                                                                                     ACCEPTED
                                                                                 13-15-00024-CV
                                                                 THIRTEENTH COURT OF APPEALS
                                                                        CORPUS CHRISTI, TEXAS
                                                                             7/6/2015 3:52:31 PM
                                                                          CECILE FOY GSANGER
                                                                                          CLERK

                 IN THE THIRTEENTH COURT OF APPEALS
                   CORPUS CHRISTI/EDINBURG, TEXAS
                                                       FILED IN
                                               13th COURT OF APPEALS
                                            CORPUS CHRISTI/EDINBURG, TEXAS
                         NO. 13-15-00024-CV     7/6/2015 3:52:31 PM
                                                 CECILE FOY GSANGER
                                                        Clerk

 MARIA ZAMARRIPA, AS GUARDIAN OF THE ESTATES OF R.F.R. AND
  R.J.R., MINORS, AND OLGA FLORES, AS ADMINISTRATOR OF THE
                ESTATE OF YOLANDA IRIS FLORES,
                              Appellants

                                 v.

  BAY AREA HEALTH CARE GROUP, LTD. D/B/A CORPUS CHRISTI
MEDICAL CENTER, HIDALGO COUNTY EMS, AND HIDALGO COUNTY
        EMERGENCY MEDICAL SERVICE FOUNDATION,
                          Appellees.


APPELLANTS MARIA ZAMARRIPA AS GUARDIAN OF R.F.R. AND R.J.R., MINORS,
AND OLGA FLORES, AS ADMINISTRATOR OF THE ESTATE OF YOLANDA FLORES
 REPLY TO BRIEF OF APPELLEE BAY AREA HEALTH CARE GROUP, LTD. D/B/A
                   CORPUS CHRISTI MEDICAL CENTER


                               WEST, WEBB, ALLBRITTON & GENTRY, P.C.
                               Gaines West
                               State Bar No. 21197500
                               Email: gaines.west@westwebblaw.com
                               Jennifer D. Jasper
                               State Bar No.: 24027026
                               E-mail: jennifer.jasper@westwebblaw.com
                               Donald Delgado
                               State Bar No. 24065139
                               E-mail: donald.delgado@westwebblaw.com
                               1515 Emerald Plaza
                               College Station, Texas 77845
                               979.694.7000 ~ Telephone
                               979.694.8000 ~ Facsimile

                               COUNSEL FOR APPELLANTS

                                  i
                                           TABLE OF CONTENTS
 
Table of Contents .................................................................................................... ii

Table of Authorities ................................................................................................. iii
 
Reply Point One: Nurse Spears is qualified to opine on the applicable
        standard of care and CCMC’s breach......................................................... 1

      A. CCMC has conceded that 74.402(b)(1) does not apply ................................ 1

      B. CCMC waived any challenge under section 74.402(b)(2) and (b)(3) ........... 1

Reply Point Two: Appellants’ expert reports sufficiently connect CCMC’s
        breach of the standard of care and Yolanda’s injuries and death ............... 6

      A. Nurse Spears adequately stated the standard of care and breach .................. 6

      B. Nurse Spears’s reports do not impose a duty on CCMC that violates
         Texas Law ..................................................................................................... 9

Reply Point Three: Dr. Harlass’s report constitutes a good faith effort to
       comply with section 74.351 ......................................................................... 9

      A. Dr. Harlass’s report offers a causation opinion against CCMC that
         is not conclusory ......................................................................................... 10

      B. Dr. Harlass is qualified to render causation opinion against CCMC .......... 12

Reply Point Four: Alternatively, Appellants are entitled to amend reports ......... 14


Prayer.......................................................................................................................15

Certificate of Compliance........................................................................................16

Certificate of Service...............................................................................................17

 
 
                                        
                                                              ii
 
                                       TABLE OF AUTHORITIES

CASES

Am. Transitional Care Ctrs. of Tex., Inc. v. Palacios,.............................................14
     46 S.W.3d 873 (Tex. 2001)

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

Sus Spohn Health Sys. Corp. v. Castro, ...................................................................15
      No. 13-13-00302-CV, 2013 WL 6576041
      (Tex. App.—Corpus Christi Dec. 12, 2013, no pet.)

Cornejo v. Hilgers, ........................................................................................... 10, 12
     446 S.W.3d 113 (Tex. App.—Houston [1st Dist.] 2014, pet. denied)

Costello v. Christus Santa Rosa Health Care Corp., .............................................11
      141 S.W.3d 245 (Tex. App.—San Antonio 2004, no pet.)

Fortner v. Hosp. of the Sw., LLP, ............................................................................12
      399 S.W.3d 373 (Tex. App.—Dallas 2013, no pet.)

Gen. Chem. Corp. v. De La Lastra, ..........................................................................2
      852 S.W.2d 916 (Tex. 1993)

Group v. Vicento, .......................................................................................................3
     164 S.W.3d 724 (Tex. App.—Houston [14th Dist.] 2005, pet. denied)

Hillery v. Kyle, .........................................................................................................13
      371 S.W.3d 482 (Tex. App.—Houston [1st Dist.] 2012, no pet.)

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

Kelly v. Rendon, .........................................................................................................6
      255 S.W.3d 665 (Tex. App.—Houston [14th Dist.] 2008, no pet.)

Mack Trucks, Inc. v. Tamez, ............................................................................. 1, 2, 6
     206 S.W.3d 572 (Tex. 2006)
                                                            iii
 
Rittger v. Danos, ............................................................................................... 13, 14
      332 S.W.3d 550 (Tex. App.—Houston [1st Dist.] 2009, no pet.)

Salais v. Tex. Dept. Aging & Disability Serv’s., ....................................................8, 9
       323 S.W.3d 527 (Tex. App.—Waco 2010, pet. denied)

Scoresby v. Santillan, .................................................................................. 10, 11, 15
      346 S.W.3d 546 (Tex. 2011)

Tawa v. Gentry, ........................................................................................................13
     No. 01–12–00407–CV, 2013 WL 1694869
     (Tex. App.—Houston [1st Dist.] Apr. 18, 2013, no pet.)

Tovar v. Methodist Healthcare Sys. of San Antonio, Ltd., LLP.................................8
      185 S.W.3d 65 (Tex. App.—San Antonio 2005, pet. denied)


STATUTES

TEX. ADMIN. CODE ANN. § 217.11(c) ................. ................................................9, 10
 
TEX. CIV. PRAC. & REM. CODE ANN. § 74.351.................................................9, 10

TEX. CIV. PRAC. & REM. CODE ANN. § 74.351(r)(6)...............................................10

TEX. CIV. PRAC. & REM. CODE ANN. § 74.402……................................................6
 
TEX. CIV. PRAC. & REM. CODE ANN. § 74.402(b)(1).............................................1, 2

TEX. CIV. PRAC. & REM. CODE ANN. § 74.402(b)(2).............................1, 2, 3, 4, 5, 6

TEX. CIV. PRAC. & REM. CODE ANN. § 74.402(b)(3)................................ 2, 3, 4, 5, 6




                                                           iv
 
TO THE HONORABLE THIRTEENTH COURT OF APPEALS:

      Appellants, Maria Zamarripa, as Guardian of the Estates of R.F.R. and

R.J.R., minors, and Olga Flores, as Administrator of the Estate of Yolanda Iris

Flores (“Appellants”), file this Reply to Appellee Bay Area Health Care Group,

Ltd. d/b/a Corpus Christi Medical Center’s (“CCMC”) Brief, and would respond as

follows:

REPLY POINT ONE: Nurse Spears is qualified to opine on the applicable
standard of care and CCMC’s breach.

      A.     CCMC has conceded that section 74.402(b)(1) does not apply

      Section 74.402(b)(1) does not apply to Nurse Spears, because that section

only applies “if the defendant is an individual.” TEX. CIV. PRAC. & REM. CODE

ANN. § 74.402(b)(2) (West).        On appeal, CCMC does not dispute that

74.402(b)(1) only applies to individual defendants, and not a hospital. CCMC

Appellee’s Brief at 18-19. Accordingly, 74.402(b)(1) does not apply in this case,

as CCMC is not an individual. To the extent the trial court granted CCMC’s

motion to dismiss based on Nurse Spears’s failure to meet the requirements of

section 74.402(b)(1), the court abused its discretion.

      B.     CCMC waived any challenge under section 74.402(b)(2) and
             (b)(3)

      Texas generally requires parties to properly raise an issue to the trial court in

order to have that issue reviewed on appeal. Mack Trucks, Inc. v. Tamez, 206


                                          1
 
S.W.3d 572, 577 (Tex. 2006). Additionally, when a party does not raise an issue

of controlling law to the trial court, the ability to raise the issue on appeal is

waived. Gen. Chem. Corp. v. De La Lastra, 852 S.W.2d 916, 920 (Tex. 1993).

              For the first time on appeal, CCMC contends Nurse Spears is unqualified

under subsections 74.402(b)(2) and (b)(3). CCMC Appellee’s Brief at 7. In the

trial court, CCMC’s motion to dismiss claimed only that Nurse Spears was

unqualified under 74.402(b)(1). CR 237, n.22. Because CCMC did not properly

raise the issues of 74.402(b)(2) and (b)(3) in their motion to dismiss, appellate

review is limited to the issue of Nurse Spears’s qualifications solely under

74.402(b)(1), which were addressed above. See id.1

              For the sake of argument, even if this Court were to find that CCMC

adequately objected in the trial court to Nurse Spears’s qualifications under

sections 74.402(b)(2) and 74.402(b)(3), CCMC’s arguments that Nurse Spears is

not qualified under these subsections fails.

              Specifically, CCMC contends Nurse Spears is unqualified under section

74.402(b)(2) to testify as an expert on the standard of care for a hospital’s labor

and delivery department presented with the circumstances at issue in this case.

                                                            
1
  In their Appellee’s Brief, CCMC claims that in fact they did raise subsection (b)(2) and (b)(3)
in the trial court, but all they cite in support of this statement is their generic reference to 74.402
in the motion to dismiss. CCMC Appellee’s Brief at 19, n.9. Considering the motion to
dismiss’s footnote 22 (which states in full subsection (b)(1)) and complete failure to make any
substantive arguments regarding (b)(2) and (b)(3), a mere reference to 74.402 itself does not
preserve these arguments for appellate review. See Tamez, 206 S.W.3d at 577. 
                                                               2
 
CCMC Appellee’s Brief at 16-18. CCMC also asserts Nurse Spears does not

satisfy Section 74.402(b)(3) because she was not actively practicing health care in

a relevant field at the time of the incident or at the time she authored her reports.

CCMC Appellee Brief at 16-18. Both of these arguments are misplaced.

      Section 74.402(b)(2) requires that Nurse Spears “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.” TEX. CIV. PRAC. & REM.

Code Ann. § 74.402(b)(2); see Group v. Vicento, 164 S.W.3d 724, 734 (Tex.

App.—Houston [14th Dist.] 2005, pet. denied) (holding doctor’s own statement in

his report that he has knowledge of accepted standard of care for the injury or

illness at issue satisfies section 74.402(b)(2)). The illness, injury or condition

involved in this claim is placenta accreta and pre-term labor. Nurse Spears’s

curriculum vitae and reports plainly establish that she has knowledge of accepted

standards of care for the care and treatment of placenta accreta and pre term labor.

CR 215.

      Furthermore, this case specifically involves the issue of transferring a patient

with placenta accrete and in pre-term labor, to another facility for treatment.

Along these lines, Nurse Spears’s qualifications include:

      In my nursing experience in the L&D Department and in the ER, I
      have provided instructions to EMS/transfer personnel’s inquiries
      about whether or not to divert from the receiving hospital in a patient
      transfer, based on the reported signs and symptoms given by the EMS
                                          3
 
      personnel/EMTS. I am familiar with the standard of care for L&D and
      ER staff for processing such inquiries and the response to be given. I
      have also practiced as an EMT, and am familiar with the information
      that EMT provide to receiving hospitals in transfer when calls are
      made about seeking instructions about possible diversion to a different
      medical facility.

CR 218.

      In light of this experience, CCMC cannot complain about any failure to

satisfy 74.402(b)(2). This is evident in the specific (and only) argument CCMC

makes on this point:      “the vagueness in Nurse Spears’ reports regarding the

standard of care applicable to CCMC … indicates she does not have knowledge of

the standard of care applicable to CCMC for the circumstances presented in this

case.” CCMC Appellee’s Brief at 16.

      Thus, rather than claiming she lacks any substantive qualifications to render

opinions in this case, CCMC raises a complaint about her reports, apparently

trying to boot-strap its complaint about her reports into a complaint about her

qualifications. But such a complaint about her reports cannot render Nurse Spears

unqualified.

      The “knowledge” requirement of subsection (b)(2) is not determined based

on the expert’s own recitation of the standard of care in her report and CCMC fails

to cite to any authority for this errant proposition. Rather, an expert report satisfies

the requirements of section 74.402(b)(2) if the expert is able to show that she has

“knowledge of accepted standards of care for health care providers for the
                                           4
 
diagnosis, care, or treatment of the illness, injury, or condition involved in the

claim[.]” TEX. CIV. PRAC. & REM. Code Ann. § 74.402(b)(2).        As demonstrated

above, Nurse Spears’s experience has given her knowledge of the accepted

standards of care for treating placenta accrete and pre-term labor. Thus, any

argument that she is unqualified under 74.402(b)(2) is undermined by the evidence

in this case.

       With regard to section 74.402(b)(3), that section requires an expert to be

“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

Ann. § 74.402(b)(3). As demonstrated above, Nurse Spears is qualified on the

basis of her training and experience. CR 212-219.

       On appeal, CCMC insists Nurse Spears is not qualified under subsection

74.402(b)(3) because she was not “fielding phone calls at a hospital’s labor and

delivery or emergency department from EMS or transfer personnel during” the

time of the incident or at the time she offered her opinions. CCMC Appellee’s

Brief at 14-15. However, Nurse Spears does qualify under subsection (b)(3).

       Nurse Spears’ curriculum vitae demonstrates that at the time of the incident

(May 15, 2012) she was actively practicing health care by rendering services

relevant to Appellants’ claim against CCMC in that she was supervising registered

nurses who fielded triage phone calls. CR 265. The evidence specifically shows


                                         5
 
that she was employed as a clinical supervisor between May 2011–June 2014 and

supervised registered nurses to ensure the proper handling of triage calls2 and

patient safety. CR 265.3

              In summary, CCMC waived any complaint that Nurse Spears is unqualified

under 74.402(b)(2) or (b)(3) because it failed to make these complaints to the trial

court. See CR 237, n.22. This argument should not be a part of the appellate

review. See Tamez, 206 S.W.3d at 577. Nevertheless, even should this Court find

this issue preserved for appeal, it is clear that Nurse Spears is qualified and any

dismissal based on her failure to meet 74.402 requirements would have been an

abuse of discretion.

REPLY POINT TWO: Appellants’ expert reports sufficiently connect
CCMC’s breach of the standard of care and Yolanda’s injuries and death

       A. Nurse Spears adequately stated the standard of care and breach.

              CCMC complains that Nurse Spears’s opinions on the standard of

care and the breach of the standard of care are conclusory.                       CCMC



                                                            
2
 “Triage” means 1: the sorting of and allocation of treatment to patients and especially battle and
disaster victims according to a system of priorities designed to maximize the number of
survivors; 2: the sorting of patients (as in an emergency room) according to the urgency of their
need for care. WEBSTER’S THIRD NEW WORLD DICTIONARY 1683 (2002).
 
3
 CCMC also argues that Nurse Spears had to have been practicing in labor and delivery or an
emergency department to be qualified under section 74.402(b)(3). This is incorrect. See Kelly v.
Rendon, 255 S.W.3d 665, 673–74 (Tex. App.—Houston [14th Dist.] 2008, no pet.). She only
needed to have been actively practicing health care services that are relevant to Appellants’ claim
against CCMC. See id. 
                                                               6
 
Appellee’s Brief 22–24. As to the applicable standard of care, Nurse Spears

stated:

      Standard of care requires the L&D receiving team personnel of the
      accepting hospital to give appropriate instructions to EMS transfer
      personnel who call for medical advice concerning a deteriorating
      pregnant patient.

CR 213. In her addendum, Nurse Spears elaborated that the standard of care

required that CCMC personnel “give appropriate instructions to the inquiring

Medic 192 about [Yolanda’s] deteriorating condition.” Id. 219. Nurse Spears

explained CCMC’s breach:

      The staff at [CCMC] L&D department breached the standard of care
      by advising Hidalgo County EMS to proceed to their facility while
      bypassing hospitals with the capabilities of care for [Yolanda] and the
      fetus when EMS called [CCMC] about diverting due to her
      deteriorating status.

Id. 213. In her addendum, she further detailed the breach, stating that “[t]he L&D

staff [at CCMC] breached the standard of care by instructing Medic 192 not to

divert to an alternate medical facility for evaluation.” Id. 219.

      CCMC considers Nurse Spears’s opinion on the standard of care to be

insufficient because she does not define what constituted “appropriate instruction,”

and does not set out what care was expected from CCMC. CCMC Appellee’s

Brief at 24. Similarly, CCMC argues that Nurse Spears’s opinion on breach is

vague and conclusory. CCMC Appellee’s Brief at 24.



                                           7
 
      An expert report is adequate if it demonstrates a good-faith effort to comply

with the chapter 74’s requirements for expert reports, and no “magical words” are

required for the report to be adequate. See Bowie Mem’l Hosp. v. Wright, 79

S.W.3d 48, 53 (Tex. 2002). Nurse Spears’s reports adequately explain what was

the standard of care required: give appropriate instructions to Hidalgo County

EMS regarding Yolanda Flores’ deteriorating status. Similarly, Nurse Spears’s

reports explain that CCMC breached the standard of care by instructing Hidalgo

County EMS not to divert to another hospital.        Nurse Spears’s reports, thus,

articulate that when faced with a patient en route from Brownsville to Corpus

Christi, in pre-term labor with an abrupt placenta resulting in acute blood loss and

oxygen deprivation, CCMC nurses should have given appropriate instructions to

Hidalgo County EMS to divert to another hospital instead of advising them to

continue on their trek to CCMC. See CR 213, 219.

      Nurse Spears’s reports inform CCMC “of the conduct the Appellants call

into question and [provides] a basis for the trial court to conclude that the claims

have merit.” Salais v. Tex. Dept. Aging & Disability Serv’s., 323 S.W.3d 527, 533

(Tex. App.—Waco 2010, pet. denied) (citation omitted); Tovar v. Methodist

Healthcare Sys. of San Antonio, Ltd., L.L.P., 185 S.W.3d 65, 68 (Tex. App.—San

Antonio 2005, pet. denied) (citation omitted). Moreover, Nurse Spears’s reports




                                         8
 
demonstrate a good-faith effort to comply with chapter 74, and are therefore an

adequate expert report. See Salais, 323 S.W.3d at 538.

    B. Nurse Spears’s reports do not impose a duty on CCMC that
       violates Texas law

      CCMC asserts that Nurse Spears’s reports are inadequate because nurses do

not have the authority to render a medical diagnosis. CCMC Appellee’s Brief 26-

30. However, Nurse Spears’s report on the standard of care did not impose on

CCMC and its nurses to make a medical diagnosis. See generally CR 212-19.

Nurse Spears states the standard of care in this case is for the nurses to correctly

administer patient treatment by giving appropriate instructions to EMS transfer

personnel who called concerning a deteriorating patient.       In fact, the correct

administration of treatment is incorporated in the Texas Nurse Practices Act as one

of the standards of nursing practice. 22 TEX. ADMIN. CODE § 217.11(C). Nurse

Spears was not stating the nurses should have diagnosed the patient, but rather the

nurses should have taken adequate measures to correctly administer treatment. See

id. Thus, her report does not “violate Texas law.”

REPLY POINT THREE: Dr. Harlass’s report constitutes a good faith effort
to comply with section 74.351

      In compliance with chapter 74, Appellants served on CCMC the expert

reports, and addenda, of Grace Spears, R.N. and Dr. Harlass.         Nurse Spears




                                         9
 
addressed the applicable standard of care and CCMC’s breaches, and Dr. Harlass

discussed how those breaches led to Yolanda’s injuries and death.

      CCMC argues that Dr. Harlass’s report does not constitute a good faith

effort to comply with Section 74.351 because he does not offer a causation

opinion, and even if he does, his opinion is conclusory. CCMC Appellee’s Brief

37-38. This is incorrect.

      A. Dr. Harlass’s report offers a causation opinion against CCMC that is
         not conclusory

      CCMC states that Dr. Harlass’s report “does not offer a true causation

opinion against CCMC.” CCMC Appellee’s Brief at 31. CCMC specifically

complains that Dr. Harlass never states in his report that CCMC’s alleged failure to

instruct Hidalgo County EMS to divert caused Yolanda’s injuries or death. CCMC

Appellee’s Brief at 31.

      The purpose of the causation expert’s report is to provide a “fair summary of

the expert’s opinions regarding the causal relationship between the failure of the

healthcare provider to provide care in accord with the pertinent standard of care

and the injury, harm, or damages claimed.” Cornejo v. Hilgers, 446 S.W.3d 113,

123 (Tex. App.—Houston [1st Dist.] 2014, pet. denied) (citing TEX. CIV. PRAC. &

REM. CODE ANN. § 74.351(r)(6)). “No particular words or formality are required,

but bare conclusions will not suffice.” Scoresby v. Santillan, 346 S.W.3d 546, 556

(Tex. 2011) (citations omitted). A causal relationship is established by proof that
                                        10
 
a negligent act or omission constituted a substantial factor in bringing about harm

and, absent the act or omission, the harm would not have occurred. Costello v.

Christus Santa Rosa Health Care Corp., 141 S.W.3d 245, 249 (Tex. App.—San

Antonio 2004, no pet.).       The expert simply “must explain the basis of his

statements and link his conclusions to the facts.” Id. (citation omitted).

      Dr. Harlass determined that CCMC’s actions were a cause of Yolanda’s

injuries and death. CR 91. Specifically, Dr. Harlass stated, in relevant part:

      Due to the [CCMC’s] personnel’s breaches of care in informing the
      EMS personnel not to divert when [Yolanda] was in an emergency
      situation (oxygen deprivation and bleeding)…her bleeding continued
      unabated and she suffered cardiovascular arrest, DIC and death.

Id. at 91 (parentheses in original).

      While CCMC is correct that Dr. Harlass does not use the word “cause” in his

report, no particular words or formality are required. See Scoresby, 346 S.W.3d at

556. CCMC asserts that Dr. Harlass “simply state[s] that CCMC’s alleged failure

to divert resulted in her pre-existing condition (abrupted placenta and bleeding) to

‘continue unabated.’” CCMC Appellee’s Brief 32-33. According to CCMC, Dr.

Harlass “never states that an instruction to divert would have allowed for timely

intervention to save Ms. Flores’ life.” CCMC Appellee’s Brief at 33.

       An expert report must explain, to a reasonable degree, how and why the

alleged breach caused the complained of injury based on the facts presented. See

Jelinek v. Casas, 328 S.W.3d 526, 539–40 (Tex. 2010). Here, contrary to CCMC’s
                                          11
 
assertions, Dr. Harlass’s report does just that. Dr. Harlass opines that CCMC’s

failure to inform “the EMS personnel not to divert when [Yolanda] was in an

emergency situation” resulted in “her bleeding [to] continue unabated.” CR 91.

And the unabated bleeding resulted in Yolanda’s “cardiovascular arrest, DIC and

death.” Id.

      Thus, Dr. Harlass provided a causation opinion that was not conclusory and

gave a “fair summary” of his opinions “regarding the causal relationship between

the failure of [CCMC] to provide care in accord with the pertinent standard of

care” and Yolanda’s injuries and death. See Cornejo, 446 S.W.3d at 123; Fortner

v. Hosp. of the Sw., LLP, 399 S.W.3d 373, 383 (Tex. App.—Dallas 2013, no pet.).

      B. Dr. Harlass is qualified to render a causation opinion against CCMC

      CCMC asserts that chapter 74 requires Appellants to provide an expert

report from someone qualified to offer opinions on the blood loss Yolanda suffered

en route to CCMC. CCMC Appellee’s Brief at 33. Dr. Harlass is so qualified.

      In his expert report, Dr. Harlass notes that he has been practicing obstetrics

and gynecology since 1980, and he is board certified in both Obstetrics and

Gynecology and Maternal-Fetal Medicine (“OBGYN/MFM”) by the American

Board of Obstetrics and Gynecology. CR 92. He has experience treating hundreds

of patients in preterm labor with placenta previa or accreta, like Yolanda. Id.




                                         12
 
      Dr. Harlass has been a professor of, and regional chair of, OB/GYN at Texas

Tech University School of Medicine, and a director of that school’s residency

program. Id. at 99. He has published a paper on placenta accreta, among dozens

of other papers. Id. at 102. In addition, Dr. Harlass’s report established his

familiarity with the issues involved in the claims in this case. Id. at 92.

      Dr. Harlass’s report shows that he has experience in treating and diagnosing

patients with the conditions suffered by Yolanda, namely preterm labor and

placenta accreta. CR 91. Dr. Harlass’s report also states how Yolanda’s condition,

placenta accreta, can detach and cause a patient to bleed profusely. Id. As a result

of Dr. Harlass’s experience in treating hundreds of patients with Yolanda’s exact

condition, his is qualified to render an opinion as to the cause of Yolanda’s death.

See Tawa v. Gentry, No. 01–12–00407–CV, 2013 WL 1694869, at *7 (Tex. App.–

Houston [1st Dist.] Apr. 18, 2013, no pet.) (mem. op.) (holding expert sufficiently

qualified to opine on standard of care by “showing the injury involved was of the

type [the expert] treated in his practice” (internal quotation marks omitted));

Hillery v. Kyle, 371 S.W.3d 482, 487 (Tex. App.—Houston [1st Dist.] 2012, no

pet.) (concluding the expert was qualified, where expert stated familiarity “with the

standards of care relevant to the condition involved in th[e] claim” and he had

“diagnosed and treated, ‘patients with the conditions similar to those experienced

by’” plaintiff); Rittger v. Danos, 332 S.W.3d 550 at 558–59 (Tex. App.—Houston


                                          13
 
[1st Dist.] 2009, no pet.) (noting focus not on defendant doctor's area of expertise,

but on condition involved in claim).

REPLY POINT FOUR: Alternatively, Appellants are entitled to amend
reports.
 
      In the event this Court finds Appellants’ expert reports deficient, CCMC

argues Appellants are not entitled to remand for the trial court to consider a 30-day

extension.    CCMC contends that “Appellants have not produced a report

concluding the claims against CCMC have merit.” CCMC Appellee’s Brief 33.

      To be effective, an expert report must inform the defendant about the

conduct complained of and must provide a basis from which the trial court can

determine whether the claims have merit. Am. Transitional Care Ctrs. of Tex., Inc.

v. Palacios, 46 S.W.3d 873, 879 (Tex. 2001). The report “must address all the”

statutory elements, “and omissions may not be supplied by inference.” Scoresby,

346 S.W.3d at 556.

      The Supreme Court set out a “minimal standard” under which a claimant

who timely files a deficient report may be entitled to a 30-day extension to cure the

deficiencies rather than have his suit dismissed for failing to file a timely expert

report. Id. at 557. Under this standard, a 30-day extension 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.” Id.

                                          14
 
      Here, the reports are not fatally deficient, nor can they be considered “no

report” under the statute. The expert reports of Nurse Spears and Dr. Harlass in

this case were timely served, were offered by individuals with expertise in caring

for patients in emergency labor and delivery situations, and implicated CCMC’s

conduct.   See Scoresby, 346 S.W.3d at 557.        Because Appellants met these

minimum qualifications, they should be entitled to one 30-day extension to cure

the deficiencies in the reports. See Christus Spohn Health Sys. Corp. v. Castro,

No. 13-13-00302-CV, 2013 WL 6576041, at *7 (Tex. App.—Corpus Christi Dec.

12, 2013, no pet.) (mem. op.).

                                     PRAYER

      Appellants pray that the trial court’s orders granting the motions to dismiss

be reversed and the case be remanded for further proceedings.

                                 Respectfully submitted,

                                 WEST, WEBB, ALLBRITTON & GENTRY, P.C.
                                 1515 Emerald Plaza
                                 College Station, Texas 77845-1515
                                 Telephone: (979) 694-7000
                                 Facsimile: (979) 694-8000

                                 By: /s Gaines West
                                 Gaines West
                                 State Bar No. 21197500
                                 gaines.west@westwebblaw.com
                                 Jennifer D. Jasper
                                 State Bar No.: 24027026
                                 E-mail: jennifer.jasper@westwebblaw.com


                                         15
 
                               Donald Delgado
                               State Bar No. 24065139
                               donald.delgado@westwebblaw.com

                               Counsel for Appellants



                     CERTIFICATE OF COMPLIANCE

       I certify that this Reply BRIEF OF APPELLANTS complies with the typeface
and word-count requirement set forth in the Rules of Appellate Procedure. This
motion has been prepared, using Microsoft Word, in 14-point Times New Roman
font for the text and 12-point Times New Roman font for any footnotes. This
motion contains 3418 words, as determined by the word count feature of the word
processing program used to prepare this document, excluding those portions of the
notice exempted by TEX. R. APP. P. 9.4(i)(1).


                                            /s Gaines West
                                            Gaines West




                                       16
 
                         CERTIFICATE OF SERVICE

       On July 6, 2015, the undersigned certifies that he served a copy of this Reply
Brief of Appellants on the following in the manner listed below, in compliance
with Texas Rules of Appellate Procedure 9.5 and 25.1(e):

Nichole G. Andrews                             Via Facsimile ~ 713.452.4499
Christopher Knudsen                            ECF Email
Margaret Garib                                 nandrews@serpejones.com
Serpe, Jones, Andrews, Collender & Bell        cknudsen@serpejones.com
2929 Allen Parkway, Suite 1600                 mgarib@serpejones.com
Houston, Texas 77019

Jeffrey D. Roerig                              Via Facsimile ~ 956.542.0016
David M. Roerig                                And ECF Email
Roerig, Oliverira & Fisher, LLP                ruthm@rofllp.com
855 West Price Road, Suite 9                   jroerig@rofllp.com
Brownsville, Texas 78520-8786

                                              /s Gaines West
                                              Gaines West




                                         17
 
CASES AND STATUTES
Bowie Memorial Hosp. v. Wright, 79 S.W.3d 48 (2002)
45 Tex. Sup. Ct. J. 833

                                                                        fractured led to necessity of two additional
                                                                        surgeries. Vernon's Ann.Texas Civ.St. art. 4590i,
                      79 S.W.3d 48
                                                                        § 13.01(l), (r)(6).
                 Supreme Court of Texas.
                                                                        213 Cases that cite this headnote
         BOWIE MEMORIAL HOSPITAL a/
          k/a Bowie Hospital District d/b/a
       Bowie Hospital District Authority d/b/                     [2]   Health
       a Bowie Memorial Hospital, Petitioner,                               Affidavits of merit or meritorious defense;
                         v.                                             expert affidavits
   Barbara WRIGHT and P.L. Wright, Respondents.                         For an expert's report to constitute a “good-
                                                                        faith effort” to comply with statutory definition
            No. 01–0814.       |   June 13, 2002.                       of an expert report, pursuant to the Medical
                                                                        Liability and Insurance Improvement Act, report
Patient brought medical malpractice action against hospital,            must provide enough information to fulfill two
physician, physician's assistant, and others, alleging that             purposes: (1) report must inform defendant
failure to timely discover that her foot was fractured led to           of specific conduct plaintiff has called into
necessity of two additional surgeries. The 78th District Court,         question, and (2) equally important, report must
Wichita County, Keith Nelson, J., dismissed patient's claims.           provide basis for trial court to conclude that
Patient appealed. The Fort Worth Court of Appeals, 48 S.W.              claims have merit. Vernon's Ann.Texas Civ.St.
3d 443, affirmed in part, reversed in part, and remanded. Upon          art. 4590i, § 13.01(l), (r)(6).
grant of hospital's petition for review, the Supreme Court held
that expert report submitted by patient did not constitute a            259 Cases that cite this headnote
good-faith effort to summarize causal relationship between
hospital's alleged failure to meet applicable standards of care
                                                                  [3]   Health
and patient's injury under Medical Liability and Insurance
                                                                            Affidavits of merit or meritorious defense;
Improvement Act.
                                                                        expert affidavits

Reversed.                                                               In determining the adequacy of an expert
                                                                        report under the Medical Liability and Insurance
                                                                        Improvement Act, the trial court should look
                                                                        no further than the report. Vernon's Ann.Texas
 West Headnotes (8)                                                     Civ.St. art. 4590i, § 13.01(l).

                                                                        10 Cases that cite this headnote
 [1]    Health
            Affidavits of merit or meritorious defense;
        expert affidavits                                         [4]   Health
                                                                            Affidavits of merit or meritorious defense;
        Expert report submitted by patient did not
                                                                        expert affidavits
        constitute a good-faith effort to summarize
        causal relationship between hospital's alleged                  For an expert's report to satisfy the requirements
        failure to meet applicable standards of care                    of the Medical Liability and Insurance
        and patient's injury under Medical Liability                    Improvement Act, the report need not marshal
        and Insurance Improvement Act; report lacked                    all the plaintiff's proof, but it must include the
        information linking expert's conclusion, which                  expert's opinion on each of the three elements
        was that patient might have had a better outcome,               that the Act identifies: standard of care, breach,
        to hospital's alleged breach, which was that                    and causal relationship. Vernon's Ann.Texas
        it did not correctly read and act upon x-rays,                  Civ.St. art. 4590i, § 13.01(l).
        thus requiring dismissal of patient's medical
                                                                        115 Cases that cite this headnote
        malpractice action against hospital, alleging that
        failure to timely discover that her foot was


               © 2015 Thomson Reuters. No claim to original U.S. Government Works.                                           1
Bowie Memorial Hosp. v. Wright, 79 S.W.3d 48 (2002)
45 Tex. Sup. Ct. J. 833


 [5]    Health                                                Attorneys and Law Firms
            Affidavits of merit or meritorious defense;
        expert affidavits                                     *50 Gregory J. Lensing, Charles T. Frazier, Jr. Cowles &
                                                              Thompson, Dallas, Susan Irene Nelson, Dallas, for Petitioner.
        In determining the adequacy of an expert
        report under the Medical Liability and Insurance      Britta Jean Gordon, Michael Kevin Queenan, Queenan Law
        Improvement Act, a report cannot merely state         Firm, DeSoto, for Respondents.
        the expert's conclusions about standard of care,
        breach, and causal relationship; rather, the expert   Opinion
        must explain the basis of his statements to link
        his conclusions to the facts. Vernon's Ann.Texas      PER CURIAM.
        Civ.St. art. 4590i, § 13.01(l).
                                                              This case involves the Medical Liability and Insurance
        219 Cases that cite this headnote                     Improvement Act's (“the Act”) expert-report requirements.
                                                              See TEX.REV.CIV. STAT. art. 4590i, § 13.01. The trial
                                                              court dismissed the plaintiffs' medical malpractice claims
 [6]    Appeal and Error                                      after it determined that their expert report did not satisfy
           Rulings on Motions Relating to Pleadings           the Act's requirements. The court of appeals concluded that
        Trial court's order dismissing a claim for failure    the trial court abused its discretion when it dismissed the
        to comply with Medical Liability and Insurance        plaintiffs' claims, because the expert report represented a
        Improvement Act's requirements for an expert          good-faith effort to comply with the Act. 48 S.W.3d 443, 448.
        report is reviewed under an abuse-of- discretion      We disagree. Accordingly, we reverse the court of appeals'
        standard. Vernon's Ann.Texas Civ.St. art. 4590i,      judgment and dismiss with prejudice the Wrights' claims
        § 13.01(l), (r)(6).                                   against Bowie Memorial Hospital.

        73 Cases that cite this headnote                      Barbara Wright was admitted to Bowie after she sustained
                                                              injuries in a car accident. While at Bowie, Michael Layne, a
 [7]    Appeal and Error                                      physician's assistant that Bowie employed, x-rayed Barbara's
           Abuse of discretion                                right knee and foot and diagnosed her with a fractured patella.
                                                              However, Layne allegedly misplaced or misread the foot x-
        A trial court abuses its discretion if it acts in
                                                              ray and, therefore, did not discover that Barbara had also
        an arbitrary or unreasonable manner without
                                                              fractured her right foot in the accident. Shortly after Barbara
        reference to any guiding rules or principles.
                                                              was admitted to Bowie, Dr. Hodde, Layne's supervisor,
        171 Cases that cite this headnote                     recommended that Bowie refer her to an orthopedic surgeon.
                                                              Barbara was immediately referred to an orthopedic surgeon
                                                              and transferred to another hospital. Her accompanying
 [8]    Appeal and Error
                                                              medical report, which Layne prepared, only indicated that
           Power to Review
                                                              Barbara had a fractured knee.
        When reviewing matters committed to the trial
        court's discretion, a court of appeals may not        Nearly a month after the accident, Barbara's orthopedic
        substitute its own judgment for the trial court's     surgeon discovered Barbara's fractured foot. By that time, the
        judgment.                                             surgeon had already operated on Barbara's knee. The Wrights
                                                              claim that the surgeon could have operated on Barbara's
        89 Cases that cite this headnote
                                                              foot at the same time if he had known about the injury.
                                                              Instead, Barbara had two additional surgeries over the next
                                                              ten months.

