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Click here for the full text of this decision FACTS:HEB Grocery Co. pharmacist Lori Lynn Smith incorrectly filled Lisa Farenik’s prescription. Instead of providing Lisa with the correct prescription for Klonopin, an anti-anxiety medication, Smith gave her Clonidine, an anti-hypertensive drug designed to lower blood pressure. During the five days in which Lisa took the Clonidine, she experienced blurred vision and dizziness, symptoms commonly associated with hypotension. Eventually, Lisa suffered permanent vision loss and became legally blind. The Fareniks sued HEB, contending its negligence in dispensing Clonidine constituted the proximate cause of Lisa’s injuries. HEB stipulated that its pharmacist breached the standard of care by dispensing Clonidine instead of Klonopin; however, HEB specifically reserved its right to argue that the conduct of other persons proximately caused Lisa’s injuries. The court stated that “it is undisputed that Lisa exceeded the recommended dosage by taking the prescribed 0.1 mg of the drug at least four times per day, instead of the prescribed 0.1 mg two times per day.” The Fareniks served HEB with two expert reports, which the trial court determined were insufficient. In an attempt to cure the deficiencies, the Fareniks served HEB with an addendum to the report of only one of the experts, Dr. John E. Carter. The Fareniks did not attempt to cure the deficiencies in the report of the other expert. HEB again challenged Carter’s report, alleging, among other complaints, that Carter’s report failed to provide a sufficient opinion on causation. The trial court denied HEB’s motion to dismiss. On appeal, the sole issue was whether Carter’s expert report constitutes a “good faith effort” to fairly summarize the causal relationship between HEB’s negligence and Lisa’s injuries. HOLDING:Affirmed. Under Texas Civil Practice & Remedies Code �74.351(r)(6), a plaintiff who brings a health-care liability claim is required to file an expert report that contains “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.” The report need not marshal all of the plaintiff’s proof, the court stated; however, it must include the expert’s opinion on each of the elements identified in the statute: standard of care, breach and causation. The expert must explain the basis of his statements to link his conclusions to the facts, the court stated. HEB contended that Carter’s report improperly focused on the dosage taken by Lisa, rather than the dosage prescribed; therefore, his report was allegedly inadequate, because: 1. it did not connect Lisa’s injuries to HEB’s negligence in prescribing the wrong drug; and 2. it did no more than merely speculate that had Lisa taken the correct prescribed dosage, she still would have been injured. HEB argued that merely dispensing the wrong drug did not establish a causal link, and any causal link established by Carter existed only in a general sense of how a substance may cause a reaction in the general population and not in the specific sense of how a substance caused Lisa’s particular injury. Thus, according to HEB, Carter’s report had to link the dosage actually prescribed � not the dosage actually ingested � with Lisa’s injuries. The court disagreed with HEB’s characterization of Carter’s report. The Fareniks, the court stated, did not have to present evidence in the report as if they were actually litigating the merits of the case. Instead, the Fareniks had to provide an expert report that linked HEB’s negligent dispensing of the wrong drug with Lisa’s injuries. On this record, the court concluded that it was reasonable for the trial court to conclude that Carter’s report sufficiently informed HEB of the specific conduct that the Fareniks called into question and provided a basis for the trial court to conclude that the Fareniks’ claims had merit. Accordingly, the court found that the trial court did not abuse its discretion when it determined Carter’s report provided a fair summary on the issue of causation. OPINION:Marion, J.; Lopez, C.J., Marion and Speedlin, JJ. The trial court did not err in failing to grant an extension of time for Prince Joseph Bohannon to serve an expert report under Texas Civil Practice & Remedies Code �74.351(a). Bohannon v. Winston, Beaumont Court of Appeals, No. 09-07-075 CV, 10-4-2007. FACTS:Prince Joseph Bohannon, acting individually and in his capacity as the representative of the estate of his deceased wife, Shainel Leigh Bohannon, and as next friend of their child, Madison Leigh Bohannon, and by Shainel’s parents, Michael Inman and Gale Inman (the appellants) first brought claims against Dr. Barry Winston in a petition filed on April 24, 2006. A civil process request form directed service on Winston at a business address on Peakwood in Houston. In June 2006, the appellants filed copies of their experts’ reports and curricula vitae with the trial court, but