                                 NO. 12-17-00170-CV

                         IN THE COURT OF APPEALS

              TWELFTH COURT OF APPEALS DISTRICT

                                    TYLER, TEXAS

JENNIFER SAMPSON,                               §      APPEAL FROM THE 7TH
INDIVIDUALLY; AS A
REPRESENTATIVE OF THE ESTATE
OF SINDY JEAN HAMILTON; AND
AS GUARDIAN OF JEANETTE
BURTON AND SONYA HOLLIS,
INDIVIDUALLY AND AS A
REPRESENTATIVE OF THE ESTATE
OF JANET MEYERS,                                §      JUDICIAL DISTRICT COURT
APPELLANTS

V.

EAST TEXAS MEDICAL CENTER
TYLER,
APPELLEE                                        §      SMITH COUNTY, TEXAS

                                 MEMORANDUM OPINION
       Jennifer Sampson, Individually, as Representative of the Estate of Sindy Hamilton, and
as Guardian of Jeanette Burton, and Sonya Hollis, Individually and as Representative of the
Estate of Janet Meyers appeal the trial court’s order excluding their expert and dismissing their
cause of action. They present three issues on appeal. We affirm.


                                         BACKGROUND
       Sampson and Hollis filed this health care liability claim against East Texas Medical
Center Tyler (ETMC) alleging ETMC was negligent in the care of two patients. According to
Sampson and Hollis, ETMC’s negligence caused the patients to develop bedsores. Pursuant to
Chapter 74 of the Texas Civil Practice and Remedies Code, Sampson and Hollis served ETMC
with two expert reports and a curriculum vitae from their expert, Martha Sanford, Ph.D., R.N.
ETMC filed a motion to dismiss with prejudice on grounds that the reports and curriculum vitae
did not establish Sanford’s qualifications to offer the tendered opinions and that the opinions
contained in the reports were insufficient. Sampson and Hollis replied to the motion alleging
that Sanford was qualified to offer her opinions because she is a nurse.
       Without conducting an oral hearing, but after the submission date contained in ETMC’s
motion per the applicable local rules of Smith County, the trial court granted ETMC’s motion to
dismiss. Sampson and Hollis filed a motion for new trial arguing that Sanford was a qualified
expert under the Texas Civil Practice and Remedies Code. The motion for new trial was
overruled by operation of law. This appeal followed.


                               SUFFICIENCY OF EXPERT REPORTS
       In their first issue, Sampson and Hollis contend the trial court erred in excluding
Sanford’s expert testimony. They argue that Sanford is qualified to render expert opinions under
the Texas Civil Practice & Remedies Code.
Standard of Review
       A trial court’s decision to grant or deny a motion to dismiss under section 74.351 of the
civil practice and remedies code is reviewed for an abuse of discretion. See Am. Transitional
Care Ctrs. of Tex., Inc. v. Palacios, 46 S.W.3d 873, 875 (Tex. 2001); Tenet Hosps., Ltd. v.
Boada, 304 S.W.3d 528, 533 (Tex. App.—El Paso 2009, pet. denied). A trial court only abuses
its discretion when it acts in an unreasonable or arbitrary manner, without reference to any
guiding rules or principles. See Walker v. Gutierrez, 111 S.W.3d 56, 62 (Tex. 2003); Boada,
304 S.W.3d at 533. A trial court acts arbitrarily and unreasonably if it could have reached only
one decision, but instead reached a different one. See Teixeira v. Hall, 107 S.W.3d 805, 807
(Tex. App.—Texarkana 2003, no pet.); Boada, 304 S.W.3d at 533. A trial court also abuses its
discretion when it fails to analyze or apply the law correctly. In re Sw. Bell Tel. Co. L.P., 226
S.W.3d 400, 403 (Tex. 2007) (citing In re Kuntz, 124 S.W.3d 179, 181 (Tex. 2003)); Boada,
304 S.W.3d at 533. A trial court does not abuse its discretion merely because it decides a matter
within its discretion differently than a reviewing court. Downer v. Aquamarine Operators,
Inc., 701 S.W.2d 238, 242 (Tex. 1985).




