Samlowski MD v. Wooten, Carol, No. 08-0667 (Tex. Feb. 25, 2011)(Medina) (HCLC deadline
extension for expert report)
Texas Civil Practice and Remedies Code section 74.351 requires that a trial court dismiss a health care liability claim unless
the claimant serves an expert report within 120 days after filing suit. Tex. Civ. Prac. & Rem. Code § 74.351(b). This dismissal
requirement is subject to the trial court’s discretion to grant one thirty-day extension for the claimant to cure a timely served but
deficient report. Id. § 74.351(c). The trial court in this health care liability case determined that claimant’s timely served report
was deficient and dismissed her suit without granting her request for an extension of time to cure the report. The court of
appeals agreed the report was deficient but concluded the trial court abused its discretion by denying the requested extension.
282 S.W.3d 82, 91.
We granted the petition to consider under what circumstances a trial court might abuse its discretion when denying such an
extension. Like most cases involving trial court discretion, a single rule will not fit every situation, but generally a trial court should
grant an extension when the deficient report can be cured within the thirty-day period the statute permits. The court of appeals
concluded, among other things, that the case should be remanded to the trial court for further proceedings, and a majority of the
Court agrees with that judgment. There is no majority reasoning for why we remand, however. 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. I am
in this last group.
EBERHARD SAMLOWSKI, M.D. v. CAROL WOOTEN; from Johnson County; 10th district (10-07-00305-CV, 282 SW3d 82, 05-21-
08)
The Court modifies the court of appeals' judgment and affirms that judgment as modified.
Justice Medina announced the judgment of the Court and delivered an opinion, in which Chief Justice Jefferson and Justice
Hecht joined. [12-page opinion in pdf]
Justice Guzman filed an opinion concurring in the judgment, in which Justice Lehrmann joined and in which Justice Wainwright
joined Parts I & II.B. [8-page opinion in pdf]
Justice Wainwright delivered an opinion dissenting in part and concurring in the judgment. [6-page opinion in pdf]
Justice Johnson delivered a dissenting opinion, in which Justice Green and Justice Willett joined. [12-page opinion in pdf]
View Electronic Briefs in Case No. 08-0667 EBERHARD SAMLOWSKI, M.D. v. WOOTEN
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Samlowski M.D. v. Wooten, Carol (Tex. 2011)(Medina)
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Argued November 18, 2009
Opinion Delivered: February 25, 2011.
Justice Medina announced the judgment of the Court and delivered an opinion in which Chief Justice Jefferson and Justice
Hecht joined.
Justice Guzman filed an opinion concurring in the judgment in which Justice Lehrmann joined and in Parts I & II.B of which
Justice Wainwright joined.
Justice Wainwright filed an opinion dissenting in part and concurring in the judgment.
Justice Johnson filed a dissenting opinion in which Justice Green and Justice Willett joined.
DAVID M. MEDINA, Justice.
Texas Civil Practice and Remedies Code section 74.351 requires that a trial court dismiss a health care liability claim unless
the claimant serves an expert report within 120 days after filing suit. TEX. CIV. PRAC. & REM. CODE § 74.351(b). This dismissal
requirement is subject to the trial court's discretion to grant one thirty-day extension for the claimant to cure a timely served but
deficient report. Id. § 74.351(c). The trial court in this health care liability case determined that claimant's timely served report
was deficient and dismissed her suit without granting her request for an extension of time to cure the report. The court of
appeals agreed the report was deficient but concluded the trial court abused its discretion by denying the requested extension.
282 S.W.3d 82, 91.
We granted the petition to consider under what circumstances a trial court might abuse its discretion when denying such an
extension. Like most cases involving trial court discretion, a single rule will not fit every situation, but generally a trial court should
grant an extension when the deficient report can be cured within the thirty-day period the statute permits. The court of appeals
concluded, among other things, that the case should be remanded to the trial court for further proceedings, and a majority of the
Court agrees with that judgment. There is no majority reasoning for why we remand, however. 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. I am
in this last group.
Because the record does not establish that the deficient expert report would have been cured if the extension had been granted
in this case, I cannot say that the trial court abused its discretion in denying the extension. Although I disagree with the court of
appeals' analysis of the statute and its application of the abuse of discretion standard, I conclude that the interests of justice
require a remand to the trial court in this case. Accordingly, I would affirm the court of appeals' judgment remanding this cause
as modified by this opinion.
