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NUMBER
13-04-00480-CV

COURT OF
APPEALS

THIRTEENTH DISTRICT OF TEXAS

CORPUS CHRISTI
- EDINBURG

RICARDO BARRERA, M.D.,
Appellant,

v.

ISELA RICO
AND MANUEL RICO,

INDIVIDUALLY
AND AS PARENTS AND

NEXT FRIENDS
OF GLORIA RICO, A MINOR, Appellees.

On appeal from the 206th District Court of Hidalgo County,
Texas.

MEMORANDUM OPINION ON REMAND

Before Justices
Yañez, Garza, and Vela

Memorandum Opinion on Remand by Justice
Garza

On remand from the Texas Supreme Court, we
address the contentions made by appellant, Ricardo Barrera, M.D., that the
trial court erred: (1) in granting a motion to extend the expert report
deadline filed by appellees, Isela Rico and Manuel Rico, individually and
as parents and next friends of Gloria Rico., a minor (collectively "the
Ricos"); and (2) in denying Barrera's motions for sanctions and dismissal
for the Ricos' failure to file an expert report that conformed to the
requirements of former article 4590i of the Texas Revised Civil
Statutes.
(1) We affirm.

I.
Background

On August 29, 2003, the Ricos filed
suit against Barrera for medical malpractice. On January 26, 2004, the
Ricos filed a motion to extend the expert report deadline and to compel
deposition of Barrera. See Act of May 5, 1995, 74th Leg., R.S.,
ch. 140, § 13.01(f), 1995 Tex. Gen. Laws 985, 986 (former Tex Rev. Civ.
Stat. art. 4590i, § 13.01(f)), repealed by Act of June 2, 2003,
78th Leg., R.S., ch. 204, § 10.09, 2003 Tex. Gen. Laws 847, 884. After a
hearing on February 13, 2004, the trial court granted the Ricos' motion
and extended the expert report deadline from the original date of February
18, 2004 to March 19, 2004. See id. On March 22, 2004, the Ricos
filed an expert report from John Spurlock, M.D.

On March 24, 2004, Barrera filed a
motion for sanctions and dismissal, claiming that Spurlock's expert report
was untimely. See Act of May 5, 1995, 74th Leg., R.S., ch. 140, §
1, sec. 13.01(e), 1995 Tex. Gen. Laws 985, 986 (repealed 2003). After a
hearing on April 12, 2004, the trial court denied Barrera's motion for
sanctions and dismissal on July 2, 2004. On May 26, 2004, Barrera filed a
second motion for sanctions and dismissal, contending that Spurlock's
expert report was inadequate. See id.; see also Act of
May 5, 1995, 74th Leg., R.S., ch. 140, § 1, sec. 13.01(r)(6), 1995 Tex.
Gen. Laws 985, 986 (repealed 2003). After a hearing, the trial court
denied Barrera's second motion for sanctions and dismissal on July 22,
2004.

On August 24, 2004, the Ricos filed a
notice of nonsuit without prejudice on their claims against Barrera, which
the trial court granted. Barrera appealed the trial court's denial of his
motions for sanctions and dismissal. This Court held that the Ricos'
nonsuit of their claims against Barrera rendered the interlocutory orders
moot thus depriving the Court of jurisdiction. Barrera v. Rico,
No. 13-04-480-CV, 2005 Tex. App. LEXIS 5683, at *2 (Tex. App.-Corpus
Christi July 21, 2005), rev'd, 251 S.W.3d 519, 520 (Tex. 2008)
(per curiam).

The Texas Supreme Court reversed this
Court's decision and remanded the matter for consideration in light of its
holding in Villafani v. Trejo, 251 S.W.3d 466, 471 (Tex. 2008).
See Barrera, 251 S.W.3d at 520. In Villafani, the
supreme court concluded that Villafani's motion for sanctions and
dismissal survived the Ricos' nonsuit and "could be the subject of an
appeal." Villafani, 251 S.W.3d at 471. In Barrera, the
supreme court noted that the underlying facts were similar to
Villafani and, therefore, concluded that this Court's "judgment
that it lacked jurisdiction in this case is thus erroneous."
Barrera, 251 S.W.3d at 520. Therefore, we must analyze the
propriety of the trial court's denial of Barrera's motion for dismissal
and sanctions.

