Scoresby test in Texas

2021Id. at 557 . 2 1 Here for instance, Thompson could have challenged the corrected report or reports after they were filed, and if that challenge was denied, she could have pursued an interlocutory appeal of that decision. 2 In her reply brief, Thompson directs us to the more recent case of Loaisiga v. Cerda, 379 S.W.3d 248 (Tex. 2012), but in that case the court only reaffirmed that Scoresby defines the correct test, and the Loaisiga court concluded the report before it met the Scoresby test such that the trial court could grant a thirty-day extension.

2021Id. at 557 . 2 1 Here for instance, Thompson could have challenged the corrected report or reports after they were filed, and if that challenge was denied, she could have pursued an interlocutory appeal of that decision. 2 In her reply brief, Thompson directs us to the more recent case of Loaisiga v. Cerda, 379 S.W.3d 248 (Tex. 2012), but in that case the court only reaffirmed that Scoresby defines the correct test, and the Loaisiga court concluded the report before it met the Scoresby test such that the trial court could grant a thirty-day extension.

2013Therefore, Gottesman’s report does not constitute ―no report.‖ See Rosemond v. Al-Lahiq, 362 S.W.3d 830, 840 (Tex. App.—Houston [14th Dist.] 2012, pet. denied) (―The Supreme Court has recognized that the Scoresby standard is minimal; therefore, most purported expert reports are likely to fall into the deficient-report category and be eligible for a thirty-day extension under section 74.351(c).‖). 4 Emphasis added. 8 III.

2013Therefore, Gottesman’s report does not constitute ―no report.‖ See Rosemond v. Al-Lahiq, 362 S.W.3d 830, 840 (Tex. App.—Houston [14th Dist.] 2012, pet. denied) (―The Supreme Court has recognized that the Scoresby standard is minimal; therefore, most purported expert reports are likely to fall into the deficient-report category and be eligible for a thirty-day extension under section 74.351(c).‖). 4 Emphasis added. 8 III.

2017Id. at 556–57 (emphasis added); see id. at 558–60 (Willett, J., concurring) (describing the standard for granting an opportunity to cure as “lenient,” “benevolent,” and “low, and indicating that such an opportunity should be granted when “someone with expertise express[es] an opinion that the plaintiff has a meritorious malpractice claim against the defendant”); see also Certified EMS, Inc. v. Potts, 392 S.W.3d 625, 631 (Tex. 2013) (emphasizing that the “Legislature’s goal was to deter baseless claims, not to block earnest ones”); Haskell v. Seven Acres Jewish Senior Care Servs., 363 S.W.3d 75

2017Id. at 556–57 (emphasis added); see id. at 558–60 (Willett, J., concurring) (describing the standard for granting an opportunity to cure as “lenient,” “benevolent,” and “low, and indicating that such an opportunity should be granted when “someone with expertise express[es] an opinion that the plaintiff has a meritorious malpractice claim against the defendant”); see also Certified EMS, Inc. v. Potts, 392 S.W.3d 625, 631 (Tex. 2013) (emphasizing that the “Legislature’s goal was to deter baseless claims, not to block earnest ones”); Haskell v. Seven Acres Jewish Senior Care Servs., 363 S.W.3d 75

2015Transitional Care Centers of Texas, Inc. v. Palacios, 46 S.W.3d 873, 878 (Tex. 2001).

2014The first is the goal of reducing the expense of health care liability claims, which, the court observed, is thwarted when the same suit can give rise to successive appeals contesting both the trial court’s discretion to grant a thirty-day extension (i.e., fights over whether a report is merely “deficient” and potentially curable or so bad that it is “no report” and incurable) and the trial court’s 44 See, e.g., Apodaca v. Russo, 228 S.W.3d 252, 257-58 (Tex. App.—Austin 2007, no pet.); see Scoresby, 346 S.W.3d at 554 (quoting Palacios, 46 S.W.3d at 878 ); see also Zanchi, 408 S.W.3d at 381, 38

