                               Fourth Court of Appeals
                                       San Antonio, Texas
                                  MEMORANDUM OPINION

                                         No. 04-19-00238-CV

                         PREMIEANT INCORPORATED d/b/a Premieant,
                                       Appellant

                                                   v.

                     Constance SNOWDEN, as next Friend and Legal Guardian of
                             Annette Snowden, an Incapacitated Person,
                                            Appellee

                      From the 224th Judicial District Court, Bexar County, Texas
                                    Trial Court No. 2018CI14231
                            Honorable Mary Lou Alvarez, Judge Presiding

Opinion by:       Liza A. Rodriguez, Justice

Sitting:          Rebeca C. Martinez, Justice
                  Luz Elena D. Chapa, Justice
                  Liza A. Rodriguez, Justice

Delivered and Filed: March 11, 2020

AFFIRMED

           Premieant, Inc. d/b/a Premieant (“Premieant”) appeals the trial court’s interlocutory order

overruling its objections to two expert reports and denying its motion to dismiss this health care

liability lawsuit. See TEX. CIV. PRAC. & REM. CODE ANN. § 74.351(b); see id. § 51.014(a)(9). We

affirm the trial court’s order denying Premieant’s motion to dismiss and remand the case to the

trial court for further proceedings.
                                                                                   04-19-00238-CV


                                            BACKGROUND

       Constance Snowden brought this health care liability lawsuit against Premieant and

Arnold’s Angels Day Habilitation Center (“Arnold’s Angels”) as the next friend and legal guardian

of her sister Annette Snowden, an incapacitated person. Annette Snowden is a 59-year-old woman

with severe cognitive disabilities who is mute and blind and confined to a wheelchair. She resides

at Carriage House, which is a long-term care group home for mentally disabled adults. Carriage

House is owned and operated by Premieant as a “home and community-based services program”

which is a joint federal and state-funded Medicaid program under the Social Security Act.

       Beginning in August 2015, Carriage House staff began taking Snowden to the Arnold’s

Angels’ facility during business hours so she could participate in its day-habilitation program

(“day-hab”) for disabled adults. As of May 2016, based on an individual assessment, Snowden’s

care plan at Carriage House required constant “eyes-on” supervision, specifically stating that she

“must be within eye sight of staff at all times as she is unable to move from harm’s way should

other individuals come toward her to do her harm.” Premieant does not dispute the constant “eyes-

on” requirement of Snowden’s care plan.

       On November 4, 2016, Carriage House staff transported Snowden to Arnold’s Angels’ off-

site facility for day-hab. Snowden contends the Carriage House staff failed to inform Arnold’s

Angels staff of the requirement in her care plan that she be kept under constant “eyes-on”

supervision before leaving her at the Arnold’s Angels facility. At approximately 10:00 a.m., a

staff member of Arnold’s Angels left Snowden unsupervised in the same room with a mentally-

challenged male who sexually assaulted Snowden. Snowden was taken to the hospital and treated

as a victim of sexual assault. Adult Protective Services and the Bexar County Sheriff’s Office

conducted a sexual assault investigation.




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                                                                                                     04-19-00238-CV


         In the lawsuit filed on her behalf, Snowden asserts that Carriage House/Premieant was

negligent in: (1) failing to ensure its resident’s safety; (2) failing to promote a safe environment

for its resident, including but not limited to an environment free of sexual assault; and (3) failing

to protect its resident from facility acquired injuries, including but not limited to sexual assault.1

Snowden timely served Premieant with the expert reports and curricula vitae of David Seignious,

M.D., a physician specializing in geriatrics and internal medicine, and John C. Hyde II, Ph.D., a

health care administrator and consultant. Premieant objected to both expert reports and to Dr.

Hyde’s qualifications on standard of care and moved for dismissal of the case. In response,

Snowden served Premieant with amended expert reports by Dr. Seignious and Dr. Hyde.

Premieant filed similar objections to the sufficiency of the amended reports and to Dr. Hyde’s

qualifications, along with a motion to dismiss.                 After a hearing, the trial court overruled

Premieant’s objections and denied its motion to dismiss. Premieant appealed.

                                                     ANALYSIS

         Chapter 74 of the Texas Civil Practice and Remedies Code requires a plaintiff bringing a

healthcare liability suit against a health care provider 2 to file and serve an expert report providing

a fair summary of the expert’s opinion with respect to each element of the claim. TEX. CIV. PRAC.

& REM. CODE ANN. § 74.351(a) (also requiring the expert’s curriculum vitae); id. § 74.351(r)(6).