Winston had not yet been served with citation, and the parties agree that Winston did not receive copies of the reports when the appellants filed them. The constable served Winston on Aug. 29, 2006. The appellants did not dispute that they served the report on Winston more than 120 days after they filed their suit against him. The appellants argued that Winston could not invoke the 120-day deadline for serving the expert reports, because Winston caused the delay in service of process of their original petition. The parties submitted the issue to the trial court on documents and affidavits. Winston’s affidavit stated that the Peakwood address was his only place of business in 2006. Winston’s receptionist supplied an affidavit stating that she worked for Winston at the Peakwood address from before the date the suit was filed and that the office closed every Friday at noon. A constable attempted service of citation after noon on Friday, May 24, 2006. The receptionist averred that she accepts deliveries, that she would have been the only person who would have spoken with anyone attempting service of process, and that she did not speak with a constable on that date. She swore that she did not represent to anyone that they had moved their office. A note on the front door, the receptionist also stated, notified patients that they would be moving to a Cypress Station address in the summer of 2006 but Winston’s office continued to operate as usual up to and including Nov. 13, 2006, when she made her affidavit. Bohannon relied on the constable’s return to establish that Winston evaded service of process. The constable attempted service on Winston at the Peakwood address at 3 p.m. on May 26, 2006, and noted “moved out to new address.” The constable attempted service on Winston at the Cypress Station address at 3:20 p.m. on May 30, 2006, and noted “not moving in for two more months.” The return stated “Barry Winston is in between offices now and . . . will not be moved in for two more months” and noted that citation should “reissue in late July to be served then.” HOLDING:Affirmed. Bohannon, the court stated, argued that the evidence demonstrated that Winston caused the delay in service by placing a sign on the door announcing a change in location that summer and by his office being closed when the constable attempted service. A party who fails to provide a current address for service, the court stated, cannot complain of a delay in actual notice. But the court found that Winston was not trying to evade service, because the address listed with the Board of Medical Examiners was the address where Winston’s office was physically located and where service was eventually perfected. No evidence, the court stated, indicated that Winston intended to deceive anyone by placing a sign on his door; rather, by all accounts, Winston apparently placed the sign there for the benefit of his patients, and the sign referred to a future event. Bohannon, the court noted, did not controvert the receptionist’s assertion that Winston customarily closed the office at noon on Fridays. Thus, the court found that Bohannon’s two attempts at service, only one of which was at the correct address, did not compel a finding that Winston was actively avoiding service. The trial court could reasonably find as a matter of fact that Winston was not avoiding service. Next, Bohannon argued that Texas Rule of Civil Procedure 21a provides an exception when service is attempted but not achieved. But the court found that the part of Rule 21a upon which Bohannon relied provides the trial court with the discretion to establish a date of service based upon the actual receipt of notice as opposed to the date of constructive delivery. Rule 21a does not speak to extending the deadline for providing service, the court stated. Bohannon also argued that the 120-day requirement under Texas Civil Practice & Remedies Code �74.351(a) should not apply until after the plaintiff obtains service of process. Because an unserved party has neither a duty to answer nor a right to participate in the suit, Bohannon argued, a plaintiff could theoretically prevent a doctor from objecting to a defective report by serving the report but delaying service of the petition until after the time to object elapsed. Likewise, Bohannon argued, a defendant like Winston could avoid service of process until the 120-day deadline expired. The court reiterated its previous holding that �74.351 did not provide the trial court with the discretion to grant an extension of time in the absence of an agreement of the parties. The potential for gamesmanship, the court stated, does not vest the courts with the power to legislate. Thus, the court held that the trial court did not err in failing to grant an extension of time for complying with �74.351(a). OPINION:McKeithen, J.; McKeithen, C.J., and Gaultney and Horton, JJ.

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