Opinion issued July 23, 2019




                                     In The

                               Court of Appeals
                                    For The

                          First District of Texas
                            ————————————
                               NO. 01-18-00212-CV
                           ———————————
     KELSEY-SEYBOLD MEDICAL GROUP, PLLC D/B/A KELSEY-
    SEYBOLD CLINIC AND AHMED I. SEWIELAM, M.D., Appellants
                                       V.
                      EDDIE LYNN CHEEKS, Appellee


                   On Appeal from the 215th District Court
                            Harris County, Texas
                      Trial Court Case No. 2017-53858


                         MEMORANDUM OPINION

      Appellee Eddie Lynn Cheeks sued appellants Kelsey-Seybold Medical

Group, PLLC d/b/a Kelsey-Seybold Clinic and Ahmed I. Sewielam, M.D.,

asserting healthcare liability claims governed by Chapter 74 of the Civil Practice

and Remedies Code. In compliance with section 74.351, Cheeks timely served the
expert report of Harry F. Hull, M.D. The Kelsey-Seybold Clinic and Dr. Sewielam

objected to the report and asserted that it was deficient on multiple grounds,

including that Dr. Hull is not qualified to render an expert opinion on the standards

of care pertaining to the Kelsey-Seybold Clinic and to Dr. Sewielam and that Dr.

Hull’s standard-of-care opinions are inadequate. The trial court overruled the

Kelsey-Seybold Clinic’s and Dr. Sewielam’s objections, and this interlocutory

appeal ensued.

      In their sole issue, the Kelsey-Seybold Clinic and Dr. Sewielam assert that

the trial court abused its discretion in finding that Dr. Hull’s expert report satisfies

section 74.351. We agree and reverse the trial court’s order.

                                     Background

      The medical records are not before us, and we accept the factual statements

in Dr. Hull’s expert report for the limited purpose of this appeal. See Marino v.

Wilkins, 393 S.W.3d 318, 320 n.1 (Tex. App.—Houston [1st Dist.] 2012, pet.

denied).

      Cheeks, a then-68-year old woman with chronic low back pain, received

three epidural spinal injections of corticosteroids for treatment of her low back

pain from Dr. Sewielam at the Kelsey-Seybold Clinic. The dates of these injections

were December 7, 2015, December 28, 2015, and February 23, 2016. Both of the

December injections were at the L4-L5 intervertebral space, while the February 23,


                                           2
2016 injection was at the L5-S1 intervertebral space. On February 28, 2016,

Cheeks was admitted to St. Luke’s Medical Center after being found unresponsive

at home.

      At St. Luke’s, Cheeks was found to have an elevated white blood cell count

of 32,400 with 80% neutrophils, and she was started on intravenous antibiotics. A

spinal tap was performed on February 29. Cheeks’s spinal fluid had a low glucose

content at 45, elevated protein at 188, and an elevated number of white blood cells

at 2218, but no organisms were seen on gram stain. Her blood culture taken on

February 28 was positive for Streptococcus pneumoniae. Her spinal fluid culture,

which had been taken on February 29, was negative. Cheeks was presumed to have

S. pneumoniae meningitis and sepsis. On February 29, an MRI found that Cheeks

had bilateral paraspinal abscesses at L4-L5. She improved rapidly on antibiotics

and was discharged from the hospital on March 9 to continue intravenous

ceftriaxone twice a day at home for a total of six weeks.

      Cheeks was readmitted to St. Luke’s on March 17, 2017, with back pain,

recurrent fever, persistent leukocytosis, and a possible new left frontoparietal and

temporal stroke. An MRI of the brain was normal. Her blood culture was positive

for Acinetobacter baumannii, resistant to ceftriaxone. An MRI of the spine showed

that the paraspinous abscess was increasing in size. Cheeks was treated with

antibiotics for the positive blood culture and paraspinous abscess, and she had a


                                          3
laminectomy and drainage of the epidural abscess on March 25. Culture of the pus

from the abscess was negative. Cheeks was discharged from St. Luke’s on April 1,

2016, to continue three weeks of intravenous antibiotics and rehabilitation at a

skilled nursing facility.

