                       COURT OF APPEALS
                       SECOND DISTRICT OF TEXAS
                            FORT WORTH


                             NO. 2-09-169-CV


HARVEY G. DAVISSON, PH.D.                                     APPELLANTS
AND ANGELA DONNA SELF, M.D.
AND THE DAVISSON CLINIC

                                     V.

JAMES T. NICHOLSON,                                             APPELLEES
INDIVIDUALLY, AND PATRICIA
NICHOLSON, INDIVIDUALLY AND
AS NEXT FRIEND OF JASON
THOMAS NICHOLSON AND RYAN
JAMES NICHOLSON, MINORS

                                 ------------

       FROM THE 348TH DISTRICT COURT OF TARRANT COUNTY

                                 ------------

                      OPINION ON REHEARING

                                 ------------

     After considering the motion for rehearing filed by appellant Harvey G.

Davisson, Ph.D., we deny the motion, but we withdraw our prior opinion and

judgment of February 4, 2010 and substitute the following.
        This is an interlocutory appeal from the trial court’s order denying

appellants’ motions to dismiss for failure to timely file an adequate expert report

in this health care liability case.    See Tex. Civ. Prac. & Rem. Code Ann.

§ 51.014(a)(9) (Vernon 2008). We affirm in part and reverse and remand in

part.

                       Factual and Procedural Background

        On November 24, 2008, appellees James T. Nicholson and his wife

Patricia 1 filed a health care liability claim against appellants Harvey G. Davisson,

Ph.D., Angela Donna Self, M.D., and The Davisson Clinic (the Clinic). 2 The

Nicholsons alleged that in February 2003, James responded to a radio

advertisement by Dr. Davisson and went to the Clinic complaining of “feeling

stressed and having an inability to concentrate.”         Dr. Davisson diagnosed

James with Attention Deficit Disorder (ADD), and Dr. Ferrell prescribed him

Adderall.   The Nicholsons further alleged that between February 2003 and

February 2008, appellants were negligent by continuing “to provide medical

care and treatment” to James and “by providing continued prescriptions for


        1
        They both sued in their individual capacities, and Patricia also sued as
next friend of the Nicholsons’ minor children.
        2
         They also sued Dr. Ana Mercau and Dr. Clifford Charles “Chuck”
Ferrell, deceased, and any unknown administrator of his estate. Dr. Mercau is
not a party to this appeal, and the Nicholsons nonsuited their claims related to
Dr. Ferrell.

                                         2
Adderall,” despite collectively having seen James in the office only two or three

times during that five-year period. The Nicholsons claimed that this negligence

caused James to develop Adderall addiction and psychosis.

      Their specific allegations of negligence faulted appellants for the

following:

•     Failing to timely and properly diagnose James;

•     Diagnosing James with ADD;

•     Continuing to diagnose James with ADD;

•     Failing to adequately or properly assess, monitor, and treat James; and

•     Continuing to prescribe Adderall without timely and properly seeing

      James for medical and psychiatric evaluation.

The Nicholsons also generally alleged respondeat superior liability as follows:

            Whenever in this Petition it is alleged that a Defendant did
      any act or thing, it is meant that said Defendant, or its agents,
      servants, employees or representatives did such act or thing and
      that at the time such act or thing was done, it was done with full
      authorization or ratification of that Defendant or was done in the
      normal routine or course and scope of employment of that
      Defendant or its agents, servants, employees or representatives. [ 3 ]




      3
       Appellants’ answers did not raise any affirmative defenses as to the
respondeat superior allegations. See Springer v. Johnson, 280 S.W.3d 322,
334 (Tex. App.—Amarillo 2008, no pet.).

                                        3
      The Nicholsons filed two expert reports on March 23, 2009: one from

a psychologist, Dr. Swen Helge, and the other from an internal medicine

specialist, Dr. Lige B. Rushing, Jr. All three appellants objected to both reports.

After a hearing, the trial court overruled all of appellants’ objections to the

reports and refused to dismiss the claims against each of the appellants.

Appellants appeal the trial court’s refusal to dismiss the Nicholsons’ claims

against them.

                                Issues on Appeal

      Dr. Davisson and the Clinic each bring three issues challenging the

adequacy of both Dr. Helge’s and Dr. Rushing’s expert reports as to causation

and each expert’s qualifications to render expert opinions on the standard of

care applicable to Dr. Davisson and the manner in which he allegedly breached

that standard of care. Dr. Self brings a single issue challenging the adequacy

of Dr. Rushing’s report, alleging specifically that the report fails to show that

he is qualified to give an opinion as to the applicable standard of care and that

his opinion on causation is conclusory.

                               Standard of Review

      A trial court’s decision on a motion to dismiss under section 74.351 is

subject to an abuse of discretion standard. See, e.g., Am. Transitional Care

Ctrs. of Tex., Inc. v. Palacios, 46 S.W.3d 873, 875 (Tex. 2001); Craig v.

                                        4
Dearbonne, 259 S.W.3d 308, 310 (Tex. App.—Beaumont 2008, no pet.); San

Jacinto   Methodist   Hosp.   v.   Bennett,   256   S.W.3d    806,   811   (Tex.

