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Ivette RIOS, Appellant, v. EL PASO COSMETIC AND PLASTIC SURGERY CENTER, P.A. and Paul Phillips, M.D., Appellees.
Appellant Ivette Rios brings this appeal challenging the trial court's two written orders granting motions to dismiss her healthcare liability claims brought against Appellees Paul Phillips, M.D., individually, and against El Paso Cosmetic and Plastic Surgery Center, P.A., based on vicarious liability. In support of her claims, Rios timely served on Appellees an expert report of Jonathan Dora, M.D., pursuant to the Texas Medical Liability Act (TMLA).1 Appellees both moved to dismiss Rios's claim, contending the expert report failed to adequately explain “how and why” anything Dr. Phillips did or failed to do caused harm. See Tex. Civ. Prac. & Rem. Code Ann. § 74.351(l), (r)(6). After careful review of Dr. Dora's report, we hold the trial court abused its discretion in granting Appellees’ motions to dismiss with prejudice. We reverse the trial court's orders and remand Appellant's claims to the trial court for further proceedings.
I. BACKGROUND 2
Appellant Ivette Rios filed suit for medical negligence against defendants, Paul Phillips, M.D., and the El Paso Cosmetic and Plastic Surgery Center, P.A. Her petition alleged that on November 8, 2018, she underwent breast augmentation surgery performed by Dr. Phillips at the El Paso Cosmetic and Plastic Surgery Center. For several months thereafter, Dr. Phillips continued to provide post-surgical care and treatment to Rios. During her recovery period, Rios's left breast incision re-opened, and drainage appeared in the area. Dr. Phillips performed an incision and drainage and reclosed the site, hoping to salvage the left breast implant. Antibiotics were also prescribed on that date. Although the wound initially appeared to be healing well—without drainage noted—a reopening of the incision with continued drainage soon returned. At that point, Dr. Phillips indicated the implant needed to be removed as it was likely infected. He surgically removed the implant the same day. He indicated he would replace the implant after several months.
Seven weeks after removal of the implant, the clinical note states the left breast incision has a small opening, but no infection or erythema. Rios was instructed to keep the area clean with soap and water. Three months after removal of the implant, Rios returned to Dr. Phillips for a follow up appointment. The clinical note of the visit as described by the expert's report states that the left breast incision “is still draining and has small opening.” On March 28, Dr. Phillips performed a procedure to remove the left sinus of the left breast, took cultures, and closed the wound. Between April 12 and April 24, Rios was seen and treated with antibiotics by an infectious disease specialist. Still, on April 24, she followed up with Dr. Phillips a day after noticing drainage at the incision. Dr. Phillips noted that the infectious disease consultant agreed with his antibiotic choice and duration, and the two discussed aggressive incision and drainage of the breast and re-culturing of the breast pocket. Dr. Phillips then performed another incision and drainage with capsulectomy on April 26. The cultures from that procedure revealed a scant growth of “pseudomonas aeruginosa.” Eventually, on November 6, 2019, Dr. Phillips performed further surgery on Rios to include revision of the right breast augmentation and repair of the left pocket and placement of the left breast implant.
By her petition, Rios alleged that Dr. Phillips was negligent in failing to provide necessary medical treatment according to the standards set by the medical profession, and such failures proximately caused her injuries and damages. She further alleged that Dr. Phillips had performed as an agent and employee of the El Paso Cosmetic and Plastic Surgery Center, and as such, it could be held liable for his negligent acts and omissions under a theory of respondeat superior. Rios alleged she incurred the following damages: (1) reasonable medical care and expenses in the past, (2) physical pain and suffering in the past, (3) mental anguish in the past, and (4) physical impairment in the past. To support her claims, Rios timely filed and served the expert report of Jonathan J. Dora, M.D., P.A., with an attached curriculum vitae. See Tex. Civ. Prac. & Rem. Code Ann. § 74.351. Along with the report, her notice of filing alternatively requested, that if the expert report is found deficient in any manner, she be granted a 30-day extension to cure any deficiencies. See id. § 74.351(c).
