                                                                                ACCEPTED
                                                                            12-15-00189-CV
                                                               TWELFTH COURT OF APPEALS
                                                                             TYLER, TEXAS
                                                                      11/30/2015 8:54:48 PM
                                                                                  Pam Estes
                                                                                     CLERK

                  CAUSE NO. 12-15-00189-CV        ORAL ARGUMENT
                                                      REQUESTED
                                                  FILED IN
                                           12th COURT OF APPEALS
                         IN THE                 TYLER, TEXAS
               COURT OF APPEALS FOR THE 11/30/2015 8:54:48 PM
  TWELFTH   DISTRICT OF TEXAS SITTING IN TYLER, TEXAS
                                                  PAM ESTES
                                                    Clerk



  GARRISON NURSING HOME AND REHABILITATION CENTER
          AND GARRISON NURSING HOME, INC.,

                                                       APPELLANTS,
                               VS.

                     LEGATHA DEMINGS,

                                                            APPELLEE.


         On Appeal from the 145th Judicial District Court
          of Nacogdoches, Nacogdoches County, Texas


 REPLY BRIEF OF APPELLANT GARRISON NURSING HOME AND
REHABILITATION CENTERAND GARRISON NURSING HOME, INC.


                              KENT, ANDERSON, BUSH, FROST &
                              METCALF, P.C.
                              DAVID W. FROST
                              1121 E.S.E. LOOP 323, SUITE 200
                              TYLER, TEXAS 75701
                              (903) 579-7507
                              (903) 581-3701 (FAX)

                              ATTORNEYS FOR APPELLANTS
                              GARRISON NURSING HOME AND
                              REHABILITATION CENTER AND
                              GARRISON NURSING HOME, INC.
                                         TABLE OF CONTENTS


INDEX OF AUTHORITIES.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . iii

REPLY ARGUMENT . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2

1.       Reply to Appellee’s Statement of the Case. . . . . . . . . . . . . . . . . . . . . . . . . 2

2.       Reply to Appellees Statement of the Facts. . . . . . . . . . . . . . . . . . . . . . . . . 2

3.       Objection to Appendix A to Appellee’s Brief.. . . . . . . . . . . . . . . . . . . . . . 4

4.       Dr. Miller has not shown that he is qualified to provide causation opinions
         regarding the very matter at issue.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4

5.       Dr. Miller’s report is impermissibly conclusory regarding causation. . 7

6.       Pauline Kaper, RN is not qualified to provide causation opinions. . . . 11

         A.       Dr. Miller has not incorporated or adopted any of the opinions of
                  Pauline Kaper, RN. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12

7.       The medication error report is not an expert report.. . . . . . . . . . . . . . . 13

8.       Res ipsa loquitur does not excuse requirement of an expert report. . . . 14

PRAYER.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16

CERTIFICATE OF COMPLIANCE. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17

CERTIFICATE OF SERVICE. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17




                                                          - ii -
                                 INDEX OF AUTHORITIES

CASES                                                                                           PAGE

Bogar v. Esparza,
     257 S.W.3d 354 (Tex. App.–Austin 2008, no pet.). . . . . . . . . . . . . . . . . . 14

Broders v. Heise,
     924 S.W.2d 148 (Tex. 1996). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5, 6

Collini v. Pustejovsky,
      280 S.W.3d 456 (Tex. App.–Fort Worth 2009, no pet.). . . . . . . . . . . . . 7,

Garcia v. Marichalar,
     198 S.W.3d 250 (Tex. App.–San Antonio 2006, no pet.). . . . . . . . . 14, 15

HEB Grocery Co. v. Galloway,
    2014 WL 2152128 (Tex. App.–Beaumont May 22, 2014, no pet.). . . . . . 7

Haddad v. Marroquin,
     2007 WL 2429183 (Tex. App.–Edinburg Aug 29, 2007, no pet.). . . . . . 14

Ibrahim v. Gilbride, 2010 WL 5064430
      (Tex. App.–Houston [14th Dist.] December 9, 2010, no pet.).. . . . . . . . . 10

