Court of Appeals of Texas, Fifth District, Dallas
SUJEET ACHARYA, M.D., TEXAS ONCOLOGY, P.A., AND TEXAS UROLOGY SPECIALISTS, Appellants
BERNICE MARIE GOMEZ, Appellee
Appeal from the 160th Judicial District Court Dallas County,
Texas Trial Court Cause No. DC-17-12969
Justices Myers, Osborne, and Nowell
interlocutory appeal, we consider whether an expert report
filed by appellee Bernice Marie Gomez to support a healthcare
liability claim against appellants Sujeet Acharya, M.D.,
Texas Oncology, P.A., and Texas Urology Specialists meets the
requirements of section 74.351 of the civil practice and
remedies code. Tex. Civ. Prac. & Rem. Code § 74.351.
We conclude that it does, and we affirm the trial court's
order overruling appellants' objections to the report and
denying appellants' motion to dismiss.
was diagnosed with a malignant tumor in her left adrenal
gland that was causing her abdominal pain. Dr. Acharya
performed surgery on Gomez on November 14, 2016, to remove
the cancerous adrenal gland. But a post-surgical pathology
report revealed that only benign tissue from Gomez's
pancreas had been removed, not the cancerous adrenal tissue.
In the following weeks, Gomez required treatment for her
injured pancreas. She continued to suffer from worsening
abdominal pain and had not received further treatment for her
malignant adrenal tumor as of June 1, 2017.
sued appellants,  alleging that Dr. Acharya was negligent in
the care provided to her. She served an expert report as
required under Chapter 74 of the civil practice and remedies
code. Tex. Civ. Prac. & Rem. Code §§
74.001-74.507 ("Chapter 74"). Richard E. Link,
M.D., Ph.D prepared the report on Gomez's behalf.
Appellants filed a motion to dismiss Gomez's claims,
arguing that the report did not meet Chapter 74's
requirements. An associate judge granted the motion and gave
Gomez an opportunity to amend the report as permitted under
Chapter 74. Dr. Link revised his report and appellants filed
a motion to dismiss that addressed the revised report. The
trial court heard the motion, overruled appellants'
objections to Dr. Link's revised report, and denied the
motion to dismiss by order signed June 20, 2018.
issues, appellants contend the trial court erred by
overruling their objections to Gomez's Chapter 74 expert
report and denying their motion to dismiss. They allege:
1. Dr. Link is not qualified to opine regarding causation;
2. The report "ignored the facts" regarding Dr.
Acharya's communications with Gomez after the surgery;
3. The report does not "accurately report the facts of
the case" regarding the care Dr. Acharya exercised
4. The report fails to specify a clear standard of care; and
5. The report fails to explain the causal connection between
the alleged breaches of the standard of care and the alleged
review a trial court's ruling on the sufficiency of an
expert's report for abuse of discretion. Van Ness v.
ETMC First Physicians, 461 S.W.3d 140, 142 (Tex. 2015)
(per curiam); Nexion Health at Terrell Manor v.
Taylor, 294 S.W.3d 787, 791 (Tex. App.-Dallas 2009, no
pet.). A trial court abuses its discretion if it acts
arbitrarily, unreasonably, or without reference to any
guiding rules or principles. Jelinek v. Casas, 328
S.W.3d 526, 539 (Tex. 2010). The trial court has no
discretion in determining what the law is or applying the law
to the facts. Sanchez v. Martin, 378 S.W.3d 581, 587
(Tex. App.-Dallas 2012, no pet.). 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) ...