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Click here for the full text of this decision FACTS:Cynthia Hieger’s physician prescribed Paxil CR, an antidepressant, and she filled the prescription at a Walgreens pharmacy. In October 2003, she obtained a refill and immediately began taking medicine from the refill container. The tablets in the container, however, were not Paxil CR but were Ambien, a sleep medication. A Walgreens pharmacy employee had placed the label for the Paxil CR prescription over a label for Ambien. The Hiegers filed their health-care liability claim on Dec. 21, 2005, alleging Walgreen incorrectly refilled Hieger’s prescription for Paxil CR with Ambien. Hieger alleged that the abrupt discontinuation of Paxil CR, combined with the effects of taking Ambien during the day, caused her to suffer “severe and excruciating pain, migraines, nausea, irritability, super-sensitivity to light and sound, anxiety, fear, nightmares, inability to perform household functions, inability to stand-up, irrational behavior and to suffer very severe depression.” On April 20, 2006, the 120th day after filing suit, the Hiegers filed an expert report by Diane B. Ginsburg, a registered pharmacist and clinical professor and assistant dean for student affairs at the College of Pharmacy at the University of Texas at Austin. Walgreen objected to Ginsburg’s expert report and moved to dismiss pursuant to Texas Civil Practice & Remedies Code �74.351, arguing that: 1. Ginsburg’s report was inadequate, because it did not address causation; and 2. Ginsburg, as a pharmacist, was not qualified to render a causation opinion. The Hiegers responded and requested a 30-day extension to file an additional expert report pursuant to �74.351(c). The trial court granted the extension, and the Hiegers filed an expert report by Dr. Reed Young, a doctor licensed in Texas who is board certified in adult neurology and sleep medication. Walgreen filed another motion to dismiss, arguing that Dr. Young’s expert report did not adequately address causation, which the trial court denied. Walgreen appealed the trial court’s denial of this second motion to dismiss. HOLDING:Reversed and remanded. In its sole issue, Walgreen contended that the trial court erred by denying its second motion to dismiss, because the Hiegers did not present an adequate expert opinion regarding causation. Pursuant to �74.351, health-care liability claimants must provide an expert report to the defendant no later than 120 days after filing the original petition. A defendant may then file a motion challenging the adequacy of the report. The trial court must grant the motion if it appears that the report does not represent a good-faith effort to comply with the statutory definition of an expert report. Section 74.351(r)(6) 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 the applicable standard of care, the manner in which that standard was breached, and the causal relationship between that breach and the injury, harm or damages claimed. The expert’s report must include opinions on the three statutory elements: standard of care, breach and causation. Walgreen Co., the court stated, contended that Young’s report did not provide a fair summary of the alleged causal relationship between the incorrectly refilled prescription and Hieger’s alleged injuries. Specifically, Young opined that Hieger’s complaints of psychosis, hypersensitivity, jitteriness and increased pain were “consistent with the known side effects of each medication.” The court agreed with Walgreen that the phrase “consistent with” did not demonstrate a causal connection, because language indicating that Hieger’s symptoms were “consistent with” the known side effects of the medications was not the same as saying the symptoms were in fact caused by the medication. A description of only a possibility of causation does not constitute a good-faith effort to comply with the statute, the court stated. Thus, the court held that the trial court abused its discretion in failing to dismiss the case. OPINION:Yates, J.; Yates and Frost, JJ. DISSENT:Seymore, J. “[Young's] report constituted a good faith effort to summarize causation because it informed Walgreen of the specific conduct called into question and provided a basis for the trial court to conclude that the claims had merit. . . . I would hold that the trial court did not act in an arbitrary or unreasonable fashion without reference to guiding rules or principles.”

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