                                                              Barbara and her husband sued Bowie, Layne, and Dr.
                                                              Hodde for medical malpractice. The Wrights also sued
                                                              the orthopedic surgeon, another treating doctor, and three



               © 2015 Thomson Reuters. No claim to original U.S. Government Works.                                        2
Bowie Memorial Hosp. v. Wright, 79 S.W.3d 48 (2002)
45 Tex. Sup. Ct. J. 833

medical clinics not associated with Bowie. The Wrights'             Nevertheless, the Wrights claimed that, if Bowie's report had
allegations pertinent here are that Bowie personnel did not:        indicated that Barbara had a broken foot, it would have been
diagnose Barbara's foot fracture; protect her foot; review          “much easier” for the orthopedic doctor to make a proper
diagnostic tests ordered and administered at the hospital; or       diagnosis. After the second hearing, the trial court granted
properly supervise Layne.                                           Bowie's motion to dismiss. The record indicates that the trial
                                                                    court did not believe the Wrights' claims against Bowie, “the
The Wrights filed an expert medical report about Bowie's,           people who transferred [Barbara],” had merit, given that the
Dr. Hodde's, and another doctor's alleged negligence. See           orthopedic surgeon “could have done his own work.”
TEX.REV.CIV. STAT. art. 4590i, § 13.01(d). The expert
report states, in part:                                             The court of appeals reversed and remanded, holding that
                                                                    the trial court abused its discretion when it dismissed the
  I have reviewed the material you sent me on the above             Wrights' claims against Bowie. 48 S.W.3d at 448. The
  case. I believe that the hospital fell below the appropriate      court concluded that the report inadequately summarizes
  standard of care in not having a defined mechanism in place       the causal relationship between Bowie's alleged negligence
  whereby x-rays taken in the E.R. are read by a physician          and Barbara's injury. However, it determined that the report
  specialized in interpreting the films in a timely manner (i.e.,   represents a good-faith effort to comply with the Act, because
  less than 24 hrs). X-rays taken in the E.R. need to have          it raises the possibility that, but for Bowie's breach, Barbara
  re-reads performed within 24 hrs and if *51 there is a            “would have had a better outcome.” 48 S.W.3d at 447.
  discrepency [sic] in the x-ray readings a system should be
  in place to inform the patient of this. There did not appear to    [1]    Medical-malpractice plaintiffs must provide each
  be any procedure that the hospital has for tracking x-rays.       defendant physician and health-care provider an expert report
  The hospital also doesn't seem to have a system of orienting      with the expert's curriculum vitae, or they must voluntarily
  health care professionals working in the E.R. nor any form        nonsuit the action. See TEX.REV.CIV. STAT. art. 4590i, §
  of Q/A for P.A.'s staffing the E.R. There didn't appear to        13.01(d); American Transitional Care Ctrs. of Tex., Inc. v.
  be any organized system or protocols for P.A. supervision         Palacios, 46 S.W.3d 873, 877 (Tex.2001). The expert report
  in the E.R.                                                       must provide “a fair summary of the expert's opinions as of
                                                                    the date of the report regarding applicable standards of care,
  ...
                                                                    the manner in which the care rendered by the physician or
  I do believe that it is reasonable to believe that if the x-      health care provider failed to meet the standards, and the
  rays would have been correctly read and the appropriate           causal relationship between that failure and the injury, harm,
  medical personnel acted upon those findings then Wright           or damages claimed.” TEX.REV.CIV. STAT. art. 4590i,
  would have had the possibility of a better outcome.               § 13.01(r)(6). If a plaintiff timely files an expert report
                                                                    and the defendant moves to dismiss because of the report's
Bowie moved to dismiss the Wrights' claims, alleging                inadequacy, the trial court must grant the motion “only if it
that the expert report “fails to establish how any act or           appears to the court, after hearing, that the report does not
omission of employees of Bowie Memorial Hospital caused             represent a good faith effort to comply with the definition of
or contributed to Ms. Wright's injuries.” Therefore, Bowie          an expert report in Subsection (r)(6) of this *52 section.”
argued, the report does not satisfy the Act's requirements.         TEX.REV.CIV. STAT. art. 4590i, § 13.01(l ) (emphasis
                                                                    added).
The trial court held two hearings to determine if the report
represents a good-faith effort to meet the Act's requirements.       [2]     We recently discussed the Act's expert-report
See TEX.REV.CIV. STAT. art. 4590i, § 13.01(l ). At                  requirement for medical-malpractice cases. See Palacios,
the first hearing, the trial court asked about the causal           46 S.W.3d at 877–80. In Palacios, we explained that,
relationship between Bowie's conduct and Barbara's injury.          when considering a motion to dismiss under section 13.01(l
The Wrights explained that if Bowie had diagnosed Barbara's         ), “[t]he issue for the trial court is whether ‘the report’
fractured foot earlier, then she “probably would have had           represents a good-faith effort to comply with the statutory
a better outcome.” They also conceded that the orthopedic           definition of an expert report.” Palacios, 46 S.W.3d at 878.
specialist Barbara saw immediately after leaving Bowie              To constitute a “good-faith effort,” the report must provide
“had an independent duty to verify” Bowie's medical report.         enough information to fulfill two purposes: (1) it must inform



               © 2015 Thomson Reuters. No claim to original U.S. Government Works.                                              3
Bowie Memorial Hosp. v. Wright, 79 S.W.3d 48 (2002)
45 Tex. Sup. Ct. J. 833

the defendant of the specific conduct the plaintiff has called  expert report must fulfill Palacios 's two-part test. See
into question, and (2) it must provide a basis for the trial court
                                                                Palacios, 46 S.W.3d at 879. Thus, under the Palacios test,
to conclude that the claims have merit. Palacios, 46 S.W.3d     we must determine whether the trial court acted unreasonably
at 879.                                                         and without reference to guiding principles when it dismissed
                                                                the Wrights' claims against Bowie. See Downer, 701 S.W.2d
 [3] [4] [5] The trial court should look no further than at 241–42.
the report itself, because all the information relevant to the
inquiry is contained within the document's four corners.        The Wrights primarily rely on one statement in the report to
Palacios, 46 S.W.3d at 878. The report need not marshal all     establish causation: “if the x-rays would have been correctly
the plaintiff's proof, but it must include the expert's opinion read and the appropriate medical personnel *53 acted upon
on each of the three elements that the Act identifies: standard those findings then Wright would have had the possibility
of care, breach, and causal relationship. Palacios, 46 S.W.3d   of a better outcome.” In their brief to this Court, the
at 878. A report cannot merely state the expert's conclusions   Wrights contend that this statement “explains why Petitioners'
about these elements. Palacios, 46 S.W.3d at 879. “[R]ather,    damages were caused by Bowie Hospital's breach: if the
the expert must explain the basis of his statements to link his proper medical personnel at Bowie had reviewed the x-rays,
conclusions to the facts.” Earle v. Ratliff, 998 S.W.2d 882,    [Barbara] would have had a chance of diagnosis and treatment
890 (Tex.1999).                                                 of her foot fracture.”

 [6] [7] [8] We review a trial court's order dismissing a Bowie responds that the report's statement about causation is
claim for failure to comply with section 13.01(d)'s expert-     conclusory, because it does not explain how Bowie's failing to
report requirements under an abuse-of-discretion standard.      correctly read or act upon the x-rays caused injury to Barbara.
Palacios, 46 S.W.3d at 878. A trial court abuses its discretion Moreover, Bowie asserts, the statement does not even identify
if it acts in an arbitrary or unreasonable manner without       the specific injuries Bowie's conduct allegedly caused.
reference to any guiding rules or principles. Downer v.
Aquamarine Operators, Inc., 701 S.W.2d 238, 241–42              In reviewing the report's adequacy, the court of appeals
(Tex.1985). When reviewing matters committed to the trial       focused on “whether the report provides a basis to conclude
court's discretion, a court of appeals may not substitute its   that the claims have merit.” 48 S.W.3d at 447 (citing
own judgment for the trial court's judgment. See Flores v.      Palacios, 46 S.W.3d at 878–79). Although the causation
Fourth Ct. of Appeals, 777 S.W.2d 38, 41 (Tex.1989).            statement recognizes only the “possibility”—rather than the
                                                                “reasonable medical probability”—that Barbara might have
Here, the parties do not dispute that the expert report fairly  had a better outcome, the court of appeals concluded that the
summarizes the alleged standard of care, because it states      report's adequacy should not turn “solely upon the claimant's
that a hospital should have established procedures to read      failure to use magical words like ‘reasonable probability.’ ”
and interpret x-rays in a timely manner and to inform           48 S.W.3d at 447. Accordingly, the court of appeals held that
patients about the results. See TEX.REV.CIV. STAT. art.         the report met the good-faith effort test, because it gave the
4590i, § 13.01(r)(6). Also, the parties do not dispute that the trial court a basis to conclude that the Wrights' claims against
report fairly summarizes how Bowie allegedly breached the       Bowie have merit. 48 S.W.3d at 448.
standard of care, because the report states that Bowie did not
have a procedure to track x-rays. See TEX.REV.CIV. STAT.        We agree with the court of appeals' conclusion that a
art. 4590i, § 13.01(r)(6). Consequently, the parties only       report's adequacy does not depend on whether the expert uses
contest whether the report constitutes a “good-faith effort”    any particular “magical words.” Nothing in the Act's plain
to fairly summarize the causal relationship between Bowie's     language, or in Palacios, suggests that, for these purposes,
alleged breach and Barbara's injury. See TEX.REV.CIV.           an expert report must express the causal relationship in terms
STAT. art. 4590i, § 13.01(r)(6); Palacios, 46 S.W.3d at 879.    of “reasonable medical probability.” However, we disagree
                                                                with the court of appeals' conclusion that the trial court
Contrary to the court of appeals' conclusion, it is not enough  abused its discretion in dismissing the Wrights' claims against
that the expert report “provided insight” about the plaintiff's Bowie. We have held that the only information relevant to
claims. See 48 S.W.3d at 447. Rather, to constitute a good-     whether a report represents a good-faith effort to comply with
faith effort to establish the causal-relationship element, the  the statutory requirements is the report itself. Palacios, 46



                © 2015 Thomson Reuters. No claim to original U.S. Government Works.                                          4
Bowie Memorial Hosp. v. Wright, 79 S.W.3d 48 (2002)
45 Tex. Sup. Ct. J. 833

                                                                      trial court could have reasonably determined that the report
S.W.3d at 878. And, we have held that we review a trial court's
                                                                      was conclusory. See Palacios, 46 S.W.3d at 880; Earle, 998
decision about whether a report constitutes a good-faith effort
                                                                      S.W.2d at 890. A conclusory report does not meet the Act's
to comply with the Act under an abuse-of-discretion standard.
                                                                      requirements, because it does not satisfy the Palacios test.
Palacios, 46 S.W.3d at 878.
                                                                      Palacios, 46 S.W.3d at 879.
After reviewing this report, we conclude that the trial
                                                                       *54 For these reasons, we hold that the trial court did not
court could have reasonably determined that the report does
                                                                      abuse its discretion when it concluded that the report did not
not represent a good-faith effort to summarize the causal
                                                                      represent a good-faith effort to meet the Act's requirements.
relationship between Bowie's failure to meet the applicable
                                                                      Therefore, the trial court had no discretion but to dismiss
standards of care and Barbara's injury. See TEX.REV.CIV.
                                                                      the plaintiffs' claims against Bowie. See TEX.REV.CIV.
STAT. art. 4590i, § 13.01(r)(6); Palacios, 46 S.W.3d at
                                                                      STAT. art. 4590i, § 13.01(l ); Palacios, 46 S.W.3d at 880.
879. That is because the report simply opines that Barbara
                                                                      In reviewing the trial court's order, the court of appeals
might have had “the possibility of a better outcome” without
                                                                      improperly substituted its own judgment for the trial court's
explaining how Bowie's conduct caused injury to Barbara.
                                                                      judgment. See Flores, 777 S.W.2d at 41. Accordingly, we
We cannot infer from this statement, as the Wrights ask us to,
                                                                      grant Bowie's petition for review. Without hearing oral
that Bowie's alleged breach precluded Barbara from obtaining
                                                                      argument, we reverse the court of appeals' judgment and
a quicker diagnosis and treatment for her foot. Rather, the
                                                                      dismiss with prejudice the Wrights' claims against Bowie. See
report must include the required information within its four
                                                                      TEX.R.APP. P. 59.1.
corners. See TEX.REV.CIV. STAT. art. 4590i, § 13.01(r)
(6); Palacios, 46 S.W.3d at 878. Because the report lacks
information linking the expert's conclusion (that Barbara
                                                                      All Citations
might have had a better outcome) to Bowie's alleged breach
(that it did not correctly read and act upon the x-rays), the         79 S.W.3d 48, 45 Tex. Sup. Ct. J. 833

End of Document                                                   © 2015 Thomson Reuters. No claim to original U.S. Government Works.




               © 2015 Thomson Reuters. No claim to original U.S. Government Works.                                                 5
Christus Spohn Health System Corp. v. Castro, Not Reported in S.W.3d (2013)
2013 WL 6576041


                                                                       On or about October 24, 2011, 50–year–old Jose Castro
                  2013 WL 6576041                                      was in a serious car accident. He was a belted passenger
    Only the Westlaw citation is currently available.                  in a Ford F–150 crew cab. The truck rolled and the roof
                                                                       crushed, causing severe injuries to Mr. Castro. Mr. Castro
          SEE TX R RAP RULE 47.2 FOR
                                                                       was transported via helicopter to the emergency room at
    DESIGNATION AND SIGNING OF OPINIONS.
                                                                       Christus Spohn Hospital in critical condition. Mr. Castro
             MEMORANDUM OPINION                                        sustained severe injuries including, but not limited to,
              Court of Appeals of Texas,                               fracture and dislocation of his cervical spine at C5–C6,
              Corpus Christi–Edinburg.                                 multiple rib fractures, a collapsed lung, and damage to his
                                                                       right phrenic nerve. He remained in intensive care through
             CHRISTUS SPOHN HEALTH                                     most of December 2011. Mr. Castro had no sensation or
          SYSTEM CORPORATION, Appellant,                               movement below the nipple line, putting him at high risk
                        v.                                             of skin breakdown.
               Jose CASTRO, Appellee.
                                                                       In November 2011, Mr. Castro developed a pressure ulcer
        No. 13–13–00302–CV.           |   Dec. 12, 2013.               on his tail bone. The cause was the use of the tangible
                                                                       property, the hospital bed. By the time Mr. Castro was
On appeal from the 117th District Court of Nueces County,              discharged from Christus Spohn Hospital in February
Texas. Sandra Watts, Judge.                                            2012, the pressure ulcer had progressed to a grade III
                                                                       decubitus ulcer....
Attorneys and Law Firms
                                                                       At all relevant times hereto, Mr. Castro was a patient of
Lori W. Hanson, Beirne, Maynard & Parsons, LLP, San                    Christus Spohn Hospital.
Antonio, TX, for Appellant.
                                                                   Complaining of the pressure ulcer, in particular, Castro
Collen A. Clark, The Clark Firm, Dallas, TX, for Appellee.
                                                                   brought a health care liability claim against Spohn. 1 In that
Before Chief Justice VALDEZ and Justices RODRIGUEZ                 claim, Castro alleged that Spohn was negligent in: its use of
and GARZA.                                                         the hospital bed; its failure to develop and employ policies to
                                                                   oversee patients like Castro; its failure to train and supervise
                                                                   personnel to carry out such policies; its failure to render
               MEMORANDUM OPINION                                  appropriate medical and nursing intervention to Castro; its
                                                                   failure to provide adequate nutritional support to Castro; its
Memorandum Opinion by Justice RODRIGUEZ.                           failure to plan for and protect Castro from bedsores and
                                                                   ulcers; its failure to follow Castro's doctors' orders; and
 *1 Appellant Christus Spohn Health System Corporation
                                                                   its failure to maintain the highest practical level of care
(Spohn) challenges the trial court's denial of its motion to
                                                                   for Castro. Castro alleged that this negligence proximately
dismiss appellee Jose Castro's health care liability claim.
                                                                   caused the injuries he suffered at Spohn.
SeeTEX. CIV. PRAC. & REM.CODE ANN. § 74.351(b)
(West 2011). By two issues, Spohn argues that: (1) Castro's
                                                                   1        In this same lawsuit, Castro has also alleged causes
experts were not qualified to opine on the specific area of
                                                                            of action against the driver of the truck for negligence
health care involved in this suit; and (2) Castro's reports were
                                                                            and against Ford Motor Company for products liability.
contradictory and conclusory and were therefore “no reports”
                                                                            Neither of those causes of action are before us in this
under the law. See id. § 74.351(l ), (r)(6). We reverse and
                                                                            accelerated, interlocutory appeal.
remand.
                                                                   In support of his health care liability claim, Castro timely
                                                                   filed two expert reports—one authored by Donna du Bois,
                                                                   MPH, RN and another authored by Perry Starer, M.D. Both
                       I. Background                               du Bois and Dr. Starer are geriatric specialists with extensive
                                                                   experience in caring for pressure ulcers in hospital and
Castro alleged the following facts in his petition:
                                                                   nursing home settings. Spohn objected to both expert reports,


                © 2015 Thomson Reuters. No claim to original U.S. Government Works.                                                    1
Christus Spohn Health System Corp. v. Castro, Not Reported in S.W.3d (2013)
2013 WL 6576041

arguing that neither du Bois nor Dr. Starer was qualified           comply with the definition of an expert report in Subsection
to offer opinions as to the conditions under which Castro           (r)(6).”Id. § 74.351(l ); see Loaisiga v. Cerda, 379 S.W.3d
suffered his injuries, i.e., the development of a pressure ulcer    248, 260 (Tex.2012). To qualify as an objective good faith
in trauma care conditions while Castro was simultaneously           effort, the report must (1) inform the defendant of the specific
suffering from quadriplegia, diabetes, bacterial infections,        conduct the plaintiff complains of, and (2) provide a basis
and respiratory distress. Spohn also filed motions to dismiss       for the trial court to conclude that the plaintiff's claims have
Castro's health care liability claim, arguing that Castro's         merit. Scoresby v. Santillan, 346 S.W.3d 546, 556 (Tex.2011)
reports are “no reports” and the claim should therefore be          (citing Palacios, 46 S.W.3d at 879). The report and/or its
dismissed because neither du Bois nor Dr. Starer is qualified       accompanying curriculum vitae (CV) must also establish
and the reports are contradictory and conclusory. After a           that the report's author is qualified to opine as an expert
hearing, the trial court denied Spohn's objections and motions      on the subject matter of the report.Leland v. Brandal, 217
to dismiss. This accelerated, interlocutory appeal followed.        S.W.3d 60, 62 (Tex.App.-San Antonio 2006), aff'd on other
See id. § 51.014(a)(9) (West Supp.2011).                            grounds,257 S.W.3d 204 (Tex.2008). Those qualifications
                                                                    must appear within the four corners of the expert report
                                                                    and cannot be inferred. Id.; see also Palacios, 46 S.W.3d
                                                                    at 878; Baylor Coll. of Med. v. Pokluda, 283 S.W.3d 110,
                   II. Standard of Review
                                                                    117 (Tex.App.-Houston [14th Dist.] 2009, no pet.). To meet
 *2 We review a trial court's decision with respect to              the “good faith effort” requirement, “[n]o particular words or
expert reports and the qualifications of experts for an abuse       formality are required, but bare conclusions will not suffice.
of discretion. Larson v. Downing, 197 S.W.3d 303, 304–              The report must address all the elements, and omissions
05 (Tex.2006); Jernigan v. Langley, 195 S.W.3d 91, 93               may not be supplied by inference.”Scoresby, 346 S.W.3d
(Tex.2006); Am. Transitional Care Ctrs. of Tex., Inc. v.            at 556 (citations omitted).“The purpose of the expert report
Palacios, 46 S.W.3d 873, 876 (Tex.2001). The trial court            requirement is to deter frivolous claims, not to dispose of
abuses its discretion if it acts unreasonably or arbitrarily or     claims regardless of their merits.”Id. at 554 (citation omitted).
without reference to any guiding rules or principles. Walker
v. Gutierrez, 111 S.W.3d 56, 62 (Tex.2003).                         A report meets the minimum qualifications for an expert
                                                                    report 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.”Id. at 557.If a report meets
                     III. Applicable Law                            these qualifications but is deficient, the claimant is entitled to
                                                                    one thirty-day extension to cure the deficiencies. TEX. CIV.
Under Chapter 74, an expert report is defined as:
                                                                    PRAC. & REM.CODE ANN. § 74.351(c).“All deficiencies,
             a written report by an expert that                     whether in the expert's opinions or qualifications, are subject
             provides a fair summary of the expert's                to being cured before an appeal may be taken from the trial
             opinions as of the date of the report                  court's refusal to dismiss the case.”Scoresby, 346 S.W.3d at
             regarding applicable standards of care,                557;see also Leland, 257 S.W.3d at 207–08 (holding that
             the manner in which the care rendered                  when elements of a timely filed expert report are found
             by the physician or health care                        deficient, either by the trial court or on appeal, one thirty-day
             provider failed to meet the standards,                 extension to cure the report may be granted).
             and the causal relationship between
             that failure and the injury, harm, or
             damages claimed.
                                                                                    IV. Qualifications of Experts
TEX. CIV. PRAC. & REM.CODE ANN. § 74.351(r)(6).                      *3 By its first issue, Spohn contends that because the care
When a document purporting to be an expert report is timely         provided to Castro by the hospital was under intensive care
served and is properly challenged, as is the case here, the trial   unit (ICU) or trauma conditions, his development of pressure
court “shall grant [the] motion challenging the adequacy of         ulcers must be addressed in the context of those conditions.
[the] report only if it appears to the court, after hearing, that   And because neither du Bois nor Dr. Starer practice in the
the report does not represent an objective good faith effort to



                © 2015 Thomson Reuters. No claim to original U.S. Government Works.                                                2
Christus Spohn Health System Corp. v. Castro, Not Reported in S.W.3d (2013)
2013 WL 6576041

field of ICU/trauma care, Spohn argues that they are not           treatment of pressure ulcers to both physicians and nurses.
qualified to author expert reports in this case.                   Finally, Dr. Starer states:

To be qualified to provide opinion testimony on whether                        In the regular course of my medical
a health care provider departed from the accepted standard                     practice, I have occasion to diagnose
of care, an expert must satisfy section 74.402. SeeTEX.                        and treat patients with conditions
CIV. PRAC. & REM.CODE ANN. § 74.351(r)(5)(B).Section                           substantially similar to or identical
74.402 lists three specific qualifications an expert witness                   with those of Jose Castro, including
must possess to provide opinion testimony on how a health                      mobility limitations. I have also served
care provider departed from accepted standards of health care                  as a primary care physician for
—the expert must:                                                              hospital and nursing home patients
                                                                               since 1985. Over the course of my
  (1) [be] practicing health care in a field of practice that                  career, I have been the primary care
     involves the same type of care or treatment as that                       physician for more than 5,000 patients
     delivered by the defendant health care provider, if the                   in hospitals and nursing homes. Many
     defendant health care provider is an individual, at the                   of those patients have struggled with
     time the testimony is given or was practicing that type                   disabilities similar to those Jose
     of health care at the time the claim arose;                               Castro experienced. Accordingly, I
                                                                               have cared for and treated numerous
  (2) [have] knowledge of accepted standards of care for                       patients who, like Jose Castro, were
     health care providers for the diagnosis, care, or treatment               at risk for development of pressure
     of the illness, injury, or condition involved in the claim;               ulcers.
     and
                                                                    *4 In their reports and CVs, neither du Bois nor Dr. Starer
  (3) [be] qualified on the basis of training or experience        states that they have experience preventing and treating
     to offer an expert opinion regarding those accepted           bedsores in the context of ICU or trauma care or explains how
     standards of health care.                                     their fields of practice involve the same type of ICU/trauma
                                                                   care Spohn provided to Castro.
Id.§ 74.402(b) (West 2011).

                                                                   Spohn does not dispute that du Bois is an expert in the
A plaintiff offering expert medical testimony must establish
                                                                   field of nursing home care and Dr. Starer is an expert in the
that the report's author has expertise regarding “the specific
                                                                   field of geriatrics and nursing home care, or that these fields
issue before the court which would qualify the expert to give
                                                                   regularly involve the prevention and treatment of pressure
an opinion on that particular subject.”Broders v. Heise, 924
                                                                   ulcers. Rather, Spohn argues that neither expert is practicing
S.W.2d 148, 153 (Tex.1996). Our analysis of the proffered
                                                                   or has otherwise relevant experience in ICU/trauma care,
expert's qualifications focuses on “the very matter” on which
                                                                   which is the relevant field of practice in this case. We agree.
the expert is to give an opinion. Id.
                                                                   In his petition, Castro alleges that he remained in Spohn's
                                                                   trauma unit and ICU from October 24, 2011 through most of
Here, du Bois's CV shows that she has over thirty years'
                                                                   December 2011 as a result of the severe injuries he sustained
experience as a nurse, primarily in the field of nursing home
                                                                   in the car accident, including a collapsed lung, multiple
care and other long-term facility care. In her report, du Bois
                                                                   broken ribs, and a fractured and dislocated spine. In their
stated that she is familiar with the standard of care for the
                                                                   descriptions of Castro's conditions, both du Bois and Dr.
“prevention of pressure ulcers... expected by ordinary prudent
                                                                   Starer acknowledge these serious injuries and that Castro was
nurses in Texas.”In his report, Dr. Starer states that he is “a
                                                                   being cared for under intensive care or trauma conditions.
practicing physician licensed by the State of New York.”Dr.
                                                                   Castro then alleges that his pressure ulcer developed in
Starer states that he has been “board certified in Internal
                                                                   November 2011, which is while he was in the ICU. In short,
Medicine and Geriatrics” since 1985. Dr. Starer states that
                                                                   under the facts alleged in his own petition, it is clear that
he teaches in the field of geriatrics at Mount Sinai School
                                                                   the care provided to Castro by Spohn was trauma and ICU
of Medicine and has given lectures on the prevention and
                                                                   care. Castro's pressure ulcer developed in this context, and
                                                                   his experts must be qualified to opine on his injury in the


               © 2015 Thomson Reuters. No claim to original U.S. Government Works.                                             3
Christus Spohn Health System Corp. v. Castro, Not Reported in S.W.3d (2013)
2013 WL 6576041

context of these conditions. Examining only what is within            is not without limits. See Walker, 111 S.W.3d at 62 (holding
the four-corners of the experts' reports and CVs, see Palacios,       that a court abuses its discretion if it acts without reference to
46 S.W.3d at 878; Pokluda, 283 S.W.3d at 117, we find                 guiding rules and principles). Castro was required to submit
nothing in either du Bois or Dr. Starer's reports that meets this     reports authored by experts who are “practicing health care
requirement.                                                          in a field of practice that involves the same type of care
                                                                      or treatment as that delivered by the defendant health care
Castro argues that Spohn's characterization of the relevant           provider,” have “knowledge of accepted standards of care ...
field of practice in this case sets the bar too high, that            for the diagnosis, care, or treatment of the illness, injury,
Spohn is essentially requiring Castro to find a specialist in         or condition involved in the claim,” and are “qualified on
the treatment of “a 50–year–old quadriplegic with diabetes,           the basis of training or experience to offer an expert opinion
PEG tube feeding, with a tracheostomy [sic] and neurologic            regarding those accepted standards of health care.”SeeTEX.
deficits, with prior cardiac arrest and suffering from bacterial      CIV. PRAC. & REM.CODE ANN. § 74.402(b). Focusing on
infections.”This characterization overstates what is required         the specific issue before the trial court as alleged in Castro's
in this case. Although it is true that an expert need not be a        petition, see Broders, 924 S.W.2d at 153, we cannot conclude
practitioner in the same specialty as the defendant to qualify        that the information provided in du Bois and Dr. Starer's
as an expert, see Broders, 924 S.W.2d at 153, he or she               reports show them to be practicing in the relevant field of
is only competent if he or she has practical knowledge of             practice or show them to have any other relevant experience
what is usually and customarily done by a practitioner under          giving them knowledge of the standard of care for the specific
circumstances similar to those confronting the defendant. See         conditions in this case. SeeTEX. CIV. PRAC. & REM.CODE
Ehrlich v. Miles, 144 S.W.3d 620, 625 (Tex.App.-Fort Worth            ANN. § 74.402(b); Blan, 7 S.W.3d at 746. As such, the trial
2004, pet. denied). In other words, the proper inquiry in             court did not follow guiding rules and principles in denying
assessing an expert's qualifications to submit a report is not        Spohn's objections to the expert's qualifications and motion
his or her area of expertise but his or her familiarity with          to dismiss on this basis. Spohn's first issue is sustained.
the specific issues involved in the claim before the court.
See Blan v. Ali, 7 S.W.3d 741, 746 (Tex.App.-Houston [14th
Dist.] 1999, no pet.); see also Broders, 924 S.W.2d at 153.
                                                                                        IV. Sufficiency of Report
Here, as discussed above, Castro's petition includes facts
showing that the circumstances under which he developed               By its second issue, Spohn argues that Castro's reports were
his pressure ulcer involved trauma and ICU treatment of his           contradictory and conclusory and are therefore “no report”
severe injuries following the accident. His expert must be            under the statute. SeeTEX. CIV. PRAC. & REM.CODE
qualified to render an opinion on the applicable standard             ANN. § 74.351(r)(6); Scoresby, 346 S.W.3d at 551–52.
of care in those circumstances—i.e., the prevention and/or
treatment of pressure ulcers in the context of ICU/trauma             First, Spohn argues that because du Bois and Dr. Starer
     2                                                                identified different conduct as breaches of the standard of
care. We are not persuaded by Castro's argument to the
contrary.                                                             care, their reports, taken together, are inherently inconsistent.
                                                                      See Fung v. Fischer, 365 S.W.3d 507, 530 (Tex.App.-Austin
2        We note that neither du Bois nor Dr. Starer's reports
                                                                      2012), overruled on other grounds, Certified EMS, Inc. v.
         foreclose the possibility that they are qualified in this    Potts, 392 S.W.3d 625 (Tex.2013) (“Reliable expert opinion
         case and may need only to connect the experience             should ... be free from internal inconsistencies.”). Spohn
         they have gained in their thirty-plus year careers to        contends that du Bois identified only two breaches in her
         the conditions in this case. See infra sections V, VI        report: that the nurses caring for Castro failed to make
         (remanding for entry of an order granting Castro a thirty-   accurate records and failed to create an appropriate treatment
         day extension to amend his reports). During his thirty-      plan for the prevention of pressure ulcers. Spohn contends
         day extension, see id., Castro is also entitled to serve     that Dr. Starer likewise identified only two breaches of care
         the reports of additional experts. See In re Buster, 275     in his report: the nurses' failure to correctly use Castro's bed
         S.W.3d 475, 477 (Tex.2008).                                  and failure to turn Castro more frequently. In our review of
 *5 While “[t]he qualification of a witness as an expert is [a        du Bois's report, we found that she also identified as breaches
matter] within the trial court's discretion,”Larson, 197 S.W.3d       of the standard of care that the nurses caring for Castro
at 304 (citing Broders, 924 S.W.2d at 151), such discretion           failed to reposition Castro as needed, failed to assess his skin



                 © 2015 Thomson Reuters. No claim to original U.S. Government Works.                                                 4
Christus Spohn Health System Corp. v. Castro, Not Reported in S.W.3d (2013)
2013 WL 6576041

after each turn, and failed to properly assess and provide for
Castro's nutritional needs. And again, in our review of Dr.       Finally, Spohn argues that the reports do not adequately
Starer's report, we found that he also identified as breaches     establish causation because they do not “explain how taking
of the standard of care that the Spohn staff caring for Castro    any particular action would have prevented the development
“failed to properly develop a care plan for ulcer prevention”     of a pressure ulcer given the complex medical issues involved
and “failed to maintain an accurate and complete clinical         in [Castro]'s care.” Spohn argues that “[w]ithout addressing
record.”In light of the full range of conduct identified by       [these] critical issues, it is impossible to know if [Castro]'s
du Bois and Dr. Starer, we disagree with Spohn that the           pressure ulcer could have been prevented.” On this account,
breaches identified in the separate reports are contradictory;    we agree with Spohn. Although du Bois and Dr. Starer's
for that matter, having examined the reports in their entirety,   reports go into great detail about the procedures necessary
we note that du Bois and Dr. Starer identified largely the same   to prevent pressure ulcers in standard conditions, they do
breaches.                                                         not address the specific conditions present in Castro's care.
                                                                  As discussed in detail above, Castro's claim involves his
 *6 But assuming for the sake of argument that the breaches       development of a pressure ulcer while he was being treated
in the reports are limited to those identified by Spohn,          in Spohn's ICU over the course of several months for severe
we believe that Dr. Starer's report identified additional         injuries he suffered in an automobile accident. Neither du
instances of conduct that breached the standard of care. Read     Bois nor Dr. Starer discusses Castro's injuries in the context
together in the manner in which they are characterized by         of these conditions. And the omission of this context renders
Spohn, the reports are not contradictory, but provide a more      any conclusion on the cause of Castro's injuries incomplete.
complete picture of the instances of conduct giving rise to       Because Castro's reports do not adequately address the
Castro's claim. SeeTEX. CIV. PRAC. & REM.CODE ANN. §              causation element, they did not provide a basis for the
74.351(i) (“Nothing in this section shall be construed to mean    trial court to conclude that Castro's claims have merit. See
that a single expert must address all liability and causation     Palacios, 46 S.W.3d at 879. The reports therefore do not
issues with respect to all physicians or health care providers    amount to a good faith effort to comply with the statute and
or with respect to both liability and causation issues for        are deficient. See Scoresby, 346 S.W.3d at 556 (requiring that
a physician or health care provider.”). Thus, we are not          the report adequately address all the elements to qualify as
persuaded by Spohn's argument in this regard, and the trial       a good-faith effort). The trial court abused its discretion in
court did not abuse its discretion in denying Spohn's motion      denying Spohn's objections and motions to dismiss on this
to dismiss on this basis. Spohn's second issue is overruled in    basis. See Walker, 111 S.W.3d at 62. Spohn's second issue is
so far as it depends on this argument.                            sustained as to its causation argument.

Spohn next argues that du Bois's report, in particular, did no
more than “state that nurses failed to keep accurate records
                                                                                   V. Thirty–Day Extension
or to implement appropriate plans of care.”Spohn argues
that du Bois was required to “state what documentation             *7 Although Castro's expert reports are deficient in that
was inaccurate, what documentation was lacking, on what           they do not establish the authors' qualifications and do not
dates it was wrong or missing and who was responsible             adequately address causation, we do not believe the reports
for that charting.”But du Bois's report includes the exact        are fatally deficient, or “no report” under the statute. Both
elements that Spohn claims are required. Du Bois refers to        meet the minimum qualifications set out in Scoresby—both
specific medical record dates and page numbers throughout         du Bois and Dr. Starer are individuals with expertise who
her report and specifically identifies what she characterizes     opine about Castro's injuries in great detail and implicate the
as the deficiencies in those records. Where du Bois points        conduct of Spohn's staff. See346 S.W.3d at 557. Because
out that certain details are missing from the records, she        Castro met these minimum qualifications, he is entitled to one
does not specify page numbers, but as she is pointing to          thirty-day extension to cure the deficiencies in his reports.
the absence of something, we cannot fault her for failing to      SeeTEX. CIV. PRAC. & REM.CODE ANN. § 74.351(c);
specify where that missing detail is not located. In short, we    see also Scoresby, 346 S.W.3d at 557 (holding that all
are not persuaded by Spohn's generalized assertions in this       deficiencies, whether in an expert's opinion or qualifications,
regard. Again, Spohn's second issue is overruled in so far as     are subject to being cured). This disposition is consistent with
it depends on this argument.                                      the goal of the statute, which is to deter frivolous claims but



               © 2015 Thomson Reuters. No claim to original U.S. Government Works.                                             5
Christus Spohn Health System Corp. v. Castro, Not Reported in S.W.3d (2013)
2013 WL 6576041

                                                                      a thirty-day extension to amend his expert reports. SeeTEX.
not dispose of claims regardless of their merits. See Scoresby,
                                                                      CIV. PRAC. & REM.CODE ANN. § 74.351(c).
346 S.W.3d at 554.


                                                                      All Citations
                       VI. Conclusion
                                                                      Not Reported in S.W.3d, 2013 WL 6576041
We reverse the order of the trial court denying Spohn's motion
to dismiss and remand for entry of an order granting Castro

End of Document                                                   © 2015 Thomson Reuters. No claim to original U.S. Government Works.




