Apodaca v. Russo

In Apodaca v. Russo, 228 S.W.3d 252 (Tex. App.--Austin 2007, no pet.), the Court affirmed a trial court order dismissing a health care liability suit under Tex. Civ. Prac. & Rem. Code section 74.351(b) and refusing to grant a 30-day extension under section 74.351(c). The lone defendant was Dr. Russo, a general surgeon, who was alleged to have acted negligently in failing to implement precautions against pulmonary embolism or stroke. The report described various deviations from the standard of care, including failures to properly address deep venous thrombosis prevention or to insert an IVC filter, but did not identify Dr. Russo by name or otherwise. The panel observed that "although appellant has sued only Dr. Russo, other doctors and health-care providers are implicated by the facts set forth in the report. The report references other providers as well as their conduct and refers to another doctor by name, but fails to mention Dr. Russo at all." Id. at 257. The panel found the report deficient and no report, reasoning that it did not "specifically identify the defendant and apply the statutory elements to that defendant," id. at 258, and "if a report fails to address the defendant physician, it constitutes no report as to that defendant, and the trial court may not grant a 30-day extension." Id. at 257. In sum, the court of appeals affirmed a trial court's dismissal of a health care liability claim where the Tex. Civ. Prac. & Rem. Code Ann. section 74.351 report failed to name the defendant health care provider. 228 S.W.3d at 257-58. However, in reaching its decision, the court specifically noted the report implicated other doctors and health care providers, and referenced their conduct. Id. at 257. Additionally, the plaintiff in Apodaca underwent a course of treatment over several days that involved numerous health care providers. Id. at 253-56.