Hector v. Christus Health Gulf Coast, 175 S.W.3d 838
     (Tex. App.–Houston [14th Dist.] 2005, pet. denied). . . . . . . . . . . . . . 14, 15

Jelinek v. Casas,
      328 S.W.3d 526 (Tex. 2010). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7, 9, 10

Murphy v. Russell,
    167 S.W.3d 835 (Tex. 2005). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15

Petty v. Churner,
       310 S.W.3d 131 (Tex. App.–Dallas 2010, no pet.). . . . . . . . . . . . . . . . . . 13



                                                  - iii -
Ruiz v. Walgreen Co.,
      79 S.W.3d 235 (Tex. App.–Houston [14th Dist.] 2002, no pet.). . . . . . . . 15

Sherman v. HealthSouth Specialty Hosp. Inc.,
     397 S.W.3d 869 (Tex. App.–Dallas 2013, pet. denied). . . . . . . . . . . . . . . 14

Thomas v. Alford,
    230 S.W.3d 83 (Tex. App.–Houston [14th Dist.] 2008, no pet.). . . . . . . . . 4

Walgreen Co. v. Hieger,
     243 S.W.3d 183 (Tex. App.–Houston [14th Dist.] 2007, pet. denied).13, 14

Van Ness v. ETMC First Physicians,
     461 S.W.3d 140 (Tex. 2015). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9, 10

STATUTES                                                                                                   PAGE


TEX. CIV. PRAC. & REM. CODE §74.201.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23

TEX. CIV. PRAC. & REM. CODE §74.351.. . . . . . . . . . . . . . . . . . . . . . . . . . . . 15, 16

TEX. CIV. PRAC. & REM. CODE §74.351 (r)(5)(C).. . . . . . . . . . . . . . . . . 11, 12, 13

TEX. CIV. PRAC. & REM. CODE §74.403(a). . . . . . . . . . . . . . . . . . . . . . . . . . 12, 13



RULES                                                                                                      PAGE

TEX. R. APP. P. 38.1(d).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2

TEX. R. APP. P. 38.1(g). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3, 4




                                                        - iv -
                           CAUSE NO. 12-15-00189-CV            ORAL ARGUMENT
                                                                   REQUESTED


                           IN THE
                 COURT OF APPEALS FOR THE
      TWELFTH DISTRICT OF TEXAS SITTING IN TYLER, TEXAS



    GARRISON NURSING HOME AND REHABILITATION CENTER
            AND GARRISON NURSING HOME, INC.,

                                                                      APPELLANT,
                                         VS.

                              LEGATHA DEMINGS,

                                                                        APPELLEE.



                On Appeal from the 145th Judicial District Court
                 of Nacogdoches, Nacogdoches County, Texas


  REPLY BRIEF OF APPELLANTS GARRISON NURSING HOME AND
 REHABILITATION CENTERAND GARRISON NURSING HOME, INC.


      COMES         NOW,        GARRISON           NURSING          HOME        AND

REHABILITATION CENTER AND GARRISON NURSING HOME, INC.,

Appellants in the above-entitled and numbered cause and files the following

Appellants’ Reply Brief asking the court of appeals to reverse the trial court’s ruling
                                         -1-
on its motion to dismiss and in support thereof would respectfully show the court the

following:

                              REPLY ARGUMENT

1.    Reply to Appellee’s Statement of the Case

      Appellants Garrison Nursing Home and Rehabilitation Center and Garrison

Nursing Home, Inc. (collectively “Garrison”) disputes the factual allegations

contained in Appellee’s Statement of the Case and would show that Appellee’s

Statement of the case does not comply with Texas Rule of Appellate Procedure

38.1(d). Pursuant to Rule 38.1(d) the Statement of the Case “should not discuss the

facts.” Appellee has inserted in the Statement of the Case the claim that the

Supplemental Report of Dr. Keith Miller and the report of Pauline Kaper, RN each

expressly incorporate by reference the report of the other. First, this should not be

discussed in the Statement of the Case, and, second, the statement is not accurate. In

her report, Ms. Kaper does not even mention Dr. Miller’s report and Dr. Miller only

indicates that he reviewed Ms. Kaper’s report. (CR 54) No where within Dr. Miller’s

report does he incorporate or adopt any portion of Ms. Kaper’s report.

