Court of Appeals of Texas, Fifth District, Dallas
PROPATH SERVICES, LLC AND TERRY L. BARRETT, M.D., Appellants
AMANDA RUSS, Appellee
Appeal from the 14th Judicial District Court Dallas County,
Texas Trial Court Cause No. DC-17-02637
Justices Francis, Evans, and Boatright
Services, LLC and Terry L. Barrett, M.D. appeal the denial of
their motion to dismiss, which asserted that appellee, Amanda
Russ, failed to comply with the Medical Liability Act's
expert-report requirement. The sole issue in this appeal is
whether appellee's expert report sufficiently addresses
the causal link between appellants' failure to meet
applicable standards of care and the claimed injury. Finding
no abuse of discretion by the district court, we affirm.
is the wife of the late Stephen Russ. On January 29, 2015,
Russ consulted his dermatologist, Dr. Peter Morrell, M.D.,
regarding a lesion on his right check. Dr. Morrell performed
a biopsy and sent the sample to appellant Propath. Appellant
Barrett, also a dermatologist, evaluated the biopsy and
diagnosed Russ as having invasive squamous cell carcinoma. On
February 27, 2015, Dr. Morrell performed a surgical procedure
on Russ's cheek to remove the cancerous lesion. Russ
followed up with Dr. Morrell and was told during his May 29,
2015 appointment that he did not need to be seen again for a
2016, Russ experienced swelling in his neck and was seen at
Baptist Hospitals of Southeast Texas in Beaumont. Following a
biopsy on one of his lymph nodes, Russ was diagnosed with
metastatic malignant melanoma. Russ was referred to
M.D. Anderson Cancer Center in Houston. Doctors at M.D.
Anderson diagnosed Russ with Stage IIIc melanoma. They also
reviewed Russ's biopsy from Propath and determined that,
as of January 2015, he was suffering from Stage II melanoma,
not squamous cell carcinoma as had been diagnosed by Dr.
Barrett. Thus, Russ's melanoma progressed from Stage II
to Stage IIIc in the fifteen months between his original
diagnosis and his visit to M.D. Anderson.
his corrected diagnosis, Russ was administered chemotherapy.
A "surgical modified radical neck dissection" was
also planned but never occurred due to melanoma-related
complications. As of August 2016, Russ's melanoma was
diagnosed as Stage IV, MIC "with bone and lymph node
involvement." By November of the same year, the melanoma
had spread to his brain.
sued Propath and Dr. Barrett in March 2017, asserting medical
negligence based on Dr. Barrett's
misdiagnosis. Pursuant to section 74.351(a) of the Civil
Practice and Remedies Code, Tex. Civ. Prac. & Rem. Code
Ann. § 74.351(a) (West 2017), Russ served the expert
report and curriculum vitae of Andrzej T. Slominski, M.D.,
Ph.D. Dr. Slominski is board-certified in Dermatopathology
and in Anatomic Pathology, and his CV reflects extensive
experience in skin cancers including melanoma.
died of end-stage metastatic melanoma on August 1, 2017. His
suit continued as a wrongful death and survival action
brought by appellee, individually, as the personal
representative of Russ's estate, and as the next friend
of their minor child. Appellants filed objections to Dr.
Slominski's report and a motion to dismiss appellee's
claims. They challenged Dr. Slominski's qualifications to
opine regarding the element of causation, and they urged that
his report did not establish a causal relationship between
appellants' breach of the applicable standards of care
and Russ's injury. The district court held a hearing on
appellants' objections and motion to dismiss on October
20, 2017, and signed an order one month later denying the
motion. This interlocutory appeal followed.
contend that Dr. Slominski's report failed to adequately
demonstrate causation, and therefore the district court erred
in denying their motion to dismiss. We review a trial
court's determination regarding the sufficiency of an
expert report under an abuse-of-discretion standard. Baty
v. Futrell, 543 S.W.3d 689, 693 & n.4 (Tex. 2018).
We "defer to the trial court's factual
determinations if they are supported by evidence, but review
its legal determinations de novo." Van Ness v. ETMC
First Physicians, 461 S.W.3d 140, 142 (Tex. 2015) (per
curiam). A trial court abuses its discretion if it acts
without reference to guiding rules or principles.
the Medical Liability Act (MLA),  an "expert report"
must provide "a fair summary of the expert's
opinions" regarding, among other topics, "the
causal relationship" between the health care
provider's breach of the applicable standards of care and
the claimant's injury. Tex. Civ. Prac. & Rem. Code
Ann. § 74.351(r)(6) (West 2017). A court must grant a
motion challenging the adequacy of an expert report only if
it appears that the report "does not represent an
objective good faith effort to comply with the definition of
an expert report." Id. § 74.351(1) (West
2017). To constitute a "good-faith effort, " the
report must provide "information sufficient to (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.'" Jelinek v. Casas, 328
S.W.3d 526, 539 (Tex. 2010) (quoting Bowie Mem'l
Hosp. v. Wright, 79 S.W.3d 48, 52 (Tex. 2002) (per
limited to "the four corners of the expert report, which
need not 'marshal all the plaintiff's proof' but
must include the expert's opinion on each of the three
main elements: standard of care, breach, and causation."
Id. (quoting Wright, 79 S.W.3d at 52). Bare
conclusions will not suffice, Scoresby v. Santillan,
346 S.W.3d 546, 556 (Tex. 2011), nor will an expert's
simple ipse dixit, Columbia Valley Healthcare
Sys., L.P. v. Zamarripa, 526 S.W.3d 453, 460 (Tex.
2017), nor may omissions be supplied by inference,
Scoresby, 346 S.W.3d at 556. The report must explain
the basis for the expert's statements and link his
conclusions to the facts. Zamarripa, 526 S.W.3d at
460. In other words, the report "must make a good-faith
effort to explain, factually, how proximate cause is going to
be proven." Id. A report that relies on
inference, such as that the alleged breach precluded a
quicker diagnosis and treatment, fails the good-faith
standard. Ortiz v. Patterson, 378 S.W.3d 667, 674
(Tex. App.-Dallas 2012, no pet.). However, a plaintiff need
not present evidence in ...