Texas Causes of Action & Affirmative Defenses

Texas Causes of Action & Affirmative Defenses

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Friday, April 24, 2015

Business disparagement and defamation of an individual distinguished (Tex 2015)


TWO DISTINCT TORTS: BUSINESS DISPARAGEMENT AND "CHARACTER ASSASSINATION" (DEFAMATION)

Business disparagement and defamation are similar in that both involve harm from the publication of false information. Waste Mgmt. of Tex., Inc. v. Tex. Disposal Sys. Landfill, Inc., 434 S.W.3d 142, 155 (Tex. 2014). The respective torts, however, serve different interests.

Whereas “defamation actions chiefly serve to protect the personal reputation of an injured party, [] a business disparagement claim protects economic interests.” Forbes Inc. v. Granada Biosciences, Inc., 124 S.W.3d 167, 170 (Tex. 2003). Business disparagement or “injurious falsehood applies to derogatory publications about the plaintiff’s economic or commercial interests.” 3 DAN B. DOBBS, PAUL T. HAYDEN & ELLEN M. BUBLICK, THE LAW OF TORTS § 656, at 615 (2d ed. 2011).


The tort does not seek to redress dignitary harms to the business owner, but rather redresses aspersions cast on the business’s commercial product or activity that diminishes those interests. Hurlbut v. Gulf Atl. Life Ins. Co., 749 S.W.2d 762, 766–67 (Tex. 1987).

A corporation or other business entity that asserts a claim for defamation may assert an additional or alternative claim for business disparagement if it seeks to recover economic damages for injury to the business. Burbage v. Burbage, 447 S.W.3d 249, 261 n.6 (Tex. 2014). Impugning one’s reputation is possible without disparaging its commercial interests and vice versa. Depending on the circumstances, then, a plaintiff may have a claim for defamation, or for business disparagement, or both.

ELEMENTS OF BIZ DISPARAGEMENT CAUSE OF ACTION 

“To prevail on a business disparagement claim, a plaintiff must establish that (1) the defendant published false and disparaging information about it, (2) with malice, (3) without privilege, (4) that resulted in special damages to the plaintiff.” Forbes, 124 S.W.3d at 170 (citing Hurlbut, 749 S.W.2d at 766). 

SOURCE: TEXAS SUPREME COURT -  13-0928 - IN RE STEVEN LIPSKY [Opinion by Justice Divine in pdf] - 4/24/2015 

Texas Supreme Court Opinion In re Lipsky, No. 13-0928, ___ S.W.3d ___ (Tex. 2015)

CITATION: In re Lipsky, No. 13-0928, ___ S.W.3d ___ (Tex. 2015) 
COA OPINION BELOW: In re Lipsky, 411 S.W.3d 530 (Tex.App.-Fort Worth 2013, orig. proceeding)   


Scope of Texas Citizen Participation Act: What kind of communications does it cover? - Lippincott v Whisenhunt, No. 13-0926 (Tex. April 24, 2015)


In a per curiam opinion handed down April 24, 2015, the Texas Supreme Court holds that the Texas Citizens Participation Act (TCPA) does not require a communication be in public form to qualify for protection. Under the Act, a defendant in a defamation suit or similar action may move to dismiss a claim involving the exercise of the right to free speech upon a showing that the communication was made in connection with a matter of public concern, here involving the quality of medical care. The Supreme Court reversed the Texarkana Court of Appeal, which had found the TCPA inapplicable, and remanded to that court for further proceedings.    

Lippincott v Whisenhunt, No. 13-0926 (Tex. April 24, 2015) 

Lippincott v Whisenhunt, No. 13-0926 (Tex. April 24, 2015)

OPINION EXCERPT]

To assert a motion to dismiss under the Act, the defendant must show “by a preponderance 2 of the evidence that the legal action is based on, relates to, or is in response to the party’s exercise of . . . the right of free speech.” Id. § 27.005(b). The statute broadly defines “the exercise of the right of free speech” as “a communication made in connection with a matter of public concern.” Id. § 27.001(3). Under this definition, the right of free speech has two components: (1) the exercise must be made in a communication and (2) the communication must be made in connection with a matter of public concern. We address each element in turn. First, the statute defines “communication” as “the making or submitting of a statement or document in any form or medium, including oral, visual, written, audiovisual, or electronic.” Id. § 27.001(1). 