II. Standard of
Review

We review a trial court's decision to
dismiss a case under section 13.01(e) of former article 4590i under an
abuse of discretion standard. See Am. Transitional Care Ctrs. of Tex.,
Inc. v. Palacios, 46 S.W.3d 873, 878 (Tex. 2001). A trial court
abuses its discretion if it acts arbitrarily or unreasonably without
reference to any guiding rules or principles. See Walker v.
Gutierrez, 111 S.W.3d 56, 62 (Tex. 2003); Strom v. Mem'l Hermann
Hosp. Sys., 110 S.W.3d 216, 220 (Tex. App.-Houston [1st Dist.] 2003,
pet. denied).

III.
Analysis

In his sole issue, Barrera asserts
that the trial court abused its discretion in granting the Ricos' motion
to extend the expert report deadline and in denying his motion for
sanctions and dismissal. Specifically, Barrera contends that the Ricos did
not demonstrate good cause entitling them to a thirty-day extension, and,
even if the extension was properly granted, the Ricos failed to file
Spurlock's expert report prior to the extended deadline. Additionally,
Barrera argues that Spurlock's report was inadequate. The Ricos counter by
arguing that they offered sufficient evidence of good cause that was not
controverted by Barrera; therefore, the trial court did not abuse its
discretion in granting their motion to extend the expert report deadline.
Additionally, the Ricos contend that Spurlock's expert report sufficiently
addressed the required elements for an expert report in a medical
malpractice suit.

A. Applicable
Law

Section 13.01(d) of former article
4590i provides that:

Not later than the later of the 180th
day after the date on which a health care liability claim is filed or the
last day of any extended period established under Subsection (f) or (h) of
this section, the claimant shall, for each physician or health care
provider against whom a claim is asserted:

(1) furnish to counsel for each
physician or health care provider one or more expert reports,[
(2)] with a curriculum vitae of each expert listed in the
report; or

(2) voluntarily nonsuit the action
against the physician or health care provider.

Act of May 5, 1995, 74th Leg., R.S.,
ch. 140, § 1, sec. 13.01(d), 1995 Tex. Gen. Laws 985, 986 (repealed 2003).
However, section 13.01(f) provides that "[t]he court may, for good cause
shown after motion and hearing, extend any time period specified in
Subsection (d) of this section for an additional 30 days. Only one
extension may be granted under this subsection." See Act of May
5, 1995, 74th Leg., R.S., ch. 140, § 1, sec. 13.01(f), 1995 Tex. Gen. Laws
985, 986 (repealed 2003). If the requirements of section 13.01(d) are not
met, or a section 13.01(f) request is denied, or the grace period expires,
the court shall:

enter an order awarding as sanctions
against the claimant or the claimant's attorney:

(1) the reasonable attorney's fees and
costs of court incurred by that defendant;

(2) the forfeiture of any cost bond
respecting the claimant's claim against the defendant to the extent
necessary to pay the award; and

(3) the dismissal of the action of the
claimant against that defendant with prejudice to the claim's
refiling.

Act of May 5, 1995, 74th Leg., R.S.,
ch. 140, § 1, sec. 13.01(e), 1995 Tex. Gen. Laws 985, 986 (repealed 2003);
see Palacios, 46 S.W.3d at 877.

B.
Discussion

1. The Ricos' Request to
Extend the Expert Report Deadline

On February 13, 2004,
the trial court conducted a hearing on the Ricos' request for an extension
of the expert report deadline. At this hearing, the Ricos argued that
Barrera had not made himself amenable to deposition, which prevented them
from compiling a comprehensive expert report. In addition, the Ricos
asserted that they were unable to decipher Barrera's handwritten notes
pertaining to the treatment of the patient, hindering their ability to
produce a timely expert report.
(3) Based on these assertions, the Ricos argued that they had
established "good cause" warranting a thirty-day extension of the expert
report deadline. Barrera did not produce evidence controverting the Ricos'
assertions.

