CROSSOVER: Chapter 74 Draws a Bright Line: Only a Physician May Supply Standard-of-Care and Causation Opinions Against a Physician

The University of Texas Health Science Center at San Antonio v. Magdaleno, 04-25-00759-CV, September 23, 2026.

On appeal from 408th Judicial District Court, Bexar County, Texas

Synopsis

When a Texas health care liability claim is based on the conduct of a physician, Texas Civil Practice and Remedies Code sections 74.351 and 74.401 require a physician to provide the expert-report opinions concerning standard of care, breach, and causation. A dentist cannot satisfy that requirement merely because the defendant holds both medical and dental licenses or allegedly was “acting as” a dentist when providing the challenged care.

Relevance to Family Law

Although Magdaleno is a health care liability case, its procedural holding can become important in divorce, custody, and property litigation whenever a party asserts or joins a Chapter 74 claim arising from medical treatment. Examples include a spouse’s professional-negligence claim against a physician, a child’s claim prosecuted by a parent as next friend, or litigation affecting the characterization and division of proceeds from a medical-malpractice recovery.

The decision also supplies an important limiting principle for family lawyers who regularly work with physicians, psychologists, dentists, and other professionals: professional overlap does not make their qualifications interchangeable under Chapter 74. If the underlying claim is asserted against a physician, a nonphysician’s expertise in the same procedure will not ordinarily qualify that person to provide the statutorily required standard-of-care, breach, and causation opinions. Conversely, Magdaleno does not impose Chapter 74’s physician-only requirement on ordinary custody evaluations or best-interest testimony that does not concern a health care liability claim.

Case Summary

Fact Summary

M.M.’s dentist identified two extra teeth in the front of the child’s mouth and recommended surgical extraction. After obtaining a three-dimensional dental scan, M.M.’s parents sought a second opinion from Dr. Mark Miller, who held both an M.D. and a D.M.D. and practiced as a dentist and oral and maxillofacial surgeon at the University of Texas Health Science Center at San Antonio.

Dr. Miller performed the extraction in February 2023. He advised M.M.’s parents that the procedure had been completed successfully and later stated at a postoperative appointment that everything looked good. Several months later, another dentist determined that Dr. Miller had extracted the wrong tooth.

Ray Magdaleno, individually and as next friend of M.M., sued the Center. The claim was purely vicarious and rested on Dr. Miller’s alleged negligence. To comply with section 74.351, Magdaleno served a report from Dr. Steven C. Maller, a licensed dentist who was not a physician.

The Center objected and moved to dismiss, arguing that a dentist was not qualified to opine on the standard of care, breach, or causation in a health care liability claim predicated on a physician’s conduct. In the first interlocutory appeal, the Fourth Court of Appeals held that the original report showed Dr. Miller was acting as a physician and remanded for the trial court to decide whether to allow the statutory thirty-day opportunity to cure.

On remand, the trial court granted the extension. Magdaleno nevertheless served an amended report from the same dentist. The Center renewed its objections and motion to dismiss, but the trial court again denied dismissal. The Center brought a second interlocutory appeal.

Issues Decided

• Whether sections 74.351(r)(5)(A), 74.351(r)(5)(C), and 74.401 require a physician to provide the expert-report opinions in a health care liability claim based on a physician’s conduct.

• Whether a dentist may satisfy Chapter 74 when the defendant is licensed as both a physician and a dentist and allegedly performed the challenged procedure while “acting as” a dentist.

• Whether the failure to provide a qualified physician’s report after receiving a thirty-day opportunity to cure requires dismissal with prejudice, together with an award of attorney’s fees and costs.

The court did not reach the Center’s alternative contention that the report inadequately demonstrated the author’s training or experience in the specific care at issue. The qualification issue was dispositive.

Rules Applied

Section 74.351(a) requires a health care liability claimant to serve one or more expert reports for each physician or health care provider against whom the claim is asserted. Under section 74.351(r)(6), the report must fairly summarize the expert’s opinions regarding the applicable standard of care, the manner in which the defendant failed to meet that standard, and the causal relationship between that failure and the claimed injury.

Chapter 74 distinguishes a “physician” from other “health care providers.” A physician is an individual licensed to practice medicine, while the broader category of health care providers includes other licensed professionals, including dentists.