The court of appeals concluded that because the purpose of the Act, as described in section 27.002, includes the phrase “otherwise participate in government,” the Act only protects public communication. 416 S.W.3d at 697. 

We disagree. 

This statute defines “communication” to include any form or medium, including oral, visual, written, audiovisual, or electronic media—regardless of whether the communication takes a public or private form. TEX. CIV. PRAC. & REM. CODE § 27.001(1). The plain language of the statute imposes no requirement that the form of the communication be public. Had the Legislature intended to limit the Act to publicly communicated speech, it could have easily added language to that effect. See In re M.N., 262 S.W.3d at 802. In the absence of such limiting language, we must presume that the Legislature broadly included both public and private communication. TEX. CIV. PRAC. & REM. CODE § 27.011.




Sovereign immunity and governmental immunity in Texas (2015 caselaw snips)


SOVEREIGN IMMUNITY AND ULTRA VIRES DOCTRINE  

Sovereign immunity and its counterpart, governmental immunity, exist to protect the State and its political subdivisions from lawsuits and liability for money damages. Mission Consol. Indep. Sch. Dist. v. Garcia, 253 S.W.3d 653, 655 (Tex. 2008). Immunity from suit bars an action against the state unless the state expressly consents to the suit. Tex. Dep't of Transp. v. Jones, 8 S.W.3d 636, 638 (Tex. 1999). The party suing the governmental entity must establish the state's consent, which may be alleged either by reference to a statute or to express legislative permission. Id. We interpret statutory waivers of immunity narrowly, as the Legislature's intent to waive immunity must be clear and unambiguous. Mission Consol. Indep. Sch. Dist., 253 S.W.3d at 655 (citing TEX. GOV'T CODE ANN. § 311.034 (West, Westlaw through 2013 3d C.S.)).

Under the ultra vires exception to immunity, "suits to require state officials to comply with statutory or constitutional provisions are not prohibited by sovereign immunity, even if a declaration to that effect compels the payment of money." City of El Paso v. Heinrich, 284 S.W.3d 366, 372 (Tex. 2009) (explaining the ultra vires exception to immunity). However, such claims cannot be brought against Weslaco, because it retains immunity; therefore, the claims must be brought against Ramirez in her official capacity. See id. at 373. Accordingly, the trial court did not err in dismissing the claims against Weslaco for lack of jurisdiction.

SOURCE: CORPUS CHRISTI COURT OF APPEALS - No. 13-14-00054-CV - 1/8/ 2015



Thursday, April 23, 2015

Open Courts challenge under the Texas Constitution - Abrogation of Common-Law rights by the Lege


LEGISLATIVE INFRINGEMENT ON RIGHT/REMEDIES AVAILABLE UNDER THE COMMON LAW 

The open-courts provision prohibits arbitrary or unreasonable legislative action that abrogates well-established, common-law remedies. Lebohm v. City of Galveston, 154 Tex. 192, 199 275 S.W.2d 951, 955 (1955) (op. on reh'g). It ensures that Texas citizens bringing common-law causes of action will not unreasonably be denied the right to redress in the courts. Rose v. Doctor's Hosp., 801 S.W.2d 841, 843 (Tex. 1990).

We review the constitutionality of a statute de novo, see Stockton v. Offenbach, 336 S.W.3d 610, 614-15 (Tex. 2011), beginning with the presumption that the statute is constitutional. TEX. GOV'T CODE ANN. § 311.021(1) (West 2013); Sax v. Votteler, 648 S.W.2d 661 664 (Tex. 1983); see also Methodist Healthcare Sys. of San Antonio, Ltd. v. Rankin, 307 S.W.3d 283, 285 (Tex. 2010).

