                                                                                                     ACCEPTED
                                                                                               12-14-00357-CV
                                                                                    TWELFTH COURT OF APPEALS
                                                                                                 TYLER, TEXAS
                                                                                           3/11/2015 5:41:13 PM
                                                                                                  CATHY LUSK
                                                                                                         CLERK

                                ORAL ARGUMENT REQUESTED

                                       NO. 12-14-00357-CV
                                                                                FILED IN
                                                                         12th COURT OF APPEALS
                                                                              TYLER, TEXAS
                   IN THE COURT OF APPEALS FOR THE TWELFTH               3/11/2015 5:41:13 PM
                                                                        DISTRICT
                                    AT TYLER, TEXAS                           CATHY S. LUSK
                                                                                  Clerk


                           PINECREST SNF, LLC D/B/A PINECREST
                           NURSING & REHABILITATION CENTER,
                                        Appellant,

                                                 v.

       TASCO BAILEY, NATHAN BAILEY, CURLIE BAILEY, ROY BAILEY,
   BILL BAILEY, JAMES BAILEY, EARL BAILEY, MARY DUNLAP AND LICILLE
                  MARTIN, AS HEIRS OF ARCHIE BAILEY,
                                Appellees.


                                 On Interlocutory Appeal from the
                        114th Judicial District Court of Smith County, Texas
                                        Cause No. 14-0856-B
                             The Honorable Christi Kennedy Presiding


                   BRIEF OF PINECREST NURSING PINECREST SNF, LLC D/B/A
                      PINECREST NURSING & REHABILITATION CENTER


                                                  NICHOL L. BUNN
                                                  State Bar No. 00790394
                                                  STEPHANIE F. ERHART
                                                  State Bar No. 24007180
                                                  LEWIS, BRISBOIS, BISGAARD
                                                  & SMITH, LLP
                                                  2100 Ross Avenue, Suite 2000
                                                  Dallas, Texas 75201
                                                  (214) 722-7100
                                                  (214) 722-7111 (fax)
                                                  ATTORNEYS FOR
                                                  PINECREST NURSING SNF, LLC
                                                  D/B/A PINECREST NURSING &
                                                  REHABILITATION CENTER



4830-3029-8914.1
                        IDENTITY OF PARTIES AND COUNSEL

In accordance with Rule 38.1(a) of the Texas Rules of Appellate Procedure,

Pinecrest Nursing provides the following complete list of all parties and counsel to

the trial court’s order that forms the basis of this appeal:

Pinecrest Nursing:                Pinecrest SNF, LLC d/b/a
(Defendant)                       Pinecrest Nursing & Rehabilitation Center

Pinecrest Nursing’s Counsel: Nichol L. Bunn (Trial & Appeal)
                             Stephanie F. Erhart (Appeal)
                             LEWIS, BRISBOIS, BISGAARD & SMITH, LLP
                             2100 Ross Avenue, Suite 2000
                             Dallas, Texas 75201
                             (214) 722-7100
                             (214) 722-7111 (fax)
                             Nichol.Bunn@lewisbrisbois.com
                             Stephanie.Erhart@lewisbrisbois.com

The Baileys:                      Tasco Bailey, Nathan Bailey, Curlie Bailey, Roy
(Plaintiffs)                      Bailey, Bill Bailey, James Bailey, Earl Bailey,
                                  Mary Dunlap, and Lucille Martin, as Heirs of
                                  Archie Bailey

The Baileys’ Counsel:             Robert M. Wharton (Trial & Appeal)
                                  Lauren Schultz (Trial & Appeal)
                                  Mary E. Green (Trial & Appeal)
                                  MCIVER BROWN LAW FIRM
                                  JP Morgan Chase Bank Building
                                  712 Main Street, Suite 800
                                  Houston, Texas 77002
                                  (832) 767-1673
                                  (832) 767-1783 (fax)
                                  firm@mciverbrown.com




                                            ii
                                            TABLE OF CONTENTS

IDENTITY OF PARTIES AND COUNSEL ......................................................................... ii

TABLE OF CONTENTS ............................................................................................iii-iv

ABBREVIATIONS AND RECORD REFERENCES ...............................................................v

INDEX OF AUTHORITIES......................................................................................... vi-ix

STATEMENT OF THE CASE ...................................................................................... x-xi

STATEMENT REGARDING ORAL ARGUMENT .............................................................xi

STATEMENT OF JURISDICTION ............................................................................. xi-xii

ISSUES PRESENTED ................................................................................................... xii

INTRODUCTION ............................................................................................................1

I.     STATEMENT OF FACTS ........................................................................................2

       A.      Factual Background .............................................................................. 2-3

       B.      Allegations Against Pinecrest Nursing .....................................................3

       C.      Procedural History of Dr. Davey’s Reports ..............................................4

II.    SUMMARY OF THE ARGUMENT ............................................................................5

III. ARGUMENT .........................................................................................................6

       A.      Standard of Review ...................................................................................6

       B.      Requirements of 74.351 Expert Reports ............................................... 6-8

       C.      Dr. Davey’s Amended Report is Deficient Because it Addresses
               Causation in a Conclusory Manner ....................................................... 8-9

               1.     Dr. Davey’s Amended Report Failed to Adequately Explain
                      How Pinecrest Nursing’s Alleged Breaches of the Standard
                      of Care Caused Mrs. Bailey’s Pressure Ulcer............................. 9-15



                                                           iii
              2.     Dr. Davey’s Amended Report Failed to Adequately Explain
                     How Pinecrest Nursing’s Alleged Breaches of the Standard
                     of Care Caused Mrs. Bailey’s Death......................................... 15-19

IV. CONCLUSION AND PRAYER ...............................................................................20

CERTIFICATE OF SERVICE ..........................................................................................22

CERTIFICATE OF COMPLIANCE ..................................................................................23

APPENDIX TO PINECREST NURSING’S BRIEF........................................................ 24-84

    1. Amended Expert Report of Dr. Christopher Davey

    2. Order on Expert Report Challenges

    3. Amended Order on Expert Report Challenges

    4. Tex. Civ. Prac. & Rem. Code 74.351




                                                        iv
                ABBREVIATIONS AND RECORD REFERENCES

ABBREVIATIONS:

Pinecrest Nursing/Defendant Pinecrest SNF, LLC d/b/a Pinecrest Nursing &
Rehabilitation Center is referred to as “Pinecrest Nursing” or “Pinecrest”.

