Johnson Concurrence in In Re Watkins, MD, No. 06-0653 (Tex. May 1, 2009)(Substituted
concurrence by
Johnson)(HCLC, proper appellate remedy in dispute over expert report in
health care liability suit, mandamus vs. interlocutory appeal) (pdf version of concurrence)
IN RE MARY LOUISE WATKINS, M.D.; from Cameron County; 13th district (13-05-00765-CV &
13-06-00080-CV, 192 SW3d 672, 05-04-06)  
The concurring opinion by Justice Johnson issued January 23, 2009 is withdrawn and the
concurring opinion issued this date is substituted. The remaining opinions, issued January
23, 2009, remain in place. [pdf]
Electronic Briefs

Substituted Concurring Opinion by Johnson in In Re Watkins MD (Tex. 2009)
Justice Johnson, concurring.
I withdraw my concurring opinion delivered January 23, 2009, and substitute the
following in its place.

In regard to a health care liability claim,

“Expert report” means 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.

Tex. Civ. Prac. & Rem. Code § 74.351(r)(6). The definition requires that for a
document to qualify as a statutory expert report, it must demonstrate three things: (1)
someone with relevant expertise (“‘[e]xpert report’ means a written report by an
expert”), (2) has an opinion (“that provides a fair summary of the expert’s opinions”),
(3) that the defendant was at fault for failing to meet applicable standards of care and
thereby harmed the plaintiff (“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.”). Id. (emphasis added); see Rivenes v. Holden, 257 S.W.3d 332, 334, 337
n.4, 339 (Tex. App.—Houston [14th Dist.] 2008, pet. denied) (holding that a report not
mentioning the appellant, appellant’s failure to meet the applicable standard of care,
or how this failure caused the plaintiff’s injuries was not an expert report as to the
appellant making it unnecessary to address the question of whether the report was a
good faith effort to comply with section 74.351).

In Ogletree v. Matthews, 262 S.W.3d 316, 321 (Tex. 2007), the Court held that if a
deficient report was served, an extension order—even when combined with a motion
to dismiss—was not subject to interlocutory appeal. In Ogletree, the trial court
determined that the report was deficient, denied defendant’s motion to dismiss, and
granted an extension to cure the report. Id. at 318. The report was not accompanied
by a curriculum vitae and was allegedly deficient because its author was a radiologist
and not qualified to render legally valid opinions about the standard of care applicable
to the urologist defendant. Id. But there, the report demonstrated a physician, albeit
one with different medical specialization from the defendant, held and expressed
opinions that the defendant violated standards of care and caused damage to the
plaintiff. The Court referred to the report as deficient. Id. at 321.

The document referred to in this case as an expert report is not a deficient statutory
expert report; it is not a statutory expert report at all. While the document is authored
by a physician, it does not show that as of the date of the report the author held any
opinion as to (1) applicable standards of care for the treatment in question, (2) the
manner in which care rendered by the defendant physician failed to meet the
standards, or (3) the causal relationship between that failure and the harm claimed.

The report before us does not purport to have any relationship to a health care liability
or malpractice case. As the trial judge noted, the document is no more than a status
report. In it, the author gives the history taken from the plaintiff that acetic acid
“intended for a facial lesion splashed into his right eye,” sets out physical findings from
examinations, reports the plaintiff’s condition as stable, and gives recommendations
for future treatment and a prognosis.

The Court said in Ogletree that “[i]f no report is served within the 120 day deadline
provided by 74.351(a), the Legislature denied trial courts the discretion to deny
motions to dismiss or grant extensions, and a trial court’s refusal to dismiss may be
immediately appealed.” 262 S.W.3d at 319-20 (emphasis added); see Tex. Civ.
Prac. & Rem. Code § 74.351(b) (stating that a trial court “shall” dismiss a claim when
expert reports are not served within 120 days); id. § 51.014(a)(9) (authorizing
interlocutory appeal of the denial of a motion to dismiss filed under section 74.351
(b)). The Court has followed through on our statement in Ogletree by holding that when
no report is served, but a trial court denies a motion to dismiss and grants an
extension to cure, an interlocutory appeal is available to challenge the denial of the
motion to dismiss. Badiga v. Lopez, ___ S.W.3d ___, ___ (Tex. 2009).

The Court is not faced with a deficient report as was the case in Ogletree; the Court is
faced with no statutory-compliant expert report as we were in Badiga. When no
statutory-compliant expert report is filed, there is an adequate remedy by appeal. Id.
at ___; Ogletree, 262 S.W.3d at 321. Because there was an adequate remedy by
appeal, I join the Court’s judgment in denying mandamus relief.

                                                              Phil Johnson