AFFIRM; and Opinion issued March 8, 2013.


                                             /




                                                 In The
                                 Qløttrt uf Apiab
                         3FIft1 3itrirt uf ixa at 1atta
                                       No. 05-12-00942-CV


                               KEVIN STACKS, M.D., Appellant

                                                   V.

                         NIOLLIE AN1) JAMES .JEFFERS, Appellees


                            On Appeal from the 397th District Court
                                    Grayson County, Texas
                              Trial Court Cause No. CV-1l-1716


                              MEMORANDUM OPINION
                            Before Justices Francis, Murphy, and Evans
                                    Opinion By Justice Murphy

       Kevin Stacks, M.D. appeals the trial court’s denial of his chapter 74 motion to dismiss Mollie

and James Jeffers’s health care liability suit arising from the death of their daughter, Jami Jeffers.

See TEx. Cw. PRAC. & REM. CODE ANN. § 74.351 (West 2011). In a single issue, Stacks contends

the expert report is conclusory and wholly deficient. We affirm.

                                         BACKGROUND

       Jami Jeffers was admitted to Wilson N. Jones Memorial Hospital on Christmas day of 2009

and died of cardiac arrest in the early morning of December 26. The Jefferses sued the hospital,

Stacks, and physician assistant Debra Knightstep, alleging they were negligent in the care and

treatment of Ms. Jeffers. Among their allegations, they claimed Stacks, the emergency room
physician who saw their daughter, misdiagnosed her with pneumonia and admitted her to the clinical

decision unit (CDU), the area of the hospital providing “the lowest level of care”; as a result, her

condition deteriorated quickly, and she died of cardiac arrest.

          The Jefferses tiled an expert report by W, Frank Peacock, Mi). within 120 days of suing

Stacks, see kL, to which Stacks objected and filed a motion to dismiss. Id.     § 74.351(b). The trial
court denied the objections and the motion to dismiss in a single order. Stacks filed this accelerated

appeal.

                                            DISCUSSION

                                            Applicable Law

          The Jefferses were required to comply with the expert-report requirements of chapter 74 of

the Texas Civil Practice and Remedies Code to proceed with their health-care liability suit. See id.

§ 74.351; Stockton v. Offenbach, 336 S,W.3d 610, 614 (Tex. 2011). Specifically, section 74.351
requires that, within 120 days of filing an original petition, a claimant must “serve on each party or

the party’s attorney one or more expert reports” that provide a fair summary of the expert’s opinions

regarding applicable standards of care; how the claimant’s physician or health care provider failed

to meet the standards; and the causal relationship between that failure and the injury, hann, or

damages claimed. TEx. Civ, PRAC. &REM.CODEANN. § 74.351(a), (r)(6); Key v. Muse, 352 S.W.3d

857, 859 (Tex. App.—Dallas 2011, no pet.). A report is sufficient to meet the requirements of

chapter 74 if it represents “an objective good faith effort to comply with the definition of an expert

report.” See TEx. Civ, PRAC. & REM, CODE ANN.           § 74.35 1(1); Bakhtari v. Estate of Dumas,   317

S.W.3d 486, 489 (Tex. App.—Dallas 2010, no pet.).

          The report must satisfy two purposes to constitute a good-faith effort. Am. Transitional Care

Ctrs. of Tex., Inc. v. Palacios, 46 S.W.3d 873, 878 (Tex. 2001); Bakhtari, 317 S.W.3d at 496. First,




                                                  —2—
the report must inform the defendant of the specific conduct the plaintiff has called into question.

Paiacios, 46 S.W3d at 879. Second, and equally important, the report must provide a basis for the

trial court to conclude that the claims have merit, Id. A report that merely states the expert’s

conclusions about the standard of care, breach, and causation does not fulfill these two purposes.

Mosety v, Mundine, 249 S,W.3d 775, 780 (Tex. App.—Dallas 2008, no pet.). An expert must

explain the basis of his or her statements to link those conclusions to the facts. Id. This does not

require the expert to marshal the plaintiff’s proof, however: the report may be informal, and the

information need not meet the same evidentiary requirements for summary judgment proceedings

and trials. Bakhtari, 317 S.W.3d at 496.