To be adequate, a report must fairly summarize the expert’s opinions regarding: the applicable

standard of care; (2) the manner in which the care rendered by the healthcare provider failed to


1
  Snowden sued Arnold’s Angels for the same negligent omissions, as well as failing to properly train its employees
regarding appropriate supervision and failing to enforce policies and procedures regarding resident protection. The
record before us does not reflect that Arnold’s Angels has filed an answer in the case.
2
  Premieant concedes it is a health care institution, as is Carriage House, and therefore a health care provider within
the meaning of the statute. See TEX. CIV. PRAC. & REM. CODE § 74.001(a)(11)(I) (definition of “health care
institution” includes “a home and community-based services program for persons with mental retardation adopted in
accordance with Section 1915(c) of the federal Social Security Act;” see also id. § 74.001(a)(12)(A)(vii) (definition
of “health care provider” includes a health care institution).


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                                                                                       04-19-00238-CV


meet that standard; and (3) the causal relationship between that failure and the alleged harm. Id.

§ 74.351(r)(6). Reports of separate experts may be submitted on the different issues. Id.

§ 74.351(i). An expert report required by section 74.351 must constitute an objective good faith

effort to comply with the statutory requirements and may not be merely conclusory.                 Id.

§ 74.351(l); Am. Transitional Care Ctrs. of Texas, Inc. v. Palacios, 46 S.W.3d 873, 878-79 (Tex.

2001). “No particular words or formality are required, but bare conclusions will not suffice” and

“[t]he report must address all the elements, and omissions may not be supplied by inference.”

Scoresby v. Santillan, 346 S.W.3d 546, 556 (Tex. 2011). Courts review the sufficiency of the

expert report by looking within the four corners of the report. Palacios, 46 S.W.3d at 878. To

evidence a good faith effort, the report must contain sufficient information to serve two purposes:

(1) to inform the defendant of the specific conduct called into question; and (2) to provide the trial

court with a basis to conclude the claims have merit, i.e., are not frivolous. Id. at 879; Scoresby,

346 S.W.3d at 552 (fundamental goal of the statute is to weed out frivolous lawsuits early and

thereby reduce the costs of health care).

       The preliminary expert report need not meet the evidentiary standards for admission at trial

or for summary judgment evidence in order to constitute a good faith effort and need not marshal

all the plaintiff’s evidence. Palacios, 46 S.W.3d at 878-79. “While the plaintiff is not required to

prove her claim with the expert report, the report must show that a qualified expert is of the opinion

she can.” Columbia Valley Healthcare Sys., L.P. v. Zamarripa, 526 S.W.3d 453, 460 (Tex. 2017).

A report meets the minimum requirements under the statute if it contains the opinion of an

individual with expertise that the claim has merit and if the defendant’s conduct is implicated.

Scoresby, 346 S.W.3d at 556. The statute provides the plaintiff an opportunity to cure an expert’s

lack of relevant qualifications and an opinion’s inadequacies as long as the opinion is not “utterly

devoid of substance.” Id. at 549 (the lenient standard assures a claimant of a fair opportunity to


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                                                                                                       04-19-00238-CV


demonstrate her claim is not frivolous); TEX. CIV. PRAC. & REM. CODE ANN. § 74.351(c) (trial

court may grant one 30-day extension to cure a deficiency). An appellate court reviews the trial

court’s ruling on the adequacy of an expert report and denial of a motion to dismiss for an abuse

of discretion. Palacios, 46 S.W.3d at 875; Bowie Mem’l Hosp. v. Wright, 79 S.W.3d 48, 52 (Tex.

2002) (trial court abuses its discretion when it acts arbitrarily or unreasonably and without

reference to any guiding rules and principles).

         On appeal, Premieant asserts the trial court abused its discretion in overruling its objections

to Dr. Hyde’s amended report because he is unqualified to opine on the standard of care applicable

to a community-based services program such as Carriage House and on the purported breach of

that standard in this case. As to Dr. Seignious’s amended report, Premieant argues its objection to

his opinion on causation should have been sustained because it is predicated on Dr. Hyde’s

“unqualified and vague opinions as to standard of care and breach” and is speculative and

conclusory.

         Dr. Hyde’s Qualifications to Opine on Standard of Care and Breach

         Premieant argues Dr. Hyde is not qualified to opine on the standard of care applicable to

Carriage House, and whether it was breached, because his expert report and curriculum vitae do

not show that he has direct experience administering or supervising employees in a home and

community-based services (“HCBS”) program. Premieant explains that HCBS waiver programs 3

provide opportunities for Medicaid beneficiaries to receive long-term care services and support in


3
  “Home and Community Based Services (HCBS) first became available in 1983 when Congress added section
1915(c) to the Social Security Act, giving States the option to receive a waiver of Medicaid rules governing
institutional care.” See https://www.medicaid.gov/medicaid/home-community-based-services/home-community-
based-services-authorities/index.html. An HCBS program must: (1) demonstrate that the cost of providing waiver
services will not exceed the cost of providing such services in an institution; (2) ensure the protection of the person’s
health and welfare; (3) provide adequate and reasonable provider standards to meet the needs of the target population;
and (4) ensure that services follow an individualized care plan. See https://www.medicaid.gov/medicaid/home-
community-based-services/home-community-based-services-authorities/home-community-based-services-
1915c/index.html.


