                                  IN THE
                          TENTH COURT OF APPEALS

                                 No. 10-17-00088-CV

ST. JOSEPH REGIONAL HEALTH CENTER,
                                                             Appellant
v.

MARIA GONZALES, INDIVIDUALLY AND AS
REPRESENTATIVE OF THE ESTATE OF PATRICIA GONZALES,
                                     Appellees



                          From the 272nd District Court
                               Brazos County, Texas
                         Trial Court No. 16-000462-CV-272


                           MEMORANDUM OPINION


       In one issue, appellant, St. Joseph Regional Health Center (the “Hospital”),

challenges the trial court’s denial of its motion to dismiss health-care-liability claims

brought by appellee, Maria Gonzales, individually and as representative of the estate of

Patricia Gonzales. In particular, the Hospital asserts that appellee’s expert reports do not

constitute a good-faith effort, especially regarding the issue of causation. See TEX. CIV.

PRAC. & REM. CODE ANN. § 74.351(r)(6) (West 2017). Because we conclude that appellee’s
expert reports are deficient as to causation, and because appellee is not entitled to a

second thirty-day extension to cure the reports, we reverse and render.

                                           I.   BACKGROUND

        On February 22, 2016, appellee filed wrongful-death and survival claims against

the Hospital, alleging that the Hospital was negligent and grossly negligent in treating

Patricia in January and February 2014. The Hospital filed an original answer generally

denying all of the allegations contained in appellee’s suit.

        Thereafter, on July 8, 2016, appellee served on the Hospital the expert report of

Kelly K. Hill, R.N. The Hospital filed a motion to dismiss and objections to Nurse Hill’s

expert report, arguing that Nurse Hill is not qualified to offer causation opinions. In

response to the Hospital’s objections and motion to dismiss, appellee requested a thirty-

day extension to cure deficiencies in her expert report. See id. § 74.351(c).

        On September 6, 2016, the trial court sustained the Hospital’s objections to Nurse

Hill’s expert report and granted appellee a thirty-day extension to cure the defects in her

report. In an attempt to cure, appellee served on the Hospital the report of Eugene C.

Deal Jr., M.D. Once again, the Hospital filed a motion to dismiss and objections to

appellee’s expert reports. In its latest motion to dismiss and objections, the Hospital

contended that Dr. Deal failed to explain the “necessary ‘how’ and ‘why’ Defendant’s

alleged breach of the standard of care caused Plaintiff’s respiratory failure attributing to

death.” The Hospital further argued that Dr. Deal’s report offered “no more than a bare


St. Joseph Reg’l Health Ctr. v. Gonzales                                              Page 2
assertion, void of any detail, that Defendant’s staff’s alleged negligence allowed Patricia

Gonzales’s tracheostomy tube to become dislodged causing respiratory failure and

death.”

        After a hearing, the trial court denied the Hospital’s objections to Dr. Deal’s expert

report and motion to dismiss. This accelerated, interlocutory appeal followed. See id. §

51.014(a)(9) (West Supp. 2016) (permitting the appeal of an interlocutory order from a

district court that “denies all or part of the relief sought by a motion under Section

74.351(b)”); see also TEX. R. APP. P. 28.1(a).

                                      II.   STANDARD OF REVIEW

        We review all rulings related to Section 74.351 of the Civil Practice and Remedies

Code under an abuse-of-discretion standard. Jelinek v. Casas, 328 S.W.3d 526, 538-39 (Tex.

2010); Am. Transitional Care Ctrs. of Tex., Inc. v. Palacios, 46 S.W.3d 873, 877 (Tex. 2001).

Although we defer to the trial court's factual determinations, we review questions of law

de novo. See Haskell v. Seven Acres Jewish Senior Care Servs., Inc., 363 S.W.3d 754, 757 (Tex.