2014We disagree. “[W]hen a health care liability claim involves a vicarious liability theory, either alone or in combination with other theories, an expert report that meets the statutory standards as to the employee is -3- 04-14-00195-CV sufficient to implicate the employer’s conduct under the vicarious theory.” Certified EMS, Inc. v. Potts, 392 S.W.3d 625, 632 (Tex. 2013); see Gardner v. U.S. Imaging, Inc., 274 S.W.3d 669 , 671- 72 (Tex. 2008) (per curiam) (holding that report was sufficient as to owner where petition alleged owner was vicariously liable for acts of doctor and report adequately

2012See Gardner v. U.S. Imaging, Inc., 274 S.W.3d 669, 671 (Tex.2008) (holding that report’s failure to comply with Chapter 74 regarding the element of causation rendered the report defective rather than no report, so that plaintiff was still eligible for a thirty-day extension under section 74.351(c)); Rosemond, 362 S.W.3d at 840 (holding that report satisfied Scoresby standard and was eligible for extension even though it did not comply with Chapter 74 regarding the element of causation).

2024Co. v. Adams, No. 04-21-00121-CV, 2021 WL 5605286 , at *3-4, 5 (Tex. App.— San Antonio Dec. 1, 2021, no pet.) (mem. op.) (same); Pharmacy Healthcare Solutions, Ltd. v. Pena, 530 S.W.3d 169, 176 (Tex. App.—Eastland 2015, pet. denied) (same).

2022See Sherrill, 2015 WL 1910015 , at *2 (report properly challenged by objections filed within 21-day window); Bakhtari, 317 S.W.3d at 493 (objections made for first time after 21-day deadline are waived).

2022See Sherrill, 2015 WL 1910015 , at *2 (report properly challenged by objections filed within 21-day window); Bakhtari, 317 S.W.3d at 493 (objections made for first time after 21-day deadline are waived).

2020Subsidiary, L.P. v. Alvarez, 382 S.W.3d 619, 626 (Tex. App.— Fort Worth 2012, no pet.). 14 San Antonio Feb. 18, 2015, no pet.) (mem. op.) (holding that despite a report’s complete failure to address causation, among other deficiencies, remand was required because the report satisfied Scoresby’s three-prong test); Sanchez v. Martin, 378 S.W.3d 581, 597 (Tex. App.—Dallas 2012, no pet.) (ordering remand because the report satisfied Scoresby, even though plaintiff’s report failed to address the standard of care); cf. Taton, 2019 WL 2635568 , at *9 (collecting cases that genuinely failed the Scores

2020Subsidiary, L.P. v. Alvarez, 382 S.W.3d 619, 626 (Tex. App.— Fort Worth 2012, no pet.). 14 San Antonio Feb. 18, 2015, no pet.) (mem. op.) (holding that despite a report’s complete failure to address causation, among other deficiencies, remand was required because the report satisfied Scoresby’s three-prong test); Sanchez v. Martin, 378 S.W.3d 581, 597 (Tex. App.—Dallas 2012, no pet.) (ordering remand because the report satisfied Scoresby, even though plaintiff’s report failed to address the standard of care); cf. Taton, 2019 WL 2635568 , at *9 (collecting cases that genuinely failed the Scores

2020Subsidiary, L.P. v. Alvarez, 382 S.W.3d 619, 626 (Tex. App.— Fort Worth 2012, no pet.). 14 San Antonio Feb. 18, 2015, no pet.) (mem. op.) (holding that despite a report’s complete failure to address causation, among other deficiencies, remand was required because the report satisfied Scoresby’s three-prong test); Sanchez v. Martin, 378 S.W.3d 581, 597 (Tex. App.—Dallas 2012, no pet.) (ordering remand because the report satisfied Scoresby, even though plaintiff’s report failed to address the standard of care); cf. Taton, 2019 WL 2635568 , at *9 (collecting cases that genuinely failed the Scores

