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IN
THE

TENTH COURT OF
APPEALS

No.
10-05-00197-CV

Rory
Lewis, M.D.,

Appellant

v.

Dewayne
Funderburk, as next

Friend
of Whitney Funderburk,

Appellee

From the 87th
District Court

Limestone
County,
Texas

Trial Court No.
27,143-B

MEMORANDUM
Opinion

Dewayne Funderburk filed a medical malpractice suit against Dr. Rory Lewis
alleging that Lewis improperly treated his daughter Whitney’s fractured
wrist.  The trial court denied Lewis’s motion to dismiss premised on
Funderburk’s failure to serve a sufficient expert report under section
74.351 of the Civil Practice and Remedies Code.  Lewis contends in
two issues that the court should have granted the motion to dismiss
because: (1) Funderburk’s expert, a family practitioner, is not qualified
to render an expert opinion on orthopedic care; and (2) the report is
conclusory and insufficient to establish causation.  Lewis also
contends that, if we sustain either of these issues, we should remand the
case to the trial court with instructions to award costs and attorney’s
fees.

On original submission, this Court, with Chief Justice Gray dissenting,
dismissed the appeal for want of jurisdiction, holding that Lewis’s notice
of appeal was untimely.  See Lewis v. Funderburk, 191 S.W.3d
756 (Tex. App.—Waco 2006).  The Supreme Court reversed and remanded
the case to this Court for consideration of the merits of Lewis’s
claims.[1]
See Lewis v. Funderburk, 253 S.W.3d 204, 208 (Tex.
2008).

We will: (1) reverse and render a judgment of dismissal; and (2) remand
this cause to the trial court for a hearing solely to determine the amount
of attorney’s fees and costs to be awarded.

Standard of
Review

This Court and others have regularly stated that we review a trial court’s
decision regarding the adequacy of a section 74.351 expert report under an
abuse-of-discretion standard.  See, e.g., Williams v. Mora,
264 S.W.3d 888, 891 (Tex. App.—Waco 2008, no pet.); Packard v.
Guerra, 252 S.W.3d 511, 515 (Tex. App.—Houston [14th Dist.] 2008, pet.
denied); Mosely v. Mundine, 249 S.W.3d 775, 778 (Tex. App.—Dallas
2008, no pet.); Spitzer v. Berry, 247 S.W.3d 747, 749 (Tex.
App.—Tyler 2008, pet. denied).  Lewis suggests that the appropriate
standard of review is “arguably” de novo.  He cites an article in the
Texas Bar Journal and two cases applying a de novo standard.
See George C. Hanks, Jr. & Rachel Polinger-Hyman, Redefining
the Battlefield: Expert Reports in Medical Malpractice Litigation After HB
4, 67 Tex. B.J. 936,
943 (2004); Univ. of Tex. Health Science Ctr. v. Gutierrez, 237
S.W.3d 869, 871 (Tex. App.—Houston [1st Dist.] 2007, pet. denied);
Kendrick v. Garcia, 171 S.W.3d 698, 703 (Tex. App.—Eastland 2005,
pet. denied).

The article does suggest that, because the Texas Legislature employed
slightly different language in Chapter 74 of the Civil Practice and
Remedies Code than its predecessor the Medical Liability and Insurance
Improvement Act (Tex. Rev. Civ.
Stat. Ann. art. 4590i), “an argument could be made that under
Section 74.351, another, more rigorous, standard should be applied.”
Hanks & Polinger-Hyman, Redefining the Battlefield, 67 Tex. B.J. at 943.  Despite
this suggestion, however, Texas courts have continued to apply the
abuse-of-discretion standard.  See Williams, 264 S.W.3d at
891; Packard, 252 S.W.3d at 515; Mosely, 249 S.W.3d at 778;
Spitzer, 247 S.W.3d at 749.