I
Carol Wooten was admitted to Walls Regional Hospital in Cleburne, complaining of severe abdominal pain. Dr. Eberhard
Samlowski assumed Wooten's primary care and two days later performed laparascopic gall bladder surgery. The surgery failed
to relieve Wooten's pain. Following additional tests and a consult recommending further surgery to explore the abdomen, Dr.
Samlowski performed an exploratory laparotomy that revealed a complete bowel obstruction with perforations in the pelvic
region. Dr. Samlowski attempted to repair the perforations and adhesions he found during this surgery.
Postoperative complications resulted in Wooten's transfer to Hughley Memorial Medical Center in Fort Worth. Her admission
diagnosis there included postoperative cholecystectomy and repair of bowel perforation, sepsis syndrome, acute respiratory
distress syndrome, renal insufficiency/failure, acute blood loss anemia, respiratory failure, type 2 diabetes mellitus, and
sarcoidosis. Four additional surgical procedures were performed on Wooten at Hughley where she remained for over sixty days.
Wooten subsequently sued Dr. Samlowski for medical negligence, serving Dr. R. Don Patman's expert report 105 days later.[1]
In this report, Dr. Patman discusses the standard of care and several instances where Dr. Samlowski's care fell short. In Dr.
Patman's opinion, the patient's lab results, complaints, and history did not indicate the need for gall bladder surgery. Instead, Dr.
Patman states that Dr. Samlowski should have performed additional tests to discover the actual cause of the patient's acute
abdominal pain—a complete pelvic bowel obstruction with several areas of necrosis and perforation. Regarding causation, Dr.
Patman concludes that Dr. Samlowski's inaccurate diagnosis and incomplete preoperative evaluation proximately caused the
patient's subsequent complications and prolonged hospitalization, and that in all likelihood the patient would require future
treatment and additional surgery.
Dr. Samlowski promptly filed a motion challenging the report as "wholly deficient in providing any expert opinions regarding
specifically how the care [he] rendered . . . proximately caused the injury, harm, or damages claimed." Dr. Samlowski
subsequently filed a motion to dismiss after the statutory deadline for serving expert reports had passed. Wooten responded to
both motions, arguing that her expert report was sufficient, but also asking for a thirty-day extension to cure the report, if the trial
court found it deficient.
The trial court heard the motions and a few days later signed an order dismissing Wooten's case. No record was made at the
hearing. The court's order expressly granted both of Dr. Samlowski's motions but did not mention Wooten's request for a thirty-
day extension to cure. The court's order, however, disposed of Wooten's pending motion by reciting that all relief not expressly
granted was denied. Wooten appealed.
A divided court of appeals reversed and remanded with directions that Wooten be granted a thirty-day extension. 282 S.W.3d 82,
91. Although the court agreed that the expert report was deficient, it nevertheless concluded that the trial court had abused its
discretion[2] by not giving Wooten additional time to cure that deficiency. Id. at 90-91. The report was deficient, according to the
court of appeals, 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." Id. at 90 (citing TEX. CIV.
PRAC. & REM. CODE § 74.351(r)(6)). But the court concluded that the trial court should have given Wooten additional time to
cure that deficiency because the expert report was a "good-faith attempt" to comply with the statute that could easily be cured
with a supplemental report. Id. at 91. A dissent argued that the trial court had not abused its discretion in dismissing the
underlying lawsuit because the report was not "an objective good faith effort to comply with the [statutory] definition of an expert
report." Id. at 93 (Gray, C.J. dissenting).
II
Dr. Samlowski's argument here is similar to the dissent in the court of appeals. He complains the court's concession that
Wooten's expert report was not a "good faith effort" conflicts with its abuse-of-discretion holding and submits that the former
negates the latter. He further submits that the court of appeals' characterization of the report as a "good faith attempt" is a
meaningless distinction through which the court has merely substituted its judgment for that of the trial court. Dr. Samlowski
thus views a good faith effort in producing an expert report as the predicate for the trial court's discretion under section 74.351(c).