App.—Houston [14th Dist.] 2008, no pet.); Lal v. Harris Methodist Fort Worth,

230 S.W.3d 468, 471 (Tex. App.—Fort Worth 2007, no pet.). Additionally,

a trial court’s decision on whether a physician is qualified to offer an expert

opinion in a health care liability claim is reviewed under an abuse of discretion

standard. See Mem’l Hermann Healthcare Sys. v. Burrell, 230 S.W.3d 755,

757 (Tex. App.—Houston [14th Dist.] 2007, no pet.).

      To determine whether a trial court abused its discretion, we must decide

whether the trial court acted without reference to any guiding rules or

principles; in other words, we must decide whether the act was arbitrary or

unreasonable. Downer v. Aquamarine Operators, Inc., 701 S.W.2d 238, 241–

42 (Tex. 1985), cert. denied, 476 U.S. 1159 (1986). Merely because a trial

court may decide a matter within its discretion in a different manner than an

appellate court would in a similar circumstance does not demonstrate that an

abuse of discretion has occurred. Id. at 242. A trial court does not abuse its

discretion if it commits a mere error in judgment. See E.I. du Pont de Nemours

& Co. v. Robinson, 923 S.W.2d 549, 558 (Tex. 1995).




                                       5
                                 Applicable Law

      In a health care liability claim, a claimant must serve on each defendant

an expert report that addresses standard of care, liability, and causation no later

than the 120th day after the claim is filed. Tex. Civ. Prac. & Rem. Code Ann.

§ 74.351(a), (j) (Vernon Supp. 2009); Barber v. Mercer, No. 02-08-00079-CV,

2009 WL 3337192, at *3 (Tex. App.—Fort Worth Oct. 15, 2009, no pet.). If

an expert report has not been served on a defendant within the 120-day period,

then on the motion of the affected defendant, the trial court must dismiss the

claim with prejudice and award the defendant reasonable attorney’s fees and

costs.   Tex. Civ. Prac. & Rem. Code Ann. § 74.351(b); Barber, 2009 WL

3337192, at *3. A report “has not been served” under the statute when it has

been physically served but it is found deficient by the trial court. Lewis v.

Funderburk, 253 S.W.3d 204, 207–08 (Tex. 2008); Barber, 2009 WL

3337192, at *3. When no report has been served because the report that was

served was found to be deficient, the trial court has discretion to grant one

thirty-day extension to allow the claimant the opportunity to cure the

deficiency. Tex. Civ. Prac. & Rem. Code Ann. § 74.351(c); Barber, 2009 WL

3337192, at *3.

      A report is deficient (therefore subjecting a claim to dismissal) when it

“does not represent an objective good faith effort to comply with the definition

                                        6
of an expert report” in the statute.     Tex. Civ. Prac. & Rem. Code Ann. §

74.351(l); Barber, 2009 WL 3337192, at *3. While the expert report “need

not marshal all the plaintiff’s proof,” Palacios, 46 S.W.3d at 878, it must

provide a fair summary of the expert’s opinions as to the “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.” Tex. Civ. Prac. & Rem. Code

Ann. § 74.351(r)(6); Barber, 2009 WL 3337192, at *3.

      To qualify as a good faith effort, the report must “discuss the standard

of care, breach, 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; Barber, 2009 WL 3337192, at *3. A report does not fulfill this

requirement if it merely states the expert’s conclusions or if it omits any of the

statutory requirements.     Palacios, 46 S.W.3d at 879; Barber, 2009 WL

3337192, at *3. The information in the report “does not have to meet the

same requirements as the evidence offered in a summary-judgment proceeding

or at trial.”   Palacios, 46 S.W.3d at 879; Barber, 2009 WL 3337192, at

*3. When reviewing the adequacy of a report, the only information relevant to

the inquiry is the information contained within the four corners of the document

                                        7
alone. Palacios, 46 S.W.3d at 878; Barber, 2009 WL 3337192, at *3; see

Bowie Mem’l Hosp. v. Wright, 79 S.W.3d 48, 52 (Tex. 2002).                  This

requirement precludes a court from filling gaps in a report by drawing inferences

or guessing as to what the expert likely meant or intended. Barber, 2009 WL

3337192, at *3; see Austin Heart, P.A. v. Webb, 228 S.W.3d 276, 279 (Tex.

App.—Austin 2007, no pet.) (citing Bowie Mem’l Hosp., 79 S.W.3d at 53).

                                    Analysis

Standard of Care 4

      The Clinic and Dr. Davisson each contend that (1) the Helge report does

not demonstrate that Dr. Helge is qualified to offer an expert opinion regarding

the accepted standards of care for the diagnosis, care, or treatment of ADD,

the prescribing of Adderall to treat adult ADD, Adderall addiction, Adderall

psychosis, or all of these; (2) the Helge report fails to set forth the specific

standard of care applicable to each of the doctors and the Clinic; and (3) the

report fails to set forth the specific manner in which the doctors and Clinic

employees failed to meet the applicable standard of care. They, along with Dr.




      4
        Because the Nicholsons provided two reports to satisfy their expert
report obligations as to all defendants, and because some of appellants’
challenges to the reports are interdependent, we will review appellants’ issues
by topic rather than in chronological order.

                                       8
Self, also challenge Dr. Rushing’s qualifications to opine to the standard of care

applicable to each of them.