                                          Standard of Review

        We review a trial court’s ruling on a motion to dismiss under chapter 74 for an abuse of

discretion. See Jernigan v. Langley, 195 S.W.3d 91, 93 (Tex. 2006) (per curiam); Key, 352 S.W.3d

at 859. Under that standard, we may not substitute our judgment for that of the trial court. Walker

v. Packer, 827 S.W.2d 833, 839—40 (Tex. 1992) (orig. proceeding). The test for determining an

abuse of discretion is whether the trial court acted without reference to any guiding rules and

principles. See Downer v. Aquamarine Operators, Inc., 701 S.W.2d 238, 241—42 (Tex. 1985).

Stated differently, a trial court abuses its discretion if its decision is arbitrary and unreasonable. Id.

at 242. A trial court has no discretion in determining what the law is or applying the law to the facts.

Walker, 827 S.W.2d at 840.

                                                Analysis

        Stacks argues the trial court abused its discretion in denying his motion to dismiss because

Peacock’s stated opinions are conclusory regarding the standard of care owed by Stacks, his alleged

breaches, and the causal relationship between the alleged breaches and Ms. Jeffers’s death. Because




                                                  —3—
the only information relevant to our Inquiry regarding the adequacy ol Peacocks report is that

information within the fl’ur corners of the document. Pulacios. —16 S.W.3d at 78. we begin by

reviewing the report in some detail.

        Peacock provides a time line in his report and a summary of facts. lie notes that “Ms. Jeffers

presented on Christmas (lay with what initially seemed to he a Uk I. However, the evaluation (lid

not support the presence of a URL” He explains that Ms. Jeffers’ s “HR and tachypnea exceeded that

which would be expected based on the documented physical exam, her lack of fever, and the lab and

radiographic investigations.” He reports that Ms. Jeffers was also “profoundly hypoxic,” and

“[blecause of the cardiovascular reserve present in a young patient, if a 29 year old is severely

hypoxic, the radiographic findings should be remarkable.” He adds that “t Ihe lict that this patient

had relatively little chest x-ray and CT findings (per the report) should have immediately called into

question the possible diagnosis. Peacock also observes that as Ms. Jeffers’ condition deteriorated,

no changes occurred in the management or investigation of her condition. He states that the severity

of Ms. Jeffers’s illness when she arrived in the CDU “should have been an exclusion criteria for this

unit”; yet despite her worsening condition, she “essentially received no additional evaluation or

treatment until minutes before her death.” He opines that when Ms. Jeffers’s “blood gas [wasj

showing 51 mmHg oxygen (despite being on 6 liters of nasal cannula oxygen), immediate transfer

to an 1CU should have occurred. By waiting until her cardiovascular collapse, she was insured no

potential for salvage albility.”

        Peacock describes separately for Stacks, Knightstep, and the hospital (through the CDU

nursing staff) the standards of care, the breaches of those standards, and the causal relationship

between the breaches and Ms. Jeffers’s death. Regarding the applicable standard of care for Stacks,

Peacock states Stacks was required to:




                                                -4-
           I.   Provide a reasonable and thorough evaluation of the patient’s presentation
                and to reconiie that the severity of her illness was a contraindication to
                CDU admission.

          2.    Make a diagnosis consistent with the patient’s presentation and recognize an
                incomplete CT report as an impediment to an accurate clinical evaluation and
                diainosis.

Stacks breached theses standards, according to Peacock, by his:

           1.   Failure to evaluate, diagnose and properly admit a patient with this severity
                of illness. Ms. Jeffers was labeled as having pneumonia, which to be
                consistent with the severity of her symptoms, would have had to have been
                remarkably obvious to cause such profound hypoxia in a 29 year old,
                otherwise healthy patient. Ms. Jeffers should never have been admitted to an
                observation unit And at what point she continued to deteriorate, transfer to
                an environment more suited for her management was indicated for the critical
                nature of her condition.

           2.   Incorrect diagnosis of her condition as pneumonia. The fact that the
                pneumonia diagnosis is questionable at best, is indicative that Ms. Jeffers was
                labeled with a diagnosis of convenience, rather than based on the results of
                the examination or results of investigations ordered. In addition, he failed to
                consider a hemodynarnic cause for Ms. Jeffers’ severe presentation.