The Baileys/Plaintiffs Tasco Bailey, Nathan Bailey, Curlie Bailey, Roy Bailey, Bill
Bailey, James Bailey, Earl Bailey, Mary Dunlap, and Lucille Martin, as Heirs of
Archie Bailey are collectively referred to as “the Baileys”.

Archie Bailey is referred to as “Mrs. Bailey”.

Chapter 74 of the Texas Civil Practice & Remedies Code is referred to as “Chapter
74”.

The Baileys’ Chapter 74 Expert will be referred to as “Dr. Davey”.

The report at issue – Dr. Davey’s Amended Report filed on June 27, 2014 and
attached to Plaintiffs’ Notice of Filing Amended Ch. 74 Expert Report is referred
to as the “Amended Report.”

Curriculum vitae will be referred to as “CV”.

RECORD REFERENCES:

References in the clerk’s record are in the form (CR [page #]).




                                         v
                                                  TABLE OF AUTHORITIES


                                                     STATE COURT CASES
Am. Transitional Care Ctrs. of Tex., Inc. v. Palacios,
  46 S.W.3d 873 (Tex. 2001).............................................................................................. 6, 7, 10

Austin Heart, P.A. v. Webb,
  228 S.W.3d 276 (Tex. App.—Austin 2007, no pet.) ................................................................. 9

Bakhtari v. Estate of Dumas,
  317 S.W.3d 486 (Tex. App.—Dallas 2010, no pet.).................................................................. 8

Bowie Mem’l Hosp. v. Wright,
  79 S.W.3d 48 (Tex. 2002)...................................................................................... 6, 7, 8, 12, 15

Castillo v. August,
  248 S.W.3d 874 (Tex. App.—El Paso 2008, no pet.)................................................................ 8

Christus Spohn Health Sys. Corp. v. Castro,
  No. 13-13-00302-CV, 2013 Tex. App. LEXIS 14932 (Tex. App.—Corpus Christi
  Dec. 12, 2013, no pet.).............................................................................................................. 13

Conboy v. Lindale Health Care, LLC, NO.,
   12-12-00241-CV, 2013 Tex. App. LEXIS 11013 (Tex. App.—Tyler Aug. 29, 2013,
  no pet.) ...................................................................................................................................... 14

Constancio v. Bray,
  266 S.W.3d 149 (Tex. App.—Austin 2008, no pet.) ............................................................... 18

Cooper v. Arizpe,
  No. 04-07-00734-CV, 2008 Tex. App. LEXIS 2506, 2008 WL 940490 (Tex. App.—
  San Antonio Apr. 9, 2008, pet. denied) .................................................................................... 11

Costello v. Christus Santa Rosa Health Care Corp.,
  141 S.W.3d 245 (Tex. App.—San Antonio 2004, no pet.)............................................ 8, 16, 19

Doe v. Boys Clubs,
  907 S.W.2d 472, 477 (Tex. 1995)............................................................................................ 19

Granbury Hosp. Corp. v. Hosack,
   No. 10-09-00297-CV, 2010 Tex. App. LEXIS 3132 (Tex. App.—Waco Apr. 28,
  2010, no pet.) ............................................................................................................................ 17




                                                                        vi
Hillcrest Baptist Med. Ctr. v. Payne,
   No. 10-11-00191-CV, 2011 Tex. App. LEXIS 9182 (Tex. App.—Waco Nov. 16,
  2011, pet. denied)...................................................................................................................... 14

Hutchinson v. Montemayor,
  144 S.W.3d 614 (Tex. App.—San Antonio 2004, no pet.)...................................................... 11

IHS Cedars Treatment Ctr. v. Mason,
  143 S.W.3d 794 (Tex. 2003)................................................................................................ 8, 16

Jelinek v. Casas,
   328 S.W.3d 526 (Tex. 2010).............................................................................................. 11, 15

Jernigan v. Langley,
   195 S.W.3d 91 (Tex. 2006)........................................................................................................ 6

Lear Siegler, Inc. v. Perez,
   819 S.W.2d 470 (Tex. 1991).............................................................................................. 16, 19

Lewis v. Funderburk,
  234 S.W.3d 204 (Tex. 2008)...................................................................................................... 3

Loaisiga v. Cerda,
  379 S.W.3d 248 (Tex. 2012)...................................................................................................... 6

Methodist Hosp. of Dallas v. King,
  365 S.W.3d 847 (Tex. App.—Dallas 2012, no pet.).................................................................. 6

Murphy v. Mendoza,
  234 S.W.3d 23 (Tex. App.—El Paso 2007, no pet.)................................................................ 11

Nacogdoches County Hosp. Dist. v. Felmet, NO.,
   12-12-00393-CV, 2013 Tex. App. LEXIS 14478 (Tex. App. —Tyler Nov. 26, 2013,
  no pet.) ...................................................................................................................................... 10

Nexion Health at Southwood, Inc. v. Judalet,
   No. 12-08-00464-CV, 2009 Tex. App. LEXIS 7404 (Tex. App. —Tyler Sept. 23,
  2009, no pet.) ............................................................................................................................ 18

Nexion Health at Southwood, Inc. v. Judalet,
   No. 12-08-00464-CV, 2009 Tex. App. LEXIS 7404 (Tex. App.—Tyler Sept. 23,
  2009, no pet.) ...................................................................................................................... 13, 17

Ortiz v. Patterson,
   No. 05–10–01356–CV, 2012 WL 3809217 (Tex. App.—Dallas, Aug. 31, 2012, no
  pet. h.) ......................................................................................................................................... 7

                                                                         vii
Perez v. Daughters of Charity Health Servs. of Austin,
   No. 03-08-00200-CV, 2008 Tex. App. LEXIS 7648, 2008 WL 4531558 (Tex. App.—
  Austin Oct. 10, 2008, no pet.)................................................................................................... 18

Pisasale v. The Ensign Group, Inc.,
   No. 11-05-00196-CV, 2006 Tex. App. LEXIS 7983 (Tex. App. —Eastland
  September 7, 2006, pet. denied)................................................................................................ 14

Regent Care Ctr. of San Antonio II, Ltd. P’ship v. Hargrave,
  300 S.W.3d 343 (Tex. App.—San Antonio 2009, pet. denied) ............................................... 19

Regent Health Care Ctr. of El Paso, L.P. v. Wallace,
  271 S.W.3d 434 (Tex. App. —El Paso 2008, no pet.)............................................................. 17

Simonson v. Keppard,
   225 S.W.3d 868 (Tex. App.—Dallas 2007, no pet.).................................................................. 6