Wooten, on the other hand, argues that trial court discretion under section 74.351(c) should be judged by the relative good faith
exhibited in a deficient expert report. The court of appeals' opinion similarly adopts this view, suggesting that the deficiency in Dr.
Patman's report was too small to permit the denial of Wooten's motion to cure. 282 S.W.3d at 90. Wooten concludes that the
court of appeals' judgment should be affirmed because a fair reading of Dr. Patman's report shows that her claim has merit and
the report's defect easily cured.[3]
Neither party's argument proposes a reasonable scheme for the exercise or review of the trial court's discretion under section
74.351(c). Dr. Samlowski's argument suggests that trial court discretion in this instance is absolute, while Wooten's indicates
that appellate review is not for abuse of discretion, but de novo. Both arguments are based on a similar faulty premise: that trial
court discretion under section 74.351(c) should be measured or controlled by some notion of good faith. Good faith, however, is
not mentioned in section 74.351(c).
Subsection (c) merely states that "the court may grant one 30-day extension" if elements of the expert report are deficient. TEX.
CIV. PRAC. & REM. CODE § 74.351(c).[4] The term "good faith" is used in the statute, but it appears in a later provision
discussing motions that challenge "the adequacy of the expert report." Id. § 74.351(l). Subsection (l) states that "[a] court shall
grant a motion challenging the adequacy of an expert report [when] the report does not represent an objective good faith effort to
comply with the definition of an expert report[.]" TEX. CIV. PRAC. & REM. CODE § 74.351(l) (emphasis added).
We have explained that a "good faith effort" in this context simply means a report that does not contain a material deficiency.
Therefore, an expert report that includes all the required elements, Jernigan v. Langley, 195 S.W.3d 91, 94 (Tex. 2006), and that
explains their connection to the defendant's conduct in a non-conclusory fashion, Bowie Memorial Hospital v. Wright, 79 S.W.3d
48, 53 (Tex. 2002), is a good faith effort. In contrast, a report that omits an element or states the expert's opinions in conclusory
form is not a good faith effort. Am. Transitional Care Ctrs. of Tex., Inc. v. Palacios, 46 S.W.3d 873, 879 (Tex. 2001). Under these
cases, a "good faith effort" will produce an adequate expert report for which no extension under section 74.351(c) is needed. A
deficient expert report then is the predicate for the exercise of the trial court's discretion under section 74.351(c), and not, as Dr.
Samlowski suggests, proof that the trial court decided the matter correctly.
Dr. Samlowski's complaint that the court of appeals has merely substituted its judgment for that of the trial court, however, is
more troubling. The court of appeals described Dr. Patman's report as "thorough, well-detailed, and—except for one small and
easily curable deficiency—patently and sufficiently specific." 282 S.W.3d at 90. But the underlying merit of Wooten's claim and the
relative ease of curing Dr. Patman's report are matters in dispute. It is not enough that the court of appeals would have decided
the dispute differently because the abuse of discretion standard generally "insulates the trial judge's reasonable choice from
appellate second guessing." W. Wendell Hall, Standards of Review in Texas, 38 ST. MARY'S L. J. 47, 62 (2006). As we have
said, "to find an abuse of discretion [when factual matters are in dispute], the reviewing court must conclude that the facts and
circumstances of the case extinguish any discretion in the matter." Johnson v. Fourth Court of Appeals, 700 S.W.2d 916, 918
(Tex. 1985).
A trial court therefore abuses its discretion when it renders an arbitrary and unreasonable decision lacking support in the facts
or circumstances of the case. Goode v. Shoukfeh, 943 S.W.2d 441, 446 (Tex. 1997). Similarly, a trial court abuses its discretion
when it acts in an arbitrary or unreasonable manner without reference to guiding rules or principles. Mercedes-Benz Credit Corp.
v. Rhyne, 925 S.W.2d 664, 666 (Tex. 1996) (citing Downer v. Aquamarine Operators, Inc., 701 S.W.2d 238, 241 (Tex. 1985).
Section 74.351(c)'s text, however, provides no particular guidance on how the court should exercise its discretion, stating merely
that "the court may grant one 30-day extension to the claimant in order to cure [a timely but deficient report]." See TEX. CIV. PRAC.
