On Appeal from the 68th Judicial District Court Dallas County
The appellant performed three surgeries on the appellee to correct constant cervical pain raditaing in both arms. The appellee sued the appellant alleging that he negligently performed the surgeries. The appellee served an expert report addressing those allegations. The appellants did not object to the expert report. More than 120 days after the appellee filed the original petition, she amended the petition to add allegations the appellant suffered from carpal tunnel syndrome and a left hip abnormality when he performed the surgeries, and she had not given informed consent for the surgeries because she was not told about his physical conditions. The appellee did not serve an expert report to address the new allegations in the amended petition. The appellants moved to dismiss the new allegations arguing that the appellee's amended petition added claims and causes of action. The trial court denied the appellants' motion to dismiss. The appellate court found that in the instant case, the appellee conceded in her appellate briefing that she did not include the allegation of lack of informed consent when she amended her petition after the hearing on the motion to dismiss. And it was undisputed that she did not serve an expert report addressing that allegation. Thus, the trial court abused its discretion by denying the appellants' motion to dismiss the allegation of lack of informed consent. The court further found that the appellee alleged that she suffered an injury proximately caused by the appellant's negligence while performing three surgeries on her cervical spine. She alleged that several different acts and failures to act were negligent and also that the appellant's carpal tunnel syndrome and hip condition caused or contributed to those negligent acts or failures to act. Therefore, the new allegations regarding the appellant's physical conditions did not state a new cause of action or a new theory of negligence and did not require a new expert report. Thus, the trial court did not abuse its discretion by denying the appellants' motion to dismiss the new allegations regarding the appellant's physical conditions. Accordingly, the trial court's order denying the motion to dismiss the allegation of lack of informed consent and remand to the trial court with instructions to dismiss that allegation with prejudice was reversed and affirmed the trial court's order in all other respects.