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                                                                                                      04-19-00238-CV


their own home or community instead of an institutional setting and serve people with intellectual

or developmental disabilities, physical disabilities, and/or mental illnesses. Premieant asserts that

HCBS programs are unique in that the providers, like Carriage House and Arnold’s Angels, receive

their funding from the government on a “fee-for-service” basis; the providers are paid for each

service they supply to the patient. Carriage House provided Snowden with living accommodations

in a small group home and assistance with the activities of daily living, while day-hab and other

non-medical and medical services were supplied by other HCBS providers. Snowden responds

that regardless of how it received funding or payment for the residential service it provided,

Carriage House was still subject to the same standard of care as any other long-term care group

home or living facility; at a minimum, that standard of care included a duty to protect Snowden

from harm or injury, i.e., sexual assault.

         Section 74.351(r)(5) defines who qualifies as an “expert” for purposes of providing an

expert report in a health care liability suit. TEX. CIV. PRAC. & REM. CODE ANN. § 74.351(r)(5).

To qualify to give an opinion regarding whether a non-physician health care provider departed

from the accepted standard of care, the person must meet the requirements of section 74.402. Id.

§ 74.351(r)(5)(B). Sections 74.402(b)(2) and (b)(3) provide that a person may qualify as an expert

on the issue of whether a health care provider 4 departed from the accepted standards of care only

if the person:




4
  By its terms, subsection (1) of section 74.402(b) only applies if the defendant health care provider is an individual.
See TEX. CIV. PRAC. & REM. CODE ANN. § 74.402(b)(1) (requiring that the purported expert is “practicing health care
in a field of practice that involves the same type of care or treatment as that delivered by the defendant health care
provider, if the defendant health care provider is an individual, at the time the testimony is given or was practicing
that type of health care at the time the claim arose) (emphasis added); see also Gracy Woods I Nursing Home v.
Mahan, 520 S.W.3d 171, 183 n.56 (Tex. App.—Austin 2017, no pet.) (section 74.402(b)(1) does not apply if the
“defendant health care provider” is not an individual); Northeast Med. Ctr., L.P. v. Crooks, No. 06-05-00149-CV,
2006 WL 1358361, at *4 (Tex. App.—Texarkana May 19, 2006, no pet.). (mem. op.) (section 74.402(b)(1) does not
apply to entities); Doctors Hosp. v. Hernandez, No. 01-10-00270-CV, 2010 WL 4121678, at *5 (Tex. App.—Houston
[1st Dist.] Oct. 21, 2010, no pet.) (mem. op.) (same).


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                                                                                     04-19-00238-CV


       (2) has knowledge of accepted standards of care for health care providers for the
       diagnosis, care, or treatment of the illness, injury, or condition involved in the
       claim; and

       (3) is qualified on the basis of training or experience to offer an expert opinion
       regarding those accepted standards of health care.

Id. § 74.402(b)(2), (3). The person’s qualifications must appear in the report or curriculum vitae

and cannot be inferred. Savaseniorcare Administrative Services, L.L.C. v. Cantu, No. 04-14-

00329-CV, 2014 WL 5352093, at *2 (Tex. App.—San Antonio Oct. 22, 2014, no pet.) (mem. op.).

       Dr. Hyde’s report and curriculum vitae state he has a Ph.D. in Healthcare

Administration/Research and Organizational Studies from the University of Alabama at

Birmingham and currently teaches Health Care Administration classes at the masters level at

George Washington University on an adjunct basis and works as an independent health care

consultant to various hospitals, healthcare organizations, healthcare trade/professional

associations, and other healthcare related entities. Before obtaining his Ph.D. in 1994, he earned

a B.S. in both Biology and Health Care Administration from Western Kentucky University and a

M.S.H.A. in Health Care Administration from Trinity University. His professional experience

includes working at the Medical Center at Bowling Green, Kentucky as Assistant Administrator,

Associate Administrator, and Vice President; serving as the Administrator/CEO of Taylor County

Hospital in Campbellsville, Kentucky; and serving as the CHC Vice President/Corporate Officer

for Commonwealth Health Corporation in Bowling Green. Dr. Hyde also taught health care

administration at the masters level at the University of Mississippi Medical Center for 28 years.

In his additional capacity as an independent health care consultant since 1992, he has provided

“advice to healthcare delivery organizations . . . regarding issues of administration . . . employee

management . . . clinical and management outcome, as well as other healthcare needs.” Dr. Hyde

summarizes his professional experience as involving many areas, including but not limited to



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                                                                                     04-19-00238-CV


“employee management, policy-making, training programs, staffing, quality control, practice

guidelines, and ethical issues.”

       After describing his education, employment history, and professional experience, Dr.