               © 2015 Thomson Reuters. No claim to original U.S. Government Works.                                                 6
Cornejo v. Hilgers, 446 S.W.3d 113 (2014)


                                                                       A trial court abuses its discretion if it acts in
                                                                       an arbitrary or unreasonable manner without
                     446 S.W.3d 113
                                                                       reference to guiding rules or principles.
                Court of Appeals of Texas,
                  Houston (1st Dist.).                                 Cases that cite this headnote
   Angela CORNEJO and Carlos Portillo, Appellants
                        v.                                       [3]   Appeal and Error
        Stephen J. HILGERS, M.D., Appellee.                               Power to Review
                                                                       When reviewing matters committed to a trial
       No. 01–13–00752–CV.           |   Aug. 14, 2014.                court's discretion, an appellate court may not
                                                                       substitute its own judgment for that of the trial
Synopsis
                                                                       court.
Background: Mother sued obstetrics and gynecology
resident for medical malpractice in connection with brain              Cases that cite this headnote
injury sustained by her newborn child. Defendant moved
to dismiss mother's claims on grounds that one of mother's
experts was not qualified to address causation, and her          [4]   Appeal and Error
medical expert reports were insufficient as to element of                 Abuse of discretion
causation. The 190th District Court, Harris County, granted            A trial court does not abuse its discretion
motion. Mother appealed.                                               merely because it decides a discretionary matter
                                                                       differently than an appellate court would in a
                                                                       similar circumstance.

Holdings: The Court of Appeals, Terry Jennings, J., held that:         Cases that cite this headnote

[1] mother's expert was qualified to opine on issue of
causation, and                                                   [5]   Health
                                                                           Affidavits of merit or meritorious defense;
[2] mother's expert reports were sufficient as to causation.           expert affidavits
                                                                       If a health care defendant files a motion to
                                                                       dismiss challenging the adequacy of a claimant's
Reversed and remanded.                                                 expert report, a trial court must grant the motion
                                                                       if it appears, after a hearing, that the report does
                                                                       not represent an objective good faith effort to
                                                                       comply with the definition of an expert report,
 West Headnotes (14)
                                                                       under Medical Liability Act, or is not sufficiently
                                                                       specific to provide a basis for the trial court to
 [1]    Appeal and Error                                               conclude that the claims have merit. V.T.C.A.,
           Dismissal or nonsuit before trial                           Civil Practice & Remedies Code § 74.351.
        Appellate review of a trial court's decision on a
                                                                       Cases that cite this headnote
        motion to dismiss a health care liability claim is
        for an abuse of discretion.
                                                                 [6]   Health
        Cases that cite this headnote                                      Affidavits of merit or meritorious defense;
                                                                       expert affidavits
 [2]    Appeal and Error                                               In setting out the expert's opinions in support of
           Abuse of discretion                                         a health care liability claim, the expert's report
                                                                       must provide enough information to fulfill two
                                                                       purposes: first, it must inform the defendant of
                                                                       the specific conduct the plaintiff has called into


               © 2015 Thomson Reuters. No claim to original U.S. Government Works.                                            1
Cornejo v. Hilgers, 446 S.W.3d 113 (2014)


        question, and, second, it must provide a basis               standard of care and the injuries suffered by
        for the trial court to conclude that the claims              patient's baby upon delivery and, thus, presented
        have merit. V.T.C.A., Civil Practice & Remedies              an objective, good faith effort to comply with
        Code § 74.351.                                               the statute governing expert reports in health care
                                                                     liability actions; reports explained link between
        Cases that cite this headnote                                brain injuries suffered by baby and resident's
                                                                     failure to recognize patient's risk factors and
 [7]    Evidence                                                     the late deceleration on the fetal heart monitor,
            Due care and proper conduct in general                   and physician's failure to take action before
                                                                     delivery, by admitting patient to the hospital and
        Though not certified in neonatology, pediatric
                                                                     continuing the fetal monitoring. V.T.C.A., Civil
        neurology, or maternal-fetal medicine, board-
                                                                     Practice & Remedies Code § 74.351(r)(6).
        certified OB/GYN (obstetrics/gynecology)
        physician was qualified based on his experience              Cases that cite this headnote
        and expertise to render expert opinion in medical
        malpractice action as to alleged cause of brain
        injury sustained by newborn child as result of        [11]   Health
        failing to admit mother to hospital, continue to                 Affidavits of merit or meritorious defense;
        monitor fetal heart rate, the fetus for progressive          expert affidavits
        hypoxia and ischemia, and expedite delivery.                 In assessing the sufficiency of an expert report in
        Rules of Evid., Rule 702.                                    a health care liability action, a trial court may not
                                                                     draw inferences; instead, it must exclusively rely
        Cases that cite this headnote                                upon the information contained within the four
                                                                     corners of the report. V.T.C.A., Civil Practice &
 [8]    Evidence                                                     Remedies Code § 74.351.
            Determination of question of competency
                                                                     Cases that cite this headnote
        Qualification of witness as expert is within trial
        court's discretion. Rules of Evid., Rule 702.
                                                              [12]   Health
        Cases that cite this headnote                                    Affidavits of merit or meritorious defense;
                                                                     expert affidavits
 [9]    Evidence                                                     No particular words or formality are required in
            Knowledge, experience, and skill in general              expert report under Medical Liability Act, but
                                                                     bare conclusions will not suffice. V.T.C.A., Civil
        A physician need not practice in the particular
                                                                     Practice & Remedies Code § 74.351(r)(6).
        field about which he is testifying to qualify as an
        expert witness so long as he can demonstrate that            Cases that cite this headnote
        he has knowledge, skill, experience, training, or
        education regarding the specific issue before the
        court that would qualify him to give an opinion       [13]   Health
        on that subject. Rules of Evid., Rule 702.                       Affidavits of merit or meritorious defense;
                                                                     expert affidavits
        Cases that cite this headnote                                In a health care liability action, the requirement
                                                                     that an expert report provide causal relationship
 [10]   Health                                                       between the failure to meet the applicable
            Affidavits of merit or meritorious defense;              standard of care and the plaintiff's injury, harm,
        expert affidavits                                            or damages claimed is established by proof
                                                                     that the negligent act or omission constituted
        Medical expert reports, provided a fair summary
                                                                     a substantial factor in bringing about the harm
        of the causal relationship between obstetrics and
                                                                     and absent the act or omission, the harm would
        gynecology resident's failure to meet appropriate


               © 2015 Thomson Reuters. No claim to original U.S. Government Works.                                           2
Cornejo v. Hilgers, 446 S.W.3d 113 (2014)


         not have occurred. V.T.C.A., Civil Practice &              1      See TEX. CIV. PRAC. & REM.CODE ANN. § 51.014(a)
         Remedies Code § 74.351(r)(6).                                     (10) (Vernon Supp. 2013).

         Cases that cite this headnote                              2      See id. § 74.001(a)(13) (Vernon Supp. 2013).
                                                                    3      Defendants Mae Kathleen Borchardt, M.D., formerly
 [14]    Health                                                            known as Mae Kathleen Hayes, M.D., John Cecil
             Affidavits of merit or meritorious defense;                   McBride, M.D., Bridgette Parish, M.D., Danielle
         expert affidavits                                                 Niemeyer, R.N., Jamie Respondek, R.N., Mayoor Bhatt,
         An expert report need not marshal all of the                      M.D., Sharon Ann Woodson, R.N., and St. Joseph
                                                                           Medical Center are not parties to this appeal.
         plaintiff's proof necessary to establish causation
         at trial in a health care liability action, and it         4      Although Cornejo and Portillo present three issues, their
         need not anticipate or rebut all possible defensive               first issue, in which they generally challenge the trial
         theories that may ultimately be presented to                      court's order dismissing their claims is, in fact, part of
         the trial court; rather the expert must simply                    their second and third issues. Accordingly, we address
         provide some basis that a defendant's act or                      Cornejo and Portillo's two substantive issues.
         omission proximately caused injury and he must             5      See TEX. CIV. PRAC. & REM.CODE ANN. § 74.351(a)
         explain the basis of his statements and link his
                                                                           (Vernon Supp. 2013).
         conclusions to the facts. V.T.C.A., Civil Practice
         & Remedies Code § 74.351(r)(6).                            We reverse and remand.

         Cases that cite this headnote
                                                                                             Background

                                                                    In their amended petition, Cornejo and Portillo allege that on
Attorneys and Law Firms                                             December 2, 2010, Cornejo, who was forty weeks' pregnant,
                                                                    presented at St. Joseph Medical Center with gestational
*115 L. Todd Kelly, The Carlson Law Firm, P.C., Austin,             hypertension and headaches. Dr. Hilgers, an obstetrics and
TX, for Appellants.                                                 gynecology resident, examined Cornejo and conducted an
                                                                    ultrasound and electronic fetal monitoring, which, at 8:28
John C. Landa, Jr., Lucille Reiter King, Lapin & Landa, LLP,
                                                                    p.m., showed increasing contractions and an irregularity in
Houston, TX, for Appellee.
                                                                    the fetal heart rate. Nevertheless, Hilgers discharged Cornejo
Panel consists of Justices JENNINGS, HIGLEY, and                    at 8:40 p.m., with instructions to return in four days.
SHARP.
                                                                    Cornejo returned to St. Joseph thirteen hours later with
                                                                    elevated blood pressure, headaches, “visual disturbances,”
                                                                    and reporting decreased fetal activity. It was determined
                          OPINION
                                                                    that the onset of Cornejo's labor occurred at 5:00 a.m.
TERRY JENNINGS, Justice.                                            on December 3rd. Nurses J. Respondek and D. Niemeyer
                                                                    placed Cornejo on a fetal heart rate monitor, the readings
In this interlocutory appeal, 1 appellants, Angela Cornejo          of which were “reassuring, with good variability.” 6 Minutes
and Carlos Portillo, challenge the trial court's dismissal of        *116 later, however, there was a “dramatic decrease in fetal
their health care liability claims 2 against appellee, Stephen      heart rate variability,” and Cornejo was taken to labor and
Hilgers, M.D. 3 In two issues, 4 Cornejo and Portillo contend       delivery. At 11:10 a.m., Drs. K. Hayes and B. Parish attended
that the trial court erred in dismissing their claims against Dr.   Cornejo, whose membranes were artificially ruptured, and
Hilgers on the grounds that one of their medical experts is not     they noted the presence of “thick meconium.” Shortly
qualified to opine on the issue of causation and both of their      thereafter, the fetal monitor showed “minimal variability” and

medical expert reports 5 are insufficient as to causation.          “late decelerations.” 7 At 11:20 a.m., Cornejo signed consent
                                                                    forms for a Cesarean section delivery. St. Joseph personnel



                © 2015 Thomson Reuters. No claim to original U.S. Government Works.                                                     3
Cornejo v. Hilgers, 446 S.W.3d 113 (2014)


then repositioned Cornejo and continued to monitor the fetal           amended reports. Cornejo and Portillo stipulated that Dr.
heart strip, which showed “occasional late decelerations” with         Yoder's expert report would not be offered as to Hilgers.
“no accelerations of the fetal heart.” Cornejo was sent to the
operating room shortly after 1:00 p.m., and her baby was               9          See TEX. CIV. PRAC. & REM.CODE ANN. §
delivered at 1:41 p.m. Although the baby was “blue” and did                       74.351(a).
not cry, she was resuscitated.
                                                                       Cornejo and Portillo then filed and served Dr. Hall's amended
                                                                       medical expert report. As Dr. Hilgers notes in his brief on
6      A baby's heart rate is monitored as a means of                  appeal, Hall's curriculum vitae does not appear in the record
       assessing the baby's oxygenation, including oxygenation         before us. In his amended report, however, Hall notes that he
       of the baby's brain. See Morrell v. Finke, 184 S.W.3d
                                                                       is board certified in obstetrics and gynecology, is licensed to
       257, 262 (Tex.App.-Fort Worth 2005, pet. denied). A
                                                                       practice medicine in the state of Colorado, is affiliated with
       fetal heart monitor strip is read at regular intervals
                                                                       several hospitals, and serves as an assistant clinical professor
       to determine whether the baby's heart rate reflects
       “hypoxia,” a deficiency of oxygen reaching the tissues
                                                                       at the University of Colorado. Hall further states:
       of the body that could lead to depletion of the baby's
                                                                           I am familiar with the standard of care applicable to
       oxygen reserves over time, resulting in brain damage.
                                                                           the management of medical and obstetrical complications
       See id. A fetal heart monitor strip will be either
       “reassuring” or “nonreassuring.” See id. Following a                in pregnancy, management of labor, use of Pitocin,
       contraction, “reassuring” accelerations show that the               interpretation of electronic fetal monitoring (EFM),
       baby is oxygenated and tolerating labor. See id. at 263. A          abnormal fetal heart rate patterns, and evidence of fetal
       normal variation in the fetal heart rate is also a reassuring       hypoxia as predicted by the fetal heart rate pattern. I am
       sign of fetal well-being. See id. at 262–63.                        also very well aware, that regardless of who is caring for
7                                                                          the laboring patient, whether Ob/Gyn, resident, or labor
       In his medical expert report, Dr. Michael L. Hall, Cornejo
                                                                           and delivery nurse, that the standards of care regarding
       and Portillo's expert, explained that “[d]ecreased long-
                                                                           recognition of ominous findings on fetal monitor strip are
       term fetal heart rate variability” and “persistent late
                                                                           the same....
       decelerations” in a baby's heart rate are “nonreassuring”
       and can be “ominous” signs of hypoxia or asphyxia.
                                                                            *117 As an obstetrician, I have cared for numerous
Cornejo's baby was later diagnosed with hypoxic-ischemic                   pregnant patients with the same or similar clinical
encephalopathy, a severe, permanent brain injury caused                    circumstances as those [Cornejo] presented with.... I have
by a lack of oxygen and blood flow. 8 At two months of                     taught nurses and residents fetal monitoring and have
age, she showed a history of renal injury, secondary to                    worked closely with nurses and residents for 34 years,
metabolic acidosis and hypoxic injury, and mild spasticity                 and I am familiar with what reasonable and prudent
in all extremities. At two years of age, she presented with                nurses, residents and obstetricians would or would not
seizures and significant developmental impairment.                         do in response to abnormal electronic fetal heart patterns
                                                                           and management of Pitocin. The standards of care in the
8                                                                          interpretation of electronic fetal monitoring, recognition
       See Morrell, 184 S.W.3d at 275 & n. 12.
                                                                           of abnormal patterns, and recognition of the need for
Cornejo and Portillo sued Dr. Hilgers for negligence, seeking              intervention [are] the same across these professionals,
damages for past and future medical expenses and mental                    although the roles of each may be different in intervening
anguish. To support their claims, they timely filed and served             for the same.
upon Hilgers medical expert reports 9 authored by Michael
L. Hall, M.D., Jerry J. Tomasovic, M.D., and Bradley A.                    ....
Yoder, M.D. Hilgers objected to Drs. Hall's and Tomasovic's
                                                                           Based on my education, training, years of experience,
reports on the ground that they failed to sufficiently address
                                                                           familiarity with the medical literature and my board
the element of causation. Hilgers also objected to Hall's report
                                                                           certification in OB/GYN, I am familiar with the probable
on the ground that Hall is not qualified to opine on the issue
                                                                           causes of ... hypoxic-ischemic injuries in babies generally
of causation. The trial court sustained Hilgers's objections
                                                                           and with the probable causes of the injuries to [Cornejo's
and allowed Cornejo and Portillo thirty days to file and serve
                                                                           baby] in this case. Specifically, during my many years
                                                                           of practice, I ... read the medical literature, reviewed


                © 2015 Thomson Reuters. No claim to original U.S. Government Works.                                                 4
Cornejo v. Hilgers, 446 S.W.3d 113 (2014)


  case studies and have followed the care for babies with
  the same or similar clinical presentation as [Cornejo's           He added:
  baby]. I have kept current on the medical studies and
                                                                                 We know that the deterioration would
  literature regarding babies who have suffered hypoxic-
                                                                                 have been evident given the difference
  ischemic encephalopathy (HIE) from events at or around
                                                                                 in the quality of the fetal monitor
  the time of birth. I have also seen infants in my education,
                                                                                 tracing ... between December 2, 2010
  training and experience who have suffered from hypoxic-
                                                                                 before the late deceleration at the
  ischemic encephalopathy (HIE) from events at around the
                                                                                 end and the tracing the following
  time of birth.
                                                                                 morning when she presented again to
                                                                                 the Hospital. Tracings do not suddenly
Dr. Hall goes on to explain that he reviewed Cornejo's
                                                                                 become nonreassuring unless there
prenatal records, labor and delivery records, and the
                                                                                 is an acute cord accident that we
electronic fetal monitor strip. He notes that the applicable
                                                                                 know did not occur in this case.
standard of care for Dr. Hilgers was to recognize certain
                                                                                 In reasonable medical probability,
risk factors with which Cornejo presented and are “well
                                                                                 there was plenty of opportunity to
known to increase the risk of fetal intolerance to the uterine
                                                                                 see the deterioration occur had she
environment, increasing the foreseeability of progressive
                                                                                 been monitored, and any ordinary,
hypoxia and ischemia and need for expeditious delivery
                                                                                 reasonably prudent obstetrician (or
of the fetus.” Specifically, Cornejo, prior to the time
                                                                                 resident acting under his or her
that Hilgers discharged her, presented with decreased fetal
                                                                                 supervision), would have delivered
movement, gestational hypertension, suspected intrauterine
                                                                                 [Cornejo's baby] before she actually
growth restriction, and late deceleration on the electronic fetal
                                                                                 presented again the following morning
monitor. Due to the risk factors present, and because there was
                                                                                 according to the chronology.
a “late deceleration just prior to the end of the fetal monitor
strip” at 8:28 p.m. on the evening that Hilgers examined
                                                                    As to causation, Dr. Hall opines that Dr. Hilgers “should
Cornejo, Hall opines that Hilgers had a duty to admit Cornejo
                                                                    have known” that the risk factors present in this case “may
to the hospital, rather than discharge her, and continue to
                                                                    foreseeably cause fetal intolerance even to normal labor
monitor the fetal heart rate, the fetus for progressive hypoxia
                                                                    which may induce sufficient stress to produce a lack of
and ischemia, and the need to expedite delivery.
                                                                    blood flow to the fetus (hypoxia), which foreseeably may
                                                                    produce acidosis (asphyxia), which may foreseeably cause
Dr. Hall further opines that Dr. Hilgers breached “the standard
                                                                    brain injury.” And he notes that,
of care of any resident providing obstetrical services” by:
                                                                                 [Cornejo's baby] suffered progressive
  • “failing to recognize the risk factors at the time of the
                                                                                 hypoxia and acidosis, as a result of
     premature discharge on December 2, 2010, discuss those
                                                                                 the delay in delivery caused by Dr.
     with the ‘OB/GYN specialist’ and admit [Cornejo] to the
                                                                                 Hilgers'[s] ... breaches in the standard
     Hospital”;
                                                                                 of care. Because [Cornejo] was not
  • “discontinuing fetal heart rate monitoring on December                       kept overnight, she arrived in a more
     2, 2010, in the face of a late deceleration (a                              critical state, setting into motion a
     potentially ominous finding suggestive of uteroplacental                    chain of events which required more
     insufficiency given the risk factors discussed above)”;                     timely action after [she] returned [the
                                                                                 next morning] with a persistently
  • “failing to continuously monitor the fetal heart rate                        and progressively abnormal electronic
    patterns on the evening and morning of December 2–3,                         fetal monitor pattern which was not
    2010”; and                                                                   resolved.

  • “failing to deliver [Cornejo's baby] due to a progressively     Dr. Hall further opines that,
     deteriorating *118 fetal status which would have been
     evident on fetal monitoring.”



                © 2015 Thomson Reuters. No claim to original U.S. Government Works.                                         5
Cornejo v. Hilgers, 446 S.W.3d 113 (2014)


                                                                   cannot “address whether the standard of care was breached
  more likely than not, had [Cornejo's baby] been delivered        in doing so,” he is able to opine that “the late deceleration
  by Dr. Hilgers and/or the OB/GYN specialist assigned             of the fetal heart most likely relates to the beginning of a
  to supervise him, she would have been neurologically             period of hypoxia.” He further opines that, “to a reasonable
  intact at the time of birth, would not have had difficulty       degree of medical probability (and in reliance upon the
  with the newborn resuscitation, would not have developed         expert opinions of Dr. Hall), ... [Cornejo's baby] suffered
  pneumothoraces, would not have had an additional episode         a significant portion of her injuries due to the failure to
  of documented severe metabolic acidosis, and would likely        deliver her before progressive hypoxia and ischemia deprived
  be normal today....                                              her brain tissue of well-oxygenated blood and neuro[l]ogic
                                                                   injury occurred in utero.” And, “[h]ad she been monitored
  ....
                                                                   throughout the night rather than discharged by Dr. Hilgers
  [T]he care rendered [Cornejo] by Dr. Hilgers was deficient       and the hospital personnel, ... her progressive intolerance
  —falling well below the standard of care owed to                 of the uterine environment would have been evident and
  this patient.... Within a reasonable degree of medical           the opportunity would have presented itself to deliver her
  probability, the negligent breaches in the standard of care      timely (as opined by Dr. Hall) and before permanent [and]
  by ... Dr. Hilgers substantially contributed to the direct and   irreversible brain damage occurred.” “In other words,”
  proximate cause of the hypoxic ischemic encephalopathy           according to Tomasovic, “had she been delivered before her
  noted in [Cornejo's baby].                                       mother presented again the next morning to the Hospital, she
                                                                   would not have suffered her injuries.”
Cornejo and Portillo also filed and served Dr. Hilgers with Dr.
Tomasovic's amended expert report. Although Tomasovic's            Dr. Hilgers moved to dismiss Cornejo and Portillo's claims
curriculum vitae also does not appear in the record before         on the grounds that Dr. Hall “is not qualified to address
us, he, in his amended report, notes that he is a board-           causation” and the amended medical expert reports by Drs.
certified pediatric neurologist and has been in private practice   Hall and Tomasovic are insufficient as to the element
for twenty-eight years. He “remain[s] actively supportive          of causation because they are “inherently grounded in
of two major medical center neonatal intensive care units          speculative assumptions.” Specifically, Hilgers argued that
and [has] been involved in the care of neonates and infants        the experts' theories that “had [Cornejo] been kept in the
who have experienced hypoxic-ischemic encephalopathy and           hospital longer on 12/2, the fetal heart tracing would, at some
hypoglycemia.”                                                     point or points that night, have shown a pattern indicative of
                                                                   fetal deterioration,” and, “based on the assumed patterns on
Dr. Tomasovic notes that he met with Cornejo's child               the heart tracing, at some unspecified time during the night
on January 15, 2013 to address her “current neurologic             of 12/2 or the early morning of 12/3, a health care provider
condition as it relates to events involving her birth and          would have interpreted the situation as requiring a cesarean
subsequent treatment, and whether there is medical causation       delivery and proceeded with delivery” were conjectural. After
between such treatment” and her condition. After noting            a hearing, the trial court, without stating its reasons, granted
his discussion with her parents about the child's behavior         Hilgers's motion to dismiss Cornejo and Portillo's health care
and development and his own observations, Tomasovic                liability claims.
states *119 that the child's “findings [are] consistent with
microcephaly, a mild hemiparesis with motor coordination
issues, and an encephalopathic condition with impaired                                 Standard of Review
expressive language.” He concludes that “it is medically
probable” that when she reaches adulthood, Cornejo's child          [1] [2] [3] [4] We review a trial court's decision on a
“will not be able to be independent or employable.”                motion to dismiss a health care liability claim for an abuse
                                                                   of discretion. See Am. Transitional Care Ctrs. of Tex., Inc.
After his review of Dr. Hall's report and the medical records      v. Palacios, 46 S.W.3d 873, 875 (Tex.2001); Gray v. CHCA
of Cornejo and her baby, Dr. Tomasovic observes that               Bayshore L.P., 189 S.W.3d 855, 858 (Tex.App.-Houston
“Cornejo was evaluated on December 2nd, 2010, for transient        [1st Dist.] 2006, no pet.). A trial court abuses its discretion
blood pressure elevations which were stable resulting in her       if it acts in an arbitrary or unreasonable manner without
discharge home on that date at 20:29 hours.” Although he           reference to guiding rules or principles. Jelinek v. Casas,



                © 2015 Thomson Reuters. No claim to original U.S. Government Works.                                             6
Cornejo v. Hilgers, 446 S.W.3d 113 (2014)


328 S.W.3d 526, 539 (Tex.2010). When reviewing matters            question, and, second, it must provide a basis for the trial court
committed to a trial court's discretion, we may not substitute    to conclude that the claims have merit. Scoresby, 346 S.W.3d
our own judgment for that of the trial court. Bowie Mem'l         at 553–54.
Hosp. v. Wright, 79 S.W.3d 48, 52 (Tex.2002). A trial court
does not abuse its discretion merely because it decides a
discretionary matter differently than an appellate court would    Dr. Hall's Qualifications
in a similar circumstance. Harris Cnty. Hosp. Dist. v. Garrett,    [7] In their second issue, Cornejo and Portillo argue that,
232 S.W.3d 170, 176 (Tex.App.-Houston [1st Dist.] 2007, no        to the extent the trial court granted Dr. Hilgers's motion
pet.).                                                            to dismiss their claims on the ground that Dr. Hall is
                                                                  not qualified to address the issue of causation, it erred
                                                                  because Hall's extensive expertise and training qualify him
                                                                  “to recognize the risk and to prevent the injury” suffered
            *120 Sufficiency of Expert Reports                    by Cornejo's baby and “to understand the causal link to”
                                                                  the baby's “neurologic injury” due to Hilgers's breach of
In their two issues, Cornejo and Portillo argue that the trial
                                                                  the pertinent standard of care. In his motion to dismiss
court erred in dismissing their claims against Dr. Hilgers
                                                                  Cornejo and Portillo's claims, Hilgers argued that Hall
because, contrary to his assertions, Dr. Hall is qualified to
                                                                  “is not qualified to address causation” because he “is not
opine on the issue of causation and both Drs. Hall and
                                                                  certified in neonatology, pediatric neurology, or maternal-
Tomasovic adequately address the issue in their amended
                                                                  fetal medicine.” And he complained that Hall “does not treat
medical expert reports. 10                                        newborns.”

10     The applicable standard of care and the manner in which    To be qualified to opine on the causal relationship between
       Dr. Hilgers allegedly breached that standard are not at    a defendant-physician's alleged failure to meet an applicable
       issue in this appeal.                                      standard of care and a plaintiff's injury, the author of an
A health care liability claimant must timely provide each         expert report must be a physician who is qualified to render
defendant health care provider with an expert report. See         opinions on such causal relationships under the Texas Rules
TEX. CIV. PRAC. & REM.CODE ANN. § 74.351 (Vernon                  of Evidence. TEX. CIV. PRAC. & REM.CODE ANN. §
Supp. 2013); Gray, 189 S.W.3d at 858. The report must             74.351(r)(5); see also id. § 74.403(a) (Vernon 2011) (“[A]
provide a “fair summary” of the expert's opinions as of           person may qualify as an expert witness on the issue of
the date of the report regarding the applicable standards of      the causal relationship between the alleged departure from
care, the manner in which the care rendered by the health         accepted standards of care and the injury, harm, or damages
care provider failed to meet the standard, and the causal         claimed only if the person is a physician and is otherwise
relationship between that failure and the injury, harm, or        qualified to render opinions on that causal relationship under
damages claimed. See TEX. CIV. PRAC. & REM.CODE                   the Texas Rules of Evidence.”).
ANN. § 74.351(r)(6). The expert report requirement may be
satisfied by utilizing more than one expert report, and a court   *121 An expert witness may be qualified on the basis of
may read the reports together. See id. § 74.351(i).              knowledge, skill, experience, training, or education to testify
                                                                 on scientific, technical, or other specialized subjects if the
 [5] [6] If a defendant files a motion to dismiss challenging testimony would “assist the trier of fact” in understanding
the adequacy of a claimant's expert report, a trial court must   the evidence or determining a fact issue. TEX.R. EVID. 702.
grant the motion if it appears, after a hearing, that the report Thus, a plaintiff must show that her expert has “knowledge,
does not represent an objective good faith effort to comply      skill, experience, training, or education” regarding the
with the definition of an expert report or is not sufficiently   specific issue before the court that would qualify the expert to
specific to provide a basis for the trial court to conclude      give an opinion on that particular subject. Broders v. Heise,
that the claims have merit. Id. § 74.351(1); Scoresby v.         924 S.W.2d 148, 153–54 (Tex.1996).
Santillan, 346 S.W.3d 546, 555–56 (Tex.2011). In setting
out the expert's opinions, the report must provide enough         [8] [9] Whether an expert witness is qualified under rule
information to fulfill two purposes: first, it must inform the   702 lies within the sound discretion of a trial court. Id. at
defendant of the specific conduct the plaintiff has called into  151–52. Not every licensed physician is qualified to testify
                                                                 on every medical question. Id. at 152–53. A physician need


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Cornejo v. Hilgers, 446 S.W.3d 113 (2014)


not practice in the particular field about which he is testifying     prudent” residents and obstetricians “would or would not do
so long as he can demonstrate that he has knowledge, skill,           in response to abnormal electronic fetal heart patterns.”
experience, training, or education regarding the specific issue
before the court that would qualify him to give an opinion             *122 Dr. Hall further notes that, based on his “education,
on that subject. Roberts v. Williamson, 111 S.W.3d at 113.            training, years of experience, familiarity with the medical
Analysis of the expert's qualifications to opine as an expert on      literature[,] and ... board certification in OB/GYN,” he is
the subject matter of the report is limited to the four corners       “familiar with the probable causes of ... hypoxic-ischemic
of the expert report or its accompanying curriculum vitae. See        injuries in babies generally and with the probable causes of
TEX. CIV. PRAC. & REM.CODE ANN. § 74.351(a); In re                    the injuries to [Cornejo's baby] in this case.” During his years
McAllen Med. Ctr., Inc., 275 S.W.3d 458, 463 (Tex.2008).              of practice, he has “read the medical literature, reviewed case
                                                                      studies and ... followed the care for babies with the same
Here, Cornejo and Portillo were required to establish that Dr.        or similar clinical presentation” as Cornejo's baby. Hall has
Hall is qualified on the basis of “knowledge, skill, experience,      “kept current on the medical studies and literature regarding
training, or education” to offer opinions concerning the causal       babies who have suffered hypoxic-ischemic encephalopathy
link between the alleged breaches of the standard of care by          (HIE) from events at or around the time of birth.” And he has
Dr. Hilgers and the injuries suffered by Cornejo's baby. See          “seen infants” in his “education, training and experience who
TEX.R. EVID. 702; Roberts, 111 S.W.3d at 122.                         have suffered from hypoxic-ischemic encephalopathy (HIE)
                                                                      from events at around the time of birth.”
In his brief to this Court, Dr. Hilgers argues that Dr. Hall is
not qualified to render an opinion as to causation because he is      Dr. Hall's report demonstrates that he has specific expertise
not a perinatologist, neonatologist, neurologist, “or any other       in the areas of obstetrical complications in pregnancy,
medical specialist who routinely takes care of babies or who          management of labor, interpretation of electronic fetal
diagnoses and treats brain injuries”; “does not say he provides       monitoring, abnormal fetal heart rate patterns, and evidence
ongoing medical care or treatment to neonates (outside of the         of fetal hypoxia as predicted by fetal heart rate patterns.
delivery process)”; “does not say he diagnoses or treats babies       And he specifically notes that he is familiar, based on his
with brain damage”; and “does not identify any specific,              education, training, and experience, with the probable causes
relevant training or experience that would qualify him to             of hypoxic-ischemic injuries in babies generally and with the
provide expert opinions about how Dr. Hilgers'[s] conduct on          probable causes of the injuries to Cornejo's baby in this case.
12/2 caused [Cornejo's baby's] injuries, sustained later.” And        This is the type of expertise involved in the claims asserted
Hilgers complains that Hall is “not shown to be qualified to          by Cornejo and Portillo in this case.
address the opinions at the heart of his causation theory: what
a fetal monitor tracing ‘would have shown.’ ”                         In Roberts v. Williamson, the Texas Supreme Court held
                                                                      that a board-certified pediatrician was qualified to render an
Dr. Hall, in his expert report, explains that he is board certified   expert opinion as to a newborn baby's neurological injuries.
in obstetrics and gynecology, is licensed to practice medicine        111 S.W.3d at 121–22. There, after their baby suffered
in the state of Colorado, is affiliated with several hospitals,       brain damage, parents sued two physicians, alleging that
and serves as an assistant clinical professor at the University       a malfunctioning ventilator, delay in treatment, and failure
of Colorado. He specifically states that he is “familiar with         to transfer the baby to a better-equipped hospital combined
the standard of care applicable to the management of medical          to proximately cause the baby's injuries. Id. at 115. The
and obstetrical complications in pregnancy, management of             physicians argued that the parents' expert, Dr. McGehee, a
labor, ... interpretation of electronic fetal monitoring (EFM),       board-certified pediatrician, was not qualified to testify as
abnormal fetal heart rate patterns, and evidence of fetal             to the nature and extent of the child's neurological injuries
hypoxia as predicted by the fetal heart rate pattern.” Hall notes     because he was not a neurologist. Id. at 121. The court
that, as an obstetrician, he has “cared for numerous pregnant         considered that McGehee held certifications in pediatric
patients with the same or similar clinical circumstances”             advanced life-support and advanced trauma life-support, had
as those Cornejo presented to Dr. Hilgers. Moreover, he               studied the effects of pediatric neurological injuries, and had
has taught residents fetal monitoring and has “worked                 extensive experience advising parents about the effects of
closely with ... residents for 34 years.” And Hall specifically       such injuries. Id. at 121–22. Accordingly, it held that the trial
explained that he is “familiar with what reasonable and               court did not err in admitting McGehee's testimony because,



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Cornejo v. Hilgers, 446 S.W.3d 113 (2014)


although he was not a neurologist, the record reflected that         what Hilgers's “calls ‘speculation’ or ‘conjecture’ is, in
he had experience and expertise regarding the specific causes        fact, the physicians stating to a ‘reasonable [degree of]
and effects of the injuries at issue. Id. at 122.                    medical probability’ what most likely caused” the injuries
                                                                     to Cornejo's baby. In his motion to dismiss Cornejo and
In Livingston v. Montgomery, parents sued five physicians            Portillo's claims, Hilgers argued that Hall and Tomasovic's
after their child suffered severe neurological injuries just         amended medical expert reports do not adequately address
prior to birth. 279 S.W.3d 868, 870 (Tex.App.-Dallas 2009,           the element of causation because their causation theory
no pet.). The parents alleged that the physicians failed to          “is inherently grounded in speculative assumptions” and
“intervene in the face of fetal distress on non-reassuring           “conjecture.”
fetal heart rate patterns.” Id. The physicians argued that the
parents' expert, an obstetrician, was not qualified to opine          [11] [12] An expert report must provide a fair summary
“as to causation of neurological injuries or conditions—much         of the expert's opinions regarding the causal relationship
less pediatric neurological injuries.” Id. at 873. The court         between the failure of the health care provider to provide
explained that the issue was not who was qualified to testify        care in accord with the pertinent standard of care and
about whether a neurologist could have saved the patient's life      the injury, harm, or damages claimed. See TEX. CIV.
by treating his neurological injuries. Id. at 877. Rather, the       PRAC. & REM.CODE ANN. § 74.351(r)(6). In assessing the
causation issue related to the duty of health care providers         sufficiency of a report, a trial court may not draw inferences;
to recognize potential harm and take appropriate actions.            instead, it must exclusively rely upon the information
Id. Because the parents' expert had experience in managing           contained within the four corners of the report. Wright, 79
labor and delivery, his expertise qualified him to opine on the      S.W.3d at 52. “No particular words or formality are required
causal relationship *123 between labor and delivery and the          [in the expert report], but bare conclusions will not suffice.”
complications that stem from labor and delivery, including a         Scoresby, 346 S.W.3d at 556.
newborn's neurological injuries. Id.
                                                                      [13] [14] A causal relationship is established by proof that
Here, based on his experience in managing obstetrical                the negligent act or omission constituted a substantial factor
complications in pregnancy and labor, interpreting electronic        in bringing about the harm and absent the act or omission,
fetal monitoring and abnormal fetal heart rate patterns, and         the harm would not have occurred. Costello v. Christus Santa
recognizing fetal hypoxia as predicted by fetal heart rate           Rosa Health Care Corp., 141 S.W.3d 245, 249 (Tex.App.-
patterns, Dr. Hall is qualified to opine as to the causal            San Antonio 2004, no pet.). However, an expert report need
relationship between a newborn's injuries and the failure            not marshal all of the plaintiff's proof necessary to establish
of a resident or obstetrician to recognize complications             causation at trial, and it need not anticipate or rebut all
in pregnancy and take appropriate actions. The law does              possible defensive theories that may ultimately be presented
not require him to be “certified in neonatology, pediatric           to the trial court. Wright, 79 S.W.3d at 52; Fortner v. Hosp. of
neurology, or maternal-fetal medicine” or “treat newborns”           the Sw., LLP, 399 S.W.3d 373, 383 (Tex.App.-Dallas 2013,
to be qualified to so opine. Accordingly, we hold that the           no pet.). The expert must simply provide some basis that a
trial court, to the extent that it granted Dr. Hilgers's motion to   defendant's act or omission proximately caused injury. Id. at
dismiss the claims of Cornejo and Portillo on the ground that        53. And the expert must explain the basis of his statements
Hall is not qualified to opine on the issue of causation, abused     and link his conclusions to the facts. Id. at 52.
its discretion. See Keo v. Vu, 76 S.W.3d 725, 733 (Tex.App.-
Houston [1st Dist.] 2002, pet. denied).                               *124 In his amended medical expert report, 11 Dr.
                                                                     Tomasovic notes that he examined Cornejo's child
We sustain Cornejo and Portillo's second issue.                      specifically to assess her “current neurologic condition as it
                                                                     relates to events involving her birth and subsequent treatment,
                                                                     and whether there is medical causation between such
Causation
                                                                     treatment” and her condition. He concludes that his findings
 [10] In their first issue, Cornejo and Portillo argue that
                                                                     are “consistent with microcephaly, a mild hemiparesis with
the trial court, to the extent it granted Dr. Hilgers's motion
                                                                     motor coordination issues, and an encephalopathic condition
to dismiss their claims on the ground that Drs. Hall and
                                                                     with impaired expressive language” and “it is medically
Tomasovic did not adequately address the issue of causation
in their amended medical expert reports, erred because