       Regarding the two infections, Dr. Hull’s expert report concludes:

       The best explanation for Ms. Cheeks illnesses are that she was
       affected by a paraspinous/epidural abscess caused by 2 different
       bacteria, pneumococcus and Acinetobacter. The pneumococcus spread
       from the abscess to her blood, causing sepsis, and, possibly, to her
       meninges, causing meningitis. However, because the spinal tap was
       performed late, it is not possible to definitively determine if she had
       meningitis or just inflammation of the meninges from the adjacent
       paraspinous abscess. Ms. Cheeks responded to antibiotic therapy to
       cure her pneumococcal sepsis and possible meningitis. However,
       because the antibiotic she was given was not effective against the
       strain of Acinetobacter in the abscess, the abscess continued to grow
       into an epidural abscess impinging on her spinal cord. The
       Acinetobacter eventually spread into her blood, causing sepsis. This
       required a second hospitalization with antibiotic therapy and surgical
       intervention to prevent further damage to her spinal cord.

       The question then is how Ms. Cheeks acquired this abscess.

       After discussing the various possible causes for epidural abscess, Dr. Hull’s

report states:

       [I]t is more likely than not that the contamination occurred at the
       Kelsey Seybold Clinic where the intraspinal injections were
       administered to Ms. Cheeks.

       The bacterial contamination introduced into Ms. Cheeks’ spinal area
       could only have occurred if the Kelsey Seybold clinic fell below the
       standard of care for maintaining sterile procedure.


                                         4
      Dr. Hull’s report concludes with the following summary:

      1.    Eddie L. Cheeks was hospitalized and treated with IV
            antibiotics for pneumococcal sepsis, possible pneumococcal
            meningitis and paraspinous abscesses in February and March,
            2016.

      2.    Eddie L. Cheeks was hospitalized and treated for Acinetobacter
            sepsis and an epidural abscess in March and April, 2016. Her
            treatment included both IV antibiotics and a laminectomy to
            drain the abscess and decompress her spinal cord.

      3.    The underlying cause of both Ms. Cheeks’ hospitalization is an
            abscess of her spine caused by a combined infection of
            Streptococcus pneumoniae and Acinetobacter baumannii.

      4.    The treatment provided to cure Ms. Cheeks’ sepsis, possible
            meningitis and epidural abscess was both medically necessary
            and appropriate.

      5.    It is more likely than not that the cause of Ms. Cheeks’ epidural
            abscess was bacterial contamination introduced into her spinal
            area during epidural injections of steroids for pain relief at the
            Kelsey Seybold Clinic. Such contamination could only have
            occurred if the staff of the Kelsey Seybold Clinic fell below the
            standard of care for maintaining sterile procedure in the
            operating room.

                          Chapter 74 Expert Reports

      Section 74.351 of the Texas Medical Liability Act (TMLA) provides that no

medical negligence cause of action may proceed until the plaintiff has made a

good-faith effort to demonstrate that a qualified medical expert believes that a

defendant’s conduct breached the applicable standard of care and caused the

claimed injury. See TEX. CIV. PRAC. & REM. CODE § 74.351(l), (r)(6). “[T]he


                                         5
purpose of the expert report requirement is to weed out frivolous malpractice

claims in the early stages of litigation, not to dispose of potentially meritorious

claims.” Abshire v. Christus Health Se. Tex., 563 S.W.3d 219, 223 (Tex. 2018)

(per curiam).

      In arguing that the trial court abused its discretion in finding that Dr. Hull’s

expert report satisfies section 74.351, the Kelsey-Seybold Clinic and Dr. Sewielam

contend that Dr. Hull is not qualified to offer opinions in an expert report in this

case and that his report is deficient on the applicable standards of care, their

breach, and causation.