Hyde’s report states that, based on his experience, he is familiar with the accepted standards of

care applicable in Snowden’s case because he has supervised “employees, including nurses and

healthcare personnel, as well as care-giving personnel, like the ones employed by Premieant at

Carriage House” and has “worked with other healthcare administrators, clinicians, and healthcare

personnel to develop policies, guidelines, and standards that are applied to healthcare personnel in

the caregiving situations [which] includes facilities like Carriage House that were created through

government programs, including home and community-based services waiver programs.” In a

footnote, Dr. Hyde explains his knowledge of such programs, stating that, “Home and Community-

Based Services (HCS) is a Medicaid waiver program that supplies services and supports to Texans

with an intellectual disability or a related condition so that they can live in the community. HCS

provides a number of services, including residential services like a long-term care group home

(like Carriage House), nursing/therapy services, and day-habilitation opportunities (like Arnold’s

Angels).” He also notes that “[t]he Texas Department of Aging and Disability Services (DADS)

contracts with public and private entities (like Premieant) to provide HCS services, and DADS is

responsible to monitor these providers to ensure quality.”

       Dr. Hyde’s report goes on to state,

       Regardless of how Carriage House receives funding through the government, the
       reason that Ms. Snowden was under the care of the Premieant staff at Carriage
       House was because she had severe mental and functional disabilities. Premieant
       staff provided long-term care (including basic assistance with activities of daily
       living, eating, grooming, etc.) to Ms. Snowden while she was living at Carriage
       House. I am familiar with the standard of care required to provide services to a
       resident like Ms. Snowden at a facility like Carriage House. Based on my
       knowledge, training and experience in this setting, I am familiar with the healthcare
       policies, guidelines, and standards of care applicable to healthcare personnel


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                                                                                         04-19-00238-CV


        providing care at facilities like Carriage House . . . to individuals like Ms. Snowden.
        Not only am I knowledgeable about what the standard of care is, but also how the
        standard of care may be breached.

        (emphasis added).

        The premise of all of Premieant’s challenges to Dr. Hyde’s qualifications is that he lacks

the knowledge, training, and practice experience necessary to offer an opinion on the “unique”

standard of care applicable to Carriage House, i.e., a long-term care group home for mentally

disabled adults that is operated as an HCBS provider.

        Training and Experience

        Premieant first argues that Dr. Hyde’s report and curriculum vitae do not establish that he

has training or experience with the exact “same type of facility” that is at issue and therefore he is

not qualified to opine on the applicable standard of care under section 74.402(b)(3). Premieant

points out that his curriculum vitae does not list employment with a healthcare provider operating

under an HCBS program, particularly an HCBS long-term care facility; rather, it reflects his

employment at medical centers and hospitals.            Premieant asserts Dr. Hyde’s experience is

“untethered from the very type of facility at issue — a community-based waiver program — or the

specific issue relevant to the case.” For that reason, it contends the trial court erred by inferring

the necessary experience with an HCBS provider.

        In determining whether a person is qualified “on the basis of training and experience” under

subsection (b)(3), courts consider whether at the time the claim arose or at the time the testimony

is given, the person (i) is certified by a licensing agency of one or more states or a national

professional certifying agency, or has other substantial training or experience, in the area of health

care relevant to the claim, and (ii) is actively practicing health care in rendering health care services

relevant to the claim. TEX. CIV. PRAC. & REM. CODE ANN. § 74.402(c). The statutory definition

of “practicing health care” includes training health care providers in the same field as the defendant


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                                                                                      04-19-00238-CV


health care provider at an accredited educational institution or serving as a consulting health care

provider and being licensed, certified, or registered in the same field as the defendant health care

provider. Id. § 74.402(a). Both facets of the inquiry required by subsection (c) focus on the area

of health care “relevant to the claim.” See id. § 74.402(c).

       Here, the underlying nature of the claim is that while Snowden was still in the custody and

control of Carriage House staff they failed to inform Arnold’s Angels staff of the “constant eyes-

on” requirement of Snowden’s individual care plan that was deemed necessary to protect her from

danger and injury. Snowden’s petition alleges Carriage House failed to: “ensure its resident’s

safety;” “promote a safe environment . . . free of sexual assault;” and “protect its resident from

facility acquired injuries including . . . sexual assault.” Thus, at its heart Snowden’s claim is a

safety claim directly related to health care. See Omaha Healthcare Ctr., LLC v. Johnson, 344

S.W.3d 392, 394 (Tex. 2011) (explaining that a safety claim is a “healthcare liability claim” subject

to the expert report requirement “if it is for a departure from accepted standards of safety directly

related to ‘any act . . . that should have been performed or furnished by [the healthcare provider]

to, or on behalf of [the plaintiff] during [his/her] medical care, treatment, or confinement.’”). In

