REVERSE and REMAND and Opinion Filed June 21, 2019




                                          S    In The
                                Court of Appeals
                         Fifth District of Texas at Dallas
                                       No. 05-18-01182-CV

 DEBBIE WHEELER, INDIVIDUALLY AND AS THE REPRESENTATIVE OF THE
ESTATE OF LARRY WHEELER, KIM ADAMS, AND KRISTIE STEWART, Appellants
                               V.
  METHODIST RICHARDSON MEDICAL CENTER AND METHODIST HEALTH
                   SYSTEM FOUNDATION, Appellees

                       On Appeal from the 416th Judicial District Court
                                    Collin County, Texas
                           Trial Court Cause No. 416-01327-2016


                              MEMORANDUM OPINION
                         Before Justices Whitehill, Molberg, and Reichek
                                  Opinion by Justice Whitehill

       The trial court dismissed appellants’ health care liability claims because it concluded that

their expert report was deficient as to causation. The pivotal question is whether the expert’s report

sufficiently explained the how and why of his causation opinion. The report stated that the

deceased’s life probably would have been saved had his nurses timely alerted a treating physician

to his declining blood oxygen levels because the physician probably would have properly

performed a successful, non-emergent intubation under favorable conditions.             Because we

conclude that the report contained sufficient specificity for Chapter 74 purposes, we hold that the

trial court abused its discretion and accordingly reverse and remand.
                                         I. BACKGROUND

A.     Factual Allegations

       This is a wrongful death and survival action. We draw the following facts from the

allegations in appellants’ live petition and their expert reports.

       Larry Wheeler was admitted to Methodist Hospital on February 8, 2015, with pulmonary

edema thought to be secondary to congestive heart failure, and he required immediate intubation

and mechanical ventilation. He underwent a left carotid endarterectomy on February 11 and a

coronary artery bypass, mitral valve repair, and aortic valve replacement on February 13.

       Wheeler remained intubated after his surgery until he was extubated the morning of

February 18. His oxygen saturation levels declined to around 92–93% that afternoon. That night,

shortly after midnight, his oxygen saturation was 57%, and a code blue was started.

       Dr. Jose Gutierrez intubated Wheeler at 0052 hours. The intubation was difficult, and later

Wheeler’s “pulse was lost.” A chest x-ray indicated that the tube had been placed in Wheeler’s

esophagus instead of his trachea. Wheeler was extubated, and a second intubation was performed

at 0101 hours.

       On February 19, Wheeler was diagnosed with hypoxic encephalopathy. A few days later,

his family removed ventilator support and he soon died.

B.     Procedural History

       Appellants sued appellees and Gutierrez asserting wrongful death and survival claims.

They alleged that Gutierrez placed the tube in Wheeler’s esophagus rather than in his trachea and

that he negligently failed to verify that he had placed the tube correctly. They also alleged that

appellees’ nurses negligently “failed to institute a number of interventions” that would have helped

correct Wheeler’s “critically low oxygen saturations.”




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       Appellants later served two expert reports. One was by nurse Claudia Estrada, and the

other was by Dr. Jay S. Ellis, Jr., an anesthesiologist.

       Appellees challenged the reports’ sufficiency. Appellants responded and requested a

thirty-day extension to amend or supplement their reports. They also filed a brief supporting their

extension request, and they attached an amended Ellis report. The trial court dismissed the case

without expressly ruling on appellants’ request for a time extension. Appellants appealed, and we

reversed, holding that the trial court abused its discretion by failing to give appellants an

opportunity to cure the deficiencies in their reports. Wheeler v. Methodist Richardson Med. Ctr.,

No. 05-17-00332-CV, 2017 WL 6048153, at *4 (Tex. App.—Dallas Dec. 7, 2017, pet. denied)

(mem. op.).

       After remand, appellants again served their original reports and the amended Ellis report.

Appellees objected again, this time based solely on the premise that the amended Ellis report did

not adequately establish causation.        Appellants responded.   The trial court again sustained

appellees’ objections and dismissed the claims against them.

       Appellants timely appealed. See TEX. CIV. PRAC. & REM. CODE § 51.014(a)(10). Dr.

Gutierrez is not a party to this appeal.