To establish an open-courts violation, Cohen must demonstrate that (1) the statute restricts a well-recognized, common-law cause of action (the well-recognized prong) and (2) the restriction is unreasonable or arbitrary when balanced against the Act's purpose (the balance prong). Thomas v. Oldham, 895 S.W.2d 352, 357 (Tex. 1995); Sax, 648 S.W.2d at 666.

A statute does not violate the open courts provision of the Texas Constitution if there are adequate substitute methods for obtaining redress. Liggett v. Blocher, 849 S.W.2d 846, 851 (Tex. App.-Houston [1st Dist.] 1993, no writ) ("In determining the restrictive effect of the statutory provision at issue, the court must also consider whether the legislature has avoided an unconstitutional result by providing a substitute remedy or by leaving a reasonable alternative at common law."). A statute may, however, violate the open-courts provision "when it makes a remedy by due course of law contingent on an impossible condition." In re D.M., 191 S.W.3d 381, 391 (Tex. App.-Austin 2006, pet. denied).

SOURCE: HOUSTON COURT OF APPEALS - Nos. 01-13-00267-CV, 01-13-00233-CV - 2/26/2015 

We reject Cohen's open-courts challenge because he has not been deprived of a common law right. Cohen has not been prevented from suing for damages under the theories of breach of fiduciary duty, fraud, constructive fraud, and breach of contract. Cohen's challenge is directed only at the statutory provision allowing for expungement of a lis pendens if the requisite evidentiary showing is not met. TEX. PROP. CODE §12.0071(c)(2). A lis pendens is not a cause of action or a lien; it is a means of providing constructive notice of an alleged real property claim. TEX. PROP. CODE §13.004(a). Cohen was allowed, by statute, to file a notice of lis pendens to serve as constructive notice of his claims. He was given the opportunity to maintain that notice of lis pendens by demonstrating the probable validity of his real property claim. He had the opportunity to challenge, in an original proceeding in this Court, the trial court's determination that he had not demonstrated the probable validity of his real property claim. He has not established an open courts violation. Cf. Francis v. Coastal Oil & Gas, Inc., 130 S.W.3d 76, 92 (Tex. App.-Houston [1st Dist.] 2003, no pet.) (holding that statute eliminating liability of property owner for independent contractor's injuries unless the property owner exercises sufficient control over the work and has knowledge of the danger does not violate the open courts provision because it only "delineates the evidentiary showing a plaintiff must meet to prevail on a claim of negligence against a property owner"); Freedman v. Univ. of Houston, 110 S.W.3d 504, 508 (Tex. App.-Houston [1st Dist.] 2003, no pet.) (holding that statute requiring legislative consent to sue university for breach of contract did not violate open courts because it does not eliminate right to sue).


Tuesday, April 21, 2015

Suit-within-Suit Requirement in Legal Malpractice Case (2015)


THE CAUSATION ELEMENT IN AN ATTORNEY MALPRACTICE CLAIM 

To establish causation where a legal malpractice claim arises from a prior suit, the plaintiff must establish that but for her attorney's negligence, "she would be entitled to judgment." Cunningham v. Hughes & Luce, L.L.P., 312 S.W.3d 62, 67 (Tex. App.-El Paso 2010, no pet.); see MND Drilling Corp. v. Lloyd, 866 S.W.2d 29, 31-32 (Tex. App.-Houston [14th Dist.] 1987, no writ) (attorney's failure to respond to summary judgment motion alone not enough to support legal malpractice claim; plaintiff must also show suit would have survived summary judgment and that the suit would have been successful but for the attorney's negligence).

This burden is often referred to as the "suit within a suit" requirement. Greathouse v. McConnell, 982 S.W.2d 165, 173 (Tex. App.-Houston [1st Dist.] 1998, pet. denied).

SOURCE: DALLAS COURT OF APPEALS - No. 05-13-00541-CV - 1/7/2015


Friday, April 17, 2015

A trespass to try title action is what?


WHAT DOES TRESPASS TO TRY TITLE MEAN? 

The Texas Property Code provides in part, "A trespass to try title action is the method for determining title to lands, tenements, or other real property." TEX. PROP. CODE ANN. § 22.001(a) (West 2014).