Sections 74.351(r)(5)(A), 74.351(r)(5)(C), and 74.401 govern expert qualifications when the challenged conduct is that of a physician. Read together, those provisions require a physician to supply the opinions concerning the physician’s departure from the applicable standard of medical care and the causal relationship between that departure and the injury.

The court relied on decisions consistently refusing to permit nonphysicians to provide the required opinions against physicians:

• Davis v. Webb, 246 S.W.3d 768, 772–73 (Tex. App.—Houston [14th Dist.] 2008, no pet.), held that only a physician may qualify as an expert on whether a physician departed from acceptable standards of medical care, even when a nonphysician could provide the same underlying care.

• Badhiwala v. Favors, 340 S.W.3d 560, 564–65 (Tex. App.—Dallas 2011, no pet.), held that reports from nurses and a 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.), concluded that a registered nurse was not qualified to address physicians’ standards of care and breach.

• Bradford v. Alexander, 886 S.W.2d 394, 397 (Tex. App.—Houston [1st Dist.] 1994, no writ), reached the same conclusion under Chapter 74’s predecessor statute as to a physician assistant’s proposed testimony against a physician.

If a claimant fails to serve an adequate report and does not cure the deficiency within an authorized thirty-day extension, section 74.351(b) requires dismissal with prejudice and an award of reasonable attorney’s fees and costs.

Application

Magdaleno argued that the court should focus on the professional capacity in which Dr. Miller allegedly acted during the extraction. Because tooth extraction may fall within dental practice and Dr. Miller was also a licensed dentist, Magdaleno contended that a dentist should be permitted to provide the Chapter 74 report.

The Fourth Court rejected that proposed “acting as” test. The statutory text distinguishes physicians from other health care providers and does not create an exception based on overlapping scopes of practice. Nor does Chapter 74 provide a special rule for a physician who holds an additional professional license.

The court emphasized that the overlap between medical and dental practice did not change Dr. Miller’s status as a physician for purposes of the claim. It likewise did not transform Dr. Maller, a dentist, into a physician qualified under section 74.401. Thus, Dr. Maller could not provide the required opinions concerning the standard applicable to Dr. Miller, breach of that standard, or causation.

The claimant had already received the statutory opportunity to cure after the first appeal. Because the amended report was authored by the same nonphysician, the threshold qualification defect remained. The report therefore could not satisfy Chapter 74, regardless of the author’s experience with the procedure itself.

Holding

The court held that a physician must provide the expert-report opinions concerning standard of care, breach, and causation when a health care liability claim is based on a physician’s conduct. A nonphysician cannot meet that requirement merely by showing that the nonphysician is familiar with, or legally authorized to perform, the same type of care.

The court further held that a defendant physician’s dual licensure does not create an “acting as” exception. A dentist therefore cannot qualify under Chapter 74 to provide the required opinions against a physician simply because the physician also holds a dental license or because the disputed procedure could be characterized as dental care.

Because the claimant did not cure the qualification defect within the thirty-day extension, the court reversed the order denying the Center’s motion to dismiss and rendered judgment dismissing the suit with prejudice. It remanded the case for the trial court to determine the attorney’s fees and costs required by section 74.351(b).

Practical Application

Family-law litigators should identify potential Chapter 74 claims as soon as the pleadings, counterclaims, or intervening claims place medical treatment at issue. The identity and licensure of the person whose conduct forms the basis of the claim should drive expert selection—not merely the nature of the procedure or the expert’s practical familiarity with it.

In a divorce involving a spouse’s pending medical-malpractice claim, counsel should coordinate characterization and valuation issues with strict compliance with Chapter 74. The potential recovery may affect the marital estate, reimbursement claims, or allocation of liabilities, but those Family Code questions do not relax the Civil Practice and Remedies Code’s expert-report requirements.

When a parent brings a claim as next friend of a child, the parent’s authority to litigate for the child does not alter the Chapter 74 deadline or expert-qualification analysis. If the alleged tortfeasor is a physician, counsel should retain a physician who satisfies section 74.401 and is qualified to address the care actually at issue.

In custody litigation, medical records or testimony may reveal facts that support a separate health care liability claim. Counsel should not assume that a treating dentist, psychologist, nurse, therapist, or other nonphysician can author the Chapter 74 report against a physician merely because that professional participated in related care. Separate experts may be needed for the custody case and the health care liability claim.