The two cases cited by Lewis involved the issue of whether the defendant
had been “served” with an expert report within the meaning of section
74.351(a).  See Gutierrez, 237 S.W.3d at 871; Kendrick,
171 S.W.3d at 703.  In both cases, these courts construed the term
“serve” to mean service as defined by Rule of Civil Procedure 21a.
See Gutierrez, 237 S.W.3d at 872; Kendrick, 171 S.W.3d at
704.  Because both cases involved an issue of statutory construction,
a de novo standard of review was mandated.  See Kendrick, 171
S.W.3d at 703 (citing McIntyre v. Ramirez, 109 S.W.3d 741, 745
(Tex. 2003)) (other citation omitted).

The Fourteenth Court of Appeals has summarized the applicable standard of
review as follows:

We review a trial court’s decision on a motion to dismiss under Texas
Civil Practice and Remedies Code section 74.351 for an abuse of
discretion.  When reviewing matters committed to the trial court’s
discretion, we may not substitute our own judgment for that of the trial
court.  However, to the extent resolution of the issues presented
requires interpretation of the statute, we review the order under a de
novo standard.

Packard, 252 S.W.3d at 515 (citations
omitted).  We believe this to be a proper summary of the applicable
standard.  See Ctr. for Neurological Disorders, P.A. v.
George, 261 S.W.3d 285, 291 (Tex. App.—Fort Worth 2008, pet. filed)
(declining to apply de novo standard “absent any controlling authority”);
Kendrick, 171 S.W.3d at 702-03 (same).

To determine the adequacy of an expert report under section 74.351, the
inquiry is limited to the four corners of the report.
Williams, 264 S.W.3d at 891 (citing Bowie Mem’l Hosp. v.
Wright, 79 S.W.3d 48, 52 (Tex. 2002) (per curiam); Am. Transitional
Care Ctrs. of Tex., Inc. v. Palacios, 46 S.W.3d 873, 878 (Tex.
2001)).  With respect to the proffered expert’s qualifications, the
curriculum vitae may also be considered.  Mosely, 249 S.W.3d
at 779; Mem’l Hermann Healthcare Sys. v. Burrell, 230 S.W.3d 755,
758 (Tex. App.—Houston [14th Dist.] 2007, no pet.); see In re McAllen
Med. Ctr., Inc., 51 Tex. Sup. Ct. J. 1302, 1304, 2008 Tex. LEXIS 759,
at *7-8 (Tex. Aug. 29, 2008).

Expert
Qualifications

Lewis contends in his first issue that Funderburk’s expert, Dr. Larry
Hughes, is not qualified to provide expert opinion regarding orthopedic
care because Hughes is a family practitioner.

Section 74.401 establishes the qualifications for an expert witness in a
malpractice suit against a physician.  See Tex. Civ. Prac. & Rem. Code
Ann. § 74.401 (Vernon 2005).  Subsection (a)
provides:

In a suit involving a health care liability claim against a physician for
injury to or death of a patient, a person may qualify as an expert witness
on the issue of whether the physician departed from accepted standards of
medical care only if the person is a physician who:

(1) is
practicing medicine at the time such testimony is given or was practicing
medicine at the time the claim arose;

(2) has
knowledge of accepted standards of medical care for the diagnosis, care,
or treatment of the illness, injury, or condition involved in the claim;
and

(3) is
qualified on the basis of training or experience to offer an expert
opinion regarding those accepted standards of medical care.

Id. §
74.401(a).

Lewis’s complaint focuses primarily on the third requirement of section
74.401(a), but it also includes to a degree a challenge to Hughes’s
showing that he has knowledge of the accepted standard of care, which is
the second requirement of this statute.

Subsection (a)(2) provides that a proffered expert must have “knowledge of
accepted standards of medical care for the diagnosis, care, or treatment
of the illness, injury, or condition involved in the claim.”
Id. § 74.401(a)(2).  “The statute does not focus on the
defendant doctor’s area of expertise, but on the condition involved in the
claim.”  McKowen v. Ragston, 263 S.W.3d 157, 162 (Tex.
App.—Houston [1st Dist.] 2007, no pet.); accord Blan v. Ali, 7
S.W.3d 741, 746 (Tex. App.—Houston [14th Dist.] 1999, no pet.); see
also Roberts v. Williamson, 111 S.W.3d 113, 121 (Tex. 2003);
Baylor Univ. Med. Ctr. v. Biggs, 237 S.W.3d 909, 915 (Tex.
App.—Dallas 2007, pet. denied).