ELEMENTS OF PROOF 

"To prevail in a trespass-to-try-title action, a plaintiff must usually (1) prove a regular chain of conveyances from the sovereign, (2) establish superior title out of a common source, (3) prove title by limitations, or (4) prove title by prior possession coupled with proof that possession was not abandoned." Wilhoite v. Sims, 401 S.W.3d 752, 760 (Tex. App.-Dallas 2013, no pet.).

SOURCE: DALLAS COURT OF APPEALS - No. 05-13-01581-CV - 1/21/2015

In Coinmach Corp. v. Aspenwood Apartments Corp., 417 S.W.3d 909, 926 (Tex. 2013), the supreme court stated as follows:

We have previously held that, when "the trespass-to-try-title statute governs the parties' substantive claims . . ., [the plaintiff] may not proceed alternatively under the Declaratory Judgments Act to recover their attorney's fees." Martin v. Amerman, 133 S.W.3d 262, 267 (Tex. 2004). In so holding, we noted that the Legislature has provided the trespass-to-try-title statute as "the method of determining title to . . . real property," and the Legislature did not provide for attorney's fees in such actions. Id. (citing TEX. PROP.CODE § 22.001(a)) (emphasis added).. . . .

It is undisputed that the present case requires determination of the parties' possessory rights to the property. We see no legitimate basis to distinguish this case from Martin, in which we affirmed and upheld the Legislature's intent that chapter 22 of the Texas Property Code govern the resolution of disputes involving legal interests in real property.

Id. (emphasis original); see also Sani v. Powell, 153 S.W.3d 736, 745 (Tex. App.-Dallas 2005, pet. denied) (stating "[a]ny suit that involves a dispute over the title to land is, in effect, an action in trespass to try title, whatever its form" and attorney's fees pursuant to the declaratory judgments act "are not available in a suit to quiet title or to remove cloud on title"). Although both sides in the case before us couched their claims in terms of requests for declarations, everything requested of the court is necessary to, and a component of, the ultimate relief sought, which is to clear title to the front strip.[12] See Sani, 153 S.W.3d at 746. Accordingly, we conclude the Furnisses were not entitled to an award of attorney's fees under the declaratory judgments act and the trial court abused its discretion by awarding those fees. Id.; see Coinmach Corp., 417 S.W.3d at 926; XTO Energy, Inc., 357 S.W.3d at 62-63 (concluding that although validity of deed was contested, essence of suit was title dispute and therefore award of attorney's fees pursuant to declaratory judgments act was improper); see also RIHR Inc., 308 S.W.3d at 454.

We decide in ADLO's favor on its fifth issue.

SOURCE: FIFTH COURT OF APPEALS IN DALLAS TEXAS - No. 05-13-01581-CV - 1/21/2015

Thursday, April 16, 2015

Premises Liability Case - Necessary Elements of Proof (2015)


PREMISES LIABILITY CLAIMS IN TEXAS - ELEMENTS OF PROOF  

In a premises liability case, the plaintiff must establish a duty owed to the plaintiff, breach of the duty, and damages proximately caused by the breach. Del Lago Partners, Inc. v. Smith, 307 S.W.3d 762, 767 (Tex. 2010)(citations omitted); Chappell v. Allen, 414 S.W.3d 316, 323 (Tex.App.-El Paso 2013, no pet.)(threshold question in a premises liability case, as with any cause of action based on negligence, is existence of and violation of a duty).

Whether a duty exists is a question of law for the court and turns "on a legal analysis balancing a number of factors, including the risk, foreseeability, and likelihood of injury, and the consequences of placing the burden on the defendant." Del Lago Partners, Inc., 307 S.W.3d at 767.