Omaha, the court characterized the services a nursing home provides to its residents as including

meeting the residents’ “fundamental needs,” which encompasses protecting the health and safety

of the residents. Id. at 394-95 (defining “safety” as “being ‘untouched by danger; not exposed to

danger; secure from danger, harm or loss’”). Similarly, as stated in footnote three of this opinion,

federal law requires an HCBS program to “ensure the protection of the person’s health and

welfare.” The regulations governing HCBS providers in Texas specifically describe the provider’s

duty to keep the participant safe, requiring each provider to “ensure that each individual’s

humanity and dignity is respected” and to “protect and promote the . . . right[] of the individual

. . . to live free from abuse, neglect, or exploitation in a healthful, comfortable, and safe


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                                                                                        04-19-00238-CV


environment.” See 40 TEX. ADMIN. CODE §§ 9.172, 9.173(b)(26); see id. § 9.153(1) (defining

“abuse” to include physical abuse, sexual abuse, and emotional abuse), (68) (defining “neglect” as

a negligent act or omission that caused, or placed an individual at risk of, physical or emotional

injury).

           Dr. Hyde’s report and curriculum vitae show he is actively “practicing healthcare” by

teaching health care administration at an accredited educational institution and serving as a

consultant to different types of health care providers, and has substantial training and experience

practicing healthcare administration in an area of health care “relevant to the claim.” See TEX.

CIV. PRAC. & REM. CODE ANN. § 74.402(b)(3), (c). He states that he has “overseen employees,

including nurses and healthcare personnel, as well as care-giving personnel, like the ones

employed by Premieant at Carriage House” and “develop[ed] policies, guidelines, and standards

that are applied to healthcare personnel in the caregiving situations,” including at “facilities like

Carriage House that were created through government programs, including home and community-

based services waiver programs.” In discussing a person like Snowden’s right to fundamental

safety in such facilities, which she claims was violated, Dr. Hyde explains that,

           [l]ike all medical and long-term care facilities, including HCS waiver program
           facilities like Carriage House group home, are required [sic] to comply with certain
           standards, codes, and guidelines that aim to, among other things, ensure patient
           safety, promote a safe environment to the patient, and to protect a patient from
           facility acquired injuries. Indeed, the standard of care mandates that when a patient
           is in the care of facilities like these, the patient may never be sexually assaulted
           and/or suffer a facility acquired injury.

Dr. Hyde cites the Patient’s Bill of Rights and the Joint Commission as sources of the fundamental

right of a patient “to be free from neglect, exploitation, and verbal, mental, physical, and sexual

abuse.” Premieant challenges his experience with that standard as inapplicable to an HCBS

program, but it is the same standard quoted above from the Texas regulations governing HCBS

programs in the state.


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                                                                                        04-19-00238-CV


        Premieant cites no authority stating that a section 74.351 expert must have specific

experience working directly with an HCBS program to qualify to opine on the applicable standard

of care, particularly when the standard at issue is the fundamental right of a resident or participant

to be safe from danger and injury, i.e., in this case sexual abuse. Looking at the four corners of

Dr. Hyde’s report, it demonstrates that he is qualified on the basis of training and experience to

offer an expert opinion regarding the standard of care related to protection from sexual abuse.

        Knowledge of Applicable Standard of Care

        Premieant also argues Dr. Hyde’s report and curriculum vitae do not establish that he is

knowledgeable of the unique standards of care applicable to Carriage House as an HCBS provider.

See id. § 74.402(b)(2). Premieant challenges Dr. Hyde’s report as misapplying the standards of

care applicable to a generic long-term care facility, such as a nursing home, to Carriage House.

Premieant asserts that HCBS programs are “fundamentally unique and disparate” from nursing

homes and other long-term care facilities in that they are government programs funded on a fee-

for-service basis. As such, each provider supplies only those services subject to reimbursement

under the state regulations. The service provided by Carriage House, for which it is reimbursed

under the HCBS program, is a long-term care group residence for eligible disabled adults like

Snowden. Premieant stresses that Carriage House does not provide any medical, nursing, or

therapy services; it provides residential assistance and support for its residents’ basic needs of daily

living. According to Premieant, the only role of Carriage House was to “provide[] a safe residence

to Annette Snowden [while] certain habilitation and/or therapy happened off-site via third-party

providers” like Arnold’s Angels. Premieant stresses it was not responsible for the care its resident

received at an off-site provider like Arnold’s Angels. Finally, Premieant states that Carriage House

residents’ individual care plans are “written and overseen” by an HCBS service coordinator with

the State, further making Carriage House unique.