& REM. CODE § 74.351(c). Guidance must come instead from the broader purposes of the Texas Medical Liability Act of which
section 74.351(c) is a part.
III
A core purpose of this legislation was to identify and eliminate frivolous health care liability claims expeditiously, while
preserving those of potential merit. Act of June 2, 2003, 78th Leg., R.S., ch. 204, § 10.11(b)(1), (3), 2003 Tex. Gen. Laws 847, 884
(seeking to reduce frivolous claims but "in a manner that will not unduly restrict a claimant's rights any more than necessary to
deal with the crisis"); see also Leland v. Brandal, 257 S.W.3d 204, 208 (Tex. 2008) (noting that in "section 74.351, Legislature
struck a careful balance between eradicating frivolous claims and preserving meritorious ones"). To further this goal, the statute
sets a deadline for the claimant to substantiate the underlying health care liability claim with expert reports.
The claimant is required to serve each defendant physician or other health care provider with an expert report within 120 days of
filing suit. TEX. CIV. PRAC. & REM. CODE § 74.351(a). This report must provide a fair summary of the expert's opinions
"regarding applicable standards of care, the manner in which the care rendered by the physician or health care provider failed to
meet the standards, and the causal relationship between that failure and the injury, harm, or damages claimed." Id. § 74.351(r)
(6). If the report is deficient, it may be challenged, and a deficient report may likewise lead to dismissal. Id. § 74.351(a), (b) & (l).
But a deficient report does not invariably require dismissal of the underlying health care liability claim. The statute incorporates a
significant exception "explicitly giv[ing] trial courts discretion to grant a thirty day extension so that parties may, where possible,
cure deficient reports." Ogletree v. Matthews, 262 S.W.3d 316, 320 (Tex. 2007) (citing TEX. CIV. PRAC. & REM. CODE § 74.351
(c)).
The overriding principle guiding trial court discretion under section 74.351(c) then is the elimination of frivolous claims and the
preservation of meritorious ones. An adequate expert report is how the statute distinguishes between the two. A trial court
should therefore grant an extension when a deficient expert report can readily be cured and deny the extension when it cannot. In
making that determination, a trial court may sometimes err and dismiss a claim when the report could have been cured. A
reasonable error in judgment, however, is not an abuse of discretion. See Walker v. Packer, 827 S.W.2d 833, 839-40 (Tex. 1992)
(noting that reviewing court may not substitute its judgment as to factual matters committed to trial court's discretion).
Wooten has conceded in this Court that her report was deficient but maintains that she was entitled to an extension because her
expert report could easily have been cured. The court of appeals agreed, but this is only the court's best judgment in the matter.
The record does not establish that the deficient report would have been cured if the extension had been granted, and a
claimant's mere assertion or belief that it could have been cured with an extension of time does not demonstrate an abuse of
discretion under section 74.351(c). When the trial court denies a motion to cure, the claimant must make a record that
demonstrates the deficiency would have been cured.
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. Wooten didn't make such a record in the trial court,
and thus we are left to speculate about whether she could have cured her expert report with an extension.
IV
I, however, agree with Justice Guzman's view that "trial courts should err on the side of granting claimants' extensions to show
the merits of their claims." ___ S.W.3d at ___. The right answer in many cases will be for the trial court to grant one thirty-day
extension upon timely request and be done with it. Justice Guzman agrees that this report was deficient, but good enough to
warrant an extension, and again I do not disagree.
The statute, however, grants the trial court discretion in the matter, and Justice Guzman's analysis appears to be no different
from that of the court of appeals, which I view as merely a substitution of the appellate court's discretion for that of the trial court.
Under her analysis, it remains unclear how we are to distinguish between deficient reports that demonstrate merit and deficient
reports that do not, other than by Justice Potter Stewart's famous maxim: "I know it when I see it." Jacobellis v. Ohio, 378 U.S.
184, 197 (1964) (Stewart, J. concurring) (stating his test for determining hard-core pornography outside the bounds of
constitutional protection). Because the expert report was deficient as served, I cannot agree unequivocally that the trial court
abused its discretion when denying the motion to cure. See TEX. CIV. PRAC. & REM. CODE § 74.351(b) (stating that if an expert
report has not been served, the court shall, subject to the court's discretionary power to grant one 30-day extension, dismiss the
claim).
