AFFIRM; and Opinion Filed April 24, 2013.




                                         S   In The
                                Court of Appeals
                         Fifth District of Texas at Dallas
                                      No. 05-12-00278-CV

                            DAVID D. KIM, M.D, Appellant
                                                V.
STEVEN HOYT, individually and as next friend of minor children TAYLOR
HOYT AND JORDAN HOYT, and as sole administrator of the ESTATE OF
                   KRISTINE HOYT, Appellee

                       On Appeal from the County Court at Law No. 3
                                   Dallas County, Texas
                           Trial Court Cause No. CC-11-01461-C

                                          OPINION
                       Before Justices O'Neill, FitzGerald and Lang-Miers
                                   Opinion by Justice O'Neill
       In this interlocutory appeal, appellant David D. Kim, M.D. appeals an order denying his

motion to dismiss healthcare liability claims. In two issues, Kim contends the trial court abused

its discretion in denying his motion to dismiss because the expert report submitted by appellee

Steven Hoyt, individually and as next friend of minor children Taylor and Jordan Hoyt and as

sole administrator of the estate of Kristine Hoyt does not meet the requirements of the Medical

Liability Act. For the following reasons, we affirm the trial court’s judgment.

       On March 2, 2009, Dr. Kim performed outpatient laparoscopic surgery on Kristine Hoyt.

Kristine was administered intravenous general anesthesia by another physician. During Kim’s
procedure, Kristine began “bucking” due to inadequate anesthesia and/or muscle relaxants being

administered, causing Kim to sever Kristine’s abdominal aorta. Complications followed Kim’s

efforts to repair the aorta, and tragically Kristine died in the operating room. Immediately

following Kristine’s death, Kim informed Hoyt that that he had nicked the femoral artery with

the trocar. He stated that ordinarily such nicks are repairable, but he had been unable to repair it

because of the jagged nature of the puncture. Kim notified Hoyt he had a right to request an

autopsy, but stated an autopsy was unnecessary because Kim knew the cause of death. Likewise,

Kim informed Hoyt he did not think it was necessary to request the Medical Examiner’s Office

to investigate the death. Hoyt nevertheless requested an autopsy to determine the cause of

Kristine’s death.

       Two days following the surgery, Kim redictated his operative report, claiming he could

not find the original dictation. Hoyt claims the redictation of the allegedly lost report was false

and was not consistent with what Kim verbally told him following Kristine’s death. Hoyt also

alleged that Kim then somehow arranged for Dr. Juan Luis Zamora, a private forensic

pathologist, to perform the autopsy. Hoyt alleges that Zamora falsified the autopsy results,

concluding the cause of death was the result of a preexisting condition. Hoyt asserted Kim knew

or should have known that Zamora falsified the autopsy.

       Hoyt sued several defendants alleging claims surrounding Kristine’s death and

subsequent cover-up regarding the cause of death. With respect to Kim, Hoyt did not allege any

acts of negligence that caused Kristine’s death, but complained only of his participation in the

cover-up. He alleged claims against Kim for fraudulent nondisclosure, common-law fraud,

intentional infliction of emotional distress, and conspiracy to commit fraud. Although Hoyt

alleged his claims against Kim were not health care liability claims, he nevertheless served Kim




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with a report from Dr. Marc Cooperman. Kim responded Hoyt’s claims were health care

liability claims and objected to the report, asserting it failed to show Cooperman’s qualifications

to render his opinions and was conclusory as to how the alleged deviations from the standard of

care caused the alleged injuries. Before the trial court determined the adequacy of the original

report, the parties reached an agreement that Hoyt would be given thirty days to file an amended

report.

          Hoyt served Kim with Cooperman’s revised report. Kim again objected to the report,

asserting it failed to establish Cooperman’s qualifications and was conclusory as to causation.

The trial court disagreed, concluded the report was adequate, and denied Kim’s motion to

dismiss.

          In this appeal, Kim asserts the trial court erred in denying his motion to dismiss.   In oral

argument, Hoyt conceded his claims were health care liability claims subject to the Act’s

requirements. Therefore, the sole issue presented is whether the trial court abused its discretion

in concluding Cooperman’s amended report was sufficient to meet the requirements of the Act.

          We review a trial court’s decision with respect to expert reports and the qualifications of

experts for an abuse of discretion. See Am. Transitional Care Ctrs. of Tex. v. Palacios, 46

S.W.3d 873, 876 (Tex. 2001); Baylor Univ. Med. Ctr. v. Rosa, 240 S.W.3d 565, 569 (Tex.