                                            II. ANALYSIS

       Appellants’ sole issue urges that the trial court erred by dismissing their claims because the

amended Ellis report adequately addresses causation, the only element that appellees challenged

in the trial court. We agree with appellants for the following reasons.

A.     Standard of Review and Applicable Law

       We review a trial court’s decision to dismiss a case based on an inadequate expert report

for abuse of discretion. Abshire v. Christus Health Se. Tex., 563 S.W.3d 219, 223 (Tex. 2018) (per

curiam). A trial court has no discretion in determining what the law is or in applying the law to


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the facts. Sanchez v. Martin, 378 S.W.3d 581, 587 (Tex. App.—Dallas 2012, no pet.). A clear

failure by the trial judge to analyze or apply the law correctly constitutes an abuse of discretion.

Id.

          A health care liability claimant must serve an expert report on each defendant not later than

120 days after the defendant answers. TEX. CIV. PRAC. & REM. CODE § 74.351(a); Abshire, 563

S.W.3d at 223. A defendant may seek dismissal if the report is untimely or deficient. CIV. PRAC.

§ 74.351(b), (l); Abshire, 563 S.W.3d at 223. In determining whether a report is deficient, the

court is limited to the information contained within the four corners of the report. Abshire, 563

S.W.3d at 223.

          An expert report is sufficient if it “provides a fair summary of the expert’s opinions . . .

regarding applicable standards of care, the manner in which the care rendered . . . failed to meet

the standards, and the causal relationship between that failure and the injury.” CIV. PRAC.

§ 74.351(r)(6); see also Abshire, 563 S.W.3d at 223.

          Moreover, a report is sufficient if it constitutes “an objective good faith effort” to comply

with the statute. CIV. PRAC. § 74.351(l); see also Abshire, 563 S.W.3d at 223. A report constitutes

a good faith effort if it (i) informs the defendant of the specific conduct called into question and

(ii) provides a basis for the trial court to conclude that the claims have merit. Abshire, 563 S.W.3d

at 223.

          The report need not marshal all the claimant’s proof, but a report that states only the

expert’s conclusions about the standard of care, breach, and causation is insufficient. Id.

          As to causation, the expert must explain how and why the alleged negligence caused the

injury in question. Id. at 224. A conclusory statement of causation is insufficient; instead, the

expert must explain the basis of his statements and link his conclusions to specific facts. Id. The




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report need not prove the entire case or account for every known fact; the report is sufficient if it

makes a good faith effort to explain, factually, how proximate cause will be proven. Id.

        The supreme court’s Abshire opinion provides the controlling paradigm for the present

case. There, Sue Abshire suffered from brittle bone disease. She repeatedly sought treatment from

Christus Hospital for various pain and breathing symptoms, and the nurses inconsistently

documented her brittle bone disease in her chart. She received various treatments for her

symptoms, including physical therapy, and she was eventually diagnosed with a compression

fracture of her T-5 vertebrae that left her a paraplegic. She sued the hospital and furnished an

expert report stating that the nurses’ failure to document a complete and accurate assessment led

to a delay in proper medical care and thus to Abshire’s paralysis.

        The supreme court held that the report adequately “dr[ew] a line directly from the nurses’

failure to properly document Abshire’s [brittle bone disease] and back pain, to a delay in diagnosis

and proper treatment (imaging of her back and spinal fusion), to the ultimate injury (paraplegia).”

Id. at 225.

B.      The Reports in This Case

        1.     Nurse Estrada’s Report

        Nurse Estrada’s unchallenged report addressed the standard of care and breach elements as

to appellees and gave context for Ellis’s causation opinions. Estrada opined that appellees’ nurses

should have recognized that Wheeler began showing signs of respiratory distress and potential

respiratory failure at 5:00 p.m. on February 18. Wheeler’s records showed that his oxygen

saturation was then “in the low 90% range,” and he “continued to exhibit low oxygen saturations,

increased heart rate and increased blood pressure during the evening hours.” Estrada opined that,

among other things, the nurses should have notified the physician in charge and asked him to assess

Wheeler.


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       2.      Dr. Ellis’s Amended Report

       Ellis’s amended report addressed both Gutierrez and appellees. Ellis opined that Gutierrez

negligently handled Wheeler’s treatment after he misplaced the tube in Wheeler’s esophagus

instead of his trachea. Specifically, Gutierrez “breached the standard of care by failing to

adequately verify that the endotracheal tube placed in Mr. Wheeler was in the trachea and not in

the esophagus as the chest x-ray proved.” Because of that negligence, Wheeler’s brain was oxygen

deprived for nine minutes, causing his permanent brain injury and eventual death.