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Applicable Law
       In a health care liability claim, the claimant shall serve on each party, or the party’s
attorney, one or more expert reports with a curriculum vitae of each expert listed in the report for
each physician or health care provider against whom a liability claim is asserted. TEX. CIV.
PRAC. & REM. CODE ANN. § 74.351(a) (West 2017). The statute defines an expert report as
follows:


       a written report by an expert that provides a fair summary of the expert’s opinions as of the date of
       the report 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). If no report is served within 120 days after the original petition was filed, the
trial court, on the defendant’s motion, must dismiss the claim with prejudice to its refiling.
Id. § 74.351(b)(2). The trial court’s order should also award the defendant reasonable attorney’s
fees and costs. Id. § 74.351(b)(1). Even when the claimant files an expert report within the 120
day period, it cannot be considered served if it is inadequate because elements of the report are
found deficient. Id. § 74.351(c); Lewis v. Funderburk, 253 S.W.3d 204, 207 (Tex. 2008).
       A defendant may challenge the report as being so insufficient that it represents no report
at all, and move to dismiss. The statute allows three possible resolutions of the defendant’s
motion. First, if the trial court determines that elements of the report are deficient, it may grant
the claimant one thirty day extension in which to cure the deficiency. TEX. CIV. PRAC. & REM.
CODE ANN. § 74.351(c). An interlocutory appeal may not be taken from an order granting a
thirty day extension. Id. § 51.014(a)(9) (West Supp. 2017). Second, the trial court may, after
hearing, grant the defendant’s motion, dismiss the case, and assess attorney’s fees and costs
against the claimant. Id. § 74.351(b). The trial court shall grant the motion only if it determines
that the report does not represent an objective good faith effort to comply with the statute’s
definition of an expert report. Id. § 74.351(l). The claimant has the right to an interlocutory
appeal of the adverse order. Id. § 51.014(a)(10). The trial court’s third option is to deny the
defendant’s motion. See id. § 74.351(b), (l). Section 51.014(a)(9) provides for an interlocutory
appeal from an order denying a defendant relief under section 74.351(b). See id. § 51.014(a)(9).
       In assessing the report’s sufficiency, a trial court may not draw any inferences; the only
information relevant to the inquiry is within the four corners of the report. Palacios, 46 S.W.3d


                                                        3
at 878–79. Although the report need not marshal all of a plaintiff’s proof, it must include the
expert’s opinions on the three statutory elements: standard of care, breach of the standard, and
the causal relationship between the breach and the harm. Id. at 878; see also TEX. CIV. PRAC. &
REM. CODE ANN. § 74.351(r)(6). In detailing these elements, the report must provide enough
information to fulfill two purposes if it is to constitute a good faith effort. Palacios, 46
S.W.3d at 878–79. First, the report must inform the defendant of the specific conduct that the
plaintiff has called into question. Id. Second, the report must provide a basis for the trial court to
conclude that the claims have merit. Id. A report that merely states the expert’s conclusions as
to the standard of care, breach, and causal relationship does not fulfill these two purposes. Id.
Rather, the expert must explain the basis of his statements and link his conclusions to the facts.
Id. The report, however, can be informal, and information does not have to meet the same
requirements as evidence offered in a summary judgment proceeding or at trial. Id. One who
seeks to offer an expert opinion about the causal relationship between the injury, harm, or
damages claimed and the alleged departure from the standard of care must be a physician who is
otherwise qualified to render opinions on such causal relationship under the Texas Rules of
Evidence. TEX. CIV. PRAC. & REM. CODE ANN. §§ 74.351(r)(5)(C), 74.403(a) (West 2017).
       The reports of multiple experts may be read together, if possible, to satisfy the expert
report requirement.    Lewis, 253 S.W.3d at 208.         A report by an unqualified expert will
sometimes reflect a good faith effort sufficient to justify a thirty day extension. See In re Buster,
275 S.W.3d 475, 477 (Tex. 2009) (nurse’s report expressing opinion on causation constituted
good faith effort that warranted granting of request for extension); Leland v. Brandal, 257
S.W.3d 204, 208 (Tex. 2008) (remanding to trial court to determine whether claimant was
entitled to thirty day extension to cure defective expert report in case where trial court found
report adequate and court of appeals found report deficient). A claimant may cure a deficiency
by serving a report from a new expert. In re Buster, 275 S.W.3d at 477.
Analysis
       Sampson and Hollis argue that because the standard of care at issue is applied to nurses,
Sanford, a nurse, is qualified to render opinions with regard to that standard of care. ETMC
contends that as a nurse, Sanford is unqualified to offer an opinion on causation.
       Sanford’s report and curriculum vitae state that she is a registered nurse with a doctorate
of philosophy (Ph.D.) in nursing. The Texas Civil Practice and Remedies Code, however,