2.    Reply to Appellee’s Statement of the Facts

      Garrison disputes the factual allegations contained in Appellee’s Statement of




                                         -2-
Facts and would show that Appellee’s Statement of Facts does not comply with Rule

38.1(g) of the Texas Rules of Appellate Procedure. Under Rule 38.1(g), a Statement

of Facts should state pertinent facts concisely and without argument, and must be

supported by record references. See Tex. R. App. P. 38.1(g)(emphasis added).

Garrison disputes the first sentence of the Statement of Facts as it inappropriately

contains argument regarding breaches of duty. Garrison disputes the second sentence

wherein Appellee asserts that Ms. Demings previous ischemic cardiovascular

accident was only “mild.” This is not supported by Appellee’s reference.

      Garrison disputes the third sentence in Appellee’s Statement of Facts as the

assertions contained in that sentence are not supported by the reference provided by

Appellee.

      Garrison disputes the fourth sentence in the Statement of Facts as the assertions

contained in that sentence are not supported by the references provided and is

inappropriate argument.

      Garrison disputes the sixth sentence in the Statement of Facts in which

Appellee asserts Ms. Demings suffered a “severe” stroke as this is not supported by

the references cited and it is inappropriate argument. Further, Garrison disputes the

remainder of the sixth sentence on the grounds that the assertions are not supported




                                         -3-
by the references cited.

      Finally, with regard to the remainder of Appellee’s Statement of Facts

beginning in the seventh sentence with “[a]s a result . . .”, wherein Appellee sets forth

her allegations, Garrison disputes these allegations as Appellee has failed to include

any references as required by Rule 38.1(g).

3.    Objection to Appendix A to Appellee’s Brief

      Garrison objects to the inclusion of the document entitled “Medication Error

Report” contained in Appendix A to Appellee’s Brief. This document is not included

in the appellate record, and, thus, should not be included as an appendix to Appellee’s

brief. Garrison requests the court to strike this filing and not consider it for any

purpose.

4.    Dr. Miller has not shown that he is qualified to provide causation opinions
      regarding the very matter at issue

      To qualify as an expert on the causal relationship between a breach of the

standard of care and the alleged injury or damage, “an expert must have knowledge,

skill, experience, training, or education regarding the specific issue before the court

that would qualify the expert to give an opinion on that particular subject.” Thomas

v. Alford, 230 S.W.3d 83, 87 (Tex. App.–Houston [14th Dist.] 2007, no pet.). The trial

court “must ensure that those who purport to be experts truly have expertise



                                          -4-
concerning the actual subject about which they are offering an opinion.” Broders v.

Heise, 924 S.W.2d 148, 152 (Tex. 1996).

      In the present case, the relationship between an alleged stroke in Ms. Demings

and the alleged failure to administer the medication Xarelto is the very matter at issue

with regard to causation. Appellee has responded to Garrison’s challenge of Dr.

Miller’s qualifications by pointing out that Dr. Miller repeatedly wrote in his report

that he has experience diagnosing and treating patients with the same or similar

conditions as Ms. Demings, and for illnesses related to strokes, hypertension and their

complications. However, pertinent to the present case is whether Dr. Miller is

qualified as to the relationship between an alleged stroke in Ms. Demings and the

alleged failure to administer the medication Xarelto, and Dr. Miller fails to set forth

his qualifications to provide an opinion on that specific subject.

      Appellee asserts that “the prescription of a regime of blood thinner is clearly

with [sic] the scope of Dr. Miller’s practice as a physician that dealswith patients are

stroke victims and patients that reside in nursing homes.” Appellee’s Brief p. 8-9.

However, the problem with this assertion is that Dr. Miller himself did not write this

in his report. Dr. Miller does not even assert that he prescribes blood thinners, much

less Xarelto.