Barrera argues that the Ricos were not
entitled to a thirty-day extension because they did not present any
evidence to the trial court in support of their contentions. Barrera,
however, does not cite, nor are we aware of, any authority requiring the
Ricos to present evidence at a hearing addressing a section 13.01(f)
request. The Ricos were merely required to demonstrate "good cause" for
the extension. In any event, only the unsworn statements of the Ricos'
trial counsel was presented at the hearing. Generally, "an attorney's
statements must be under oath to constitute evidence. . . . However, such
error is waived by the failure to object when the opponent knew or should
have known an objection was required." Rittenhouse v. Sabine Valley
Ctr. Found., Inc., 161 S.W.3d 157, 165 (Tex. App.-Texarkana 2005, no
pet.) (internal citations omitted). Barrera did not object to the
statements made by the Ricos' trial counsel at the hearing; therefore,
Barrera waived this complaint and the statements of the Ricos' trial
counsel provided a sufficient basis for the trial court to grant the
Ricos' section 13.01(f) extension request. See id.

Barrera further argues that because
Spurlock later admitted that he based his opinions solely upon the review
of the medical records provided by the hospital, the deposition was
unnecessary and was used solely for the purpose of securing an extension
to file Spurlock's expert report. However, at the time of the hearing, the
Ricos anticipated that in deposing Barrera, they would procure valuable
information for the expert report. As such, Barrera's reliance on
Spurlock's admission that he did not rely on the deposition--made after
the extension was granted--is irrelevant.

The language of section 13.01(f)
provides that the trial court may grant an extension on a showing of good
cause. See Act of May 5, 1995, 74th Leg., R.S., ch. 140, § 1,
sec. 13.01(f), 1995 Tex. Gen. Laws 985, 986 (repealed 2003). The use of
the word "may" in a statute indicates that the provision is directory and
not mandatory. See Roberts v. Med. City Dallas Hosp., Inc., 988
S.W.2d 398, 402 (Tex. App.-Texarkana 1999, pet. denied) (citing Weldon
v. Weldon, 968 S.W.2d 515, 518 (Tex. App.-Texarkana 1998, no pet.)).
"When a trial court's function is directory and not mandatory, the
reviewing court should give deference and wide latitude to the decision of
the trial court. We should only reverse upon a showing of a clear abuse of
discretion." Id.; see Schorp v. Baptist Mem'l Health
Sys., 5 S.W.3d 727, 732 (Tex. App.-San Antonio 1999, no pet.) ("Even
where good cause exists, the trial court would still be within its
discretion to grant or deny an extension."). We conclude that Barrera has
not shown that the trial court clearly abused its discretion in granting
the Ricos a thirty-day extension to file Spurlock's expert report.

2. Timeliness of Spurlock's
Expert Report

After the February 13, 2004 hearing,
the trial court granted the Ricos' motion to extend the expert report
deadline thirty days from February 18, 2004 to March 19, 2004.
See Act of May 5, 1995, 74th Leg., R.S., ch. 140, § 1, sec.
13.01(f), 1995 Tex. Gen. Laws 985, 986 (repealed 2003). The Ricos did not
file Spurlock's expert report with the trial court until March 22, 2004.
However, Barrera's trial counsel testified at the April 12, 2004 hearing
on Barrera's first motion for sanctions and dismissal that he received a
copy of Spurlock's expert report on March 16, 2004. Moreover, the
certificate of service attached to the report indicates that the Ricos
served Spurlock's expert report on all parties on March 16, 2004. Because
section 13.01(d) merely required that the Ricos furnish Spurlock's expert
report to Barrera's counsel within the statutorily prescribed deadline, we
cannot say that the Ricos' expert report is untimely. See Act of
May 5, 1995, 74th Leg., R.S., ch. 140, § 1, sec. 13.01(d), 1995 Tex. Gen.
Laws 985, 986 (repealed 2003).