App.—Dallas 2007, pet. denied). When reviewing matters committed to the trial court’s

discretion, an appellate court may not substitute its judgment for that of the trial court. Rosa, 240

S.W.3d at 569. However, a clear failure by the trial court to analyze or apply the law correctly

will constitute an abuse of discretion. Id.

          A trial court must dismiss a cause if it determines that the report does not represent a

good faith effort to comply with the Act’s requirements. See TEX. CIV. PRAC. & REM. CODE




                                                    3
ANN. § 74.351(l) (West 2011); Palacios, 46 S.W.3d at 878; Simonson v. Keppard, 225 S.W.3d

868, 871 (Tex. App.—Dallas 2007, no pet.). The Act requires the expert to provide a “fair

summary” of his or her opinions regarding the applicable standards of care, the manner in which

the care rendered failed to meet those standards, and the causal relationship between that failure

and the injury, harm, or damages claimed. TEX. CIV. PRAC. & REM. CODE ANN. § 74.351(r)(6)

(West 2011).

       We determine good faith effort in light of the two purposes the report is meant to serve:

(1) to inform the defendant of the specific conduct the claimant is questioning, and (2) to provide

a basis for the trial judge to conclude the claims have merit. Palacios, 46 S.W.3d at 879. To

constitute an objective good faith effort, the report does not need to contain all of the plaintiff's

proof. Fagadau v. Wenkstern, 311 S.W.3d 132, 138 (Tex. App.—Dallas 2010, no pet.). Nor

does it have to meet the same requirements as evidence submitted in a trial or summary judgment

proceeding. Id. But it must do more than merely state the expert’s conclusions about the

standard of care, breach, and causation. Id. The expert must explain the basis of his statements

and link his conclusions to the facts. Id.

       Here, Hoyt’s claims against Kim concern his misconduct and participation in a cover-up

intended to cause Hoyt and his family to believe that Kristine’s death was caused by a pre-

existing condition rather than the negligence of her healthcare providers.      Cooperman opined

that Kim breached the standard of care when he re-dictated his operative report after the surgery

in an attempt to avoid responsibility for a fatal technical error, and created an operative report

that inaccurately documented his operative findings. In particular, Cooperman explained Kim’s

report stated Kristine’s aorta was “tortious,” even though subsequent autopsy findings showed

the aorta was normal. Cooperman also stated that Kim’s operative report repeatedly referred to




                                                  4
the aortic injury as a “rupture,” but Cooperman stated the “stellate injury” seen upon opening

Kristin’s abdomen is what would be expected from a trocar injury. According to Cooperman, no

reasonable surgeon could have concluded there was any possible cause for Kristine’s fatal aortic

injury other than trocar injury.

       Cooperman concluded the standard of care requires accurate documentation of operative

findings and Kim’s report fell below the standard of care. Cooperman further stated that he

spoke to Hoyt who told him the conflicting re-dictated report caused him to feel deceived,

confused, anxious, and nervous. He opined such reactions were reasonable, if not to be expected

from Kim’s conduct. Cooperman further opined that Kim’s breach of the standard of care,

including presenting misleading causes of Kristine’s death, proximately caused “additional

emotional distress and mental anguish” to Hoyt and his family.

       In this appeal, Kim asserts the trial court abused its discretion in denying his motion to

dismiss because (1) Cooperman’s expert report did not demonstrate his qualifications to opine as

to the cause of Hoyt’s mental and emotional injuries, and (2) even if Cooperman were qualified,

his opinion is conclusory. Before we can determine whether Cooperman’s report was sufficient,

we must first determine the causal relationship the report was required to establish. Kim asserts

Hoyt was required to present an expert report showing a causal relationship between the alleged

fraudulent and fabricated misrepresentations and the mental anguish damages sought. Kim

further asserts that only a physician qualified in “evaluating and/or treating mental and emotional

injuries” can testify to the cause of such injuries. We disagree.

       A traditional healthcare liability claim generally relies upon a physical injury or medical

condition. In such cases, the necessary causal relationship the report must show is usually clear,

and often complex. However, the Act does not itself limit itself to a showing of physical or




                                                 5
medical injury. Rather, the Act requires the expert to provide a “fair summary” of the causal

relationship between the defendant’s failure to meet the applicable standard of care and the

injury, harm, or damages claimed. TEX. CIV. PRAC. & REM. CODE ANN. § 74.351(r)(6)

(West 2011). This is consistent with the overall legislative intent to include claims involving

nonmedical injuries within the purview of the Act. Cf. Diversicare Gen. Partner, Inc. v. Rubio,

185 S.W.3d 842, 851 (Tex. 2005) (in determining whether a claim is a healthcare liability claim,

we focus on the duties allegedly breached rather than the type of injuries suffered).