Subsection (a)(3) examines the proffered expert’s training and
experience.  Tex. Civ. Prac.
& Rem. Code Ann. § 74.401(a)(3).  Subsection (c)
provides:

In determining whether a witness is qualified on the basis of training or
experience, the court shall consider whether, at the time the claim arose
or at the time the testimony is given, the witness:

(1) is board
certified or has other substantial training or experience in an area of
medical practice relevant to the claim; and

(2) is
actively practicing medicine in rendering medical care services relevant
to the claim.

Id. § 74.401(c).

Possession of a license to practice medicine does not automatically
qualify the possessor as an expert on every medical question.
Roberts, 111 S.W.3d at 121; Broders v. Heise, 924 S.W.2d
148, 152 (Tex. 1996); McKowen, 263 S.W.3d at 163.  Conversely,
the proffered expert need not necessarily practice in the same field as
the defendant physician to qualify as an expert for that case.
See Roberts, 111 S.W.3d at 121; Broders, 924 S.W.2d
at 153; McKowen, 263 S.W.3d at 165; Keo v. Vu, 76 S.W.3d
725, 732 (Tex. App.—Houston [1st Dist.] 2002, pet. denied); Blan, 7
S.W.3d at 745-46.

If the subject of inquiry “is substantially developed in more than one
field, testimony can come from a qualified expert in any of those
fields.”  Broders, 924 S.W.2d at 154; accord Keo, 76
S.W.3d at 732; Blan, 7 S.W.3d at 745; see also Roberts, 111
S.W.3d at 121-22.  Similarly, if the subject of inquiry “is common to
and equally recognized and developed in all fields of practice, any
physician familiar with the subject may testify as to the standard of
care.”  McKowen, 263 S.W.3d at 165; Keo, 76 S.W.3d at
732; Blan, 7 S.W.3d at 745-46.  “The test to determine if a
particular expert is qualified is rooted in the expert’s training,
experience and knowledge of the standards applicable to the ‘illness,
injury, or condition involved in the claim.’”  Blan, 7
S.W.3d at 746 (quoting Tex. Rev.
Civ. Stat. Ann. art. 4590i, § 14.01(a)); accord McKowen, 263
S.W.3d at 162; Keo, 76 S.W.3d at 732; see also Tex. Civ. Prac. & Rem. Code
Ann. § 74.401(a)(2).

Here, Hughes’s four-page CV provides extensive information regarding his
education, training, and experience.  Cf. McAllen Med. Ctr.,
51 Tex. Sup. Ct. J. at 1304, 2008 Tex. LEXIS 759, at *7 (“The curriculum
vitae the plaintiffs submitted for Dr. Brown was a model of
brevity.”).  Hughes is board certified in family practice by the
American Osteopathic Board of General Practice.  He received his
doctorate in osteopathic medicine in 1980 from the Kirksville College of
Osteopathic Medicine in Missouri.  He did a one-year internship at
the South Bend Osteopathic Hospital in South Bend, Indiana.  He
established a family practice in Indiana after his internship and
maintained that practice for eleven years before moving to Limestone
County in 1992.  He has continued to practice medicine in Limestone
County since then.

Hughes stated in his CV that his “special medical interests” are endoscopy
of upper and lower GI tracts, asthma/COPD, migraine headaches, chronic
pain and Alzheimer’s disease.  Because of his general practice,
however, he “continue[s] to treat, evaluate, and refer, when necessary,
orthopedic problems, including wrist fractures.”  He also stated in
his report that he “maintain[s] and utilize[s] authoritative texts to
assist me in the diagnosis and treatment of orthopedic cases.”
See Roberts, 111 S.W.3d at 122 (“Finally, Dr. McGehee consulted
several peer-reviewed medical journal articles and textbooks on pediatric
neurology.”).

Lewis argues that Hughes is not qualified because his “CV is silent as to
any orthopedics interest or expertise.”  He also complains that
Hughes’s “limited knowledge and experience is born out” by the fact that
his opinion on the applicable standard of care in this case is based
solely on his reference to “the textbook ‘Practical Orthopedics 5th
edition’ by Mercier.”  Finally, he contends that Hughes is not
qualified because his report does not indicate that he has any specialized
knowledge regarding the particular treatments and procedures Lewis
employed in treating the fractured wrist.