Valle v. Taylor, NO.,
   09-11-00223-CV, 2012 Tex. App. LEXIS 110 (Tex. App.—Beaumont Jan. 5, 2012,
  no pet.) ...................................................................................................................................... 17
                                                STATUTORY AUTHORITIES
Tex. Civ. Prac. & Rem. Code § 51.014(a)(9)(West........................................................................ 3

Tex. Civ. Prac. & Rem. Code §74.351. .......................................................................................... 4

Tex. Civ. Prac. & Rem. Code §74.351 ......................................................................................... 25

Tex. Gov’t Code § 22.201(m)......................................................................................................... 3

Tex. Gov’t Code § 24.216............................................................................................................... 3
                                         STATE RULES AND REGULATIONS
Tex. R. App. P. 25.1...................................................................................................................... 22

Tex. R. Civ. P. 21a........................................................................................................................ 22

Tex. R. APP. P. 9.4 ....................................................................................................................... 23




                                                                       viii
                              STATEMENT OF THE CASE
      This health care liability claim arises from the care given to a resident during

one month of a three-year stay in a nursing home. This interlocutory appeal

focuses on the trial court’s ruling regarding the sufficiency of the 74.351 expert

report of Dr. Christopher Davey. (CR 243).

      The Baileys filed the underlying health care liability lawsuit claiming that

Pinecrest Nursing was negligent in providing nursing care to Archie Bailey during

her residency in its facility thereby resulting in the development of a pressure sore

which became infected and contributed to Mrs. Bailey’s death. (CR 1-12). In an

attempt to comply with the statutory requirements of Chapter 74 of the Texas Civil

Practice and Remedies Code, the Baileys served an expert report and curriculum

vitae (“CV”) of Christopher M. Davey, M.D.           (“Dr. Davey”).     (CR 54-74).

Pinecrest Nursing objected to Dr. Davey’s report. (CR 75-105). The Court ruled

that Dr. Davey’s report was insufficient and gave the Baileys an extension in which

to cure the deficiencies in Dr. Davey’s report. (CR 139-140).

      The Baileys filed an Amended Report from Dr. Davey. (CR 141-165).

Because Dr. Davey’s opinions regarding causation were conclusory, Pinecrest

Nursing objected that the Amended Report was still inadequate. (CR 166-192).

The Baileys filed an Original and an Amended Motion to Overrule Defendant’s

Objections to the Amended Chapter 74 Report of Christopher M. Davey, M.D.

                                         ix
(CR 193-237). Pinecrest Nursing responded to the Baileys motion and requested

its objections be sustained.     (CR 238-242).      The Court overruled Pinecrest

Nursing’s objections by Order entered on November 25, 2014. (CR 243). This

appeal ensued. (CR 244-245).

                    STATEMENT REGARDING ORAL ARGUMENT

      Pinecrest Nursing believes that oral argument would aid the Court in

reaching a resolution of this case. Even if the facts are simple (and medical facts

rarely are) and the legal issue is straightforward, oral argument will allow the

parties to explain the application of law to fact and, in particular, how the report of

Dr. Davey fails to satisfy the Chapter 74 requirements. Additionally, it would also

allow the parties to answer any questions that the Court may have.

                           STATEMENT OF JURISDICTION

      This Court has jurisdiction to hear an interlocutory appeal denying a motion

to dismiss in a health care liability claim. Lewis v. Funderburk, 234 S.W.3d 204,

208 (Tex. 2008); TEX. CIV. PRAC. & REM. CODE § 51.014(a)(9)(West Supp. 2012).

“The 114th Judicial District is composed of Smith County.” TEX. GOV’T CODE §

24.216 (West 2013). This Court’s appellate district contains Smith County, among

other counties. TEX. GOV’T CODE § 22.201(m) (West Supp. 2014). Thus, this Court

has jurisdiction to determine this interlocutory appeal about the trial court’s abuse




                                          x
of discretion in ruling on Pinecrest Nursing’s objections to the 74.351 expert report

and its motion to dismiss.

                                 ISSUE PRESENTED

      Section 74.351 requires that the expert report explain the causal connection

between the alleged breaches in the standard of care and the injuries in question in

a non-conclusory manner. The report in this case only addresses causation in a

conclusory manner. It does not adequately explain how any breaches in the

standard of care by Pinecrest proximately caused injury to Mrs. Bailey. Further,

the Baileys’ expert report fails to explain how Pinecrest Nursing’s conduct caused

Mrs. Bailey’s death by cardiac arrest three months after she left the facility. Did

the trial court abuse its discretion in applying the law of 74.351 reports to Dr.

Davey’s report?




                                         xi
TO THE HONORABLE TWELFTH DISTRICT COURT OF APPEALS:

       Appellant Pinecrest Nursing submits this Brief praying that this Court

reverses the trial court’s ruling overruling the Chapter 74 objections and denying

Appellant’s motion to dismiss.

                                 INTRODUCTION

       Dr. Davey’s report fails to comply with the statutory requirements of

Chapter 74 because it contains no analysis of causation. In fact, the fifteen page

report only mentions causation in one 5 sentence paragraph and fails to adequately

explain the link between the alleged breaches in the standard of care to the cause of

Mrs. Bailey’s pressure ulcers and/or death. Although the report concedes that an

individual’s clinical condition can make pressure ulcers unavoidable, there is no

discussion of Mrs. Bailey’s underlying conditions and whether or not her pressure

ulcers were unavoidable in her case. As such, the report does not sufficiently

address causation with respect to Mrs. Bailey’s pressure ulcer and simply

concludes that her death was a result of Pinecrest Nursing’s conduct without

adequately linking the two.

       The report’s lack of analysis is insufficient to meet even these minimal

standards. Therefore, the trial court abused its discretion when it found the report

sufficient.




                                         1
                                        I.
                             STATEMENT OF FACTS

A.    Factual Background

      This is a healthcare liability claim arising from the last month of residency

of 88 year-old Archie Bailey at Pinecrest Nursing & Rehabilitation Center.

Although Mrs. Bailey was a resident of Pinecrest for over 3 years, the care

questioned by the Baileys is limited to one month of her time there. (CR 4-9; 141-

165). Mrs. Bailey was admitted to Pinecrest on June 12, 2010 for long term care

for Alzheimer’s disease. (CR 146). At the time of her admission, Mrs. Bailey was

84 years old and her medical diagnoses included, but were not limited to:

Alzheimer’s disease; Hypertension; Congestive Heart Failure; Diabetes Mellinus

(Type II); and Asthma. See id.