                                Standard of Review

      We review a trial court’s ruling on a motion to dismiss for an abuse of

discretion. Id.; Am. Transitional Care Ctrs. of Tex., Inc. v. Palacios, 46 S.W.3d

873, 875 (Tex. 2001). “A trial court abuses its discretion if it acts in an arbitrary or

unreasonable manner without reference to any guiding rules or principles.” Bowie

Mem’l Hosp. v. Wright, 79 S.W.3d 48, 52 (Tex. 2002). A trial court also abuses its

discretion by failing to analyze or apply the law correctly. See In re Prudential Ins.

Co. of Am., 148 S.W.3d 124, 135 (Tex. 2004); see also Methodist Hosp. v.

Shepherd-Sherman, 296 S.W.3d 193, 197 (Tex. App.—Houston [14th Dist.] 2009,

no pet.) (“Though we may not substitute our judgment for that of the trial court, the




                                           6
trial court has no discretion in determining what the law is or applying the law to

the facts.”).

                                      Qualifications

       In a healthcare liability suit, whether an expert witness is qualified to offer

an expert opinion under the relevant statutes and rules lies within the trial court’s

discretion. Puppala v. Perry, 564 S.W.3d 190, 202 (Tex. App.—Houston [1st

Dist.] 2018, no pet.). The expert’s qualifications must appear in the four corners of

the expert report or in the expert’s accompanying curriculum vitae. Id. “An expert

report by a person not qualified to testify does not represent a good-faith effort to

comply with the definition of an expert report.” Mettauer v. Noble, 326 S.W.3d

685, 693 (Tex. App.—Houston [1st Dist.] 2010, no pet.).

       To qualify as an expert for the purpose of an expert report against a

physician, a person must be a physician who:

       (1)      is practicing medicine at the time such testimony is given or
                was practicing medicine at the time the claim arose;

       (2)      has knowledge of accepted standards of medical care for the
                diagnosis, care, or treatment of the illness, injury, or condition
                involved in the claim; and

       (3)      is qualified on the basis of training or experience to offer an
                expert opinion regarding those accepted standards of medical
                care.

TEX. CIV. PRAC. & REM. CODE § 74.401(a); see id. § 74.351(r)(5)(A) (defining

“expert” qualified to give opinion on “whether a physician departed from accepted

                                             7
standards of medical care” as “an expert qualified to testify under the requirements

of Section 74.401”).

      Section 74.401(c) further provides that in determining whether an expert

witness is qualified based on his training and experience, a trial court shall

consider whether the witness is “board certified or has other substantial training or

experience in an area of medical practice relevant to the claim,” and whether he “is

actively practicing medicine in rendering medical care services relevant to the

claim.” Id. § 74.401(c)(1)-(2).

      The expert must do more than show that he is a physician, but he “need not

be a specialist in the particular area of the profession for which testimony is

offered.” Owens v. Handyside, 478 S.W.3d 172, 185 (Tex. App.—Houston [1st

Dist.] 2015, pet. denied). The critical inquiry is “whether the expert’s expertise

goes to the very matter on which he or she is to give an opinion.” Broders v. Heise,

924 S.W.2d 148, 153 (Tex. 1996); see Mangin v. Wendt, 480 S.W.3d 701, 707

(Tex. App.—Houston [1st Dist.] 2015, no pet.). “[T]he applicable “standard of

care” and an expert’s ability to opine on it are dictated by the medical condition

involved in the claim and by the expert’s familiarity and experience with that

condition.” Lee v. Le, No. 01-18-00309-CV, 2018 WL 4923938, at *4 (Tex.

App.—Houston [1st Dist.] Oct. 11, 2018, no pet.) (mem. op.) (quoting Barber v.

Dean, 303 S.W.3d 819, 826 (Tex. App.—Fort Worth 2009, no pet.)).


                                          8
      A physician may be qualified to provide an expert report even if his

specialty differs from that of the defendant if he “has practical knowledge of what

is usually and customarily done by other practitioners under circumstances similar

to those confronting the malpractice defendant,” or “if the subject matter is

common to and equally recognized and developed in all fields of practice.” Keo v.