2020Subsidiary, L.P. v. Alvarez, 382 S.W.3d 619, 626 (Tex. App.— Fort Worth 2012, no pet.). 14 San Antonio Feb. 18, 2015, no pet.) (mem. op.) (holding that despite a report’s complete failure to address causation, among other deficiencies, remand was required because the report satisfied Scoresby’s three-prong test); Sanchez v. Martin, 378 S.W.3d 581, 597 (Tex. App.—Dallas 2012, no pet.) (ordering remand because the report satisfied Scoresby, even though plaintiff’s report failed to address the standard of care); cf. Taton, 2019 WL 2635568 , at *9 (collecting cases that genuinely failed the Scores

2018Our conclusion comports with the purpose of section 74.351, which the legislature primarily designed “to eliminate frivolous healthcare-liability claims, not potentially meritorious ones.” See Hebner v. Reddy, 498 S.W.3d 37, 39 (Tex. 2016); see also Scoresby, 346 S.W.3d at 557 (recognizing that three-part test is “a minimal standard” but also appropriate and “necessary if multiple interlocutory appeals are to be avoided”). 15 To the extent that MCA’s briefing includes complaints about statutory deficiencies in the documents L.M. proffered as her first expert report, we need not address those c

2018Our conclusion comports with the purpose of section 74.351, which the legislature primarily designed “to eliminate frivolous healthcare-liability claims, not potentially meritorious ones.” See Hebner v. Reddy, 498 S.W.3d 37, 39 (Tex. 2016); see also Scoresby, 346 S.W.3d at 557 (recognizing that three-part test is “a minimal standard” but also appropriate and “necessary if multiple interlocutory appeals are to be avoided”). 15 To the extent that MCA’s briefing includes complaints about statutory deficiencies in the documents L.M. proffered as her first expert report, we need not address those c

2017Id. at 556–57 (emphasis added); see id. at 558–60 (Willett, J., concurring) (describing the standard for granting an opportunity to cure as “lenient,” “benevolent,” and “low, and indicating that such an opportunity should be granted when “someone with expertise express[es] an opinion that the plaintiff has a meritorious malpractice claim against the defendant”); see also Certified EMS, Inc. v. Potts, 392 S.W.3d 625, 631 (Tex. 2013) (emphasizing that the “Legislature’s goal was to deter baseless claims, not to block earnest ones”); Haskell v. Seven Acres Jewish Senior Care Servs., 363 S.W.3d 75

2017Id. at 556–57 (emphasis added); see id. at 558–60 (Willett, J., concurring) (describing the standard for granting an opportunity to cure as “lenient,” “benevolent,” and “low, and indicating that such an opportunity should be granted when “someone with expertise express[es] an opinion that the plaintiff has a meritorious malpractice claim against the defendant”); see also Certified EMS, Inc. v. Potts, 392 S.W.3d 625, 631 (Tex. 2013) (emphasizing that the “Legislature’s goal was to deter baseless claims, not to block earnest ones”); Haskell v. Seven Acres Jewish Senior Care Servs., 363 S.W.3d 75

2017Id. at 556–57 (emphasis added); see id. at 558–60 (Willett, J., concurring) (describing the standard for granting an opportunity to cure as “lenient,” “benevolent,” and “low, and indicating that such an opportunity should be granted when “someone with expertise express[es] an opinion that the plaintiff has a meritorious malpractice claim against the defendant”); see also Certified EMS, Inc. v. Potts, 392 S.W.3d 625, 631 (Tex. 2013) (emphasizing that the “Legislature’s goal was to deter baseless claims, not to block earnest ones”); Haskell v. Seven Acres Jewish Senior Care Servs., 363 S.W.3d 75

2017Id. at 556–57 (emphasis added); see id. at 558–60 (Willett, J., concurring) (describing the standard for granting an opportunity to cure as “lenient,” “benevolent,” and “low, and indicating that such an opportunity should be granted when “someone with expertise express[es] an opinion that the plaintiff has a meritorious malpractice claim against the defendant”); see also Certified EMS, Inc. v. Potts, 392 S.W.3d 625, 631 (Tex. 2013) (emphasizing that the “Legislature’s goal was to deter baseless claims, not to block earnest ones”); Haskell v. Seven Acres Jewish Senior Care Servs., 363 S.W.3d 75

2015The only arguments raised by Appellee regarding the lack of an expert causation opinion is that a timely objection to the Stewart Preliminary Report was not raised and that medical causation testimony is not needed in this case.3 At no time, however, does Plaintiff claim Stewart is an “individual with expertise” in medical causation. 4 Importantly, in considering the Scoresby requirement that the report be from an “individual with expertise,” the proffered medical expert’s qualifications must be evident from the four corners of the expert report and curriculum vitae, and demonstrate expertise

2015See Burrell, 230 S.W.3d at 758 .

