Court of Appeals of Texas, Fifth District, Dallas
DEBBIE WHEELER, INDIVIDUALLY AND AS THE REPRESENTATIVE OF THE ESTATE OF LARRY J. WHEELER, KIM ADAMS, AND KRISTIE STEWART, Appellants
METHODIST RICHARDSON MEDICAL CENTER AND METHODIST HEALTH SYSTEM FOUNDATION, Appellees
Appeal from the 416th Judicial District Court Collin County,
Texas Trial Court Cause No. 416-01327-2016
Justices Lang-Miers, Brown, and Boatright
ELIZABETH LANG-MIERS, JUSTICE
health care liability case, the trial court dismissed the
claims without granting appellants a thirty-day extension to
cure deficiencies in their expert reports because the initial
reports did not contain any opinion regarding causation. We
conclude that the trial court abused its discretion, and we
reverse and remand.
J. Wheeler was admitted to Methodist Richardson Medical
Center and was diagnosed with narrowing of a carotid artery
and occlusion of a coronary artery. He subsequently underwent
surgery on a carotid artery and coronary surgery. After
surgery and the removal of mechanical ventilation, Larry
Wheeler suffered from lack of oxygen to the brain.
Ultimately, the family decided to remove him from ventilator
support. He died the following day.
Wheeler, individually and as the representative of the estate
of Larry J. Wheeler, Kim Adams, and Kristie Stewart (Wheeler
Parties) sued Methodist Richardson Medical Center, Methodist
Health System Foundation (Methodist Parties), and Jose A.
Gutierrez, M.D. under the wrongful death and survival
statutes, asserting claims of medical negligence and gross
negligence against all three defendants and respondeat
superior against the Methodist Parties.See Tex.
Civ. Prac. & Rem. Code Ann. §§ 71.001-.011,
71.021 (West 2008) (wrongful death and survival statutes).
Wheeler Parties alleged that the Methodist Parties were
negligent "in that the nurses failed to institute a
number of interventions . . . to correct the critically low
oxygen saturations[, ]" that they should be liable under
the doctrine of respondeat superior, and that their negligent
acts caused Larry Wheeler's injuries, death, and damages.
Wheeler Parties timely filed and served expert reports from
Jay S. Ellis Jr., M.D. and Claudia Estrada,
See Tex. Civ. Prac. & Rem. Code Ann. §
74.351 (West Supp. 2016); see also id. §
74.351(i) (providing a claimant may satisfy the requirement
of serving an expert report by "serving reports of
Methodist Parties filed objections to both
reports. Among other objections, the Methodist
Parties contended that Ellis's original report did not
"meet the minimum standards set forth by the Texas
Supreme Court" because it did not "address in any
manner either" that the Wheeler Parties' "claim
against Methodist is meritorious" or "how
Methodist's conduct caused the injuries suffered by Mr.
Wheeler." They argued that the report "must be
considered no report at all."
Wheeler Parties requested that, if the trial court concluded
that any element of their expert reports was insufficient,
the trial court grant them a thirty-day extension to cure the
reports. The Wheeler Parties argued that, "[a]lthough
Dr. Ellis's initial report does not address causation as
to [Methodist] and its staff, one missing element does not
cause two reports to become no report" but, instead,
"prompts the Court to ask, as required by Scoresby
[sic], whether the report's deficiencies are
curable." See Scoresby v. Santillan, 346 S.W.3d
546, 549 (Tex. 2011). They argued that when a deficient
expert report is curable, under the Texas Supreme Court
precedents of Scoresby and Ogletree v.
Matthews, 262 S.W.3d 316, 320-21 (Tex. 2007), "the
statute's extension is not only available, but virtually
mandatory when requested." The Wheeler Parties attached
Ellis's amended report to their brief concerning the
thirty-day extension, contending that it addressed causation
and demonstrated that the deficiency in his previous report
is curable. The Methodist Parties also objected to the
amended report on the grounds that Ellis did not adequately
establish his qualifications in the amended report and the
report was insufficient and conclusory.
trial court sustained the Methodist Parties' objections
to Ellis's and Estrada's original reports and
concluded that "the documents served by" the
Wheeler Parties "do not meet the essential elements
required of an expert report as that term is defined pursuant
to Chapter 74[.]" The order stated that
"[s]pecifically, there is no report that addresses the
required element of causation as it pertains to" the
Methodist Parties. The trial court concluded that "[t]he
absence of an essential element amounts to no report"
and ordered the claims alleged against the Methodist Parties
dismissed with prejudice. The trial court did not make any
determinations about the amended report.
Wheeler Parties filed this interlocutory appeal challenging
the trial court's order granting the motion to dismiss.