      Almost three years after her admission, on March 20, 2013, Mrs. Bailey

developed a pressure ulcer. (CR 146). However, it resolved with in two weeks.

See id. Mrs. Bailey had no other skin issues until August 12, 2013. (CR 146). At

that time, the nursing staff observed a 0.3x0.2cm sized macerated area on Mrs.

Bailey’s gluteal fold. (CR 146). By August 19, 2013, the area was slightly bigger

at 0.3x0.3cm and a small amount of serous exudate was observed with an odor. Id.

Between August 19, 2013 and September 19, 2013, Mrs. Bailey’s pressure ulcer

treatments were provided by her doctors, including a wound specialist, and nurses



                                        2
at Pinecrest, but as of September 19, 2013, the wound had deteriorated to a Stage

IV pressure ulcer. (CR 146-147).

      On September 19, 2013, Mrs. Bailey was discharged from Pinecrest Nursing

to Trinity Mother Francis Hospital where she was diagnosed with an UTI and

infected wound. (CR 146-147). She did not return to Pinecrest Nursing. Id.

Between September 19, 2013 and December 2013, Mrs. Bailey was in and out of

the hospital and rehabilitation facilities with a host of problems related to her

underlying conditions. (CR 146-147). Mrs. Bailey died on December 4, 2013 at

the age of 88 years old. (CR 147).       According to her death certificate, Mrs.

Bailey’s cause of death was cardio pulmonary arrest. Id.           No autopsy was

performed.

B.    Allegations Against Pinecrest Nursing

      On March 31, 2014, Mrs. Bailey’s husband and nine adult children (“the

Baileys”) filed a survival action based on a theory of medical negligence. (CR 1-

12). Specifically, the Baileys claim that Pinecrest Nursing’s nursing staff failed to

accurately asses Mrs. Bailey’s condition; failed to implement proper measures to

prevent ulcers, and; failed to appropriately and timely treat the ulcers. Id. They

further claim Pinecrest Nursing’s facility was understaffed and that these failures

led to the development and deterioration of Mrs. Bailey’s wound and subsequent

infection, which caused her death. Id.


                                         3
C.    Procedural History of Challenges to Dr. Davey’s Reports

      As a health care liability claim, the Baileys’ claim is governed by Chapter 74

of the Texas Civil Practice & Remedies Code (“Chapter 74”). In an effort to

comply with the reporting requirements of Chapter 74, the Baileys served an expert

report and curriculum vitae prepared by Dr. Christopher Davey. (CR 54-74); TEX.

CIV. PRAC. & REM. CODE §74.351. Pinecrest Nursing filed an objection to Dr.

Davey’s report. (CR 75-105). Following hearing, the trial court ruled that Dr.

Davey’s report was insufficient and gave the Baileys an extension in which to cure

the deficiencies in Dr. Davey’s report. (CR 139-140).

      In an attempt to cure the deficiencies, the Baileys filed an Amended Report

from Dr. Davey.     (CR 141-165).      However, the Amended Report failed to

adequately explain how any of the alleged breaches cause injuries or Mrs. Bailey’s

pressure ulcer and death and was only conclusory in this regard; therefore,

Pinecrest Nursing again filed objections. (CR 166-192). The Baileys filed a

Motion to Overrule Defendant’s Objections to the Amended Chapter 74 Report of

Christopher M. Davey, M.D. and an Amended Motion seeking to overrule

Pinecrest Nursing’s objections to the Amended Report. (CR 193-237). The Court

overruled Pinecrest Nursing’s objections by Order entered on November 25, 2014.

(CR 243). Pinecrest timely filed its notice of accelerated appeal from the Trial

Court’s interlocutory Order. (CR 244-245).


                                         4
                                         II.
                          SUMMARY OF THE ARGUMENT

      The trial court abused its discretion in evaluating Dr. Davey’s expert report

when it failed to rule that the report was inadequate, as Dr. Davey’s report lacks

the required analysis on the causation requirement. First, although Dr. Davey

summarily states that alleged breach of the standard of care by Pinecrest Nursing

caused Mrs. Bailey’s pressure ulcer, his report fails to explain how. Importantly,

Dr. Davey concedes that a patient’s underlying conditions can make pressure

ulcers unavoidable; however, nowhere in his report does he discuss whether Mrs.

Bailey’s underlying conditions (Alzheimer’s, congestive heart failure, diabetes

mellitus) made her pressure ulcer unavoidable. The report fails to explain that

absent the act or omission of Pinecrest Nursing the harm would not have occurred.

Finally, Dr. Davey states that Pinecrest Nursing’s conduct was a contributing

factor to Mrs. Bailey’s death. However, nowhere in his report does Dr. Davey

explain how Pinecrest Nursing’s breach of the only identified standard of care

(alleged failure to reposition Mrs. Bailey in August and September 2013) was a

substantial factor in bringing about her death in December 2013 at a different

facility. Despite the omission of a causation analysis, the trial court found Dr.

Davey’s report sufficient on causation. Because the trial court abused its discretion

in applying Chapter 74 causation requirements to the report of Dr. Davey, this

Court should reverse and remand.
                                         5
                                              III.
                                         ARGUMENTS

A.      Standard of Review

        A trial court’s order on a Chapter 74 motion to dismiss is reviewed for an

abuse of discretion. Jernigan v. Langley, 195 S.W.3d 91, 93 (Tex. 2006) (per

curiam)1; Am. Transitional Care Ctrs. of Tex., Inc. v. Palacios, 46 S.W.3d 873, 875

(Tex. 2001); Simonson v. Keppard, 225 S.W.3d 868, 871 (Tex. App.—Dallas

2007, no pet.).       The trial court abuses its discretion when it acts arbitrarily,

unreasonably, or without reference to any guiding rules and principles. Simonson,

225 S.W.3d at 871. When reviewing factual matters committed to the trial court’s

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

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

cannot exercise discretion when determining what the law is or when applying the

law to the facts. Methodist Hosp. of Dallas v. King, 365 S.W.3d 847, 849 (Tex.

App.—Dallas 2012, no pet.).