Lewis has provided the Court with a copy of purported excerpts from the
textbook at issue in the appendix to his brief.  Funderburk responds
that we should not consider these excerpts because they were not presented
to the trial court and are not part of the appellate record.  See
Guajardo v. Conwell, 46 S.W.3d 862, 864 (Tex. 2001) (per curiam);
In re Estate of Bendtsen, 230 S.W.3d 823, 830 (Tex. App.—Dallas
2007, pet. denied); WorldPeace v. Comm’n for Lawyer Discipline, 183
S.W.3d 451, 465 n.23 (Tex. App.—Houston [14th Dist.] 2005, pet.
denied).  Lewis responds that appellate courts regularly take
judicial notice of such publications.  However, not one of the cases
cited for this proposition by Lewis involved appellate review of the
adequacy of an expert report under section 74.351 or its predecessor
article 4590i.[2]
Moreover, considering additional materials provided by the parties for the
first time on appeal would be directly contrary to the settled scope of
review in such appeals, namely, that the review is limited to the four
corners of the report and the proffered expert’s CV.  See Bowie
Mem’l Hosp., 79 S.W.3d at 52; Palacios, 46 S.W.3d at 878;
Williams, 264 S.W.3d at 891; Mosely, 249 S.W.3d at 779;
Mem’l Hermann Healthcare, 230 S.W.3d at 758; see also McAllen
Med. Ctr., 51 Tex. Sup. Ct. J. at 1304, 2008 Tex. LEXIS, at
*7-8.  Therefore, we will not consider the excerpts provided by Lewis
in the appendix to his brief.

An expert need not be certified in the same area of specialization as the
defendant physician.  See Roberts, 111 S.W.3d at 121;
Broders, 924 S.W.2d at 153; McKowen, 263 S.W.3d at 165;
Keo, 76 S.W.3d at 732; Blan, 7 S.W.3d at 745-46.  Thus,
Lewis’s general argument that Hughes is not qualified because he is a
family practitioner “ignores the plain language of [section 74.401(a)(2)],
which focuses not on the defendant doctor’s area of expertise,
but on the condition involved in the claim.”  Blan, 7
S.W.3d at 746; see Tex.
Civ. Prac. & Rem. Code Ann. § 74.401(a)(2).

In the same vein, we reject Lewis’s claim that Hughes is not qualified
because his report does not indicate that he has any specialized knowledge
regarding the particular treatments and procedures Lewis employed.
The condition about which the Funderburks complain is Whitney’s
“malunited left distal radius fracture.”  Hughes does not opine that
this condition was caused by “the closed reduction performed by Dr. Lewis,
the application of a sugar tong splint, [or] the application of a short
arm cast,” which are three of the four orthopedic procedures Lewis argues
that Hughes lacks expertise in.[3]
Rather, Hughes opines that this malunion was caused by Lewis’s failure to
properly monitor Whitney’s recovery via x-rays obtained at appropriate
intervals “to indicate whether or not the fracture was properly
healed.”

At the time of the report, Hughes had been a family practitioner for
twenty-three years.  His is necessarily a general practice, but it
includes the provision of orthopedic care and, specifically, the treatment
of wrist fractures.  See Tex. Civ. Prac. & Rem. Code
Ann. § 74.401(c).  Thus, Hughes is qualified to offer an
expert opinion regarding the appropriate standard of care for monitoring a
patient as her wrist fracture heals.  See McKowen, 263 S.W.3d
at 162-64 (specialist in infectious disease qualified to give opinion
about cardiothoracic surgeon’s failure to properly monitor patient after
diagnosis of infection); Keo, 76 S.W.3d at 732-33 (otolaryngologist
qualified to give opinion regarding appropriate postoperative procedures
following cosmetic surgery); Keeton v. Carrasco, 53 S.W.3d 13,
25-26 (Tex. App.—San Antonio 2001, pet. denied) (physician who specialized
in physical medicine,
rehabilitation, and pain management qualified to give opinion regarding
standard of care for post-operative infection following orthopedic
surgery).

