Opinion issued August 23, 2018




                                      In The

                              Court of Appeals
                                     For The

                          First District of Texas
                            ————————————
                              NO. 01-17-00742-CV
                           ———————————
    NANCY CARMEN CURNEL AND RONALD CURNEL, Appellants
                                        V.
THE METHODIST HOSPITAL, TMH HEALTH CARE GROUP, OBIOHA
EMENANJO, R.N., LIQUN JIANG, R.N., AND MOSHIR BANSUAN, R.N.,
                          Appellees


                    On Appeal from the 55th District Court
                            Harris County, Texas
                      Trial Court Case No. 2016-36453


                         MEMORANDUM OPINION

      This is an interlocutory appeal from the trial court’s order dismissing health

care liability claims for failure to serve adequate expert reports. See TEX. CIV.

PRAC. & REM. CODE §§ 51.014(a)(9), 74.351(a), (b).
      Nancy Curnel presented to the emergency room of Houston Methodist

Hospital-Willowbrook (“Willowbrook”) with elevated liver enzymes caused by a

recently prescribed antibiotic. Curnel was examined by a hospitalist, who, without

evaluating her current medications for hepatotoxicity, misdiagnosed her with viral

hepatitis, ordered that she continue taking the antibiotic, and admitted her to the

hospital. Once admitted, Curnel underwent further testing, but none of the

physicians or nurses evaluated her medications for hepatotoxicity. As a result, she

continued to receive the hepatotoxic antibiotic.

      On the third day of her hospitalization, Curnel was examined by a

gastroenterologist, who noted that she might be suffering from drug-induced liver

injury but also ordered a biopsy of her liver to test for other potential causes. Later

that same day, another hospitalist discontinued the antibiotic, and Curnel’s liver

enzymes began to improve. Despite the improvement, none of Curnel’s physicians

cancelled or postponed the biopsy. On the morning of the fifth day of Curnel’s

hospitalization, a radiologist performed the biopsy as scheduled. During the

biopsy, the radiologist nicked Curnel’s artery, causing her severe injuries.

      Curnel and her husband, Ronald, asserted health care liability claims against

the various physicians who treated her throughout her hospitalization. The Curnels

also asserted two health care liability claims against Willowbrook. The first was a

direct liability claim based on Willowbrook’s alleged failure to have in place


                                           2
policies and procedures to ensure all medications at Willowbrook were safely

prescribed and administered. The second was a vicarious liability claim based on

the Willowbrook nursing staff’s failure to evaluate Curnel’s medications for

hepatotoxicity, refrain from administering the antibiotic, and inform the

prescribing hospitalist of the antibiotic’s hepatotoxicity.

      The Curnels served a series of expert reports from a registered nurse, Julie

Fomenko, and a gastroenterologist, Dr. Todd Sheer. Fomenko’s reports addressed

the standard of care and breach, while Sheer’s reports addressed causation.

Willowbrook filed a motion to dismiss. The trial court found that the combined

expert reports were deficient on all three elements, denied the Curnels’ request for

an extension to cure the deficiencies, and dismissed the Curnels’ claims against

Willowbrook with prejudice. The Curnels appealed the trial court’s interlocutory

order dismissing their claims against Willowbrook.

      After they filed their appeal, the Curnels filed an amended petition, which

asserted health care liability claims against the Methodist Hospital System

(“Methodist System”), which manages and oversees Willowbrook, as well as three

Willowbrook nurses, Moshir Bansuan, Obioha Emenanjo, and Liqun Jiang (the

“Nurse Defendants”). The Curnels’ claim against Methodist System was based on

the same allegations as their direct liability claim against Willowbrook, and their




                                           3
claims against the Nurse Defendants were based on the same allegations as their

vicarious liability claim against Willowbrook.

      The Curnels served another series of expert reports from Fomenko and

Sheer, and Methodist System and the Nurse Defendants filed motions to dismiss.

Like the expert reports on Willowbrook, the trial court found the expert reports on

Methodist System and the Nurse Defendants deficient on all three elements. The

trial court denied the Curnels’ request for an extension to cure and dismissed their

claims with prejudice. The Curnels then filed this second interlocutory appeal, in

which they raised substantially similar issues as the first, contending that the trial

court abused its discretion by (1) granting the motions to dismiss and (2) denying

their motion for an extension to cure.