Vu, 76 S.W.3d 725, 732 (Tex. App.—Houston [1st Dist.] 2002, pet. denied).

      For a case against a health care provider such as the Kelsey-Seybold Clinic

and its employees, section 74.402(b) provides:

      [A] person may qualify as an expert witness on the issue of whether
      the health care provider departed from accepted standards of care only
      if the person:

            (1) is practicing health care in a field of practice that involves
            the same type of care or treatment as that delivered by the
            defendant health care provider, if the defendant health care
            provider is an individual, at the time the testimony is given or
            was practicing that type of health care at the time the claim
            arose;

            (2) has knowledge of accepted standards of care for health care
            providers for the diagnosis, care, or treatment of the illness,
            injury, or condition involved in the claim; and

            (3) is qualified on the basis of training or experience to offer an
            expert opinion regarding those accepted standards of health
            care.

TEX. CIV. PRAC. & REM. CODE § 74.402(b); see id. § 74.351(r)(5)(B) (defining

“expert” qualified to give opinion on “whether a health care provider departed



                                         9
from accepted standards of health care” as “an expert qualified to testify under the

requirements of Section 74.402”).

      The statute defines “practicing health care” to include “(1) training health

care providers in the same field as the defendant health care provider at an

accredited educational institution; or (2) serving as a consulting health care

provider and being licensed, certified, or registered in the same field as the

defendant health care provider.” Id. § 74.402(a). The statute further provides that,

in determining whether a person is qualified on the basis of training or experience,

the court shall consider whether, at the time the claim arose or at the time the

testimony is given, the person “(1) is certified by a licensing agency of one or more

states of the United States or a national professional certifying agency, or has other

substantial training or experience, in the area of health care relevant to the claim;

and (2) is actively practicing health care in rendering health care services relevant

to the claim.” Id. § 74.402(c) (emphasis added)

      The Kelsey-Seybold Clinic and Dr. Sewielam, a pain-management

physician, contend that Dr. Hull’s report and CV fail to show that he is qualified to

provide an opinion on the standards of care applicable to a pain-management

physician and to a medical clinic regarding the administration of spinal injections

to an adult patient.




                                         10
      Dr. Hull’s report and CV reflect that he received his medical degree from

Johns Hopkins University School of Medicine in 1973, after which he had a

residency in Pediatrics at the University of Arizona and a residency in Pediatrics at

the University of Washington. Dr. Hull’s report and CV also reflect that, between

his two residencies, he was an Epidemic Intelligence Service Officer at the Centers

for Disease Control, but no description of that training is provided.

      Dr. Hull’s report summarizes his background and qualifications as follows:

      I am licensed to practice medicine by the Minnesota Board of Medical
      Practice. I am certified by the American Board of Pediatrics and a
      fellow of the American Academy of Pediatrics. I am on the teaching
      faculty of the University of Nevada School of Medicine and the
      Department of Community Health at the University of Nevada, Reno.
      I am currently teaching infectious disease epidemiology to the
      medical students at the University of Nevada School of Medicine in
      Reno. I was an adjunct professor of Pediatric Infectious Diseases at
      the University of Minnesota School of Medicine and an adjunct
      professor of Infectious Disease Epidemiology at the University of
      Minnesota School of Public Health from 2000 to 2012. I was a
      clinical assistant professor of pediatrics during my time in New
      Mexico. In my more than 40 years of the practice of medicine, I have
      concentrated on the field of infectious disease epidemiology,
      including serving as the State Epidemiologist for the states of
      Minnesota and New Mexico. My full C.V. is attached.