      Dr. Helge’s Qualifications

      An expert report concerning standards of care “authored by a person who

is not qualified to testify . . . cannot constitute an adequate report.” See Moore

v. Gatica, 269 S.W.3d 134, 140 (Tex. App.—Fort Worth 2008, pet. denied);

In re Windisch, 138 S.W.3d 507, 511 (Tex. App.—Amarillo 2004, orig.

proceeding); see Ehrlich v. Miles, 144 S.W.3d 620, 624–25 (Tex. App.—Fort

Worth 2004, pet. denied).       To be qualified, an expert must satisfy the

requirements in section 74.402. Tex. Civ. Prac. & Rem. Code Ann. § 74.402

(Vernon 2005); Terry A. Leonard, P.A. v. Glenn, 293 S.W.3d 669, 678 (Tex.

App.—San Antonio 2009, pet. filed).          Specifically, section 74.402(b)(1)

requires an expert to have been

      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.

Tex. Civ. Prac. & Rem. Code Ann. § 74.402(b)(1).

      As to Dr. Helge, the Clinic and Dr. Davisson specifically contend that Dr.

Helge is not practicing health care in a field of practice involving the same type

of care or treatment as that delivered by the doctors in this case, that Dr. Helge

                                        9
does not have knowledge of the accepted standards of care for health care

providers for such matters, and that he is not qualified on the basis of training

or experience to offer an expert opinion on the accepted standards of care.

      Dr. Helge has been a practicing clinical psychologist for the past thirty-

seven years in addition to being a practicing forensic psychologist for the past

twenty-four years. Although the Clinic and Dr. Davisson claim that Dr. Helge’s

most recent expertise is in forensic psychology as opposed to clinical

psychology, Dr. Helge’s report and curriculum vitae show that at the time he

authored the report, he had a private clinical practice in psychology and was a

member of the division of clinical psychology and division of psychotherapy of

the American Psychological Association. Although many of his more recent

diplomates and papers involved forensic psychology, nothing in his report or

curriculum vitae shows that he was practicing forensic psychology to the

exclusion of clinical psychology. 5 Thus, we conclude that the trial court did not

abuse its discretion by overruling this objection to Dr. Helge’s qualifications.

See id.; Benish v. Grottie, 281 S.W.3d 184, 206 (Tex. App.—Fort Worth 2009,

pet. denied); Foster v. Zavala, 214 S.W.3d 106, 113 (Tex. App.—Eastland



      5
         Additionally, in November 2007, Dr. Helge co-presented a workshop
entitled, “It Looks Like ADHD, It Sounds Like ADHD, It’s Not ADHD.” See
Foster v. Richardson, No. 02-09-00216-CV, 2009 WL 5191363, at *(will fill
in, pg #s not on WL yet) (Tex. App.—Fort Worth Dec. 31, 2009, no pet.).

                                       10
2006, pets. denied) (holding, based on legislative history and statutory

construction principles, that the statute does not require that expert be in same

field of practice, only a field involving the same type of care or treatment).

      Dr. Davisson and the Clinic also challenge Dr. Helge’s knowledge of the

accepted standard of care for ADD treatment, care, and diagnosis, including the

use of Adderall in such treatment. According to the Clinic, although Dr. Helge

states that he has had the occasion to see and evaluate patients who have had

Adderall prescribed for them in the regular course of his psychological practice,

he does not explain how seeing those patients, or how being familiar with the

pharmacology of amphetamines and their adverse effects, “provides him with

the knowledge of the accepted standards of care for providing diagnosis, care,

and treatment to an adult diagnosed with ADD and prescribed Adderall, or

Adderall addiction or Adderall psychosis.”

      Section 74.402(c) states that

      [i]n determining whether a witness 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 witness:

            (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.

                                       11
Tex. Civ. Prac. & Rem. Code Ann. § 74.402(c). Dr. Helge meets both of these

requirements; he is certified by the State of Texas as a psychologist, and he

treats patients who have been prescribed Adderall. Although Dr. Helge does

not prescribe Adderall himself, his report states that he has practical knowledge

of what is customarily and usually done by a practitioner under circumstances

similar to those confronting the defendant doctors. See Ehrlich, 144 S.W.3d

at 625; see also Barber, 2009 WL 3337192, at *6, 8.

      Dr. Davisson is a psychologist, as is Dr. Helge. Appellees allege that after

diagnosing James with ADD and recommending a prescription for Adderall, as

evidenced by Dr. Davisson’s signature along with Dr. Ferrell’s on the notes

setting forth the diagnosis and prescription recommendation, 6 Dr. Davisson

failed to provide any followup care or evaluation of James. Having treated

patients in his clinical psychology practice who have been prescribed Adderall,

Dr. Helge is thus at least qualified to opine to the ongoing standard of care for

a psychologist who has made a diagnosis for which the patient was prescribed

Adderall by a medical doctor.       See Tex. Civ. Prac. & Rem. Code Ann.



      6
       Dr. Helge’s report notes that “[t]here is a page in the records dated
02/26/03 that simply states to whom it may concern, [James] (patient) was
diagnosed with attention deficit disorder on 02/26/03 (date) at the . . . Clinic.
My recommendation is prescription for Adderall (medication). Below that are
two signatures. The first is Chuck Ferrell, M.S., D.O., general/family practice
and Harvey G. Davisson, Ph.D., psychologist.”