      During the pendency of this second appeal, another panel of this court issued

an opinion resolving the first appeal, Curnel v. Houston Methodist Hosp.-

Willowbrook, No. 01-17-00088-CV, 2018 WL _______ (Tex. App.—Houston [1st

Dist.] Aug. 16, 2018, no pet. h.) (“Curnel I”). There, the court held that Fomenko’s

reports on Willowbrook provided adequate opinions on the standard of care and

breach but that Sheer’s reports on Willowbrook did not provide an adequate

opinion on either component of proximate cause. Id. at *__. The court further held,

however, that these deficiencies might be curable and that the trial court therefore

abused its discretion in denying the Curnels’ motion for an extension to cure. Id. at


                                          4
*__. Accordingly, the court reversed the trial court’s order and remanded the case

for further proceedings. Id. at *__.

      Applying the reasoning from Curnel I here, we hold that the expert reports

on Methodist System and the Nurse Defendants were deficient but potentially

curable. Therefore, we reverse the trial court’s order dismissing the Curnels’

claims against Methodist System and the Nurse Defendants and remand the case

for further proceedings.

                                Factual Background

      The following is a summary of the factual background, which is based on

the expert reports of Sheer and Fomenko and is more thoroughly set out in Curnel

I. See id. at *__–__. We accept the expert reports’ factual statements for the limited

purpose of this appeal. See Bowie Mem’l Hosp. v. Wright, 79 S.W.3d 48, 52 (Tex.

2002) (per curiam) (review of Chapter 74 report is limited to four corners of

report).

Curnel is prescribed an antibiotic that can cause elevated liver enzymes

      On October 4, 2015, Nancy Curnel presented to a local walk-in clinic, where

she was diagnosed with a urinary tract infection and prescribed the antibiotic

nitrofurantoin. Nitrofurantoin is known for potential hepatotoxic effects and can

cause drug-induced liver injury (DILI).




                                          5
Curnel presents to the Willowbrook ER with elevated liver enzymes

      Four days later, on October 8, 2015, Curnel presented to Willowbrook’s

emergency room. Curnel said that she had been sent to the ER by her primary care

physician because recent blood work indicated that she had elevated liver enzymes.

      Curnel was examined by an emergency medicine physician, Dr. Scott

Wiesenborn, who noted that Curnel had recently begun taking nitrofurantoin and

had been referred to the ER for elevated liver enzymes. Wiesenborn diagnosed

Curnel with acute hepatitis without specifying a cause. There is no documentation

that Wiesenborn or the ER nurses evaluated Curnel’s current medications for

hepatotoxic potential or otherwise considered nitrofurantoin as a potential cause of

Curnel’s elevated liver enzymes.

Curnel is hospitalized

      Wiesenborn called the on-duty hospitalist, Dr. Michael Esantsi, to determine

whether to admit Curnel for hospitalization. During his examination, Esantsi noted

that Curnel had recently begun taking nitrofurantoin, but he did not order that the

medication be evaluated for hepatotoxic potential or note it as a potential cause of

Curnel’s elevated liver enzymes. Instead, he diagnosed Curnel with probable viral

hepatitis; admitted her to the hospital; ordered that she continue taking her current

medications, including, specifically, nitrofurantoin; and ordered a gastroenterology

consultation.


                                         6
      That afternoon, Curnel was examined by a gastroenterologist, Dr. Steven

Ugbarugba. Ugbarugba performed a number of tests, which ruled out a number of

potential causes of Curnel’s elevated liver enzymes. However, like the nurses and

physicians before him, Ugbarugba did not evaluate any of Curnel’s medications for

hepatotoxic potential or note nitrofurantoin as a potential cause of Curnel’s

elevated liver enzymes. Later that evening, Curnel received nitrofurantoin from

one of the nurses, Moshir Bansuan.

