Austin Heart P.A. v. Webb

In Austin Heart P.A. v. Webb, 228 S.W.3d 276, 284 (Tex. App.--Austin 2007, no pet.), the Court discerned from this statutory scheme legislative intent that in "at least some situations where a timely report is deficient but not entirely absent or no report . . . the trial court should consider whether the deficiency is such that it warrants allowing a cure period." 228 S.W.3d at 284. Because the Court concluded that the report at issue in the case was deficient as opposed to no report regarding the physician defendant, we deduced that subsection (c) required us to remand to the trial court, in lieu of rendering a judgment of dismissal and sanctions, to afford the court the opportunity to exercise its discretion whether to grant a 30-day extension. Id. In Austin Heart, the expert, Dr. Cororve, repeatedly referred in the report's background section to defendant physician Dr. Kessler by name and discussed various acts by him and other identified and unidentified caregivers. However, Dr. Cororve did not explicitly link Dr. Kessler's acts to Cororve's subsequent opinions regarding the applicable standard of care, how it was breached, and how the breach caused injury. Austin Heart, 228 S.W.3d at 280-81. The Court concluded that the report was deficient because "it requires the reader to infer or make an educated guess that Dr. Cororve the expert is identifying Dr. Kessler as the physician who breached the standard of care and caused injury" and that "there is nothing in the report that links Dr. Kessler to Dr. Cororve's opinions regarding the breach of the standard of care and causation any more than Dr. Rodgers or the other 'various physicians' references." Id. at 281. Although the Court emphasized that "a report's adequacy under section 74.351 does not depend on whether the expert uses any particular magic words such as 'the standard or care was breached by Dr. Kessler,'" the Court observed that "Dr. Cororve's report is silent as to whether a single physician, multiple physicians, or all physicians mentioned in the report failed to meet the standard of care and caused injury to Mr. Webb." Id. at 281-82.