Moving to dismiss the suit, Dr. Phillips and the El Paso Cosmetic Surgery Center both objected to Dr. Dora's report on the basis that it failed to adequately address the causation element of her negligence claim. In a hearing that followed, the trial court received argument on whether the report satisfied the causation requirement to qualify as an adequate expert report. In written orders, the trial court subsequently granted defendants’ respective motions, dismissing Rios's claims with prejudice.
This appeal followed.
Rios presents a single issue on appeal, contending Dr. Dora's expert report met the requirements of § 74.351 of the Texas Medical Liability Act. See Tex. Civ. Prac. & Rem. Code Ann. § 74.351. She argues the report adequately explained the causal link between breaches of the applicable standard of care and her claimed injury and harm. Alternatively, however, if we find the trial court did not abuse its discretion in dismissing the case, Rios contends this Court should remand to the trial court with instructions for it to determine in the first instance, whether to grant a 30-day extension of time to remedy the report's deficiency.
Appellees respond in opposition. First, they argue Dr. Dora's report was inadequate in that his causation analysis failed to explain, factually, how and why the earlier removal of Rios's breast implant would have made a difference or otherwise changed the outcome of her recovery. Second, as to the alternative request for a remand for a determination of whether to grant a 30-day extension, Appellees maintain Rios waived her right to seek such extension by failing to preserve error by making this request in the trial court.
A. Standard of review
In reviewing a trial court's decision regarding the adequacy of an expert report, we apply the abuse of discretion standard. Abshire v. Christus Health Se. Texas, 563 S.W.3d 219, 223 (Tex. 2018); Am. Transitional Care Ctrs. of Texas, Inc. v. Palacios, 46 S.W.3d 873, 877 (Tex. 2001). Under that standard, appellate courts defer to the trial court's factual determinations if they are supported by evidence but review its legal determinations de novo. See Stockton v. Offenbach, 336 S.W.3d 610, 615 (Tex. 2011). A trial court abuses its discretion if it acts arbitrarily, unreasonably, or without reference to any guiding rules or principles. Bowie Mem'l Hosp. v. Wright, 79 S.W.3d 48, 52 (Tex. 2002) (per curiam).
B. Applicable law
In a suit involving a healthcare liability claim against a defendant healthcare provider, a plaintiff must provide each defendant against whom a liability claim is asserted with one or more expert reports. See Tex. Civ. Prac. & Rem. Code Ann. § 74.351(a). Within the terms of the statute, “[h]ealth care provider” is defined to include a range of persons, entities, and facilities, registered or chartered by the state to provide healthcare, including a registered nurse or a healthcare institution. See id. § 74.001(a)(12)(A)(i) and (vii). Moreover, the term includes an officer, director, shareholder, member, partner, manager, owner, or affiliate of a healthcare provider or physician; and an employee, independent contractor, or agent of a healthcare provider, or a physician acting in the course and scope of employment or contractual relationship of such persons or firms. Id. § 74.001(12)(B)(i) and (ii).
If a plaintiff timely furnishes an expert report, a defendant provider may file a motion challenging the report's adequacy. See id. § 74.351(a). “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).” See id. § 74.351(l). As defined by the statute, “[e]xpert report” means 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 by the physician or health care provider failed to meet the standards, and the causal relationship between that failure and the injury, harm, or damages claimed.” Id. § 74.351(r)(6). The report requirement ensures that healthcare providers are not expending resources defending against facially frivolous claims, but it neither authorizes dismissal of claims regardless of their merits. Scoresby v. Santillan, 346 S.W.3d 546, 554 (Tex. 2011); Mendez-Martinez v. Carmona, 510 S.W.3d 600, 606 (Tex. App.—El Paso 2016, no pet.) (“The purpose of the TMLA expert report requirement is both to place healthcare providers on notice of what specific conduct is at issue in a particular case, and to provide judges who may have no medical training or knowledge of healthcare administration with the information needed to determine whether a healthcare liability claim is wholly frivolous.”). Even so, if an expert report has not been timely served because required elements are found deficient, “the court may grant one 30-day extension to the claimant in order to cure the deficiency.” See Tex. Civ. Prac. & Rem. Code Ann. § 74.351(c).
