Bogar v. Esparza

In Bogar v. Esparza, 257 S.W.3d 354, 362 (Tex. App.--Austin 2008, no pet.), a report from a pathologist stated that the patient had toxic levels of oxycodone and lethal levels of propoxyphene which caused her death. Bogar, 257 S.W.3d at 362-64. Because the report's statutory compliance must be determined from the four corners of the report, the appellate court noted that it was precluded from filling gaps or drawing inferences regarding what the expert likely meant or intended. Id. at 362. The report in that case was defective because the pathologist gave his opinion regarding the cause of the patient's death without explaining who caused the death or how. Id. at 364. The Austin court of appeals held that a report that does not identify a defendant at least in some manner within its four corners is, for that reason alone, deficient as to that defendant because it would require the reader to infer or make an educated guess as to whose actions the expert is complaining. In Bogar, the Austin court held that the plaintiff's expert report was deficient because "it does not identify in any way the person or persons whose conduct is the subject of any of his opinions regarding standard of care, causation, and death." Id. But the court also noted that: this is not a "magic words" test. There may be a number of ways that a defendant may be referenced within the four corners of a report so as to comply with the legislature's mandate that the report "provide a fair summary as of the date of the report 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. at n.1.)