                © 2015 Thomson Reuters. No claim to original U.S. Government Works.                                              9
Cornejo v. Hilgers, 446 S.W.3d 113 (2014)


probable” that she “will not be able to be independent or                       birth are not responsible, at least
employable.”                                                                    in part, for her neurological injuries
                                                                                because they had not yet occurred.
11     The parties dispute whether Drs. Hall's and Tomasovic's                  All are complicit in failing to rescue
       original expert reports should be considered with their                  her from a foreseeably progressive
       amended reports in evaluating whether the doctors                        hostile uterine environment which was
       adequately addressed the causation issue. Dr. Hilgers                    the source of all of her injuries and
       quotes extensively from the original expert reports and                  complications ....
       points out inconsistencies between the original and
       amended reports. Cornejo and Portillo argue that once
                                                                   In his amended medical expert report, Dr. Hall states his
       they submitted amended expert reports, the original
                                                                   familiarity “with the probable causes of ... hypoxic-ischemic
       reports were supplanted. An amended expert report
                                                                   injuries in babies generally and with the probable causes of
       served after a thirty-day extension granted by the
                                                                   the injuries to [Cornejo's baby] in this case.” He notes that
       trial court, as here, supersedes any initial report filed
       by the claimant. Otero v. Leon, 319 S.W.3d 195,             Dr. Hilgers “should have known” that the risk factors present
       204–05 (Tex.App.-Corpus Christi 2010, pet. denied);         in this case “may foreseeably cause fetal intolerance even to
       HealthSouth Corp. v. Searcy, 228 S.W.3d 907, 909            normal labor which may induce sufficient stress to produce a
       (Tex.App.-Dallas 2007, no pet.) (holding that amended       lack of blood flow to the fetus (hypoxia), which foreseeably
       expert report “supplants” previously filed report); see     may produce acidosis (asphyxia), which may foreseeably
       also Packard v. Guerra, 252 S.W.3d 511, 515–16, 534–        cause brain injury.” And Hall emphasizes that,
       35 (Tex.App.-Houston [14th Dist.] 2008, pet. denied)
       (considering previously filed reports that were refiled                   *125 [Cornejo's baby] suffered
       and “supplemented”). Thus, we consider only the                          progressive hypoxia and acidosis, as a
       amended expert reports in conducting our analysis.                       result of the delay in delivery caused
In regard to causation specifically, Dr. Tomasovic opines                       by Dr. Hilgers'[s] ... breaches in the
that “the late deceleration of the fetal heart most likely                      standard of care. Because [Cornejo]
relates to the beginning of a period of hypoxia” and “to a                      was not kept overnight, she arrived in a
reasonable degree of medical probability (and in reliance                       more critical state, setting into motion
upon the expert opinions of Dr. Hall), ... [Cornejo's child]                    a chain of events which required
suffered a significant portion of her injuries due to the                       more timely action after [she] returned
failure to deliver her before progressive hypoxia and ischemia                  [the next morning] with a persistently
deprived her brain tissue of well-oxygenated blood and                          and progressively abnormal electronic
neurolo[g]ic injury occurred in utero.” And he emphasizes                       fetal monitor pattern which was not
that, “[h]ad she been monitored throughout the night rather                     resolved.
than discharged by Dr. Hilgers and the hospital personnel, ...
                                                                   Dr. Hall further opines that,
her progressive intolerance of the uterine environment would
have been evident and the opportunity would have presented           more likely than not, had [Cornejo's baby] been delivered
itself to deliver her timely (as opined by Dr. Hall) and             by Dr. Hilgers and/or the OB/GYN specialist assigned
before permanent [and] irreversible brain damage occurred.”          to supervise him, she would have been neurologically
“In other words,” according to Tomasovic, “had she been              intact at the time of birth, would not have had difficulty
delivered before her mother presented again the next morning         with the newborn resuscitation, would not have developed
to the Hospital, she would not have suffered her injuries.” He       pneumothoraces, would not have had an additional episode
emphasizes that,                                                     of documented severe metabolic acidosis, and would likely
                                                                     be normal today....
            It is a legal fiction rather than a medical
            reality to suggest that any of the                       ....
            health care providers responsible for
            making decisions regarding delivery                      [T]he care rendered [Cornejo] by Dr. Hilgers was deficient
            from the evening of December 2,                          —falling well below the standard of care owed to
            2010 until the time of [the child's]                     this patient.... Within a reasonable degree of medical



               © 2015 Thomson Reuters. No claim to original U.S. Government Works.                                          10
Cornejo v. Hilgers, 446 S.W.3d 113 (2014)


  probability, the negligent breaches in the standard of care      baby occurred during Hilgers's treatment of Cornejo on
  by ... Dr. Hilgers substantially contributed to the direct and   December 2nd, it is sufficient that, in their reports, the experts
  proximate cause of the hypoxic ischemic encephalopathy           “state[ ] a chain of events that begin with a health care
  noted in [Cornejo's baby].                                       provider's negligence and end in personal injury.” McKellar
                                                                   v. Cervantes 367 S.W.3d 478, 485 (Tex.App.-Texarkana
Further, Hall explains in great detail how the effects of          2012, no pet.); see Patel v. Williams, 237 S.W.3d 901, 905
hypoxia and asphyxia are cumulative and progressive, the           (Tex.App.-Houston [14th Dist.] 2007, no pet.); Costello, 141
role of fetal heart monitoring, and the medical relationship       S.W.3d at 249.
between the late deceleration on the monitor in this case and
the injuries suffered by Cornejo's baby.                           In McKellar, Cervantes was a patient of Dr. McKellar
                                                                   and saw him regularly for prenatal care of her high-risk
In his appellate brief, Dr. Hilgers argues, as he did in his       twin pregnancy. 367 S.W.3d at 481. McKellar admitted
motion to dismiss, that Drs. Hall's and Tomasovic's expert         Cervantes to the hospital during the course of her pregnancy
reports are insufficient because their “proximate causation        with suspicion of preeclampsia. Id. When the twins were
theory ... is inherently grounded in speculative assumptions.”     delivered via Caesarean section the day after admission, one
Specifically, he characterizes their causation theory thusly:      of the babies, “Alek,” was diagnosed with encephalopathy.
“had [Cornejo] been kept in the hospital longer on 12/2, the       Id. Cervantes brought a health care liability claim against
fetal heart tracing would, at some point or points that night,     McKellar, and her expert opined in his report that when a
have shown a pattern indicative of fetal deterioration,” and,      patient is admitted with Cervantes's conditions, the standard
“based on the assumed patterns on the heart tracing, at some       of care mandated that the fetal well-being be assessed upon
unspecified time during the night of 12/2 or the early morning     admission, yet Cervantes was not placed on an external fetal
of 12/3, a health care provider would have interpreted the         monitor until more than twenty-eight hours after admission.
situation as requiring a cesarean delivery and proceeded           Id. at 487. The expert opined that McKellar's failure to
with delivery.” Hilgers notes that Tomasovic asserted no           expeditiously discover and address the recurring variable
“identifiable injury” to Cornejo's baby during his treatment       decelerations with absent long-term variability in Alek's heart
and neither expert asserted that “the standard of care required    rate resulted in brain damage. Id. at 486. The court of appeals
[him] to deliver [Cornejo's baby] during his care.”                held that the report sufficiently put McKellar on notice of
                                                                   the conduct about which Cervantes complained and further
In their reports, however, Drs. Hall and Tomasovic do              provided the trial court with a basis to conclude that her claim
more than “speculate.” They explain the link between               against McKellar had merit. Id. at 490.
the specific injuries suffered by Cornejo's baby and Dr.
Hilgers's alleged failure to recognize Cornejo's risk factors      We conclude that Drs. Hall and Tomasovic, in their amended
and the late deceleration on the fetal heart monitor, and          medical expert reports, provided a fair summary of the
his failure to take action—by admitting Cornejo to the             causal relationship between Dr. Hilgers's failure to meet the
hospital and continuing the fetal monitoring. See Jelinek,         appropriate standard of care and the injuries suffered by
328 S.W.3d at 539–40 (“[T]he expert must ... explain, to a         Cornejo's baby. See TEX. CIV. PRAC. & REM.CODE ANN.
reasonable degree, how and why the breach caused the injury        § 74.351(r)(6). Thus, the reports presented an objective,
based on the facts presented.”). Hall opines that Hilgers's        good faith effort to comply with the statute. Id. § 74.351(1);
failure to comprehend the dangers and take appropriate             Scoresby, 346 S.W.3d at 555–56. Accordingly, we hold that
action constituted a substantial factor in bringing about          the trial court, to the extent that it granted Hilgers's motion to
the injuries suffered by Cornejo's baby and, absent such           dismiss the claims of Cornejo and Portillo on the ground that
omission, the harm would not have occurred. Likewise,              the reports did not adequately address the issue of causation,
Tomasovic agrees that had Cornejo's baby been monitored            abused its discretion.
throughout the night, rather than discharged by Dr. Hilgers
and the hospital personnel, “her progressive intolerance of        We sustain Cornejo and Portillo's first issue.
the uterine environment would have been evident and the
opportunity would have *126 presented itself to deliver
her timely (as opined by Dr. Hall) and before permanent
[and] irreversible brain damage occurred.” Although neither                                  Conclusion
Hall nor Tomasovic opines that a specific injury to Cornejo's


               © 2015 Thomson Reuters. No claim to original U.S. Government Works.                                              11
Cornejo v. Hilgers, 446 S.W.3d 113 (2014)



We reverse the order of the trial court and remand the case
                                                                       All Citations
to the trial court for further proceedings not inconsistent with
this opinion.                                                          446 S.W.3d 113



End of Document                                                    © 2015 Thomson Reuters. No claim to original U.S. Government Works.




                © 2015 Thomson Reuters. No claim to original U.S. Government Works.                                               12
Costello v. Christus Santa Rosa Health Care Corp., 141 S.W.3d 245 (2004)


                                                                        defendant of the specific conduct the plaintiff
                                                                        has called into question, and (2) it must provide
                     141 S.W.3d 245
                                                                        a basis for the trial court to conclude that the
                Court of Appeals of Texas,
                                                                        claims have merit. Vernon's Ann.Texas Civ.St.
                      San Antonio.
                                                                        art. 4590i, § 13.01(l ) (2003).
       Alicia COSTELLO, Individually and on Behalf
                                                                        8 Cases that cite this headnote
          of the Estate of Delia Lozano, Appellant,
                              v.
            CHRISTUS SANTA ROSA HEALTH                            [2]   Appeal and Error
              CARE CORPORATION, Appellee.                                  Dismissal or nonsuit before trial
                                                                        Court of Appeals reviews a trial court's dismissal
        No. 04–03–00597–CV.          |   June 23, 2004.                 of a suit for failure to comply with the Texas
                                                                        Medical Liability and Insurance Improvement
Synopsis                                                                Act under an abuse of discretion standard.
Background: Representative of patient's estate brought                  Vernon's Ann.Texas Civ.St. art. 4590i, § 13.01(l
medical malpractice action against hospital, alleging that              ) (2003).
patient's death from cardiac arrest was caused by negligent
care of hospital emergency room staff. Hospital moved to                Cases that cite this headnote
dismiss lawsuit on basis that representative's expert reports
did not meet requirements of Texas Medical Liability and
                                                                  [3]   Evidence
Insurance Improvement Act. The 288th Judicial District
                                                                            Cause and effect
Court, Bexar County, Martha Tanner, J., dismissed lawsuit
with prejudice. Representative appealed.                                Registered nurse did not qualify as expert to
                                                                        provide her opinion as to cause of patient's death,
                                                                        in medical malpractice action; for nurse to give
                                                                        medical opinion as to cause of patient's death
Holdings: The Court of Appeals, Phylis J. Speedlin, J., held            necessarily demanded ability to make medical
that:                                                                   diagnosis, but nurse was expressly prohibited
                                                                        under Nursing Practice Act from rendering
[1] registered nurse did not qualify as expert to provide her           medical diagnoses. V.T.C.A., Occupations Code
opinion as to cause of patient's death, and                             § 301.002(2); Rules of Evid., Rule 702.

[2] report of expert witness as to cause of patient's death was         11 Cases that cite this headnote
conclusory, and thus was insufficient to meet requirements of
Texas Medical Liability and Insurance Improvement Act.
                                                                  [4]   Evidence
                                                                            Due care and proper conduct in general
Affirmed.                                                               Although it is generally true that a licensed
                                                                        registered nurse has more education and training
                                                                        on medical issues than a lay person, a nursing
                                                                        license does not automatically qualify the
 West Headnotes (9)
                                                                        registered nurse as an expert on every medical
                                                                        subject in a medical malpractice action.
 [1]     Health
                                                                        10 Cases that cite this headnote
             Affidavits of merit or meritorious defense;
         expert affidavits
         To meet the requirements of the Texas Medical            [5]   Evidence
         Liability and Insurance Improvement Act, an                        Necessity of qualification
         expert report must provide enough information                  Trial court must ensure that those who purport
         to fulfill two purposes: (1) it must inform the                to be experts truly have expertise concerning the


               © 2015 Thomson Reuters. No claim to original U.S. Government Works.                                            1
Costello v. Christus Santa Rosa Health Care Corp., 141 S.W.3d 245 (2004)


       actual subject about which they are offering an                   Affidavits of merit or meritorious defense;
       opinion. Rules of Evid., Rule 702.                            expert affidavits
                                                                    An expert witness's report in a medical
       1 Cases that cite this headnote
                                                                    malpractice action is insufficient under Texas
                                                                    Medical Liability and Insurance Improvement
 [6]   Health                                                       Act if it merely states the expert's conclusions.
           Affidavits of merit or meritorious defense;              Vernon's Ann.Texas Civ.St. art. 4590i, § 13.01(l
       expert affidavits                                            ) (2003).
       Report of expert witness as to cause of patient's
                                                                    1 Cases that cite this headnote
       death, which stated that “[i]f this patient would
       have been appropriately triaged and evaluated,
       then in all reasonable medical probability she
       would have survived,” was conclusory, and thus
       was insufficient to meet requirements of Texas       *247 From the 288th Judicial District Court, Bexar County,
       Medical Liability and Insurance Improvement          Texas, Trial Court No. 2002–CI–03404; Martha Tanner,
       Act, in medical malpractice action, as expert        Judge Presiding. 1
       failed to explain causal connection between
       hospital's claimed omissions and patient's death.    1      The Honorable Frank Montalvo was the presiding judge
       Vernon's Ann.Texas Civ.St. art. 4590i, § 13.01(l            of the 288th Judicial District Court, Bexar County,
       ) (2003).                                                   Texas in 2002. The Honorable Martha Tanner, presiding
                                                                   judge of the 166th Judicial District Court, signed the
       22 Cases that cite this headnote                            order granting Christus Santa Rosa's amended motion to
                                                                   dismiss.

 [7]   Health
                                                            Attorneys and Law Firms
           Proximate Cause
       As is true in other types of negligence cases,       Andrew E. Toscano, Gene Toscano, Inc., San Antonio, for
       causation in a medical malpractice action is         appellant.
       established by proof that the negligent act or
       omission was a substantial factor in bringing        Laura A. Cavaretta, Jerry A. Gibson, Plunkett & Gibson, San
       about the harm and without which the harm            Antonio, for appellee.
       would not have occurred.
                                                            Sitting: CATHERINE STONE, Justice, SARAH B.
       28 Cases that cite this headnote                     DUNCAN, Justice, PHYLIS J. SPEEDLIN, Justice.


 [8]   Health
                                                                                     OPINION
           Affidavits of merit or meritorious defense;
       expert affidavits                                    Opinion by: PHYLIS J. SPEEDLIN, Justice.
       In reviewing the adequacy of an expert witness's
       report in a medical malpractice case, the court's    This case involves the adequacy of expert reports under
       inquiry is restricted to the four corners of         the Texas Medical Liability and Insurance Improvement Act
       the report, and inferences are not permitted.        (“the Act”). The trial court dismissed the plaintiff's medical
       Vernon's Ann.Texas Civ.St. art. 4590i, § 13.01(l     malpractice suit after it determined the expert reports did not
       ).                                                   satisfy the Act's requirements with respect to causation. We
                                                            affirm the trial court's judgment.
       4 Cases that cite this headnote


 [9]   Health                                                                    BACKGROUND




              © 2015 Thomson Reuters. No claim to original U.S. Government Works.                                           2
Costello v. Christus Santa Rosa Health Care Corp., 141 S.W.3d 245 (2004)


Delia Lozano (“Lozano”) was admitted to the emergency                with the Act under an abuse of discretion standard. Palacios,
department of Christus Santa Rosa Hospital (“Christus”) with         46 S.W.3d at 878.
the chief complaint of chest pain. She was initially “triaged”
by the nursing staff and then asked to return to the waiting         2      Repealed by Act of June 2, 2003, 78th Leg., R.S., ch.
room. Forty minutes later, while in the waiting room, she                   204, § 10.01, 2003 Tex Gen. Laws 847, 884. See TEX.
suffered a cardiac arrest and was unable to be resuscitated.                CIV. PRAC. & REM.CODE ANN. § 74.351(1) (Vernon
Mrs. Lozano's daughter, Alicia Costello (“Costello”), sued                  Supp.2004) (effective Sept. 1, 2003).
the hospital for medical malpractice. Costello filed two
expert reports under the Act. The report of Pamela Zanes,            A. Pamela Zanes, R.N.
R.N. (“Nurse Zanes”) sets forth the applicable standard of            [3]    [4]     [5] In its order of dismissal, the trial court
nursing care. The second report by Dr. Steven Schilling (“Dr.        found that the report of Nurse Zanes did not establish her
Schilling”) states in relevant part:                                 qualifications to express an expert opinion on causation. We
                                                                     agree. Although it is generally true that a licensed registered
             Patients that present to emergency                      nurse has more education and training on medical issues than
             departments with the chief complaint                    a lay person, a nursing license does not automatically qualify
             of chest pain, especially in this age                   the registered nurse as an expert on every medical subject. Cf.
             group, require immediate triage to                      Broders v. Heise, 924 S.W.2d 148, 152 (Tex.1996) (a licensed
             an examination room, placement on                       medical doctor is not automatically qualified to testify as an
             a telemetry monitor, and a “stat”                       expert on every medical question). The trial court instead
             EKG followed by prompt physician                        must ensure that “those who purport to be experts truly have
             evaluation.... If this patient would                    expertise concerning the actual subject about which they are
             have been appropriately triaged and                     offering an opinion.” Id.; see also TEX.R. EVID. 702. Here,
             evaluated, then in all reasonable                       the relevant inquiry is whether Nurse Zanes has the necessary
             medical probability she would have                      expertise to express an opinion about what caused Lozano's
             survived.                                               death.

The hospital ultimately moved to dismiss the lawsuit claiming     [6] In her report, Nurse Zanes establishes that she is
the reports did not meet the statutory requirements. After a     a registered nurse licensed in the State of Texas. As
hearing, the trial court dismissed the lawsuit with prejudice.   such, she is governed by the Texas Nursing Practice Act,
This appeal resulted.                                            which defines the privileges and limitations of her right
                                                                 to practice professional nursing in this State. See TEX.
                                                                 OCC.CODE ANN. §§ 301.001–.607 (Vernon 2004). Her
                          ANALYSIS                               license specifically allows her to be compensated for such
                                                                 acts as observing, assessing, evaluating, and caring for a
 [1] [2] In her sole issue on appeal, Costello contends that person who is ill or injured, but precludes her from “acts of
the trial court abused its discretion in determining the expert  medical diagnosis.” TEX. OCC.CODE ANN. § 301.002(2)
 *248 reports did not constitute a good-faith effort to meet the (definition of “professional nursing”). 3 A licensed registered
requirements of the Act. See TEX.REV.CIV. STAT. ANN..            nurse who is expressly prohibited by law from rendering a
art. 4590i, § 13.01(l ) (Vernon 2003). 2 In order to meet            medical diagnosis would also lack the expertise to testify
the requirements of the Act, an expert report “must provide          on subjects that require making a medical diagnosis. See
enough information to fulfill two purposes: (1) it must inform       Pace v. Sadler, 966 S.W.2d 685, 690 (Tex.App.-San Antonio
the defendant of the specific conduct the plaintiff has called       1998, no pet.) (although qualified to render expert opinion
into question, and (2) it must provide a basis for the trial court   on nursing standard of care, nurse was not qualified to
to conclude that the claims have merit.” Bowie Memorial              medically diagnose heart condition); Arlington Mem'l Hosp.
Hospital v. Wright, 79 S.W.3d 48, 52 (Tex.2002) (citing the          Found., Inc. v. Baird, 991 S.W.2d 918, 921 (Tex.App.-
two-part test set forth in American Transitional Care Ctrs. of       Forth Worth 1999, pet. denied) (nurse was not qualified to
Tex., Inc. v. Palacios, 46 S.W.3d 873, 879 (Tex.2001)). We           medically diagnose causation of thermal burns). To give a
review a trial court's dismissal of a suit for failure to comply     medical opinion on the cause of someone's death necessarily
                                                                     demands the ability to make a medical diagnosis. Nurse



                © 2015 Thomson Reuters. No claim to original U.S. Government Works.                                                 3
Costello v. Christus Santa Rosa Health Care Corp., 141 S.W.3d 245 (2004)


                                                                 [9] Although the Act only requires a “fair summary” of his
Zanes is expressly prohibited by law from *249 doing
                                                                opinions, Dr. Schilling's mere assertion that the patient would
that. Accordingly, the trial court properly refused to consider
                                                                have survived is conclusory and is not sufficient. Nowhere in
Nurse Zanes' affidavit on the issue of causation.
                                                                Dr. Schilling's report does he explain the causal connection
3                                                               between Christus' claimed omissions (failure to appropriately
        The Texas Nursing Practice Act does not define what
                                                                triage and evaluate) and Lozano's death. See TEX.REV.CIV.
        is meant by “acts of medical diagnosis.” See TEX.
                                                                STAT. ANN.. art. 4590i, § 13.01(r)(6); Wright, 79 S.W.3d
        OCC.CODE ANN. § 301.002. Taber's Cyclopedia
                                                                at 53. Dr. Schilling offers no explanation of what medical
        Medical Dictionary defines “diagnosis” as the use
        of scientific or clinical methods to establish the
                                                                information a more timely triage and evaluation would have
        cause and nature of a person's illness; it defines      revealed, nor does he state what would have been done had
        “medical diagnosis” as the identification of the        Christus not failed to act, what treatment would have or could
        cause of the patient's illness or discomfort. See       have been available, that the patient was a candidate for the
        TABER'S CYCLOPEDIC MEDICAL DICTIONARY                   unknown treatment, or that the unknown treatment could have
        (19th ed.2001).                                         or would have been effective. Dr. Schilling's report fails to
                                                                state how Christus' failure to act was a substantial factor in
B. Dr. Schilling                                                bringing about Lozano's death and without which her death
 [7] [8] The trial court also determined that Dr. Schilling's would not have occurred. See Kramer, 858 S.W.2d at 400. A
report was conclusory on the issue of causation. Again,         report is insufficient if, as in the instant case, it merely states
we agree. The Act requires that an “expert report” provide      the expert's conclusions. Palacios, 46 S.W.3d at 879; see also
a fair summary of the manner in which the care at issue         Earle v. Ratliff, 998 S.W.2d 882, 890 (Tex.1999).
failed to meet the applicable standards of care and the causal
relationship between that failure and the harm or damages       In addition, nowhere in his report does Dr. Schilling explain
claimed. See TEX.REV.CIV. STAT. ANN.. art. 4590i, §             the medical basis or reasoning for his conclusion that Lozano
13.01(r)(6). As is true in other types of negligence cases,     “in all reasonable medical probability” would have survived.
causation is established by proof that the negligent act or     While no particular term or phrase is required for an
omission was a substantial factor in bringing about the harm    expert to establish causation, the converse is also true. See
and without which the harm would not have occurred. Kramer      Wright, 79 S.W.3d at 53. Without more, the magic words
v. Lewisville Mem'l Hosp., 858 S.W.2d 397, 400 (Tex.1993).      of “reasonable medical probability” provide no evidence of
In reviewing the report's adequacy, our inquiry is restricted   causation. Merrell Dow Pharmaceuticals, Inc. v. Havner, 953
to the four corners of the report. Palacios, 46 S.W.3d at 878.  S.W.2d 706, 711–12 (Tex.1997).
Inferences are not permitted. Id.
                                                                Once the trial court determined that the two expert reports
Dr. Schilling's report states, “If this patient would have been did not comply with the statutory requirements of the Act, the
appropriately triaged and evaluated, then in all reasonable     court had no discretion and was required to dismiss the suit
medical probability she would have survived.” Costello          against Christus with prejudice. See TEX.REV.CIV. STAT.
maintains this statement of causation “clearly links” Christus  ANN.. art. 4590i, § 13.01(e)(3). We affirm the judgment of
to Lozano's death, and therefore meets the causation            the trial court.
requirement of the Act. Christus responds that the report's one
statement about causation fails to explain how the hospital's
purported failure to act in a more timely manner caused the     All Citations
patient's death.
                                                                141 S.W.3d 245


End of Document                                                   © 2015 Thomson Reuters. No claim to original U.S. Government Works.




               © 2015 Thomson Reuters. No claim to original U.S. Government Works.                                                 4
Fortner v. Hospital of the Southwest, LLP, 399 S.W.3d 373 (2013)


                                                                       between that failure and injury, harm, or
                                                                       damages claimed. V.T.C.A., Civil Practice &
                    399 S.W.3d 373
                                                                       Remedies Code § 74.351(i).
                Court of Appeals of Texas,
                          Dallas.                                      3 Cases that cite this headnote
   Ronald FORTNER and Pam Fortner, Appellants
                            v.                                   [2]   Appeal and Error
    HOSPITAL OF THE SOUTHWEST, LLP d/b/a                                  Rulings on Motions Relating to Pleadings
   The Heart Hospital Baylor Plano; Gary E. Erwin,                     Court of Appeals reviews a trial court's order on a
    Jr., M.D.; Jeff Taylor, M.D.; Gregory Messner,                     motion to dismiss a health care liability claim for
  D.O.; Health Texas Provider Network d/b/a Dallas                     an abuse of discretion. V.T.C.A., Civil Practice
   Diagnostic Association–Plano; James E. Rellas,                      & Remedies Code § 74.351.
    M.D., P.A. d/b/a HeartFirst Cardiology Center;                     Cases that cite this headnote
   and Medical Edge Healthcare Group, P.A. d/b/
    a The Texas Clinic at Prestonwood, Appellees.
                                                                 [3]   Health
        No. 05–11–00971–CV.          |   April 5, 2013.                    Affidavits of merit or meritorious defense;
                                                                       expert affidavits
Synopsis                                                               If an expert report on the basis for a health
Background: Patient brought action against physicians and              care liability claim omits any of the statutory
hospital for health care negligence and lack of informed               elements, it cannot be a “good faith effort” for
consent. The 101st Judicial District Court, Dallas County,             purposes of the rule that a trial court shall grant
No. 10–02994–E, Martin Lowy, J., dismissed with prejudice.             a motion challenging the adequacy of the expert
Patient appealed.                                                      report only if it appears to the court, after hearing,
                                                                       that the report does not represent an objective
                                                                       good faith effort to comply with the definition
[Holding:] The Dallas Court of Appeals, Fillmore, J., held             of an expert report. V.T.C.A., Civil Practice &
that expert report on basis for patient's claims was adequate.         Remedies Code § 74.351(a), (r)(6).

                                                                       2 Cases that cite this headnote
Affirmed in part, reversed in part, and remanded.
                                                                 [4]   Health
                                                                           Affidavits of merit or meritorious defense;
 West Headnotes (12)                                                   expert affidavits
                                                                       In determining whether the expert report on the
                                                                       basis for a health care liability claim represents
 [1]    Health
                                                                       a good faith effort to comply with the statutory
            Affidavits of merit or meritorious defense;
                                                                       requirements, as would preclude the trial court
        expert affidavits
                                                                       from granting a motion challenging the adequacy
        Reports may be considered together in                          of the expert report, the trial court's inquiry
        determining whether a health care liability                    is limited to the four corners of the report.
        claimant provided a report meeting the statutory               V.T.C.A., Civil Practice & Remedies Code §
        requirements to provide a fair summary of                      74.351.
        expert's opinions as of the date of the report
        regarding applicable standards of care, the                    Cases that cite this headnote
        manner in which the care rendered by the
        physician or health care provider failed to              [5]   Health
        meet the standards, and the causal relationship



               © 2015 Thomson Reuters. No claim to original U.S. Government Works.                                              1
Fortner v. Hospital of the Southwest, LLP, 399 S.W.3d 373 (2013)


            Affidavits of merit or meritorious defense;               be presented to the trial court. V.T.C.A., Civil
        expert affidavits                                             Practice & Remedies Code § 74.351.
        For an expert report on the basis for a health
                                                                      2 Cases that cite this headnote
        care liability claim to represent an objective
        good faith effort to comply with statutory
        requirements, as would preclude the trial court        [9]    Health
        from granting a motion challenging the adequacy                   Affidavits of merit or meritorious defense;
        of the expert report, the expert report must (1)              expert affidavits
        inform the defendant of the specific conduct the              An expert report on the basis for a health
        plaintiff has called into question, and (2) provide           care liability claim need not marshal all the
        a basis for the trial court to conclude that the              plaintiff's proof necessary to establish causation
        claims have merit. V.T.C.A., Civil Practice &                 at trial, and the fact a plaintiff may not prove
        Remedies Code § 74.351.                                       causation at trial does not mean an expert report
                                                                      was inadequate. V.T.C.A., Civil Practice &
        3 Cases that cite this headnote
                                                                      Remedies Code § 74.351.

 [6]    Health                                                        2 Cases that cite this headnote
            Affidavits of merit or meritorious defense;
        expert affidavits                                      [10]   Health
        An expert report on the basis for a health care                   Affidavits of merit or meritorious defense;
        liability claim need not marshal all the plaintiff's          expert affidavits
        proof, but it must do more than merely state                  In an expert report on the basis for a health care
        the expert's conclusions about the standard of                liability claim, the expert must explain the basis
        care, breach, and causation, and it must explain              of his statements and link his conclusions to the
        the basis of the expert's statements and link his             facts. V.T.C.A., Civil Practice & Remedies Code
        conclusions to the facts. V.T.C.A., Civil Practice            § 74.351.
        & Remedies Code § 74.351.
                                                                      Cases that cite this headnote
        2 Cases that cite this headnote

                                                               [11]   Health
 [7]    Health                                                            Affidavits of merit or meritorious defense;
            Affidavits of merit or meritorious defense;               expert affidavits
        expert affidavits
                                                                      Trial court abused its discretion in concluding
        An expert report on the basis for a health care               that expert report on the basis for patient's health
        liability claim must contain sufficiently specific            care liability claims for direct liability against
        information to demonstrate causation beyond                   hospital and physicians and for vicarious liability
        mere conjecture. V.T.C.A., Civil Practice &                   against physicians' employers was inadequate,
        Remedies Code § 74.351.                                       where the report explained that the physicians
                                                                      failed to obtain timely attention and treatment for
        3 Cases that cite this headnote
                                                                      patient's vision loss caused by hypotension after
                                                                      coronary artery bypass, resulting in permanent
 [8]    Health                                                        blindness in both eyes. V.T.C.A., Civil Practice
            Affidavits of merit or meritorious defense;               & Remedies Code § 74.351.
        expert affidavits
                                                                      1 Cases that cite this headnote
        The statute requiring an expert report on the basis
        for a health care liability claim does not require
        that the expert report anticipate and rebut all        [12]   Health
        possible defensive theories that may ultimately


               © 2015 Thomson Reuters. No claim to original U.S. Government Works.                                           2
Fortner v. Hospital of the Southwest, LLP, 399 S.W.3d 373 (2013)


              Affidavits of merit or meritorious defense;              at Prestonwood (Texas Clinic) as a result of appellees'
          expert affidavits                                            challenges to the sufficiency of appellants' experts' reports.
          When a health care liability claim involves                  In a single issue, appellants contend the trial court abused its
          a vicarious liability theory, either alone or                discretion in concluding the expert reports in this case fail to
          in combination with other theories, an expert                comply with the requirement of civil practice and remedies
          report that meets the statutory standards as                 code section 74.351 that an expert report demonstrate a causal
          to the employee is sufficient to implicate the               relationship between the failure of a physician or health care
          employer's conduct under the vicarious liability             provider to meet an applicable standard of care and the injury,
          theory, and if any liability theory has been                 harm, or damage claimed. We affirm the trial court's judgment
          adequately covered, the entire case may proceed.             in part, reverse the trial's judgment in part, and remand this
          V.T.C.A., Civil Practice & Remedies Code §                   cause to the trial court for further proceedings.
          74.351.