                                       12
§ 74.402(c); Terry A. Leonard, P.A., 293 S.W.3d at 680; Grindstaff v. Michie,

242 S.W.3d 536, 542 (Tex. App.—El Paso 2007, no pet.); Burrell, 230 S.W.3d

at 760–61.

      Dr. Davisson and the Clinic also contend that the Helge report does not

demonstrate that Dr. Helge is qualified on the basis of training or experience to

offer an expert opinion on the accepted standards of care in that he does not

explain how his experience or training, which they claim is overwhelmingly in

the field of forensic psychology, provides him the necessary training or

experience with the omissions alleged here: involving the diagnosis, care, and

treatment of an adult diagnosed with ADD and prescribed Adderall, Adderall

addiction, or Adderall psychosis. However, the Clinic and Dr. Davisson fail to

read the report and Dr. Helge’s curriculum vitae as a whole.        Dr. Helge’s

curriculum vitae shows that he is a practicing psychologist and that he has

treated patients who are taking Adderall prescribed by a doctor.    As such, he

meets the requirements of section 74.402 as to the Clinic’s principal, Dr.

Davisson, at least. Tex. Civ. Prac. & Rem. Code Ann. § 74.402; see Barber,

2009 WL 3337192, at *6 (holding that court must not view any one part of

expert report or curriculum vitae in isolation).




                                       13
      Dr. Helge’s Articulation of Standard of Care

      Dr. Davisson and the Clinic further claim that the Helge report fails to

provide a fair summary of Dr. Helge’s opinions regarding the standard of care

for each defendant and how each of them specifically breached that standard

of care. Dr. Helge opined as follows regarding the standard of care:

      a.    The standard of care requires that [James’s] psychologist, Dr.
      Harvey G. Davisson, provide that level of care and treatment that
      a reasonably prudent psychologist would provide under the same
      or similar circumstances. The prescription of controlled substances
      and particularly amphetamines on a chronic basis requires careful
      monitoring and supervision. This means that the patient should be
      seen at a minimum of every 180 days and depending on the clinical
      status, possibly more often in order to meet the standard of care.

      b.    The standard of care requires . . . [James] to be seen and
      examined every 180 days and assessed for adverse effects from
      the amphetamines such as amphetamine psychosis, including any
      change in sociological factors.

      c.     The standard of care also requires that appropriate clinical
      records be kept in accordance with acceptable professional
      standards. These records need to, in order to meet the standard of
      care, clearly reflect the patient’s clinical status, the medicines being
      received, his emotional or psychological status, his response to
      treatment or lack of response and evidence of any adverse effects
      or the absence of adverse effects must be documented.

      Dr. Davisson and the Clinic contend that because the report goes on to

state that “the care rendered by the Davisson Clinic, its employees, and Harvey

G. Davisson, Ph.D. failed to meet the standard of care . . . [in that] the

Davisson Clinic, its employees, and Harvey G. Davisson, Ph.D. failed to examine

                                        14
and assess . . . [James] every 180 days in [an] appropriate timely manner,” it

does not delineate between the standards of care applicable to the various

defendants.   But as we have stated, Dr. Helge is a psychologist, like Dr.

Davisson, and he articulates the standard of care for a psychologist, specifically

Dr. Davisson, in his report. Thus, he clearly articulates the standard of care as

it relates to Dr. Davisson. Because the Nicholsons’ claims against the Clinic are

based on respondeat superior, and, thus, through the alleged negligence of Dr.

Davisson as well as Dr. Self, the report is therefore not deficient for failing to

set forth a standard of care as to anyone other than Dr. Davisson. See Gardner

v. U.S. Imaging, Inc., 274 S.W.3d 669, 671–72 (Tex. 2008); Univ. of Tex.

Sw. Med. Ctr. v. Dale, 188 S.W.3d 877, 879 (Tex. App.—Dallas 2006, no

pet.); see also Ctr. for Neurological Disorders, P.A. v. George, 261 S.W.3d 285,

295 (Tex. App.—Fort Worth 2008, pet. denied).

      Moreover, the same reasoning applies to Dr. Helge’s articulation of the

breach of the standard of care, which provides a fair summary as to Dr.

Davisson: as a psychologist monitoring a person for whom he had diagnosed

as having ADD and who he knew was being prescribed Adderall, 7 Dr. Davisson




      7
        Although it is unclear who initially prescribed the Adderall because
both Dr. Davisson’s and Dr. Ferrell’s signatures follow the prescription, it is
clear that Dr. Davisson acquiesced in the prescription.

                                       15
failed to examine James every one hundred eighty days for signs of adverse

effects from the amphetamines, including social factors. It is undisputed that

Dr. Helge’s summary of the notes and records in James’s file shows that there

are no entries indicating Dr. Davisson examined James after the initial

diagnosis.   And because the claims against the Clinic are based solely on

respondeat superior, including through the alleged negligence of Dr. Davisson,

Dr. Helge’s inclusion of the Clinic in his articulation of Dr. Davisson’s breach of

the standard of care does not fail to inform Dr. Davisson of his specific conduct

that breached the standard of care. See, supra, page 15.