        B.     Requirements of 74.351 Expert Reports

        A court shall grant a motion challenging the adequacy of an expert report when

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

statutory definition of an expert report. § 74.351(l); Loaisiga v. Cerda, 379 S.W.3d


1
     Discussing former Article 4590i of the Texas Revised Civil Statute Annotated, which was the
     precursor to Chapter 74. See Jernigan, 195 S.W.3d at 92 n.1.
                                                6
248 (Tex. 2012); Ortiz v. Patterson, No. 05–10–01356–CV, 2012 WL 3809217, *3

(Tex. App.—Dallas, Aug. 31, 2012, no pet. h.). According to the Texas Civil Practice

& Remedies Code, an “expert report” is defined as

      a written report by an expert that provides a fair summary of the
      expert’s opinions as of the date of the report regarding applicable
      standards of care, the manner in which the care rendered by the
      physician or health care provider failed to meet the standards, and the
      causal relationship between that failure and the injury, harm, or
      damages claimed.

Id. § 74.351(r)(6). An expert report that omits any of these statutory requirements

does not represent a good faith effort. Palacios, 46 S.W.3d at 879. While the expert

report does not have to marshal the plaintiff’s proof, it must provide a fair

summary of the above elements. See Wright, 79 S.W.3d at 52. Ultimately, the

report must inform the defendant with sufficient specificity the conduct called into

question and provide a basis for the trial court to conclude the claims have merit.

Id.

      A report cannot merely state the expert’s conclusions about the standard of

care, breach, and causation. Palacios, 46 S.W.3d at 879. An expert must explain

the basis of his statements to link his conclusions to the facts. Wright, 79 S.W.3d at

52. When determining the sufficiency of the report, the courts look exclusively

within the four corners of the report itself. Id. Inferences from the report are not

permitted. Id. at 53. Thus, all of the information and explanations necessary to



                                          7
satisfy the expert report requirements must be contained within the report itself.

See id.

      C.    Dr. Davey’s Amended Report is Deficient Because it Addresses
            Causation in a Conclusory Manner.

      A causal relationship is established by proof that the negligent act or

omission was a substantial factor in bringing about the harm and that absent this

act or omission, the harm would not have occurred. Costello v. Christus Santa

Rosa Health Care Corp., 141 S.W.3d 245, 249 (Tex. App.—San Antonio 2004, no

pet.). Cause in fact is not established where a defendant’s negligence “does no

more than furnish a condition which makes the injuries possible.” IHS Cedars

Treatment Ctr. v. Mason, 143 S.W.3d 794, 798 (Tex. 2003).

      To satisfy the required element of causation under chapter 74, an expert

report must include a fair summary of the expert's opinion regarding the causal

relationship between the breach of the standard of care and the injury, harm, or

damages claimed. Bakhtari v. Estate of Dumas, 317 S.W.3d 486, 496 (Tex. App.—

Dallas 2010, no pet.). Merely providing some insight into the plaintiff's claims

does not adequately address causation. Wright, 79 S.W.3d at 53. Accordingly,

causation cannot be inferred; it must be clearly stated. Castillo v. August, 248

S.W.3d 874, 883 (Tex. App.—El Paso 2008, no pet.). Indeed, a court may not fill

in gaps in a report by drawing inferences or guessing what the expert meant or



                                        8
intended. Austin Heart, P.A. v. Webb, 228 S.W.3d 276, 279 (Tex. App.—Austin

2007, no pet.).

      1.     Dr. Davey’s Amended Report Failed to Adequately Explain How
             Pinecrest Nursing’s Alleged Breaches of the Standard of Care
             Caused Mrs. Bailey’s Pressure Ulcer.

      Dr. Davey’s report reads like a manual on possible interventions to address

pressure ulcers. (CR 144-158). A large portion of his report appears to be taken

from another source that generally discusses and explains pressure ulcers, their

causes, and treatments.   (CR 148-151, 155-157).       While the report generally

discusses topics, it is difficult to identify the standards of care applicable to

Pinecrest Nursing.

      This is most evident when considering his causation paragraph. Despite the

fact that Dr. Davey’s report is 15 pages long, he only mentions causation in one 5

sentence paragraph at the very end of his report. However, his statement fails to

specifically identify the standard of care applicable to Pinecrest Nursing that

caused harm to Mrs. Bailey. Dr. Davey states:

      Because Pinecrest Nursing failed to reposition her every two hours
      and failed to implement effective interventions, Ms. Bailey had
      sustained pressure on her sacral area, which caused the blood to stop
      flowing to that part of the body and the skin to distort. Because of the
      lack of blood flow, the tissue died, causing Ms. Bailey to develop an
      infected State IV pressure ulcer.

(CR 158). However, Dr. Davey’s causation paragraph fails to identify the specific

“effective interventions” that the standard of care dictated should have been
                                         9
implemented. This statement by Dr. Davey is conclusory and does not sufficiently

explain how these unidentified “interventions” caused harm to Mrs. Bailey.

Identifying the standard of care in a health care liability claim is critical: whether a

defendant breached his or her duty to a patient cannot be determined absent

specific information about what the defendant should have done differently.

Palacios, 46 S.W.3d at 880; Nacogdoches County Hosp. Dist. v. Felmet, NO. 12-

12-00393-CV, 2013 Tex. App. LEXIS 14478, 14 (Tex. App. –Tyler Nov. 26, 2013,

no pet.) (concluding expert report deficient where it failed to explain how the

deviation from the standards led to the patient’s subsequent surgeries)

      Additionally, Dr. Davey’s opinion that the nurses’ failure to reposition Mrs.

Bailey is speculative and conclusory in that it is not supported by the facts because

Dr. Davey relied on an assumption. He states “the medical records fail to present

any evidence that Ms. Bailey’s turning/repositioning schedule was ever

documented, which suggests she was not repositioned every two hours. . . . Over

the course of Ms. Bailey’s entire stay at Pinecrest Nursing, there are no entries in

the nursing notes indicating the resident was every repositioned.”          (CR 152).

Despite the fact that Dr. Davey states that he reviewed the medical records of

Pinecrest Nursing & Rehab Center for over three years of care, he did not find any

notes regarding the repositioning of Ms. Bailey. Therefore, he assumes that in

three years, the patient was never repositioned.           (CR 152).      Dr. Davey’s


                                          10
assumption is absurd and not based on fact. If repositioning was as important as he

would lead this Court to believe, if Mrs. Bailey was truly never repositioned,

surely she would have developed a pressure ulcer much sooner in her 3 year

residency. This point makes it clear that Dr. Davey’s opinion is based upon

conjecture.

      Interestingly, although Dr. Davey indicated that he reviewed all of Mrs.