                                          -5-
       Further, Appellee writes that Dr. Miller’s long recitation of his experience and

qualifications in dealing with stroke victims and nursing home patients makes him

qualified. Appellee’s Brief, p. 11. However, “dealing with stroke victims” does not

mean that Dr. Miller is qualified to opine on the relationship between an alleged

stroke and the alleged failure to administer Xarelto. Numerous health care providers

may work with stroke victims, however, that does not mean they are qualified to

testify as to the cause of a stroke. A medical doctor is not automatically qualified as

an expert in every medical issue merely because he has graduated from medical

school or has achieved certification in a medical specialty. Broders, 924 S.W.2d at

152.

       Appellee had the burden of establishing that Dr. Miller has the knowledge,

skill, experience, training, or education regarding the opinion that failing to give

Xarelto caused Ms. Demings to suffer a stroke. However, Dr. Miller has not even

indicated that he has prescribed or administered Xarelto. Further, Dr. Miller has not

provided any qualifications to support his assertion that the alleged stroke of Ms.

Demings was caused by a condition that would have been prevented by Xarelto.

       In order for Dr. Miller to be qualified on the issue of whether the alleged failure

of Garrisons to administer Xarelto to Ms. Demings caused her to have a stroke, he




                                           -6-
must provide information showing his familiarity with Xarelto, whether he has

prescribed Xarelto, the conditions Xarelto is used to treat, his familiarity with what

happens when Xarelto is not taken, and his training and experience with regard to

diagnosing the causes of stroke and the pathology of strokes. See Collini v.

Pustejovsky, 280 S.W.3d 456, 465 (Tex. App.–Fort Worth 2009, no pet.); HEB

Grocery Co. v. Galloway, 2014 WL 2152128 (Tex. App.–Beaumont, May 22, 2014,

no pet.). This information is completely missing in Dr. Miller’s report.

      Appellee has failed to show that Dr. Miller is qualified to provide causation

opinions in this case regarding the alleged failure to administer Xarelto as being the

cause of an alleged stroke suffered by Ms. Demings.

5.    Dr. Miller’s report is impermissibly conclusory regarding causation

      It is not permissible for an expert to simply opine that a breach of the

applicable standards of care caused an alleged injury. Jelinek v. Casas, 328 S.W.3d

526, 539 (Tex. 2010). Rather, “the expert must go further and explain, to a

reasonable degree, how and why the breach caused injury based on the facts

presented.” Id. In his report, Dr. Miller has failed to explain the basis for his opinion

that the alleged breach of 20 different administrative rules by Garrison caused Ms.

Demings to suffer a stroke, extensive hospitalization, rehabilitation and related




                                          -7-
complications. (CR 65). Without explanation, Dr. Miller has simply opined that the

breaches caused Ms. Demings to suffer a stroke.

      Assuming for argument only that Dr. Miller’s alleged violations of the standard

of care by Garrison are referencing Appellee’s allegation that Garrison failed to

administer the medication Xarelto to Ms. Demings, Dr. Miller does not provide a

sufficient basis for failing to administer Xarelto as a cause of the alleged stroke in Ms.

Demings. Dr. Miller fails to provide any information on his experience with Xarelto.

He fails to provide information regarding how Xarelto works. He does not provide

any information regarding the type of strokes Xarelto is designed to address. Dr.

Miller does not provide an explanation of Xarelto’s effectiveness in women of Ms.

Deming’s age who suffer from the same or similar conditions. Dr. Miller does not

provide any explanation of why Xarelto would have prevented the stroke Ms.

Demings allegedly suffered. Dr. Miller simply provides the opinion that Xarelto

would have prevented Ms. Demings’ stroke.

      The import of Dr. Miller’s opinion is that Xarelto prevents all strokes. Clearly,

that is not the case. Dr. Miller was required to explain with reasonable detail why an

alleged failure to administer Xarelto caused Ms. Demings to allegedly suffer a stroke

on June 8, 2012. He did not do so. Rather, he simply opined that the failure to




                                           -8-
provide Xarelto caused the stroke. This is the very ipse dixit the Texas Supreme

Court said was impermissible. Jelinek, 328 S.W.3d at 539.