       Ellis based his causation opinions against appellees on Estrada’s opinion that the nurses

breached the standard of care by failing to notify Wheeler’s treating physician about his

deteriorating condition during the evening of February 18. Ellis’s report stated:

       While the failed intubation is a clear cause of injury in this instance, earlier
       intervention would have prevented the need for emergency intubation in the first
       place. I have reviewed the report of Nurse Claudia Estrada who opines that the
       nursing staff should have notified Mr. Wheeler’s treating physician concerning his
       deteriorating condition on the evening of February 18. Had the physician in
       charge been notified before Mr. Wheeler’s situation became critical, in
       reasonable probability, he would have ordered the patient re-intubated on a
       non-emergent basis and resumed mechanical ventilation. This would have
       prevented the patient’s major de-saturation and avoided the need for a Code Blue
       to be called, in the first place. Nonemergent intubation is always preferable. The
       patient is in a more stable physiologic state allowing for a more methodical,
       deliberate process. This allows for careful planning, the opportunity to secure
       special equipment if needed and to arrange for adequate assistance in performing
       the intubation. Having extra sets of hands and special equipment dramatically
       increases the chance of a successful intubation and can often avoid the problem of
       esophageal intubation experienced by Mr. Wheeler. This would also allow for the
       performance of the intubation to be done by someone who routinely does intubation
       in the ICU such as a critical care physician or anesthesiologist. There is no
       practitioner who would willingly choose emergent intubation over a careful,
       planned elective procedure. The failure to notify the treating physician of the
       deterioration of Mr. Wheeler’s condition allowed Mr. Wheeler’s situation to
       become critical and require emergent intubation that, unfortunately, was not
       successfully performed.

       ....

       . . . [T]he hospital staff’s failure to notify any physician of Mr. Wheeler’s
       deteriorating condition lead [sic] to his receiving no treatment until his

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       situation had become critical. Earlier intervention likely would have given
       more opportunities for treatment and likely prevented his injury.

       . . . I have expressed all of my opinions in this report in reasonable medical
       probability . . . .

(Emphases added.)

C.     Applying the Law to the Facts

       1.      Abshire and Ellis’s Amended Report

       Appellants argue that Ellis’s causation opinion is sufficient because it states that the nurses’

negligence caused Wheeler’s injuries and explains how and why this is so. We agree.

       To begin, the report adequately states a but-for causal relationship between the nurses’

breach of the standard of care shown by Estrada’s report (failing to notify the physician of

Wheeler’s low oxygen saturation at 5:00 p.m. on February 18) and Wheeler’s ultimate injuries.

Specifically, the emphasized passages quoted above show that, in reasonable medical probability,

Wheeler would not have suffered his injuries had the nurses timely notified the physician in charge

about Wheeler’s oxygen desaturation. Thus, contrary to appellees’ argument that Ellis failed to

show but-for causation, his amended report shows but-for causation by a reasonable medical

probability. See Covey v. Lucero, No. 05-16-00164-CV, 2016 WL 7163835, at *2 (Tex. App.—

Dallas Nov. 17, 2016, no pet.) (mem. op.) (explaining that (i) expert report must express causation

in terms of probability rather than mere possibility and (ii) “magical words” are not required).

       Next, we conclude that Ellis’s causation opinion is not conclusory. That is, it adequately

explains how and why the nurses’ negligence caused Wheeler’s injuries. See Abshire, 563 S.W.3d

at 224. The report does this by explaining what would have happened differently, and why, had

the nurses timely notified the physician in charge about Wheeler’s oxygen desaturation:

       •       The physician, in reasonable probability, would have ordered Wheeler to be
               intubated on a non-emergent basis.

       •       The non-emergent intubation would have taken place under more favorable
               circumstances including the following: (i) the patient would have been in a
                                               –7–
               more stable physiologic state, (ii) the intubation process would have been
               more methodical and deliberate, with careful planning, (iii) any needed
               special equipment and adequate assistance could have been secured, which
               can often avoid the problem of esophageal intubation that Wheeler
               experienced, and (iv) the intubation could have been done by someone who
               routinely does them, such as a critical care physician or an anesthesiologist.