The same distinction applies when evaluating proposed testimony. A nonphysician may possess relevant factual knowledge or may be qualified to testify on matters within that professional’s field, but that does not mean the professional can supply Chapter 74’s required opinions against a physician.

Checklists

Screen for Chapter 74 at Intake

• Identify every claim arising from medical, dental, psychological, hospital, or other health care.
• Determine whether the claim qualifies as a “health care liability claim” under Chapter 74.
• Identify whose conduct is alleged to have caused the injury.
• Confirm each relevant professional’s license status at the time of the challenged care.
• Determine whether the claim is direct, vicarious, or both.
• Calendar the section 74.351 expert-report deadline independently of family-law deadlines.
• Evaluate whether the claim should be joined, severed, transferred, or litigated separately.

Select the Correct Expert

• If the challenged provider is a physician, retain a physician for the required standard-of-care, breach, and causation opinions.
• Do not rely solely on similarity between the proposed expert’s practice and the procedure at issue.
• Do not assume dual licensure allows a nonphysician to opine against a physician.
• Confirm that the expert is practicing medicine or otherwise meets the specific requirements of section 74.401.
• Verify that the expert’s report explains the qualifications relevant to the particular care at issue.
• Ensure the report addresses each required element, not merely negligence in general terms.
• Obtain separate expert input when different defendants are governed by different qualification provisions.

Audit the Report Before Service

• Identify the applicable standard of care for each physician or health care provider.
• State specifically what the defendant should have done.
• Explain how the defendant allegedly departed from the standard.
• Connect the alleged departure to the injury through a nonconclusory causal explanation.
• Confirm that the report author is statutorily qualified for every opinion offered.
• Review the author’s curriculum vitae for consistency with the report’s qualification statements.
• Confirm that a vicarious-liability report adequately implicates the conduct of the entity’s agent or employee.
• Serve the report and curriculum vitae within the statutory period and preserve proof of service.

Respond to an Expert-Report Objection

• Separate qualification objections from objections to the report’s substantive adequacy.
• Determine whether the objection presents a statutory-interpretation issue subject to de novo review.
• Address the defendant’s professional status under Chapter 74’s definitions.
• Do not rely exclusively on an argument that the defendant was “acting as” another type of professional.
• If a thirty-day extension is available, cure every identified deficiency rather than revising only the report’s wording.
• Consider replacing the report author when the objection concerns a threshold licensing qualification.
• Preserve arguments concerning dismissal, attorney’s fees, and costs.

Protect the Family-Law Case

• Distinguish Chapter 74 expert requirements from standards governing custody evaluators and best-interest experts.
• Analyze the characterization of any claim or recovery under the Texas Family Code.
• Address control of litigation involving a minor and any settlement-approval requirements.
• Consider whether dismissal of the underlying tort claim affects property valuation or division.
• Avoid treating an expected recovery as certain when a Chapter 74 challenge remains pending.
• Coordinate discovery so that privileged or protected medical information is handled consistently across proceedings.

Citation

The University of Texas Health Science Center at San Antonio v. Magdaleno, __ S.W.3d __, No. 04-25-00759-CV (Tex. App.—San Antonio Sept. 23, 2026).

Full Opinion

Read the full opinion from the Fourth Court of Appeals.

Family Law Crossover

The crossover rule is procedural and qualification-based: when a pleaded claim is a Texas health care liability claim predicated on a physician’s conduct, the claimant must timely serve a Chapter 74 report containing the required opinions from a statutorily qualified physician. The court will not substitute a functional inquiry—such as whether a dentist, nurse, psychologist, or other provider could perform the same service—for the licensing requirement imposed by sections 74.351 and 74.401.

That mechanism may arise in a family-law matter when a divorce includes a spouse’s health care liability claim, when a parent pursues a child’s claim as next friend, or when a tort recovery affects characterization, valuation, reimbursement, or division of property. If the claimant serves a report from an expert who is not qualified under the provisions governing the defendant physician, the defendant may object and move to dismiss under section 74.351. A trial court may grant one thirty-day opportunity to cure a deficient report, but an uncured threshold qualification defect requires dismissal with prejudice and an award of attorney’s fees and costs.

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