      On several occasions, Appellee has cited Van Ness v. ETMC First Physicians,

461 S.W.3d 140 (Tex. 2015) as a basis for this court upholding the trial court’s

decision in this case. However, Van Ness demonstrates the very information that is

missing from Dr. Miller’s report.

      In Van Ness, the plaintiffs filed suit against the defendants related to the death

of their two month old child from pertussis (whooping cough). Id. at 141. The trial

court denied the defendants’ motion to dismiss in which they contended that the

plaintiffs’ expert report was conclusory as to causation. Id. On appeal, this court

reversed the trial court’s decision. Thereafter, the Van Ness Court reversed the Tyler

Court of Appeals decision and remanded it back to the trial court. Id.

      In Van Ness, the essence of the complaint against the treating physician was

that she did not institute any testing or treatment of the infant after having seen the

child on several occasions for signs and symptoms which if addressed would have led

to the diagnosis and treatment of pertussis. Id. at 142-143. The plaintiffs’ expert

provided the opinions that a stage existed at which the infant’s pertussis could have

been treated with antibiotics; if the defendant physician had given the infant




                                          -9-
antibiotics prophylactically and ordered testing, the tests would have shown his

pertussis was at a treatable stage; and the infant would have had a 51% chance of

recovery if the physician had started the prophylactic antibiotics and continued

antibiotics as indicated by results of the tests. Id. at 144.

      In Van Ness, the specific disease from which the infant suffered was identified

by the expert, and the expert described the effectiveness of treatment by antibiotics.

In contrast, Dr. Miller does not identify any specifics about the stroke that Ms.

Demings allegedly suffered and he does not provide sufficient information regarding

why Xarelto would have prevented a stroke in Ms. Demings. See e.g. Ibrahim v.

Gilbride, 2010 WL 5064430 (Tex. App.–Houston [14th Dist.], Dec. 9, 2010, no pet).

      The Texas Supreme Court’s decision in Jelinek is very instructive on the

inadequacy of Dr. Miller’s report. In Jelinek, the defendant hospital inadvertently

failed to renew the antibiotics of the plaintiff following the plaintiff undergoing intra-

abdominal surgery. 328 S.W.3d at 530. The plaintiff filed suit and produced an

expert report in which the expert opined that the negligent failure to administer the

antibiotics led to a prolonged hospital stay and increased pain and suffering by the

plaintiff. Id. at 539. The defendants’ challenge to the report on causation was denied

by the trial court and affirmed by the appellate court. Id. at 531.




                                          - 10 -
      The Jelinek Court agreed that the expert’s causation opinions were conclusory,

and thus, insufficient. The Court noted that the expert report was nothing more than

a “bare assertion” that the failure to provide antibiotics resulted in increased pain and

suffering and a prolonged hospital stay, and offered no explanation of how the breach

caused the injury. Id. at 540.

      In the present case, Dr. Miller has provided nothing more than the bare

assertion that the alleged failure to provide Xarelto was the cause of Ms. Demings

allegedly suffering a stroke. Beyond this statement, Dr. Miller offers no explanation

of how the alleged breach caused the alleged injury. Dr. Miller’s report is therefore

impermissibly conclusory on the element of causation.

6.    Pauline Kaper, RM is not qualified to provide causation opinions

      The trial court sustained Garrison’s objections to Defendant’s expert report

from Pauline Kaper, RN because as a registered nurse she is not qualified to provide

any opinions regarding the causal relationship between any alleged departures from

the standard of care and the injury, harm or damages claimed by Plaintiff. Appellee

did not appeal the trial court’s ruling. However, Appellee continues to try and

impermissibly use Ms. Kaper’s report to bolster its arguments regarding causation.

