Court of Appeals of Texas, Twelfth District, Tyler
from the 7th District Court of Smith County, Texas (Tr.Ct.No.
consisted of Worthen, C.J., Hoyle, J., and Neeley, J.
Grismore appeals the trial court's order granting a
motion to dismiss filed by Texas Spine and Joint Hospital,
Ltd., PAC (TSJH). He presents three issues on appeal. We
reverse and remand.
sustained a foot injury in 2007. This injury resulted in a
complex regional pain syndrome. When the pain syndrome could
not be controlled by other therapies, Grismore underwent
surgery at East Texas Medical Center (ETMC) to have a
Medtronic Restore Ultra 37712 spinal cord stimulator
implanted in March 2008. The leads on the stimulator were
replaced in June 2008 at ETMC. Grismore's medical records
reflect that Grismore complained of swelling and discomfort
when he used the stimulator. He also noted that the
stimulator overheated when it was recharged and that, as a
result, Grismore did not use the device regularly.
February 2015, Grismore underwent surgery at TSJH at which
time the Medtronic stimulator's battery was replaced with
a RestoreSENSOR SureScan MRI 97114 battery. Following this
replacement, Grismore complained of pain, spasms, and shocks.
He further reported several elevated blood pressure readings.
Grismore indicated to his home health practitioner that he
was unable to drive a vehicle and was homebound due to the
pain, weakness, and numbness to his extremities. The
Medtronic Restore Ultra 37712 spinal cord stimulator was
recalled in September 2013 and was followed by a recall of
the RestoreSENSOR SureScan MRI 97114 battery in November
2014. In August 2016, Grismore underwent another surgery
where the Medtronic Restore Ultra 37712 spinal cord
stimulator and RestoreSENSOR SureScan MRI 97114 battery were
replaced with a Nevro stimulator and battery.
March 2017, Grismore brought healthcare liability claims
against Medtronic, Inc., ETMC, and TSJH. He alleges that
TSJH was negligent by stocking the recalled Medtronic
RestoreSENSOR SureScan MRI 97114 battery after it was
recalled in November 2014 and by allowing it to be implanted
during the 2015 surgery.
compliance with Section 74.351 of the Texas Civil Practice
and Remedies Code, Grismore served TSJH with an expert report
and curriculum vitae of Dr. Terrence Shaneyfelt. TSJH filed
objections to Dr. Shaneyfelt's report, including
objections that he was unqualified to address the standard of
care applicable to TSJH and failed to adequately address
breach and causation. The trial court sustained TSJH's
objections but allowed Dr. Shaneyfelt's report to be
supplemented in accordance with Section 74.351(c) to cure the
deficiencies. The trial court notified the parties of its
ruling via e-mail, but the order sent to Grismore was
delivered to an email address other than the one
Grismore's attorney designated in the e-file system.
Grismore failed to supplement Dr. Shaneyfelt's expert
report within the statute's thirty-day time period to
cure any deficiencies.
TSJH filed an amended motion to dismiss because the report
was not timely supplemented, Grismore's attorney claimed
he first learned of the trial court's ruling and Dr.
Shaneyfelt's report was supplemented within the following
thirty days. After the filing of Grismore's response to
TSJH's amended motion to dismiss, the trial court granted
TSJH's amended motion to dismiss and severed the
dismissal of TSJH from the remainder of the case. This appeal
second issue, Grismore contends Dr. Shaneyfelt is qualified
to render an opinion with regard to TSJH's standard of
care, breach, and causation. In his third issue, Grismore
alleges that Dr. Shaneyfelt's report adequately addresses
standard of care, breach, and causation.
court's ruling on qualifications of a medical expert and
the sufficiency of an expert's report under Chapter 74 is
reviewed for an abuse of discretion. Van Ness v. ETMC
First Physicians, 461 S.W.3d 140, 142 (Tex. 2015);
Am. Transitional Care Ctrs. of Tex., Inc. v.
Palacios, 46 S.W.3d 873, 875 (Tex. 2001). A trial court
abuses its discretion if it acts without reference to guiding
rules or principles. Van Ness, 461 S.W.3d at 142.
However, in exercising its discretion, it is incumbent upon
the trial court to review the report, sort out its content,
resolve any inconsistencies, and decide whether the report
demonstrated a good faith effort to show that the
plaintiff's claims have merit. See id. at 144.
When reviewing factual matters committed to the trial
court's discretion, an appellate court may not substitute
its judgment for that of the trial court. Gray v. CHCA
Bayshore L.P., 189 S.W.3d 855, 858 (Tex. App.-Houston
[1st Dist.] 2006, no pet.).
the plaintiff timely serves an expert report, and the
defendant timely files a motion to dismiss to challenge the
adequacy of the report, the trial court may take one of three
actions. Mangin v. Wendt, 480 S.W.3d 701, 705 (Tex.
App.-Houston [1st Dist.] 2015, no pet.). First, if the trial
court concludes that the report is adequate, it must deny the
motion. Id. Second, if the trial court concludes
that the report does not constitute an objective good faith
effort to comply with the statute, it must grant the motion.
Id.; see Tex. Civ. Prac. & Rem. Code
§ 74.351(l) (West 2019). Third, if the trial
court concludes that the report is an objective good faith
effort to comply with the statute but is ...