Farrah Agahi, D.M.D; Scott Law Ortho Corp., P.C.; And Julie Avalos v. Jeffrey Flynt

TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN NO. 03-24-00835-CV Farrah Agahi, D.M.D; Scott Law Ortho Corp., P.C.; and Julie Avalos, Appellants v. Jeffrey Flynt, Appellee FROM THE 200TH DISTRICT COURT OF TRAVIS COUNTY NO. D-1-GN-24-001469, THE HONORABLE JESSICA MANGRUM, JUDGE PRESIDING MEMORANDUM OPINION In this interlocutory appeal, Farrah Agahi, D.M.D.; Scott Law Ortho Corp., P.C. (Scott Law); and Julie Avalos contend that the trial court abused its discretion in denying their motion to dismiss Jeffrey Flynt’s health-care-liability claim (HCLC) for failure to file an expert report. See Tex. Civ. Prac. & Rem. Code § 74.351(b); see also id. § 51.014(a)(9) (authorizing interlocutory appeal from order that denies all or part of relief sought by motion under Section 74.351(b)). For the following reasons, we reverse the order denying appellants’ motion to dismiss and remand for dismissal and a determination of attorneys’ fees.  BACKGROUND Flynt, appearing pro se below, filed an original petition alleging HCLCs against appellants arising from the provision of orthodontic treatment. 1 Flynt alleges that on or about January 25, 2022, he was seen by Agahi for “the continuation of orthodontic treatment” and that Agahi “placed an orthodontic bracket to [his] tooth and instructed Defendant Avalos [a dental assistant] to secure it before leaving the room.” Flynt alleges that Avalos “incorrectly positioned the arch wires and used excessive force to position it, causing [Flynt] pain and discomfort,” and that Agahi “did not return to check the proper placement of the arch wires or coils.” Flynt alleges that nearly two months later, on or about March 19, 2022, he noticed that “the arch wire had broken and coils [were] missing inside his mouth.” He went to the emergency room, where it was discovered that three orthodontic components—a “broken arch wire approximately one inch long and two coil springs”—had entered his digestive system, posing a significant risk of gastrointestinal tract perforation. Flynt alleges that he was admitted to the hospital and remained under care until March 21, 2022, during which time he required continuous surveillance to ensure that the foreign bodies passed through his digestive system without causing further harm. He alleges negligence by appellants that caused him physical pain and suffering, medical expenses, loss of earnings, and emotional distress. He timely served on appellants an expert report signed by Leo Shushner, D.D.S., accompanied by Shushner’s curriculum vitae (CV). See Tex. Civ. Prac. & Rem. Code § 74.351(a) (requiring claimant asserting HCLC to serve expert report on each defendant within 120 days of defendant’s answer); see also id. § 74.351(r)(6) (setting out requirements of expert report). The relevant portions of Shushner’s expert report include the following: 1 Flynt has not filed an appellee’s brief. 2  Mr. Flynt was seen briefly by . . . Dr. Farrah2 . . . to position four orthodontic brackets onto the lower teeth. Dr. Farrah stayed for the positioning of the brackets and then left the operatory. The dental assistant bonded the brackets on the teeth. The dental assistant then proceeded to place the arch wires and two coil springs into the brackets, prior to securing and activating the appliances. Dr. Farrah did not return to make sure the brackets, arch wires and coil springs were properly placed or that the appliances were properly activated. On March 19, 2022 Mr. Flynt noticed the upper arch wire and coil springs missing from the upper left area of his mouth. Unable to find the missing components, Mr. Flynt went to the emergency room at Baylor Scott & White Hospital. That evening Anthony Panela Dumpit, MD diagnosed the presence of a foreign body in Mr. Flynt’s stomach. The foreign body consisted of three separate orthodontic components, a broken arch wire approximately one inch long and two coil springs. This presented a risk for gastrointestinal tract perforation. Ongoing surveillance was carried out at Baylor Scott & White Hospital until the foreign bodies safely cleared Mr. Flynt’s digestive tract on March 31, 2022. [listing the records upon which his findings and opinions are based] Standard of Care The Standard of Care maintains that