STATUS OF INJURED PARTY IN RELATION TO PRESENCE ON PROPERTY WHERE INJURY OCCURRED IS IMPORTANT

The duty owed by a premises owner or occupier is determined by the status of the complaining party at the time and place of injury. Scott & White Mem'l Hosp. v. Fair, 310 S.W.3d 411, 412 (Tex. 2010); Del Lago Partners, Inc., 307 S.W.3d at 767 (in premises liability cases, scope of duty turns on the plaintiff's status); Chappell, 414 S.W.3d at 323. The status of the complaining party in a premises liability case may be that of an invitee, a licensee, or a trespasser. See Scott & White Mem'l Hosp., 310 S.W.3d at 412 (invitee); Texas-Louisiana Power Co. v. Webster, 91 S.W.2d 302, 306 (Tex. 1936)(licensee and trespasser); Chappell, 414 S.W.3d at 323 (invitee and licensee); Forester v. El Paso Elec. Co., 329 S.W.3d 832, 837 (Tex.App.-El Paso 2010, no pet.)(invitee and licensee); Wong v. Tenet Hosp. Ltd, 181 S.W.3d 532, 537 (Tex.App.-El Paso 2005, no pet.)(examining status as invitee, licensee, and trespasser); City of El Paso v. Zarate, 917 S.W.2d 326, 330 (Tex.App.-El Paso 1996, no writ)(trespasser and licensee); see also Montes v. Indian Cliffs Ranch, Inc., 946 S.W.2d 103, 106 (Tex.App.-El Paso 1997, writ denied)(status may change based on person's location on premises).

An invitee is a person who enters the premises of another at the express or implied invitation of the owner or occupier for the parties' mutual benefit. Chappell, 414 S.W.3d at 323; Forester, 329 S.W.3d at 837.

Diez was Alaska's invitee. Generally, a property owner owes an invitee a duty to use ordinary care to reduce or eliminate an unreasonable risk of harm created by a premises condition about which the property owner knew or should have known. See Del Lago Partners, Inc., 307 S.W.3d at 767; TXI Operations, L.P. v. Perry, 278 S.W.3d 763, 764-65 (Tex. 2009)(premises owners and occupiers owe a duty to keep their premises safe for invitees against known conditions that pose unreasonable risks of harm). The duty is to "take whatever action is reasonably prudent under the circumstances to reduce or to eliminate the unreasonable risk from that condition." TXI Operations, L.P., 278 S.W.3d at 764-65 (quoting Corbin v. Safeway Stores, Inc., 648 S.W.2d 292, 295 (Tex. 1983)). When such a duty is owed, the premises owner or occupier must either adequately warn of the dangerous condition or make the condition reasonably safe. See TXI Operations, L.P., 278 S.W.3d at 765; State v. Williams, 940 S.W.2d 583, 584 (Tex. 1996)(per curiam).

Thus, as an invitee asserting a premises liability claim, Diez was required to prove: (1) actual or constructive knowledge of some condition on the premises by the owner/operator; (2) the condition posed an unreasonable risk of harm; (3) the owner/operator did not exercise reasonable care to reduce or eliminate the risk; and (4) the owner/operator's failure to use such care proximately caused the plaintiff's injury. CMH Homes, Inc. v. Daenen, 15 S.W.3d 97, 99 (Tex. 2000).

SOURCE: EL PASO COURT OF APPEALS - No. 08-13-00144-CV - 1/7/2015


Wednesday, April 15, 2015

Expert Report Requirements in Med-Mal Case as articulated in recent (2015) appellate opinions


HEALTH CARE LIABILITY CLAIMS IN TEXAS - THE STATUTORY EXPERT REPORT REQUIREMENT 

The Medical Liability Act provides that a claimant in a health care liability claim shall serve an expert report showing that the claim has merit within 120 days of the date the suit was filed. See TEX. CIV. PRAC. & REM. CODE ANN. § 74.351(a) (West Supp. 2014).

Section 74.351 requires the expert report to provide a fair summary of the expert's opinions regarding: (1) the applicable standards of care; (2) the manner in which the care rendered failed to meet the standards; and (3) the causal relationship between that failure and the injury, harm, or damages claimed. TEX. CIV. PRAC. & REM. CODE ANN. § 74.351(r)(6); Gray v. CHCA Bayshore, L.P., 189 S.W.3d 855, 858-59 (Tex. App.-Houston [1st Dist.] 2006, no pet.).