      On the morning of October 9, Curnel’s liver enzymes were tested again. The

test results showed that her already abnormally high enzymes had risen even

further. She underwent additional testing, which indicated that she did not have

viral hepatitis but was suffering from DILI instead. Nevertheless, when Esantsi

saw her again that day, he continued to diagnose her with probable viral hepatitis.

There is no indication that Curnel’s medications were considered as a potential

cause of her elevated liver enzymes during that evaluation. That evening, Curnel

received nitrofurantoin from another nurse, Obioha Emenanjo.

      On the morning of October 10, Curnel received nitrofurantoin from a third

nurse, Liqun Jiang. Later that day, she was examined again by Dr. Ugbarugba, who

noted that the cause of her elevated liver enzymes remained unclear and that she

might be suffering from DILI. Ugbarugba ordered that Curnel discontinue all




                                        7
hepatotoxic medications (without specifically ordering that she discontinue

nitrofurantoin) and that she undergo a liver biopsy.

      Curnel was then examined by another hospitalist, Dr. Yamini Naygandhi,

who ordered a review of Curnel’s medications to “find out” what was “causing”

her “elevated” liver enzymes. She further ordered that Curnel discontinue

nitrofurantoin. Curnel did not receive nitrofurantoin that evening or the following

day, and her liver enzymes began to improve.

Curnel’s artery is nicked during her liver biopsy

      On the morning of October 12, before her scheduled biopsy, Curnel’s liver

enzymes showed “further improvement.” A pre-biopsy blood clotting test ordered

by Esantsi returned as normal. Curnel was examined for a third time by

Ugbarugba, who noted that her biopsy would take place later that day. An hour and

a half later, a radiologist, Dr. Mark Brodie, performed the biopsy and nicked

Curnel’s artery, causing severe injuries.

                                Procedural History

      The Curnels asserted a health care liability claim against Esantsi, and they

asserted two health care liability claims against Willowbrook—a direct liability

claim based on Willowbrook’s allegedly inadequate policies and procedures and a

vicarious liability claim based on the alleged negligence of the Willowbrook

nursing staff. The trial court found that the combined expert reports of Sheer and


                                            8
Fomenko were deficient as to both Esantsi and Willowbrook and dismissed the

Curnels’ claims against them with prejudice. The Curnels filed an interlocutory

appeal of the trial court’s order dismissing their claims against Esantsi and

Willowbrook. See id. at * __.

      While the Curnel I interlocutory appeal was pending, the Curnels filed an

amended petition, which asserted health care liability claims against Methodist

System and the Nurse Defendants. The Curnels’ claim against Methodist System

was based on the same allegations as their direct liability claim against

Willowbrook, and their claims against the Nurse Defendants were based on the

same allegations as their vicarious liability claim against Willowbrook.

      The Curnels served Methodist System and the Nurse Defendants with six

expert reports, three from Sheer and three from Fomenko. Methodist System and

the Nurse Defendants objected that the reports were inadequate as to all three

elements of the Curnels’ claims (standard of care, breach, and causation), objected

that Fomenko and Sheer were not qualified to offer opinions on standard of care or

breach for Methodist System, and moved to dismiss the Curnels’ claims. The

Curnels filed a response, which requested a 30-day extension to cure the expert

reports in the event the trial court found them deficient.

      The trial court found the reports deficient, denied the Curnels’ motion for an

extension to cure, and dismissed their claims against Methodist System and the


                                           9
Nurse Defendants. The Curnels filed this second interlocutory appeal of the trial

court’s order dismissing their claims against Methodist System and the Nurse

Defendants. While this interlocutory appeal was pending, the court issued Curnel I,

which held that the expert reports on Willowbrook were deficient but potentially

curable, reversed the trial court’s order, and remanded the case for further

proceedings. Id. at *__.

                                Motion to Dismiss

      In their first issue, the Curnels contend that the trial court abused its

discretion by dismissing their claims against Methodist System and the Nurse

Defendants for failure to serve adequate expert reports.

A.    Applicable law and standard of review

      Under the Medical Liability Act, a plaintiff asserting health care liability

claims must timely serve each defendant physician and health care provider with

one or more expert reports and a curriculum vitae of each expert whose opinion is

offered to substantiate the merits of the claims. TEX. CIV. PRAC. & REM.

