Court of Appeals of Texas, Fifth District, Dallas
JMA PARTNERS, INC. D/B/A GUARDIAN PHARMACY SERVICES AND JACK R.MUNN, Appellants
JESUS GUZMAN, Appellee
Appeal from the 95th District Court Dallas County, Texas
Trial Court Cause No. DC-17-06313
Justices Brown, Schenck, and Pedersen, III
interlocutory appeal, we consider whether expert reports
filed by appellee Jesus Guzman to support his health care
liability claims against appellants JMA Partners, Inc. d/b/a
Guardian Pharmacy Services and its president Jack R. Munn
(together, Guardian) meet the requirements of chapter 74 of
the civil practice and remedies code, the Texas Medical
Liability Act (TMLA). See Tex. Civ. Prac. & Rem.
Code Ann. § 74.351. We conclude they do and affirm the
trial court's order overruling Guardian's objections
to the reports and denying Guardian's motion to dismiss.
February 2017, Guzman underwent a routine cataract surgery
during which the surgeon, Jeffrey Whitman, M.D. of the
Key-Whitman Eye Center (Key-Whitman), injected a
triamcinolone/moxifloxacin with Pluronic antibiotic and
steroid medication (Tri-Moxi) into Guzman's eye. Guzman
alleges the Tri-Moxi, which was compounded by Guardian,
caused permanent damage to his eye. Guzman sued Guardian,
alleging strict liability in tort, negligence, and gross
negligence, and served expert reports by John Scott
Karolchyk, MS, RPh, FIACP, and Wesley K. Herman, M.D.
moved to dismiss Guzman's claims, arguing the expert
reports did not satisfy the TMLA requirement for a fair
summary of the experts' opinions regarding the applicable
standards of care, the failure to meet those standards, and
the causal relationship between the failure and Guzman's
injury. See Civ. Prac & Rem. §
74.3351(r)(6). Following a hearing, the trial court denied
Guardian's motion, and Guardian filed this interlocutory
appeal. In two issues, Guardian contends the trial court
abused its discretion in overruling its objections to the
expert reports and denying its motion to dismiss or,
alternatively, should have provided a thirty-day extension
for Guzman to attempt to cure the deficiencies in the
plaintiff who files a health care liability claim must serve
an expert report on each defendant early in the proceedings.
Civ. Prac. & Rem. § 74.351(a).An expert report is sufficient
if it "provides a fair summary of the expert's
opinions . . . regarding applicable standards of care, the
manner in which the care rendered . . . failed to meet the
standards, and the causal relationship between the failure
and the injury, harm, or damages claimed." Id.
§ 74.351(r)(6). A trial court should grant a motion
challenging the adequacy of a 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 in Subsection (r)(6)."
Id. § 74.351(1).
report need not marshal all of a plaintiff's proof, but
must include the expert's opinions on the standard of
care, breach, and causation. Baty v. Futrell, 543
S.W.3d 689, 693-94 (Tex. 2018) (citing Am. Transitional
Care Ctrs. of Tex., Inc. v. Palacios, 46 S.W.3d 873,
877-79 (Tex. 2001)). The report 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 the claims have merit. Palacios, 46 S.W.3d
at 880 (although a fair summary "is something less than
a full statement of the applicable standard of care and how
it was breached," it must "set out what care was
expected, but not given"). A report "must make a
good-faith effort to explain, factually, how proximate cause
is going to be proven," although the report need not use
the words "proximate cause,"
"foreseeability," or "cause in fact."
Columbia Valley Healthcare Sys., L.P. v. Zamarripa,
526 S.W.3d 453, 460 (Tex. 2017). "A conclusory statement
of causation is inadequate; instead, the expert must explain
the basis of his statements and link conclusions to specific
trial court must consider an expert report in its entirety,
rather than isolating specific portions or sections, to
determine whether it includes the required information.
See Van Ness v. ETMC First Physicians, 461 S.W.3d
140, 144 (Tex. 2015) (per curiam); see also Austin Heart,
P.A. v. Webb, 228 S.W.3d 276, 282 (Tex. App.-Austin
2007, no pet.) ("The form of the report and the location
of the information in the report are not dispositive.").
Additionally, one expert need not address the standard of
care, breach, and causation; multiple expert reports may be
read together to determine whether the requirements have been
met. See Civ. Prac. & Rem. § 74.351(i).
review a trial court's ruling on a motion to dismiss
under section 74.351 for an abuse of discretion.
Baty, 543 S.W.3d at 693 n.4; Children's Med.
Ctr. of Dall. v. Durham, 402 S.W.3d 391, 395 (Tex.
App.-Dallas 2013, no pet.). A trial court abuses its
discretion when it acts arbitrarily and without reference to
guiding rules or principles. Nexion Health at
Duncanville, Inc. v. Ross, 374 S.W.3d 619, 622 (Tex.
App.-Dallas 2012, pet. denied). In analyzing a report's
sufficiency, we consider only the information contained
within the four corners of the report. See Palacios,
46 S.W.3d at 878.
served Guardian with two expert reports. One report was
prepared by John Scott Karolchyk, MS, RPh, FIACP, a
formulation developer and compounding pharmacist who
developed the "true" Tri-Moxi injectable
formulation with Jeffrey Liegner, M.D., and patented it with
Imprimis Pharmaceuticals in 2013. Liegner contacted Karolchyk
on Dr. Whitman's behalf about potential retinal toxicity
associated with a version of the formulation compounded by
Guardian, and Karolchyk agreed to consult for Key-Whitman.