       We conclude that Ellis’s explanation adequately links the nurses’ alleged negligence and

Wheeler’s injuries. Had the nurses called Wheeler’s physician in charge sooner, Wheeler probably

would have been intubated before any emergency arose. And a non-emergent intubation probably

would have avoided Wheeler’s injuries because the conditions of a non-emergent intubation are

more favorable for success than the conditions of an emergency intubation are. Thus, the report

adequately explained the links in the causal chain. See Abshire, 563 S.W.3d at 224–25; see also

New Med. Horizons, II, Ltd. v. Milner, No. 01-17-00827-CV, 2019 WL 1388359, at *14–17 (Tex.

App.—Houston [1st Dist.] Mar. 28, 2019, no pet.) (causation expert report was sufficient in case

involving nurses’ alleged failure to alert physicians to patient’s deterioration).

       2.      Zamarripa

       Nonetheless, appellees rely heavily on Columbia Valley Healthcare System, L.P. v.

Zamarripa, 526 S.W.3d 453 (Tex. 2017), to argue that Ellis’s amended report is insufficient

regarding appellees’ causation. That reliance is misplaced because the hospital in that case could

not have prevented the patient transfer that later contributed to the injury; whereas here timely

action by appellees probably would have produced a different outcome.

       In Zamarripa, a doctor ordered his patient to be transferred to another facility 159 miles

away, and the patient died after suffering a cardiac arrest en route. Id. at 457. The claimant sued

the hospital where the patient was originally being treated, and the claimant’s causation expert

report said that the hospital had caused the patient’s death by permitting and facilitating the

transfer. Id. at 457–58. The supreme court held that the report supplied only a conclusory



                                                 –8–
causation opinion because it did not explain how the hospital permitted or facilitated the transfer

or how the hospital could have stopped it despite the doctor’s order. Id. at 461.

       Here, by contrast, Ellis’s amended report explained how the nurses’ conduct would have

changed the course of events—had the nurses alerted the physician in charge, he probably would

have ordered a non-emergent intubation and thereby averted Wheeler’s injuries.

       3.      Appellees’ Remaining Arguments

       Appellees also argue that a necessary link is missing from Ellis’s causal chain, specifically

“the connection between the emergent nature of the intubation and the incorrect performance of

said intubation and accompanying failure to timely verify tube placement after intubation.”

(Footnote omitted.) They acknowledge that Ellis addressed this connection to some extent when

he said, “Having extra sets of hands and special equipment dramatically increases the chance of a

successful intubation and can often avoid the problem of esophageal intubation experienced by

Mr. Wheeler.” But they argue that this explanation in insufficient because it lacks a factual basis

of its own.

       We reject appellees’ argument. Ellis opined that, in reasonable medical probability, non-

negligent conduct by the nurses would have caused the physician in charge to order a non-emergent

intubation, which in turn would have prevented Wheeler’s “major de-saturation” and avoided the

code blue. This causally connected the nurses’ negligence with the later-performed unsuccessful

and damage-causing emergency intubation.

       Further, Ellis gave several factual bases for his opinion, citing not only the availability of

additional equipment and human assistants but also the facts that (i) Wheeler would have been

more stable, (ii) the procedure would have been more methodical and better planned, and (iii) a

more experienced physician could have been called in to perform the procedure. This is sufficient

to make his ultimate causation opinion nonconclusory.


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        Appellees also argue that Ellis’s report does not show that the nurses’ breach was a

substantial factor in causing Wheeler’s injuries. “Substantial factor” is a subelement of cause in

fact. See Rogers v. Zanetti, 518 S.W.3d 394, 402 (Tex. 2017).

        Cause in fact exists “when the act or omission was a substantial factor in bringing about

the injuries, and without it, the harm would not have occurred.” IHS Cedars Treatment Ctr. of

DeSoto, Tex., Inc. v. Mason, 143 S.W.3d 794, 799 (Tex. 2004). A breach of the standard of care

is not a substantial factor in causing the plaintiff’s injuries if the connection between the breach

and the injuries is too attenuated or if the breach did no more than furnish the conditions that made

the injury possible. Curnel v. Houston Methodist Hosp.-Willowbrook, 562 S.W.3d 553, 561–62

(Tex. App.—Houston [1st Dist.] 2018, no pet.).