CODE § 74.351(a), (i); see Mangin v. Wendt, 480 S.W.3d 701, 705 (Tex. App.—

Houston [1st Dist.] 2015, no pet.). The expert report must provide a “fair

summary” of the expert’s opinions regarding the (1) applicable standards of care,

(2) manner in which the care rendered by the physician or health care provider

failed to meet the standards, and (3) causal relationship between that failure and


                                         10
the   injury,   harm,   or   damages    claimed.   TEX.    CIV.   PRAC.    &   REM.

CODE § 74.351(r)(6).

      For standard of care and breach, the expert report must explain what the

physician or health care provider should have done under the circumstances and

what the physician or health care provider did instead. Am. Transitional Care Ctrs.

of Tex., Inc. v. Palacios, 46 S.W.3d 873, 880 (Tex. 2001). For causation, the expert

report must explain how and why the physician’s or health care provider’s breach

proximately caused the plaintiff’s injury. Columbia Valley Healthcare Sys., L.P. v.

Zamarripa, 526 S.W.3d 453, 459–60 (Tex. 2017).

      When the plaintiff timely serves an expert report, and the defendant timely

files a motion to dismiss to challenge the adequacy of the report, the trial court

may take one of three actions. Mangin, 480 S.W.3d at 705. First, if the trial court

concludes that the report is adequate, it must deny the motion. Id. Second, if the

trial court concludes that the report does not constitute an objective good faith

effort to comply with the statute, it must grant the motion. Id.; see TEX. CIV. PRAC.

& REM. CODE § 74.351(l). Third, if the trial court concludes that the report is an

objective good faith effort to comply with the statute but is nevertheless deficient

in some way, it may grant the plaintiff one 30-day extension to cure the deficiency

and must grant the extension if the deficiency is curable. Mangin, 480 S.W.3d at

705–06.


                                         11
      A report qualifies as an objective good faith effort to comply if it discusses

each element with sufficient specificity that it (1) informs the defendant of the

specific conduct the plaintiff questions and (2) provides a basis for the trial court to

conclude that the plaintiff’s claims have merit. Baty v. Futrell, 543 S.W.3d 689,

693–94 (Tex. 2018); Mangin, 480 S.W.3d at 706. In determining whether an expert

report constitutes an objective good faith effort to address each element, “a trial

court may not draw inferences; instead, it must exclusively rely upon the

information contained within the four corners of the report.” Cornejo v. Hilgers,

446 S.W.3d 113, 123 (Tex. App.—Houston [1st Dist.] 2014, pet. denied); see Baty,

543 S.W.3d at 693. And when the issue is the expert’s qualifications, the court may

also consider the four corners of the expert’s curriculum vitae. Mangin, 480

S.W.3d at 706.

      We review a trial court’s ruling on a motion to dismiss a healthcare liability

claim for an abuse of discretion. Van Ness v. ETMC First Physicians, 461 S.W.3d

140, 142 (Tex. 2015) (per curiam). We “defer to the trial court’s factual

determinations if they are supported by evidence, but review its legal

determinations de novo.” Id. “A trial court abuses its discretion if it rules without

reference to guiding rules or principles.” Id.




                                          12
B.    Methodist System

      The Curnels supported their claim against Methodist System with expert

reports from Fomenko and Sheer. Fomenko’s reports provide opinions on the

standard of care and breach, while Sheer’s reports provide an opinion on causation.

      1.      Fomenko’s qualifications

      The trial court generally sustained Methodist System’s objections, including

its objection that Fomenko is not qualified to provide opinions on the standards of

care applicable to Methodist System or the manner in which Methodist System

breached those standards.1 We therefore begin our analysis by considering whether

Fomenko was qualified to provide an opinion on these two elements.

      Under the statute, a person may qualify as an expert witness on the issue of

whether the health care provider departed from accepted standards of care only if

the person:

      (1)     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;




1
      The trial court also sustained Methodist System’s objection that Sheer is not
      qualified to render an opinion on the applicable standard of care for Methodist
      System. On appeal, the Curnels’ do not challenge this ruling.