          Cases that cite this headnote
                                                                                                Background


                                                                                       Facts Alleged by Appellants
Attorneys and Law Firms
                                                                       We recite the facts as alleged in appellants' First Amended
*375 Jeffrey S. Levinger, Levinger PC, Kenneth B.                      Petition, their live pleading at the time of the trial court's
Chaiken, Robert L. Chaiken, Chaiken & Chaiken, P.C.,                   orders dismissing all claims brought by appellants against
Dallas, TX, for Appellants.                                            appellees. On July 14, 2008, appellant Ronald Fortner had
                                                                       an initial consultation with Dr. Messner, after a diagnostic
John A. Scully, Russell G. Thornton, Diana Wood, Stan                  test earlier that day indicated Mr. Fortner suffered from
Thiebaud, Michelle E. Robberson, Cory M. Sutker, Dallas,               multi-vessel coronary disease and complex plaque. Dr.
TX, Aaron D. Nadeua, Joel J. Steed, J., Rockwall, TX,                  Messner recommended surgery on an emergent basis and
Jennifer Gossom Martin, Addison, TX, for Appellees.                    performed a four vessel quadruple coronary artery bypass
                                                                       graft the following day at Baylor Hospital. Post-operatively,
Before     Justices     FITZGERALD,           FILLMORE,          and   Drs. Messner, Erwin, and Taylor and employees of Baylor
             1
RICHTER.                                                               Hospital were responsible for providing Mr. Fortner's
                                                                       healthcare.
1        The Honorable Martin E. Richter, Retired Justice, Court
         of Appeals, Fifth District of Texas at Dallas, sitting by     “During and/or after surgery,” Mr. Fortner suffered from
         assignment.                                                   various problems including sustained periods of severe
                                                                       hypotension. “Shortly after surgery and contemporaneous
                                                                       with the hypotension,” Mr. Fortner began complaining of
                            OPINION                                    visual disturbances and partial loss of vision, first in one eye
                                                                       and then in the other. Appellants claim Drs. Messner, Erwin,
Opinion By Justice FILLMORE.                                           and Taylor and Baylor Hospital nursing or medical staff
                                                                       were aware of Mr. Former's vision-related complaints “when
This appeal follows the trial court's dismissal of the health          and as Mr. Fortner was experiencing and expressing such
care liability claims asserted by appellants Ronald Fortner and        complaints in proximity to events which tended to explain
Pam Fortner against appellees Hospital of the Southwest, LLP           their occurrence, cause and severity” but did not provide or
d/b/a The Heart Hospital Baylor Piano (Baylor Hospital),               obtain necessary medical intervention. An ophthalmologist
Gary E. Erwin, Jr., M.D. (Dr. Erwin), Jeff Taylor, M.D.                was not consulted to evaluate Mr. Fortner until about twenty-
(Dr. Taylor), Gregory Messner, D.O. (Dr. Messner), Health              seven hours after he began complaining about vision loss, by
Texas Provider Network d/b/a Dallas Diagnostic Association             which time he was blind in both eyes.
—Plano (Dallas Diagnostic), James E. Rellas, M.D., P.A. d/
b/a HeartFirst Cardiology Center (HeartFirst), and Medical
Edge Healthcare Group, P.A. d/b/a The *376 Texas Clinic



                 © 2015 Thomson Reuters. No claim to original U.S. Government Works.                                                3
Fortner v. Hospital of the Southwest, LLP, 399 S.W.3d 373 (2013)


                                                                     Pursuant to section 74.351 of the civil practice and remedies
                                                                     code, appellants served appellees with an expert report
              Appellants' Theories of Liability
                                                                     prepared by John Kress, M.D., a board-certified pulmonary
Appellants allege Drs. Messner, Erwin, and Taylor, and               and critical care medicine physician, in support of their
                                                                     claims. See TEX. CIV. PRAC. & REM.CODE ANN. §
Baylor Hospital were negligent and grossly negligent. 2
                                                                     74.351(a) (West 2011) (in a health care liability claim,
Appellants *377 further allege Dallas Diagnostic is
                                                                     claimant shall, not later than the 120th day after the date the
vicariously liable for the negligence of its members, Drs.
                                                                     original petition was filed, serve on each party or the party's
Erwin and Taylor; HeartFirst and Texas Clinic are vicariously
                                                                     attorney one or more expert reports, with a curriculum vitae
liable for the negligence of its employee, Dr. Messner; and
                                                                     of each expert listed in the report for each physician or health
Baylor Hospital is vicariously liable for the negligence of its
                                                                     care provider against whom a liability claim is asserted).
“employees, agents, ostensible agents and representatives.”
                                                                     Appellees filed objections challenging the sufficiency of Dr.
                                                                     Kress's report as failing to comply with the requirements of
2      Appellants allege Drs. Messner, Erwin, and Taylor were        section 74.351. See TEX. CIV. PRAC. & REM.CODE ANN.
       negligent and grossly negligent by failing to: (1) properly
                                                                     § 74.351(r)(6) (“expert report” means a written report by an
       and thoroughly examine Mr. Fortner, (2) properly and
                                                                     expert that provides a fair summary of expert's opinions as
       thoroughly assess and diagnose Mr. Fortner, (3) properly
                                                                     of the date of the report regarding applicable standards of
       document Mr. Fortner's physical condition, (4) provide
       Mr. Fortner with adequate and/or timely treatment for his
                                                                     care, the manner in which the care rendered by the physician
       medical conditions, (5) order required treatment or care      or health care provider failed to meet the standards, and the
       for Mr. Fortner on a timely basis, (6) obtain appropriate     causal relationship between that failure and injury, harm, or
       specialized care and/or consultation for Mr. Fortner's        damages claimed).
       condition which these appellees were unable to diagnose
       or treat.                                                     At the November 2010 hearing on appellees' objections to the
          Appellants allege Baylor Hospital, either directly         sufficiency of Dr. Kress's expert report, the parties announced
          through its own acts or omissions or under the doctrine    on the record their agreement to an extension of time for
          of respondeat superior, was negligent by: (1) failing to   appellants to attempt to cure deficiencies in Dr. Kress's
          properly document Mr. Fortner's physical condition,        expert report regarding the statutory requirement that the
          (2) failing to properly transmit documentation
                                                                     expert report demonstrate a causal relationship between the
          concerning Mr. Fortner's physical condition to the
                                                                     alleged failure to met the applicable standard of care and
          appropriate and necessary recipients, (3) failing to
                                                                     Mr. Fortner's injury. It was the parties' agreement that this
          properly and timely communicate or ensure proper
          and timely communication of information pertaining
                                                                     extension would serve as the one-time extension authorized
          to Mr. Fortner's physical condition or changes in his      in section 74.351(c). See TEX. CIV. PRAC. & REM.CODE
          diagnosis or condition among and between the health        ANN. § 74.351(c) (if expert report has not been served within
          care providers who were responsible for treating           the period specified in section 74.351(a) because elements
          and diagnosing his condition, (4) authorizing the          of report are found deficient, court may grant one 30–day
          “doing and the manner of the acts and omissions in         extension to claimant in order to cure the deficiency). At the
          question,” (5) recklessly employing personnel who          hearing, the trial judge stated he believed Dr. Kress's report
          were unfit, incompetent, or unqualified to perform         was deficient with respect to causation.
          the duties assigned to them, (6) employing personnel
          in managerial positions who were acting within the          [1] Appellants served appellees with a supplemental report
          course and scope of their employment at the time
                                                                     from Dr. Kress and a report from a new expert, Alfredo A.
          the negligent acts or omissions occurred and failed to
                                                                     Sadun, M.D., Ph.D., a board-certified ophthalmologist with
          prevent such acts or omissions, and (7) ratifying or
                                                                     a clinical specialty in neuro-ophthalmology. Appellees filed
          approving the negligent acts or omissions in question
          through its officers, managers, supervisors, directors,    objections to the reports of Dr. Kress and the report of Dr.
          administrators, or nurses.                                 Sadun, asserting the reports, whether considered separately
                                                                     or collectively, 3 did not cure the alleged deficiencies, and
                                                                     moved to dismiss appellants' health care liability claims with
              Dismissal of Appellants' Claims                        prejudice *378 pursuant to section 74.351(b)(2). See TEX.
                                                                     CIV. PRAC. & REM.CODE ANN. § 74.351(b)(2) (if health



                © 2015 Thomson Reuters. No claim to original U.S. Government Works.                                               4
Fortner v. Hospital of the Southwest, LLP, 399 S.W.3d 373 (2013)


care liability claimant does not serve expert report as required,   875 (Tex.2001); Nexion Health at Terrell Manor v. Taylor,
the trial court must, upon motion by affected physician or          294 S.W.3d 787, 791 (Tex.App.-Dallas 2009, no pet.). A trial
health care provider, dismiss claim with prejudice).                court has no discretion in determining what the law is or
                                                                    in applying the law to the facts. See Walker v. Packer, 827
3       Reports may be considered together in determining           S.W.2d 833, 840 (Tex.1992) (orig. proceeding). An abuse of
        whether a claimant provided a report meeting the            discretion occurs if the trial court clearly fails to analyze or
        statutory requirements. See TEX. CIV. PRAC. &               apply the law correctly. Id.
        REM.CODE ANN. § 74.351(i).
The trial court conducted a March 2011 hearing on appellees
objections to appellants experts reports and appellees motions            Expert Reports in Health Care Liability Claims
to dismiss. The trial court concluded appellants' experts'
reports fail to provide any opinion concerning a causal              [3] Under section 74.351 of the civil practice and remedies
connection between any failure to meet the applicable               code, any person who brings suit asserting a health care
standards of care and injuries and damages claimed                  liability claim must, within 120 days of filing the original
by appellants, and, therefore, the experts' reports were            petition, provide an expert report for each physician or health
insufficient and did not satisfy the requirements of section        care provider against whom a claim is asserted. TEX. CIV.
74.351. Having concluded appellants' experts' reports did           PRAC. & REM.CODE ANN. § 74.351(a). An “expert report”
not meet the causation requirement of section 74.351, by            is defined as a written report that provides a fair summary
order signed June 17, 2011, the trial court granted HeartFirst      of the expert's opinions as of the date of the report regarding
and Texas Clinic's motion to dismiss and ordered all claims         applicable standards of care, the manner in which the care
brought by appellants against HeartFirst and Texas Clinic           rendered by the physician or health care provider failed
dismissed with prejudice. By order signed September 26,             to meet the standards, and the causal relationship between
2011, the trial court granted the motions to dismiss of Drs.        that failure and the injury, harm, or damages claimed. Id.
Messner, Erwin, and Taylor, Dallas Diagnostic, and Baylor           § 74.351(r)(6); see also Bowie Mem'l Hosp. v. Wright, 79
Hospital and ordered all claims brought by appellants against       S.W.3d 48, 51 (Tex.2002). When a plaintiff sues more than
                                                                    one defendant in connection with a health care liability
them dismissed with prejudice. 4 Appellants filed this appeal
                                                                    claim, the expert report must set forth the standard of care
of the trial court's dismissal of their health care liability
                                                                    applicable to each defendant, show how that defendant's
claims.
                                                                    conduct failed to meet *379 that standard, and explain the
                                                                    causal relationship between each defendant's individual acts
4       Section 74.351(b)(1) provides that if an expert report      and the injury, harm, or damages claimed. See TEX. CIV.
        has not been served within the time period specified, the
                                                                    PRAC. & REM.CODE ANN. § 74.351(a), (r)(6); see also
        trial court, on a proper motion, shall award “reasonable
                                                                    Scoresby v. Santillan, 346 S.W.3d 546, 555–56 (Tex.2011);
        attorney's fees and costs of court incurred by the
                                                                    Eichelberger v. St. Paul Med. Ctr., 99 S.W.3d 636, 638
        physician or health care provider.” See TEX. CIV.
        PRAC. & REM.CODE ANN. § 74.351(b)(1). In its                (Tex.App.-Dallas 2003, pet. denied). If a report omits any of
        September 26, 2011 order, the trial court noted Drs.        these statutory elements of section 74.351(r)(6), it cannot be
        Messner, Erwin, and Taylor, Dallas Diagnostic, and          a good faith effort. Palacios, 46 S.W.3d at 879.
        Baylor Hospital waived recovery of attorneys' fees for
        defense of this lawsuit in the trial court and in any        [4]    [5] A trial court shall grant a motion challenging
        appellate court.                                            the adequacy of an expert report only if it appears to the
                                                                    court, after hearing, that the report does not represent an
                                                                    objective good faith effort to comply with the definition of
                           Discussion                               an expert report in section 74.351(r)(6). TEX. CIV. PRAC. &
                                                                    REM.CODE ANN. § 74.351(0; see also Loaisiga v. Cerda,
                      Standard of Review                            379 S.W.3d 248, 260 (Tex.2012). In determining whether the
                                                                    expert report represents a good faith effort to comply with the
 [2] We review a trial court's order on a motion to dismiss a       statutory requirements, the trial court's inquiry is limited to
health care liability claim for an abuse of discretion. See Am.     the four corners of the report. Eichelberger v. Mulvehill, 198
Transitional Care Ctrs. of Texas v. Palacios, 46 S.W.3d 873,        S.W.3d 487, 490 (Tex.App.-Dallas 2006, pet. denied) (citing



                © 2015 Thomson Reuters. No claim to original U.S. Government Works.                                              5
Fortner v. Hospital of the Southwest, LLP, 399 S.W.3d 373 (2013)


Palacios, 46 S.W.3d at 878)). To represent an objective good         Dr. Messner was notified. The first consultative evaluation
faith effort to comply with statutory requirements, the expert       of Mr. Fortner's visual complaints was a neurology
report must (1) inform the defendant of the specific conduct         consultation the *380 next day (7/17/08) at 9:51 AM....
the plaintiff has called into question, and (2) provide a basis      Pulmonary/Critical care consultant (note dated 7/17/08)
for the trial court to conclude that the claims have merit.          stated “Opthal consult if indicated”. An ophthalmology
Leland v. Brandal, 257 S.W.3d 204, 206–07 (Tex.2008);                consult was not obtained, however, until 7/17/08 at 17:38,
Palacios, 46 S.W.3d at 879.                                          approximately one day after the patient was initially noted
                                                                     to have acute visual changes. The patient was ultimately
 [6] [7] An expert report need not marshal all the plaintiff's       noted to have anterior ischemic optic neuropathy with
proof. Wright, 79 S.W.3d at 52. However, it must do                  permanent blindness in both eyes.
more than merely state the expert's conclusions about the
standard of care, breach, and causation; it must explain the         Whenever a patient experiences visual changes, this
basis of the expert's statements and link his conclusions            is a medical emergency that requires immediate and
to the facts. Id.; Quinones v. Pin, 298 S.W.3d 806, 810              appropriate evaluation. Time is critical. It is my opinion
(Tex.App.-Dallas 2009, no pet.). The report must contain             that the potential for blindness in a post coronary bypass
sufficiently specific information to demonstrate causation           graft patient, particularly one who has experienced recent
beyond mere conjecture. See Farishta v. Tenet Healthsystem           hypotension and anemia, is a foreseeable event. In a
Hosps. Dallas, Inc., 224 S.W.3d 448, 453 (Tex.App.-Fort              specialty heart hospital, the foreseeability of such an event
Worth 2007, no pet.). Thus, courts have reasoned that an             would be greater than elsewhere, thus one would expect
expert report that describes causation in terms of mere              health care providers practicing in such a setting, including
possibilities does not accomplish the purpose of providing           physicians, nurses and physical therapists, to be trained
“a basis for the trial court to conclude that the claims have        in identifying and responding to the signs and symptoms
merit.” Wright, 79 S.W.3d at 52; see also Quinones, 298              suggestive of potential vision loss.
S.W.3d at 815–16.
                                                                     It is my opinion that the applicable standard of care in
                                                                     the critical setting which Mr. Fortner was in, following his
                                                                     surgery—a critical care unit in a specialty heart hospital
                 Appellants' Experts' Reports                        —is such that immediate ophthalmologic, as well as
                                                                     neurologic, consultation was required for Mr. Fortner upon
Appellants served appellees with two reports from Dr. Kress          first notice to any member of a the [sic] health care
and a report from Dr. Sadun. Appellees challenged the reports        team, of any acute change in the patient's vision, and
and moved to dismiss appellants' health care liability claims.       should have been obtained emergently. As a cardiothoracic
                                                                     surgeon, Dr. Messner should be familiar with and able
In Dr. Kress's July 8, 2010 expert report, he states his opinions    to foresee the potential for ischemic injury to the brain
are given “within a reasonable degree of medical certainty           and/or eyes given a past medical history of hypertension
or probability.” He indicates that he is familiar with the           and peri-operative anemia and hypotension. As critical
standard for delivery of healthcare in a critical or intensive       care physicians generally, and especially in a specialty
care setting, “including the care provided by surgeons whose         heart hospital, Drs. Erwin, Taylor, and the PULM/CC
patients are in that setting, critical care specialists, nurses,     PHYSICIAN (if other than Drs. Taylor and Erwin) should
physical therapists, and other health care providers and allied      be familiar with and able to foresee the potential for
health care providers who practice or participate in the care        ischemic injury to the brain and/or eyes given a past
of patients in a critical care setting.” His first report includes   medical history of hypertension and peri-operative anemia
the following:                                                       and hypotension. Nurses and physical therapists in such a
                                                                     setting should be trained to immediately procure immediate
  On post operative day one (7/16/08) Mr. Fortner noted
                                                                     physician attention for any patient who complains of visual
  visual changes. A physical therapist initial evaluation
                                                                     changes.
  noted a “requirement for assistance secondary to visual
  impairment” at 3:04 PM. A nurse's note by Karla Jones              It is my opinion that the applicable standard of care was
  on 7/16/08 at 18:10 notes “visual field disturbances....”          breached by the physical therapist employed at [Baylor
  At 18:40, Ms. Jones notified Dr. Erwin, and at 19:20,              Hospital], when she merely noted Mr. Former's acute



                © 2015 Thomson Reuters. No claim to original U.S. Government Works.                                            6
Fortner v. Hospital of the Southwest, LLP, 399 S.W.3d 373 (2013)


  visual change on 7/16/08, but apparently did nothing               Baylor Hospital's employees, and Drs. Messner, Erwin, and
  further, including communicating the condition to a                Taylor proximately caused or contributed to causation of Mr.
  physician so that immediate evaluation could occur. It             Fortner's injury, and states causation is more fully described
  is my opinion that Drs. Messner, Erwin, and Taylor and             in Dr. Sadun's report.
  the PULM/CC PHYSICIAN (if other than Drs. Taylor
  and Erwin) each breached the applicable standard of                In his December 20, 2010 report, Dr. Sadun states he
  care by not obtaining immediate ophthalmologic, as well            “speak[s] to the issue of causation.” Dr. Sadun notes that
  as neurologic, consultation, and by not providing any              by postoperative day two, Mr. Fortner's drop in hematocrit
  appropriate therapy or intervention to address Mr. Fortner's       and hemoglobin “meant that he had essentially lost half of
  visual changes, upon being notified of the same. It is             his red blood cell volume,” and shortly after surgery, Mr.
  my opinion that [Baylor Hospital] breached the applicable          Fortner's blood pressure was about half of his preoperative
  standard of care by apparently failing to provide training to      blood pressure. In his report, Dr. Sadun states:
  its staff, including but not necessarily limited to its physical
  therapy providers, about the urgent need for intervention in         By postoperative day one, Mr. Fortner noted decreased
  the form of specialty consultative care, and when and how            vision in the right eye and then a day or two later in the
  to access the same, in the event of a foreseeable emergent           left eye.... When he was seen by ophthalmology July 17,
  visual condition such as Mr. Fortner's.                              2008 at about 5:30 in the evening the diagnosis was anterior
                                                                       ischemic optic neuropathy with a complete loss of vision
Dr. Kress opines that each of the breaches of the standard             in both eyes.
of care by Baylor Hospital, Baylor Hospital's employees,
Dr. Messner, Dr. Erwin, and Dr. Taylor proximately *381                There are two types of anterior ischemic neuropathy....
caused or contributed to causation of Mr. Former's injury.             Bilateral loss of vision in conjunction with this type of
                                                                       surgery and at such a profound extent is almost certainly the
In his December 29, 2010 supplemental report, Dr.                      rare second form of anterior ischemic optic neuropathy....
Kress notes the consulting ophthalmologist recommended                 The mechanism of this type of post-surgical anterior
correction of Mr. Fortner's hypotension and anemia.                    ischemic optic neuropathy can ... be termed ... shock
“However, by that time, the patient was noted to have                  induced optic neuropathy.
blindness in both eyes which ultimately was determined to
                                                                     According to Dr. Sadun, shock induced optic neuropathy, a
be anterior ischemic optic neuropathy.” Dr. Kress opines that
                                                                     “watershed infarct (a type of stroke),” is due to a combination
Baylor Hospital breached the applicable standard of care by
                                                                     of factors that decreases the supply of oxygen in a “more
either failing to have or enforce policies and procedures,
                                                                     diffuse fashion” than other types of infarcts caused by blood
or standing orders, directing practitioners, nurses, and other
                                                                     vessel blockage or bleeding. He states that in circumstances
health care providers about when and how to access specialty
                                                                     where the patient becomes very anemic (low hematocrit)
consultative care in the event of a foreseeable visual condition
                                                                     or experiences drops in blood pressure for a “reasonably
such as Mr. Fortner's. He further opines the applicable
                                                                     long duration,” shock induced optic neuropathy can occur.
standard of care was breached by a physical therapist
                                                                     According to Dr. Sadun, the amount of time it takes the
employed by Baylor Hospital when she noted Mr. Fortner's
                                                                     optic nerve to undergo “irreversible loss” following a lack of
acute visual change but did not communicate the condition to
                                                                     adequate blood supply “is in the order of a hundred minutes,”
a physician so that immediate evaluation could occur and by
                                                                     although there are a number of factors *382 that “might
a nurse at Baylor Hospital when she delayed communication
                                                                     make this longer.” According to Dr. Sadun:
to a physician about Mr. Fortner's visual changes after she
was aware of the changes. With regard to Drs. Messner,                 Shock induced neuropathy occurs during but also after
Erwin, and Taylor, Dr. Kress states the physicians did not             surgery. It is not uncommon for it to occur one or two days
act to treat Mr. Fortner's anemia or hypotension during “the           later.
recognized window of opportunity” on July 16, 2008, when
Mr. Fortner's acute visual changes were first noted. Dr. Kress         Once shock induced optic atrophy occurs there is probably
specifically refers to the December 20, 2010 report of Dr.             only a narrow window of opportunity to reverse it. This
Sadun as describing the “window of opportunity” during                 is best done by blood transfusions, which increase the
which corrective action must be taken. Dr. Kress opines                hematocrit or hemoglobin. There may be circumstances
the breaches of the standards of care by Baylor Hospital,              where raising the blood pressure is also useful.


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Fortner v. Hospital of the Southwest, LLP, 399 S.W.3d 373 (2013)


                                                                 and Taylor should be familiar with, and able to foresee,
In noting four units of blood to raise the hematocrit were not   the potential for “ischemic injury to the brain and/or eyes
given to Mr. Fortner until the afternoon and evening of July     given [Mr. Former's] past medical history of hypertension
17 and the afternoons of July 19 and 20, Dr. Sadun states in     and peri-operative anemia and hypotension.” In addition,
his report:                                                      Dr. Kress opined that nurses and physical therapists at a
                                                                 specialty heart hospital, such as Baylor Hospital, should be
            This delay in transfusion probably
                                                                 trained to immediately procure physician attention for any
            represented the last opportunity to
                                                                 patient who complains of vision changes. The expert reports
            reverse the visual loss for Mr. Fortner.
                                                                 of Drs. Kress and Sadun make clear that the “watershed” post-
            Failure to do so at this time was
                                                                 surgical anterior ischemic optic neuropathy experienced by
            inordinate and unfortunate. Indeed,
                                                                 Mr. Fortner required timely response and intervention, and
            the request for an ophthalmology
                                                                 opine that the breaches of the applicable standards of care
            consultation did result in a belated
                                                                 by appellees resulted in untimely and ineffective responses
            recommendation for blood transfusion
                                                                 to Mr. Fortner's complaints about vision impairment and,
            (and to take efforts to maintain blood
                                                                 consequently, Mr. Former's permanent blindness.
            pressure). Specifically, Dr. Lu, at
            about 17:38 on the 17th and Dr.
                                                                 Dr. Messner argues that the expert reports of Drs. Kress
            Brochner, the next day, expressly
                                                                 and Sadun are inadequate with respect to causation because
            recommended efforts to raise the blood
                                                                 they require the trial court to make impermissible inferences
            pressure and reverse the anemia as
                                                                 concerning the timing *383 of the opening and closing
            reflected by the low hemoglobin and
                                                                 of the “window of opportunity” to take corrective action,
            hematocrit. This delay in boosting Mr.
                                                                 whether Dr. Messner became aware of Mr. Fortner's vision
            Fortner's blood pressure, and more
                                                                 disturbance within the “window of opportunity,” and whether
            particularly in correcting his severe
                                                                 Dr. Messner could have arranged for effective treatment by
            anemia, nothwithstanding his having
                                                                 an ophthalmologist within the “window of opportunity.” A
            severe hypotension and anemia,
                                                                 similar argument is made by Drs. Erwin and Taylor. Baylor
            while also complaining of visual
                                                                 Hospital argues appellants' experts did not “explain how
            disturbance, was, in my opinion, a
                                                                 [Baylor Hospital's] alleged breach in failing to have policies
            breach in the standard of care.
                                                                 and procedures caused Mr. Fortner's permanent blindness.”
In Dr. Sadun's opinion, Mr. Fortner's loss of vision was
a consequence of a “drop in blood count as expressed by           [8] [9] [10] Appellees demand too much from the expert
hemoglobin and hematocrit (anemia), possibly complicated         report required by section 74.351. One of the fundamental
by drops in blood pressure.” With regard to causation, Dr.       purposes of the expert report requirement in section 74.351
Sadun opines there was a failure by Baylor Hospital and Drs.     is to deter frivolous claims. Palacios, 46 S.W.3d at 878
Messner, Erwin, and Taylor to obtain timely consultation         (Legislature has determined that filing expert report that does
by an ophthalmologist and a resulting failure to timely          not evidence good faith effort to comply with definition of
commence transfusion therapy and blood pressure elevation.       expert report means claim is either frivolous or, at best, has
“In concert, this led to Mr. Fortner's permanent blindness.”     been brought prematurely). An expert report need not marshal
                                                                 all the plaintiff's proof necessary to establish causation at
                                                                 trial. Wright, 79 S.W.3d at 52; Fagadau v. Wenkstern, 311
                                                                 S.W.3d 132, 138 (Tex.App.-Dallas 2010, no pet). Indeed,
         Direct Liability Claims Against Baylor                  section 74.351 does not require that an expert report anticipate
      Hospital and Drs. Messner, Erwin, and Taylor               and rebut all possible defensive theories that may ultimately
                                                                 be presented to the trial court, and the fact a plaintiff may
Appellants' expert reports discuss the medical necessity
                                                                 not prove causation at trial does not mean an expert report
of timely and appropriate evaluation when a post-surgical
                                                                 was inadequate. See Fagadau, 311 S.W.3d at 139. Instead,
coronary artery bypass patient in critical care experiences
                                                                 the expert report must represent a good faith effort to provide
vision impairment, particularly when the symptom arises in
                                                                 a fair summary of the expert's opinions about the applicable
conjunction with recent hypotension and anemia. According
                                                                 standard of care, the manner in which the care failed to meet
to the expert report of Dr. Kress, Drs. Messner, Erwin,


               © 2015 Thomson Reuters. No claim to original U.S. Government Works.                                          8
Fortner v. Hospital of the Southwest, LLP, 399 S.W.3d 373 (2013)


that standard, and the causal relationship between that failure    Drs. Messner, Erwin, and Taylor. We resolve appellants' sole
and the claimed injury. Palacios, 46 S.W.3d at 878. The            issue in their favor in part.
expert report must contain sufficiently specific information
to demonstrate causation beyond mere conjecture. Fagadau,
311 S.W.3d at 138. Further, the expert must explain the basis
                                                                             Direct Liability Claims Against Dallas
of his statements and link his conclusions to the facts. Wright,
                                                                            Diagnostic, HeartFirst, and Texas Clinic
79 S.W.3d at 52; Quinones, 298 S.W.3d at 810.
                                                                   In their First Amended Petition, appellants allege the “entity”
 [11] Here, within the four corners of the expert reports,         appellees—Dallas Diagnostic, HeartFirst, Texas Clinic, and
Drs. Kress and Sadun collectively opine that Baylor Hospital       Baylor Hospital—were negligent. In their brief, appellants
employees and Drs. Messner, Erwin, and Taylor comprised            affirmatively state they are “not pursuing claims of direct
the team responsible for Mr. Fortner's post-surgical critical      negligence, as opposed to vicarious liability, against any
care. The expert reports collectively indicate that, while         of the entity [appellees] other than [Baylor Hospital].”
Mr. Fortner's post-surgical complaints of vision impairment        Therefore, we conclude the trial court did not abuse its
should have been recognized by these physicians and health         discretion by dismissing with prejudice appellants' direct
care providers as problematic in light of Mr. Fortner's            liability claims of negligence, as opposed to vicarious
hypotension and anemia, Mr. Fortner did not receive timely         liability, asserted against Dallas Diagnostic, HeartFirst, and
attention and treatment, including timely consultation by an       Texas Clinic. We affirm the trial court's dismissal of
ophthalmologist, blood transfusion therapy, and measures           appellants' direct liability negligence claims against Dallas
to elevate blood pressure, which caused the optic nerve of         Diagnostic, HeartFirst, and Texas Clinic, and we resolve
each of Mr. Fortner's eyes to be deprived of an adequate           appellants' sole issue against them in part.
blood supply over a period of time sufficient to result in
permanent blindness in both eyes. The expert reports identify
each physician and health care provider against which direct
liability claims are asserted, including Baylor Hospital, and         Vicarious Liability Claims Against Baylor Hospital,
discuss how the provider breached the applicable standard of           Dallas Diagnostic, HeartFirst, and Texas Clinic
care and caused or contributed to causation of Mr. Fornter's
                                                                   Appellants allege Dallas Diagnostic is vicariously liable
injury. With regard to Baylor Hospital, Dr. Kress opines
                                                                   for the negligence of its members, Drs. Erwin and Taylor.
that the hospital breached the applicable standard of care
                                                                   Appellants likewise allege HeartFirst and Texas Clinic are
by either failing to have or enforce policies and procedures,
                                                                   vicariously liable for the negligence of their employee,
or standing orders, directing practitioners, nurses, and other
                                                                   Dr. Messner. Finally, appellants allege Baylor Hospital is
health care providers about when and how to access specialty
                                                                   vicariously liable for the negligence of its employees, agents,
consultative care in the event of a foreseeable visual condition
                                                                   ostensible agents and representatives.
such as Mr. Former's, resulting in untimely health care
intervention and Mr. Fortner's injury.
                                                                    [12] With regard to appellants' theories of vicarious
                                                                   liability asserted against Dallas Diagnostic, HeartFirst, Texas
The expert reports in this case represent a good faith effort
                                                                   Clinic, and Baylor Hospital, “when a health care liability
to provide a fair *384 summary of the experts' opinions
                                                                   claim involves a vicarious liability theory, either alone
about the applicable standard of care, the manner in which the
                                                                   or in combination with other theories, an expert report
care failed to meet that standard, and the causal relationship
                                                                   that meets the statutory standards as to the employee is
between the failure and the claimed injury. Collectively,
                                                                   sufficient to implicate the employer's conduct under the
the expert reports contain sufficient information to inform
                                                                   vicarious liability theory. And if any liability theory has
appellees of the specific conduct that appellants have called
                                                                   been adequately covered, the entire case may proceed.”
into question and to provide a basis for the trial court to
                                                                   Certified EMS, Inc. d/b/a CPNS Staffing v. Potts, 392
conclude the claims have merit. See Brandal, 257 S.W.3d
                                                                   S.W.3d 625, 632 (Tex.2013). See also, TTHR Ltd.
at 206–07; Palacios, 46 S.W.3d at 879. Therefore, we
                                                                   P'ship v. Moreno, 401 S.W.3d 41 (Tex.2013), available
conclude the trial court abused its discretion in dismissing
                                                                   at      http://www.supreme.courts.state.tx.us/historical/2013/
appellants' direct liability claims against Baylor Hospital and
                                                                   apr/110630.pdf. Having concluded appellants' experts'
                                                                   reports represent an objective good faith effort to comply


                © 2015 Thomson Reuters. No claim to original U.S. Government Works.                                            9
Fortner v. Hospital of the Southwest, LLP, 399 S.W.3d 373 (2013)


with the definition of an expert report in section 74.351(r)       on lack of informed consent, “the only theory on which
(6) with regard to appellants' direct liability claims against     recovery may be obtained is that of negligence in failing to
Drs. Erwin, Taylor, and Messner, those reports are sufficient      disclose the risks or hazards that could have influenced a
to support appellants' vicarious liability claims against Dallas   reasonable person in making a decision to give or withhold
Diagnostic, HeartFirst, and Texas Clinic.                          consent”); Greenberg v. Gillen, 257 S.W.3d 281, 282–83
                                                                   (Tex.App.-Dallas 2008, pet. dismissed) (in cases alleging
Dr. Kress expresses the following opinions regarding the           lack of informed consent, there are two separate parts to
negligence of Baylor Hospital employees: a physical therapist      causation analysis: whether a reasonable person could have
was negligent when she noted Mr. Fortner's acute visual            been influenced to decide to give or withhold consent by
change but did not communicate the condition to a physician        being informed of risks or hazards that were not disclosed,
so that immediate evaluation could occur, and Nurse Jones          and whether injury complained of was caused in fact by the
was negligent by delaying *385 communication to a                  undisclosed risk). In their brief, appellants state, “Although
physician about Mr. Fortner's visual changes after she was         [appellants] also asserted a lack of informed consent as
aware of the changes. Baylor Hospital argues the expert            part of their negligence claims against [Baylor Hospital],
reports lack sufficient specificity on causation because the       Dr. Messner, and his employers [HeartFirst, and Texas
experts did not opine that any breach by hospital employees        Clinic], the court dismissed the informed consent allegation
“occurred within the 100–minute window or the ‘narrow              by bench order.” At the March 2011 hearing, appellants
window of opportunity,’ during which the visual loss               counsel stated he understood the informed consent claims
allegedly could have been reversed.”                               would be taken off the table unless appellants provided an
                                                                   expert report addressing those claims, and he acknowledged
As discussed above, the expert reports opine Mr. Former's          there was no expert report addressing those claims. On
post-surgical complaints of vision impairment should have          appeal, appellants have not asserted the trial court erred by
been recognized by the health care providers and physicians        dismissing their direct liability claims of lack of informed
providing post-surgical critical care, including the Baylor        consent against Dr. Messner or Baylor Hospital and their
Hospital employees, and the failure to provide timely              claims of vicarious liability for lack of informed consent
attention and treatment caused the injuries to the optic nerves    against Dr. Messner's employers, HeartFirst or Texas Clinic.
in each of Mr. Former's eyes, resulting in total blindness.        Therefore, we conclude the trial court did not abuse its
With regard to appellants' clam of the vicarious liability         discretion by dismissing with prejudice appellants' claims
of Baylor Hospital for the negligence of its employees,            of lack of informed consent against Dr. Messner, Baylor
appellants' experts' reports represent an objective good faith     Hospital, HeartFirst, and Texas Clinic. We affirm the trial
effort to comply with the definition of an expert report           court's dismissal of appellants' claims of lack of informed
in section 74.351(r)(6), and those reports are sufficient to       consent, and we resolve appellants' sole issue against them in
support appellants' vicarious liability claim against Baylor       part.
Hospital.

Therefore, we conclude the trial court erred in dismissing
                                                                                          *386 Conclusion
appellants' vicarious liability claims against Baylor Hospital,
Dallas Diagnostic, HeartFirst, and Texas Clinic. We resolve        We affirm the trial court's dismissal of appellants' claims
appellants' sole issue in their favor in part.                     of lack of informed consent against Baylor Hospital, Dr.
                                                                   Messner, HeartFirst, and Texas Clinic. We affirm the trial
                                                                   court's dismissal of appellants' direct liability claims against
                 Informed Consent Claims                           Dallas Diagnostic, HeartFirst, and Texas Clinic. We reverse
                                                                   the trial court's dismissal of appellants' direct liability claims
In their First Amended Petition, appellants allege neither         against Baylor Hospital, Dr. Messner, Dr. Erwin, and Dr.
Dr. Messner nor Baylor Hospital disclosed to, or informed,         Taylor and appellants' vicarious liability claims against
Mr. Fortner that vision loss was a potential risk or hazard        Baylor Hospital, Dallas Diagnostic, HeartFirst, and Texas
associated with the anticipated surgical or post-surgical          Clinic. We remand this cause to the trial court for further
procedures. See TEX. CIV. PRAC. & REM.CODE ANN.                    proceedings.
§ 74.101 (West 2011) (in health care liability claims based



                © 2015 Thomson Reuters. No claim to original U.S. Government Works.                                             10
Fortner v. Hospital of the Southwest, LLP, 399 S.W.3d 373 (2013)



All Citations

399 S.W.3d 373

End of Document                                          © 2015 Thomson Reuters. No claim to original U.S. Government Works.




                © 2015 Thomson Reuters. No claim to original U.S. Government Works.                                     11
General Chemical Corp. v. De La Lastra, 852 S.W.2d 916 (1993)
Prod.Liab.Rep. (CCH) P 13,415

                                                                      fisherman on board a fishing vessel in territorial
                                                                      waters fell within purview of maritime law.
                     852 S.W.2d 916
                 Supreme Court of Texas.                              2 Cases that cite this headnote
 GENERAL CHEMICAL CORPORATION, Petitioner,
                          v.                                    [2]   Admiralty
  Gonzalo DE LA LASTRA and Amada De La Lastra,                           Effect of State Laws
    Individually and as Personal Representative of                    When invoked, maritime law becomes the
     the Estates of Gustavo De La Lastra and Jose                     exclusive remedy under which party may
   Eduardo De La Lastra, Decedents, Respondents.                      proceed, preempting all state law grounds of
                                                                      recovery.
       No. D–1799. | Feb. 24, 1993. | Rehearing
         Overruled June 3, 1993. | Concurring                         1 Cases that cite this headnote
          Opinion of Justice Cornyn June 3, 1993.
                                                                [3]   Admiralty
Parents of deceased shrimp fisherman brought products                    Effect of State Laws
liability action against manufacturer of sodium metabisulfite
                                                                      Maritime law, though properly invoked, can be
(“shrimp dip”), asserting survival and wrongful death causes
                                                                      waived.
of action. Judgment in excess of $44 million was entered in
the District Court Number 197, Cameron County, Menton                 1 Cases that cite this headnote
Murray, Jr., J., and manufacturer appealed. The Court
of Appeals, Thirteenth Judicial District, 815 S.W.2d 750,
affirmed. On application for writ of error, the Supreme         [4]   Admiralty
Court, Gonzalez, J., held that: (1) manufacturer waived                  Remedies and procedure
application of maritime law, with its limited elements of             Admiralty
damages, by failing to object to evidence and jury questions             Saving of common-law remedy
regarding damages not recoverable under maritime law;                 State courts have concurrent jurisdiction with
(2) evidence supported jury finding of gross negligence               federal courts over maritime actions, constrained
supporting award of punitive damages; but (3) parents                 by “reverse-Erie doctrine,” which requires
could not recover punitive damages for wrongful death and             that substantive remedies afforded by the
thus punitive damages limit under statute generally limiting          states conform to governing federal maritime
punitive damages to four time the actual damages awarded              standards. 28 U.S.C.A. § 1333.
had to be based only on the survival recovery.
                                                                      14 Cases that cite this headnote
Affirmed in part and reversed and remanded in part.
                                                                [5]   Admiralty
Cornyn, J., filed concurring opinion.                                    Jurisdiction in general
                                                                      Maritime law does not affect court's jurisdiction
Hecht, J., filed concurring and dissenting opinion in which
                                                                      over claim, but merely dictates the substantive
Phillips, C.J., and Enoch, J., joined.
                                                                      law that governs that claim's resolution.