Finally, experts often rely on textbooks and other publications to guide
them in determining the accepted standard of care.  See, e.g.,
Roberts, 111 S.W.3d at 122.  Thus, we cannot conclude that
Hughes’s reliance on the textbook he cited should be cause for
concern.

Therefore, even assuming Hughes’s qualifications to provide an expert
opinion in this case are borderline (which we do not), we cannot say the
court abused its discretion by finding Hughes to be sufficiently qualified
to provide expert opinion regarding the manner in which Lewis monitored
Whitney’s recovery.  See Larson v. Downing, 197 S.W.3d 303,
304 (Tex. 2006) (per curiam) (“Whether to exclude Bell’s testimony is a
close call on this record.  Close calls must go to the trial
court.”).  Accordingly, we overrule Lewis’s first issue.

Causation

Lewis contends in his second issue that Hughes’s report is conclusory and
insufficient to establish causation.

Section 74.351(r)(6) provides the requisites for a sufficient expert
report.

“Expert
report” means a written report by an expert that provides 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.

Tex.
Civ. Prac. & Rem. Code Ann. § 74.351(r)(6) (Vernon Supp.
2008).

“The report need only represent a good-faith effort to provide a
fair summary of the expert’s opinions.”  Wooten v.
Samlowski, No. 10-07-00305-CV, 2008 Tex. App. LEXIS 3709, at *4 (Tex.
App.—Waco May 21, 2008, pet. filed) (citing Palacios, 46 S.W.3d at
878); accord Gray v. CHCA Bayshore, L.P., 189 S.W.3d 855, 858-59
(Tex. App.—Houston [1st Dist.] 2006, no pet.); Gallardo v. Ugarte,
145 S.W.3d 272, 277 (Tex. App.—El Paso 2004, pet. denied); Costello v.
Christus Santa Rosa Health Care Corp., 141 S.W.3d 245, 249  (Tex.
App.—San Antonio 2004, no pet.); see Tex. Civ. Prac. & Rem. Code
Ann. § 74.351(r)(6).   To constitute a fair
summary, the report “must set out what care was expected, but not
given.”  Palacios, 46 S.W.3d at 880 (quoting Palacios v.
Am. Transitional Care Ctrs. of Tex., Inc., 4 S.W.3d 857, 865 (Tex.
App.—Houston [1st Dist.] 1999) (Taft, J., dissenting)); Gallardo,
145 S.W.3d at 278.  In other words, the report must provide “specific
information about what the defendant should have done differently.”
Palacios, 46 S.W.3d at 880; Gray, 189 S.W.3d at 859;
Gallardo, 145 S.W.3d at 277-78.

Here, Hughes opines in his report that the applicable standard of care
calls for x-rays at regular intervals to confirm the wrist fracture is
healing properly and that “loss of position has not occurred.”  He
states that Lewis deviated from this standard of care by failing to have
x-rays taken at several specified points during the healing process and
when the cast was removed.  He concludes that “[t]hese deviations and
breaches of the standard care [sic] were the proximate causes of the
malunited left distal radius fracture.”

Hughes’s report is similar to reports found deficient in Gray and
Costello.  In Gray, the expert report faulted the
doctor’s failure to properly monitor the positioning of the plaintiff’s
knee.  See Gray, 189 S.W.3d at 859.  The First Court of
Appeals found this insufficient to establish causation.

Here, Dr.
Toussaint's report contains only a general statement that appellees failed
to monitor Gray's left knee properly.  The report provides no
specific information concerning what actions appellees should have taken
in the event they observed Gray's knee flexing.  Indeed, a literal
reading of the report's most direct statements concerning breach leads to
the conclusion that simply monitoring Gray's extremities, and taking no
corrective action, would have prevented her injury.  In view of such
general and conclusory statements concerning breach, we cannot conclude
that the trial court abused its discretion in dismissing Gray's
suit.

Id. at 859-60.

In Costello, the report faulted a hospital’s failure to
“appropriately triage[ ] and evaluate[ ]” the plaintiff.  See
Costello, 141 S.W.3d at 249.  The San Antonio Court found this
report insufficient to establish causation.