Bailey’s records from Pinecrest Nursing’s, he fails to point to any doctors’ orders

that the nurses did not follow, fails to point to any evidence that the nurses did not

follow a plan of care or interventions ordered by the doctors, and Dr. Davey does

not identify any information that the nurses did not provide to doctors. (CR 141-

165). "[L]iability in a medical malpractice suit cannot be made to turn upon

speculation or conjecture." Hutchinson v. Montemayor, 144 S.W.3d 614, 618 (Tex.

App.—San Antonio 2004, no pet.). An opinion is speculative if an expert's opinion

is not supported by the established facts but only by an assumption regarding the

underlying facts. See Cooper v. Arizpe, No. 04-07-00734-CV, 2008 Tex. App.

LEXIS 2506, 2008 WL 940490, at *3 (Tex. App.—San Antonio Apr. 9, 2008, pet.

denied) (mem. op.) (citing Murphy v. Mendoza, 234 S.W.3d 23, 28 (Tex. App.—El

Paso 2007, no pet.)). An expert must explain the basis of his statements and link

his conclusions to the facts in order for his opinions not to be conclusory. Jelinek v.

Casas, 328 S.W.3d 526, 539 (Tex. 2010).             Dr. Davey’s opinion based on


                                          11
assumptions that are not tied to facts in the record are speculative and are not

sufficient to meet Chapter 74’s requirements. See id. Ultimately, the report fails to

inform Pinecrest Nursing with sufficient specificity the conduct called into

question and provide a basis for the trial court to conclude the claims have merit.

See Wright, 79 S.W.3d at 52.

      Further evidence of the conclusory nature of Dr. Davey’s opinion regarding

causation is the following statement in his report:

      the standard of care mandates that a facility and its nurses ensure that
      a resident who is admitted without pressure sores does not develop
      pressure sores unless the individual’s clinical condition
      demonstrates that they were unavoidable. . .

(CR 151) (emphasis added). Despite the fact that Dr. Davey concedes that Mrs.

Bailey’s clinical condition alone could be the cause of her pressure ulcer, nowhere

in his report does he address her clinical condition and whether it was the sole

cause of her pressure ulcer. The underlying conditions in this 84 year old woman

were not insignificant. According to Dr. Davey’s own report, Mrs. Bailey had

Alzheimer’s disease; Hypertension; Congestive Heart Failure; Diabetes Mellinus

(Type II); and Asthma. (CR 146). However, Dr. Davey’s report does not address

any of these conditions and their propensity to make pressure ulcers unavoidable.

Further, although Dr. Davey seems to focus on the time in which the ulcer

deteriorated, he does not discuss the development of pressure ulcers, and he failed

to address the fact that they can develop and deteriorate very quickly in patients
                                          12
despite adequate care. Additionally, Dr. Davey does not address why Mrs. Bailey

continued to develop pressure ulcers even after she left Pinecrest Nursing and was

a patient of a different facility. Because Dr. Davey’s report fails to discuss Mrs.

Bailey’s development of a pressure ulcer in the context of her underlying

conditions, his conclusion on the cause of her injuries is impermissibly incomplete.

      In a strikingly similar case, the Corpus Christi Court of Appeals held that an

expert report was conclusory where it failed to address the patient’s underlying

health issues and their effects on the development of pressure ulcers. Christus

Spohn Health Sys. Corp. v. Castro, No. 13-13-00302-CV, 2013 Tex. App. LEXIS

14932 (Tex. App.—Corpus Christi Dec. 12, 2013, no pet.). The Court explained:

      Although du Bois and Dr. Starer's reports go into great detail about
      the procedures necessary to prevent pressure ulcers in standard
      conditions, they do not address the specific conditions present in
      Castro's care. As discussed in detail above, Castro's claim involves his
      development of a pressure ulcer while he was being treated in Spohn's
      ICU over the course of several months for severe injuries he suffered
      in an automobile accident. Neither du Bois nor Dr. Starer discusses
      Castro's injuries in the context of these conditions. And the omission
      of this context renders any conclusion on the cause of Castro's injuries
      incomplete. Because Castro's reports do not adequately address the
      causation element, they did not provide a basis for the trial court to
      conclude that Castro's claims have merit.

Id. at *18-19. The Court reversed the order of the trial court denying Spohn’s

motion to dismiss. Id.; see also Nexion Health at Southwood, Inc. v. Judalet, No.

12-08-00464-CV, 2009 Tex. App. LEXIS 7404, 11 (Tex. App.—Tyler Sept. 23,



                                         13
2009, no pet.) (“Dr. Colon's opinion on causation is conclusory because he failed

to explain how he ruled out other probable causes of the decedent's death.”).

      Other courts of appeals have recognized the requirement of discussing a

patient’s underlying conditions to adequately address causation. See Pisasale v.

The Ensign Group, Inc., No. 11-05-00196-CV, 2006 Tex. App. LEXIS 7983 (Tex.

App.--Eastland September 7, 2006, pet. denied) (memo. op.) (holding expert report

did not constitute a good-faith effort to comply with statute where, among other

things, expert "made no effort to eliminate [the deceased's] preexisting conditions

as the cause for the injuries described in his report"); compare Hillcrest Baptist

Med. Ctr. v. Payne, No. 10-11-00191-CV, 2011 Tex. App. LEXIS 9182 (Tex.

App.—Waco Nov. 16, 2011, pet. denied)(concluding report sufficient where “Dr.

Haines opined that, based on a reasonable degree of medical probability, the other

conditions did not contribute to the development of Payne's pressure ulcers.”); see

also Conboy v. Lindale Health Care, LLC, NO. 12-12-00241-CV, 2013 Tex. App.

LEXIS 11013, 11 (Tex. App.—Tyler Aug. 29, 2013, no pet.) (“While Dr. Langan

may not have been required to rule out all possible causes, he must establish in his

report a causal connection between the defendants' conduct and the injuries Jack

suffered, and that the defendants proximately caused the injuries suffered.”).

      While Dr. Davey’s report identifies multiple alleged breaches of the standard

of care, he only mentions one of those standards in his causation paragraph.


                                         14
However, he does not explain how and why the allegedly breach caused the injury.

The report fails to contain sufficiently specific information to demonstrate

causation beyond mere conjecture. Ultimately, because Dr. Davey’s report does

not address Mrs. Bailey’s underlying conditions, it fails explain why a different,

better result would have been achieved if Pinecrest Nursing had met its standard of

care. See Hollingsworth, 353 S.W.3d at 523. There is no question that Dr. Davey’s

report fails to inform Pinecrest Nursing with sufficient specificity the conduct

called into question and provide a basis for the trial court to conclude the claims

have merit. See Wright, 79 S.W.3d at 52. Therefore, the trial court abused its

discretion in overruling Pinecrest Nursing’s objection to Dr. Davey’s report.