      During my tenure as state epidemiologist in Minnesota and New
      Mexico, assistant state epidemiologist in New Mexico and as an EIS
      officer assigned by the Center for Disease Control to the Montana
      Department of Health, I was responsible for investigating and
      controlling hundreds of outbreaks of illness caused by a broad variety
      of viruses, bacteria and parasites. My training as a medical doctor plus
      my extensive experience in the epidemiological investigation and
      control of infectious diseases make me fully qualified to render
      opinions, including on the cause of the illness of Eddie L. Cheeks.
                                          11
      Cheeks asserts that, while Dr. Hull “is a pediatrician who has no experience

with steroid injections,” he is qualified by “his practice, training, and experience as

an epidemiologist with 40 years of experience in determining the cause of

infectious disease.” Cheeks further admits that Dr. Hull has “never practiced in an

area of medicine that utilizes steroid injection therapy.”

      Dr. Hull’s report states: “My training as a medical doctor plus my extensive

experience in the epidemiological investigation and control of infectious diseases

make me fully qualified to render opinions, including on the cause of the illness of

Eddie L. Cheeks.” This statement is conclusory; it does not demonstrate how his

medical training, his being a pediatrician, or his epidemiology experience qualifies

him to be familiar with the standards of care applicable to a physician or to a

medical clinic regarding the administration of spinal steroid injections in a medical

clinic.1 See Mangin, 480 S.W.3d at 709–10. Additionally, his report lacks even the


1
      Epidemiology is defined as “a branch of medical science that deals with the
      incidence, distribution, and control of disease in a population.” Epidemiology,
      MERRIAM-WEBSTER, https://www.merriam-webster.com/dictionary/epidemiology
      (last visited July 8, 2019). “Epidemiology is the field of public health and
      medicine that studies the incidence, distribution, and etiology of disease in
      human populations. The purpose of epidemiology is to better understand disease
      causation and to prevent disease in groups of individuals.” ANN. REFERENCE
      MANUAL ON SCIENTIFIC EVIDENCE, REFERENCE GUIDE ON EPIDEMIOLOGY 333
      (2d ed. 2018) (available at 2004 WL 48155), at *2 (emphasis added).
      “Epidemiology focuses on the question of general causation (i.e., is the agent
      capable of causing disease?) rather than that of specific causation (i.e., did it
      cause disease in a particular individual?).” Id. See generally Daniels v. Lyondell-
      Citgo Ref. Co., 99 S.W.3d 722, 727 (Tex. App.—Houston [1st Dist.] 2003, no
      pet.) (“Epidemiological studies examine existing populations to attempt to
                                           12
basic statement that he is familiar with the standards of care applicable to a

physician or a medical clinic with respect to the administration of spinal steroid

injections.

      Nothing in his report or CV establishes that Dr. Hull is an expert in the care

relevant to Cheeks’s claims against the Kelsey-Seybold Clinic and Dr. Sewielam.

Nothing indicates that he has any training or experience with epidural spinal

injections, and he does not state that he has ever administered or supervised an

epidural spinal injection. Nor does Dr. Hull state that he has ever worked with or

supervised the specific types of health care providers (nurses, housekeeping staff,

and the staff of the infection-control department) that he implicates in his report.

Dr. Hull is not board certified in an area of medicine relevant to the claim, he has

not demonstrated any relevant training or experience in the care at issue, and he

has not shown that he actively practices medicine in the administration of spinal

injections. Finally, Dr. Hull’s report and CV do not indicate that he has practiced

health care in the field of practice involving the same type of care or treatment as

the Kelsey-Seybold Clinic’s nurses, housekeeping staff, and infection-control staff.

See TEX. CIV. PRAC. & REM. CODE § 74.402(b)(1), (c); Group v. Vicento, 164



      determine if there is an association between a disease or condition and a factor
      suspected of causing that disease or condition. Commentators in this area
      uniformly acknowledge that epidemiological studies cannot establish that a given
      individual contracted a disease or condition due to exposure to a particular drug
      or agent.”) (internal citations omitted).
                                          13
S.W.3d 724, 730–32 (Tex. App.—Houston [14th Dist.] 2005, pet. denied); see also

Clint L. Hines, Inc. v. Davis, No. 09-16-00403-CV, 2017 WL 1326051, at *2 (Tex.

App.—Beaumont Apr. 6, 2017, no pet.) (mem. op.).