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                                                                                       04-19-00238-CV


       In essence, Premieant contends that because Carriage House is an HCBS provider, the

standards of care for other types of long-term care residential facilities do not apply to it. Not only

does Premieant fail to provide us with any legal authority to support application of a different

standard of care to a long-term care residence operating as an HCBS provider, it also fails to

explain what alternative standard of care it contends does apply to Carriage House.               The

characteristics cited by Premieant as setting Carriage House apart from the standards of care

applicable to nursing homes and other long-term care residential facilities boil down to the funding

structure for the scope of services provided. Regardless of the source and structure of its funding,

Carriage House provided a long-term care residence for Snowden and the requirements in her

individual care plan remained. Further, for purposes of the underlying claim, it is not relevant

whether it was Premieant or the State coordinator who created or modified Snowden’s individual

care plan. Premieant agrees that the “constant eyes-on” requirement was present in her care plan

as of May 2016, several months before the November 2016 sexual assault. Snowden’s main claim

is based on Carriage House staff’s failure to communicate that critical safety requirement of her

care plan before Snowden was transferred into the care and custody of Arnold’s Angels; the source

of the “constant eyes-on” requirement is not relevant to the current issue.

       The statute expressly ties the purported expert’s knowledge of the applicable standard of

care to the “injury or condition involved in the claim.” Id. § 74.402(b)(2). Here, the injury and

condition involved in Snowden’s negligence claim is a sexual assault and the resulting physical

and emotional injuries. Dr. Hyde’s report explains how he acquired knowledge of the standards

of care requiring protection of a patient or resident from danger or injury, including sexual abuse,

in a long-term care facility. See Savaseniorcare, 2014 WL 5352093, at *2 (report must establish

the purported expert has expertise regarding “the specific issue” before the court to qualify to give

an opinion on “that particular subject”). The qualification analysis “focuses on ‘the very matter’


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                                                                                                      04-19-00238-CV


on which the expert is to give an opinion. Id. (quoting Broders v. Heise, 924 S.W.2d 148, 153

(Tex. 1996)); see Martinez-Partido v. Methodist Specialty & Transplant Hosp., 327 S.W.3d 274,

278 (Tex. App.—San Antonio 2010, no pet.); see also Ibrahim v. Gilbride, No. 14-09-00938-CV,

2010 WL 5064430, at *6 (Tex. App.—Houston [14th Dist.] Dec. 9, 2010, no pet.) (mem. op.)

(expert must describe how he acquired sufficient knowledge, skill, experience, training, or

education to opine on the applicable standard of care). Dr. Hyde specifically states that he has

“worked in” and “overseen employees” including “care-giving personnel, like the ones employed

by Premieant at Carriage House and by Arnold’s Angels.” He further states he has “develop[ed]

policies, guidelines, and standards” that are applied to “healthcare personnel in the caregiving

situations” which includes “facilities like Carriage House” that are operated as “home and

community-based services waiver programs.” In addition, Dr. Hyde states that, based on his

“knowledge, training and experience in this setting,” he is familiar with the standard of care

“required to provide services to a resident like Ms. Snowden at a facility like Carriage House”

(emphasis added). Specifically, he is familiar with the “healthcare policies, guidelines, and

standards of care applicable to healthcare personnel providing care at facilities like Carriage House

and Arnold’s Angels to individuals like Ms. Snowden” and “how the standard of care can be

breached.” 5

         An expert’s statement of his own knowledge of the standards of care applicable to the

healthcare provider in a similar situation may be sufficient to establish his qualifications under

section 74.402(b)(2) if the other statutory requirements are met.                      See Baylor Med. Ctr. at


5
  Premieant relies heavily on Hickory Trail Hosp., L.P. v. Webb, No. 05-16-00663-CV, 2017 WL 677828 (Tex. App.—
Dallas Feb. 21, 2017, no pet.) (mem. op.), in arguing that Snowden failed to demonstrate Dr. Hyde’s qualifications to
opine on the standard of care applicable to Carriage House and whether it was breached. Webb is distinguishable,
however, because there the report failed to state the purported expert ever worked with or supervised employees at, or
formulated policies and procedures at, the specific type of health care provider involved in the claim. See id., at *5
(report also failed to state that expert had knowledge of the standard of care applicable to the specific type of health
care provider involved in the claim).


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Waxahachie v. Wallace, 278 S.W.3d 552, 559 (Tex. App.—Dallas 2009, no pet.). A trial court

does not abuse its discretion in accepting the expert’s own statement of his familiarity with the

applicable standard of care when the report explains how the expert acquired such knowledge. See

id.; see also Children’s Med. Ctr. of Dallas v. Durham, 402 S.W.3d 391, 399 (Tex. App.—Dallas

2013, no pet.). Dr. Hyde’s report adequately established his knowledge of the accepted standard

of care for healthcare providers like Premieant and Carriage House with respect to the injury

claimed by Snowden. 6

         In sum, we conclude that Snowden met the statutory requirements and produced an expert

report and curriculum vitae that established Dr. Hyde’s qualifications to opine on the applicable

standard of care and its breach under sections 74.402(b)(2) and (3) and we hold the trial court did

not abuse its discretion in denying Premieant’s objections to his qualifications. To the extent

Premieant claims Dr. Hyde’s report does not constitute an objective good faith effort to comply

with the statutory requirements, we disagree and hold that, as discussed above, his report fairly

summarizes his opinions on standard of care and breach and informs Premieant of the specific

conduct or omission called into question in Snowden’s claim. The preliminary expert report shows

that a qualified expert holds the opinion that Snowden can prove her claim and her lawsuit is not

frivolous. See Palacios, 46 S.W.3d at 879.