Jelinek, 328 S.W.3d at 539-40.

      2.     Dr. Davey’s Amended Report Fails to Adequately Explain How
             Pinecrest Nursing’s Alleged Breaches of the Standard of Care
             Caused Mrs. Bailey’s Death.

      Although Dr. Davey’s report summarized select records related to Mrs.

Bailey’s nursing home visit between August and September 2013 and he

summarily stated her ulcer was a contributing factor to her death, Dr. Davey's

report fails to articulate facts connecting the criticized deviations from the standard

of care by Pinecrest Nursing to Mrs. Bailey’s death.

      In his report, Dr. Davey states:

      On 12-4-13, Ms. Bailey expired from cardio pulmonary arrest, as
      indicated on her death certificate (TR-002743). However, it is my
                                          15
      opinion, to a reasonable degree of medical probability, that Ms.
      Bailey’s large and infected ulcer was a significant, contributing factor
      to her death.

(CR 148). Despite this proclamation, Dr. Davey’s report is not sufficient as to

causation under the applicable standard. The standard is substantial factor, not

contributing factor. See Lear Siegler, Inc. v. Perez, 819 S.W.2d 470, 472 (Tex.

1991) (holding that it is not enough that harm would not have occurred had actor

not been negligent and that actor's negligence must also be a substantial factor in

bringing about the plaintiff's harm).

      Moreover, nowhere in his report does Dr. Davey explain how Pinecrest

Nursing’s breach of the only identified standard of care (alleged failure to

reposition Mrs. Bailey in August and September 2013) was a substantial factor in

bringing about her death in December 2013 at a different facility. Chapter 74

dictates that his report must demonstrate that Pinecrest Nursing’s actions did more

than simply furnish a condition that made the injuries possible. IHS Cedars

Treatment Ctr., 143 S.W.3d at 798. To summarily state that the failure to

reposition Mrs. Bailey every two hours from August until September was a

substantial factor in bringing about Mrs. Bailey’s death in December without

discussing her clinical course over those intervening months at different facilities

and her underlying health issues, namely Alzheimer’s, diabetes mellinus, and




                                        16
congestive heart failure, undermines the very requirement of proximate causation.

Costello, 141 S.W.3d at 249.

       In a similar case involving pressure ulcers, the Beaumont Court of Appeals

found an expert report deficient where the expert failed to explain how pressure

ulcers were related to the patient’s death. The Court explained

       Dr. Rushing addresses the element of causation in his report.
       However, unlike the report in Nexion, Dr. Rushing's report does not
       address whether the condition at issue here (pressure ulcers) can lead
       to death, under what circumstances such condition can lead to death,
       or how the ankle fracture or pressure ulcers caused or contributed to
       Taylor's death in this case.

Valle v. Taylor, NO. 09-11-00223-CV, 2012 Tex. App. LEXIS 110 (Tex. App.—

Beaumont Jan. 5, 2012, no pet.). This case is similar to Valle in that Dr. Davey’s

report does not address whether pressure ulcers can lead to death, under what

circumstances such condition can lead to death, or how the pressure ulcer caused

or contributed to Mrs. Bailey's death. Therefore, Dr. Davey’s report in this case, as

the report in Valle, is deficient.

       Courts of appeals are consistent in requiring more than Dr. Davey has stated

in his report in cases involving allegations that pressure ulcers have caused a death.

See also Granbury Hosp. Corp. v. Hosack, No. 10-09-00297-CV, 2010 Tex. App.

LEXIS 3132, 6-7 (Tex. App.—Waco Apr. 28, 2010, no pet.) (concluding expert

report insufficient on element of causation where report failed to connect the

occurrence of pressure ulcers to patient’s cardiorespiratory arrest and death);
                                         17
Regent Health Care Ctr. of El Paso, L.P. v. Wallace, 271 S.W.3d 434, 441 (Tex.

App.--El Paso 2008, no pet.) ("[W]hile the report indicates that the breach of the

standard of care resulted in worsening of the described skin conditions, there is no

linkage to the cause of death, aside from the assertion of a close temporal

proximity between the conditions and the premature death.").

      Courts, including this Court, have consistently required more than what Dr.

Davey has provided in terms of expert testimony on causation in the context of

section 74.351. See Nexion Health at Southwood, Inc. v. Judalet, No. 12-08-00464-

CV, 2009 Tex. App. LEXIS 7404, *11 (Tex. App.--Tyler Sept. 23, 2009, no pet.)

(mem. op.) (Expert report was deficient on causation because "[expert] failed to

explain the causal relationship between the decedent's leg fracture and her death;"

i.e., "how a fractured leg caused her to experience congestive heart failure.");

Constancio v. Bray, 266 S.W.3d 149, 157-58 (Tex. App.—Austin 2008, no pet.)

(holding that expert report that alleged that breach of standard of care by doctor

caused patient's death is insufficient when report did not explain how increased

monitoring of patient, detection of hypoxemia, and other actions would have

prevented patient's death); Perez v. Daughters of Charity Health Servs. of Austin,

No. 03-08-00200-CV, 2008 Tex. App. LEXIS 7648, 2008 WL 4531558, at *4

(Tex. App.—Austin Oct. 10, 2008, no pet.) (mem. op.) (concluding expert report




                                        18
insufficient on causation because it did not link hospital's actions to patient's death

that would have been prevented had hospital complied with standard of care).

      In fact, the San Antonio Court of Appeals held that Dr. Davey’s report was

deficient in a similar case. Regent Care Ctr. of San Antonio II, Ltd. P’ship v.

Hargrave, 300 S.W.3d 343, 348 (Tex. App.—San Antonio 2009, pet. denied). The

Court stated “Dr. Davey's opinion fails to articulate facts connecting the criticized

deviations from the standard of care by Regent Care with Mrs. Montgomery's

dehydration, sepsis, or death.” Therefore, the Court held that Dr. Davey’s report

failed to represent a good-faith effort to comply with the statutory requirements

and held that the trial court abused its discretion in failing to dismiss the case

against Regent Care Center. Id.

      In this case, Dr. Davey’s opinions were wholly inadequate in establishing a

causal connection between Pinecrest Nursing’s actions and Mrs. Bailey’s death.