      Accordingly, we conclude and hold that the trial court did not abuse its

discretion by overruling Dr. Davisson’s and the Clinic’s objections to Dr. Helge’s

report based on his qualifications and articulation of the standard of care as to

their claim that Dr. Davisson failed to “adequately or properly assess, monitor,

and treat James.”

      Dr. Rushing’s Qualifications

      The Clinic and Dr. Davisson likewise challenge Dr. Rushing’s qualifications

to give an expert opinion on the standard of care applicable to Dr.

Davisson. They further contend that his report is deficient as to Dr. Davisson

because it only sets forth a standard of care for Dr. Self, Dr. Mercau, and the

Clinic, rather than Dr. Davisson, and because it fails to set forth the specific

                                        16
manner in which Dr. Self, Dr. Mercau, and the Clinic’s employees failed to meet

the applicable standard of care.       Dr. Self also challenges Dr. Rushing’s

qualifications to opine as to an applicable standard of care.

      To be an “expert” on the departure from a physician’s standard of care,

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 Ann. § 74.351(r)(5)(A), § 74.401(a) (Vernon

2005). In determining whether a physician is qualified on the basis of training

or experience, courts must consider whether the physician who completed the

report (1) is board certified or has other substantial training or experience in an

area of medical practice relevant to the claim, and (2) is actively practicing

medicine in rendering medical care services relevant to the claim.           Id. §

74.401(c). In other words,

      there is no validity, if there ever was, to the notion that every
      licensed medical doctor should be automatically qualified to testify
      as an expert on every medical question. . . . [T]he proponent of
      the testimony has the burden to show that the expert possesses



                                        17
         special knowledge as to the very matter on which he proposes to
         give an opinion.

Ehrlich, 144 S.W.3d at 625 (quoting Broders v. Heise, 924 S.W.2d 148,

152–53 (Tex. 1996)); see Barber, 2009 WL 3337192, at *4. For this reason,

the offered report (along with the physician’s curriculum vitae) must generally

demonstrate that the expert has “knowledge, skill, experience, training, or

education regarding the specific issue before the court which would qualify the

expert to give an opinion on that particular subject.” Ehrlich, 144 S.W.3d at

625 (quoting Roberts v. Williamson, 111 S.W.3d 113, 121 (Tex. 2003)); see

Tex. R. Evid. 702; Barber, 2009 WL 3337192, at *4.

         However, “there are certain standards of medical care that apply to

multiple schools of practice and any medical doctor.” Blan v. Ali, 7 S.W.3d

741, 746 (Tex. App.—Houston [14th Dist.] 1999, no pet.).           Therefore, a

physician “who is not of the same school of medicine [as the defendant] . . . is

competent to testify if he has practical knowledge of what is usually and

customarily done by a practitioner under circumstances similar to those

confronting the defendant.” Ehrlich, 144 S.W.3d at 625; see also Marling v.

Maillard, 826 S.W.2d 735, 740 (Tex. App.—Houston [14th Dist.] 1992, no

writ).




                                       18
      Appellants contend that the Rushing report does not show that Dr.

Rushing is qualified to offer an expert opinion regarding the accepted standards

of care applicable to each of them because it does not show that he is familiar

with “the specific issues involved in the claim.” Specifically, they contend that

he is not practicing health care in a field of practice that involves the same type

of care or treatment as that delivered by the doctors, that he does not have

knowledge of the accepted standards of care regarding ADD, Adderall

prescription, or Adderall psychosis, and that he is not qualified on the basis of

training or experience to offer an expert opinion regarding those standards.

      Dr. Rushing’s curriculum vitae shows that he is board certified in internal

medicine, geriatrics, and rheumatology and is an attending physician at

Presbyterian Hospital in Dallas. His report states that he has been practicing

medicine since he graduated from medical school in 1951 and has provided

primary medical care for more than 10,000 patients in a hospital setting and

“many more than that” in an office setting. Dr. Rushing also states that he is

familiar with the pharmacology of amphetamines and the adverse effects they

produce. He also offers,

      In the regular course of my medical practice I have occasion to see
      and evaluate patients who have had Adderall prescribed for them
      for attention deficit disorder. I have three such patients currently
      in my practice who are receiving Adderall prescribed by the
      psychiatrist for their attention deficit disorder. I see these patients

                                        19
      for their regular medical problems and provide their primary medical
      care. [Emphasis added.]

      Dr. Rushing’s report and curriculum vitae show that he was (a) actively

and currently practicing medicine at the time it was written, (b) has actually

treated and was currently treating patients being prescribed Adderall specifically

for ADD, and (c) is board certified in internal medicine. Thus, he meets the

requirements set forth in section 74.401(a) and (c) for being qualified to render

an opinion as to the standard of care applicable to the treatment of a person

diagnosed with ADD and being prescribed Adderall. See Tex. Civ. Prac. & Rem.

Code Ann. § 74.401(a), (c); Terry A. Leonard, P.A., 293 S.W.3d at 677; cf.

Barber, 2009 WL 3337192, at *8 (holding that anesthesiologist who had

participated in numerous similar surgeries and had observed proper padding and

positioning technique as part of surgical team was qualified to provide expert

report as to standard of care applicable to general surgeon).