                                          13
      (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.

TEX. CIV. PRAC. & REM. CODE § 74.402(b).

      Methodist System contends that Fomenko fails to satisfy the second and

third prongs of this test. We disagree.

      Fomenko opines that the standard of care required Methodist System to

develop and implement policies and procedures requiring the Willowbrook nursing

and pharmacy staff to promptly (1) evaluate all patient medications for toxicity and

(2) report the results of such evaluations to the patients’ physicians. Fomenko’s CV

and reports establish her qualifications to offer these opinions.

      Fomenko’s CV lists her relevant education, professional experience, and

professional memberships. Under education, Fomenko’s CV states that she has

undergraduate and graduate degrees in nursing and that she is currently working on

her PhD. Under professional experience, Fomenko’s CV lists fifteen positions she

has held over her thirty-plus year career as a registered nurse. Fomenko’s CV

states that Fomenko currently serves as Clinical Assistant Professor of Nursing at

Texas A&M University—Corpus Christi, where she teaches Critical Care Nursing,

Medical-Surgical Nursing, and Professional Transitions. Before she began


                                          14
teaching, Fomenko was the Chief Clinical Officer of a hospital in Corpus Christi.

And before that, she held a variety of other positions at numerous other hospitals

and clinics. Under professional memberships, Fomenko’s CV states that she is a

member of the International Association of Clinical Simulation & Learning, Texas

Nurses Association, and American Nurses Association, among other organizations.

      In her reports, Fomenko explains her professional experience:

      I have taught pharmacology and safety in medication delivery to
      nurses and hospital management personnel. I have more than 30 years
      of clinical experience and have held clinical, management, and
      supervisory positions in a variety of inpatient and outpatient hospital
      settings and at many administrative levels. I have participated in
      management committees, as well as worked in a great variety of
      specialty practice areas (critical care, emergency room, general
      nursing units, cardiac catheterization and invasive laboratories, and in
      private medical practice). I also hold academic qualifications in
      nursing management including a Master’s degree in Nursing
      Leadership and Management from Walden University. I have
      extensive experience in the development of policies and procedures,
      evaluating competency of nursing staff, and methods for improving
      and ensuring clinical competence of hospital staff. I am directly
      involved in the educations of clinicians, evaluation and management
      of their educational practices and learning methods . . . .

      Thus, Fomenko’s CV and reports establish that she has knowledge of the

accepted standards of care for a hospital system and experience in the

administrative aspects of a hospital system, at least with respect to how a hospital

system should regulate its nursing staff’s evaluation and administration of patient

medication. We hold that, based on the four corners of Fomenko’s CV and her



                                        15
expert report, Fomenko is qualified to offer opinions on Methodist System’s

applicable standard of care and breach.

      2.      Fomenko’s opinions on elements of standard of care and breach

      Next, we consider whether Fomenko’s reports provide adequate opinions on

the first two elements: standard of care and breach. In her reports, Fomenko opines

that the standard of care required Methodist System to develop and implement

policies and procedures that required the Willowbrook nursing and pharmacy staff

to promptly (1) evaluate all patient medications for toxicity and (2) report the

results of such medication evaluations to the patients’ physicians. According to

Fomenko, such policies and procedures should require an evaluation of

medications when the patient presents to the hospital, when the patient is admitted

to the hospital, and, once admitted, when the patient is prescribed and administered

medication.

      Fomenko explains that she reviewed Willowbrook’s nursing and pharmacy

policies and procedures and did not find any policies and procedures providing for

the routine evaluation of patient medications or the timely delivery of the results of

such evaluations to physicians and other clinicians. Fomenko further explains that,

even if such policies and procedures existed, the Willowbrook nursing and

pharmacy staff failed to follow them, as evidenced by the fact that Curnel’s

medications were not evaluated for hepatotoxicity when she was admitted to the


                                          16
hospital or before the nurses administered nitrofurantoin to her for three

consecutive days. Thus, Fomenko opines that Methodist System breached the

applicable standard of care because policies and procedures for medication

evaluation were either not in place or not enforced. According to Fomenko,

Methodist System “chose to rely on random compliance of the individual

physician, nurse, [and] pharmacist” and assumed that they would “‘just know’ the

medication effects before prescribing and administering a drug.”