                                                                      2 Cases that cite this headnote
 West Headnotes (12)
                                                                [6]   Admiralty
                                                                         Wrongful death
 [1]      Admiralty
             Causing death                                            Defendant manufacturer, in products liability
                                                                      wrongful death action, waived application of
          Wrongful death action against manufacturer
                                                                      maritime law, though it had pled that case was
          of product which caused death of commercial


               © 2015 Thomson Reuters. No claim to original U.S. Government Works.                                         1
General Chemical Corp. v. De La Lastra, 852 S.W.2d 916 (1993)
Prod.Liab.Rep. (CCH) P 13,415

        governed by maritime law, where it failed to                   damages in combined survival and wrongful
        object to evidence and jury questions regarding                death action brought by parents was limited
        damages not recoverable under maritime law and                 to statutory maximum of four times the actual
        where, at time of trial, there was available federal           damages recovered in the survival actions.
        remedy and state and federal law contained                     V.T.C.A., Civil Practice & Remedies Code
        separate and distinct elements of damages.                     §§ 41.001(6)(A), 41.007; Vernon's Ann.Texas
        Vernon's Ann.Texas Rules Civ.Proc., Rule 274.                  Const. Art. 16, § 26.

        16 Cases that cite this headnote                               15 Cases that cite this headnote


 [7]    Appeal and Error                                        [11]   Death
           Error Committed or Invited by Party                             Exemplary damages
        Complaining                                                    Parents of deceased, while entitled to maintain
        Parties may not invite error by requesting issue               action under the Wrongful Death statute, are
        and then objecting to its submission.                          unable to recover punitive damages. V.T.C.A.,
                                                                       Civil Practice & Remedies Code §§ 71.001 et
        25 Cases that cite this headnote                               seq., 71.004; Vernon's Ann.Texas Const. Art. 16,
                                                                       §§ 26, 26 comment.
 [8]    Death
                                                                       12 Cases that cite this headnote
            Damages
        Evidence supported finding of gross negligence
        on the part of manufacturer of sodium                   [12]   Statutes
        metabisulfite (“shrimp dip”) in failing to place                    Motives, Opinions, and Statements of
        warning informing users of risk of death,                      Legislators
        supporting award of punitive damages, in light                 Statutes
        of evidence of nearly identical prior incident                      Sponsors or authors
        in which shrimpers were asphyxiated in boat's                  Intent of individual legislator, even statute's
        hold when they spread sodium metabisulfite                     principle author, is not legislative history
        across iced shrimp, as well as at least nine                   controlling construction given statute, but is at
        other incidents of death or injury involving the               most persuasive authority.
        product.
                                                                       19 Cases that cite this headnote
        5 Cases that cite this headnote


 [9]    Products Liability
            Warnings or Instructions                           Attorneys and Law Firms
        Presence on label of proper instructions
                                                                *917 W. James Kronzer, Jr., Leslie C. Taylor, Houston,
        regarding product's use would not preclude
                                                               Royal H. Brin, Jr., Dallas, John William Black, Brownsville,
        finding of failure to adequately warn of serious
                                                               for petitioner.
        consequences associated with foreseeable use.
                                                               Elizabeth A. Davis, Houston, Ray R. Marchan, Guy Allison,
        2 Cases that cite this headnote
                                                               Thomas F. Nye, Corpus Christi, John R. Lyde, McAllen, for
                                                               respondents.
 [10]   Death
            Statutory limitations
        In light of state constitutional prohibition against                           OPINION
        recovery of punitive damages by parents in
        wrongful death action, permissible punitive


               © 2015 Thomson Reuters. No claim to original U.S. Government Works.                                         2
General Chemical Corp. v. De La Lastra, 852 S.W.2d 916 (1993)
Prod.Liab.Rep. (CCH) P 13,415


GONZALEZ, Justice.                                                    CAN IRRITATE THE SKIN, EYES AND
                                                                      RESPIRATORY TRACT, PROLONGED EXPOSURE
This products liability case presents two principal issues.           MAY CAUSE BURNS.
First, whether general maritime law or state law applies to the
facts before us. Second, whether the punitive damages award           HARMFUL IF INGESTED, MAY CAUSE SEVERE
was excessive under state law or the state constitution.              ALLERGIC REACTION IN SOME ASTHMATICS AND
                                                                      SULFITE SENSITIVE INDIVIDUALS.
Two young men died at sea from asphyxiation on a shrimp
boat expedition after using a chemical preservative on their          REACTS WITH ACIDS AND WATER, RELEASING
catch. Their parents brought suit against General Chemical            TOXIC SULFUR DIOXIDE GAS.
Corporation, the manufacturer of the chemical, and other
                                                                      AVOID CONTACT WITH SKIN AND EYES.
defendants alleging negligence, gross negligence, and a
violation of the Texas wrongful death statute. Among other            DO NOT BREATH PRODUCT DUST, USE WITH
things, General Chemical pled that this case was governed by          PROPER VENTILATION.
federal maritime law. However, the jury was asked without
objection to determine damages which are recoverable                  DO NOT SWALLOW.
under state law but not under federal maritime law. Based
                                                                      AVOID CONTACT WITH ACIDS.
on favorable jury findings of these issues, judgment was
rendered in favor of the parents and the estates of the young         CONTACT WITH WATER SHOULD BE UNDER
men. In their individual capacity, the parents were awarded           WELL VENTILATED CONDITIONS.
an amount for actual damages and, as representatives of
the estates, they were awarded actual damages and punitive            Do Not Use In Dry Form.
damages. The court of appeals affirmed, holding that this
was not a maritime law case. 815 S.W.2d 750. We hold that             Prepare and use dip solution on deck—NOT IN HOLD.
state law applies because maritime law, although properly             Toxic sulphur dioxide gas may be liberated.
invoked, was waived in this case; we further hold that the
                                                                  The De La Lastras were either unaware of or consciously
punitive damage award exceeds the *918 four times actual
                                                                  disregarded this warning. They used “shrimp dip” in their
damages cap found in TEX.CIV.PRAC. & REM.CODE §
                                                                  vessel's hold by layering ice and dry-form shrimp dip across
41.007 and violates the Texas Constitution's prohibition (Art.
                                                                  their catch. They were overcome by the sulfur dioxide fumes,
XVI, section 26) against parents recovering punitive damages
                                                                  and died of asphyxiation shortly after losing consciousness.
in wrongful death actions. Thus, we affirm in part and reverse
and remand this cause to the trial court for a recalculation of
                                                                  The parents, individually and as personal representatives
damages consistent with this opinion.
                                                                  of the estates of their sons, brought suit against General
                                                                  Chemical, and against the owner of the vessel. 1 Their cause
                                                                  of action was based on strict liability, negligence, and gross
                              I.                                  negligence in manufacturing and distributing a product with
                                                                  knowledge that the product could cause serious bodily injury
In June 1988, Jose De La Lastra and his brother Gustavo were
                                                                  or death and in failing to adequately warn of such dangers.
commercial fishermen aboard the “Wilderness,” a fishing
vessel which operated in the waters off Brownsville, Texas.
                                                                  1       Only General Chemical is a party to this appeal. The
Sodium metabisulfite, colloquially called “shrimp dip,” is a
product manufactured by General Chemical that is commonly                 claim against the owner of the vessel was severed.
used in the shrimping industry to prevent “black spots” from      General Chemical pled that the deceased brothers were
marring freshly caught fish. The bags in which the shrimp dip     seamen, that the occurrence occurred beyond the territorial
is sold are marked with a warning in English and in Spanish       waters of Texas, and that therefore the rights of the parties
that says, among other things:                                    were governed by maritime law and the Death on the
                                                                  High Seas Act, 46 U.S.C.App. § 761–62 (DOHSA). Under
                                                                  DOHSA, a party is precluded from recovering any non-



               © 2015 Thomson Reuters. No claim to original U.S. Government Works.                                               3
General Chemical Corp. v. De La Lastra, 852 S.W.2d 916 (1993)
Prod.Liab.Rep. (CCH) P 13,415

pecuniary damages, such as mental anguish, loss of society,       Marine Corp., 498 U.S. 19, ––– 111 S.Ct. 317, 325, 112
and punitive damages. General Chemical asserts that this          L.Ed.2d 275 (1990). 3
pleading is sufficient to invoke the common law doctrine of
general maritime law.                                             3      Miles impliedly overruled previous decisions
                                                                         recognizing a right of recovery for loss of society
The jury found that the deaths occurred within the territorial
                                                                         damages under general maritime law. See Sea–Land
waters of Texas, that General Chemical was guilty of                     Services v. Gaudet, 414 U.S. 573, 94 S.Ct. 806, 39
negligence and gross negligence in failing to provide an                 L.Ed.2d 9 (1974), and Mobil Oil Corp. v. Higginbotham,
adequate warning on their product of the dangers associated              436 U.S. 618, 98 S.Ct. 2010, 56 L.Ed.2d 581 (1978).
with its use, and that the failure to warn rendered the product          General Chemical argues that Miles would control here
in question unreasonably dangerous as marketed. Based on                 if maritime law applies, although that case involved a
the jury verdict, the parents were awarded a $44,628,698.63              suit by a seaman against his employer. We do not today
                                                                         decide whether the Miles holding extends to actions
judgment against General Chemical. 2
                                                                         against third parties, such as General Chemical.

2                                                                  [1] There is little question that the facts of this case come
       The damages awarded were as follows:
        To the parents individually (wrongful                     within the purview of maritime law. See Sisson v. Ruby,
        death):                                                   497 U.S. 358, 110 S.Ct. 2892, 111 L.Ed.2d 292 (1990).
        Pecuniary loss (Gustavo)                             $    Although neither DOHSA, 46 U.S.C.App. § 761, nor the
                                                    500,000.00    Jones Act, 46 U.S.C.App. § 688, provides a remedy under
        Pecuniary loss (Jose)                                $
                                                    500,000.00
                                                                  these circumstances, 4 the United States Supreme Court in
        Loss of companionship and society                    $    Moragne v. States Marine Lines, Inc., 398 U.S. 375, 409,
        (Gustavo)                                 2,500,000.00    90 S.Ct. 1772, 1792, 26 L.Ed.2d 339 (1970), has recognized
        Loss of companionship and society (Jose)             $    a common law remedy for wrongful deaths occurring in
                                                  2,500,000.00    territorial waters under the general maritime law. Therefore,
        Mental anguish (Gustavo)                             $
                                                                  general maritime law is applicable to the facts of this case.
                                                  2,500,000.00
        Mental anguish (Jose)                                $
                                                  2,500,000.00    4      DOHSA provides a remedy for wrongful death occurring
        Cost of psychological care                           $           on the high seas, beyond three nautical miles from shore,
                                                      5,000.00           while the Jones Act provides a remedy for seamen
        To the parents as representatives of                             against their employers. This incident occurred in the
        Gustavo's estate: (survival damages):
                                                                         territorial waters of Texas, and is an action against a third
        Pain and mental anguish                              $
                                                                         party, not the decedents' employer.
                                                  1,000,000.00
        Punitive damages                       $15,000,000.00      [2] [3] [4] [5] When invoked, maritime law becomes
        To the parents as representatives of Jose's               the exclusive remedy under which a party may proceed,
        estate: (survival damages):
                                                                  preempting all state law grounds of recovery. See Offshore
        Pain and mental anguish                              $
                                                  1,000,000.00
                                                                  Logistics, Inc. v. Tallentire, 477 U.S. 207, 106 S.Ct. 2485,
        Punitive damages                       $15,000,000.00     91 L.Ed.2d 174 (1986); Mandell & Wright v. Thomas, 441
        Prejudgment interest                                 $    S.W.2d 841 (Tex.1969). Nevertheless, the issue squarely
                                                  1,623,698.63    before us is whether maritime law, although properly
                                               Total
                                               $44,628,698.63     invoked, can be waived. We conclude that it can. Both the
                                                                  United States Supreme Court and this Court, as well as many
                                                                  federal circuits, have held that preemption arguments which
                           *919 II.
                                                                  affect the choice of law, and not the choice of forum, are
General Chemical argues that maritime law, and not state          waivable. See International Longshoremen's Ass'n v. Davis,
law, controls this case, and therefore nonpecuniary damages       476 U.S. 380, 393, 106 S.Ct. 1904, 1913, 90 L.Ed.2d 389
of loss of society and companionship, mental anguish, and         (1986); Heci Exploration Co. v. Holloway, 862 F.2d 513,
punitive damages are not recoverable. See Miles v. Apex           520 (5th Cir.1988); Dueringer v. General American Life
                                                                  Ins. Co., 842 F.2d 127, 130 (5th Cir.1988); Johnson v.
                                                                  Armored Transport of Calif., Inc., 813 F.2d 1041, 1043–


               © 2015 Thomson Reuters. No claim to original U.S. Government Works.                                                       4
General Chemical Corp. v. De La Lastra, 852 S.W.2d 916 (1993)
Prod.Liab.Rep. (CCH) P 13,415

44 (9th Cir.1987); *920 Gilchrist v. Jim Slemons Imports,         General Chemical admits that the judgment was based on
Inc., 803 F.2d 1488, 1497 (9th Cir.1986); Gorman v. Life          state law. 6
Ins. Co. of North America, 811 S.W.2d 542, 545 (Tex.1991).
Pursuant to the “savings to suitors” clause of 28 U.S.C.          5       Without a doubt it is evident that at trial, General
§ 1333, state courts have concurrent jurisdiction with the
                                                                          Chemical relied on state law. In a response to a motion
federal courts over maritime actions, constrained by the “
                                                                          in the court of appeals, General Chemical stated:
‘reverse-Erie’ doctrine which requires that the substantive                    [t]he judgment against the appellant herein is not
remedies afforded by the States conform to governing federal                   under the Jones Act but rather under common law
maritime standards.” Offshore Logistics, Inc. v. Tallentire,                   and statutory law of the state of Texas. Appellant
477 U.S. 207, 223, 106 S.Ct. 2485, 2494, 91 L.Ed.2d 174                        is not appealing any claim under the Jones Act
(1986); see also Texaco Ref. and Mktg, Inc. v. Estate of                       but rather a claim under the Texas common law
Dau Van Tran, 808 S.W.2d 61, 64 (Tex.), cert. denied, 502                      of negligence and strict product liability.... Here
U.S. 908, 112 S.Ct. 301, 116 L.Ed.2d 245 (1991). Thus,                         the suit against the employer and shipowner ... was
maritime law does not affect a court's jurisdiction over the                   severed and made the subject of a separate action.
claim, it merely dictates the substantive law that governs that   6       The liability issues under state and federal law
claim's resolution. As such, maritime law is a choice of law              are identical. The only potential distinction is the
determination that can be waived.                                         recoverable damages. Therefore, in order to determine
                                                                          under what law the judgment was based, this distinction
 [6] Under the facts of this case General Chemical waived                 becomes a critical inquiry.
the application of maritime law by failing to object to
                                                                  General Chemical defends its submission of state law
evidence and jury questions regarding damages which are not
                                                                  damages and its failure to assert the application of federal law
recoverable under maritime law.
                                                                  in the trial court by claiming that the United States Supreme
                                                                  Court had not yet recognized a wrongful death action for
 [7] Although it asserted that DOHSA controlled, General
                                                                  seamen under general maritime law, and, alternatively, the
Chemical failed to bring to the trial court's attention the
                                                                  damages recoverable under general maritime law had not
potential applicability of general maritime law limitations
                                                                  been fully developed; it wasn't until Miles v. Apex Marine
on damages. Instead, General Chemical incorrectly assumed
                                                                  Corp., 498 U.S. 19, 111 S.Ct. 317, 112 L.Ed.2d 275 (1991),
that, if the jury found that the deaths occurred in territorial
                                                                  decided while this case was pending in the court of appeals,
waters, federal law supplied no remedy and the claim would
                                                                  that the Supreme Court recognized this ground of recovery
therefore be governed by Texas law. General Chemical
                                                                  and established its available damages. This argument fails on
submitted an issue inquiring if the deaths occurred beyond
                                                                  both grounds.
three nautical miles from shore. After a negative jury finding,
precluding the applicability of DOHSA, the remaining
                                                                  As previously discussed, an action under general maritime
questions that were submitted were damages recoverable
                                                                  law for wrongful deaths *921 occurring in territorial waters
under the Texas wrongful death and survival statutes;
                                                                  was recognized over twenty years ago in Moragne v. States
including elements of damages not recoverable under general
                                                                  Marine Lines, Inc., supra. While Moragne left open the
maritime law. General Chemical did not object to the
                                                                  question of what damages were available under this ground
submission of these issues, see TEX.R.CIV.P. 274, and in
                                                                  of recovery, subsequent Supreme Court and federal circuit
fact, requested the very issues that it now seeks to avoid. 5     decisions have addressed this issue. In Sea–Land Services,
Parties may not invite error by requesting an issue and then      Inc. v. Gaudet, 414 U.S. 573, 585, 94 S.Ct. 806, 814, 39
objecting to its submission. See Daily v. Wheat, 681 S.W.2d       L.Ed.2d 9 (1974), the Court held that, in general maritime
747, 754 (Tex.App.—Houston [14th Dist.] 1984, writ ref'd          wrongful death actions, a decedent's dependents may recover
n.r.e.); City of Amarillo v. Langley, 651 S.W.2d 906, 914         damages for loss of support, services, and society, but not
(Tex.App.—Amarillo 1983, no writ); Beasley v. Baker, 333          for mental anguish. This holding was reiterated in Offshore
S.W.2d 212, 214 (Tex.Civ.App.—Amarillo 1960, no writ).            Logistics, Inc. v. Tallentire, 477 U.S. 207, 216, 106 S.Ct.
Further, it was not until its motion for rehearing in the court   2485, 2491, 91 L.Ed.2d 174 (1986) and Mobil Oil Corp. v.
of appeals that General Chemical asserted the applicability of    Higginbotham, 436 U.S. 618, 622, 98 S.Ct. 2010, 2013, 56
maritime law; and in its post submission brief to this Court,
                                                                  L.Ed.2d 581 (1978). 7




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General Chemical Corp. v. De La Lastra, 852 S.W.2d 916 (1993)
Prod.Liab.Rep. (CCH) P 13,415

7       Although Tallentire and Higginbotham addressed issues       consumers of the potential dangers associated with use of
        that are different than those facing us today, both         this product. While it is true that the Coast Guard report
        expressly recognized that, under Gaudet, loss of society    does not state that users of the product should be warned
        damages were available under general maritime law.          that the chemical is deadly, Commander Pangrass of the
                                                                    United States Coast Guard testified that this is the type
The fifth circuit has also addressed the damages available
                                                                    of warning that they were trying to get the manufacturer
under general maritime law. In Sistrunk v. Circle Bar Drilling
                                                                    to give. There was further testimony that Allied Chemical
Co., 770 F.2d 455, 459 (5th Cir.1985), and Patton–Tully
                                                                    knew of at least nine other incidents of death and/or
Trans. Co. v. Ratliff, 797 F.2d 206, 213 (5th Cir.1986), the
court, following Gaudet, held that parents could not recover        injury involving sodium metabisulfite. 8 *922 Despite this
loss of society damages absent a showing of dependency              knowledge General Chemical failed to place warnings which
upon the deceased children. See also Truehart v. Blandon,           informed users of the risk of death. There was also testimony
672 F.Supp. 929, 930 (E.D.La.1987); Hebert v. Otto Candies,         from a warnings expert that General Chemical's warnings
Inc., 402 F.Supp. 503, 507 (E.D.La.1975). Further, Miles,           were grossly inadequate considering the known dangers and
the very case General Chemical now relies upon, was a fifth         effects of sodium metabisulfite. We conclude that all of this
circuit opinion, decided prior to the underlying trial of this      evidence amounts to some evidence of gross negligence. 9
case. 882 F.2d 976 (5th Cir.1989), aff'd, 498 U.S. 19, 111
S.Ct. 317, 112 L.Ed.2d 275 (1991).                                  8      The dissent suggests that the non-fatal injuries involved
                                                                           different circumstances and are therefore not probative
These cases illustrate that, at the time this case went to trial,          evidence of General Chemical's gross negligence.
not only was there an available federal remedy, but also                   We disagree. All of the injuries involved incidents
that state and federal law contained separate and distinct                 of asphyxiation. One of the individuals injured was
elements of damages; under maritime law mental anguish                     an employee of Allied Chemical who was merely
damages were unavailable and loss of society could only be                 transporting the sodium metabisulfite. This is competent
recovered upon a showing of dependency. General Chemical                   evidence of General Chemical's actual knowledge of the
was obligated to object to jury questions on such damages in               risks involved with the handling of the product.
order to preserve error. Although the Supreme Court did not         9      The dissent argues that if the De La Lastras would have
decide Miles until later, General Chemical was required to                 used the product in accordance with the instructions,
object to jury questions concerning these damages in order to              the chemical would not have been deadly. While
receive the benefit of a change in the law—to the extent there             perhaps this is true, it confuses the inquiry. Although
was one—on appeal. By failing to pursue its available federal              the label contained proper instructions regarding the
remedy at trial, instead choosing to submit issues based on                product's use, it failed to adequately warn of the serious
state law, General Chemical has waived the application of                  consequences associated with this foreseeable use.
general maritime law.                                                      Furthermore, as the dissenting opinion acknowledges,
                                                                           since General Chemical did not challenge the jury's
                                                                           finding that the warning was inadequate, “the inadequacy
                                                                           of the warning label must be taken as an established fact.”
                               III.                                        At 926.

 [8] We next consider the punitive damages issue. General            [10] Having concluded that there is some evidence upon
Chemical asserts that the punitive damage award cannot stand        which to base an award of punitive damages, we next
because there was no evidence to support the jury finding of        consider whether the punitive damages awarded in this case
gross negligence. We disagree.                                      were excessive under state law and the constitution. General
                                                                    Chemical asserts that the punitive damage award is governed
 [9] There was evidence of a prior incident in 1973 involving       by section 41.007 of the Texas Civil Practice and Remedies
the shrimping vessel “Cape Rojo.” This case involved facts          Code and must therefore be reduced to four times the
nearly identical to this one. Two shrimpers were asphyxiated        actual damage award. At the same time General Chemical
in the boat's hold when they spread sodium metabisulfite            challenges the punitive damage award as unconstitutionally
across iced shrimp. Following an investigation of the deaths,       excessive under article I, section 19 of the Texas Constitution.
the Coast Guard sent a letter to Allied Chemical, General           TEX.CIV.PRAC. & REM.CODE § 41.007 states: “Except
Chemical's predecessor, advising them to adequately warn            as provided by Section 41.008, exemplary damages awarded



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General Chemical Corp. v. De La Lastra, 852 S.W.2d 916 (1993)
Prod.Liab.Rep. (CCH) P 13,415

against a defendant may not exceed four times the amount of          Scoggins v. Southwestern Elec. Serv. Co., 434 S.W.2d 376
actual damages or $200,000, whichever is greater.” Although          (Tex.Civ.App.—Tyler 1968, writ ref'd n.r.e.).
this provision does not apply to intentional torts or torts in
which there is finding of malice as defined by § 41.001(6)(A),        [11] It is well established that this provision defines the
when applicable, the amount of punitive damages to which a           class of persons who are entitled to recover punitive damages
party is entitled is limited to four times the amount of actual      for wrongful death; parents of the deceased, while they are
damages recovered.                                                   entitled to maintain an action under the Wrongful Death
                                                                     statute, are not included in article XVI, § 26 and are therefore
In determining the amount of actual damages to use as a base         unable to recover punitive damages. TEX.CIV.PRAC. &
in calculating the four to one ratio, the trial court included the   REM.CODE § 71.004; Winnt v. Int'l & G.N. Ry. Co., 74
parents' wrongful death recovery. This represented an actual         Tex. 32, 11 S.W. 907, 908 (1889); see also Houston &
damage figure of over $6,500,000 on which the $15,000,000            T.C. Ry. Co. v. Baker, 57 Tex. 419, 424 (1882) (holding
punitive damages awarded to each estate was to be based;             that parents are not among those who are entitled to recover
just over a 2 to 1 ratio. Accordingly, the trial court rendered      exemplary damages for wrongful death under article XVI, §
judgment for the full amount of the jury award.                      30 of the Texas Constitution of 1869). The Wrongful Death
                                                                     statute cannot broaden the class of persons entitled to recover
Petitioners assert that including the parents' wrongful death        punitive damages beyond the scope of article XVI, § 26 of the
recovery as actual damages in the ratio calculation of section       constitution. Scoggins, 434 S.W.2d at 380. In 1889 this Court,
41.007 allows the parents to recover punitive damages for            analyzing the relationship between article XVI, § 26 and the
wrongful death in violation of TEX. CONST. art. XVI, § 26.           Wrongful Death Act said, “the right to maintain an action
Rather, they contend that the amount of actual damages that          for the recovery of exemplary damages for the death of a
should be used in determining the permissible ratio is the           person ... is confined to the class of persons who, by the terms
$1,000,000 each estate received under the survival recovery;         of the constitution, are designated as entitled to maintain such
thus, each estate would be limited to a punitive damages             action; namely the surviving husband or wife, or heirs of the
recovery of $4,000,000. We agree.                                    body, of the deceased, and not to the parent.” Winnt, 11 S.W.
                                                                     at 908.
TEX. CONST. art. XVI, § 26 provides:
                                                                     In the instant case, the court of appeals affirmed the trial
             Every person, corporation, or                           court's damage award, rejecting petitioner's argument that the
             company, that may commit a                              constitution prohibits the inclusion of the parents' wrongful
             homicide, through wilful act, or                        death recovery in the punitive damages calculation. 815
             omission, or gross neglect, shall be                    S.W.2d at 758. The court of appeals rested its conclusion
             responsible, in exemplary damages, to                   on this Court's decision in Hofer v. Lavender, 679 S.W.2d
             the surviving husband, widow, heirs of                  470 (Tex.1984) and on the definition of “claimant” as
             his or her body, or such of them as
                                                                     defined in TEX.CIV.PRAC. & REM.CODE § 41.001(1). 10
             there may be, without regard to any
                                                                     Under section 41.001(1), when a party is seeking exemplary
             criminal proceeding that may or may
                                                                     damages for the death of an individual, both the deceased and
             not be had in relation to the homicide.
                                                                     the persons seeking recovery are defined as a claimant.
At common law, a cause of action for personal injuries and
the right to exemplary damages for the willful or wanton             10     Section 41.001 defines claimant as:
conduct of the tortfeasor terminated with the deceased. In                       a party, including a plaintiff, counterclaimant,
order to give the decedent's survivors an available remedy,                      cross-claimant, or third-party plaintiff, seeking
Texas passed the Wrongful Death Act. However, this Act was                       recovery of exemplary damages. In a cause of
said to have created a new cause of action, as opposed to a                      action in which a party seeks recovery of exemplary
mere continuation of the deceased's cause of action, and thus                    damages related to injury to another person, damage
                                                                                 to the property of another person, death of another
the right to recover exemplary damages still terminated upon
                                                                                 person, or other harm to another person, “claimant”
the death of the decedent. The constitutional provision *923
                                                                                 includes both that other person and the party seeking
was enacted to allow the survivors to recover exemplary
                                                                                 recovery of exemplary damages.
damages. TEX. CONST. art. XVI, § 26, interp. commentary;


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General Chemical Corp. v. De La Lastra, 852 S.W.2d 916 (1993)
Prod.Liab.Rep. (CCH) P 13,415

          TEX.CIV.PRAC. & REM.CODE § 41.001(1).                                  survive to the estate, whoever the
 [12] Although “claimant” appears nowhere in the punitive                        beneficiaries of that estate may be.
damages limitation provision of section 41.007 and would
                                                                    Id. at 476. The rationale behind allowing parents, as
seem to have no application, Senator Montford, the author of
                                                                    beneficiaries, such a recovery is that in a survival cause of
this chapter, in an article in the Houston Law Review, gave his
                                                                    action the estate is seeking punitive damages, not the parents;
view that anyone who seeks recovery of exemplary damages
                                                                    the classification of the beneficiaries of the estate should not
under Chapter 41 is a claimant for all purposes of this
                                                                    determine the estate's ability to seek this recovery. However,
chapter, including section 41.007, and that both the parent's
                                                                    to allow parents, as beneficiaries of an estate, to also include
and the child's recovery are to be included in calculating the
                                                                    their recovery for wrongful death with their survival recovery
punitive damages ratio. Montford and Barber, 1987 Texas
                                                                    would impermissibly extend Hofer, allowing parents to
Tort Reform: The Quest for a Fairer and More Predictable
                                                                    circumvent article XVI, § 26 by bootstrapping their wrongful
Texas Civil Justice System Part Two, 25 Houston L.Rev.
                                                                    death recovery to their survival damages in order to procure
245, 316 (1988). Nevertheless, the intent of an individual
                                                                    a larger punitive damage award. This should not and can
legislator, even a statute's principal author, is not legislative
                                                                    not be the result. Wrongful death and survival recoveries are
history controlling the construction to be given a statute.
                                                                    independent of one another, and the availability of one should
It is at most persuasive authority as might be given the
                                                                    in no way affect the other.
comments of any learned scholar of the subject. Even if
Senator Montford's interpretation is correct, however, just
                                                                    It is well settled that had the De La Lastras brought only
as the Wrongful Death statute cannot expand upon the
                                                                    a wrongful death action, they would not be entitled to
Constitution, neither can section 41.007.
                                                                    recover punitive damages. Hofer, 679 S.W.2d at 475; Winnt,
                                                                    11 S.W. at 908; Houston, 57 Tex. at 424 (1882). It is
As previously noted, the court of appeals also relied on our
                                                                    therefore illogical to allow these damages to be included
decision in Hofer v. Lavender, 679 S.W.2d 470 stating:
                                                                    when a survival recovery is also effectuated. If the parents, as
  [a]ppellants rely on Hofer v. Lavender (citations omitted),       representatives of the estate, were to bring a survival action
  which held that parents cannot recover exemplary damages          only, each estate would be limited to a punitive damage
  under the Wrongful Death Act. The court in Hofer,                 recovery of $4,000,000; four times the actual damages award
  however, stated that “exemplary *924 damages survive              of $1,000,000. By including the wrongful death recovery,
  to the estate, whoever the beneficiaries of that estate may       however, the punitive damage award of $15,000,000 falls
  be.” Id. at 476. In the instant case, the beneficiaries of the    within the permissible recovery ratio; a recovery that would
  estate are Gonzalo and Amada De La Lastra.                        not be allowed, but for the inclusion of the wrongful death
                                                                    damages. Thus, including these wrongful death damages
This conclusion is based upon a misapplication of Hofer. In         effectively allows the parents to recover punitive damages
Hofer, this Court addressed the issue of whether the parents,       of $11,000,000 for wrongful death, as opposed to receiving
as beneficiaries, are entitled to punitive damages that are         as beneficiaries what the estate was entitled to under their
awarded to the estate of the deceased under a survival cause of     survival cause of action. Such a recovery clearly violates
action. Concluding that the parents were entitled to recover,       article XVI, § 26. Accordingly, we hold that the De
we said,                                                            La Lastra's wrongful death recovery cannot be used in
                                                                    calculating the amount of actual damages for purposes of
             [t]he survival statute did not create a                determining the amount of recoverable punitive damages.
             new cause of action, but kept alive                    Therefore, the award of $15,000,000 in punitive damages to
             the cause of action that the deceased                  each estate must be reduced.
             might have had. It makes no sense
             to say that a tortfeasor may have                      General Chemical also asserts that the current Texas system
             exemplary damages assessed against                     of awarding punitive damages, and the resulting excessive
             him in favor of a decedent's estate if the             punitive damage award deprived them of their constitutional
             beneficiaries of the estate are a spouse               rights of due process as guaranteed by article I, § 19 of
             or children, but not if the beneficiaries              the Texas Constitution and the Fourteenth Amendment to
             are otherwise.... exemplary damages                    the United States Constitution. Petitioners rely on Pacific
                                                                    Mutual Life Ins. Co. v. Haslip, 499 U.S. 1, 111 S.Ct.