3. The Adequacy of Spurlock's
Expert Report

Generally, an expert report's adequacy
does not depend on whether the expert uses any particular "magical words."
Windsor v. Maxwell, 121 S.W.3d 42, 48 (Tex. App.-Fort Worth 2003,
pet. denied) (citing Bowie Mem'l Hosp. v. Wright, 79 S.W.3d 48,
53 (Tex. 2002)). A report is sufficient if it "contains information
summarizing and explaining the causal relationship between the doctor's
failure to meet the applicable standards of care and the plaintiff's
injury." Id. (citing Bowie Mem'l Hosp., 79 S.W.3d at
53). The expert must explain the basis of "his statements" linking "his
conclusions" to the facts. See Earle v. Ratliff, 998 S.W.3d 882,
890 (Tex. 1999).

In Palacios, the Texas
Supreme Court stated that:

[t]he issue for the trial court is
whether 'the report' represents a good-faith effort to comply with the
statutory definition of an expert report. . . . That definition requires,
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. Because the statute focuses on what the report
discusses, the only information relevant to the inquiry is within the four
corners of the document.

46 S.W.3d at 878 (internal citations
omitted) (emphasis added). Moreover, an expert report need not marshal all
the plaintiff's proof, but it must include the expert's opinion on each of
the elements identified in the statute in order to represent a good-faith
effort. Id. For simplicity, the supreme court fashioned a
two-part inquiry for reviewing expert reports. Id. at 879.
"First, the report must inform the defendant of the specific conduct the
plaintiff has called into question. Second, and equally important, the
report must provide a basis for the trial court to conclude that the
claims have merit." Id.

In their original petition, the Ricos
alleged that Barrera's "[f]ailure to appropriately manage and treat
[Isela's] labor and delivery of Gloria" caused the following
injuries:

1. [S]he [Gloria] has been severely
and permanently impaired and disfigured in the past, and will suffer from
serious limitations and disfigurement in the future for the remainder of
her natural life;

2. [S]he has incurred extensive
medical and rehabilitative care expenses in the past, and will continue to
incur them in the future;

3. [S]he will incur extensive medical
and rehabilitative care expenses after obtaining the age of
majority;

4. [H]er ability to be gainfully
employed and enjoy an earning capacity and wages in the future has been
seriously diminished for the balance of her life;

5. [S]he has endured great physical
and mental pain, suffering and anguish, and in all reasonable probability
will continue to suffer in this manner in the future; and

6. [S]he has suffered loss of
enjoyment of life, in the past and in the future.

In his expert report, Spurlock stated
the following:

The standard of care required that Dr.
Barrera use the appropriate maneuvers and not use excessive traction in
order to relieve the shoulder dystocia. Dr. Barrera failed to document the
use of any acceptable maneuvers to relieve the shoulder dystocia. The
brachial plexus injury was more likely than not, from excessive traction
by Dr. Barrera. Using excessive traction to relieve a shoulder dystocia is
below the standard of care. Specifically, the standard of care required
that Dr. Barrera utilize the appropriate maneuvers to try to relieve the
shoulder dystocia. That would include the McRoberts maneuver, suprapubic
pressure, delivery of the posterior arm, the Woods maneuver, the Rubin's
maneuver, and/or the Zavenelli maneuver. . . . The standard of care
required that Dr. Barrera perform all or some of these maneuvers in order
to relieve the severe shoulder dystocia and safely deliver Gloria Rico.
Dr. Barrera failed to document the use of any maneuver. As such, he more
likely than not, did not utilize any other maneuvers as required by the
standard of care to atraumatically and safely deliver the baby and
breached the standard of care.

. . . .

The above-noted breaches of the
standards of care by Dr. Barrera were, more likely than not, a proximate
cause of Gloria Rico's injuries including but not limited to her permanent
right brachial plexus injury and its subsequent sequelae. As a result of
Dr. Barrera's failure to utilize appropriate maneuvers to alleviate the
shoulder dystocia during the delivery of Gloria Rico, the nerves
innervating the arm, shoulder and hand were more likely than not,
stretched, torn or avulsed causing the right brachial plexus injury. Had
Dr. Barrera met the above-noted standards of care, to a reasonable degree
of medical probability, Gloria Rico would not have suffered these injuries
and the subsequent sequelae. That is, by Dr. Barrera failing to alleviate
the shoulder dystocia using appropriate maneuvers as noted above, failing
to deliver Gloria Rico atraumatically and without excessive traction
during the delivery of Gloria Rico and thereby allowing a traumatic
vaginal delivery, Dr. Barrera's breaches of the standards of care noted
above, in reasonable medical probability, more likely than not,
proximately caused the nerves innervating the right arm, shoulder and hand
to be stretched, torn or avulsed causing the permanent brachial plexus
injury and subsequent sequelae.