      Appellants contend that because Dr. Rushing is not the person who

actually prescribed the Adderall to his patients, he is not qualified to opine

regarding the standard of care for this claim. But the statute does not go so

far. Dr. Rushing’s report shows he is actively involved in the management of

care for persons who are being prescribed ADD medication, specifically

Adderall; this experience is sufficient to allow him to opine on the applicable



                                       20
standard of care in a claim that relates to the medical supervision and

management of persons with such a diagnosis and prescriptions. 8 See San

Jacinto Methodist Hosp., 256 S.W.3d at 813–14. Thus, we conclude and hold

that Dr. Rushing is qualified to opine on the applicable standard of care for a

doctor who has not only prescribed Adderall to a patient, but who also manages

the care of a patient for whom that doctor has prescribed Adderall. 9

      Dr. Rushing’s Articulation of Standard of Care

      Next, Dr. Davisson and the Clinic contend that the Rushing report fails to

set forth the specific standard of care applicable to each of the defendants and

the Clinic as well as the specific manner in which each breached the standard

of care.

      Because Dr. Rushing is an internal medicine specialist, his report was

offered primarily to articulate the standard of care for Dr. Self and Dr. Mercau,

although   he   did   opine   as   to   the   standard   of   care   applicable   to

Dr. Davisson. Because we have already determined that Dr. Helge’s report


      8
        Thus, contrary to Dr. Self’s contention, this case is distinguishable
from this court’s opinion in Collini v. Pustejovsky, 280 S.W.3d 456, 465–66
& n.6 (Tex. App.—Fort Worth 2009, no pet.).
      9
         Moreover, because Dr. Helge’s report is sufficient as to the standard
of care for Dr. Davisson (and the Clinic, by virtue of the respondeat superior
allegations), there is no need for Dr. Rushing’s report to articulate a separate
standard of care for them or to opine as to how Dr. Davisson may have
breached the standard of care.

                                        21
sufficiently articulated the standard of care and breach as to Dr. Davisson, we

will focus on whether Dr. Rushing sufficiently articulated the standard of care

and breach as to Dr. Self.

      Dr. Rushing opined as follows:

      1.    (Applicable standard of care):
            a.    The standard of care requires that . . . Angela D. Self,
                  M.D. . . . provide that level of care and treatment that
                  a reasonable prudent physician would provide under
                  the same or similar circumstances. The prescription of
                  controlled substances and particularly amphetamines
                  on a chronic basis requires careful monitoring and
                  supervision. This means that the patient should be
                  seen at a minimum of every 90 days and depending
                  upon the clinical status, possibly more often in order to
                  meet the standard of care.
            b.    The standard of care requires that [James] be seen and
                  examined every 90 days and assessed for adverse
                  effects from the amphetamines such as amphetamine
                  psychosis, elevated blood pressure, weight loss, and
                  assessment of the cardiovascular system.
            c.    The standard of care also requires that appropriate
                  clinical records be kept in accordance with acceptable
                  professional standards. These records need to, in order
                  to meet the standard of care, clearly reflect the
                  patient’s clinical status, the medicines being received,
                  his emotional or psychological status, his response to
                  treatment or lack of response and evidence of any
                  adverse effects or the absence of adverse effects must
                  be documented.

      2.    The manner in which the care rendered by the . . . Clinic and
            its employees and Angela D. Self, M.D. . . . failed to meet
            the standard of care and the conduct that is called into
            question here is set forth below. The . . . Clinic and its
            employees and the physicians, Angela D. Self, M.D. . . .

                                       22
            failed to examine [James] every 90 days in [an] appropriate
            timely manner. During the entire approximately 5 years, as
            far as I can tell, he was seen twice at the clinic and possibly
            a third time.       It is incredible that this man received
            amphetamines for approximately 5 years with only three
            physician visits over the entire period of time. The clinic and
            the doctors were simply running a mail order prescription mill
            dispensing controlled substances in an inappropriate and
            incorrect way as described above. This conduct by the . . .
            Clinic and its employees, and Angela D. Self, M.D. . . . is
            clearly below the accepted standards of medical care. The
            medical records are such that one cannot be certain what
            was going on other than that he was receiving mail order
            prescriptions. [Emphasis added.]

This same standard of care was repeated, specifically mentioning only Dr. Self,

in a later section of the report.

      According to the Clinic,

      Rushing fails to specifically describe the standard of care applicable
      to Dr. Self, Dr. Mercau, and the . . . Clinic, i.e. what steps should
      have been taken and when. Rushing fails to state when [James]
      allegedly should have been examined and what assessments,
      testing, or evaluation allegedly should have been done and what
      such testing and evaluation allegedly would have shown. Rushing
      fails to set forth when during the medical care he believes
      assessments should have been done and then, if such assessments
      had been performed, how these assessments would have changed
      the patient’s condition.

      Again, the inclusion of the Clinic in the articulation of the standard of care

is not fatal because all of the claims against the Clinic are based on respondeat

superior and therefore flow from the alleged breach of the standard of care by

its agent or employees, in this case, the doctors. And although Dr. Self and Dr.

                                        23
Mercau are both mentioned in one part of the articulation of the standard of

care, the standard of care is later ascribed to each of them separately in

different paragraphs. See Foster v. Richardson, No. 02-09-00216-CV, 2009

WL 5191363, at *8 (Tex. App.—Fort Worth Dec. 31, 2009, no pet.) (holding

report not insufficient “merely because it contains some collective statements

regarding actions that both doctors should have taken while they independently

cared for Richardson”); Romero v. Lieberman, 232 S.W.3d 385, 391–92 (Tex.