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General Chemical Corp. v. De La Lastra, 852 S.W.2d 916 (1993)
Prod.Liab.Rep. (CCH) P 13,415

1032, 113 L.Ed.2d 1 (1991), in which the United States             the judgment rather than join the court's opinion, however,
Supreme Court addressed the question of whether an                 because I cannot agree with the remainder of the opinion.
excessive punitive damage award violates due process under
the Fourteenth Amendment. Although the Court found the
damage award in that case to be constitutional, 11 it did          HECHT, Justice, concurring and dissenting.
recognize that in certain circumstances a *925 due process
challenge to excessive punitive damages could be made.
The Court undertook an individualized analysis, focusing on                           [Filed Feb. 24, 1993]
the procedural safeguards afforded a defendant, such as the
                                                                   I agree with the Court that General Chemical cannot complain
amount of discretion the jury has in its determination of
                                                                   on appeal that federal maritime law precludes recovery
punitive damages, the instructions the jury received which
                                                                   of damages for nonpecuniary loss—damages for mental
inform the jury of the policy and purpose behind punitive
                                                                   anguish and loss of society, and punitive damages—when
damages, and the trial court and appellate review of the jury
                                                                   that complaint was not made in the trial court. Hence, I join
award. Nevertheless, because we conclude that section 41.007
                                                                   in Part II of the Court's opinion. I write separately on this
mandates a reduction in the punitive damages, we need not
                                                                   issue only because I believe that General Chemical's reliance
address whether or not this award was unconstitutionally
                                                                   upon Texaco Ref. & Mktg., Inc. v. Van Tran, 808 S.W.2d 61
excessive in light of Haslip. 12                                   (Tex.1991), deserves an additional response. I do not agree,
                                                                   however, that there is any probative evidence to support an
11     The punitive damages awarded in Haslip were about           award of punitive damages. Thus, while I believe the Court
       $840,000. The compensatory damages were $200,000.           is correct in Part III of its opinion that TEX.CIV.PRAC. &
       This amounts to a ratio of approximately 4.2 to 1.          REM.CODE § 41.007 limits the amount of punitive damages
12                                                                 which could be awarded in this case, I would hold that there
       General Chemical asserts the applicability of section
                                                                   is no basis for any award at all, not the $30 million found
       41.007 and seeks to have the 4–1 ratio imposed. We
                                                                   by the jury nor the $8 million approved by the Court. I also
       need not address whether such a ratio will in all
       cases withstand a constitutional challenge. Contrary to
                                                                   believe the Court is remiss in refusing to address General
       the dissent's view, General Chemical has not raised a       Chemical's arguments that the award of punitive damages
       constitutional challenge to section 41.007.                 in this case violates constitutional due process guaranties. I
                                                                   discuss first the evidence to support punitive damages, then
The survival recovery for each estate was $1,000,000, thus
                                                                   the constitutional arguments, and finally our decision in Van
each estate is entitled to receive $4,000,000 in punitive
                                                                   Tran.
damages. This equates to a total punitive damage recovery of
$8,000,000. We therefore reverse the judgment of the court
of appeals as it relates to punitive damages and remand this
cause to the trial court to render judgment consistent with this                                 I
opinion.
                                                                   There is no question that if Gustavo and Jose Eduardo De
                                                                   La Lastra had followed the warnings and instructions printed
                                                                   on the sack of sodium metabisulfite they were using, their
Concurring opinion by CORNYN, J.                                   tragic deaths would have been avoided. Sodium metabisulfite,
                                                                   commonly referred to as “shrimp dip” by those associated
Concurring and dissenting opinion by HECHT, J., joined by
                                                                   with the shrimp fishing industry, is a chemical used to
PHILLIPS, C.J., and ENOCH, J.
                                                                   preserve shrimp after they are caught. It is called “dip”
                                                                   because, as properly used, the chemical, a dry powder, is
CORNYN, Justice, concurring.                                       mixed with water and shrimp are dipped in the solution and
                                                                   then removed, drained and stored. Like many chemicals,
                                                                    *926 sodium metabisulfite is not dangerous if it is used
                    [Filed June 3, 1993]
                                                                   properly, but there are dangers associated with its misuse.
I agree with the court that there was some evidence of             Specifically, it reacts with water to produce sulfur dioxide
gross negligence presented in the trial court. I concur in         gas, which if inhaled can cause asphyxiation. Since this gas



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General Chemical Corp. v. De La Lastra, 852 S.W.2d 916 (1993)
Prod.Liab.Rep. (CCH) P 13,415

is heavier than air and thus will accumulate in any confined
space, the chemical should be used only in an area that is well          Do Not Use In Dry Form.
ventilated.
                                                                         Prepare and use dip solution on deck—NOT IN HOLD.
                                                                         Toxic sulfur dioxide gas may be liberated.
General Chemical sells sodium metabisulfite in 50–pound
bags. On each bag is a warning label which covers about two-           There is no evidence that a more extensive warning label
thirds of one side. The text on the left side of the label is          was used by any other manufacturer of the chemical. A
in English, and the text on the right side is in Spanish. Each         copy of the entire label is attached as an appendix to this
side is about the size of a letter-sized sheet of paper (8–/ 2″        opinion.
x 11″). The English text is printed in all capital letters, while   The De La Lastras did precisely what the instructions warned
the Spanish text is in both lower and upper case. Portions          against. They used the chemical in dry form instead of mixing
of the text are in black print and portions are in red print.       it with water as the label instructed, and they sprinkled the
All of the print is larger than that in the text of ordinary        chemical on their shrimp in the unventilated hold of their
reading materials, such as newspapers and magazines. There          boat instead of using it on deck. When they did, toxic sulfur
is no contention in this case that the label is inconspicuous,      dioxide gas was released—exactly as the label warned it
or that the print is too small, or that the warnings are hard to    would be—and asphyxiated them. No one disputes that if the
understand.                                                         De La Lastras had followed the warnings and instructions on
                                                                    the label, they would not have died; but there is nothing to
The label begins in large capital letters: WARNING! (in             indicate that the De La Lastras ever even read the label.
Spanish, PELIGRO ). It states that the chemical should not
be ingested, inhaled or touched. It gives instructions for          The jury found that the warning label was inadequate because
the proper use and handling of the chemical as well as for          it did not expressly state that the toxic gas produced by misuse
remedies if the chemical is mishandled. A propos of this case,      of the product could be fatal. The jury also found that this
the warning label states in part:                                   inadequacy in the label caused the De La Lastras' deaths.
                                                                    General Chemical challenged these findings unsuccessfully
  WARNING!
                                                                    in the court of appeals, but it has not raised those challenges
                                                                    in this Court. Consequently, the inadequacy of the warning
.....
                                                                    label must be taken as an established fact.
  REACTS WITH ACIDS AND WATER, RELEASING
  TOXIC SULFUR DIOXIDE GAS....                                      The award of punitive damages in this case is based upon the
                                                                    jury's finding that General Chemical was grossly negligent in
  USE WITH PROPER VENTILATION....                                   failing to warn expressly that misuse of its product could be
                                                                    fatal. The trial court *927 correctly defined gross negligence
  CONTACT WITH WATER SHOULD BE UNDER                                for the jury to mean:
  WELL–VENTILATED CONDITIONS....
                                                                                 more           than          momentary
                                                                                 thoughtlessness, inadvertence, or error
                                                                                 of judgment. It means such an entire
                SPECIAL INSTRUCTIONS
                                                                                 want of care as to establish that the
                                                                                 act or omission was the result of
     CONTROL OF “BLACK SPOT” ON SHRIMP                                           actual conscious indifference to the
                                                                                 rights, safety, or welfare of the person
  Use as 1 ¼% solution. Stir 3 ¼ pounds (about 2 ½                               affected.
  pints) of Sodium Metabisulfite in 30 gallons of fresh clean
  seawater until dissolved. Use plastic, rubber or plastic lined    This definition is taken verbatim from TEX.CIV.PRAC. &
  container of adequate size and a wood or plastic stirrer.         REM.CODE § 41.001(5). The jury also found, in answer
  Dehead shrimp and place in plastic sieve. Dip in solution         to a separate question, that General Chemical's failure “was
  and agitate 1 minute. Drain well and pack in ice as usual.        with a flagrant disregard for the rights of others and with
                                                                    actual awareness on [its] part ... that such a failure [would], in
     WARNING!                                                       reasonable probability, result in human death or great bodily


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General Chemical Corp. v. De La Lastra, 852 S.W.2d 916 (1993)
Prod.Liab.Rep. (CCH) P 13,415

harm.” The parties do not argue that this second finding           The piece of evidence on which plaintiffs place principal
provides a different basis for punitive damages, and it is not     reliance, is that General Chemical failed to change its warning
clear why the trial court thought it appropriate to submit two     despite its awareness of, in plaintiffs' words, “nine prior
separate questions. In any event, it is necessary to consider      deaths and/or injuries from the chemical.” Actually, plaintiffs
only whether there is evidence to support a finding of gross       offered evidence of three prior deaths and six prior injuries
negligence.                                                        from the use of sodium metabisulfite. Of the non-fatal
                                                                   injuries, none was shown to have involved shrimpers in
In Burk Royalty Co. v. Walls, 616 S.W.2d 911, 922                  similar circumstances. Even if the circumstances of any injury
(Tex.1981), this Court stated:                                     had been similar and had been known to General Chemical,
                                                                   such knowledge of non-fatal injuries would not suggest that
             The essence of gross negligence                       its warning was inadequate in failing to warn that misuse
             is not the neglect which must, of                     of the product could be fatal. Of the three deaths, there
             course, exist. What lifts ordinary                    is no evidence concerning the circumstances of one which
             negligence into gross negligence is                   appears to have occurred in 1981, seven years before the
             the mental attitude of the defendant;                 De La Lastras' accident. The other two deaths did occur in
             that is what justifies the penal                      circumstances similar to the De La Lastras', and it is on this
             nature of the imposition of exemplary                 incident that plaintiffs rely for their contention that General
             damages. The plaintiff must show that                 Chemical knowingly failed to change its warning label.
             the defendant was consciously, i.e.
             knowingly, indifferent to his rights,                 *928 The parties refer to these two deaths as the “Cape
             welfare and safety. In other words, the               Rojo” incident. It occurred in 1973, 15 years before the
             plaintiff must show that the defendant
                                                                   accident in this case. 1 The Coast Guard investigated
             knew about the peril but his acts or
                                                                   the incident and afterward wrote General Chemical and
             omissions demonstrated that he didn't
                                                                   other manufacturers of the same chemical, stating that
             care.
                                                                   “[p]romulgation and dissemination of safety information
We also held that evidence that a defendant exercised some         regarding this product may be indicated.” The Coast Guard
care cannot be considered in determining the legal sufficiency     report stated: “It is recommended that since it was reported
of the evidence to support a finding of gross negligence. Id. at   that Sodium Bisulfite Anhydrous is widely used by fisherman
920–922. While this part of our holding in Burk Royalty has        [sic] throughout the industry, that an expeditious means
been the subject of substantial criticism, General Chemical        be devised to warn users of the chemical, aboard vessels,
does not challenge Burk Royalty in this case. Rather, General      of the potential dangers involved in its use in a confined
Chemical argues that even under the restricted review allowed      and unventilated space.” After receiving this report, General
by Burk Royalty, there is no probative evidence in this case       Chemical changed its warning twice, cautioning against the
of gross negligence. Thus, the continued validity of the Burk      dangers involved in the Cape Rojo incident, viz., use of the
Royalty standard of review for the sufficiency of the evidence     product in an unventilated space or in the hold of a boat. The
of gross negligence is not at issue here.                          Coast Guard report does not state that users of the product
                                                                   should be warned that the chemical is deadly; in fact, if used
While plaintiffs are entitled to have the evidence and all         properly in accordance with the instructions, the chemical
reasonable inferences which can be drawn from it viewed            was not deadly. 2
in the light most favorable to the verdict, there must
nevertheless be evidence in the record that General Chemical       1      Although General Chemical was not in existence at the
was knowingly indifferent to the rights, welfare and safety               time, its predecessor corporation was, and the parties
of those who used its product. Even by plaintiffs' account,               agreed at trial that notice of the Cape Rojo incident to
there is not a wealth of such evidence in this record. Although           General Chemical's predecessor was notice to General
the trial of this case consumed six days, plaintiffs cite only            Chemical. Thus, by referring to the manufacturer as
three pieces of evidence in support of the jury's finding of              General Chemical I include both that corporation and its
gross negligence. The Court discusses only two of them. None              predecessor.
provides sufficient support for the finding.




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General Chemical Corp. v. De La Lastra, 852 S.W.2d 916 (1993)
Prod.Liab.Rep. (CCH) P 13,415

2       At trial, when plaintiffs' counsel asked the Coast Guard    representative into evidence of conscious indifference. Again,
        official who wrote the report whether he had been trying    even if General Chemical did not do everything it should have
        by his report to get General Chemical to warn that          done, and even if it intended not to do all it could *929
        its product could be deadly, he replied, “basically”.       have done, there is still no probative evidence that it was
        Whatever the official may have been “basically” trying      actually indifferent to its responsibility to warn of the dangers
        to do, the report itself neither stated or suggested that   associated with its product. Moreover, the representative's
        General Chemical should warn that its product was           testimony at trial of his intention at that time is, logically, no
        deadly. General Chemical was not simply being obtuse;       evidence of General Chemical's intention prior to the De La
        none of the other manufacturers alerted to the Cape Rojo    Lastras' deaths several years before.
        incident changed their warnings to include that their
        products could be deadly.
                                                                    The last piece of evidence cited by plaintiffs is the testimony
There is no dispute that General Chemical modified its              of their expert at trial that in his opinion General Chemical
warning label following the Cape Rojo incident. Plaintiffs          had been grossly negligent. The expert based his opinion
may of course argue that General Chemical's modifications           exclusively on the Cape Rojo incident and other instances
did not go far enough, and the finding that the warning label       of injuries cited by plaintiffs. For reasons already discussed,
was inadequate indicates that the jury was persuaded by that        none of those prior incidents are evidence that General
argument. Gross negligence, however, requires more than an          Chemical was grossly negligent. Stripped of all support, the
inadequate response to perceived dangers; it requires actual        expert's opinion is entitled to no weight and thus does not
conscious indifference. Not only is there no evidence that          support a finding of gross negligence.
General Chemical reacted with indifference to the Cape Rojo
incident, the evidence establishes that it attempted to comply      There is no probative evidence that General Chemical was
with the Coast Guard's recommendations.                             grossly negligent, and therefore there is no basis for an award
                                                                    of punitive damages. Even applying the restrictive standard of
Plaintiffs' assertion that General Chemical knew of other           Burk Royalty, plaintiffs must still show that General Chemical
occurrences involving fatalities from the misuse of sodium          knew of the peril its warning could cause and yet did not
metabisulfite but did not care enough to change its warning         care. General Chemical simply cannot be said to have been
is based upon one incident 15 years before, after which             indifferent to the dangers which could result from misuse
General Chemical changed its warning twice. Assuming that           of its product when it gave clear, conspicuous, bilingual
General Chemical should have warned that misuse of its              warnings, more thorough than any others in the industry,
chemical could be fatal, I fail to see how that failure was gross   which would have prevented the De La Lastras' deaths if only
negligence—“actual conscious indifference” of others' safety        they had heeded those warnings. The world is full of products,
—when it changed its warning twice after the earlier incident,      from cars to cleansers, which if misused may cause death. One
used the most extensive warning of any other manufacturer           should certainly expect that misuse of toxic chemicals may be
of the product, and warned explicitly against the exact misuse      lethal. Manufacturers may be obliged to warn against misuse
which occurred in both the Cape Rojo and De La Lastra               of their products. When they do, however, and when the
incidents. The fact that there were only three deaths involving     warnings given would have prevented an accident if they had
the product over the 15 years before the accident in this case      been followed, it is wrong to assign liability for the accident
also suggests that General Chemical did not fail to respond         to the manufacturer. It is worse still, however, to punish it
appropriately.                                                      for not caring. General Chemical has been held liable for
                                                                    an accident its warning would have prevented. It has been
The second piece of evidence on which plaintiffs rely to            assessed over $13 million for the actual damages suffered
support the finding of gross negligence is that General             in the accident, including $2 million for the mental anguish
Chemical's representative testified in response to cross-           the De La Lastras suffered during the thirty seconds before
examination by plaintiffs' counsel at trial that the company        each lost consciousness. On top of this, the Court holds that
did not intend to change its warning despite the De La              General Chemical should be assessed a penalty of $8 million
Lastras' deaths. Given General Chemical's position that its         because it did not care that the De La Lastras might die from
warning was adequate, its representative's testimony is hardly      misusing its product. Absent any evidence to support it, the
surprising. The jury's finding that the warning was inadequate      award of punitive damages in this case is an injustice.
does not transform the testimony of General Chemical's



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General Chemical Corp. v. De La Lastra, 852 S.W.2d 916 (1993)
Prod.Liab.Rep. (CCH) P 13,415

                                                                 rejects this argument without explaining why. There are
                                                                 only two possible bases for the Court's conclusion: either
                              II
                                                                 that a punitive damage award of four times actual damages
General Chemical challenges the award of punitive damages        never violates due process, or that such an award of punitive
in this case on three separate grounds: that there is no         damages does not violate due process in this case. The Court
probative evidence of gross negligence to support an award of    disavows the former premise: “We need not address whether
punitive damages, that punitive damages cannot exceed four       [a 4–1] ratio will in all cases withstand a constitutional
times actual damages under TEX.CIV.PRAC. & REM.CODE              challenge.” Ante at 925 n. 12. The second premise is thus the
§ 41.007, and that an award of punitive damages in this case     only remaining basis for the Court's decision.
violates the due process and due course of law guaranties of
the United States Constitution and the Texas Constitution.       It may be perfectly reasonable to conclude that an award of
The Court rejects the evidentiary argument, accepts the          $8 million punitive damages in this case does not violate due
statutory argument, and ignores the constitutional argument.     process. It is not reasonable, however, or even acceptable, to
Because I accept the evidentiary argument, I need not            reach this conclusion without saying why. The parties have
consider the statutory argument, although I do not disagree      argued the issue fully in their briefs, and we have received
with the Court's analysis of the application of section 41.007   amicus curiae briefs on the issue. The issue is among those on
in this case. I also need not reach General Chemical's           which we granted General Chemical's application for writ of
constitutional arguments. The Court, however, cannot avoid       error. 35 TEX.SUP.CT.J. 508–509. The issue was addressed
them.                                                            at oral argument. The issue is an important one in this state,
                                                                 in other states, and in the United States. The Court makes no
In a footnote, the Court suggests that General Chemical          attempt to justify its refusal to address the issue. It delivers
concedes that an award of punitive damages equal to four         the parties an edict rather than an opinion.
times actual damages in this case does not offend due process.
Ante at 925 n. 12. In the text of its opinion, however, the
Court acknowledges that “General Chemical ... asserts that                                     III
the current Texas system of awarding punitive damages, and
the resulting excessive punitive damage award deprived them      As I stated at the outset, I agree with the Court that
of the constitutional rights of due process....” Ante at 924.    General Chemical has not preserved a complaint that recovery
The text is correct; the footnote is not. Although *930          of nonpecuniary damages is barred by the application of
General Chemical argues that punitive damages cannot             federal maritime law. General Chemical makes an additional
exceed four times actual damages under section 41.007, it        argument, however, that the Court does not address. General
does not concede that such an award comports with due            Chemical contends that in circumstances indistinguishable
process. The Court's footnote adds a non sequitur: “Contrary     from this case, the Court reversed an award of loss of
to the dissent's view, General Chemical has not raised a         society damages in Van Tran. General Chemical is correct.
constitutional challenge to section 41.007.” While it is true    In Van Tran, Texaco objected to an award of mental anguish
that General Chemical has not attacked the constitutionality     damages as being precluded by federal maritime law, but it
of section 41.007, that fact is not “contrary to the dissent's   did not raise a similar objection to the award of loss of society
view”. Nor is the fact significant. Section 41.007 caps          damages. While Van Tran was on appeal, the United States
punitive damages; it does not immunize any award up to the       Supreme Court held in Miles v. Apex Marine Corp., 498 U.S.
cap from constitutional scrutiny. General Chemical need not      19, 111 S.Ct. 317, 112 L.Ed.2d 275 (1990), that loss of society
attack the statutory cap to argue that the system of awarding    damages cannot be recovered under federal maritime law.
punitive damages is flawed. General Chemical can and does        We reversed the award of mental anguish damages to which
argue that an award of punitive damages cannot exceed            Texaco properly objected, but we also reversed the award of
those allowed by statute, and also that any award in these       loss of society damages to which Texaco did not object.
circumstances offends due process.
                                                                 Following Van Tran, General Chemical's failure to object
The Court itself recognizes in the text of its opinion that      in the trial court to an award of nonpecuniary damages not
General Chemical argues that the system itself, both before      allowed under maritime law should not preclude it from
and after judgment in the trial court, is invalid. The Court     obtaining reversal on appeal. In my view, however, Van Tran



               © 2015 Thomson Reuters. No claim to original U.S. Government Works.                                           13
General Chemical Corp. v. De La Lastra, 852 S.W.2d 916 (1993)
Prod.Liab.Rep. (CCH) P 13,415

                                                                      *931 For all these reasons, I concur in affirming the award
was wrongly decided in this respect. A party, whether plaintiff
                                                                     of actual damages but dissent from the award of punitive
or defendant, is entitled to the benefit of changes in the law
                                                                     damages.
while a case is on appeal as long as those changes are fully
retroactive. However, the party should ordinarily be required
to have raised the issue at trial in order to assert it on appeal.
I would not extend the error in Van Tran to this case.               PHILLIPS, C.J., and ENOCH, JJ., join in this concurring and
                                                                     dissenting opinion.
******

                                                                                            APPENDIX




                                                                     *932




                © 2015 Thomson Reuters. No claim to original U.S. Government Works.                                          14
General Chemical Corp. v. De La Lastra, 852 S.W.2d 916 (1993)
Prod.Liab.Rep. (CCH) P 13,415




                                                           All Citations

                                                           852 S.W.2d 916, Prod.Liab.Rep. (CCH) P 13,415

End of Document                                        © 2015 Thomson Reuters. No claim to original U.S. Government Works.




              © 2015 Thomson Reuters. No claim to original U.S. Government Works.                                     15
Group v. Vicento, 164 S.W.3d 724 (2005)




                                                                       20 Cases that cite this headnote
                    164 S.W.3d 724
                Court of Appeals of Texas,
                  Houston (14th Dist.).                          [2]   Evidence
                                                                           Due care and proper conduct in general
        Edward F. GROUP, III, D.C., Appellant                          In contrast to an expert who provides opinion
                       v.                                              testimony about how a health care provider
             Mark VICENTO, Appellee.                                   departed from accepted standards of health care,
                                                                       an expert who provides opinion testimony about
       No. 14–04–00908–CV.           |   May 10, 2005.                 the causal relationship between the injury, harm,
                                                                       or damages claimed and the alleged departure
Synopsis
                                                                       from the applicable standard of care in a health
Background: Patient brought medical malpractice action
                                                                       care liability claim must be a physician who is
against chiropractor, alleging that chiropractor should have
                                                                       otherwise qualified to render opinions on such a
referred him to an expert spine surgeon for specialized
                                                                       causal relationship under the Rules of Evidence.
treatment upon reviewing his MRI results and that
                                                                       V.T.C.A., Civil Practice & Remedies Code §§
chiropractor's failure to do so delayed patient's eventual
                                                                       74.351(r)(5)(C); 74.403(a).
surgery for approximately one year, exacerbating his injuries.
The 190th District Court, Harris County, Jennifer Elrod, J.,           9 Cases that cite this headnote
denied chiropractor's motion to dismiss, and chiropractor
appealed.
                                                                 [3]   Appeal and Error
                                                                          Cases Triable in Appellate Court
                                                                       Statutory construction is a question of law,
[Holding:] The Court of Appeals, John S. Anderson, J., held
                                                                       and appellate court reviews a trial court's
that, as matter of apparent first impression anesthesiologist
                                                                       interpretation of a statute under a de novo
was “practicing health care” in a field of practice that
                                                                       standard of review.
involved the same type of care as chiropractor, and thus,
anesthesiologist satisfied statutory requirements so as to be          2 Cases that cite this headnote
expert witness.

                                                                 [4]   Statutes
Affirmed.                                                                   Intent
                                                                       When interpreting statutes, courts' primary
                                                                       objective is to ascertain and give effect to
                                                                       legislative intent.
 West Headnotes (10)
                                                                       1 Cases that cite this headnote
 [1]    Appeal and Error
           Rulings on Motions Relating to Pleadings              [5]   Statutes
        Appellate court reviews for abuse of discretion                     Plain Language; Plain, Ordinary, or
        a trial court's decision on a motion to dismiss                Common Meaning
        under statute permitting dismissal of medical                  Statutes
        malpractice claim against defendant physician or                    Statute as a Whole; Relation of Parts to
        health care provider who has not been served                   Whole and to One Another
        with expert report within specified time period.
                                                                       When interpreting statute, courts look first to the
        V.T.C.A., Civil Practice & Remedies Code §
                                                                       plain and common meaning of the language of
        74.351.
                                                                       the statute, and courts must read the statute as a




               © 2015 Thomson Reuters. No claim to original U.S. Government Works.                                           1
Group v. Vicento, 164 S.W.3d 724 (2005)


       whole and not just isolated portions. V.T.C.A.,             by defendant health care provider, “practicing
       Government Code § 311.011.                                  health care” is not limited to particular activities,
                                                                   specified in separate statute, of training others
       Cases that cite this headnote                               in same field or serving as consulting health
                                                                   care provider and being licensed, certified, or
 [6]   Statutes                                                    registered in same field as defendant; term
            Giving effect to statute or language;                  “includes,” in statute setting forth those two
       construction as written                                     alternatives, was term of enlargement and
                                                                   not of limitation or exclusive enumeration.
       Statutes
                                                                   V.T.C.A., Civil Practice & Remedies CodeT §
            Statute as a Whole; Relation of Parts to
                                                                   74.402(a)(1,2), (b); V.T.C.A., Government Code
       Whole and to One Another
                                                                   § 311.005(13).
       If the meaning of the statutory language is
       unambiguous, court must interpret it according              9 Cases that cite this headnote
       to its terms, giving meaning to the language
       consistent with other provisions in the statute.
                                                            [10]   Evidence
       1 Cases that cite this headnote                                 Due care and proper conduct in general
                                                                   Anesthesiologist, who specialized in anesthesia
                                                                   and pain management, was “practicing health
 [7]   Statutes
                                                                   care” in a field of practice that involved the
            Superfluousness
                                                                   same type of care or treatment as chiropractor,
       Statutes
                                                                   and thus, anesthesiologist satisfied statutory
            Absent terms; silence; omissions
                                                                   requirements so as to be expert witness in
       When interpreting statute, court reads every                medical malpractice action brought against
       word as if it was deliberately chosen and                   chiropractor; anesthesiologist stated that he
       presumes that omitted words were excluded                   knew accepted standard of care required of
       purposefully.                                               chiropractors, he stated that pain management
                                                                   modalities he used were same ones that
       1 Cases that cite this headnote
                                                                   chiropractors used, he stated that chiropractors
                                                                   and pain management physicians used similar
 [8]   Statutes                                                    methods to evaluate patients and determine
            Construction in View of Effects,                       whether to refer them to specialists. V.T.C.A.,
       Consequences, or Results                                    Civil Practice & Remedies Code § 74.402(b)
       Statutes                                                    (1,2,3).
            Purpose
                                                                   11 Cases that cite this headnote
       When interpreting statute, courts consider the
       objective the law seeks to obtain and the
       consequences of a particular construction.

       Cases that cite this headnote                        Attorneys and Law Firms

                                                            *725 Michele Quattlebaum and Tammy Savidge–Moore,
 [9]   Evidence                                             Houston, for appellants.
           Due care and proper conduct in general
                                                            R. Gary Stephens and Maggie D. Conner, Houston, for
       For purpose of statute providing that expert
                                                            appellees.
       witness whose report plaintiff offers in support
       of health care liability claim must be “practicing   Panel consists of Justices ANDERSON, HUDSON, and
       health care” in field of practice that involves      FROST.
       same type of care or treatment as that delivered



              © 2015 Thomson Reuters. No claim to original U.S. Government Works.                                          2
Group v. Vicento, 164 S.W.3d 724 (2005)


                                                                      Vicento timely filed the expert report of Rezik Saqer, M.D.,
                                                                      pursuant to Texas Civil Practice and Remedies Code section
                           OPINION                                    74.351. See TEX. CIV. PRAC. & REM.CODE ANN. §
                                                                      74.351 (Vernon 2005). In response, Group filed a motion to
JOHN S. ANDERSON, Justice.                                            dismiss Vicento's case on the ground that Dr. Saqer's expert
                                                                      report did not comply with section 74.351 of the Texas Civil
In this medical malpractice case, appellant appeals the trial         Practice and Remedies Code. Group alleged in his motion
court's denial of his motion to dismiss challenging the               to dismiss that Dr. Saqer was not qualified to opine on the
sufficiency of the appellee's expert report. In a single issue,       chiropractic standard of care and Dr. Saqer's expert report was
appellant argues the trial court erred in denying his motion
                                                                      inadequate. Group requested the trial court to order Vicento
to dismiss as a matter of law because the appellee's expert is        to cure the deficiency within 30 days or dismiss Vicento's
not qualified to render an opinion regarding the chiropractic         cause of action. The trial court ordered Vicento to file a report
standard of care under Chapter 74 of the Texas Civil Practice         complying with the statute within thirty days.
and Remedies Code. We affirm.
                                                                      Vicento timely filed an amended expert report by Dr. Saqer.
                                                                      Group responded by filing a motion re-urging his prior motion
                 *726 FACTUAL AND                                     to dismiss, arguing the amended expert report is deficient
             PROCEDURAL BACKGROUND                                    because (1) Dr. Saqer is not qualified to render an opinion
                                                                      on the chiropractic standard of care because he does not
Appellee Mark Vicento, a police officer, was injured                  fit the statutory definition of “practicing health care” and is
in an automobile accident in September 2001. Vicento                  not qualified “on the basis of training and experience” as
immediately sought treatment for his injuries at a chiropractic       these terms are defined by section 74.402 of the Texas Civil
clinic. Appellant Edward F. Group, III, D.C., a chiropractor,         Practice and Remedies Code, (2) Dr. Saqer's report does not
treated Vicento's injuries. In November 2001, Group referred          state how Group deviated from the chiropractic standard of
Vicento for an MRI (magnetic resonance imaging) of the                care, and (3) Dr. Saqer's report fails to comply with section
lumbar spine. Group continued to treat Vicento over the next          74.403 in failing to state how Group's actions caused any
year. In 2003, Vicento underwent back surgery.                        injury to Vicento.

Vicento contends Group should have referred him to an expert          The trial court denied Group's second motion to dismiss.
spine surgeon for specialized treatment upon reviewing his            Group filed this interlocutory appeal from the trial court's
MRI results in November 2001, 1 and Group's failure to do             order. 2
so delayed Vicento's eventual surgery for approximately one
year, exacerbating his injuries. Vicento filed this medical           2          Texas Civil Practice and Remedies Code section 51.014
malpractice lawsuit against Group in January 2004, alleging
                                                                                 permits an interlocutory appeal to be filed from an
claims of medical negligence. Specifically, Vicento claims                       order of a district court that denies all or part of the
Group “was negligent in failing to comply with the standard                      relief sought by a motion under section 74.351(b) of
of care by failing to timely and adequately (i) test, (ii) assess,               the Texas Civil Practice and Remedies Code. TEX.
(iii) diagnose, (iv) treat, and (v) refer [Vicento] to a specialist              CIV. PRAC. & REM.CODE ANN. § 51.014(a)(9)
when his condition worsened and deteriorated.” Vicento                           (Vernon Supp.2005). Group's motion to dismiss sought
asserts Group should have known his condition was such that                      relief under section 73.351(b) and alleged Vicento's
he needed a specialist for treatment, and he contends Group's                    expert report was deficient. See TEX. CIV. PRAC.
negligent acts and omissions delayed his spine surgery for a                     & REM.CODE ANN. § 74.351(b). Section 74.351(b)
period of approximately two years, thereby aggravating his                       permits a trial court to award a defendant health care
                                                                                 provider reasonable attorney's fees and costs and to
condition.
                                                                                 dismiss a plaintiff's claims if an expert report is not
                                                                                 timely served. See id. An expert report “has not been
1       The MRI report showed herniated lumbar discs with                        served” for purposes of section 74.351(b) if elements
        significant spine and foramen stenosis at four different                 of the report are found deficient. TEX. CIV. PRAC. &
        lumbar spine levels.                                                     REM.CODE ANN. § 74.351(c).




                © 2015 Thomson Reuters. No claim to original U.S. Government Works.                                                         3
Group v. Vicento, 164 S.W.3d 724 (2005)


                                                                 lack of treatment, or other claimed departure from accepted
                                                                 standards of medical care, or health care, or safety or
                    *727 DISCUSSION
                                                                 professional or administrative services directly related to
A. Standard of Review                                            health care, which proximately results in injury to or death
 [1] We review a trial court's decision on a motion to dismiss   of a claimant, whether the claimant's claim or cause of
a case under Texas Civil Practice and Remedies Code section      action sounds in tort or contract.” TEX. CIV. PRAC. &
74.351 for an abuse of discretion. See Am. Transitional Care     REM.CODE ANN. § 74.001(13) (Vernon 2005) (emphasis
Ctrs. of Tex., Inc. v. Palacios, 46 S.W.3d 873, 875 (Tex.2001)   added). Chiropractors fall under the definition of a “health
(holding trial court's decision to dismiss a case under former   care provider.” TEX. CIV. PRAC. & REM.CODE ANN. §
article 4590i, section 13.01(e) (predecessor to Texas Civil      74.001(12)(A)(v).
Practice and Remedies Code section 74.351) is reviewed for
an abuse of discretion).                                         Under section 74.351(l ), “[a] court shall grant a motion
                                                                 challenging the adequacy of an expert report only it if appears
                                                                 to the court, after hearing, that the report does not represent
B. Expert Reports and Texas Civil Practice and                   an objective good faith effort to comply with the definition of
Remedies Code Section 74.351                                     an expert report....” TEX. CIV. PRAC. & REM.CODE ANN.
In 2003, the Texas Legislature enacted significant changes in    § 74.351(l ). An “expert report” is defined as:
the expert report requirement for medical malpractice cases.
See TEX. CIV. PRAC. & REM.CODE ANN. §§ 74.001–.507                           [A] written report by an expert that
(Vernon 2005) (effective September 1, 2003, formerly article                 provides a fair summary of the
4590i of the Texas Revised Civil Statutes, the Medical                       expert's opinions as of the date of the
Liability and Insurance Improvement Act). Section 74.351                     report regarding applicable standards
of the Texas Civil Practice and Remedies Code requires a                     of care, the manner in which the care
plaintiff who files a “health care liability claim” to file an               rendered by the physician or health
expert report within 120 days of filing its claim:                           care provider *728 failed to meet the
                                                                             standards, and the causal relationship
            (a) In a health care liability claim,                            between that failure and the injury,
               a claimant shall, not later than the                          harm, or damages claimed.
               120th day after the date the claim
               was filed, serve on each party or the             TEX. CIV. PRAC. & REM.CODE ANN. § 74.351(r)(6).
               party's attorney one or more expert
               reports, with a curriculum vitae
                                                                 C. Qualifications of an Expert Witness in a Suit Against
               of each expert listed in the report
                                                                 a Health Care Provider and Texas Civil Practice and
               for each physician or health care
                                                                 Remedies Code Section 74.402
               provider against whom a liability
                                                                 An expert providing opinion testimony about how a “health
               claim is asserted. The date for
                                                                 care provider,” such as chiropractor Group, departed from
               serving the report may be extended
                                                                 accepted standards of health care must be qualified to testify
               by written agreement of the affected
                                                                 under the requirements of section 74.402. See TEX. CIV.
               parties. Each defendant physician or
                                                                 PRAC. & REM.CODE ANN. § 74.351(r)(5)(B). Section
               health care provider whose conduct
                                                                 74.402(b) lists three specific qualifications an expert witness
               is implicated in a report must file
                                                                 must possess in order to provide opinion testimony on how
               and serve any objection to the
                                                                 a health care provider departed from accepted standards of
               sufficiency of the report not later
                                                                 health care:
               than the 21st day after the date it was
               served, failing which all objections                (b) In a suit involving a health care liability claim against a
               are waived.                                            health care provider, a person may qualify as an expert
                                                                      witness on the issue of whether the health care provider
TEX. CIV. PRAC. & REM.CODE ANN. § 74.351(a). A
                                                                      departed from accepted standards of care only if the
“health care liability claim” is defined as “a cause of action
                                                                      person:
against a health care provider or physician for treatment,



               © 2015 Thomson Reuters. No claim to original U.S. Government Works.                                             4
Group v. Vicento, 164 S.W.3d 724 (2005)


                                                                   REM.CODE ANN. § 74.402(d). A court may depart from the
     (1) is practicing health care in a field of practice that     criteria if, under the circumstances, there is good reason to
        involves the same type of care or treatment as that        admit *729 the expert's testimony, but if the court departs
        delivered by the defendant health care provider, if the    from the criteria, the court shall state on the record the reason
        defendant health care provider is an individual, at the    for admitting the testimony. Id. Here, the trial court's order
        time the testimony is given or was practicing that type    denying Group's motion to dismiss does not state the court
        of health care at the time the claim arose;                departed from section 74.402's criteria.

     (2) has knowledge of accepted standards of care for
                                                                    [2] In contrast to an expert who provides opinion testimony
        health care providers for the diagnosis, care, or
                                                                   about how a health care provider departed from accepted
        treatment of the illness, injury, or condition involved
                                                                   standards of health care, an expert who provides opinion
        in the claim; and
                                                                   testimony about the causal relationship between the injury,
     (3) is qualified on the basis of training or experience       harm, or damages claimed and the alleged departure from
        to offer an expert opinion regarding those accepted        the applicable standard of care in a health care liability claim
        standards of health care.                                  must be a physician who is otherwise qualified to render
                                                                   opinions on such a causal relationship under the Texas Rules
TEX. CIV. PRAC. & REM.CODE ANN. § 74.402(b)                        of Evidence. See TEX. CIV. PRAC. & REM.CODE ANN. §§
(Vernon 2005) (emphasis added). The above emphasized               74.351(r)(5)(C), 74.403(a) (Vernon 2005).
terms are specifically defined in subsections (a) and (c)
of section 74.402. “Practicing health care” is defined as          This is a case of first impression under newly enacted section
including:                                                         74.402.