App.—Houston [1st Dist.] 2012, no pet.); see also Navarro Hosp., L.P. v. Washington, No. 10-

13-00248-CV, 2014 Tex. App. LEXIS 5010, at *4 (Tex. App.—Waco May 8, 2014, pet.

denied) (mem. op.). A trial court has no discretion in determining what the law is, which

law governs, or how to apply the law. See Poland v. Orr, 278 S.W.3d 39, 45 (Tex. App.—

Houston [1st Dist.] 2008, pet. denied); see also Washington, 2014 Tex. App. LEXIS 5010, at

*4. An abuse of discretion occurs if the trial court fails to correctly apply the law to the


St. Joseph Reg’l Health Ctr. v. Gonzales                                                Page 3
facts or if it acts in an arbitrary or unreasonable manner without reference to guiding

rules or principles. Bowie Mem'l Hosp. v. Wright, 79 S.W.3d 48, 52 (Tex. 2002); see Haskell,

363 S.W.3d at 757 (citing Petty v. Churner, 310 S.W.3d 131, 134 (Tex. App.—Dallas 2010,

no pet.)).

                                           III.   APPLICABLE LAW

        A plaintiff who asserts a health-care-liability claim, as defined by Chapter 74, must

provide each defendant physician or health-care provider with an expert report which

provides “a fair summary of the expert's opinions” as of the date of the report regarding

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

the applicable standards, and the causal relationship between that failure and the claimed

injury. See TEX. CIV. PRAC. & REM. CODE ANN. § 74.351(a), (r)(6); see also Tex. Home Health

Skilled Servs., L.P. v. Anderson, No. 10-15-00440-CV, 2016 Tex. App. LEXIS 11319, at **6-7

(Tex. App.—Waco Oct. 19, 2016, no pet.) (mem. op.). “The purpose of the expert report

requirement is to deter frivolous claims, not to dispose of the claims regardless of their

merits.” Scoresby v. Santillan, 346 S.W.3d 546, 554 (Tex. 2011).

        When a plaintiff timely files an expert report and a defendant moves to dismiss on

the basis that the report is insufficient, the trial court must grant the motion only if the

report does not represent a good-faith effort to meet the statutory requirements. See TEX.

CIV. PRAC. & REM. CODE ANN. § 74.351(l); see also Anderson, 2016 Tex. App. LEXIS 11319,

at *7. To constitute a good-faith effort, a report “must discuss the standard of care, breach,


St. Joseph Reg’l Health Ctr. v. Gonzales                                                Page 4
and causation with sufficient specificity to inform the defendant of the conduct the

plaintiff has called into question and to provide a basis for the trial court to conclude that

the claims have merit.” Palacios, 46 S.W.3d at 875; see Wright, 79 S.W.3d at 52.

        A report cannot merely state the expert's conclusions about these elements;

instead, the report must explain the basis of the statements and link the conclusions to

the facts. Wright, 79 S.W.3d at 52; see Jelinek, 328 S.W.3d at 539-40. A report that merely

states the expert's conclusions about the standard of care, breach, and causation is

deficient. Palacios, 46 S.W.3d at 879. Further, a report that omits any of the statutory

elements is likewise deficient. Id. In determining whether the trial court's ruling on a

motion to dismiss was correct, we review the information contained within the four

corners of the report. Wright, 79 S.W.3d at 53. “The report can be informal in that the

information in the report does not have to meet the same requirements as evidence

offered in a summary-judgment proceeding or at trial.” Palacios, 46 S.W.3d at 879.

        Furthermore, reports may be considered together in determining whether a

health-care-liability claimant provided a report meeting the statutory requirements. See

TEX. CIV. PRAC. & REM. CODE ANN. § 74.351(i); see also Salais v. Tex. Dep't of Aging &

Disability Servs., 323 S.W.3d 527, 534 (Tex. App.—Waco 2010, pet. denied). A single report

need not “address all liability and causation issues with respect to all physicians or health

care providers or with respect to both liability and causation issues for a physician or

health care provider.” TEX. CIV. PRAC. & REM. CODE ANN. § 74.351(i); see Anderson, 2016


St. Joseph Reg’l Health Ctr. v. Gonzales                                                Page 5
Tex. App. LEXIS 11319, at *8. But read together, the reports must provide a "fair

summary" of the experts’ opinions. TEX. CIV. PRAC. & REM. CODE ANN. § 74.351(r)(6); see

Barber v. Mercer, 303 S.W.3d 786, 791 (Tex. App.—Fort Worth 2009, no pet.); Walgreen Co.

v. Hieger, 243 S.W.3d 183, 187 n.2 (Tex. App.—Houston [1st Dist.] 2007, pet. denied).

                         IV.     APPELLEE’S EXPERT REPORTS ON CAUSATION

        In its sole issue on appeal, the Hospital contends that it was an abuse of discretion

for the trial court to deny its motion to dismiss appellee’s health-care liability claims. In

particular, the Hospital asserts that Dr. Deal’s report is conclusory as to the required

element of causation and, thus, is materially deficient.