App.—Dallas 2007, no pet.) (holding that standard of care need not be listed

separately in report when same standard applies to each health care provider).

Thus, the conduct of Dr. Self that the report calls into question is clear: (a) Dr.

Self’s alleged failure to see James every ninety days during the six month

period she prescribed him Adderall to assess him “for adverse effects from the

amphetamines such as amphetamine psychosis, elevated blood pressure,

weight loss, and assessment of the cardiovascular system” and (b) her alleged

failure to keep appropriate medical records during that same time period.

Although Dr. Rushing’s report does not marshal all the Nicholsons’ proof, it is

not required to do so. Palacios, 46 S.W.3d at 878. Reading the report in its

entirety, it at least provides a fair summary of Dr. Rushing’s opinions as to the

standard of care applicable to Dr. Self and the manner in which the care she




                                        24
rendered James failed to meet that standard. See Barber, 2009 WL 3337192,

at *6.

      Based on the above analysis, we conclude and hold that the trial court did

not abuse its discretion by determining that Dr. Helge’s and Dr. Rushing’s

reports, when read together, represent a good faith effort to comply with the

statutory definition of an expert report as to Dr. Davisson and Dr. Self regarding

the Nicholsons’ allegations of failure to adequately or properly assess, monitor,

and treat James and the continuing prescription of Adderall without timely and

properly seeing James for medical and psychiatric evaluation. Additionally,

because the Nicholsons’ allegations against the Clinic are based on respondeat

superior through the alleged negligence of both Dr. Self and Dr. Davisson, we

conclude and hold that the trial court did not abuse its discretion by determining

that the reports are also adequate as to the Clinic regarding those claims.

Causation

      The Clinic and Dr. Davisson challenge both Dr. Helge’s and Dr. Rushing’s

reports as to causation; Dr. Self challenges Dr. Rushing’s causation opinion as

well. According to Dr. Davisson and the Clinic, Dr. Helge is not qualified to

give an opinion on causation under section 74.403(a) because he is a clinical

and forensic psychologist, not a physician.      Section 74.403(a) provides as

follows:

                                       25
             [I]n a suit involving a health care liability claim against a
      physician or health care provider, a person may qualify as an expert
      witness on the issue of the causal relationship between the alleged
      departure from accepted standards of care and the injury, harm, or
      damages claimed only if the person is a physician and is otherwise
      qualified to render opinions on that causal relationship under the
      Texas Rules of Evidence.

Tex. Civ. Prac. & Rem. Code Ann. § 74.403(a).

“Physician” is defined as a person who is

      (1)   licensed to practice medicine in one or more states in the
      United States; or

      (2)   a graduate of a medical school accredited by the Liaison
      Committee on Medical Education or the American Osteopathic
      Association only if testifying as a defendant and that testimony
      relates to that defendant’s standard of care, the alleged departure
      from that standard of care, or the causal relationship between the
      alleged departure from that standard of care and the injury, harm,
      or damages claimed.

Id. § 74.001(a)(23) (Vernon 2005). The Nicholsons admit that Dr. Helge is not

a physician under the statute, but they contend that he does not need to be

qualified to render an opinion on causation because the causation opinion is

provided by Dr. Rushing’s report and that the two reports together constitute

a sufficient report as to standard of care and causation.

      Section 74.351(i) explicitly contemplates the use of multiple expert

reports in the same case:

      Notwithstanding any other provision of this section, a claimant may
      satisfy any requirement of this section for serving an expert report

                                      26
      by serving reports of separate experts regarding different
      physicians or health care providers or regarding different issues
      arising from the conduct of a physician or health care provider,
      such as issues of liability and causation.

Id. § 74.351(i).   Accordingly, if Dr. Rushing’s report is adequate as to

causation, then Dr. Helge’s qualifications to opine on causation are of no

import.

      After providing a summary of James’s medical records that he reviewed,

and concluding that James “had seen the physician only three times over the

last seven years during the time that he was receiving Adderall,” Dr. Rushing

opined that

      James . . . suffered an addiction to amphetamines due to the
      failure to examine him every 90 days. He also developed an
      amphetamine psychosis and his behavior was such as described
      earlier to be disruptive such that he lost his employment that he
      was a threat to his wife, and a threat to himself and required
      extensive treatment as a result of his amphetamine addiction and
      amphetamine psychosis. All of this was a result of improper
      amphetamine prescription and improper supervision. Had [he] been
      examined every 90 days his addiction would have been diagnosed
      and treated in a timely manner thereby preventing his addiction
      from advancing to psychosis[.]” [Emphasis added.]

Dr. Davisson and the Clinic contend that this opinion is conclusory in that it

“does not set forth any facts demonstrating a mechanism that supports his

conclusion” and that it requires them to infer the facts supporting the

conclusion.   But they ignore the detailed factual summary set forth in Dr.



                                     27
Rushing’s    report.    Dr.   Rushing   clearly   details   the   doctors’   alleged

omissions—failure to see James on a timely, regular basis—as well as the

behavior which James ultimately engaged in and his ultimate diagnosis. Dr.