                                                  4
requires that an “expert” with respect to proximate cause must be a physician. See TEX. CIV.
PRAC. & REM. CODE ANN. §§ 74.351(r)(5)(C), 74.403(a). A physician, as defined by the statute,
is a person licensed to practice medicine in this state. Id. § 74.001(a)(23)(A) (West 2017). “A
nurse is not a physician and therefore is neither an expert nor is qualified to render an expert
opinion regarding causation.” College Station Med. Ctr., LLC v. Todd, No. 10-09-00398-CV,
2010 WL 3434677, at *2 (Tex. App.—Waco Sept. 1, 2010, pet. denied) (mem. op.). Thus, while
Sanford’s report could be used to explain the standard of care and any breach of the standard of
care by a nurse, it cannot be used as proof of causation. See San Jacinto Methodist Hosp. v.
Carr, No. 01-07-00655-CV, 2008 WL 2186473, at *4 (Tex. App.—Houston [1st Dist.] May 22,
2008, no pet.) (mem. op.). Accordingly, Sanford is not qualified to opine on causation. See TEX.
CIV. PRAC. & REM. CODE ANN. §§ 74.351(r)(5)(C), 74.403(a); see also Rio Grande Reg’l Hosp.
v. Ayala, No. 13–11–00686–CV, 2012 WL 3637368, at *9 (Tex. App.—Corpus Christi Aug. 24,
2012, pet. denied) (mem. op.), abrogated on other grounds, Columbia Valley Healthcare Sys.,
L.P. v. Zamarripa, 526 S.W.3d 453 (Tex. 2017) (concluding that a report could not satisfy the
TMLA’s expert report requirement as to causation because its author was not a physician); Rusk
State Hosp. v. Black, 379 S.W.3d 283, 292-93 (Tex. App.—Tyler 2010), aff’d, 392 S.W.3d 88
(Tex. 2012).
       Under the circumstances of this case, the trial court could have reached only one
decision, that Sanford was not qualified to give an expert opinion on causation and the case
should be dismissed with prejudice. See Lewis, 253 S.W.3d at 207; see also Palacios, 46
S.W.3d at 875; Teixeira, 107 S.W.3d at 807; Boada, 304 S.W.3d at 533; TEX. CIV. PRAC. &
REM. CODE ANN. § 74.351(b), (c). For this reason, the trial court did not abuse its discretion by
granting ETMC’s motion to dismiss. We overrule Sampson and Hollis’s first issue.


                                FAILURE TO GRANT EXTENSION
       In their second issue, Sampson and Hollis argue that the trial court erred by failing to
grant them the thirty-day grace period to amend their reports.
       We review the trial court’s decision to deny a request for a thirty-day extension under an
abuse of discretion standard. See Walker, 111 S.W.3d at 62; Hargrove v. Denno, 40 S.W.3d
714, 716 (Tex. App.—San Antonio 2001, no pet.). Failure to serve an adequate report mandates
dismissal with prejudice.    TEX. CIV. PRAC. & REM. CODE ANN. § 74.351(b).             However,



                                                5
section 74.351(c) provides that, “[i]f an expert report has not been served within the period
specified by Subsection (a) because elements of the report are found deficient, the court may
grant one thirty-day extension to the claimant in order to cure the deficiency.” Id. § 74.351(c).
         In this case, Sampson and Hollis did not ask the trial court to grant them an extension
under section 74.351(c). In their reply to ETMC’s motion to dismiss, Sampson and Hollis
argued that Sanford was qualified to offer her opinions because she is a nurse and the
complained-of conduct relates to nurses. However, they did not ask the court for an opportunity
to cure Sanford’s reports in the event the trial court found them deficient. Following the grant of
the motion to dismiss, Sampson and Hollis filed a motion for new trial. In the motion for new
trial, they again argued that Sanford’s experience as a nurse qualified her as an expert, but they
did not seek an extension under section 74.351(c). Because Sampson and Hollis made no
request for the trial court to grant a thirty day extension to amend or supplement Sanford’s
reports, we cannot say the trial court abused its discretion by failing to grant an extension. See
Simmons v. Pamatmat, No. 12-11-00318-CV, 2012 WL 6677672, at *2 (Tex. App.—Tyler Dec.
20, 2012, pet. denied) (mem. op.); Strom v. Mem’l Hermann Hosp. Sys., 110 S.W.3d 216, 226
(Tex. App.—Houston [1st Dist.] 2003, pet. denied) (applying former version of the statute);
Hansen v. Starr, 123 S.W.3d 13, 20-21 (Tex. App.—Dallas 2003, pet. denied) (applying former
version of the statute); see also TEX. R. APP. P. 33.1 (any complaints to trial court must be made
with sufficient specificity to make trial court aware of complaint, and a ruling or refusal to rule
must be obtained, in order to preserve issue for appeal); see also Morris v. Aguilar, 369 S.W.3d
168, 170 n.3 (Tex. 2012) (one purpose of Rule 33.1 is to promote judicial efficiency by allowing
the trial court the opportunity to correct any error). We overrule Sampson and Hollis’s second
issue.


