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Torts No. 06-02-00014-CV, 5/22/2003. Click here for the full text of this decision FACTS: Rosemary Moore, individually and on behalf of the estate of Heather Moore, deceased, appeals from the dismissal of her medical malpractice suit against Mark E. Sutherland M.D. and Collom and Carney Clinic Association. Moore contends that the trial court abused its discretion: 1. by dismissing her claim for failing to file an expert report complying with the requirements of Texas Revised Civil Statutes article 4590i �13.01; and 2. by denying her request for a 30-day extension to file a new report. HOLDING: Reversed and remanded. Moore presented an expert report in letter form from Brent H. Miedema M.D., F.A.C.S. Miedema’s letter, in pertinent part, states: “It is my opinion that Dr. Sutherland should have had a high index of suspicion for a bile duct leak due to his dissection in this region. The patient most likely developed her bile duct leak on 3/8/98 when she developed abdominal pain and an increased need for narcotics. Most surgeons would have instituted a diagnostic evaluation to rule out bile peritonitis between 3/9/98 and 3/13/98. Dr. Sutherland’s failure to do so was below the standard of care. Had the diagnosis of bile peritonitis been made before discharge from the hospital, treatment would have prevented the patient’s death.” To comply with the expert report requirement, the plaintiff must only make a good-faith attempt to provide a fair summary of the expert’s opinions. To constitute a good-faith effort, the report must discuss the standard of care, breach, and causation with sufficient specificity to inform the defendant of the conduct the plaintiff has called into question, and to provide a basis for the trial court to conclude that the claims have merit. The court believes the report is a good faith attempt to give a fair summary of the standard of care, Sutherland’s breach and the time of his breach and the cause of Moore’s death. The magic words are not always used, but magical words are not necessary. Bowie Mem’l Hosp. v. Wright, 79 S.W.3d 48 (Tex. 2002). It is the substance of the opinions, not the technical words used, that constitutes compliance with the statute. The substance of these statements gave fair notice to Sutherland and the clinic of 1. the standard of care, i.e., what most surgeons would do; 2. what Sutherland did wrong, i.e., the failure to make a diagnostic evaluation for bile peritonitis; and 3. the cause of Moore’s death, i.e., the failure to diagnose and treat bile peritonitis. Moore included in her written response to the motion to dismiss, a request for an extension of time under subsection (g). In this response, Moore asserted that, if her expert report was inadequate, it was the result of her attorney’s mistake in misunderstanding the requirements of the statute. In the hearing on the motion for extension, Moore’s attorney elaborated on his mistaken understanding of the statutory requirements, and stated to the trial court that he filed his expert report before the Texas Supreme Court rendered its opinion in the case of American Transitional Care Centers of Texas, Inc. v. Palacios, 46 S.W.3d 873 (Tex. 2001), and was therefore unaware of the requirements for expert reports set out in that case. Because of his mistaken belief that the report he filed was sufficient under the law, Moore’s counsel urged the trial court to grant him an extension so he could file an adequate report. Aside from Sutherland’s and the clinic’s argument that the Palacioscase did not change the law, they did not controvert Moore’s counsel’s representations that he was mistaken about the requirements of article 4590i, �13.01, or that his failure to file what they contended was an adequate expert report was not the result of intentional disregard or conscious indifference, but was an accident and mistake. The terms “mistake or accident” and “conscious indifference” should be construed similarly to their application in the default judgment context. Horsley-Layman v. Angeles, 968 S.W.2d 533, 536 (Tex. App.-Texarkana 1998, no pet.). Various courts, including this one, have held that an attorney’s misunderstanding of the requirements of the law or of a specific statute, as well as calendaring errors or faulty office procedures, are sufficient to show mistake or accident and a lack of conscious indifference. The court concludes that Moore’s counsel did not act with conscious indifference or intentional disregard, but showed an accident or mistake, and thus was entitled to the 30-day extension in which to file a proper expert report. OPINION: Cornelius, J.; Ross, Carter and Cornelius, JJ.

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