V
Although the record in this case does not clearly indicate that the trial court abused its discretion, Dr. Patman's report is largely
as described by the court of appeals—"thorough and well-detailed." 282 S.W.3d at 90. The court of appeals was plainly
concerned about whether justice had been done in the trial court. And although the claimant did not follow the procedure I set out
in this opinion, I too am not unsympathetic. A claim is not typically saved by doing precisely what the trial court has refused
permission to do. But when a motion to cure under section 74.351(c) is denied, the claimant must act to correct any problems
with the expert report in a timely manner to demonstrate an abuse of discretion.
The statute, however, does not express the procedure I have outlined today. Because the statute is silent on the principles and
procedure that should control the trial court's discretion in this area and the arguments of the parties unfocused as a result, I
conclude that the interests of justice will best be served by a remand to the trial court. See, e.g., Low v. Henry, 221 S.W.3d 609,
621 (Tex. 2007) (remanding "to allow the parties to present evidence responsive to our [new] guidelines"); Humble Sand &
Gravel, Inc. v. Gomez, 146 S.W.3d 170, 195 (Tex. 2004) ("Because the parties have not focused on the issue we think is crucial,
we conclude that the interests of justice would be best served by a new trial.").
* * *
The court of appeals' judgment is modified to reflect a remand to the trial court for further proceedings, and the court's judgment,
as modified, is affirmed.
Justice GUZMAN, joined by Justice Lehrmann, and by Justice Wainwright as to Parts I and II-B, concurring.
I agree with the Court that the proper disposition is to remand this case to the trial court for further proceedings; accordingly, I
join the Court's judgment. However, I do not join Justice Medina's opinion because I disagree with the new procedure Justice
Medina sets out to challenge a trial court's failure to grant a thirty-day extension to cure. Additionally, I disagree with Justice
Medina's conclusion that the trial court did not abuse its discretion.
I. Procedural Issues
At issue in this case is whether the trial court abused its discretion by denying Carol Wooten a thirty-day extension to cure her
inadequate expert report.See TEX. CIV. PRAC. & REM. CODE § 74.351(c). Justice Medina holds the trial court did not abuse its
discretion, but then proceeds into new territory to address the manner in which a claimant must challenge a trial court's denial of
a motion to cure. Justice Medina concludes that when a trial court finds an expert report inadequate and denies a motion to cure,
the claimant "must move the court to reconsider and promptly fix any problems." ___ S.W.3d at ___ (emphasis added). Justice
Medina states that a subsequently filed compliant report will demonstrate the trial court abused its discretion by failing to grant
the extension. Id. Justice Medina's approach thus establishes a new procedure for challenging the denial of a motion to cure.
But rules already exist governing the manner in which a person may challenge the trial court's denial of a motion to cure, see, e.
g., TEX. CIV. PRAC. & REM. CODE § 74.351(c); TEX. R. CIV. P. 329b (establishing timeline for filing certain motions); Tex. R. App.
P. 26.1 (establishing timeline for perfecting appeal), and it is unclear how these rules intersect with the procedure created in
Justice Medina's opinion. For example, what if a plaintiff believes the initially-served report is not deficient and seeks to
challenge the trial court's finding on that issue as well as the failure to grant an extension, as Carol Wooten did in this case? Is
that plaintiff also required to submit a new report and, if so, would that action waive the plaintiff's complaint that the initial report
was not deficient? Additionally, when a claimant files a new report after the trial court has denied a motion for extension, what
happens if a trial court declines to timely set a motion for reconsideration for hearing? Is a claimant then required to challenge
the trial court's failure to set the motion for a hearing, further delaying resolution of the question of whether the trial court
erroneously denied the extension in the first place? Or must the court of appeals consider whether the amended report is
sufficient to establish the trial court abused its discretion in denying an extension? Justice Medina also does not address when
the appellate deadlines begin to run—whether from the time the trial court signs the order of dismissal or, because a claimant
must move the court to reconsider, from the denial of a motion to reconsider. Nor does Justice Medina consider whether this
deadline is different if a claimant chooses not to file an amended report, but to stand on the initial report filed.