                                    LACK OF AN ORAL HEARING
         In their third issue, Sampson and Hollis contend the trial court erred by failing to hold an
oral hearing on ETMC’s motion to dismiss.
         Section 74.351(l) provides that “[a] court shall grant a motion challenging the adequacy
of an expert report only if it appears to the court, after hearing, that the report does not represent
an objective good faith effort to comply with the definition of an expert report in Subsection
(r)(6).” TEX. CIV. PRAC. & REM. CODE ANN. § 74.351(l). “Unless required by the express



                                                  6
language or the context of the particular rule, the term ‘hearing’ does not necessarily contemplate
either a personal appearance before the court or an oral presentation to the court.” Martin v.
Martin, Martin & Richards, Inc., 989 S.W.2d 357, 359 (Tex. 1998). “As a general rule, an
adjudication based on written materials alone is sufficient.” Jackson v. Reardon, 14 S.W.3d
816, 819 (Tex. App.—Houston [1st Dist.] 2000, no pet.) (concluding the court conducted the
statutorily-required hearing “based on written materials alone[ ]”); see also Michiana Easy
Livin’ Country, Inc. v. Holten, 168 S.W.3d 777, 781 (Tex. 2005) (noting that “[m]any pretrial
‘hearings’ take place entirely on paper [ ]”); Norris v. Tenet Houston Health Sys., No. 14–04–
01029–CV, 2006 WL 1459958 (Tex. App.–Houston [14th Dist.] May 30, 2006, no pet.) (mem.
op.) (a motion to dismiss pursuant to former Medical Liability and Insurance Improvement Act
may be decided on written materials alone); Mocega v. Urquhart, 79 S.W.3d 61, 64 (Tex. App.–
Houston [14th Dist.] 2002, pet. denied) (holding that a motion to dismiss pursuant to Article
4590i may be properly “heard” by submission).
         Accordingly, this Court has previously held that section 74.351(l)’s use of the word
“hearing” does not require a trial court to hold an oral hearing; rather the trial court may decide
the matter on written submission. Simmons, 2012 WL 6677672, at *2; see Jackson, 14 S.W.3d
at 819; (stating that “[a]rticle 4590i [the predecessor to Chapter 74] does not expressly require an
oral hearing on a motion to dismiss [ ]”). Furthermore, any oral argument or testimony would
fall outside the four corners of the expert report. See Bowie Mem’l Hosp. v. Wright, 79 S.W.3d
48, 53 (Tex. 2002); Palacios, 46 S.W.3d at 878. For these reasons, we conclude the trial court
did not err by failing to conduct an oral hearing on ETMC’s motion to dismiss. We overrule
Sampson and Hollis’s third issue.


                                                  DISPOSITION
         Having overruled Sampson and Hollis’s first, second, and third issues, we affirm the trial
court’s judgment.

                                                                JAMES T. WORTHEN
                                                                   Chief Justice

Opinion delivered January 18, 2018.
Panel consisted of Worthen, C.J., Hoyle, J., and Neeley, J.

                                                   (PUBLISH)


                                                          7
                                   COURT OF APPEALS

      TWELFTH COURT OF APPEALS DISTRICT OF TEXAS

                                           JUDGMENT

                                          JANUARY 18, 2018


                                         NO. 12-17-00170-CV


JENNIFER SAMPSON, INDIVIDUALLY; AS A REPRESENTATIVE OF THE ESTATE
 OF SINDY JEAN HAMILTON; AND AS GUARDIAN OF JEANETTE BURTON AND
SONYA HOLLIS, INDIVIDUALLY AND AS A REPRESENTATIVE OF THE ESTATE
                         OF JANET MEYERS,
                              Appellants
                                 V.
                 EAST TEXAS MEDICAL CENTER TYLER,
                              Appellee


                                  Appeal from the 7th District Court
                          of Smith County, Texas (Tr.Ct.No. 16-1738-A)

                       THIS CAUSE came to be heard on the appellate record and briefs filed
herein, and the same being considered, it is the opinion of this court that there was no error in the
judgment.
                       It is therefore ORDERED, ADJUDGED and DECREED that the judgment
of the court below be in all things affirmed, and that all costs of this appeal are hereby adjudged
against the Appellants, JENNIFER SAMPSON AND SONYA HOLLIS, for which execution
may issue, and that this decision be certified to the court below for observance.
                    James T. Worthen, Chief Justice.
                    Panel consisted of Worthen, C.J., Hoyle, J., and Neeley, J.