         Dr. Seignious’s Amended Report

         Next, Premieant argues the trial court abused its discretion by overruling its objections to

Dr. Seignious’s report on causation. Premieant asserts his opinion on proximate cause is deficient

because it is predicated on Dr. Hyde’s opinions on the applicable standard of care and Premieant’s



6
 Premieant also asserts Dr. Hyde is unqualified to opine on “the role of a [HCBS provider] in directing the supervision
of a resident while that resident is under the care, custody and supervision of another health care provider.” We
disagree that Dr. Hyde’s report can be fairly characterized as containing such an opinion.


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breach of the standard by failing to communicate the “eyes-on” safety requirement. Premieant

also argues Dr. Seignious’s opinion is speculative and conclusory as to how its breach proximately

caused Snowden’s injury. See TEX. CIV. PRAC. & REM. CODE ANN. § 74.351(r)(6) (expert report

must contain information concerning the expert’s opinion on the causal relationship between the

alleged breach and the injury, harm, or damages claimed).

        Having determined that Dr. Hyde was qualified to opine on the applicable standard of care

and its breach in this case, we hold that the trial court did not abuse its discretion in overruling

Premieant’s objection to Dr. Seignious’s report on that basis.

        We next consider whether Dr. Seignious’s report constitutes an objective good faith effort

to state how proximate cause will be proven. See Zamarripa, 526 S.W.3d at 460. To be a fair

summary, the expert report must sufficiently “explain, based on facts set out in the report, how and

why the breach caused the injury.” Id.; Van Ness v. ETMC First Physicians, 461 S.W.3d 140, 142

(Tex. 2015). “Proximate cause has two components: (1) foreseeability and (2) cause-in-fact.”

Zamarripa, 526 S.W.3d at 460 (quoting Rodriguez-Escobar v. Goss, 392 S.W.3d 109, 113 (Tex.

2013)). The foreseeability prong requires only that the defendant should have anticipated that its

negligent act or omission would create danger or harm for others; it does not require the defendant

to have actually anticipated the precise manner in which the injury would occur. Travis v. City of

Mesquite, 830 S.W.2d 94, 98 (Tex. 1992). “For a negligent act or omission to have been a cause-

in-fact of the harm, the act or omission must have been a substantial factor in bringing about the

harm” such that “but for the act or omission . . . the harm would not have occurred.” Zamarripa,

526 S.W.3d at 460 (internal citation omitted).

        Merely “incanting” the words proximate cause, foreseeability, or cause-in-fact will not

suffice; an expert’s simple ipse dixit or “because I said so” is insufficient to establish a matter. Id.;

Jelinek v. Casas, 328 S.W.3d 526, 539-40 (Tex. 2010) (expert cannot simply opine that the breach


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caused the injury, but must “explain, to a reasonable degree, how and why the breach caused the

injury based on the facts presented”). Further, the report need not use the exact legal terms as long

as it explains the basis of the expert’s opinions by linking his conclusions to the facts. Zamarripa,

526 S.W.3d at 460. “While a fair summary is something less than all the evidence necessary to

establish causation at trial, even a fair summary must contain sufficiently specific information to

demonstrate causation beyond mere conjecture.” Savaseniorcare, 2014 WL 5352093, at *4;

Hutchinson v. Montemayor, 144 S.W.3d 614, 618 (Tex. App.—San Antonio 2004, no pet.).

       Premieant asserts that Dr. Seignious’s report fails to explain how Premieant’s failure to

inform Arnold’s Angels of the requirement for “constant eyes-on” supervision, i.e., its breach of

the standard of care, was a substantial factor in causing Snowden’s sexual assault, “much less

cause-in-fact.” In the discussion in his report, Dr. Seignious first refers to Dr. Hyde’s opinion that,

“Premieant staff breached the standard of care in failing to in-service the Arnold’s Angels staff on

Carriage House’s own May 2016 assessment that Ms. Snowden ‘must be within eye sight of staff

at all times as she is unable to move from harm’s way should other individuals come toward her

to do her harm.’” He then opines, “[h]ad Premeiant staff done the required in-service at any point

prior to the November 2016 sexual assault, Arnold’s Angels staff would have been aware of the

need to always have Ms. Snowden within eye sight of all staff. Had Ms. Snowden stayed in the

line of Arnold’s Angels’ staff’s eye sight, she would not have been left alone with another male

resident . . . .” His report continues, “Arnold’s Angels staff would have had the opportunity to

intervene when they saw a male resident moving towards Ms. Snowden and certainly when he

began assaulting her.” Dr. Seignious therefore concludes, “Ms. Snowden would not have been

sexually assaulted during the time frame when Arnold’s Angel’s [sic] staff exited the room, leaving