2014The first is the goal of reducing the expense of health care liability claims, which, the court observed, is thwarted when the same suit can give rise to successive appeals contesting both the trial court’s discretion to grant a thirty-day extension (i.e., fights over whether a report is merely “deficient” and potentially curable or so bad that it is “no report” and incurable) and the trial court’s 44 See, e.g., Apodaca v. Russo, 228 S.W.3d 252, 257-58 (Tex. App.—Austin 2007, no pet.); see Scoresby, 346 S.W.3d at 554 (quoting Palacios, 46 S.W.3d at 878 ); see also Zanchi, 408 S.W.3d at 381, 38

2014The first is the goal of reducing the expense of health care liability claims, which, the court observed, is thwarted when the same suit can give rise to successive appeals contesting both the trial court’s discretion to grant a thirty-day extension (i.e., fights over whether a report is merely “deficient” and potentially curable or so bad that it is “no report” and incurable) and the trial court’s 44 See, e.g., Apodaca v. Russo, 228 S.W.3d 252, 257-58 (Tex. App.—Austin 2007, no pet.); see Scoresby, 346 S.W.3d at 554 (quoting Palacios, 46 S.W.3d at 878 ); see also Zanchi, 408 S.W.3d at 381, 38

2014The first is the goal of reducing the expense of health care liability claims, which, the court observed, is thwarted when the same suit can give rise to successive appeals contesting both the trial court’s discretion to grant a thirty-day extension (i.e., fights over whether a report is merely “deficient” and potentially curable or so bad that it is “no report” and incurable) and the trial court’s 44 See, e.g., Apodaca v. Russo, 228 S.W.3d 252, 257-58 (Tex. App.—Austin 2007, no pet.); see Scoresby, 346 S.W.3d at 554 (quoting Palacios, 46 S.W.3d at 878 ); see also Zanchi, 408 S.W.3d at 381, 38

2014The first is the goal of reducing the expense of health care liability claims, which, the court observed, is thwarted when the same suit can give rise to successive appeals contesting both the trial court’s discretion to grant a thirty-day extension (i.e., fights over whether a report is merely “deficient” and potentially curable or so bad that it is “no report” and incurable) and the trial court’s 44 See, e.g., Apodaca v. Russo, 228 S.W.3d 252, 257-58 (Tex. App.—Austin 2007, no pet.); see Scoresby, 346 S.W.3d at 554 (quoting Palacios, 46 S.W.3d at 878 ); see also Zanchi, 408 S.W.3d at 381, 38

2013Applying Ogletree to the facts at hand, the Jimenezes assert that Dr. Avila’s conduct was implicated with the statements in Dr. Perez’s report (1) that “it fell below the standard of care to perform the surgeries in an ambulatory surgical center setting”; and that (2) “if such surgeries are performed in an ambulatory care setting, the patient must be observed at least overnight.” Dr. Avila, on the other hand, asks us to follow Laredo Texas Hospital Company v. Gonzalez, where the San Antonio Court of Appeals recently applied the Scoresby test. 363 S.W.3d 255, 258 (Tex. App.—San Antonio 2012, no

2013Applying Ogletree to the facts at hand, the Jimenezes assert that Dr. Avila’s conduct was implicated with the statements in Dr. Perez’s report (1) that “it fell below the standard of care to perform the surgeries in an ambulatory surgical center setting”; and that (2) “if such surgeries are performed in an ambulatory care setting, the patient must be observed at least overnight.” Dr. Avila, on the other hand, asks us to follow Laredo Texas Hospital Company v. Gonzalez, where the San Antonio Court of Appeals recently applied the Scoresby test. 363 S.W.3d 255, 258 (Tex. App.—San Antonio 2012, no