      These opinions are substantially similar to the opinions Fomenko provided

in her reports on the Curnels’ direct liability claim against Willowbrook, the

adequacy of which were addressed in Curnel I. 2018 WL _______, at *__.

Applying the reasoning from Curnel I here, we hold that Fomenko’s reports on

Methodist System explain what she believes the standard of care required

Methodist System to have done under the circumstances and what it did instead.

See Palacios, 46 S.W.3d at 880. We hold that Fomenko’s expert reports provide

adequate opinions on the standard of care applicable to Methodist System and the

manner in which the care rendered by Methodist System failed to meet that

standard. See Curnel I, 2018 WL _______, at *__.

      3.    Sheer’s opinion on element of causation

      Next, we consider whether Sheer’s reports provide an adequate opinion on

the element he addresses: causation. In his reports, Sheer opines that the breach of


                                        17
standard of care identified by Fomenko—i.e., Methodist System’s failure to

develop and implement policies and procedures relating to the evaluation of

medication—proximately caused Curnel’s injuries. According to Sheer, had such

policies and procedures been in place, the Willowbrook nursing and pharmacy

staff would have evaluated Curnel’s medications and informed her physicians that

nitrofurantoin is hepatotoxic, and Curnel’s physicians, in turn, would have ordered

that she discontinue the antibiotic. Curnel’s liver enzymes would have begun to

improve, and her physicians would have then diagnosed her with DILI, discharged

her from the hospital, and referred her to her primary care provider for continued

outpatient monitoring. And, as a result, Curnel would have avoided the

unnecessary liver biopsy that caused her severe injuries.

      Again, this opinion is substantially similar to the opinion Sheer provided in

his reports on the Curnels’ direct liability claim against Willowbrook, the adequacy

of which was addressed in Curnel I. Id. at *__. Like his reports on Willowbrook,

Sheer’s reports on Methodist System attempt to show proximate cause by

explaining a chain of events that begins with Methodist System’s failure to

implement and enforce certain policies and procedures and ends with Curnel’s

artery being nicked during the unwarranted liver biopsy. The Curnel I opinion held

that Sheer’s reports failed to adequately address cause-in-fact because the reports

did not explain how and why the liver biopsy would have been avoided had the


                                         18
policies and procedures been in place given that Curnel’s physicians did what the

policies and procedures were meant to accomplish—evaluate Curnel’s medications

for hepatotoxicity, recognize DILI as a potential cause of her elevated liver

enzymes, and discontinue nitrofurantoin—but proceeded with the biopsy anyway.

Id. at * __. And Sheer’s reports were held to have failed to adequately address

foreseeability because the reports did not explain how and why Willowbrook

should have anticipated that its failure to implement the policies and procedures

would result in Curnel’s artery being nicked during the biopsy of her liver. Id. at

*__. Applying that reasoning here, we hold that Sheer’s reports on Methodist

System fail to adequately address both components of proximate cause.

C.    The Nurse Defendants

      The Curnels supported their claims against the Nurse Defendants with expert

reports from Fomenko and Sheer. Once again, Fomenko’s reports address the

standard of care and breach, while Sheer’s reports address causation. Thus, we

begin our analysis by considering whether Fomenko’s reports provide adequate

opinions on the first two elements: standard of care and breach.

      1.    Fomenko’s opinions on elements of standard of care and breach

      In her reports, Fomenko opines that the standard of care required the Nurse

Defendants to (1) evaluate Curnel’s medications, (2) recognize that nitrofurantoin

was hepatotoxic and thus contraindicated given Curnel’s elevated liver enzymes,


                                         19
(3) refrain from administering nitrofurantoin to Curnel, (4) notify the ordering

practitioner, Dr. Esantsi, of the reason for their decision, and (5) seek clarification

of Dr. Esantsi’s order. Fomenko stated that her opinion was supported, in part, by

Section 217.11 of the Texas Administrative Code, which sets forth “standards of

practice”   for   nurses   practicing    within   the   State.   22    TEX.    ADMIN.

