Court of Appeals of Texas, Fifth District, Dallas
BRENT ALLEN HAMBRICK, M.D., EMCARE HOLDINGS, INC., EMCARE, INC. AND TEXAS EM-I MEDICAL SERVICES, P.A., Appellants
LETICIA DOMINGUEZ, INDIVIDUALLY AND AS PERSONAL REPRESENTATIVE OF THE ESTATE OF JAVIER DOMINGUEZ, JENNIFER DOMINGUEZ, LUIS ADEMIR DOMINGUEZ, JAVIER DOMINGUEZ, JR., AND ESMERALDA DOMINGUEZ, INDIVIDUALLY, Appellees
Appeal from the 192nd Judicial District Court Dallas County,
Texas Trial Court Cause No. DC-15-12919-K
Justices Lang, Myers, and Stoddart
case concerns the sufficiency of an expert report in a
medical malpractice case under section 74.351 of the Texas
Civil Practice and Remedies Code. See Tex. Civ.
Prac. & Rem. Code Ann. § 74.351 (West Supp. 2016).
Appellants' Brent Allen Hambrick, M.D., Emcare Holdings,
Inc., Emcare, Inc., and Texas Em-I Medical Services P.A.
appeal the trial court's order denying their motion to
dismiss the suit filed by Leticia Dominguez, the personal
representative of the deceased, Javier Dominguez, and
Dominguez's family members. See Civ. Prac.
§ 51.014(a)(9) (West Supp. 2016). Appellants bring three
issues on appeal contending the trial court erred by
overruling their objections to the expert reports of Dr.
Kenneth Corre and Dr. Brian Gogel and by denying
appellants' motion to dismiss because: (1) Dr. Corre was
not qualified to render an opinion on the causal link between
Dr. Hambrick's care and Dominguez's death; (2) Dr.
Corre's opinions do not constitute a good-faith report on
causation; and (3) the opinions expressed in Dr. Gogel's
report do not constitute an expert report against Dr.
Hambrick. We conclude Dr. Corre's report fails to
establish his qualifications to render an opinion on the
causation of Javier Dominguez's death. We reverse the
trial court's judgment and remand the cause to the trial
court to consider whether to grant a thirty-day extension to
cure the deficiencies in Dr. Corre's report. See
id. § 74.351(c).
11, 2014, Javier Dominguez underwent gall-bladder-removal
surgery. After the surgery, Dominguez's condition
worsened, and he had high fever and rapid heart rate. The
doctors returned Dominguez to the operating room on July 14
and found bowel contents in his abdomen from a pinhole in his
colon. After this surgery, Dominguez's condition
deteriorated further. Dominguez was placed in the ICU, and he
required mechanical assistance to breathe. Dominguez's
hypoxemia grew worse, and on July 29, a tracheostomy was
performed inserting a tube into Dominguez's airway. Later
that day, Dominguez's respiration rate increased, and
despite the tracheostomy, there was air coming out of his
nose. At 10:45 p.m., during "repositioning" by the
nurses, the tracheostomy tube dislodged. At 10:51 p.m., when
the nurses and a respiratory therapist could not successfully
reposition or replace the tube, a "code blue" was
called. About two minutes later, Dr. Hambrick arrived from
the emergency room and tried to replace the tracheostomy
tube, but he was unsuccessful. Dominguez went into cardiac
arrest at 10:58 p.m. Dominguez's oxygen saturation
dropped to forty percent, and he showed signs of subcutaneous
emphysema, including swelling of the face and neck. Dr.
Hambrick tried again to replace the tracheostomy tube, but he
was unsuccessful. The medical director then ordered
reintubation. Dr. Hambrick ordered administration of
succinylcholine, which Dominguez received at 11:05 p.m. Dr.
Hambrick then intubated Dominguez, but he and the other
hospital staff could not revive him. Dr. Hambrick called the
time of death at 11:19 p.m.
Dominguez family sued Dr. Hambrick as well as other
physicians and health care providers. The Dominguezes served
Dr. Hambrick with the expert reports of Dr. Corre and Dr.
Gogel. Dr. Corre concluded that Dr. Hambrick should have
intubated Dominguez sooner. Dr. Hambrick objected to the
expert reports and moved to dismiss the Dominguezes'
claims under section 74.351(b). The trial court overruled the
objections and denied the motion to dismiss.
74.351 of the Civil Practice & Remedies Code provides
that a plaintiff bringing a health care liability claim must
serve defendants who are physicians or health care providers
with an expert report within 120 days of their answers. Civ.
Prac. § 74.351(a). The report must provide the
expert's opinions regarding the standard of care, the
manner in which the care rendered by the defendant failed to
meet the standard, and the causal relationship between that
failure and the injury, harm, or damages caused. Id.
§ 74.351(r)(6). A defendant may file objections to the
report within twenty-one days after the report is served or
the defendant files its answer. Id. §
74.351(a). Any objections to the expert report not filed
within that time are waived. Id. If an expert report
is not timely filed, the trial court must, on the
defendant's motion, dismiss the health care liability
claims with prejudice and award the defendant its reasonable
attorney's fees and costs of court. Id. §
74.351(b). If the plaintiff serves an expert report that
"does not represent an objective good faith effort to
comply with the definition of an expert report in Subsection
(r)(6), " then the court must grant a motion challenging
the adequacy of the report. Id. §
74.351(l). The court may grant a party that serves a
deficient expert report one 30-day extension to cure the
deficiencies. Id. § 74.315(c).
review a trial court's order on the sufficiency of an
expert report for an abuse of discretion. Jernigan v.
Langley, 195 S.W.3d 91, 93 (Tex. 2006) (per curiam).
CORRE'S EXPERT REPORT
their first issue, appellants contend the trial court erred
by denying their objections to Dr. Corre's expert report
and denying their motion to dismiss because the report did
not show Dr. Corre was qualified to render an opinion on
whether Dr. Hambrick's conduct caused Dominguez's
death. To render an opinion on whether a physician has
departed from accepted standards of health care, the
Healthcare Liability Act requires that an expert must be a
(1) is practicing medicine at the time such testimony is
given or was practicing medicine at the time the claim arose;
(2) has knowledge of accepted standards of medical care for
the diagnosis, care, or treatment of the illness, injury, or