Aside from the procedural questions raised, Justice Medina erroneously concludes that an amended report filed after the trial
court has denied a motion for extension will "typically establish the trial court's abuse of discretion." ___ S.W.3d at ___. It is well-
established that a reviewing court is to determine whether a trial court abused its discretion based on the record before the trial
court at the time the decision was made. Univ. of Tex. v. Morris, 344 S.W.2d 426, 429 (Tex. 1961); see Owens-Corning Fiberglas
Corp. v. Malone, 972 S.W.2d 35, 52 n.7 (Tex. 1998). I believe, based on this principle and the purposes of the expert report
requirement and the thirty-day extension to cure, that rather than considering an amended report submitted after the trial court
has denied an extension, a reviewing court should analyze whether a trial court abused its discretion based on the expert report
initially submitted.
II. Abuse of Discretion
A. Discretion in Reviewing Expert Reports
If a trial court finds an expert report deficient, it "may" grant one thirty-day extension to cure the report. TEX. CIV. PRAC. & REM.
CODE § 74.351(c). This statutory authority is couched in permissive terms, but it is not unfettered. See In re Pirelli Tire, L.L.C.,
247 S.W.3d 670, 676 (Tex. 2007) (orig. proceeding). While "may" gives a trial court discretion, discretionary decisions must not
be arbitrary or unreasonable and must be made with reference to guiding principles. Id. (citing Goode v. Shoukfeh, 943 S.W.2d
441, 446 (Tex. 1997)); Womack v. Berry, 291 S.W.2d 677, 683 (Tex. 1956) (orig. proceeding) (noting that use of the permissive
word "may" does not vest a court with unlimited discretion, but requires a trial court to exercise that discretion within "limits
created by the circumstances of the particular case"). The principles that are to guide a trial court's discretionary decision are
determined by the purposes of the rule at issue. See In re Van Waters & Rogers, Inc., 145 S.W.3d 203, 207 (Tex. 2004) (orig.
proceeding); Womack, 291 S.W.2d at 683. Justice Medina acknowledges this and looks to the "broader purposes" of the Texas
Medical Liability Act (TMLA) to determine the principles that should guide a trial court's determination of whether to grant an
extension. ___ S.W.3d at ___. But the purpose of the actual rule permitting a trial court to grant an extension must also be
considered. See TEX. CIV. PRAC. & REM. CODE § 74.351(c).
B. Scope of the Trial Court's Review
One stated purpose of section 74.351 is to "reduce excessive frequency and severity of health care liability claims." Leland v.
Brandal, 257 S.W.3d 204, 208 (Tex. 2008) (quoting Act of June 2, 2003, 78th Leg., R.S., ch. 204, § 10.11(b)(1), 2003 Tex. Gen.
Laws 847, 884). The expert report requirement helps accomplish this purpose by providing a basis for the trial court to
determine a claim has merit.Id. at 206-07. Justice Medina and the dissent both conclude that factors other than the report should
be considered to determine whether the trial court abused its discretion by denying an extension. But if one purpose of the report
is to inform the trial court of the merits of a claim, then the purpose of an extension is to provide a claimant the opportunity to
amend a report to a point that would allow the trial court to make that determination. We have previously held that a trial court
should look no further than the four corners of an expert report when considering a motion challenging the adequacy of the
report because all the information relevant to that inquiry is contained within the report. See Bowie Mem'l Hosp. v. Wright, 79 S.W.
3d 48, 52 (Tex. 2002). Section 74.351(l) does not explicitly state that a trial court may not look beyond the report to determine
adequacy, but we have held this is so because the statute specifically focuses on what the report discusses. Am. Transitional
Care Ctrs. of Tex., Inc. v. Palacios, 46 S.W.3d 873, 878 (Tex. 2001). The same is true in a trial court's consideration of a motion
for extension: the extension provision focuses only on the report itself. See TEX. CIV. PRAC. & REM. CODE § 74.351(c) (providing
that a trial court may grant an extension if "elements of the report are found deficient"). Further, the expert report requirement is
not a substitute for a trial on the merits—just as a trial court should not consider the defendant's pleadings and other evidence
when ruling on a motion to dismiss on adequacy grounds, the trial court should similarly refrain from considering these
extraneous matters when considering a motion for an extension to cure. See Palacios, 46 S.W.3d at 878.
