report, then Renove and Naqvi were not required to raise this objection within twenty-one days after service. If it is a deficient report, then the objection has been waived.

The Supreme Court of Texas has expressly considered and rejected the argument that a report from an unqualified expert is no report at all. In Ogletree v. Matthews, 262 S.W.3d 316 (Tex. 2007), the claimant served the defendant hospital with two expert reports by nurses, but the hospital did not object to them within twenty-one days after service. Id. at 317–18.⁴ Just as Renove did, the hospital moved to dismiss the claims against it, arguing “that because the nurses' reports lacked a physician's opinion on causation, they were, as expert reports, not merely deficient, but nonexistent.” Id. at 318.⁵ The hospital, like Renove, reasoned that it was not required to object to a report that is the equivalent of no report. Id. But the high court rejected this argument, explaining that the issue of the nurses' qualifications was an objection “directed to the reports' sufficiency,” and as such, the hospital waived the objection by failing to raise it within twenty-one days after the reports were served. Id. at 322.

The same rationale applies to the claims against the defendant physician Naqvi. All of Naqvi's appellate arguments rest on the premise that Beccario's report cannot be considered an expert report because Beccario is not a physician, but as Ogletree illustrates, complaints about an expert's qualifications concern the report's sufficiency, not whether the report can properly be characterized as an expert report.

In support of their position, Naqvi and Renove cite cases that predate Ogletree—and even one by this Court decided shortly after Ogletree—in which appellate courts have held that a report is not an “expert report” if it is written by a person who lacks the qualifications required by the TMLA or its statutory predecessor. See, e.g., Davis v. Webb, 246 S.W.3d 768, 774 (Tex. App.–Houston [14th Dist.] 2008, no pet.); Chisholm v. Maron, 63 S.W.3d 903, 905 (Tex. App.– Amarillo 2001, no pet.); Cuellar v. Warm Springs Rehab. Found., No. 04-06, 2007 WL 3355611, at *4 (Tex. App.–San Antonio Nov. 14, 2007, no pet.) (mem. op.), abrogated by Scoresby v. Santillan, 346 S.W.3d 546, 555 (Tex. 2011), as recognized in Univ. of Tex. Health Sci. Ctr. at San Antonio v. Magdaleno, 719 S.W.3d 667, 673 (Tex. App.—San Antonio 2025, no pet.). But if any doubts remained after Ogletree about the proper characterization of such a report, they were laid to rest by Scoresby v. Santillan, 346 S.W.3d 546 (Tex. 2011).

In Scoresby, the Supreme Court of Texas clarified that a timely-served document qualifies as an expert report if it contains “a statement of opinion by an individual with expertise indicating that the claim asserted by the plaintiff against the defendant has merit.” Id. at 549. The court's use of the expression “an individual with expertise” rather than “a qualified expert” (or some equivalent expression) was deliberate, for the court stated in the next sentence, “An individual's lack of relevant qualifications and an opinion's inadequacies are deficiencies the plaintiff should be given an opportunity to cure if it is possible to do so.” Id. In contrast, the failure to timely serve an expert report is not curable. Compare Tex. Civ. Prac. & Rem. Code § 74.351(b) (requiring court to grant a motion to dismiss by a defendant who was not timely served with an expert report) with id. § 74.351(c) (authorizing trial court grant claimant a thirty-day extension to cure deficient reports). Thus, a timely report by an expert lacking the relevant qualifications cannot be the equivalent of no report.

Although we wrote in Davis that “nothing in section 74.351(c) indicates that a report authored by an individual who is not statutorily qualified to offer an expert opinion is a deficient report curable by a discretionary 30–day extension, rather than ‘no expert report,” we acknowledge that Scoresby's holding to the contrary abrogates Davis. A report by an unqualified expert is merely deficient, and that deficiency is waived if not raised within twenty-one days after the report is served.

III. Conclusion

Because Naqvi and Renove waived their objections to Beccario's qualifications by failing to timely object, we conclude that the trial court did not abuse its discretion in denying their motion to dismiss. We overrule the sole issue presented and affirm the trial court's ruling.

FOOTNOTES

1.   Tex. Civ. Prac. & Rem. Code § 74.351(a), (r)(6).

2.   Id. § 74.351(a), (b).

3.   Id. § 74.351(a).

4.   Although an expert report by a physician was served in connection with a different defendant in Ogletree, the nurses' reports were the only expert reports that purported to implicate the hospital's conduct.

5.   It is no coincidence that TMLA sections 74.401 and 74.403, which specify the matters on which only a physician is qualified to testify, also contain their own twenty-one-day deadlines to challenge a witness's qualifications. See Tex. Civ. Prac. & Rem. Code § 74.401(e) (“A pretrial objection to the qualifications of a witness under this section must be made not later than the later of the 21st day after the date the objecting party receives a copy of the witness's curriculum vitae or the 21st day after the date of the witness's deposition.”) (emphasis added); id. § 74.403(d) (same).

Tracy Christopher, Chief Justice