Fourth Court of Appeals
San Antonio, Texas
OPINION
No. 04-25-00759-CV
The UNIVERSITY OF TEXAS HEALTH SCIENCE CENTER AT SAN ANTONIO,
Appellant
v.
Ray MAGDALENO, Individually and Next Friend of M.M., a Minor,
Appellee
From the 408th Judicial District Court, Bexar County, Texas
Trial Court No. 2024-CI-06880
Honorable Angelica Jimenez, Judge Presiding
Opinion by: Velia J. Meza, Justice
Sitting: Lori Massey Brissette, Justice
Adrian A. Spears II, Justice
Velia J. Meza, Justice
Delivered and Filed: September 23, 2026
REVERSED, RENDERED, AND REMANDED
The University of Texas Health Science Center at San Antonio brings this interlocutory
appeal challenging the trial court’s order denying its Chapter 74 motion to dismiss a health care
liability claim brought by Ray Magdaleno, individually and as next friend of his son, M.M. The
Center contends that the trial court should have granted its motion to dismiss under section
74.351(b) of the Texas Civil Practice and Remedies Code since (1) the report author—a licensed
dentist—was not qualified to author an expert report in a suit against a physician and (2) the report
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failed to demonstrate training or experience in the specific care at issue. Because a dentist was not
qualified to author the report in this case, we reverse and render judgment dismissing Magdaleno’s
suit with prejudice and remand for a determination of attorney’s fees and costs owed to the Center.
BACKGROUND
In July 2022, M.M.’s primary care dentist found two extra teeth located in the front of his
mouth that needed surgical extraction. A 3D dental scan later confirmed the need. Wanting a
second opinion, M.M.’s parents consulted Dr. Mark Miller, M.D., D.M.D., a dentist and oral and
maxillofacial surgeon at the Center. They scheduled the surgical extraction with Dr. Miller, and
the procedure was completed on February 21, 2023.
After the extraction, Dr. Miller advised M.M.’s parents that “everything was done and [that
M.M.] did great.” At a post-operative follow-up appointment, Dr. Miller again advised “that
everything looked good and that [M.M.] might need a ball and chain if the tooth did not come out
on its own.” But on July 6, 2023, another dentist found that Dr. Miller had extracted the wrong
tooth.
Magdaleno sued the Center on April 1, 2024, asserting a purely vicarious health care
liability claim based on Dr. Miller’s negligence. As required by section 74.351 of the Texas Civil
Practice and Remedies Code, Magdaleno served the Center with an expert report authored by Dr.
Steven C. Maller, DDS, MS. 1 On September 20, 2024, the Center objected to the report and moved
to dismiss under section 74.351 of the Texas Civil Practice and Remedies Code. See TEX. CIV.
PRAC. & REM. CODE § 74.351(b), (l). The Center argued that Dr. Maller’s report was deficient
because he is a dentist, not a physician, and therefore was not qualified to opine on the standards
1
Because Magdaleno’s health care liability claim is purely vicarious in nature, the report need not “mention [the Center] or implicate its behavior,” but instead is sufficient if it “adequately implicates the actions of [the Center’s] agents or employees.” Gardner v. U.S. Imaging, Inc., 274 S.W.3d 669, 672 (Tex. 2008).
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of care applicable to a physician, whether those standards were breached, or the causal relationship
between the breach and M.M.’s alleged injuries. On October 29, 2024, the trial court denied the
motion and overruled the objections, and the Center appealed.
In the first interlocutory appeal, Magdaleno argued that a dentist could author the expert
report because Dr. Miller was “acting as” a dentist, rather than a physician, when he extracted
M.M.’s teeth. Univ. of Tex. Health Sci. Ctr. at San Antonio v. Magdaleno (Magdaleno I), 719
S.W.3d 667, 671 (Tex. App.—San Antonio 2025, no pet.). Assuming without deciding that the
“acting as” contention supplied the governing standard, we held that a physician was nevertheless
required to author the expert report because Dr. Maller’s own report showed that “Dr. Miller, as a
medical doctor and a doctor of dental medicine, was acting as a physician to M.M. and not a
dentist.” Id. We reversed and remanded “for the trial court to determine whether to grant
[Magdaleno] a thirty-day extension to file” an amended report. Id. at 673.
On remand, the trial court granted Magdaleno “a one-time, 30-day extension pursuant to
[s]ection 74.351(c) of the Texas Civil Practice and Remedies Code” and ordered him to serve a
report satisfying that section on the Center. Magdaleno served an amended report, again authored
by Dr. Maller. The Center again moved to dismiss and objected to the report. On November 6,
2025, the trial court denied the motion. This appeal followed.
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DISCUSSION
On appeal, the Center contends the trial court erred in denying its motion to dismiss and
overruling its objections to Dr. Maller’s amended report since (1) Dr. Maller is unqualified to
author an expert report in a suit against a physician and (2) the report failed to demonstrate Dr.
Maller had training or experience in the specific care at issue.
1. Standard of Review
Generally, a trial court’s ruling on a motion to dismiss under Chapter 74 is reviewed under
the abuse of discretion standard. Jelinek v. Casas, 328 S.W.3d 526, 539 (Tex. 2010); Complex
Rehab Techs., LLC v. Molina, 660 S.W.3d 535, 537 (Tex. App.—San Antonio 2022, no pet.).
However, if the issue involves the interpretation of a statute, we apply a de novo standard. Tex.
Laurel Ridge Hosp., L.P. v. Almazan, 374 S.W.3d 601, 604 (Tex. App.—San Antonio 2012, no
pet.).