Rushing thus clearly opines that if the doctors had seen James in the office,

they would have observed the behavioral manifestations Dr. Rushing

described.   Moreover, as the Clinic can act only through its employees or

agents, the Nicholsons’ allegations against the Clinic are likewise supported by

sufficient factual detail and are therefore not conclusory. See Benavides v.

Garcia, 278 S.W.3d 794, 799 (Tex. App.—San Antonio 2009, pet. denied)

(holding that causation section of expert medical report was not conclusory

when read in context of entire report).

      Dr. Davisson and the Clinic contend that even if Dr. Rushing’s causation

opinion is sufficient as to the medical doctors, it is nevertheless insufficient as

to Dr. Davisson because it fails to specifically discuss or link Dr. Davisson’s

failure to meet the standard of care described in Dr. Helge’s report with

James’s resulting injury. However, after describing that injury in his report, 10




      10
        “He also developed an amphetamine psychosis and his behavior was
such as described earlier to be disruptive such that he lost his employment that
he was a threat to his wife, and a threat to himself and required extensive
treatment as a result of his amphetamine addiction and amphetamine
psychosis.”

                                        28
Dr. Rushing states specifically that the injury was “a result of improper

amphetamine prescription and improper supervision.” [Emphasis added.] To

fulfill the requirements of section 74.351(i) by supplementing Dr. Helge’s report

as to Dr. Davisson, Dr. Rushing was not required to mention Dr. Helge’s exact

description of the standard of care applicable to Dr. Davisson, especially when,

as here, that standard of care is accurately described as a failure to properly

supervise or monitor, which is precisely the conduct that Dr. Rushing implicates

as causing James’s injuries. See Packard v. Guerra, 252 S.W.3d 511, 526–27

(Tex. App.—Houston [14th Dist.] 2008, pet. denied) (holding that we must

review multiple reports “in the aggregate” to determine if they are adequate as

to liability and causation); Perez v. Salinas, No. 13-08-00192-CV, 2008 WL

4981565, at *3 (Tex. App.—Corpus Christi Nov. 25, 2008, pet. denied) (mem.

op.). Therefore, we conclude and hold that the trial court did not abuse its

discretion by overruling appellants’ objections as to the causation part of Dr.

Rushing’s report.

      And because Dr. Rushing’s report is sufficient as to causation, it is of no

import that Dr. Helge is not qualified to render an opinion on causation. See

Tex. Civ. Prac. & Rem. Code Ann. § 74.351(i); Baylor Univ. Med. Ctr. v. Rosa,

240 S.W.3d 565, 570–72 (Tex. App.—Dallas 2007, pet. denied) (holding

expert report requirement fulfilled in claim against nurse by providing expert

                                       29
report of nurse as to standard of care and expert report of medical doctor as to

causation); cf. Walgreen Co. v. Hieger, 243 S.W.3d 183, 187 (Tex.

App.—Houston [14th Dist.] 2007, pet. denied) (Seymore, J., dissenting). 11

      Having determined that the trial court did not abuse its discretion by

overruling appellants’ objections to Dr. Helge’s and Dr. Rushing’s reports as to

their claims regarding failure to properly and adequately assess, monitor, and

treat James and the continuing prescription of Adderall without timely and

proper evaluation, and, thus, by refusing to dismiss those claims against them,

we overrule the Clinic’s and Dr. Davisson’s three issues and Dr. Self’s two

issues as to those claims.     However, neither Dr. Helge’s report nor Dr.

Rushing’s report faults Dr. Davisson’s or Dr. Self’s conduct as to the other

claims alleged in the Nicholsons’ petition: the failure to timely and properly

diagnose James and the initial and continuing diagnosis of James with ADD.

Accordingly, we conclude and hold that neither report is adequate as to those

claims and we therefore sustain appellants’ issues to the extent they complain




      11
         Because we determine that it was not necessary that Dr. Helge’s
report provide an opinion on causation, we need not address the Clinic’s and
Dr. Davisson’s contentions that Dr. Helge’s opinion as to causation is
conclusory. See Tex. R. App. P. 47.1; Horsley-Layman v. Adventist Health
Sys./Sunbelt, Inc., 221 S.W.3d 802, 809 (Tex. App.—Fort Worth 2007, pet.
denied).

                                      30
about the reports as to those claims. See Richardson, 2009 WL 5191363, at

*7.

                                 Conclusion

      Having overruled all of each appellants’ issues as to the failure to

adequately monitor and the continuing prescription of Adderall without

adequate supervision claims, we affirm the trial court’s order as to those

claims. But having sustained appellants’ issues as to the Nicholsons’ other

claims—the failure to timely and properly diagnose James and the initial and

continuing diagnosis of James with ADD—we reverse the trial court’s order as

to those claims and remand those claims to the trial court to consider whether

to grant a thirty-day extension to cure the deficiency. See Tex. Civ. Prac. &

Rem. Code Ann. § 74.351(c); Leland v. Brandal, 257 S.W.3d 204, 207 (Tex.

2008); Richardson, 2009 WL 5191363, at *11.




                                          TERRIE LIVINGSTON
                                          JUSTICE

PANEL: LIVINGSTON and WALKER, JJ.

DELIVERED: March 25, 2010




                                     31