      Cheeks argues that prevention of infection is based on knowledge found

throughout medicine. See, e.g., Keo, 76 S.W.3d at 732 (noting that physician may

be qualified “if the subject matter is common to and equally recognized and

developed in all fields of practice”). But nothing in Dr. Hull’s report supports this

argument. See Mangin, 480 S.W.3d at 709 (“The report also did not establish or

even assert that Dr. Mangin’s alleged breaches pertained to a subject matter that is

common to and equally recognized and developed in all fields of medical practice,

such that no specific cardiological knowledge or experience would be required to

offer a relevant opinion.”) (citing Broders, 924 S.W.2d at 153; and Keo, 76 S.W.3d

at 732). Additionally, while this court has recognized that “the care and treatment

of an open wound and infection are common to and equal in all fields of

medicine,” New Med. Horizons, II, LTD. v. Milner, No. 01-17-00827-CV, 2019

WL 1388359, at *5 (Tex. App.—Houston [1st Dist.] Mar. 28, 2019, no pet.), this

line of cases has been limited to the care and treatment of existing open wounds

that develop infection. See id. at *5 & n.2. We are not aware of any extension of

this line of cases to a situation like Cheeks’s where the infection is allegedly




                                         14
caused by a spinal steroid injection, and we decline to do so here on the record

before us. See Mangin, 480 S.W.3d at 709.

      In conclusion, because Dr. Hull’s report and CV do not establish that he is

qualified to provide standard-of-care opinions as to the Kelsey-Seybold Clinic and

Dr. Sewielam, the trial court abused its discretion in finding that he was qualified

to provide a section 74.351 expert report in this case.

                          Standard of Care and Breach

      Even if Dr. Hull were qualified, we conclude that the trial court abused its

discretion in finding that his opinions on the standards of care and their breach are

adequate.

      To constitute a good-faith effort, an expert report must provide enough

information to fulfill two purposes: (1) inform the defendant of the specific

conduct that the plaintiff has called into question; and (2) provide a basis for the

trial court to conclude that the claim has merit. See Baty v. Futrell, 543 S.W.3d

689, 693–94 (Tex. 2018); Palacios, 46 S.W.3d at 878–79. An expert report must

provide a “fair summary” of the expert’s opinions regarding the (1) applicable

standards of care, (2) manner in which the care rendered by the physician or health

care provider failed to meet the standards, and (3) causal relationship between that

failure and the injury, harm, or damages claimed. TEX. CIV. PRAC. & REM. CODE

§ 74.351(r)(6); Miller v. JSC Lake Highlands Operations, LP, 536 S.W.3d 510,


                                          15
513 (Tex. 2017) (per curiam). “To adequately identify the standard of care, an

expert report must set forth ‘specific information about what the defendant should

have done differently.’” Abshire, 563 S.W.3d at 226 (quoting Palacios, 46 S.W.3d

at 880).

          Regarding the applicable standard of care, Dr. Hull’s report first generally

states:

          The bacterial contamination introduced into Ms. Cheeks’ spinal area
          could only have occurred if the Kelsey Seybold clinic fell below the
          standard of care for maintaining sterile procedure. By failing to
          maintain sterile procedure, bacteria would have been introduced into
          the medicine injected into Ms. Cheeks’ spine.

          Dr. Hull then lists possible violations of the standard of care for maintaining

sterile procedure, thus providing further specificity of the applicable standards:

          Violations of the standard could include failing to properly clean the
          operating room, failing to properly wear masks during the procedure,
          inadequate hand washing, contaminating the surface of the vial
          containing the medicine to be administered to Ms. Cheeks,
          contamination [of] the equipment used to administer the injections to
          Ms. Cheeks or using the same vial of medicine or non-sterile saline
          for multiple patients.

Dr. Hull’s report then concludes:

          Any one of the foregoing could have led to these pathogenic bacteria
          being introduced into Ms. Cheeks[’s] spinal area, producing the
          abscess. The records do not identify a specific route by which the
          contamination occurred, but that, per se, does not exclude such
          contamination occurring.