[the male resident] and Ms. Snowden unsupervised.” Dr. Seignious’s report sufficiently explains

“how and why” Premieant’s breach of the standard of care regarding communicating Snowden’s


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need for constant supervision was a cause-in-fact of her injury — if informed of the need for

constant supervision, Arnold’s Angels’ staff would have been aware of the “eyes-on” requirement

of Snowden’s care plan, would not have left her unattended with a male resident, and would have

been able to intervene and prevent the sexual assault. See Zamarripa, 526 S.W.3d at 460 (expert

report must sufficiently explain how and why the breach caused the injury based on the facts).

       Premieant argues Dr. Seignious’s explanation of the causal link improperly assumes

Arnold’s Angels’ staff would have followed the constant supervision requirement if informed. An

injury may have more than one proximate cause, and the defendant’s negligence must only be a

substantial factor in causing the injury; it need not be the immediate cause. Windrum v. Kareh,

581 S.W.3d 761, 777-78 (Tex. 2019). Further, “[a]n expert may also establish causation by

explaining a chain of events that begins with a defendant healthcare provider’s negligence and

ends in injury to the plaintiff.” Christus Spohn Health System Corp. v. Hinojosa, No. 04-16-

00288-CV, 2016 WL 7383819, at *6 (Tex. App.—San Antonio Dec. 21, 2016, no pet.) (citing

McKellar v. Cervantes, 367 S.W.3d 478, 485 (Tex. App.—Texarkana 2012, no pet.)). The expert

report is not required to prove the defendant’s liability, only to provide notice of what conduct

forms the basis of the plaintiff’s claims. Regent Care Ctr. of Laredo, L.P. v. Abrego, No. 04-07-

00320-CV, 2007 WL 3087211, at *4 (Tex. App.—San Antonio Oct. 24, 2007, pet. denied);

Longino v. Crosswhite, 183 S.W.3d 913, 916 (Tex. App.—Texarkana 2006, no pet.).                  Dr.

Seignious’s report makes clear that Premieant’s failure to communicate the “eyes-on” requirement

started the causal chain of events that ended in the sexual assault. The argument that Arnold’s

Angels’ staff might have failed to follow the constant supervision requirement is an argument for

trial and not part of the court’s assessment of the sufficiency of a preliminary expert report on

causation. See Palacios, 46 S.W.3d at 879.




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        Premieant also contends that Dr. Seignious fails to explain how a sexual assault at an off-

site facility where Snowden was outside Premieant’s custody and control was foreseeable to

Premieant. However, Premieant’s argument is based on its ability to foresee the likelihood of a

sexual assault in particular, not the foreseeability of the likelihood of a physical injury to Snowden

if left unsupervised. While Dr. Seignious’s report does not use the term “foreseeable,” it explains

the facts that show Premieant’s actual knowledge that Snowden was vulnerable to danger or injury

if left unsupervised based on its own assessment months prior to the sexual assault, finding that

she was “unable to move [away] from harm’s way should other individuals come toward her to

do her harm.” (emphasis added). Thus, Dr. Seignious’s report explains the facts showing that

Premieant did indeed foresee a likelihood of harm to Snowden from other individuals if she was

left unattended.

        Finally, Premieant challenges as speculative Dr. Seignious’s additional opinion that if

Premieant had adequately screened Arnold’s Angels and done its due diligence, it would have

realized it was an unsafe facility and would not have left Snowden there and she would not have

been sexually assaulted. We need not address this alternate theory of liability because the expert

report need only establish that one theory of liability has merit. See Certified EMS, Inc. v. Potts,

392 S.W.3d 625, 629-30 (Tex. 2013) (plaintiff’s expert report need only adequately address one

theory of liability and then plaintiff may proceed with her whole case).

        We conclude that Dr. Seignious’s report constitutes a fair summary of his opinion on

causation and harm 7 in that it factually explains the causal relationship between the alleged breach

of the standard of care by Carriage House staff and Snowden’s sexual assault.




7
  Dr. Seignious’s report also explains how the sexual assault caused physical and emotional harm to Snowden.
Premieant does not challenge the sufficiency of the report as to the injuries and harm suffered by Snowden.


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                                          CONCLUSION

       Based on the foregoing analysis, we conclude the trial court did not abuse its discretion in

overruling Premieant’s objections to the expert reports produced by Snowden. Accordingly, we

affirm the trial court’s order denying Premieant’s motion to dismiss the case and remand to the

trial court for further proceedings.

                                                  Liza A. Rodriguez, Justice




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