       In cases involving healthcare liability claims involving nonmedical injuries, the causal

relationship the plaintiff must show may not always be so clear. For example, in UHS of

Timberlawn, Inc. v. S.B. ex rel. A.B., the plaintiff sued a psychiatric treatment facility for

damages she sustained when she was raped by a fellow patient. See UHS of Timberlawn, Inc. v.

ex rel. A.B., 281 S.W.3d 207, 209 (Tex. App.—Dallas 2009, pet. denied). The defendant alleged

the plaintiff was required to provide an expert report showing the plaintiff was actually raped to

meet the causation requirement. We disagreed. We explained that “in some healthcare liability

claims, the “injury, harm, or damages claimed” flow from the existence of a medical condition

that itself resulted from the breach of the applicable standard of care.” Id. In such cases,

identifying the causal relationship between the alleged breach and resulting harm requires an

explanation as to how the breach of the standard of care gave rise to the new deleterious medical

condition. Id. However, we concluded the plaintiff in that case was not required to submit an

expert report that she was raped. We explained that the plaintiff’s report was not required to

establish the rape because (1) she was not complaining her injury gave rise to a medical injury or

condition, (2) no expert testimony would be required to prove a rape occurred, and (3) no

medical evidence might be available to support her claim. See id. at 212-13. We concluded the




                                                 6
plaintiff’s expert report was sufficient in that it linked the breaches of the standard of care, the

defendant’s housing the female plaintiff in a male unit, to the harm she suffered, her self-

reported rape. Id. at 214.

       Here, Hoyt’s claims arise out of Kim preparing an allegedly fraudulent report to conceal

the true cause of Kristine’s death. Hoyt alleged a claim for, among other things, intentional

infliction of emotional distress. According to Kim, Cooperman had to demonstrate he was an

expert in “evaluating and/or treating mental and emotional injuries” to opine as to the cause of

any additional emotional distress or mental anguish Hoyt suffered because of the report.

       Initially, we note that Cooperman’s report is not required to prove compensable damages.

Rather, the report was required to show a causal nexus between the complained-of conduct and

the injury, harm, or damages claimed. Furthermore, a plaintiff has never been required to prove

a medical condition to support a claim for intentional infliction of emotional distress or mental

anguish damages. And no expert testimony is required to support such a claim. See Parkway

Co. v. Woodruff, 901 S.W.2d 434, 444 (Tex. 1995). Kim claims it is not relevant whether Hoyt

will be required to present expert testimony at trial in determining whether an expert report is

required. We agree. However, the issue here is not whether Hoyt had to present an expert

report, but what that report was required to show. Because Hoyt will not be required to prove a

medical injury capable of diagnosis or treatment, Hoyt’s expert report did not have to be

qualified in diagnosing or treating such injuries. We now turn to whether the report satisfied the

requisites of the Act.

       Here, Hoyt complains he suffered mental anguish and emotional distress when he was

deceived by Kim regarding the cause of his wife’s death.       In his report, Cooperman, a board

certified general surgeon, opined that the standard of care required accurate documentation of




                                                 7
operative findings, that Kim did not accurately document his findings, and that his report thus

presented a misleading cause of Kristine’s death. Cooperman stated that, based upon his years of

experience in general surgery and administration, no reasonable surgeon could have concluded

there was any possible cause for Kristine’s fatal injury other than a trocar injury when she

suddenly bucked during surgery.         Cooperman opined that in an attempt to avoid the

responsibility for a fatal intraoperative technical error, Kim described the aorta as “tortuous” and

the injury as a “rupture.” Cooperman however stated that the injury that would have been

viewed upon opening Kristine was consistent with the stellate injury.          He also stated that

Kristine’s second autopsy showed her aorta to be normal, other than the traumatic injury.

Cooperman opined that Kim’s breaches of the standard of care, which included presenting

misleading causes of Kristine’s death in his redictated-operative report, proximately caused

additional emotional distress and mental anguish to Hoyt. Cooperman thus outlined how Kim

breached the standard of care in reporting his operative findings and explained how Kim’s

breach caused the report to present a misleading cause of Kristine’s death.

       Cooperman further stated he spoke to Hoyt, who reported to him that the conflicting re-

dictated report caused Hoyt and his family, in additional to the grief over the loss of Kristine, to

feel deceived, confused, anxious, nervous and uncertain at a time they were particularly

vulnerable. Cooperman stated that based upon his experience, these reactions were reasonable as

a result of Kim’s conduct. Cooperman stated he was qualified to provide his opinion based on

his “experience and relationships with patients’ families in a surgical context” and his

“experience as a practicing general surgeon, and also in an academic and administrative

capacity.”