At trial, Appellees limited their objections to whether the report provided a fair summary of Dr. Dora's opinion on causation only. To meet the statutory requirements pertaining to causation, the Supreme Court of Texas has instructed that an expert must “explain ‘how and why’ the alleged negligence caused the injury in question.” Abshire, 563 S.W.3d at 224; Jelinek v. Casas, 328 S.W.3d 526, 536 (Tex. 2010). To that end, a conclusory statement of causation is inadequate; rather, the expert must explain the basis of his or her statements and link conclusions to specific facts. Abshire, 563 S.W.3d at 224; Columbia Valley Healthcare Sys., L.P. v. Zamarripa, 526 S.W.3d 453, 461 (Tex. 2017) (“[W]ithout factual explanations, the reports are nothing more than the ipse dixit of the experts, which ․ are clearly insufficient.”); Tenet Hosps. Ltd. v. Love, 347 S.W.3d 743, 755 (Tex. App.—El Paso 2011, no pet.) (recognizing that “courts may not fill in gaps in a report by drawing inferences or guessing what the expert meant or intended”). But in satisfying this “how and why” requirement, the Supreme Court further cautioned that “the expert need not prove the entire case or account for every known fact[;]” that is, “the report is sufficient if it makes ‘a good-faith effort to explain, factually, how proximate cause is going to be proven.’ ” Abshire, 563 S.W.3d at 224.
On appeal, Rios argues Dr. Dora's report adequately described how Dr. Phillips’ failure to remove the infected implant on November 20, 2018—which removal he delayed until December 3, 2018—resulted in the harm of a worsening infection of several-months duration that led to a need for further surgery, namely, an incision and drainage with capsulectomy on April 26, 2019. Dr. Dora concludes this injury and harm could have been prevented had the standard of care been followed on November 20, 2018, when Dr. Phillips performed and incision and drainage with reclosure without removing the implant or obtaining an infectious disease consultation. Rios maintains that Dr. Dora's report provided a fair summary of his causation opinion as he linked his conclusions to the factual record. We agree.
Dr. Dora began his report by describing he had reviewed the medical records of Ivette Rios as provided by Dr. Phillips and the El Paso Cosmetic and Plastic Surgery Center. He also noted he had training and experience in diagnosing and treating breast infections under the same or similar circumstances. Moving forward, he proceeded with what he termed a “fair summary of the facts,” presented in a lengthy, bulleted list of statements. These statements spanned Rios's relevant dates of treatment from November 8, 2018, when she underwent breast augmentation surgery, to November 6, 2019, when she underwent a revision and placement of a new left breast implant. With each bulleted note, Dr. Dora describes observations made by Dr. Phillips and the extent of treatment he provided. Occasionally, he includes direct quotations from the medical records.
Following this summary, Dr. Dora's report next provides a second bulleted list of his opinions, all based on reasonable medical probability and his understanding that Dr. Phillips performed as an employee of the El Paso Cosmetic and Plastic Surgery Center throughout his medical care and treatment of Rios. He notes his understanding that Rios had included a claim of vicarious liability against the surgery center for the negligent acts of its employees. Presented in their entirety, Dr. Dora's report included the following statements:
• Ivette Rios developed a breast implant infection which was demonstrated when she presented to Dr. Phillips on November 15, 2018[,] with an open area in the left incision.
• The left breast implant infection worsened when she returned to see Dr. Phillips on November 20, 2018. The worsening was demonstrated by drainage and enlargement of the opening.
• Dr. Phillips breached the standard of care on November 20, 2018[,] when his treatment to perform an incision and drainage (I & D) of the incision with reclosure of the incision.
• The standard of care included an infection disease consult and a removal of the implant.