        In his causation analysis, Peacock opines that Stacks’s breaches of these standards of care

contributed to Ms. Jeffers’ s death. Specifically, he states that Stacks assigned an incorrect diagnosis

and transferred Ms. Jeffers to an inappropriate level of care; her “admission to the lowest level of

care unit in the hospital compromised her care and was directly responsible for the failures in

addressing her clearly deteriorating condition”; and once it was known that Ms. Jeffers was

“profoundly hypoxic with clear lung sounds, and questionable findings on radiographic

investigation,” her condition “should have prompted an inpatient monitored environment such as the

ICU where more aggressive diagnosis and interventions could have progressed.”

        Stacks claims that Peacock gave only generalized statements regarding both the standard of

care and applicable breach. He argues these statements are so general and conclusory that they fail




                                                 —5—
to   provide Stacks with any specific anlormation, as required by the supreme court, about what he

should have done differently. See Palacios, 46 S.W.3d at 880. We conclude the statements, when

read in the context of the entire report, are sufficient to satisfy the purposes of the expert report.

Bokhtari, 3 1 7 SW3d at 496.

         The stated standard of care for Stacks was to provide a reasonable and thorough evaluation

of Ms. Jefiers’s presentation. to recognize that the severity of her illness was a contraindication to

CDU admission, to make a diagnosis consistent with the patient’s presentation, and to recognize an

incomplete CT report as an impediment to an accurate clinical evaluation and diagnosis. The report

also details that a twenty—nine year old patient that is profoundly hypoxic should have radiographic

findings that are remarkable. Peacock observes that Ms. Jeffers was “labeled as having pneumonia,”

which he describes as “a diagnosis of convenience, rather than based on the results of an examination

or results of investigations ordered.” Her severe hypoxia, along with relatively little chest x-ray and

CT findings, should have immediately called into question the diagnosis, and Ms. Jeffers should

never have been admitted into the observation unit. Instead, once Ms. Jeffers was found to be

hypoxic, she should have been transferred immediately to an ICU, an inpatient monitored

environment where more aggressive diagnosis and interventions could have progressed; additionally,

Stacks should have considered a hemodynamic cause for Ms. Jeffers’s severe presentation, which

he described in his tiineline and included Ms. Jeffers’s severe deprivation of oxygen. The details

in the report—along with the applicable standard of care—put both Stacks and the trial court on

notice of the conduct complained of and provided specific enough information about what Stacks

should have done differently. See Palacios, 46 S.W.3d at 880.

         Stacks further complains that the expert report fails to define several words, including

“presentation,” “illness,” “condition,” “URI,” “remarkably deteriorated,” “observation unit,” and




                                                 -6-
“proloundly hvpox ic.” lie also argues that the eXpeil   report   tails, among other things. to explain

what constitutes a “reasonable and thorough evaluation”; to identify the criteria for a Cl)U admission

as opposed to an ICU admission; and to identify the proper diagnosis br Ms. Jefferss condition or

what steps Stacks should have taken to make the proper diagnosis. Stacks cites no authority that

requires medical terms of art to be defined in the expert report. The standard requires that the expert

report provide only enough information to inform Stacks of the specific conduct called into question

and provide a basis for the trial court to conclude that the claims have merit. Id. at 879. While we

recognize the report could have included additional information as suggested by Stacks, we have

already determined the expert report is specific enough to inform Stacks of the conduct called into

question and give a basis for the trial court to conclude the Jefferses’ claims have merit—which is

all that is required at this stage of the litigation. We conclude the trial court did not abuse its

discretion in denying Stacks’s motion to dismiss regarding the standard of care and Stacks’s alleged

breach of that standard.

       Stacks also attacks as conclusory Peacock’s opinions regarding any causal relationship

between Stacks’s breach of the standard of care and Ms. Jeffers’s death. He asserts Peacock uses

only vague conclusions with undefined terms and does not explain how the placement of Ms. Jeffers

in the observation unit compromised her care; how being in the observation unit caused the failures

to address her deteriorating condition; what testing or treatment should have been ordered to address

her condition: or what would have happened, in reasonable medical probability, upon a transfer to

the ICU.

       To satisfy the causation requirement, Peacock’s report must include a fair summary of his

opinion regarding the causal relationship between the breach of the standard of care and the injury,

harm, or damages claimed. Moselv, 249 S.W.3d at 780. Whether the causation statements in the




                                                 —7—
report appear conclusor when read in isolation is riot the test: rather, the trial court is entitled to

consider the causation statements in the context of the entire report. See Phiiipp i’. MCrccdv, 29$

SW,3d 682. 690 (Tex. App.San Antonio 2009. no pet.); see also Jlakhtari, 317 S.W.3d at 496.