        As noted above, appellee tendered the expert reports of Nurse Hill and Dr. Deal.

However, pursuant to section 74.403 of the Civil Practice and Remedies Code, only

physicians are qualified to render causation opinions in health-care liability claims. See

TEX. CIV. PRAC. & REM. CODE ANN. § 74.403(a) (West 2017); see also Petty, 310 S.W.3d at

135. As such, we focus only on Dr. Deal’s report in analyzing the causation element.

        After providing a brief recitation of the facts surrounding the complained-of

incident, Dr. Deal provided the following information regarding the elements of

appellee’s claims:

                                St. Joseph Regional Health Center

        Standard of Care
        The standard of care for a medical facility is to provide and to ensure that
        all patients receive appropriate care regardless of financial means. This


St. Joseph Reg’l Health Ctr. v. Gonzales                                               Page 6
        includes safety, monitoring, and communication with both the patient and
        the physicians, as well as the nursing staff.

        Breach of the Standard of Care
        Ms. Gonzales had removed her tracheostomy tube twice, in the 48 hours
        prior to her death. The standard of care would dictate that the patient
        should have been on a continuous pulse oximeter. This would have
        allowed the staff to note her oxygen level decreasing, and they would have
        been able to respond to any change in her condition. There is no
        documentation, in the medical record, of the patient being on a continuous
        pulse oximeter.

        The use of restraints on Ms. Gonzalez [sic] is documented in her medical
        records, which were first initiated on January 23, 2014. However, the use
        of restraints did not occur on the day prior to her death or the day of her
        death. The medical record states that Ms. Gonzalez [sic] pulled out her
        tracheostomy tube, not once, but twice on January 18, 2014, while not
        restrained.

        The Medical Record documents the fact that Patricia Gonzalez’ [sic] vital
        signs were recorded at 0000; midnight on February 20, 2014. At 0440, the
        nurse noted no distress. At 0511, nurse found Ms. Gonzalez [sic]
        unresponsive and the tracheostomy tube removed. A code was called, and
        patient was pronounced dead at 0529. It is a breach of the standard of care
        to have no vital signs documented from midnight until the code was called.

                                           Conclusion

        In my opinion, based on my experience, education, and training, it is certain
        within a reasonable degree of medical probability that the actions of the
        staff of St. Josephs [sic] Regional Health Center directly lead to the death of
        Patricia Gonzalez [sic]. Ms. Gonzalez [sic] did not receive medical care and
        treatment at or above the standard of care which allowed her tracheostomy
        tube to become dislodged, resulting in respiratory failure, which attributes
        to her death.




St. Joseph Reg’l Health Ctr. v. Gonzales                                                  Page 7
          Though not labeled “causation,” we presume that Dr. Deal’s “Conclusion” section

addresses the causation element. With regard to causation, the Texas Supreme Court has

stated:

          An expert cannot simply opine that the breach caused the injury. Stated so
          briefly, the report fails the second Palacios element—it does not give the trial
          court any reasonable basis for concluding that the lawsuit has merit. . . . An
          expert’s conclusion that “in medical probability” one event caused another
          differs little, without an explanation tying the conclusion to the facts, from
          an ipse dixit, which we have consistently criticized. . . . Instead, the expert
          must go further and explain, to a reasonable degree, how and why the
          breach caused the injury based on the facts presented. While we have said
          that no “magical words” need be used to meet the good-faith requirement,
          mere invocation of the phrase “medical probability” is likewise no
          guarantee that the report will be found adequate.

Jelinek, 328 S.W.3d at 539-40 (internal citations omitted & emphasis in original).

          As noted above, Dr. Deal stated that the Hospital breached the standard of care by

failing to: (1) monitor Patricia with a continuous pulse oximeter; (2) use wrist restraints;

and (3) document vital signs. We first note that “[m]ere reference to general concepts

regarding assessment, monitoring, and interventions are insufficient as a matter of law.”