                                             16
      Dr. Hull’s report merely lists possible violations of the standard of care

without stating that any of these possibilities actually occurred during Cheeks’s

care. He does not identify any particular failure to maintain sterile procedures, nor

does he identify the persons responsible for the alleged failure. In short, Dr. Hull’s

report does not show which Kelsey-Seybold personnel were involved in the alleged

breach or if Dr. Sewielam was involved, when the alleged breach occurred, or what

sterile procedure they allegedly failed to follow. He admits that he cannot identify

“a specific route by which the contamination occurred.” Dr. Hull’s report does not

set forth “specific information about what the defendant should have done

differently.” Id.

      Last year, this court found insufficient a similar expert report in a surgical

infection case:

      Dr. Nirgiotis had previously identified a number of precautionary
      techniques and procedures that could prevent the introduction of
      bacteria into a surgical wound, and stated that the “[f]ailure to take
      one or more of these precautions was the proximate cause of Mr.
      Sherman’s infection.” However, Dr. Nirgiotis does not specify how
      Dr. Elkousy or Fondren deviated from these protocols, and we are not
      allowed to draw inferences from the report or speculate as to how Dr.
      Elkousy and Fondren might have done so. Thus, Dr. Nirgiotis’s report
      is insufficient as to breach because it does not specifically inform Dr.
      Elkousy or Fondren of the negligent acts, or failures to act, that caused
      the injury to Sherman.

Fondren Orthopedic Group, LLP v. Sherman, No. 01-18-00545-CV, 2018 WL

5915068, at *4 (Tex. App.—Houston [1st Dist.] Nov. 13, 2018, no pet.) (mem. op.)


                                         17
(citations omitted).

      Because Dr. Hull’s report fails to inform Dr. Sewielam or Kelsey-Seybold of

the specific conduct criticized and fails to set out what specific care was expected

but not given, it is deficient.2 See id. The trial court abused its discretion in finding

the report adequate to be a good-faith effort on the applicable standards of care and

their breach.

                                      Conclusion

      In light of the above determinations, we need not address the appellants’

remaining challenges to Dr. Hull’s report. See Iasis Healthcare Corp. v. Pean, No.

01-17-00638-CV, 2018 WL 3059789, at *8 n.7 (Tex. App.—Houston [1st Dist.]

June 21, 2018, pet. denied) (citing Gardner v. U.S. Imaging, Inc., 274 S.W.3d 669,

671 n.2 (Tex. 2008)); TEX. R. APP. P. 47.1.

      Cheeks conditionally requested a thirty-day extension to cure Dr. Hull’s

report under section 74.351(c) in the event that the trial court or this court found

his report to be deficient. We will remand this case to the trial court for it to

consider and rule on Cheeks’s request for a thirty-day extension to cure the

deficient report under section 74.351(c). See Leland v. Brandal, 257 S.W.3d 204,

207–08 (Tex. 2008); see also Scoresby v. Santillan, 346 S.W.3d 546, 549 (Tex.


2
      We further conclude that Dr. Hull’s report is insufficient as to causation because it
      does not link Cheeks’s injury to a specific breach of a standard of care. See
      Fondren Orthopedic Group, 2018 WL 5915068, at *5.
                                           18
2011) (“An individual’s lack of relevant qualifications and an opinion’s

inadequacies are deficiencies the plaintiff should be given an opportunity to cure if

it is possible to do so.”); Lewis v. Funderburk, 253 S.W.3d 204, 208 (Tex. 2008)

(stating that thirty-day extension can be used to serve new report from different

expert); Baylor Coll. of Med. v. Pokluda, 283 S.W.3d 110, 116 (Tex. App.—

Houston [14th Dist.] 2009, no pet.) (same).

      We reverse the trial court’s order and remand this case to the trial court for it

to consider and rule on Cheeks’s request for a thirty-day extension.




                                               Richard Hightower
                                               Justice

Panel consists of Justices Lloyd, Kelly, and Hightower.




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