      Pursuant to §74.351(r)(5)(C), causation opinions in a health care liability claim




                                          - 11 -
must be provided by a physician. Section 74.351 (r)(5)(C) reads as follows:

      “Expert” means:

      with respect to a person giving opinion testimony about the causal
      relationship between the injury, harm, or damages claimed and the
      alleged departure from the applicable standard of care in any health care
      liability claim, a physician who is otherwise qualified to render opinions
      on such causal relationship under the Texas Rules of Evidence.

See also Tex. Civ. Prac. & Rem. Code §74.403(a) (a person can qualify as an expert

witness on causal relationship between alleged departure from accepted standards of

care and the injury harm or damages only if the person is a physician.)

      In the present case, Ms. Kaper is not a physician and is therefore not qualified

to provide opinions on the causal relationship between any alleged departures from

the standard of care and the injury, harm or damages claimed by Plaintiff.

      A.     Dr. Miller has not incorporated or adopted any of the opinions of
             Pauline Kaper, RN

      Despite Appellee’s assertions in her Brief, in his report, Dr. Miller never

incorporates or adopts any of the opinions of Ms. Kaper. Dr. Miller’s only mention

of Ms. Kaper’s report is to list her report as part of the materials he had reviewed. CR

54. He never addresses any of her opinions regarding standard of care or causation.

While a court can consider the reports of a nurse and a physician together for the

purpose of satisfying the expert reports requirements, on the issue of causation, the



                                         - 12 -
court is limited to reviewing the report of the physician for compliance with the

causation requirements. See Walgreen v. Hieger, 243 S.W.3d 183, 186 n.2 (Tex.

App.–Houston [14th Dist.] 2007, pet. denied).

7.    Medication Error Report is not an expert report

      To the extent Appellee is attempting to use the medication error report

referenced by Dr. Miller in his report to satisfy the expert report requirements for

causation, the report does not meet the requirements of an expert report.

      As previously discussed, an expert report on causation must be rendered by a

physician. Tex. Civ. Prac. & Rem. Code Ann. §§74.351(r)(5)(C), 74.403(a). The

medication error report was not authored by a physician. It was authored by a nurse.

Further, the medication error report does not set forth that Ms. Deming’s alleged

stroke was caused by the alleged failure to administer Xarelto. According to Dr.

Miller, the medication error report indicates that Ms. Demings was at a higher risk of

stroke. At best, this is just a description of possible causation which does not

constitute a good faith effort to comply with the expert report requirements on

causation. See Petty v. Churner, 310 S.W.3d 131, 136 (Tex. App.–Dallas 2010, no

pet.) (Adverse event reports did not meet causation requirements for chapter 74 report

as not written by a physician and provided only a description of possible causation);




                                         - 13 -
see also Walgreen Co. v. Hieger, 243 S.W.3d 183, 187 (Tex. App.—Houston [14th

Dist.] 2007, pet. denied) (“report states only that [patient’s] symptoms are ‘consistent

with’ the known side effects of the medication and thus expresses an opinion on a

possibility, not an ultimate opinion on causation”).

      The medication error report does not satisfy Appellee’s requirement for an

expert report setting forth the causal relationship between the alleged breaches of the

standard of care and the damages and injuries alleged by Appellee.

8.    Res Ipsa Loquitur does not excuse requirement of an expert report

      The doctrine of res ipsa loquitur does not excuse Chapter 74's procedural

requirement of production of an expert report. See Sherman v. HealthSouth Specialty

Hosp. Inc., 397 S.W.3d 869, 875-876 (Tex. App.–Dallas 2013, pet. denied); Haddad

v. Marroquin, 2007 WL 2429183 (Tex. App.–Edinburg, Aug. 29, 2007, pet. denied);

Bogar v. Esparza, 257 S.W.3d 354, 369 (Tex. App.–2008, no pet.); Garcia v.

Marichalar, 198 S.W.3d 250 (Tex. App.–San Antonio 2006, no pet.); Hector v.

Christus Health Gulf Coast, 175 S.W.3d 832, 838-39 (Tex. App.–Houston [14th Dist.]

