Court of Appeals of Texas, Thirteenth District, Corpus Christi-Edinburg
appeal from the 275th District Court of Hidalgo County,
Chief Justice Valdez and Justices Rodriguez and Hinojosa
LETICIA HINOJOSA Justice
an interlocutory appeal of the trial court's order
denying appellant Mary McCoy's motion to dismiss the
health care liability claims of appellee Vilma Sandoval.
See Tex. Civ. Prac. & Rem. Code Ann.
§§ 51.014(a)(9); 74.351(a), (b) (West, Westlaw
through 2015 R.S.). In four issues, McCoy contends that the
trial court abused its discretion in overruling her
objections to the report of Federico Roman Ng, M.D. and
denying dismissal on the grounds that Dr. Ng's report
fails to (1) establish that he is qualified to testify
regarding the standard of care applicable to McCoy, a nurse
practitioner; (2) specify the standard of care applicable to
McCoy; (3) establish his qualifications to testify regarding
causation; and (4) explain how McCoy's "purported
breach of an unidentified standard of care caused"
Sandoval's alleged injuries. We reverse and remand.
underlying healthcare liability claims were filed by Sandoval
against three defendants: McCoy; Cash Medical Clinic of
Center Pointe, LLC; and Luis M. Gonzalez, M.D. According to
Sandoval's one-hundred-and-fourteen paragraph original
petition, she sought treatment from Cash Medical Clinic and
Dr. Gonzalez for multiple reasons, including painful
urination. As Dr. Gonzalez was unavailable, McCoy, a nurse
practitioner, treated Sandoval. Sandoval's petition
alleges that McCoy diagnosed Sandoval with a urinary tract
infection, a yeast infection, and vaginosis based on
urinalysis results. McCoy prescribed two medications.
five days later, Sandoval returned to the clinic with
worsened symptoms. During a pelvic examination at the second
office visit, McCoy, according to Dr. Ng's report,
exclaimed to "students" who were observing,
"That's Gonorrhea." McCoy then prescribed a
different oral medication and two injections. Sandoval's
petition alleges that she questioned McCoy about the
gonorrhea diagnosis in light of her being in a
"monogamous relationship" for six months and not
having had sexual relations with anyone for several years
before her current relationship. McCoy, according to
petition, told Sandoval that her boyfriend probably had given
her gonorrhea and that "men are like chickens; they poke
everything in sight." Sandoval's petition alleges
that the diagnosis of gonorrhea was in error, and it pleads
claims against McCoy for "failure to disclose risks,
" "lack of consent, " "breach of
confidential communication, " "intentional
infliction of emotional distress, " "intrusion on
seclusion, " "public disclosure of private facts,
" and "negligent misrepresentation." Sandoval
sought damages for, among other things, physical pain and
effort to comply with section 74.351 of the Texas Civil
Practice and Remedies Code, Sandoval served a report by Dr.
Ng but no curriculum vitae. All three defendants objected to
Dr. Ng's report, and McCoy also moved for dismissal.
Sandoval then served Dr. Ng's curriculum vitae. All three
defendants filed supplemental objections, and Dr. Gonzalez
and Cash Medical Clinic moved for dismissal. The trial court
overruled McCoy's objections to Dr. Ng's report and
denied dismissal. This interlocutory appeal
General Authority & Standard of Review
"expert report" is 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
Ann. § 74.351(r)(6).
court's ruling on the sufficiency of an expert's
report is reviewed for an abuse of discretion. Van Ness
v. ETMC First Physicians, 461 S.W.3d 140, 142 (Tex.
2015). Under this review, we defer to the trial court's
factual determinations if they are supported by the evidence,
but review its legal determinations de novo.
Id. A trial court abuses its discretion if it acts
without reference to guiding rules or principles.
Id. However, in exercising its discretion, it is
incumbent upon the trial court to review the reports, sort
out their content, resolve any inconsistencies, and decide
whether the reports demonstrated a good faith effort to show
that the plaintiff's claims have merit. See id.
at 144; see Tex. Civ. Prac. & Rem. Code Ann.
§ 74.351(1) ("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 . . . .").
Qualifications Regarding the Standard of Care
McCoy's first issue, she argues that Dr. Ng's report
fails to establish that he is qualified to testify regarding
the standard of care applicable to McCoy, a nurse
practioner. An expert must satisfy section 74.402 to
be qualified to provide opinion testimony regarding whether a
health care provider departed from the accepted standard of
care. See Tex. Civ. Prac. & Rem. Code Ann.
§ 74.351(r)(5)(B). Section 74.402 lists three specific
qualifications an expert witness must possess in order to
provide opinion testimony on how a health care provider
departed from accepted standards of health care. The expert
1.[be] practicing health care in a field of practice that
involves the same type of care or treatment as that delivered
by the defendant health care provider, if the defendant
health care provider is an individual, at the time the
testimony is given or was practicing that type of health care
at the time the claim arose;
2.[have] knowledge of accepted standards of care for health
care providers for the diagnosis, care, or treatment of the
illness, injury, or condition involved in the claim; and
3.[be] qualified on the basis of training or experience to
offer an expert opinion regarding those accepted standards of
Id. § 74.402(b) (West, Westlaw through 2015
R.S.). In determining whether a witness is qualified on the
basis of training or experience, section 74.402 also requires
the court to consider whether the witness:
1.is certified by a licensing agency of one or more states of
the United States or a national professional certifying
agency, or has other substantial training or experience, in