Court of Appeals of Texas, Fourth District, San Antonio
the 49th Judicial District Court, Webb County, Texas Trial
Court No. 2015-CVT-003956 D1 Honorable Joe Lopez, Judge
Sitting: Marialyn Barnard, Justice; Patricia O. Alvarez,
Justice Irene Rios, Justice
Patricia O. Alvarez, Justice
Jake Fipps developed an anastomotic leak after his gastric
bypass surgery. Fipps and his wife (Appellees) sued Appellant
Charles Schwartz III, D.O., the bariatric surgeon, alleging
that the "surgical procedure failed." Dr. Schwartz
challenged Appellees' initial and supplemental expert
reports, and the trial court dismissed the suit for an
inadequate report. In Appellees' motion for new trial,
they argued the supplemental report showed their theory of
the case had changed to a postoperative-care complaint, and
their expert was qualified to opine. The trial court granted
the motion for new trial, denied Dr. Schwartz's motion to
dismiss, and Dr. Schwartz appeals.
Because the only claim in Appellees' live pleading was
the failed surgical procedure, and the expert reports opined
on postoperative care-not the standard of care, breach, or
causation for gastric bypass surgery-we reverse the trial
court's order. We grant Dr. Schwartz's motion to
dismiss, render judgment that Appellees take nothing, dismiss
Appellees' claim with prejudice, and remand this cause to
the trial court for an award of Dr. Schwartz's reasonable
attorney's fees and court costs.
Surgery and Complaints
Schwartz performed laparoscopic Roux-en-Y gastric bypass
surgery on Jake Fipps in Doctor's Hospital of Laredo, in
Laredo, Texas on October 10, 2013. Fipps was discharged two
days later, but he experienced abdominal pain and other
symptoms. Fipps sought treatment from Dr. Schwartz, but
because Dr. Schwartz was out of town, Fipps was seen by Dr.
Reyes admitted Fipps to McAllen Heart Hospital on October 16,
2013, where Fipps was found to have sepsis, intra-abdominal
infection with peritonitis in the left upper quadrant, and
intra-abdominal abscess due to gastric anastomotic leak. The
next day, Dr. Reyes performed laparoscopic lysis of
adhesions, laparoscopic drainage of left upper quadrant
abscess, revision of the jejunojejunostomy, and repair of a
gastric leak and stent placement in the esophagogastric area.
Lawsuit, Expert Reports, Case Dismissed
December 17, 2015, Appellees sued Doctor's Hospital of
Laredo and Dr. Schwartz for medical malpractice.
They alleged that "[t]he surgical procedure failed,
causing harm to Jake Fipps, and this was due to the
negligence of the Defendants . . . [and this] negligence was
a proximate cause of injuries and damages to the Plaintiff,
Jake Fipps." Appellees filed their "Initial Expert
Report" of Dr. William F. Larkin, and Dr. Schwartz
objected to it. Dr. Schwartz argued that Dr. Larkin was not
qualified to opine on bariatric surgery, and the report
failed to give a fair summary of the standard of care for
gastric bypass surgery, the alleged breach, or causation. The
trial court granted Appellees a thirty-day extension of time
to amend Dr. Larkin's report. Dr. Larkin filed a
Supplemental Report, and Dr. Schwartz filed supplemental
objections to the sufficiency of the reports and moved to
dismiss the case based on defective expert reports.
See Tex. Civ. Prac. & Rem. Code Ann. §
74.351 (West 2017). The trial court sustained Dr.
Schwartz's objections to the expert reports and granted
the motion to dismiss.
Motion for New Trial Granted, Interlocutory Appeal
filed a motion for new trial. In their motion, Appellees
stated that with Dr. Larkin's supplemental report, they
had "changed their theory of the case, and are
now staking their claims on the medical emergency that arose
after the surgery, . . . [and] Dr. Larkin's
reports are competent evidence on the [standard for]
post-operative care and . . . Dr. Schwartz's alleged
negligence." Dr. Schwartz responded that the
supplemental "report does not adequately address
standard of care or causation" for gastric bypass
surgery, "simply makes conclusory accusations"
pertaining to the alleged breaches of the standard of care,
and fails to show Dr. Larkin is "qualified to be an
expert in this case."
trial court granted Appellees' motion for new trial and
denied Dr. Schwartz's motion to dismiss. Dr. Schwartz
filed a notice of interlocutory appeal. He complains that the
trial court erred in denying his motion to dismiss based on
the alleged inadequacy of the expert reports. See
id. § 74.351(b), (1), (r)(6).
review a trial court's ruling on a motion to dismiss-that
challenges the adequacy of an expert report-for an abuse of
discretion. Bowie Mem'l Hosp. v. Wright, 79
S.W.3d 48, 52 (Tex. 2002) (per curiam); Am. Transitional
Care Ctrs. of Tex., Inc. v. Palacios, 46 S.W.3d 873, 877
(Tex. 2001). "A trial court has no 'discretion'
in determining what the law is or applying the law to the
facts. Thus, a clear failure by the trial court to analyze or
apply the law correctly will constitute an abuse of
discretion." Walker v. Packer, 827 S.W.2d 833,
840 (Tex. 1992); accord In re Jorden, 249 S.W.3d
416, 424 (Tex. 2008) (orig. proceeding).
expert report must fulfill two purposes: it must (1)
"inform the defendant of the specific conduct the
plaintiff has called into question, " and (2)
"provide a basis for the trial court to conclude that
the claims have merit." Palacios, 46 S.W.3d at
879; accord Jernigan v. Langley, 195 S.W.3d 91, 93
(Tex. 2006). "[T]he report must include the required
information within its four corners." Wright,
79 S.W.3d at 53; accord Palacios, 46 S.W.3d at
"[O]missions may not be supplied by inference."
Scoresby v. Santillan, 346 S.W.3d 546, 556 (Tex.
is not sufficient for an expert to simply state that he or
she knows the standard of care and concludes it was [or was
not] met." Palacios, 46 S.W.3d at 880
(alteration in original). The expert report must
state the standard of care: "Identifying the standard of
care is critical: Whether a defendant breached his or her
duty to a patient cannot be determined absent specific
information about what the defendant should have done
differently." Id. "Mere reference to
general concepts regarding assessment, monitoring, and
interventions are insufficient as a matter of law."
Regent Health Care Ctr. of El Paso, L.P. v. Wallace,
271 S.W.3d 434, 441 (Tex. App.-El Paso 2008, no pet.) (citing
Palacios, 46 S.W.3d at 879).
physician challenges the expert report as inadequate,
"[the] court shall grant [the] motion . . . 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 in Subsection (r)(6)."
Tex. Civ. Prac. & Rem. Code Ann. § 74.351(1);
accord Certified EMS, Inc. v. Potts, 392 S.W.3d 625,
630 (Tex. 2013).
section 74.351(r)(6), an expert's report "must
include the expert's opinion on each of the elements
identified in the statute, " including the standard of
care. Palacios, 46 S.W.3d at 878; see Tex.
Civ. Prac. & Rem. Code Ann. § 74.351(r)(6);
Wright, 79 S.W.3d at 52. An expert report that omits
the standard of care applicable to the claimed error
"cannot constitute a good faith effort to meet the
statutory requirements." See Jernigan, 195
S.W.3d at 94 (citing Palacios, 46 S.W.3d at 879). If
the expert report does not constitute a good faith effort,
and the deadline to file a compliant report has passed, the
trial court has no discretion except to grant the motion