The expert report need not marshal all of the plaintiff's proof, but it must demonstrate an objective good faith effort to comply with the statutory requirements. See TEX. CIV. PRAC. & REM. CODE ANN. § 74.351(l); Palacios, 46 S.W.3d at 878; Gray, 189 S.W.3d at 859; Strom v. Mem'l Hermann Hosp. Sys., 110 S.W.3d 216, 221 (Tex. App.-Houston [1st Dist.] 2003, pet. denied).

To constitute a good faith effort to comply with the statute, the report must provide enough information to fulfill two purposes: it must (1) inform the defendant of the specific conduct that the plaintiff has called into question; and (2) provide a basis for the trial court to conclude that the claims have merit. Scoresby v. Santillan, 346 S.W.3d 546, 556 (Tex. 2011); Palacios, 46 S.W.3d at 879; Gray, 189 S.W.3d at 859. In making this determination, we review the information contained within the four corners of the report. Bowie Mem'l Hosp. v. Wright, 79 S.W.3d 48, 52 (Tex. 2002).

A conclusory report does not fulfill these two purposes. Palacios, 46 S.W.3d at 879. "[R]ather, the expert must explain the basis of his statements to link his conclusions to the facts." Earle v. Ratliff, 998 S.W.2d 882, 890 (Tex. 1999). The Act grants the trial court discretion to grant a plaintiff who timely serves a report one 30-day extension to cure its deficiencies. TEX. CIV. PRAC. & REM. CODE ANN. § 74.351(c).

SOURCE: FIRST COURT OF APPEALS OF TEXAS - 01-14-00448-CV - 2/26/2015

Expert Report Statutory Requirements

The Texas Civil Practice and Remedies Code defines an expert report as:
a written report by an expert that provides a fair summary of the expert's opinions 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.
See TEX. CIV. PRAC. & REM. CODE ANN. § 74.351(r)(6) (West Supp. 2014).

Further, the statute provides that a "court shall grant a motion challenging the adequacy of an expert report only if it appears to the court, after hearing, that the report does not represent an objective good faith effort to comply with the definition of an expert report." Id. at § 74.351(l). A good faith effort has been defined as a report that does not contain a material deficiency. Samlowski v. Wooten, 332 S.W.3d 404, 409-10 (Tex. 2011). Therefore, the report must include all the required elements and explain their connection to the defendant's conduct in a non-conclusory fashion. Id. at 410. When determining if a good faith effort has been made, the trial court is limited to the four corners of the report and cannot consider extrinsic evidence. Palacios, 46 S.W.3d at 878.

The purpose of an expert report under section 74.351 is to inform the defendants of the specific conduct the plaintiff has called into question and to provide the trial court with a basis to determine whether the plaintiff's claims have merit. See Kingwood Pines Hosp., LLC v. Gomez, 362 S.W.3d 740, 747 (Tex. App.-Houston [14th Dist.] 2011, no pet.). A report that merely states the expert's conclusions about the standard of care, breach, and causation does not fulfill these purposes. Palacios, 46 S.W.3d at 879. Instead, the expert must explain the basis of his statements to link his conclusions to the facts. Kingwood Pines Hosp., LLC, 362 S.W.3d at 747.

SOURCE: DALLAS COURT OF APPEALS  - 05-14-00586-CV - 3/6/2015

(In view of Dr. Mansfield's general and conclusory statements in his reports, we conclude that the trial court abused its discretion by failing to dismiss the claims against Senior Care Center. We resolve the issues against Senior Care Centers, reverse the trial court's order, and remand the case to the trial court for dismissal and a determination of attorney's fees and costs of court pursuant to section 74.351(b) of the TMLA. See PM Mgmt.-Trinity NC, LLC v. Kumets, 404 S.W.3d 550, 551 (Tex. 2013).)

Health care liability case governed by the Texas Medical Liability Act.  