Even though the trial court should only consider the expert report when determining whether to grant an extension, that is not to
say a claimant is only entitled to an extension when the report contains specific information or is not entitled to an extension
when the report lacks certain information. The Legislature clearly contemplated that trial courts would grant extensions when
reports contained varying degrees of deficiencies. See TEX. CIV. PRAC. & REM. CODE § 74.351(c) (providing that a trial court
may grant one thirty-day extension when "elements" of the report are deficient). 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.[1]
As further evidence that a trial court need not consider more than the report itself, nothing in section 74.351 requires a trial court
to hold a hearing before denying an extension to cure a deficient report and dismissing a case. Compare id. § 74.351(b)-(c)
(requiring dismissal if an extension to cure a deficient report is not granted), with TEX. REV. CIV. STAT. art. 4590i § 13.01(g)
(requiring a court to hold a hearing before granting a single thirty-day extension for good cause under the former statute);[2] see,
e.g., Johnson v. Willens, 286 S.W.3d 560, 565-66 (Tex. App.-Beaumont 2009, pet. filed) (trial court granted order dismissing
case without holding a hearing). Had the Legislature intended for a trial court to consider more than the report when determining
whether to grant an extension to cure, it could have required a hearing to allow a claimant to present additional evidence.
III. Application
In this case, Wooten's expert report by R. Don Patman, M.D. was over nine single-spaced pages. The report contained Wooten's
medical history, the applicable standard of care, and a numbered list of Dr. Samlowski's alleged standard-of-care breaches,
including failing to perform a comprehensive diagnostic work-up and thereby failing to determine the extent of Wooten's illness.
Dr. Patman concluded that Dr. Samlowski's actions constituted negligence and were the proximate causes of Wooten's
developing multiple life-threatening complications. The report inferred that Dr. Samlowski performed an unnecessary surgery,
delaying treating Wooten's condition. The report, however, did not contain an explanation of how Dr. Samlowski's actions caused
Wooten's injuries and was, as Wooten now acknowledges, deficient. 282 S.W.3d at 90. But the report did not demonstrate, on its
face, that it was incurable. To the contrary, it demonstrated that it had the potential to be cured since the report was from a
qualified health care professional and explained a belief that Samlowski's actions caused Wooten's injuries. Nothing outside of
this report would have aided in the trial court's determination that Wooten's report could have been cured. Therefore, I would hold
the trial court abused its discretion in denying Wooten's motion for an extension to cure her report, and allow her the opportunity
to attempt to cure her report.
IV. Additional Considerations
Justice Medina and the dissent conclude that the trial court did not abuse its discretion in denying the thirty-day extension
because Wooten failed to prove that the report would have been cured. But the provision allowing for an extension is not
punitive—it says nothing about withholding an extension when a claimant has failed do something. Rather, the provision is
curative, intending to give claimants an opportunity to save their claims from dismissal. While the Legislature, by enacting the
TMLA, sought to "reduce excessive frequency and severity of health care liability claims," Act of June 2, 2003, 78th Leg., R.S., ch.
204, § 10.11(b)(1), 2003 Tex. Gen. Laws 847, 884, it intended to "do so in a manner that will not unduly restrict a claimant's
rights," id. § 10.11(b)(3); Leland, 257 S.W.3d at 208. "In enacting section 74.351, the Legislature struck a careful balance
between eradicating frivolous claims and preserving meritorious ones . . . ." Leland, 257 S.W.3d at 208. In order to preserve the
highest number of meritorious claims, trial courts should err on the side of granting claimants' extensions to show the merits of
their claims. The price of preserving a meritorious claim will be thirty days, compared to a much higher price of dismissal.
V. Conclusion
Because Wooten filed an expert report from a qualified expert explaining a belief that Samlowski's actions caused Wooten's
injuries, even though elements of the report were deficient, I would hold the trial court abused its discretion by denying her
motion for an extension to cure. I join the Court's judgment remanding the case to the trial court.
Justice WAINWRIGHT, dissenting in part and concurring in the judgment.
Also see: Texas Causes of Action | 2011 Texas Supreme Court Opinions | 2011 Tex Sup Ct Per Curiams