In this fractured opinion, the Court considered under what circumstances a trial court might abuse its discretion in denying a thirty-day extension to cure an expert report. In this case, the COA remanded the case back to the trial court for further proceedings. The Supreme Court agreed with the decision, but had no common reason for doing so. Justice Medina summarized the breakdown as, "Three members of the Court essentially agree with the court of appeals' analysis, three members disagree with that analysis and would reverse and render, and three members disagree with the court of appeals' analysis but would nevertheless remand in the interests of justice."
As is the case in almost all challenges to expert reports, the physician challenged the report as deficient as to how the care rendered caused the injury, harm or damages claimed. The trial court granted the motion and did not allow a thirty-day extension of time to cure the deficiency.
On appeal, Wooten claimed that he should have received the thirty-day extension. The COA held that the report was deficient "because it did "not represent a good-faith effort to summarize the causal relationship between Dr. Samlowski's failures to meet the applicable standards of care and Wooten's claimed injury, harm, and damages." But the COA then remanded the case back to the trial court to allow additional time to cure the deficiency, noting that the report was a good-faith attempt to comply with the statute that could be cured with a supplemental report.
On petition for review, Dr. Samlowski argued that the positions taken by the COA were at odds. Either the report was a not a good-faith effort and dismissal was warranted or it was a good-faith effort and a supplemental report should be allowed. It could not be both. He argued that the court of appeals was substituting its judgment for that of the trial court in finding that the report could be easily cured. Wooten argued that the trial court's discretion should be judged by the good faith efforts shown in the deficient report.
Judgment of the Court
The Supreme Court first explained that Section 74.351(c), which governs the thirty-day extension, provides no guidance on how the trial court should exercise its discretion in allowing these distinctions. "Guidance must come instead from the broader purposes of the Texas Medical Liability Act of which section 74.351(c) is a part." The Court looked at the principle of the Medical Liability Act which is to deter frivolous claims and preserve meritorious claims. In order to do this, the trial courts must consider whether the report is capable of being cured within the thirty-day period. "A trial court should therefore grant an extension when a deficient expert report can readily be cured and deny the extension when it cannot."
Justice Medina went on to explain the procedure that the claimant should follow if the report is deemed deficient and no extension is granted:
The claimant must therefore be prepared to cure a deficient expert report whether or not the trial court grants the claimant's motion. When, as in this case, the trial court simultaneously finds the expert report deficient, denies a motion to cure, and dismisses the underlying health care liability claim, the claimant must move the court to reconsider and promptly fix any problems with the report. This should further be done within the statutory, thirty-day period, thereby demonstrating that the report would have been cured had the extension been granted. If this is accomplished and the court refuses to reconsider, the now compliant report will typically establish the trial court's abuse of discretion.
Justice Medina then concedes that the report in this case was described as thorough and well-detailed, implying that a cure was likely possible. He points out that the statute was silent on what should have been done in this case to preserve the parties' rights. As a result, he agreed with remand to the trial court.
Read Justice Medina's opinion at Judgment of the Court
Concurrence
Justice Guzman disagreed with the procedures set forth by Justice Medina. She explained that the abuse of discretion should be judged by the initial report—not the amended report. She holds, "Therefore, as long as a claimant has filed a report (as defined by the statute), the specific deficiencies of a report should not determine whether the trial court should grant an extension. Rather, a trial court should be able to determine, based on the initial report, if a claim warrants an extension—that is, whether a claim could potentially have merit if the report were cured. A report from a qualified health care professional stating a belief that a plaintiff has a claim against a defendant, even though elements of the report are deficient, should be sufficient for a trial court to determine the curability of the report."
Justice Guzman ultimately held that the trial court abused its discretion in denying the motion for an extension to cure the report. She joined the judgment remanding the case to the trial court.
Read Justice Guzman's opinion at Concurrence.
Dissent and Concurrence
Justice Wainwright dissented in part, but concurred in the judgment. He also disagreed with Justice Medina's standard for reviewing extensions to cure expert reports as this procedure would increase time, costs, and undermine the purpose of the expert report requirement—which is to deter frivolous claims. He then argues that the standard of review for expert report challenges should be de novo. The review is based on documents, not assessment of witness testimony or other evidence. De novo review would promote consistency and predictability across the state. Applying de novo review, Justice Wainwright found that the report addressed all of the elements of the statute and that remand to the trial court for consideration of the extension was appropriate.
Read Justice Wainwright's opinion at Dissent and Concurrence.
Dissent
Justice Johnson and two other justices dissented from the judgment. He noted that the thirty-day extension was to be reviewed under the abuse of discretion standard and pointed out, "From the Legislature's establishing of a deadline for serving a report and directing that the suit shall be dismissed unless the deadline is met or the trial court grants an extension "in order to cure the deficiency," at least three criteria for the granting of an extension of time can be distilled. See TEX. CIV. PRAC. & REM. CODE § 74.351(c) (emphasis added). First, the deficient report must qualify as a report, albeit a deficient one. Second, the deficient report must have been served within the statutorily-specified time limit. Third, the deficient report will be cured during the extension if one is granted."
Because there was no evidence in the record to suggest that the report could have been cured if an extension were granted, the trial court did not abuse its discretion. Justice Johnson also pointed out that nothing prevented Wooten from curing the defects in the report. She did not file a supplemental report and did not seek rehearing of the trial court's ruling. Because she failed to avail herself of procedural measures, there was no basis to overturn the trial court's decision.
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