Tex. Civ. Prac. & Rem. Code §§ 74.001-.507

The Act entitles a defendant to dismissal of a health care liability claim if she has not been served with an expert report showing that the claim has merit within 120 days of the date suit was filed. § 74.351(a)-(b); Scoresby v. Santillan, 346 S.W.3d 546, 549 (Tex. 2011). The trial court's refusal to dismiss may be immediately appealed. Tex. Civ. Prac. & Rem. Code § 51.014(a)(9); Scoresby, 346 S.W.3d at 549. We review a trial court's denial of a motion to dismiss under section 74.351 for abuse of discretion. Jelinek v. Casas, 328 S.W.3d 526, 539 (Tex. 2010); Bailey v. Amaya Clinic, Inc., 402 S.W.3d 355, 361 (Tex. App.-Houston [14th Dist.] 2013, no pet.). A trial court abuses its discretion if it acts in an unreasonable or arbitrary manner or without reference to any guiding rules or principles. Jelinek, 328 S.W.3d at 539; Bailey, 402 S.W.3d at 361.

The Act specifies requirements for an adequate report and mandates "an objective good faith effort to comply" with the requirements. Tex. Civ. Prac. & Rem. Code § 74.351(l), (r)(6); Scoresby, 346 S.W.3d at 549. It also authorizes a trial court to give a plaintiff who meets the 120-day deadline an additional 30 days to cure any deficiencies in the report. Tex. Civ. Prac. & Rem. Code § 74.351(c); Scoresby, 346 S.W.3d at 549. When determining if a good faith effort has been made, the trial court is limited to the four corners of the report and cannot consider extrinsic evidence. See Jelinek, 328 S.W.3d at 539; Bailey, 402 S.W.3d at 361.

An expert report must provide a fair summary of the expert's opinions regarding (1) the applicable standard of care; (2) the manner in which the care provided failed to meet that standard; and (3) the causal relationship between that failure and the injury, harm, or damages claimed. See Tex. Civ. Prac. & Rem. Code § 74.351(r)(6); Bailey, 402 S.W.3d at 361-62. In compliance with these standards, the expert report must incorporate sufficient information to inform the defendant of the specific conduct the plaintiff has called into question and provide a basis for the trial court to conclude the claims have merit. Bailey, 402 S.W.3d at 362.

A report may not merely contain the expert's conclusions about these elements. Jelinek, 328 S.W.3d at 539; Bailey, 402 S.W.3d at 362. The expert must explain the basis for his statements and link his conclusions to the facts. Jelinek, 328 S.W.3d at 539. However, a plaintiff need not present all the evidence necessary to litigate the merits of her case. Am. Transitional Care Ctrs. of Tex., Inc. v. Palacios, 46 S.W.3d 873, 875, 879 (Tex. 2001); Bailey, 402 S.W.3d at 362. The report may be informal in that the information need not fulfill the same requirements as the evidence offered in a summary judgment proceeding or at trial. Palacios, 46 S.W.3d at 879; Bailey, 402 S.W.3d at 362. The purpose of the expert report requirement is to deter frivolous claims, not to dispose of claims regardless of their merits. Loaisiga v. Cerda, 379 S.W.3d 248, 258 (Tex. 2012); Scoresby, 346 S.W.3d at 554. Thus, it is only a threshold mechanism to dispose of claims lacking merit. Certified EMS, Inc. v. Potts, 392 S.W.3d 625, 631 (Tex. 2013).

The standard of care is defined by what an ordinarily prudent health care provider or physician would have done under the same or similar circumstances. Palacios, 46 S.W.3d at 880; Bailey, 402 S.W.3d at 366. Identifying the standard of care is critical: whether a defendant breached her duty to a patient cannot be determined absent specific information about what the defendant should have done differently. Palacios, 46 S.W.3d at 880; Bailey, 402 S.W.3d at 366. While a "fair summary" is something less than a full statement of the applicable standard of care nd how it was breached, even a fair summary must set out what care was expected, but not given. Palacios, 46 S.W.3d at 880; Bailey, 402 S.W.3d at 366.

SOURCE: HOUSTON COURT OF APPEALS - 14TH DISTRICT - 14-14-00527-CV - 1/22/2015