appeal from an order denying all or part of the relief sought by a motion under § 74.351(b), except that an appeal may not be taken from an order granting an extension under § 74.351.4 Because of the disparate way that interlocutory appeals have been considered and/or dismissed among Texas courts, attorneys on both sides of the docket have been understandably puzzled by the uncertain accessibility to appellate review of when a report, though timely, is arguably so deficient as to fall well short of the “good faith effort” standard set by Palacios and enter the murky quagmire of “no report at all,” thereby rendering a trial court’s refusal to dismiss an arguable abuse of discretion. Applying the “Good Faith Effort” Standard Pre-Scoresby The touchstone of the oft-cited “good faith effort” standard is well known: an expert report represents a good faith effort to comply with § 74.351 if it provides enough information to inform the defendant of the specific conduct called into question by the plaintiff and provides a basis for the trial court to determine that the claims made by the plaintiff have merit.5 While a report need not marshal all of the plaintiff’s proof, it must adequately address all three statutory elements—standard of care, breach and causation.6 The report must link the expert’s conclusions to the facts upon which those conclusions rest.7 It cannot, therefore, be predicated on conjecture or speculation. While it is certain than an expert report that omits one or more of the statutory requirements is not a good faith effort,8 it arguably is curable when that element, though not well defined, can be inferred through the otherwise adequate treatment of the other elements. Such technical defects are generally not an adequate basis for dismissal. That said, a recurrent dispute among practitioners is when a report is so devoid of consideration of the standard of care, breach, or causation (or completely omits a discussion of the defendant healthcare provider) as to fail in
its intended purpose under Palacios and subject the plaintiff’s claim to dismissal under § 74.351(b). This divergence has yielded copious interlocutory appeals, many of which are brought in the absence of an extension to cure and resulting in a remand with instructions for same. Often times, this costly maneuver merely delays an inevitable second appeal following the granting of an extension to cure and service of a modified report or supplement designed to address the complained-of shortfalls. The question then arises as to when an appeal made before the opportunity to cure is premature or, alternatively, allowable due to material deficiencies rendering the report effectively absent to the appealing defendant. In Ogletree v. Matthews, the Texas Supreme Court held a defendant may not immediately seek interlocutory review when a trial court both denies a motion to dismiss and grants a 30-day extension to cure a deficient report.9 The Supreme Court based its decision on the provision in Chapter 74 of the Texas Civil Practice and Remedies Code that expressly prohibits an interlocutory appeal from a trial court’s order granting a 30-day extension to cure a deficient report.10 The Court reasoned, “[i]f a defendant could immediately (and prematurely) appeal, the court of appeals would address the report’s sufficiency while its deficiencies were presumably being cured at the trial court level, an illogical and wasteful result.”11 Accordingly, “when a[n expert] report has been served, the actions denying the motion to dismiss and granting an extension are inseparable,” and permitting appeal from denial of the motion to dismiss would render meaningless the legislative ban on interlocutory appeals from orders granting extensions to cure a deficient report.12 Though recognizing the possibility of a report that was so deficient as to render it no report at all (qualified by Justice Willett as a “rare bird”) thereby arguably conferring immediate interlocutory jurisdiction, the Court provided no guidance as to what standard should be applied in determining the minimal
threshold. Both Chapter 74 and Texas Supreme Court precedent distinguish deficient reports (which are subject to a 30-day extension to cure) and absent reports (either late-served or, alternatively, so deficient as to be no report at all).13 Because appellate review is unavailable when the trial court grants an extension to cure and denies a motion to dismiss due to an arguably inadequate report, it is necessary to understand the recognized minimum requisites for a first-attempt report before challenging such a ruling on appeal. Lowering the Bar – an Attempt to Avert Redundant Interlocutory Appeals On July 1, 2011, the Supreme Court issued the Scorseby opinion, addressing whether a report so devoid of consideration of the requisite elements could meet minimal standards and therefore be amenable to an extension to cure.14 In Scoresby, a minor underwent surgery to remove growths in his sinus cavity.15 The plaintiff, the minor’s father, asserted an incision was made too far into the child’s brain, lacerating a blood vessel and requiring further surgery and ultimately resulting in brain damage and partial paralysis.16 The report, authored by a neurologist, “described the injury to [the child’s] brain, ascribed it to the Physician’s breach of the standards of care, and stated that their breach caused [the child’s] partial paralysis and other lingering debilities.”17 The defendants challenged the report as being fundamentally deficient and appealed the trial court’s order allowing a 30 day extension to cure its deficiencies on grounds that the report was so deficient as to be no report at all. The Supreme Court held the report was deficient because “it did not state the standard of care but only implied that it was inconsistent with the Physician’s conduct.”18 Nevertheless, the Court held the report passed muster in that “there [was] no question that in [the neurologist’s] opinion, [the plaintiff’s] claim against the Physicians [had] merit” and the report implicated the defendant phythehoustonlawyer.com
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