• Dr. Phillips breached the standard of care by failing to obtain an infectious disease consultation and removal of the implant.
• Based on reasonable medical probability, the implant was already infected which Dr. Phillips knew or should have known. The standard of care required removal of the infected implant to successfully eradicate the infection.
• This breach of the standard of care was a substantial cause of the ongoing and progressive infection.
• The progressive and worsening infection is demonstrated on December 3, 2018, when Mrs. Rios returned for post-op follow up and there was a re-opening of the left breast with continued drainage.
• Dr. Phillips removed the left breast implant on December 3, 2018[.]
• This delay in removing the left breast implant until December 3, 2018[,] was a breach of the standard of care which resulted in delayed eradication of the infection and delayed healing, as demonstrated by the heavy growth of Staphylococcus aureus and moderate growth of Pseudomonas aeruginosa shown on a March 28, 2019 culture.
• The consequence and harm of the delay in removing the breast implant until December 3, 2018[,] is also demonstrated by the continued draining sinus of the left breast on April 12, 2019[,] and April 24, 2019.
• Furthermore, the consequence and harm caused by the above stated breach of the standard of care is demonstrated by a worsening infection requiring an incision and drainage of the left breast with capsulectomy on April 26, 2019.
• Had the standard of care been followed by removing the left breast implant on or about November 20, 2018, the infection would have more likely than not been eradicated months earlier and the incision and drainage of the left breast with capsulectomy on April 26, 2019[,] would have been prevented.
Dr. Dora notes the medical records showed that Rios developed a breast implant infection, which was “demonstrated when she presented to Dr. Phillips on November 15, 2018[,] with an open area in the left incision.” He further claims, “the left breast implant infection” had worsened as of November 20, 2018, when she returned for a visit with Dr. Phillips. He further highlights that “[t]he worsening was demonstrated by drainage and enlargement of the opening.” He acknowledges that Dr. Phillips then performed an incision and drainage (I & D) of the wound and reclosed the area. Notably, he further asserts that Dr. Phillips breached the standard of care by failing to do more to eradicate the infection. His report declares that Dr. Phillips should have: (1) obtained an infectious disease consult; and (2) removed the implant. He further states that Dr. Phillips knew or should have known the standard of care required removal of the infected implant to successfully eradicate the infection. He notes, however, that Dr. Phillips delayed the removal of the implant until December 3, 2018.
Next, Dr. Dora opines, “[t]his breach of the standard of care was a substantial cause of the ongoing and progressive infection.” Further identifying the factual basis of his conclusion, he describes, “[t]he progressive and worsening infection is demonstrated on December 3, 2018, when Mrs. Rios returned for post-op follow up and there was a re-opening of the left breast with continued drainage.” Addressing harm, he contends the identified delay in removing the left breast implant “resulted in delayed eradication of the infection and delayed healing.” Directly linking to the factual record, Dr. Dora describes the delayed healing was “demonstrated by the heavy growth of Staphylococcus aureus and moderate growth of Pseudomonas aeruginosa shown on a March 28, 2019 culture.” He further notes “the consequence and harm of the delay in removing the breast implant until December 3, 2018[,] is also demonstrated by the continued draining sinus of the left breast on April 12, 2019[,] and April 24, 2019.” Finally, he contends this worsening infection required an incision and drainage of the left breast with capsulectomy on April 26, 2019. Summarizing his view, Dr. Dora contends that “[h]ad the standard of care been followed by removing the left breast implant on or about November 20, 2018, the infection would have more likely than not been eradicated months earlier and the incision and drainage of the left breast with capsulectomy on April 26, 2019[,] would have been prevented.”
We conclude Dr. Dora's explanation provides a straight-forward and direct link between Dr. Phillips’ alleged breach of the standard of care and Rios's claim of ongoing, worsening infection, and delayed healing. See Abshire, 563 S.W.3d at 224. The report factually connects Dr. Phillips’ failure to remove the implant on November 20, 2018—the date when the infection was identified—to the harm of a progressively worsening infection with ongoing and continuing drainage and delayed healing—resulting in a need for an incision and drainage with capsulectomy on April 26, 2019, which, Dr. Dora claims, would have otherwise been prevented had the implant been removed earlier. See id.