2. In a Suit Against a Physician, Chapter 74 Requires an Expert Report Authored by a
Physician
In its first issue, the Center argues that the trial court erred in denying its motions and
overruling its objections to Dr. Maller’s report because he is a dentist and therefore not qualified
under Chapter 74 to opine on whether Dr. Miller departed from the standards of medical care
applicable to a physician or on the causal relationship between that departure and M.M.’s injury.
We agree.
Under Chapter 74 physicians are distinguished from all other health care providers.
Physicians are individuals licensed to practice medicine in Texas, whereas health care providers
include “any person . . . duly licensed, certified, registered, or chartered by the State of Texas to
provide health care,” such as dentists. TEX. CIV. PRAC. & REM. CODE § 74.001(a)(12)(A)(ii),
(a)(23)(A).
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Chapter 74 requires a claimant to serve “one or more expert reports . . . for each physician
or health care provider against whom a liability claim is asserted.” Id. § 74.351(a). An expert report
is “a written report by an expert that provides a fair summary of the expert’s opinions . . . 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.” Id. § 74.351(r)(6).
In a suit against a physician, the expert who opines on the departure from the standard of
care and causation must be a physician. Id. §§ 74.351(r)(5)(A), (r)(5)(C); 74.401(a)(1)–(3). In
some instances, the expert in a suit against a health care provider need not be a physician but must
still satisfy section 74.402(b)’s qualifications. Id. §§ 74.351(r)(5)(B), 74.402(b)(1)–(3).
In this case, the parties agree that Dr. Miller is a physician, but Magdaleno points out that
he is also licensed as a dentist. Relying on that dual licensure, Magdaleno contends—without citing
authority—that Dr. Maller, a licensed dentist, may author the report because Dr. Miller was “acting
as” a dentist, rather than a physician, when he extracted M.M.’s teeth. But Texas courts have
consistently held that nonphysicians may not opine on a physician’s departure from the standard
of care in a health care liability claim. See Badhiwala v. Favors, 340 S.W.3d 560, 564–65 (Tex.
App.—Dallas 2011, no pet.) (holding that expert reports from two nurses and a licensed
psychologist were deficient in a suit against a physician); Pangburn v. Anderson, No. 09-09-00169-CV, 2009 WL 4852211, at *4 (Tex. App.—Beaumont Dec. 17, 2009, no pet.) (mem. op.)
(holding that a registered nurse was unqualified as an expert witness pertaining to several
physicians’ standard of care and whether it was breached); Bradford v. Alexander, 886 S.W.2d
394, 397 (Tex. App.—Houston [1st Dist.] 1994, no writ) (holding that under Chapter 74’s
predecessor, a physician assistant is unqualified to opine on a physician’s departure from the
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applicable standard of care). And this holds true even if a health care provider is qualified to
provide the same care as a physician.
In Davis v. Webb the claimant argued that section 74.402 should apply in a suit against a
physician when a nonphysician could provide the same care complained of. 246 S.W.3d 768, 772
(Tex. App.—Houston [14th Dist.] 2008, no pet.). In interpreting Chapter 74’s expert qualification
provisions, the Davis court held that “only a physician may qualify as an expert witness on the
issue of whether a physician departed from the acceptable standards of medical care.” Thus, the
claimant’s expert report—which was authored by a nonphysician—was deemed deficient under
Chapter 74. Id. at 773.
Turning to the plain text of Chapter 74, we hold that a physician must author the expert
report in a health care liability claim against a physician. TEX. CIV. PRAC. & REM. CODE §§
74.351(r)(5)(A), 74.401(a), 74.403(a). Although health care is provided by various professionals—
such as physicians 2 and dentists—and at times this care may overlap between professions, Chapter
74 does not support Magdaleno’s “acting as” standard. Nor does it exempt experts from complying
with section 74.401’s qualifications in cases where physicians are dually licensed as health care
providers. As a result, we decline to adopt Magdaleno’s “acting as” standard.
Because Dr. Miller is a physician, Dr. Maller—a nonphysician—may not opine on the
applicable standard of care, on whether Dr. Miller breached it, or on the causal relationship
between that breach and M.M.’s injury. Magdaleno I, 719 S.W.3d at 671; Badhiwala, 340 S.W.3d
2
See generally Noel v. Oakbend Med. Ctr., No. 01-21-00206-CV, 2022 WL 3031347, at *3 (Tex. App.—Houston [1st Dist.] Aug. 2, 2022, pet. denied) (mem. op.) (stating that “the term ‘health care; necessarily involved the act of practicing medicine by a physician.”).
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at 564; Davis, 246 S.W.3d at 772–73; Pangburn, 2009 WL 4852211, at *4; Bradford, 886 S.W.2d
at 397. Accordingly, we sustain the Center’s first issue. 3
CONCLUSION
We reverse the order of the trial court denying the Center’s motion to dismiss; render
judgment dismissing Magdaleno’s suit against the Center with prejudice; and remand for a
determination of attorney’s fees and costs owed to the Center as required by section 74.35. See
TEX. CIV. PRAC. & REM. CODE § 74.351(b)(1)–(2), (c); see also Valley Baptist Med. Ctr.-Brownsville v. Battles, No. 13-14-00756-CV, 2015 WL 5579819, at *4 (Tex. App.—Corpus
Christi–Edinburg June 25, 2015, no pet.) (mem. op.) (rendering judgment of dismissal with
prejudice and remanding case to trial court “for a determination of attorney’s fees and cost”).
Velia J. Meza, Justice
3
Because the resolution of the Center’s first issue is dispositive of this appeal, we need not decide its second issue. See TEX. R. APP. P. 47.1 (“The court of appeals must hand down a written opinion that is as brief as practicable but that addresses every issue raised and necessary to final disposition of the appeal.”).
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