2005, pet. denied). Res ipsa loquitur is an evidentiary rule by which negligence may

be inferred by a jury, it is not a cause of action separate and apart from negligence.

Garcia, 198 S.W.3d at 255.




                                         - 14 -
        While Texas Civil Practice and Remedies Code section 74.201 allows under

certain circumstances for the applicability of res ipsa loquitur in a health care liability

claim at time of trial, the requirement for an expert report pursuant to section 74.351

establishes a threshold requirement which a claimant must meet to continue a lawsuit.

Garcia, 198 S.W.3d at 950. In examining the issue of whether res ipsa loquitur

eliminated the need for a statutory expert report, the Hector court quoted from the

Texas Supreme Court wherein it drew a distinction between an expert report at the

onset of litigation and the need for expert testimony at trial:

        It may be that once discovery is complete and the case is tried, there is
        no need for expert testimony.... But the Legislature envisioned that
        discovery and the ultimate determination of what issues are submitted
        to the factfinder should not go forward unless at least one expert has
        examined the case and opined as to the applicable standard of care, that
        it was breached, and that there is a causal relationship between the
        failure to meet the standard of care and the injury, harm, or damages
        claimed.

See Hector, 175 S.W.3d at 838 (quoting Murphy v. Russell, 167 S.W.3d 835, 838

(Tex. 2005)). The Hector court went on to hold that regardless of whether res ipsa

loquitur would apply at time of trial, a claimant must meet the procedural requirement

of an expert report at the commencement of litigation. Id. at 838 - 839.1

        1
         Assuming for purposes of argument only that res ipsa loquitur would apply at time of trial, it is an
evidentiary rule by which negligence may be inferred by a jury, and an expert report would still be required
with regard to the causation element of a res ipsa loquitur claim. Id. at 839; Ruiz v. Walgreen Co., 79
S.W.3d 235, 239 (Tex. App.—Houston [14th Dist.] 2002, no pet.). So even if applicable at trial, res ipsa



                                                   - 15 -
        Appellee was required to produce a sufficient expert report and res ipsa

loquitur does not excuse section 74.351's expert report requirements.

                               CONCLUSION AND PRAYER

        WHEREFORE, PREMISES CONSIDERED, GARRISON NURSING HOME

AND REHABILITATION CENTER AND GARRISON NURSING HOME, INC.,

Appellants in the above referenced appeal, asks the court of appeals to reverse the

trial court’s denial of Appellant’s motion to dismiss and render the judgment in favor

of Appellants dismissing the Appellees case against them and for such other and

further relief either at law or in equity to which Appellants may show just entitlement.

                                                           Respectfully submitted,

                                                           KENT, ANDERSON, BUSH,
                                                           FROST & METCALF, P.C.
                                                           Woodgate I
                                                           1121 E.S.E. Loop 323, Suite 200
                                                           Tyler, Texas 75701
                                                           (903) 581-5588
                                                           (903) 581-3701 (Fax)

                                                           By: /s/ David W. Frost
                                                                  David W. Frost
                                                                  State Bar No. 24002111
                                                                  dfrost@tyler.net

                                                           ATTORNEYS FOR APPELLANT


loquitur does not excuse the necessity of expert testimony on causation.



                                                  - 16 -
                       CERTIFICATE OF COMPLIANCE

      The undersigned certifies this brief complies with the typed-volume limitations
of Texas Rule of Appellate Procedure 9. This brief contains 4,115 words and has
been prepared in proportionately spaced typeface using Word Perfect X6 in 14 point
Times New Roman font.

Dated: November 30, 2015

                                                 /s/ David W. Frost
                                                 David W. Frost




                          CERTIFICATE OF SERVICE

      I hereby certify that the foregoing document was electronically transmitted to

the following counsel on this 30th day of November, 2015.

      Mr. W. Stephen Shires
      Law Office of Stephen Shires, PLLC
      123 San Augustine Street
      Center, Texas 75935
      (936) 598-3031 - FAX



                                                 /s/ David W. Frost
                                                 David W. Frost




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