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Click here for the full text of this decision FACTS:The appellants, Betty Gail Kirksey, individually and as independent executrix of the estate of Hershel Alford Boss, Barbara Lee Perdigan, Mary Omega Roys, Ronnie Joe Boss, David Garrel Boss, and Dolores Barber (collectively referred to as Kirksey), appeal from an order dismissing their medical malpractice claim against appellee Dr. Sambasiva R. Marupudi. On Dec. 3, 1997, the appellants, who are the children of Hershel Alford Boss, filed a lawsuit alleging medical malpractice on the part of Marupudi. The latter had performed surgery on Boss for colon cancer. During the patient’s hospital stay, the 81-year-old fell while getting out of bed and broke his hip. After surgery on his broken hip, his condition deteriorated, resulting in his death. Kirksey claimed that Marupudi was negligent in failing to prevent the fall. On March 3, 1998, Kirksey filed her expert report as required under Texas Revised Civil Statutes Article 4590i. Four years later, on May 14, 2002, Marupudi filed a motion to dismiss the lawsuit on the basis that the report failed to meet requirements mandated by statute and case law. In response, Kirksey filed a motion seeking a 30-day grace period (if the court should find the report deficient) on the basis that the failure to comply was neither intentional nor the result of conscious indifference. After a hearing, the trial court granted the motion to dismiss and denied that requesting a 30-day grace period. HOLDING:Affirmed. The expert’s opinions here were and are founded upon hypotheticals. Again, Kumar does not specify the circumstances confronting Marupudi. Rather, the doctor simply posits the theorum that if X occurred (and assuming Marupudi knew of it), then Y was the appropriate response. Whether X occurred or whether Kirksey or Kumar alleged X occurred goes unmentioned in the report. And, because it does, the trial court lacked sufficient information about the circumstances of the dispute to determine whether Marupudi had a duty to act, breached that duty, if any, and whether that breach caused, in any way, Boss’ death. Thus, the trial court did not abuse its discretion in either concluding that the expert report fell short of that required by American Transitional Care Ctrs. of Tex. Inc. v. Palacios, 46 S.W.3d 873 (Tex. 2001), or in dismissing the suit. The court does not hold that a claimant must marshal his evidence in the expert report. As previously mentioned, that is not required. Yet, neither are conclusory statements permissible. Instead, to conform to the dictates of Palacios, the report must contain a description of the circumstances confronting the doctor and which purportedly obligated him to respond in a particular manner. Without them, no one can determine how a reasonable physician would have acted or whether the conduct actually undertaken caused any injury. Indeed, this is nothing more than requiring a plaintiff to give a defendant fair notice of his claim. A purportedly mistaken belief that the report complied with the statute does not negate a finding of intentional or conscious indifference. Walker v. Gutierrez, 111 S.W.3d 56, 65 (Tex. 2003). Given this, the trial court did not err in rejecting the basis upon which Kirksey alleged she was entitled to the extension. OPINION:Quinn, J.; Johnson, C.J., and Quinn and Reavis, JJ.

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