Barrera argues that Spurlock's expert
report merely established that Barrera failed to document the use of any
acceptable maneuvers to relieve the shoulder dystocia. We
disagree.

Spurlock's expert report adequately
set forth the standard of care pertaining to Barrera, how that standard
was breached, and the result--"Dr. Barrera's breaches of the standards of
care . . . proximately caused the nerves innervating [sic] the right arm,
shoulder and hand to be stretched, torn or avulsed causing permanent
brachial plexus injury and subsequent sequelae [in Gloria]." See
Act of May 5, 1995, 74th Leg., R.S., ch. 140, § 1, sec. 13.01(r)(6), 1995
Tex. Gen. Laws 985, 986 (repealed 2003). Moreover, Barrera's failure to
document any of the maneuvers used to alleviate Gloria's injuries, as
Spurlock stated in his expert report, also constituted a breach of the
standard of care. See Sides v. Guevara, 247 S.W.3d 293, 301-02
(Tex. App.-El Paso 2007, no pet.) (concluding that Dr. Cartwright's expert
report, which noted that Dr. Sides's failure to document what type of
surgery he performed was a breach of the standard of care, "provided a
fair summary . . . as to causation because it linked the failure of Dr.
Sides to appreciate and diagnose [Plaintiff's] toe problems and to
document the surgery he performed to the subsequent infection in her
knee"; therefore, the trial court did not abuse its discretion in denying
Dr. Sides's motion to dismiss). Confining our review solely to Spurlock's
expert report, we cannot say that the report lacked "sufficient
specificity" to inform Barrera of the specific conduct that the Ricos
called into question, or to allow the trial court to determine if the
Ricos' claims have merit; therefore, Spurlock's expert report is
adequate. See Palacios, 46 S.W.3d at 879; see also Act
of May 5, 1995, 74th Leg., R.S., ch. 140, § 1, sec. 13.01(r)(6), 1995 Tex.
Gen. Laws 985, 986 (repealed 2003). We conclude that the trial court did
not abuse its discretion in denying Barrera's motions for sanctions and
dismissal. See Palacios, 46 S.W.3d at 878; Walker, 111
S.W.3d at 62; Strom, 110 S.W.3d at 220. Accordingly, we overrule
Barrera's sole issue on appeal.

IV.
Conclusion

We affirm the judgment of the trial
court.

_______________________

DORI CONTRERAS GARZA,

Justice

Memorandum Opinion on Remand delivered

and filed this the 6th day of
November, 2008.

1. Act of May 5, 1995, 74th Leg., R.S., ch. 140, §
13.01, 1995 Tex. Gen. Laws 985, 986 (former Tex Rev. Civ. Stat. art.
4590i, § 13.01), repealed by Act of June 2, 2003, 78th Leg.,
R.S., ch. 204, § 10.09, 2003 Tex. Gen. Laws 847, 884. Former article 4590i
was replaced by House Bill 4 (now Chapter 74 of the Texas Civil Practice
and Remedies Code), which governs health care liability claims commenced
on or after September 1, 2003.

2. Section 13.01(r)(6) defines an "expert report" as
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 that failure and the
injury, harm, or damages claimed.

Act of May 5, 1995, 74th Leg., R.S.,
ch. 140, § 1, sec. 13.01(r)(6), 1995 Tex. Gen. Laws 985, 986 (repealed
2003).

3. The record indicates that Barrera objected to
typing or otherwise producing his handwritten notes in a legible form.
Barrera later withdrew his objection and agreed to provide a type-written
transcription of his notes regarding the treatment of the
patient.