        Appellees argue that the substantial factor test is not met here because even an earlier, non-

emergent intubation could have been performed incorrectly and could have been followed by the

same failure to properly verify tube placement that Dr. Ellis said occurred in this case. But we

disagree that these possibilities negate substantial factor causation in this case. Ellis opined, in

reasonable medical probability, that earlier, non-emergent intubation would have prevented

Wheeler’s injuries, and he explained the facts supporting his opinion. The connection between the

nurses’ alleged negligence and the injuries was not attenuated, nor did the alleged negligence

merely furnish a condition that made Wheeler’s injury possible. See Miller v. Lone Star HMA,

L.P., No. 05-17-00954-CV, 2018 WL 3991191, at *3 (Tex. App.—Dallas Aug. 21, 2018, pet.

denied) (mem. op.) (the substantial factor requirement is usually satisfied when but-for causation

is present).

        Our recent Greenville SNF, LLC v. Webster opinion is distinguishable. See No. 05-18-

00038-CV, 2018 WL 6716621 (Tex. App.—Dallas Dec. 21, 2018, no pet.) (mem. op.). In that

case, a rehabilitation center employee found one of the center’s residents, Frances Robinson, in a

                                                –10–
non-responsive state with an oxygen saturation level of 72%, but the employee did not seek

emergency assistance until forty-five minutes had passed. Robinson sustained brain injuries and

died a few weeks later.

       In the subsequent suit against the rehabilitation center, Robinson’s estate furnished an

expert report opining that (i) the center breached the standard of care by not immediately calling

911 and (ii) the breach probably caused Robinson’s brain injuries, which in turn caused her death.

Id. at *5. But that report provided no factual explanation supporting its causation opinion, such as

an explanation of the medical treatment that could have prevented Robinson’s injuries had

emergency help been summoned immediately. Ellis’s amended report, by contrast, explains what

treatment would have been employed absent the nurses’ negligence (a non-emergent intubation)

and why that treatment probably would have been effective.

                                        III. CONCLUSION

       In sum, Ellis’s amended report sufficiently linked the nurses’ alleged breach of the standard

of care and Wheeler’s subsequent injuries. See Abshire, 563 S.W.3d at 225. Accordingly, we hold

that his amended report included a fair summary of his opinion concerning the causal relationship

between the breach of the standard of care and the damages claimed, and the trial court abused its

discretion by concluding otherwise. We sustain appellants’ sole issue on appeal.

       We reverse the trial court’s order sustaining appellees’ objections to Ellis’s amended report

and dismissing the case with prejudice. We remand the case to the trial court for further

proceedings consistent with this opinion.




                                                  /Bill Whitehill/
                                                  BILL WHITEHILL
                                                  JUSTICE
181182F.P05
                                               –11–
                                        S
                               Court of Appeals
                        Fifth District of Texas at Dallas
                                       JUDGMENT

 DEBBIE WHEELER, INDIVIDUALLY                        On Appeal from the 416th Judicial District
 AND AS THE REPRESENTATIVE OF                        Court, Collin County, Texas
 THE ESTATE OF LARRY WHEELER,                        Trial Court Cause No. 416-01327-2016.
 KIM ADAMS, AND KRISTIE                              Opinion delivered by Justice Whitehill.
 STEWART, Appellants                                 Justices Molberg and Reichek participating.

 No. 05-18-01182-CV         V.

 METHODIST RICHARDSON MEDICAL
 CENTER AND METHODIST HEALTH
 SYSTEM FOUNDATION, Appellees

       In accordance with this Court’s opinion of this date, the trial court’s September 19, 2018
Order Sustaining Defendant Methodist Richardson Medical Center and Methodist Health System
Foundation’s Statutory Objections to Plaintiffs’ Amended “Expert Report” of Jay Ellis, M.D., is
REVERSED in its entirety and this cause is REMANDED to the trial court for further
proceedings consistent with the opinion.

        It is ORDERED that appellants Debbie Wheeler, Individually and as the Representative
of the Estate of Larry Wheeler, Kim Adams, and Kristie Stewart recover their costs of this appeal
from appellees Methodist Richardson Medical Center and Methodist Health System Foundation.


Judgment entered June 21, 2019.




                                              –12–
