From the 49th Judicial District Court, Webb County
The appellee sued four health care providers, the appellants, for medical negligence in the insertion of an IV needle into her left wrist resulting in the development of a painful neuroma. The appellee timely filed a doctor's report to meet the requirements of Texas Civil Practice and Remedies Code section 74.351. After receipt of the doctor’s report, all the medical appellants filed motions to dismiss the appellee’s lawsuit, challenging the sufficiency of the report. Thereafter, the appellee non-suited one individual appellant doctor and filed a written response denying the doctor’s report was deficient, but argued, for an extension of time to cure any deficiencies. The trial court granted the appellee’s request for a 30-day extension of time to cure the report’s deficiencies as allowed under section 74.351(c). After the appellee refiled the same doctor’s report, the remaining appellants filed a second motion to dismiss the appellee’s lawsuit for failure to comply with the statutory requirements. The court denied the second motion to dismiss. The appellate court found that the doctor’s report failed the third prong of Scoresby v. Santillan, 346 S.W.3d 546, (Tex. 2011) test because the doctor’s report contained no statement that could be read as implicating the conduct of any medical defendant; it was absolutely devoid of any reference to the medical appellants. Accordingly, the court reversed the trial court’s order denying the motion to dismiss and remanded for entry of a judgment of dismissal of the suit against all the medical appellants, with prejudice to re-filing, and for a determination of reasonable attorney’s fees and costs.