The conduct of Pinecrest Nursing is too attenuated from the resulting injuries to

Mrs. Bailey to be a substantial factor in bringing about the harm. Doe v. Boys

Clubs, 907 S.W.2d 472, 477, (Tex. 1995). In fact, Dr. Davey’s report does not

even state that Pinecrest Nursing’s conduct was a substantial factor, only a

contributing factor. However, the Texas Supreme Court has held that is not

sufficient. Perez, 819 S.W.2d at 472. Because Dr. Davey’s report fails to explain

how Pinecrest Nursing’s conduct was a substantial factor in Mrs. Bailey’s death,


                                          19
his report is deficient and the Court should have sustained Pinecrest Nursing’s

objections to the report. Costello, 141 S.W.3d at 249.

                                        IV.
                            CONCLUSION AND PRAYER

      Dr. Davey’s Amended Report failed to comply with the statutory

requirements of Chapter 74. Specifically, Dr. Davey’s Amended Report fails to

explain how or why any alleged breaches in the standard of care by Pinecrest

Nursing were a substantial factor in bringing about Mrs. Bailey’s pressure ulcer.

Dr. Davey’s Amended Report fails to address whether Mrs. Bailey’s pressure ulcer

was unavoidable in this case. As such, this Court is left to infer or guess that Mrs.

Bailey’s outcome would have been different absent Pinecrest Nursing’s alleged

breaches of the standard of care. Furthermore, Dr. Davey wholly failed explain

how or why any alleged breaches in the standard of care by Pinecrest Nursing were

a substantial factor in bringing about Mrs. Bailey’s death. Thus, the trial court

abused its discretion in denying Pinecrest Nursing’s objections to Dr. Davey’s

Amended Report and Motion to Dismiss with Prejudice, and this Court should

reverse the trial court’s decision and dismiss the Baileys’ claims against Pinecrest

Nursing with prejudice and remand for a determination of attorneys’ fees and costs

permitted by Chapter 74.

      WHEREFORE, PREMISES CONSIDERED, Appellant, Pinecrest SNF,

LLC d/b/a Pinecrest Nursing & Rehabilitation Center, respectfully prays that this
                                         20
Court sustain Pinecrest Nursing’s issues on appeal and REVERSE the trial court’s

November 25, 2014 Order overruling Pinecrest Nursing’s objections to Dr.

Davey’s Amended Report and denying Pinecrest Nursing’s Motion to Dismiss

with Prejudice. Pinecrest Nursing further requests that this Court REMAND to the

trial court with an order that the Baileys’ claims against Pinecrest Nursing be

dismissed with prejudice and to award Pinecrest Nursing its reasonable attorneys’

fees and costs as allowed by Chapter 74 of the Texas Civil Practice & Remedies

Code. Pinecrest Nursing further prays for such other relief that it may be justly

entitled.


                                     Respectfully submitted,




                                     Nichol L. Bunn
                                     State Bar No. 00790394
                                     Nichol.Bunn@lewisbrisbois.com
                                     Stephanie F. Erhart
                                     State Bar No. 24007180
                                     Stephanie.Erhart@lewisbrisbois.com
                                     LEWIS, BRISBOIS, BISGAARD & SMITH, LLP
                                     2100 Ross Avenue, Suite 2000
                                     Dallas, Texas 75201
                                     (214) 722-7100
                                     (214) 722-7111 (fax)

                                     ATTORNEYS FOR PINECREST NURSING
                                     PINECREST SNF, LLC D/B/A PINECREST
                                     NURSING & REHABILITATION CENTER

                                       21
                            CERTIFICATE OF SERVICE

       Pursuant to TEX. R. CIV. P. 21a and TEX. R. APP. P. 25.1 (e), I hereby certify
that a true and correct copy of the foregoing instrument has been served upon the
following:

      Robert M. Wharton
      Lauren Schultz
      Mary E. Green
      MCIVER BROWN LAW FIRM
      JP Morgan Chase Bank Building
      712 Main Street, Suite 800
      Houston, Texas 77002
      (832) 767-1673
      (832) 767-1783 (fax)
      firm@mciverbrown.com

BY THE FOLLOWING:

_____________      Certified Mail/Return Receipt Requested
_____________      Telephonic Document Transfer (Fax)
_____________      Federal Express/Express Mail
_____________      Hand-Delivery (In Person)
_____________      First Class Mail
______X______      EFile (Pro Docs)


DATE:        March 11, 2015.




                                              STEPHANIE F. ERHART




                                         22
                          CERTIFICATE OF COMPLIANCE

       Pursuant to TEX. R. APP. P. 9.4, I hereby certify that this Appellant’s Brief
contains 7,088 words. This is a computer-generated document created in Microsoft
Word, using 14-point typeface for all text, except for footnotes which are in 12-
point typeface. In making this certificate of compliance, I am relying on the word
count provided by the software used to prepare the document.




                                      ___________________________________
                                      Stephanie F. Erhart




                                        23
                        ORAL ARGUMENT REQUESTED

                              NO. 12-14-00357-CV


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


                 PINECREST SNF, LLC D/B/A PINECREST
                 NURSING & REHABILITATION CENTER,
                              Appellant,

                                        v.

 TASCO BAILEY, NATHAN BAILEY, CURLIE BAILEY, ROY BAILEY,
 BILL BAILEY, JAMES BAILEY, EARL BAILEY, MARY DUNLAP AND
        LICILLE MARTIN, AS HEIRS OF ARCHIE BAILEY,
                         Appellees.


                    On Interlocutory Appeal from the
                 th
             114 Judicial District Court of Smith County, Texas
                           Cause No. 14-0856-B
                 The Honorable Christi Kennedy Presiding


                      APPENDIX TO APPELLANT’S BRIEF


      Pursuant to Rule 38.1(k) of the Texas Rules of Appellate Procedure,
Pinecrest Nursing hereby submits this Appendix to its Brief containing the
following items:

TAB A       Amended Expert Report and Curriculum Vitae of Christopher Davey,
            M.D. (CR 141-165).

TAB B       Pinecrest Nursing’s Objections to Dr. Davey’s amended report and
            Motion to Dismiss with Prejudice. (CR 166-192).

                                        24
TAB C   November 25, 2014 Order overruling Pinecrest Nursing’s objections
        to Dr. Davey’s amended report and denying Pinecrest Nursing’s
        Motion to Dismiss with Prejudice. (CR 243).

TAB D   TEX. CIV. PRAC. & REM. CODE §74.351 (West Supp. 2013).




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