        At oral submission, Stacks relied on Ortiz v. Patterson, 378 S.W.3d 667 (Tex. App.—Dallas

2012, no pet.), to argue that Peacock’s report is conelusory as to causation, The expert report in

()rtiz contained the following statement:

        I flailing to do the appropriate tests, make the correct diagnosis, and recognize the
        clinical severity and risks involved in not referring Mr. Ortiz for admission to a
        hospital did not meet the standard of care, and contributed to the premature death of
        this man. If Mr. Ortiz had received appropriate evaluation and treatment it is more
        likely than not that he would have survived this ordeal.

Id. at 673. We concluded this quoted language failed to explain how Mr. Ortiz’s condition worsened

from very ill to death as a result of the failure to conduct certain tests and admit him to a hospital.

hi. at 675. Peacock’s statements regarding causation are distinguishable, especially when read in the

context of his entire report.

        Peacock specifically describes the miscliagnosis of Ms. Jeffers’s condition as pneumonia,

when her condition did not support that diagnosis. He also focuses repeatedly on her admission to

the lowest level of care unit in the hospital, which compromised the type of care she needed and

contributed directly to the failure to address and treat her worsening condition. Peacock states that

based on Ms. Jeffers’s “profoundly hypoxic with clear lung sounds, and questionable finding on

radiographic investigation,” she should have been in a monitored environment such as the ICU.

Peacock opines that because of these failures, Ms. Jeffers’s hypoxia worsened, leading to

“profoundly inadequate oxygenation and associated cardiac arrest and death.”            Peacock thus

explained in his report how the failure to properly diagnose Ms. Jeffers’s condition and place her in

a closely monitored care unit allowed her hypoxia to worsen to the point that there was “no potential




                                                 —8—
kr salvageability” when she was finally transferred to the intensive care unit. Unlike ()utiZ, Peacock

identified the underlying facts and linked his conclusions to those facts. See Bowie Mern ‘1 Hasp. v.

Wri’lzt, 79 S.W.3d48, 52 (Tex. 2002); Bay/arMed. Ctr. at Waxahachie v. Wallace, 278 S.W3d 552,

561 (Tex. App.—DaIIaS 2009, no pet.).

        Whether statements in a report are conclusory depends on the unique facts addressed in the

report. Compare the facts here, for example, with the facts and report in fvJosely, in which we

concluded an expert report was not conclusory as to        causation.   In Mace/v. we determined that a

failure to detect   a   one-centimeter-sized nodule in an x-ray resulted in   a   six-centimeter-sized mass

in the lung that required surgery and chemotherapy. Mosely, 249 S.W.3d at 777. Had the mass been

detected earlier. less invasive treatment would have been necessary and the chance of survival would

have been greater with less invasive treatment. Id.       at   781. We concluded in that case that the

expert’s opinion as to causation was not mere conjecture and speculation because it supported its

statements with facts. Id. Similarly, we conclude the trial court did not abuse its discretion in

denying Stacks’s motion to dismiss regarding the causal relationship between his alleged breach of

the standard of care and Ms. Jeffers’s death. We overrule Stacks’s sole issue and affirm the trial

court’s order.




1 20942F.P05




                                                    —9—
                                        uf An.’ah
                                    Qtnirt

                        31111! Jjitrirt i.if xui d Lt11ni
                                        JUDGMENT
KEVIN STACKS. M.D., Appellant                        Appeal from the 397th District Court of
                                                     Grayson County, Texas, (Tr.Ct.No. CV1l-
No. 051 2-00942C V            V.                     1716).
                                                     Opinion delivered by Justice Murphy.
MOLLIE P\ND JAMES JEFFERS.                           Justices Francis and Evans participating.
Appel lees

        In accordance with this Court’s opmion of this date, the judgment of the trial court is
AFFIRMED. It is ORDERED that appellees Mollie and James Jeffers recover their costs of
this appeal from appellant Kevin Stacks, M.D.


Judgment entered March 8, 2013.



                                                            7            1
                                                            -


                                                               /
                                                     MARY MURPHY
                                                     JUSTICE