Dr.
Schilling offers no explanation of what medical information a more timely
triage and evaluation would have revealed, nor does he state what would
have been done had Christus not failed to act, what treatment would have
or could have been available, that the patient was a candidate for the
unknown treatment, or that the unknown treatment could have or would have
been effective.  Dr. Schilling’s report fails to state how Christus’
failure to act was a substantial factor in bringing about Lozano’s death
and without which her death would not have occurred.

Id. at
249.

This Court reached a similar conclusion recently in
Wooten.

These sections of Dr. Patman’s otherwise well-detailed and specific report
ultimately do not explain how Dr. Samlowki’s alleged breaches
caused Wooten’s injury, harm, and damages (the multiple life-threatening
complications, resultant multiple operations, multiple organ failure with
permanent damage, multiple prolonged hospital admissions, and future
medical care).  From the overall gist of the report, we could
infer—and it is almost obvious—that Dr. Patman is of the opinion that, had
Dr. Samlowski not breached the standard of care, he more likely than not
would have found the source of Wooten’s acute abdomen in the beginning,
and she in all reasonable medical probability would not have suffered such
injury, harm, and damages.  But we cannot make such an inference, nor
can we fill in gaps by stating the obvious.

Wooten, 2008 Tex. App. LEXIS 3709, at
*18-19.

Funderburk acknowledges this line of cases but argues that his case is
more similar to the facts presented in Gallardo because the report
in that case “indicated that if the proper steps had been taken the injury
could have been prevented from occurring or progressing.”  He
contends that this is analogous to Hughes’s “opinions that had x-rays been
taken as required by the standard of care that the alignment could have
been monitor[ed] and maintained and the malunion and subsequent surgery
avoid[ed].”

We do not agree with Funderburk’s interpretation of Hughes’s report.
First, Hughes never states that, had Lewis conducted additional x-rays, a
proper alignment for the fracture could have been “maintained.”  At
best, Hughes opines that Lewis could have monitored the alignment with
regular x-rays and inferentially would have detected any misalignment at
an earlier stage in the healing process.  However, a proffered expert
report cannot be deemed sufficient because of inferences which may be
drawn from its contents, even if those inferences are reasonable, logical,
or even “obvious.”  See Bowie Mem’l Hosp., 79 S.W.3d at 53;
Wooten, 2008 Tex. App. LEXIS 3709, at *18-19; Baylor
Univ. Med. Ctr. v. Rosa, 240 S.W.3d 565, 570 (Tex. App.—Dallas 2007,
pet. denied).

Second, even if we could infer from Hughes’s report that Lewis would have
detected a misalignment if he had ordered more frequent x-rays, Hughes’s
report is completely silent about what Lewis could or should have done
upon detecting a misalignment.  See Gray, 189 S.W.3d at
859-60; Costello, 141 S.W.3d at 249; see also Wooten, 2008
Tex. App. LEXIS 3709, at *18-19.  And this is what distinguishes
Hughes’s report from the report under consideration in
Gallardo.  In Gallardo, the plaintiff’s expert not only
faulted the nurse for failing to monitor the patient every two hours to
ensure that he changed his position in the bed (to prevent decubitus
ulcers), but also indicated additional steps that could be taken to
prevent the formation of ulcers including “padding his bed and applying
Granulex spray.”  See Gallardo, 145 S.W.3d at 279.  As
the Court explained, the report “adequately convey[ed] the idea that
failure to take the proper steps caused the decubitus or caused it to get
worse.”  Id. at 280.

Here, Hughes explained how Lewis failed to detect a misalignment, which
inferentially preceded the malunion, but he did not explain what Lewis
could or should have done about it upon making this discovery.
Therefore, we hold that Hughes’s report does not constitute a good-faith
effort to provide a fair summary of the causal relationship between
Lewis’s failure to monitor the fracture as it healed and the malunited
fracture.  Accordingly, we sustain Lewis’s second issue.