Despite this causal link, Appellees claim the report lacked sufficient detail in explaining “how and why” Dr. Phillips’ alleged 13-day delay in removing the implant caused resulting harm. For example, Appellees argue the opinion is insufficient because it fails to explain “how and why” the infection discovered in March 2019 relates back to November 2018, especially when the implant had already been removed as of December 2018. Adding to that complaint, Dr. Phillips further argues the report does not provide enough detail in that it fails to explain the rate an infection might progress, the type of antibiotics that may be required, or any necessary method of administering such treatment.
As support, Appellees rely on THN Physicians Ass'n v. Tiscareno, 495 S.W.3d 914, 923 (Tex. App.—El Paso 2016, no pet.) (Tiscareno-1), one of two companion decisions by this Court determining the adequacy of an expert report's explanation of causation.3 There, the patient alleged a claim of medical negligence against Dr. Maria Velazquez based on a one-day delay in diagnosing and treating a pre-existing infection. Id. As partners, Dr. Velazquez practiced medicine with Dr. Frederick Harlass. Id. Both physicians were involved in the care and treatment of Tiscareno but not to the same degree; that is, at least to the extent of how it appeared in the limited record of the appeal. Dr. Harlass performed an emergency C-section surgery on Tiscareno while Dr. Velazquez only provided post-partum care on one occasion. Id. at 917.
The expert report at issue in Tiscareno-1 described that Tiscareno presented to Dr. Velazquez for a post-partum examination days after her hospital discharge. Id. The expert noted that Tiscareno complained of “pain in the surgical area which was described as hard, red, and swollen.” Id. The expert also described that the operative note of the earlier surgery had stated there was an “extremely foul odor upon opening of the uterus,” and the patient's membranes were “very yellow.” Id. Yet, the expert report also indicated that no treatment for postpartum infection was provided to Tiscareno at the time of her discharge. Id.
Upon involvement in the case, the expert described that Dr. Velazquez “attempted to drain the surgical area with a syringe, without success.” Id. The report next contends she then sent the patient home without providing her with “appropriate treatment including antibiotic therapy.” Id. at 917-18. The next day, while visiting her newborn in the hospital, Tiscareno's post-operative wound ruptured, and she was immediately hospitalized for a “post-operative infected wound.” Id. at 918. The expert's report called into question the conduct of Dr. Velazquez, contending she had proximately caused harm by sending Tiscareno home after her examination without providing appropriate antibiotic therapy to treat her infection at the time of her office visit. Id. at 925.
In Tiscareno-1, we cautioned that “the level of detail required in an expert report must be determined on a case-by-case basis, and will necessarily vary depending, in part, on the complexity of the case.” Id. at 924. Given the allegation of negligence was based on a failure to provide a particular type of treatment in a narrow window of time, we found the expert report was deficient as it failed to explain “how a one-day failure to treat a pre-existing infection with antibiotics led to Tiscareno's injuries.” Id. We particularly highlighted the timing of Tiscareno's office visit—occurring at least five days after her infection began—and the fact that her wound ruptured the very next day thereafter. Id. We concluded the timing of treatment and nature of negligence allegation supported a need for the expert report to provide “a more detailed medical explanation.” Id.
