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Group v. Vicento5/10/2005
In this medical malpractice case, appellant appeals the trial court's denial of his motion to dismiss challenging the sufficiency of the appellee's expert report. In a single issue, appellant argues the trial court erred in denying his motion to dismiss as a matter of law because the appellee's expert is not qualified to render an opinion regarding the chiropractic standard of care under Chapter 74 of the Texas Civil Practice and Remedies Code. We affirm.
FACTUAL AND PROCEDURAL BACKGROUND
Appellee Mark Vicento, a police officer, was injured in an automobile accident in September 2001. Vicento immediately sought treatment for his injuries at a chiropractic clinic. Appellant Edward F. Group, III, D.C., a chiropractor, treated Vicento's injuries. In November 2001, Group referred Vicento for an MRI (magnetic resonance imaging) of the lumbar spine. Group continued to treat Vicento over the next year. In 2003, Vicento underwent back surgery.
Vicento contends Group should have referred him to an expert spine surgeon for specialized treatment upon reviewing his MRI results in November 2001, and Group's failure to do so delayed Vicento's eventual surgery for approximately one year, exacerbating his injuries. Vicento filed this medical malpractice lawsuit against Group in January 2004, alleging claims of medical negligence. Specifically, Vicento claims Group "was negligent in failing to comply with the standard of care by failing to timely and adequately (i) test, (ii) assess, (iii) diagnose, (iv) treat, and (v) refer [Vicento] to a specialist when his condition worsened and deteriorated." Vicento asserts Group should have known his condition was such that he needed a specialist for treatment, and he contends Group's negligent acts and omissions delayed his spine surgery for a period of approximately two years, thereby aggravating his condition.
Vicento timely filed the expert report of Rezik Saqer, M.D., pursuant to Texas Civil Practice and Remedies Code section 74.351. See TEX. CIV. PRAC. & REM. CODE ANN. ยง 74.351 (Vernon 2005). In response, Group filed a motion to dismiss Vicento's case on the ground that Dr. Saqer's expert report did not comply with section 74.351 of the Texas Civil Practice and Remedies Code. Group alleged in his motion to dismiss that Dr. Saqer was not qualified to opine on the chiropractic standard of care and Dr. Saqer's expert report was inadequate. Group requested the trial court to order Vicento to cure the deficiency within 30 days or dismiss Vicento's cause of action. The trial court ordered Vicento to file a report complying with the statute within thirty days.
Vicento timely filed an amended expert report by Dr. Saqer. Group responded by filing a motion re-urging his prior motion to dismiss, arguing the amended expert report is deficient because (1) Dr. Saqer is not qualified to render an opinion on the chiropractic standard of care because he does not fit the statutory definition of "practicing health care" and is not qualified "on the basis of training and experience" as these terms are defined by section 74.402 of the Texas Civil Practice and Remedies Code, (2) Dr. Saqer's report does not state how Group deviated from the chiropractic standard of care, and (3) Dr. Saqer's report fails to comply with section 74.403 in failing to state how Group's actions caused any injury to Vicento.
The trial court denied Group's second motion to dismiss. Group filed this interlocutory appeal from the trial court's order.
DISCUSSION
A. Standard of Review
We review a trial court's decision on a motion to dismiss a case under Texas Civil Practice and Remedies Code section 74.3
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