CODE § 217.11(1)(A)–(D).

      Fomenko further opines that the Nurse Defendants breached the standard of

care by failing to take any of the steps listed above. They failed to evaluate the

hepatotoxic potential of Curnel’s medications when she presented to the ER or

when she was admitted to the hospital, and they failed to document the need to

perform such an evaluation in Curnel’s plan of care. They noted Curnel had been

taking nitrofurantoin, but they failed to recognize that nitrofurantoin is hepatotoxic

and thus failed to clarify the contraindicated nitrofurantoin order with Esantsi or

another practitioner. And instead of holding the medication, they administered it to

Curnel for three additional days.

      Again, these are component parts of the opinions Fomenko provided in her

reports on the Curnels’ vicarious liability claim against Willowbrook, the adequacy

of which were addressed in Curnel I. 2018 WL _______, at *__. Applying that

reasoning here, we hold that Fomenko’s reports on the Nurse Defendants explain

what she believes the standard of care required the Nurse Defendants to have done


                                          20
under the circumstances and what they did instead. Id. at *__. We hold that

Fomenko’s expert reports provide adequate opinions on the standard of care

applicable to the Nurse Defendants and the manner in which the care they rendered

breached that standard. Id. at *__.

      2.     Sheer’s opinion on element of causation

      Next, we consider whether Sheer’s reports provide an adequate opinion on

the element he addresses: causation. In his reports, Sheer opines that, by failing to

promptly    evaluate   Curnel’s   medications    and   instead   administering   the

contraindicated antibiotic for three additional days, the Nurse Defendants

“perpetuated Mrs. Curnel’s elevated liver values and the physicians’ drive for

further workup.” According to Sheer, had the Nurse Defendants complied with the

standard of care identified by Fomenko, the physicians would have had the benefit

of data showing a declining trend in Curnel’s liver enzymes, which, in turn, would

have led them to diagnose her with DILI and discharge her for further monitoring

on an outpatient basis, thereby avoiding the liver biopsy and the injuries that

resulted from it.

      Again, Sheer provided this opinion as part of his reports on the Curnels’

vicarious liability claim against Willowbrook. Id. at * __. Like his reports on

Willowbrook’s nursing staff, Sheer’s reports on the Nurse Defendants attempt to

show proximate cause by explaining a chain of events that begins with the Nurse


                                         21
Defendants’ failure to evaluate Curnel’s medications and refrain from

administering the contraindicated nitrofurantoin and ends with Curnel’s artery

being nicked and the resulting injuries. Curnel I held that Sheer’s reports failed to

adequately address cause-in-fact because the reports did not (1) explain how and

why the nurses’ failure to evaluate Curnel’s medications and refrain from

administering nitrofurantoin caused the biopsy and resulting injuries when the

physicians   themselves    evaluated   Curnel’s       medications   and   discontinued

nitrofurantoin without cancelling or postponing the biopsy, (2) explain how the

nurses “had either the right or the means to persuade” the physicians to cancel the

biopsy, Zamarripa, 526 S.W.3d at 461, or (3) state that the nurses were part of the

decision to perform the biopsy or its timing. Id. at *__. Sheer’s reports were also

held to have failed to adequately address foreseeability because the reports did not

explain how and why the nurses should have anticipated that their negligent failure

to evaluate Curnel’s medications and to refrain from administering the drug would

result in Curnel’s artery being nicked during a biopsy of her liver. For these same

reasons, we hold that Sheer’s reports on the Nurse Defendants fail to adequately

address causation.

                                   *     *        *

      In sum, we hold that Fomenko is qualified to offer an opinion on Methodist

System and that her reports on Methodist System provide adequate opinions on the


                                         22
standard of care and breach but that Sheer’s reports on Methodist System do not

provide adequate opinions on either component of proximate cause. Likewise, we

hold that Fomenko’s reports on the Nurse Defendants provide adequate opinions

on the standard of care and breach but that Sheer’s reports on the Nurse

Defendants do not provide adequate opinions on either component of proximate

cause. Therefore, the trial court did not abuse its discretion in finding the reports

inadequate as to both Methodist System and the Nurse Defendants. Accordingly,

we overrule the Curnels’ first issue.