Regent Health Care Ctr. of El Paso, L.P. v. Wallace, 271 S.W.3d 434, 441 (Tex. App.—El Paso

2008, no pet.) (citing Palacios, 46 S.W.3d at 873). Furthermore, in his “Conclusion” section,

Dr. Deal opined that Patricia died of respiratory failure caused by the dislodgement of

her tracheostomy tube. However, the basis for this conclusion is not explained in the

report. In fact, there is no explanation as to how and why the dislodgement of a

tracheostomy tube resulted in respiratory failure. See Van Ness v. ETMC First Physicians,


St. Joseph Reg’l Health Ctr. v. Gonzales                                                     Page 8
461 S.W.3d 140, 142 (Tex. 2015) (“An expert must explain, based on facts set out in the

report, how and why the breach caused the injury.” (emphasis in original)); see also Tenet

Hosps., Ltd. v. Barnes, 329 S.W.3d 537, 543 (Tex. App.—El Paso 2010, no pet.) (“There can

be no analytical gap between a breach of the standard of care and the ultimate harm.”);

Austin Heart, P.A. v. Webb, 228 S.W.3d 276, 279 (Tex. App.—Austin 2007, no pet.) (noting

that courts are precluded “from filling gaps in a report by drawing inferences”). This is

particularly important in this case given the fact that Dr. Deal described that Patricia “was

doing well” after two prior tracheostomy-tube dislodgements. Moreover, Dr. Deal also

noted in his report that Patricia had recently been successfully weaned from the ventilator

and that her condition had improved to the point that she was awaiting transfer to a long-

term-care facility. In essence, Dr. Deal’s opinion appears to be premised solely upon the

close temporal proximity between the dislodgement and Patricia’s death. See Wallace, 271

S.W.3d at 441 (“[W]hile the report indicates that the breach of the standard of care

resulted in worsening of the described skin conditions, there is no linkage to the cause of

death, aside from the assertion of a close temporal proximity between the conditions and

the premature death.”).

        Based on the foregoing, we conclude that appellee’s expert reports are deficient as

to the causation element, because an analytical gap exists between the breach and the

injury that cannot be cured without drawing impermissible inferences. See TEX. CIV.

PRAC. & REM. CODE ANN. § 74.351(r)(6); see also Van Ness, 461 S.W.3d at 142; Jelinek, 328


St. Joseph Reg’l Health Ctr. v. Gonzales                                               Page 9
S.W.3d 539-40; Barnes, 329 S.W.3d at 543; Webb, 228 S.W.3d at 279. As such, we hold that

the trial court abused its discretion in denying the Hospital’s motion to dismiss. See

Jelinek, 328 S.W.3d at 539-40; Wright, 79 S.W.3d at 52-53; Palacios, 46 S.W.3d at 880.

        Furthermore, under section 74.351(c) of the Civil Practice and Remedies Code, a

court may only grant one thirty-day extension to cure any deficiencies in an expert report.

See TEX. CIV. PRAC. & REM. CODE. ANN. § 74.351(c); see also Leland v. Brandal, 257 S.W.3d

204, 207 (Tex. 2008) (“As Leland and the dissent read the statute, a thirty-day extension

is only permitted if the trial court determines that the report is deficient. We see nothing

in the statute’s text to support such an interpretation. Rather, the provision states that

one thirty-day extension may be granted when “elements of the report are found

deficient,” and does not confine that review to a particular court.” (emphasis in original)).

Because appellee had already obtained one thirty-day extension to cure deficiencies in

her expert reports, we conclude that she is not entitled to another extension of time to

cure these deficiencies. See TEX. CIV. PRAC. & REM. CODE. ANN. § 74.351(c); see also Leland,

257 S.W.3d at 207. We sustain the Hospital’s sole issue on appeal.

                                           V.   CONCLUSION

        Having sustained the Hospital’s sole issue on appeal, we reverse the trial court’s

order denying the Hospital’s motion to dismiss and render dismissal of all of appellee’s

claims against the Hospital with prejudice. See TEX. CIV. PRAC. & REM. CODE ANN. §




St. Joseph Reg’l Health Ctr. v. Gonzales                                                 Page 10
74.351(b)(2) (providing for the dismissal of a health-care-liability claim with prejudice if

the claimant fails to timely serve a compliant expert report).




                                                 AL SCOGGINS
                                                 Justice

Before Chief Justice Gray,
       Justice Davis, and
       Justice Scoggins
Reversed and rendered
Opinion delivered and filed June 14, 2017
[CV06]




St. Joseph Reg’l Health Ctr. v. Gonzales                                             Page 11