Appropriate
Disposition

Lewis contends that, because Funderburk has already been granted the
opportunity to file an amended expert report, this Court should render
judgment dismissing Funderburk’s claims but remand the case to the trial
court for the award of costs and attorney’s fees.

Lewis requested costs and attorney’s fees in his trial pleadings.
Cf. Victoria Gardens of Frisco v. Walrath, 257 S.W.3d 284, 291
(Tex. App.—Dallas 2008, pet. denied) (defendant’s prayer for general
relief insufficient to preserve right to recover costs and attorney’s fees
under section 74.351(b)(1)).  Under section 74.351(b)(1), the trial
court has a duty to award costs and attorney’s fees in this
instance.  See Tex.
Civ. Prac. & Rem. Code Ann. § 74.351(b)(1) (Vernon Supp. 2008);
Boothe v. Dixon, 180 S.W.3d 915, 921 (Tex. App.—Dallas 2005, no
pet.).

Therefore,
we reverse the trial court’s order denying Lewis’s motion to dismiss and
render a judgment of dismissal.  In addition, we remand this cause to
the trial court for a hearing solely to determine the amount of attorney’s
fees and costs to be awarded to Lewis.  See Bogar v. Esparza,
257 S.W.3d 354, 373 (Tex. App.—Austin 2008, no pet.); Boothe, 180
S.W.3d at 921.

FELIPE REYNA

Justice

Before
Chief Justice Gray,

Justice Vance, and

Justice Reyna

(Chief Justice Gray concurring
with note)*

Reversed
and Rendered in part,

Reversed and Remanded in part

Opinion
delivered and filed December 31, 2008

[CV06]

*
(Chief Justice Gray concurs in the judgment and in the opinion with regard
to the disposition of issues of the adequacy of the report and attorney’s
fees.  He does not join the opinion on the issue of qualifications
because it is not necessary to a disposition of the appeal and thus is
seven pages of dicta.  A separate opinion will not
issue.)

[1]

Lewis presented six issues on original submission.  See Lewis v.
Funderburk, 191 S.W.3d 756, 758 (Tex. App.—Waco 2006), rev’d,
253 S.W.3d 204 (Tex. 2008).  The Supreme Court effectively decided
Lewis’s first three issues against him.  See Lewis, 253 S.W.3d
at 208.  Lewis has filed a supplemental brief on remand narrowing his
issues accordingly.  See 10th Tex. App. (Waco) Loc. R. 19
(providing for filing of supplemental briefs upon remand from Supreme
Court or Court of Criminal Appeals).

[2]

Lewis cites the following cases as support for his contention that we
should take judicial notice of the contents of the textbook.
Edinburg Hosp. Auth. v. Trevino, 941 S.W.2d 76, 77 (Tex.
1997) (review of jury verdict); Ex parte Briseno, 135 S.W.3d 1, 5-6
(Tex. Crim. App. 2004) (postconviction habeas); Grimes v. State,
135 S.W.3d 803, 821 (Tex. App.—Houston [1st Dist.] 2004, no pet.)
(criminal appeal); Breckenridge v. State, 40 S.W.3d 118, 123-24
(Tex. App.—San Antonio 2000, pet. ref’d) (criminal appeal); Lemmon v.
United Waste Sys., Inc., 958 S.W.2d 493, 498-99 (Tex. App.—Fort Worth
1997, pet. denied) (wrongful termination); Bryant v. State, 685
S.W.2d 472, 474 (Tex. App.—Fort Worth 1985, pet. ref’d) (criminal
appeal).

[3]

The fourth procedure Lewis specifies is “x-ray imaging.”  Hughes’s
opinion obviously does relate to the manner in which Lewis conducted x-ray
imaging.  However, x-ray imaging is a procedure common to many
medical fields.  See Broders v. Heise, 924 S.W.2d 148,
154 (Tex. 1996) (if subject of inquiry “is substantially developed in more
than one field, testimony can come from a qualified expert in any of those
fields”); accord Keo v. Vu, 76 S.W.3d 725, 732 (Tex. App.—Houston
[1st Dist.] 2002, pet. denied); Blan v. Ali, 7 S.W.3d 741, 745
(Tex. App.—Houston [14th Dist.] 1999, no
pet.).