                           Motion for Extension to Cure

      In their second issue, the Curnels contend that the trial court abused its

discretion by denying their motion for a 30-day extension to cure the deficiencies

in their expert reports.

      Under the Act, if the plaintiff timely serves an expert report, and the trial

court concludes that the report is an objective good faith effort to comply with the

statute but nevertheless deficient in some way, the trial court has the discretion to

grant the plaintiff one 30-day extension to cure the deficiencies. TEX. CIV. PRAC. &

REM. CODE § 74.351(c); Mangin, 480 S.W.3d at 705–06. The trial court should err

on the side of granting the extension. Samlowski v. Wooten, 332 S.W.3d 404, 416

(Tex. 2011) (Guzman, J., concurring) (“In order to preserve the highest number of

meritorious claims, trial courts should err on the side of granting claimants’


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extensions . . . .”); see also Samlowski, 332 S.W.3d at 411 (plurality op.) (agreeing

with concurrence that trial court should err on side of granting extension). And the

trial court must grant the extension if the deficiencies are curable. Zamarripa, 526

S.W.3d at 461.

      The Texas Supreme Court established a “minimal” standard for determining

whether a deficient report might qualify for an extension to cure: “a 30–day

extension to cure deficiencies in an expert report may be granted if the report is

served by the statutory deadline, 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 557.

      We review a trial court’s ruling on motion for an extension to cure a

deficient expert report for an abuse of discretion. Quintero v. Hous. Methodist

Hosp., No. 01-14-00448-CV, 2015 WL 831955, at *2 (Tex. App.—Houston [1st

Dist.] Feb. 26, 2015, pet. denied) (mem. op.); Henry v. Kelly, 375 S.W.3d 531, 535

(Tex. App.—Houston [14th Dist.] 2012, pet. denied).

      The Curnels timely served Methodist System and the Nurse Defendants with

reports before the statutory deadline. Despite their deficiencies, these reports

contain the opinions of qualified experts that the Curnels’ claims had merit and

implicated the conduct of Methodist System and the Nurse Defendants; they




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qualify as objective good faith efforts to comply with the statute. See Scoresby, 364

S.W.3d at 557.

      Despite objective good faith efforts from the Curnels, the trial court

dismissed their claims without affording them an opportunity to cure their deficient

reports. Part of the purpose of the extension is to afford a plaintiff who made a

good faith effort the chance to cure a defective report after the deficiencies have

been identified by the trial court. Given the “minimal” standard established by the

Texas Supreme Court and the Curnels’ objective good faith effort to serve

compliant reports, we cannot say that it would have been impossible for the

Curnels to have cured their reports once they were informed of the deficiencies.

See Zamarripa, 526 S.W.3d at 461.

      Moreover, when the trial court dismissed the Curnels’ claims, it was unclear

whether the statute required expert reports to address foreseeability, and at least

two courts of appeals had held that it did not. See Rio Grande Reg’l Hosp. v.

Ayala, No. 13-11-00686-CV, 2012 WL 3637368, at *19 (Tex. App.—Corpus

Christi Aug. 24, 2012, pet. denied) (mem. op.), abrogated by Columbia Valley

Healthcare Sys., L.P. v. Zamarripa, 526 S.W.3d 453 (Tex. 2017); Adeyemi v.

Guerrero, 329 S.W.3d 241, 246 (Tex. App.—Dallas 2010, no pet.). The Texas

Supreme Court resolved the issue while this appeal was pending when it issued

Zamarripa and held that an expert report must address both cause-in-fact and


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foreseeability. 526 S.W.3d at 460. Given this development, the Curnels should be

afforded the opportunity to amend their reports to address foreseeability and to

cure the other deficiencies identified in this opinion.

      Therefore, we hold that the trial court abused its discretion in denying their

motion for an extension to cure. Accordingly, we sustain the Curnels’ second issue.

                                     Conclusion

      We reverse the trial court’s order and remand for further proceedings.




                                               Harvey Brown
                                               Justice

Panel consists of Chief Justice Radack and Justices Massengale and Brown.




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