                                                 8
       After reviewing Cooperman’s report, we first conclude that the trial court did not abuse

its discretion in concluding Cooperman was qualified to render an opinion showing the causal

relationship between the breach of the standard of care and the harm alleged. Whether a witness

is qualified as an expert is within the trial court’s discretion. Mosely v. Mundine, 249 S.W.3d

775, 779 (Tex. App.—Dallas 2008, no pet.). The party offering the expert’s report bears the

burden of proving the witness is qualified under rule of evidence 702. Id.        A physician is

qualified if he has “knowledge, skill, experience, training, or education” to testify about the

particular causation opinion at issue. Thomas v. Alford, 230 S.W.3d 853, 857 (Tex. App.—

Houston [14th Dist.] 2007, no pet.). Although not every licensed doctor is qualified to testify on

every medical question, we must be careful not to draw expert qualifications too narrowly.

Adeyemi v. Guerrero, 329 S.W.3d 241, 247 (Tex. App.—Dallas 2010, no pet.).

       Here, Cooperman was a practicing surgeon. As such, he had experience with patients’

families in the surgical context. Cooperman was clearly qualified to show how Kim’s breaches

of the standard of care resulted in a misleading report concerning the cause of death. We also

conclude he was qualified to opine that creating such a false report after a surgical fatality was

the cause of the emotional distress alleged.

       Kim next asserts Cooperman’s report was conclusory as to causation. An expert report

need not marshal the claimant’s evidence, but should explain the basis for its conclusions and

link the conclusions to the facts of the case. See Bowie Mem’l Hosp. v. Wright, 79 S.W.3d 48, 52

(Tex. 2002) (per curiam); Bakhtari v. Estate of Dumas, 317 S.W.3d 486, 496 (Tex. App.—Dallas

2010, no pet.). A report’s adequacy does not depend on whether an expert uses any particular

“magic words.” See Benish v. Grottie, 281 S.W.3d 184, 200 (Tex. App.—Fort Worth 2009, pet.




                                                9
denied). We determine whether Cooperman’s causation opinion is sufficient by considering it in

the context of his entire report. Bakhtari, 317 S.W.3d at 496.

       Here Cooperman’s report clearly provided a causal nexus between the breach

(inaccurately documenting his operative findings) and the resulting report that presented a

misleading cause of death. The report further stated the misleading report caused Hoyt to suffer

additional mental anguish and emotional distress. Cooperman based this opinion on Hoyt’s

statements to him that the conflicting re-dictated operative report caused him to feel deceived,

confused, anxious, nervous, and uncertain. We conclude Cooperman’s report was sufficient to

explain the basis for his opinion and was therefore not conclusory. Consequently, the trial court

did not abuse its discretion in denying Kim’s motion to dismiss.             See Certified EMS, Inc. v.

Potts, 392 S.W.3d 625, 632-33 (Tex. 2013) (an expert report that adequately addresses at least

one pleaded liability theory satisfies the statutory requirements).

       We affirm the trial court’s judgment.




                                                      /Michael J. O'Neill/
                                                      MICHAEL J. O'NEILL
                                                      JUSTICE


120278F.P05




                                                 10
                                        S
                               Court of Appeals
                        Fifth District of Texas at Dallas
                                        JUDGMENT

DAVID D. KIM, M.D., Appellant                          On Appeal from the County Court at Law
                                                       No. 3, Dallas County, Texas
No. 05-12-00278-CV         V.                          Trial Court Cause No. CC-11-01461-C.
                                                       Opinion delivered by Justice O’Neill.
STEVEN HOYT, individually and as next                  Justices FitzGerald and Lang-Miers
friend of minor children TAYLOR HOYT                   participating.
AND JORDAN HOYT, and as sole
administrator of the ESTATE OF
KRISTINE HOYT, Appellee

       In accordance with this Court’s opinion of this date, the trial court’s order is
AFFIRMED.
       It is ORDERED that appellee Steven Hoyt, individually and as next friend of minor
children Taylor Hoyt and Jordan Hoyt, and a sole administrator of the estate of Kristine Hoyt,
appellee, recover his costs of this appeal from appellant David D. Kim, M.D.


Judgment entered this 24th day of April, 2013.




                                                      /Michael J. O'Neill/
                                                      MICHAEL J. O'NEILL
                                                      JUSTICE




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