But here we conclude that Tiscareno-1 is distinguishable. Unlike in that case, Dr. Phillips himself performed the breast augmentation surgery on Rios, and he followed her postoperative care for several months. To that extent, there is a factual distinction as compared with Tiscareno-1 as there is no indication in Dr. Dora's report of a pre-existing infection prior to Dr. Phillips’ involvement and he maintains a continuity of care throughout. Dr. Dora's report notes that Rios underwent a bilateral breast augmentation with soft touch implants on November 8, 2018. The next day, she returned to see Dr. Phillips for postop follow-up, and he noted: “everything look[ed] good. Steri-Strips were removed. Will follow-up in one week.” On November 15, 2018, Rios returned to see Dr. Phillips. He noted, “[t]here appears to be a small opening in the left incision. We will keep an eye on the area and instruct the patient to keep the area clean and dry. She will follow-up in five days.” On November 20, 2018, the third post-operative visit, Dr. Phillips notes: “The patient has developed some drainage from the left breast and the opening has enlarged. We will take the patient to the OR for an I & D of the incision with reclosure of the incision. Hopefully we will be able to salvage the implant.” Here, Dr. Dora's expert opinion is based on a far lengthier period of treatment, and it includes more details linking his causation opinion to the factual record.
Moreover, in challenging the level of details, Appellees fail to credit the entirety of Dr. Dora's report. See Van Ness v. ETMC First Physicians, 461 S.W.3d 140, 144 (Tex. 2015) (noting the necessity of an appeals court giving full credit to all of an expert's factual statements and opinions). As the Supreme Court of Texas has instructed, our inquiry at this stage of the litigation is “not so exacting.” Cf. Miller v. JSC Lake Highlands Operations, LP, 536 S.W.3d 510, 516 (Tex. 2017) (addressing the articulation of the standard of care); see also Palacios, 46 S.W.3d at 880 (concluding that an expert report must put the defendant or the trial court on notice of the conduct complained of as required by former § 13.01(r)(6)). Here, Dr. Dora opined that the breach of the standard of care on November 20, 2018, was a substantial cause of “the ongoing and progressive infection,” which worsened from that time until it ultimately required the performance of the I & D of the left breast with capsulectomy on April 26, 2019. Describing the ongoing demonstration and worsening of the infection from November 2018 through April 2019, Dr. Dora additionally describes that Dr. Phillips removed the implant on December 3, 2018, that “heavy growth of Staphylococcus aureus and moderate growth of Pseudomonas aeruginosa” was shown on a March 28, 2019-culture, and finally, that continuing drainage was noted on April 12, 2019, and on April 24, 2019. Appellees skip over Dr. Dora's description of the ongoing nature of the infection, claiming his opinion was wholly conclusory and presented an analytical gap in reasoning. We disagree. Although briefly stated, Dr. Dora's opinion substantively noted that Rios suffered from an “ongoing and progressive infection,” that worsened until April 2019, such that it required further invasive treatment that would have been prevented had the standard of care been followed as of November 20, 2018.
Dr. Dora's report adequately explains his opinion as to “how and why” Dr. Phillips’ alleged breach of the standard of care caused Rios's delayed eradication of an ongoing infection that further resulted in delayed healing. To that extent, his report “make[s] a good-faith effort to explain, factually, how proximate cause is going to be proven.” Zamarripa, 526 S.W.3d at 460 (noting that an expert report must explain both foreseeability and cause-in-fact in order to satisfy the Act). Regarding foreseeability, Dr. Dora makes clear that Dr. Phillips knew or should have known the breast implant was infected when she presented on November 15, 2018, with an open area in the left incision, which then worsened five days later, “demonstrated by drainage and enlargement of the opening.” As to cause-in-fact, Dr. Dora concludes that a delayed removal of the implant, along with a failure to obtain an infectious disease consult, caused Rios's infection to worsen and progress, ultimately requiring the performance of an I & D with capsulectomy. In sum, Dr. Dora's opinion provides a more-than-adequate summary of how Dr. Phillips breached the applicable standard of care by failing to timely remove the implant and obtain an infectious disease consult, and how that breach caused delay in both the eradication of the infection and in the healing of the affected area. When read in its full context, the report provides enough information to (1) inform Appellees of the conduct called into question; and (2) provides the trial court with a basis to conclude that Rios's claims have merit. See Tex. Civ. Prac. & Rem. Code Ann. § 74.351(i); Palacios, 46 S.W.3d at 879.
