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Pisasale v. Ensign Group, Inc., 2006 Tex. App. LEXIS 7983 (Tex. App. 2006)

Plaintiffs sued nursing home and case was dismissed because their expert reports failed to comply with Tex. Rev. Civ. Stat. Art. 4590i, § 13.01. Defendants argued that one expert was not qualified and argued that the other was conclusory and did not sufficiently describe a causal link between the negligence and the injury. Plaintiffs argued that their affidavits were sufficient but, in the alternative, requested a 30 day extension to update the reports. The court denied the request for an extension and dismissed the case. Plaintiffs appealed. The court of appeals found that McMinn was not qualified to render an opinion as to causation. The second report concluded with a heading entitled: the causal relationship between the failure of Northern Oaks Nursing Center to meet the standard of care and the injuries suffered by Mr. Pisasale. The only statement under that heading was the following: “As a result of the failure to meet the standard of care by the nursing staff at Northern Oaks Mr. Pisasale suffered pain and required hospitalization. I think their negligence was a proximate cause of the deterioration and suffering sustained by Mr. Pisasale.” Beyond the absence of facts which rendered it conclusory, the court found that the phrase “I think” made it speculative. The trial court did not err by denying the motion for additional time since omitting a required element from the expert report is not a mistake of law. The judgment below was affirmed.

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