We further conclude that Appellees’ other complaints merely call into question the believability or correctness of Dr. Dora's causation opinion. Appellee El Paso Cosmetic & Plastic Surgery Center argues an expert must explain why his inferences and conclusions are superior based on verifiable medical evidence. For this standard, it cites to Lenger v. Physician's Gen. Hosp., Inc., 455 S.W.2d 703, 707 (Tex. 1970). In Lenger, however, the Supreme Court of Texas considered whether causation testimony at trial had been sufficient to support a jury finding such that the trial court erred in granting a directed verdict. Id. at 706 (“The proof that must be made to establish causal relation is easily stated in general terms, but it is often difficult to determine whether a sufficient showing has been made to warrant submission of the issue to the jury.”). Regarding trial testimony, Lenger found the jury could only speculate as to the causal relationship between the breach of the standard of care and the alleged injury. Id. at 708. But here our inquiry differs, and we are not concerned with sufficiency of trial testimony. To satisfy the requirements of an adequate expert report, the expert simply must explain the basis of his or her statements and link conclusions to specific facts. See Abshire, 563 S.W.3d at 224.
At this juncture, we are instructed by our higher court to remain mindful that an “adequate” expert report “does not have to meet the same requirements as the evidence offered in a summary-judgment proceeding or at trial.” Scoresby v. Santillan, 346 S.W.3d 546, 556 n.60 (Tex. 2011) (quoting Palacios, 46 S.W.3d at 879); E.D. by and through B.O. v. Texas Health Care, P.L.L.C., 644 S.W.3d 660, 664 (Tex. 2022) (“At this preliminary stage of the litigation, whether the expert's explanations are ‘believable’ is not relevant to the analysis of whether the expert's opinion constitutes a good-faith effort to comply with the Act.”); Tenet Hosps., Ltd. v. Boada, 304 S.W.3d 528, 542 (Tex. App.—El Paso 2009, pet. denied) (“Whether an expert's opinions are correct is an issue for summary judgment, not a motion to dismiss under Chapter 74.”). Whether Dr. Phillips is liable for Rios's delayed healing and harm is not the question we address here; rather, that question will be answered farther along in the litigation process. The only question to address is whether Rios's expert report demonstrated a good-faith effort such that it gives notice of the conduct called into question and provides the trial court with a basis to weed out frivolous claims in the early stages of litigation. See Van Ness, 461 S.W.3d. at 144. Because the “how and why” requirement is satisfied by Dr. Dora's report, no more is required at this time. See Abshire, 563 S.W.3d at 224. Thus, Appellees’ believability and credibility arguments are unavailing.
We conclude the trial court abused its discretion by granting the motion to dismiss based on Dr. Dora's explanation of causation. We need not further address Rios's alternative argument. We sustain Rios's first and only issue.
We reverse and remand. Because Dr. Dora's report constitutes an objective, good-faith effort to comply with the requirement of the TMLA to provide a fair summary as to the causal link between the breach of the standard of care and the alleged injury, we hold that the trial court abused its discretion in dismissing Appellant's claims and causes of action against Appellees. Accordingly, we reverse the trial court's orders insofar as each dismissed Appellant's claims against the El Paso Cosmetic and Plastic Surgery Center, P.A., and Paul Phillips, M.D., and we remand those claims to the trial court for further proceedings consistent with this opinion.
1. See Tex. Civ. Prac. & Rem. Code § 74.351(a).
3. The companion decision, which we decided the same day, is THN Physicians Association v. Tiscareno, 495 S.W.3d 599, 599 (Tex. App.—El Paso 2016, no pet.) (Tiscareno-2). There, we concluded the expert report that pertained to the conduct of Tiscareno's surgeon was adequate as it had clearly identified her condition, the signs and symptoms she displayed that should have alerted him that she was suffering from the condition, and the treatment he could have initiated to prevent the ongoing progressive infection that required additional treatment. Id. at 616.
GINA M. PALAFOX, Justice
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Docket No: No. 08-21-00117-CV
Decided: January 24, 2023
Court: Court of Appeals of Texas, El Paso.
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