  (1) training health care providers in the same field as
     the defendant health care provider at an accredited           D. Group's Motion to Dismiss
     educational institution; or                                   Group argues the trial court erred in denying his motion
                                                                   to dismiss because Dr. Saqer is not qualified to render
  (2) serving as a consulting health care provider and being       an expert opinion regarding the chiropractic standard of
     licensed, certified, or registered in the same field as the   care. Group's challenges to Dr. Saqer's qualifications focus
     defendant health care provider.
                                                                   on section 74.402, subsections (a), (b)(1), (3) and (c)(2). 3
TEX. CIV. PRAC. & REM.CODE ANN. § 74.402(a)(1),                    First, Group asserts Dr. Saqer is not statutorily qualified
(2) (emphasis added). To determine whether an expert “is           to render an opinion regarding the chiropractic standard
qualified on the basis of training or experience” under            of care or a breach thereof because he is not “practicing
subsection (b)(3), a court is to consider whether the expert:      health care” as defined by section 74.402(a). Group contends
                                                                   section 74.402(a) requires Dr. Saqer to be (1) practicing
  (1) is certified by a licensing agency of one or more states     health care in a field of practice involving the same type
     of the United States or a national professional certifying    of care or treatment as Group, the field of chiropractic, (2)
     agency, or has other substantial training or experience,      licensed as a chiropractor, or (3) teaching chiropractic at
     in the area of health care relevant to the claim; and         an accredited chiropractic school. Second, Group argues Dr.
                                                                   Saqer is not qualified “on the basis of training or experience”
  (2) is actively practicing health care in rendering health
                                                                   under section 73.402(b)(3) because he is not a chiropractor
     care services relevant to the claim.
                                                                   and is not actively “practicing health care” in the field of
TEX. CIV. PRAC. & REM.CODE ANN. § 74.402(c)(1), (2)                chiropractic.
(emphasis added).
                                                                   3       In his motion to dismiss, Group also complained Dr.
Section 74.402(d) provides a court “shall apply” the criteria              Saqer's report does not state how Group deviated from
specified in section 74.402(a)-(c) in determining whether an               the chiropractic standard of care, and Group challenged
expert is qualified to offer expert testimony on the issue                 Dr. Saqer's qualifications to render an expert opinion
of whether a defendant health care provider departed from                  on causation, under section 74.403, arguing Dr. Saqer's
                                                                           testimony was not based on a reasonable medical
accepted standards of health care. TEX. CIV. PRAC. &



               © 2015 Thomson Reuters. No claim to original U.S. Government Works.                                                   5
Group v. Vicento, 164 S.W.3d 724 (2005)


       probability. On appeal, Group has abandoned these two          Spine Fixation Sys., Inc., 996 S.W.2d 864, 865 (Tex.1999);
       grounds for dismissal.                                         see TEX. GOV'T CODE ANN. § 311.023 (Vernon 2005).
In response, Vicento asserts the trial court's denial of Group's      We look first to the plain and common meaning of the
motion to dismiss was proper because Dr. Saqer's expert               language of the statute. Fitzgerald, 996 S.W.2d at 865;
report demonstrates he has the requisite knowledge, skill,            see TEX. GOV'T CODE ANN. § 311.011 (Vernon 2005).
experience, training, and education regarding the treatment           We must read the statute as a whole and not just isolated
of patients with conditions similar to Vicento's to qualify           portions. Tex. Dep't. of Transp. v. City of Sunset Valley, 146
him as an expert as to the standard of care and causation in          S.W.3d 637, 642 (Tex.2004). If the meaning of the statutory
this case. Vicento contends Dr. Saqer's report establishes he         language is unambiguous, we must interpret it according to
practices health care in a field that involves the same type          its terms, giving meaning to the language consistent with
of care and treatment as that delivered by Group, and he has          other provisions in the statute. Id. We read every word as if
expertise in the particular areas involved in this case. Vicento      it were deliberately chosen and presume that omitted words
further asserts section 74.402 does not require an expert in a        were excluded purposefully. See Cornyn v. Universe Life
suit against a chiropractor to be a chiropractor in order to be       Ins. Co., 988 S.W.2d 376, 378–79 (Tex.App.-Austin 1999,
                                                                      pet. denied). We also consider the objective the law seeks
qualified to opine on the standard of care. 4
                                                                      to obtain and the consequences of a particular construction.
                                                                      Sunset Valley, 146 S.W.3d at 642.
4      In Nicodeme v. Bailey, 243 S.W.2d 397, 399–402
       (Tex.Civ.App.-El Paso 1951, writ ref'd n.r.e.), two
                                                                      We apply the above principles in construing section 74.402,
       physicians testified on behalf of a patient in a medical
                                                                      and we examine Dr. Saqer's qualifications in light of section
       malpractice suit the patient filed against a chiropractor.
                                                                      74.402's requirements.
       The court held the patient's evidence failed to establish
       the chiropractor's negligence was a proximate cause of
       the plaintiff's injuries. Nicodeme does not address the
                                                                      2. Section 74.402(a) and (b)(1): “Practicing Health Care”
       specific issue of the doctors' qualifications to render an
                                                                      First, under section 74.402(b)(1), to qualify as an expert
       opinion against the defendant chiropractor, but the court
       does acknowledge the chiropractor's conduct should             witness on the issue of whether Group departed from accepted
       be judged against the chiropractic system of healing.          standards of care, Dr. Saqer must be “practicing health
       Nicodeme, 243 S.W.2d at 401 (“The lawful activity of a         care in a field of practice that involves the same type of
       chiropractor is confined to the treatment of the spine in a    care or treatment as that delivered by the defendant health
       certain manner. In substance, the treatment is limited to      care provider, if the defendant health care provider is an
       the adjustment of the joints or vertebrae of the spine.”).     individual, at the time the testimony is given or was practicing
          Other cases cited by Vicento in his brief involve           that type of health care at the time the claim arose.” TEX.
          medical malpractice claims brought against physicians       CIV. PRAC. & REM.CODE ANN. § 74.402(b)(1).
          analyzing whether expert physicians who do not
          specialize in the same area as a defendant physician are
                                                                 Group argues the term “practicing health care” as defined
          qualified to render an expert opinion. See, e.g., Roberts
                                                                 by subsection (a) requires a qualified expert in a
          v. Williamson, 111 S.W.3d 113 (Tex.2003); Broders v.
                                                                 chiropractic malpractice case to either be a chiropractor,
          Heise, 924 S.W.2d 148 (Tex.1996); Silvas v. Ghiatas,
                                                                 train chiropractors at an accredited educational institution, or
          954 S.W.2d 50 (Tex.App.-San Antonio 1997, pet.
          denied). These cases do not apply newly enacted        serve as a consulting health care provider to chiropractors
          section 74.402, but they are nevertheless instructive  and be licensed, certified, or registered as a chiropractor.
          and provide guidance on the issue presented.           See TEX. CIV. PRAC. & REM.CODE ANN. § 74.402(a)
                                                                 (1), (2) (“For purposes of [section 74.402], ‘practicing
 *730 1. Rules of Statutory Construction                         health care’ includes: (1) training health care providers in
 [3]    [4]    [5]    [6]    [7]    [8] Statutory construction isthea same field as the defendant health care provider at
question of law, and we review a trial court's interpretation    an accredited educational institution; or (2) serving as a
of a statute under a de novo standard of review. Tex. Dep't of   consulting health care provider and being licensed, certified,
Transp. v. Needham, 82 S.W.3d 314, 318 (Tex.2002). When          or registered in the same field as the defendant health care
interpreting statutes, our primary objective is to ascertain     provider.”) (emphasis added). Group contends Dr. Saqer does
and give effect to legislative intent. Fitzgerald v. Advanced    not meet the statutory definition of “practicing health care.”
                                                                 In response, Vicento argues Dr. Saqer's report demonstrates


                © 2015 Thomson Reuters. No claim to original U.S. Government Works.                                                6
Group v. Vicento, 164 S.W.3d 724 (2005)


he has *731 adequate knowledge, skill, experience, training,                 in the wording between the House and Senate versions
and education regarding his treatment of patients with                       may be due to concerns expressed by individuals who
conditions similar to Vicento's to qualify him as an expert                  testified at public hearings conducted by the Senate
under subsection (b)(1).                                                     State Affairs Committee on House Bill 4 regarding
                                                                             potential problems with the “in the same field” language.
                                                                             Hearings on Tex. H.B. 4 Before the Senate State Affairs
 [9]    Group's asserted construction of section 74.402,
                                                                             Committee, 78th Leg., R.S. 17–18 (April 15, 2003)
subsections (a)(1)-(2) and (b)(1), improperly limits and
                                                                             (transcript available from Senate Staff Services Office).
confines the definition of the term “practicing health
care.” Subsection (a) uses the term “includes” in defining            Reading section 74.402 subsections (a) and (b)(1) together,
“practicing health care.” Although Chapter 74 does not define         subsection (a) expands upon the definition of “practicing
the term “includes,” the Code Construction Act defines                health care” to include qualified teachers and consulting
“includes” as a term “of enlargement and not of limitation or         health care providers who may not otherwise be qualified
exclusive enumeration, and use of [includes] does not create          under subsection (b)(1) because they are not practicing
a presumption that components not expressed are excluded.”            health care and instead teach or consult. Group's proffered
TEX. GOV'T CODE ANN. § 311.005(13) (Vernon 2005); see                 construction of subsection (a) and (b)(1) results in a person
Jackson Law Office, P.C. v. Chappell, 37 S.W.3d 15, 25–26             being qualified as an expert only if the person trains health
(Tex.App.-Tyler 2000, pet. denied). Thus, section 74.402(a)'s         care providers in the same field as the defendant health care
two definitions of “practicing health care” are not exclusive.        provider or if the person serves as a consulting health care
                                                                      provider and is licensed, certified, or registered in the same
In addition, under the literal language of section 74.402(b)          field as the defendant health care provider. According to
(1), an expert is only required to be “practicing health care         Group, if a person practices health care in a field of practice
in a field of practice that involves the same type of care            that involves the same type of care or treatment as that
or treatment as that delivered by the defendant health care           delivered by the defendant health care provider, but the person
provider.” See TEX. CIV. PRAC. & REM.CODE ANN. §                      is not certified in the same field of practice as the defendant
74.402(b)(1) (emphasis added). Subsection (b)(1) does not              *732 health care provider, is not a teacher, or is not a
require an expert to be practicing health care in the same            qualified consultant, the person is unqualified.
field as the defendant health care provider, here, the field of
chiropractic. Instead, under subsection (b)(1), the expert only       Group's asserted construction of section 74.402(a) is
must practice health care in a field of practice involving the        unnecessarily restrictive and is contrary to the plain and
                                                                      common meaning of the language of the statute. Having
same type of care or treatment. 5
                                                                      considered the language of section 74.402 in its entirety, we
                                                                      disagree with Group that the two definitions of “practicing
5      A conference committee report on House Bill 4 conducts         health care” under section 74.402(a) are exclusive.
       a side-by-side comparison of the Texas House of
       Representatives' version of the bill with the Senate's
       version. CONFERENCE COMM. REPORT, Tex. H.B.                    3. Dr. Saqer's Qualifications and Section 74.402
       4, 78th Leg., R.S. (2003). The report shows the House's
       version of section 74.402(b)(1) stated a person may            a. Section 74.402(b)(1)
       qualify as an expert under that subsection if the person        [10] We now analyze whether Dr. Saqer satisfies the
       “(1) is practicing health care in the same field of practice   requirements of section 74.402(b)(1). Dr. Saqer's expert
       as the defendant health care provider ....” In contrast,       report and curriculum vitae reveal he is a licensed medical
       the Senate's version of subsection (b)(1) stated a person
                                                                      doctor, an anesthesiologist, who specializes in anesthesia
       may qualify as an expert if the person “(1) is practicing
                                                                      and pain management. He has been practicing anesthesia
       health care in a field of practice that involves the
                                                                      and pain management in the Houston area for the past
       same type of care or treatment as that delivered by
                                                                      seven years. Dr. Saqer is the owner and president of
       the defendant health care provider, if the defendant
       health care provider is an individual ....” The Conference     Houston Preferred Anesthesia, a group of anesthesiologists
       Committee on House Bill 4 adopted the Senate's version,        that provide anesthesia services to different hospitals and
       which does not require a qualified expert to practice in       outpatient surgery centers. He is board eligible by the
       the same field as the defendant health care provider, and      American Board of Anesthesiologists and a Board Diplomat
       this version was enacted into law. See id. The difference      by the American Academy of Pain Management. He also



                © 2015 Thomson Reuters. No claim to original U.S. Government Works.                                                      7
Group v. Vicento, 164 S.W.3d 724 (2005)


is the founder and manager of Texas Pain Solutions, which           100 patients every week, and more than 20% of them
provides invasive and non-invasive pain services through            suffer from conditions similar to Mr. Vicento. I know
different hospitals and multiple clinics in the Houston area.       the accepted standard of care required of chiropractors
                                                                    regarding *733 the type of injury and treatment involved
Although Dr. Saqer does not train chiropractors at an               in this case, because my specialty overlaps and intertwines
accredited educational institution, does not serve as a             with chiropractic practice. Specifically, I engage in
consulting health care provider to chiropractors, and is            modalities of treatment, which include but are not limited
not licensed, certified, or registered as a chiropractor, 6 as      to pain management modalities. These areas include but are
discussed above, this is not determinative of Dr. Saqer's           not limited to the following:
qualifications under subsection (b)(1). Rather, the focus of
                                                                    1. Massage Therapy;
our inquiry is whether Dr. Saqer practices health care in
a field of practice that involves the same type of care or          2. Oscillation of pain centers;
treatment as that delivered by Group. See TEX. CIV. PRAC.
& REM.CODE ANN. § 74.402(b)(1).                                     3. Relief of complications of muscle spasms;

6                                                                   4. Neurological pain causation;
         Under the Occupations Code, “[a] person practices
         chiropractic” ... if the person:                           5. Accupuncture treatment;
           (1) uses objective or subjective means to analyze,
              examine, or evaluate the biomechanical condition      6. Modern methods of physical therapy.
              of the spine and musculoskeletal system of the
              human body;                                           These are the same areas that chiropractors use to
           (2) performs nonsurgical, nonincisive procedures,        manipulate and treat patients. For example, massage
              including adjustment and manipulation, to improve     therapy includes, but is not limited to: [i] increasing
              the subluxation complex or the biomechanics of the    circulation to promote healing, [ii] relieving cramps and
              musculoskeletal system;                               muscle spasm, [iii] pain relief of spinal injuries and
           (3) represents to the public that the person is a        headaches by decreasing muscle tension, [iv] manipulating
              chiropractor; or
                                                                    limbs and the spine to relieve impingement of nerve
           (4) uses the term “chiropractor,” “chiropractic,”
                                                                    roots and other complications from injuries, and [v]
              “doctor of chiropractic,” “D.C.,” or any derivative
                                                                    manipulation of the body to increase mobility due to the
              of those terms or initials in connection with the
              person's name.
                                                                    effects of degenerative disc disease and the aging process.
           TEX. OCC.CODE ANN. § 201.002(b) (Vernon                  These treatments are utilized by chiropractors and pain
           2004). The statute further provides the practice of      management physicians alike.
           chiropractic does not include incisive or surgical
           procedures, the prescription of controlled substances,   Additionally, chiropractors and pain management
           dangerous drugs, or any other drug that requires a       physicians use similar methods to evaluate patients and
           prescription, or the use of x-ray therapy or therapy     determine whether to refer them to a specialist for surgical
           that exposes the body to radioactive materials. TEX.     consultation. For example, during massage therapy, I often
           OCC.CODE ANN. § 201.002(c).                              become aware of other additional needs in connection with
In his report, Dr. Saqer states the following with regard to his    pain management. Some of the methodology indicates an
qualifications:                                                     absence of pain in certain manipulations of the human body
                                                                    which further delineates the nature and extent of the injury.
    As a practicing medical doctor specializing in anesthesia       By performing pain management methods, either by way
    and pain management, I know the accepted standard of            of injection, manipulation, or massage, I am able to further
    care required of chiropractors practicing under the same        isolate the cause of the injury and then concentrate on
    or similar circumstances as was Chiropractor Edward F.          alleviation of the pain by non-surgically treating the area
    Group during the past seven years. As a pain specialist,        of the injury which is causing the pain in the arm and the
    I treat patients with all types of pain, including be [sic]     hand or by referring for surgical intervention, if needed.
    related to work, motor vehicle accident, arthritis, cancer
    pain, or post-surgical pain. I treat on average more than       A chiropractor, though he cannot do or perform injections,
                                                                    utilizes similar methodology in making determinations as


                 © 2015 Thomson Reuters. No claim to original U.S. Government Works.                                          8
Group v. Vicento, 164 S.W.3d 724 (2005)


                                                                     74.402(b)(3). To determine whether an expert is qualified
  to the cause of pain. It is ... during that determination/
                                                                     “on the basis of training or experience,” subsection (c) of the
  diagnostic period that a chiropractor should become aware
                                                                     statute instructs courts to consider whether the expert “(1)
  of the need to send that patient for further and additional
                                                                     is certified by a licensing agency of one or more states of
  medical care and treatment that is more sophisticated than
                                                                     the United States or a national professional certifying agency,
  he either legally or ethically can perform.
                                                                     or has other substantial training or experience in the area of
  I am qualified to do and perform many of the same things           health care relevant to the claim; and (2) is actively practicing
  that chiropractors are competent to do and perform, but            health care in rendering health care services relevant to the
  my level of expertise, by reason of my training, experience        claim.” TEX. CIV. PRAC. & REM.CODE ANN. § 74.402(c)
  and education, enables me to perform a magnitude of                (1)-(2) (emphasis added).
  other procedures that chiropractors cannot use. As a
  pain management physician I work closely together with             Dr. Saqer states in his report that he has experience in the area
  chiropractors; I have supervised chiropractors, evaluated          of chiropractic, his “specialty overlaps and intertwines with
  patients of chiropractors, been assisted by chiropractors          chiropractic practice,” and 20% of his patients suffer from
  and taught chiropractors modern pain relief methodology.           injuries similar to Mr. Vicento's. In addition, Dr. Saqer states
  It is by reason of this overlapping area between                   he is a licensed physician practicing anesthesiology and pain
  chiropractic measures and pain management areas that I             management. Dr. Saqer satisfies subsection (c)(1).
  am qualified to testify regarding chiropractic procedures.
  Specifically, because determining when to refer a patient          With regard to subsection (c)(2), Group argues Dr. Saqer
  for neurosurgical consultation is common to both pain              does not satisfy this subsection because he is not “practicing
  management and chiropractic, I am qualified to testify as to       health care.” See TEX. CIV. PRAC. & REM.CODE ANN.
  the standard of care for referral of a patient to a specialized    § 74.402(c)(2). Subsection(c)(2) inquires whether the person
  spine surgeon.                                                     “is actively practicing health care in rendering health care
                                                                     services relevant to the claim.” Id. As discussed above with
 *734 We conclude, based on the foregoing, Dr. Saqer                 regard to subsection (b)(1), Dr. Saqer's expert report shows he
is “practicing health care” in a field of practice that              is actively practicing health care services relevant to Vicento's
involves the same type of care or treatment as chiropractor          claim. Thus, he satisfies subsection (c)(2).
Group. Accordingly, Dr. Saqer satisfies section 74.402(b)
(1)'s requirements.                                                  Having concluded Dr. Saqer satisfies both prongs of
                                                                     subsection (c), he, therefore, is qualified on the basis of
                                                                     training or experience under subsection (b)(3) to offer an
b. Section 74.402(b)(2)                                              expert opinion regarding accepted chiropractic standards of
Under section 74.402(b)(2), Dr. Saqer must have “knowledge           care.
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.” TEX. CIV. PRAC. & REM.CODE
ANN. § 74.402(b)(2). On appeal, Group does not specifically                                 CONCLUSION
argue Dr. Saqer does not satisfy subsection (b)(2). Dr. Saqer        Dr. Saqer satisfies the requirements of section 74.402(b)(1)-
explains in his report he has knowledge of the accepted              (3). Accordingly, we hold the trial court did not abuse its
standards of care for chiropractors for the diagnosis, care, and     discretion in denying Group's motion to dismiss Vicento's
treatment of the type of injury involved in this claim. Thus,        expert report and overrule appellant's sole issue.
Dr. Saqer satisfies section 74.402(b)(2).
                                                                     We affirm the trial court's order denying appellant's motion
                                                                     to dismiss.
c. Section 74.402(b)(3)
Finally, we examine whether Dr. Saqer satisfies the third
requirement set forth in section 74.402(b)(3), that he be
                                                                     All Citations
“qualified on the basis of training or experience to offer
an expert opinion regarding ... accepted standards of health         164 S.W.3d 724
care.” See TEX. CIV. PRAC. & REM.CODE ANN. §


                © 2015 Thomson Reuters. No claim to original U.S. Government Works.                                                9
Group v. Vicento, 164 S.W.3d 724 (2005)




End of Document                                     © 2015 Thomson Reuters. No claim to original U.S. Government Works.




              © 2015 Thomson Reuters. No claim to original U.S. Government Works.                                  10
Hillery v. Kyle, 371 S.W.3d 482 (2012)




                    371 S.W.3d 482                              West Headnotes (12)
                Court of Appeals of Texas,
                  Houston (1st Dist.).
                                                                [1]   Appeal and Error
       Robert HILLERY, M.D., and Southwest                               Rulings on Motions Relating to Pleadings
         Surgical Associates, P.A., Appellants,                       A trial court's ruling on a motion to dismiss a
                           v.                                         health care liability lawsuit based on adequacy of
     Suzette KYLE, Patrice Ward, Vicki, Kyle, and                     an expert report under the Medical Liability and
    Jamessee Kesee, individually and on behalf of                     Insurance Improvement Act is reviewed under
   the Estate of Melinda Kyle, Deceased, Appellees.                   an abuse of discretion standard; a trial court
                                                                      abuses its discretion if it acts in an arbitrary
       No. 01–11–00708–CV.          |    May 17, 2012.                or unreasonable manner without reference to
                                                                      guiding rules or principles, or if it clearly fails
Synopsis                                                              to analyze or apply the law correctly. V.T.C.A.,
Background: Surviving family members of patient who died              Civil Practice & Remedies Code § 74.351.
after suffering post-operative complications brought health
care liability claim against physician who performed below-           Cases that cite this headnote
knee amputation on patient's right leg. Physician moved
to dismiss suit, objecting to medical expert report on the
                                                                [2]   Health
ground that medical expert, who was a cardiologist, was
                                                                          Affidavits of merit or meritorious defense;
not qualified to opine on the standard of care applicable to
                                                                      expert affidavits
physician, a general surgeon. The 240th District Court, Fort
                                                                      In reviewing whether an expert report complies
Bend County, Thomas R. Culver III, J., denied physician's
                                                                      with the Medical Liability and Insurance
motion to dismiss. Physician appealed.
                                                                      Improvement Act, courts evaluate whether the
                                                                      report represents a good-faith effort to comply
                                                                      with the statute; in making this evaluation, courts
Holdings: The Court of Appeals, Rebeca Huddle, J., held               must look only at the information contained
that:                                                                 within the four corners of the report. V.T.C.A.,
                                                                      Civil Practice & Remedies Code § 74.351.
[1] medical expert who was a cardiologist was qualified to
opine on the standard of care applicable to physician who was         2 Cases that cite this headnote
a general surgeon;
                                                                [3]   Health
[2] physician waived for appellate review issue as to whether             Affidavits of merit or meritorious defense;
patient's medical expert report was insufficient with respect         expert affidavits
to elements of standard of care and breach; and
                                                                      Medical expert who was a cardiologist was
                                                                      qualified to opine on the standard of care
[3] report provided a fair summary of the causal relationship
                                                                      applicable to physician, who was a general
between physician's alleged failure to administer post-
                                                                      surgeon, for purposes of satisfying requirements
operative medication and patient's development of blood clots
                                                                      of medical expert report pursuant to Medical
and pulmonary emboli.
                                                                      Liability and Insurance Improvement Act, in
                                                                      medical malpractice action involving a patient
Affirmed.                                                             who died following amputation of leg; expert's
                                                                      report and curriculum vitae demonstrated his
                                                                      knowledge and experience treating patients in
                                                                      circumstances similar to those that formed
                                                                      the basis of the allegations in instant claim,



               © 2015 Thomson Reuters. No claim to original U.S. Government Works.                                          1
Hillery v. Kyle, 371 S.W.3d 482 (2012)


        which specifically involved the alleged failure
        to properly anti-coagulate patient following the             4 Cases that cite this headnote
        surgery. V.T.C.A., Civil Practice & Remedies
        Code § 74.351(r)(5)(A).                               [7]    Health
                                                                         Affidavits of merit or meritorious defense;
        1 Cases that cite this headnote
                                                                     expert affidavits
                                                                     In a health care liability action, the medical
 [4]    Health                                                       expert must, in his report, explain the basis of
            Affidavits of merit or meritorious defense;              his statements to link his conclusions to the facts.
        expert affidavits                                            V.T.C.A., Civil Practice & Remedies Code §
        Although the medical expert report necessary to              74.351.
        support a health care liability claim need not
        marshal all the plaintiff's proof, it must include           Cases that cite this headnote
        the expert's opinions on the three statutory
        elements of standard of care, breach, and             [8]    Health
        causation. V.T.C.A., Civil Practice & Remedies                   Affidavits of merit or meritorious defense;
        Code § 74.351.                                               expert affidavits

        Cases that cite this headnote                                In assessing the sufficiency of a medical expert
                                                                     report in a health care liability action, the
                                                                     trial court may not draw any inferences, and
 [5]    Health                                                       instead must rely exclusively on the information
            Affidavits of merit or meritorious defense;              contained within the report's four corners.
        expert affidavits                                            V.T.C.A., Civil Practice & Remedies Code §
        In detailing the three statutory elements of                 74.351.
        standard of care, breach, and causation., the
        medical expert report necessary to support a                 1 Cases that cite this headnote
        health care liability claim must provide enough
        information to fulfill two purposes: first, it must   [9]    Appeal and Error
        inform the defendant of the specific conduct the                Objections to evidence and witnesses
        plaintiff has called into question, and, second,
                                                                     Physician waived for appellate review issue as
        it must provide a basis for the trial court to
                                                                     to whether patient's medical expert report was
        conclude that the claims have merit. V.T.C.A.,
                                                                     insufficient with respect to elements of standard
        Civil Practice & Remedies Code § 74.351.
                                                                     of care and breach, in health care liability
        1 Cases that cite this headnote                              action, where, at trial, physician objected only
                                                                     on grounds that the report was conclusory
                                                                     concerning the element of causation. V.T.C.A.,
 [6]    Health                                                       Civil Practice & Remedies Code § 74.351.
            Affidavits of merit or meritorious defense;
        expert affidavits                                            Cases that cite this headnote
        A medical expert report that merely states
        the expert's conclusions as to the standard of        [10]   Health
        care, breach, and causation does not fulfill the                 Affidavits of merit or meritorious defense;
        purposes of an expert report in a health care                expert affidavits
        liability case, which is to inform the defendant of
                                                                     Medical expert's report provided a fair summary
        the specific conduct the plaintiff has called into
                                                                     of the causal relationship between physician's
        question and provide a basis for the trial court to
                                                                     alleged failure to administer post-operative
        conclude that the claims have merit. V.T.C.A.,
                                                                     medication and patient's development of blood
        Civil Practice & Remedies Code § 74.351.
                                                                     clots and pulmonary emboli, which resulted in


               © 2015 Thomson Reuters. No claim to original U.S. Government Works.                                          2
Hillery v. Kyle, 371 S.W.3d 482 (2012)


        patient's death, and thus, report was sufficient
        to support health care liability claim; report        Panel consists of Chief Justice RADACK and Justices
        explained how formation of clots caused               JENNINGS and HUDDLE.
        inadequate oxygenation, respiratory arrest, and
        brain injury, report described and explained
        risk factors for developing clots and pulmonary                             *485 OPINION
        emboli, many of which existed in patient's case,
                                                              REBECA HUDDLE, Justice.
        predisposing her to their development, including
        a trauma in the form of a surgical amputation         Robert Hillery, M.D. and Southwest Surgical Associates,
        of patient's leg below the knee. V.T.C.A., Civil      P.A. bring this interlocutory appeal challenging the trial
        Practice & Remedies Code § 74.351(r)(6).              court's denial of their motion to dismiss a health care
                                                              liability claim. See TEX. CIV. PRAC. & REM.CODE ANN.
        Cases that cite this headnote
                                                              § 51.014(a)(9) (West Supp.2011). Suzette Kyle, Patrice
                                                              Ward, Vicki, Kyle, and Jamessee Kesee, individually and on
 [11]   Health                                                behalf of the Estate of Melinda Kyle, deceased (collectively,
            Affidavits of merit or meritorious defense;       “the Kyles”), brought a health care liability claim against
        expert affidavits                                     Hillery and Southwest, among other defendants, asserting that
        To support a health care liability claim, an expert   negligence in their care and treatment of Melinda Kyle caused
        cannot merely state in a medical expert report        her death. After the Kyles served an expert report as required
        his conclusions or provide insight about the          by section 74.351 of the Texas Civil Practice and Remedies
        plaintiffs' claims, but must instead explain the      Code, Hillery and Southwest (collectively, “Hillery”) moved
        basis of his statements to link his conclusions to    to dismiss under section 74.351, contending the report
        the facts. V.T.C.A., Civil Practice & Remedies        is inadequate. See TEX. CIV. PRAC. & REM.CODE §
        Code § 74.351(r)(6).                                  74.351(a) (West 2011). The trial court denied the motion to
                                                              dismiss, and, on appeal, Hillery contends the trial court erred
        Cases that cite this headnote                         because Dr. Goldman, the Kyles' expert, is not qualified and
                                                              because the report is inadequate concerning causation. We
 [12]   Health                                                affirm.
            Affidavits of merit or meritorious defense;
        expert affidavits
        In explaining causation to support health care                                Background
        liability claim, the expert report must explain
        how the physician's conduct caused the plaintiff's    On September 15, 2008, Melinda Kyle was admitted to
        injuries. V.T.C.A., Civil Practice & Remedies         Oak Bend Medical Center with a gangrenous right toe.
        Code § 74.351(r)(6).                                  Melinda was sixty-nine years old with a history of diabetes,
                                                              hypertension, coronary artery disease, and peripheral vascular
        Cases that cite this headnote                         disease. She also took blood-thinning medication to prevent
                                                              clotting.

                                                              Melinda's attending doctor was Dr. Mark Murray. Shortly
Attorneys and Law Firms                                       after being admitted, Melinda had a stent placed in her
                                                              leg to try to restore blood flow to her foot. She also saw
*484 Divya Reddy Chundru, Harris, Hilburn & Sherer,           a cardiologist, Dr. James McClamroch, on September 17.
Houston, TX, for Appellants.                                  The procedure did not restore blood flow to Melinda's foot,
                                                              and, on September 22, 2008, Dr. Uttam Tripathy, a vascular
Monica C. Vaughan, Houssiere, Durant & Houssiere, L.L.P.,
                                                              surgeon performed a bypass graft. Although it is unclear
Houston, TX, for Appellees.
                                                              when, at some point, Melinda was placed on a Heparin drip to
                                                              prevent clotting. Dr. Tripathy ordered that the Heparin drip be




               © 2015 Thomson Reuters. No claim to original U.S. Government Works.                                        3
Hillery v. Kyle, 371 S.W.3d 482 (2012)


discontinued one hour before surgery and resumed four hours
after surgery.
                                                                                       Standard of Review

The bypass graft was not successful. Accordingly, Hillery, a        [1]    [2] We review a trial court's ruling on a motion to
general surgeon, was consulted. He performed a below knee          dismiss a health care liability lawsuit pursuant to Chapter
amputation on Melinda's right leg on September 24, 2008.           74 of the Texas Civil Practice and Remedies Code under
Hillery ordered the Heparin drip discontinued before surgery.      an abuse of discretion standard. See Am. Transitional Care
After the surgery was completed, the Heparin drip was not          Ctrs. of Tex., Inc. v. Palacios, 46 S.W.3d 873, 875 (Tex.2001)
resumed.                                                           (reviewing dismissal under predecessor statute, section 13(e)
                                                                   of article 4590i); Runcie v. Foley, 274 S.W.3d 232, 233
Melinda was monitored in the intensive care unit after the         (Tex.App.-Houston [1st Dist.] 2008, no pet.). A trial court
amputation. On September 25, while Melinda was still in the        abuses its discretion if it acts in an arbitrary or unreasonable
ICU, testing by Dr. McClamroch and Dr. Tripathy showed             manner without reference to guiding rules or principles,
inadequate anti-coagulation. On September 26, Melinda              or if it clearly fails to analyze or apply the law correctly.
was extubated. A test performed that day again showed              Runcie, 274 S.W.3d at 232. In reviewing whether an expert
inadequate anti-coagulation. On September 29, 2008, despite        report complies with Chapter 74, we evaluate whether the
a still inadequate level of anti-coagulation, Dr. McClamroch       report “represents a good-faith effort” to comply with the
approved Melinda's transfer out of ICU. Dr. Tripathy also          statute. Strom v. Mem'l Hermann Hosp. Sys., 110 S.W.3d
examined Melinda and ordered her transfer. Dr. Murray also         216, 221 (Tex.App.-Houston [1st Dist.] 2003, pet. denied). In
ordered Melinda's transfer. Approximately one hour after her       making this evaluation, we must look only at the information
transfer, a nurse found Melinda lethargic and unresponsive.        contained within the four corners of the report. Bowie Mem'l
Melinda was resuscitated and reintubated. However, she had         Hosp. v. Wright, 79 S.W.3d 48, 53 (Tex.2002).
suffered anoxic encephalopathy—brain damage caused by
lack of oxygen.

Melinda was transferred back to the ICU. At that time,                                     Qualifications
she was placed back on the Heparin drip. Dr. McClamroch             [3] In his first issue, Hillery contends that the trial court
ordered a test that showed myocardial infarction was not the       abused its discretion in not dismissing the Kyles' claim
cause of Melinda's respiratory arrest. Further testing indicated   because Dr. Goldman is not qualified to offer an opinion
that there was no significant blood *486 flow to the brain.        concerning the standard of care in this claim.
Melinda was declared brain dead. She was extubated on
October 6, 2008. Melinda was transferred for hospice care          Section 74.351(r)(5)(A) requires that an expert opining on
where she remained until she died on October 12, 2008.             “whether a physician departed from accepted standards of
                                                                   medical care” meet the qualifications set forth in section
The Kyles brought this health care liability claim against         74.401. TEX. CIV. PRAC. & REM.CODE ANN. § 74.351(r)
Dr. Tripathy, Dr. Murray, Dr. McClamroch, Hillery, and             (5)(A) (West 2011). Section 74.401(a) provides:
the professional associations with which each doctor was
associated. As required by statute, the Kyles filed an expert        (a) In a suit involving a health care liability claim against a
report by Dr. Stephen Goldman. Hillery moved to dismiss the             physician for injury to or death of a patient, a person may
Kyles' suit against him, objecting to the report on the ground          qualify as an expert witness on the issue of whether the
that Dr. Goldman, who is a cardiologist, is not qualified to            physician departed from accepted standards of medical
opine on the standard of care applicable to Hillery, a general          care only if the person is a physician who:
surgeon. Hillery also objected that Dr. Goldman's opinion is
conclusory because it does not link the facts of the case to his        (1) is practicing medicine at the time such testimony is
conclusion that Hillery's breach of the standard of care caused            given or was practicing medicine at the time the claim
Melinda's death. The trial court denied the motion to dismiss              arose;
and Hillery appealed.
                                                                        (2) has knowledge of accepted standards of medical care
                                                                           for the diagnosis, care, or treatment of the illness,
                                                                           injury, or condition involved in the claim; and


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Hillery v. Kyle, 371 S.W.3d 482 (2012)


                                                                    at 558 (noting focus is not on defendant doctor's area of
     (3) is qualified on the basis of training or experience        expertise, but on the condition involved in the claim). The
        to offer an expert opinion regarding those accepted         mere fact that Dr. Goldman is not a general surgeon, therefore,
        standards of medical care.                                  does not necessarily render him unqualified.
TEX. CIV. PRAC. & REM.CODE ANN. § 74.401(a) (West
                                                                    In his report, Dr. Goldman states that he is familiar with the
2011). Section 74.401 continues:
                                                                    standards of care relevant to the condition involved in this
   *487 (c) In determining whether a witness is qualified           claim. Specifically, Dr. Goldman states that, as part of his
    on the basis of training or experience, the court shall         practice, he treats, and has diagnosed and treated, “patients
    consider whether, at the time the claim arose or at the         with conditions similar to those experienced by Melinda
    time the testimony is given, the witness:                       Kyle including coronary artery disease, hypertension,
                                                                    hyperlipidemia, diabetes, and peripheral vascular disease.”
     (1) is board certified or has other substantial training or    He also states that
        experience in an area of medical practice relevant to
        the claim; and                                                          [T]here is considerable overlap in my
                                                                                specialty and that of physicians caring
     (2) is actively practicing medicine in rendering medical                   for patients in a critical care setting
        care services relevant to the claim.                                    including pulmonology, vascular
                                                                                disease and internal medicine. My area
TEX. CIV. PRAC. & REM.CODE ANN. § 74.401(c).                                    of specialties overlaps the physicians
                                                                                involved in the care of Melinda
The first requirement set forth in section 74.401(a) is that Dr.                Kyle in the diagnosis, treatment
Goldman “is practicing medicine at the time such testimony                      and management of patients with
is given or was practicing medicine at the time the claim                       stents.... By virtue of my education,
arose.” TEX. CIV. PRAC. & REM.CODE ANN. § 74.401(a)                             training and experience, I am well
(1). Hillery does not challenge this requirement.                               familiar with the standards of care
                                                                                applicable to the diagnosis and
The second and third requirements of section 74.401(a) are                      treatment of patients like Melinda
that Dr. Goldman have “knowledge of accepted standards                          Kyle with a history of coronary artery
of medical care for the diagnosis, care, or treatment of the                    disease, hypertension, hyperlipidemia,
illness, injury, or condition involved in the claim” and be                     diabetes and peripheral vascular
“qualified on the basis of training or experience to offer an                   disease who have undergone surgery.
expert opinion regarding those accepted standards of medical
care.” Id. § 74.401(a)(2), (3). These are the requirements
                                                                    Dr. Goldman also explains the basics of the cardiovascular
Hillery contends Dr. Goldman fails to meet.
                                                                    system and how blood clots in the legs may develop. The risk
                                                                    of *488 clots is “significantly increased in patients who have
Specifically, Hillery argues that Dr. Goldman is not qualified
                                                                    suffered a trauma in the lower extremities such as would occur
because he is a cardiologist who is board certified in
                                                                    during a surgical procedure.” He further elaborates,
cardiovascular disease and internal medicine, but nothing
in his report or curriculum vitae shows that he is qualified                    The risk of pulmonary embolism and
to opine on the area of general surgery or below-knee                           thrombotic complications following
amputation, the medical care provided by Hillery in this case.                  surgery or immobilization has been
An expert need not be practicing in the same field as a                         well-known for decades. It is well
defendant in a health care liability claim in order to qualify as               established that patients who are
an expert. Rittger v. Danos, 332 S.W.3d 550, 558 (Tex.App.-                     unable to move well, who are
Houston [1st Dist.] 2009, no pet.); Blan v. Ali, 7 S.W.3d                       obese or bedridden, and therefore
741, 745 (Tex.App.-Houston [14th Dist.] 1999, no pet.).                         have markedly decreased movement
Rather the statute requires that the expert have knowledge                      in their legs and bodies, should
of the condition involved in the claim. TEX. CIV. PRAC.                         be given some type of thrombo-
& REM.CODE ANN. § 74.401(a)(2); Rittger, 332 S.W.3d                             embolism prophylaxis. .... It has been


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Hillery v. Kyle, 371 S.W.3d 482 (2012)


             well established that administration
             of anticoagulant medications like                      Because Dr. Goldman's report and curriculum vitae
             Heparin can prevent clots from                         demonstrate his knowledge and experience treating patients
             forming thereby preventing the                         in circumstances similar to those that form the basis
             development of pulmonary emboli.                       of the allegations in this claim, the trial court did not
                                                                    abuse its discretion in finding Dr. Goldman qualified. See
Within the section of his report dealing with Hillery's alleged     TEX. CIV. PRAC. & REM.CODE ANN. § 74.401(a)(2);
breach of the standard of care, Dr. Goldman also states,            Rittger, 332 S.W.3d at 558 (neurologist qualified to provide
                                                                    expert opinion on standard of care or breach thereof by
             The standard of care required Robert                   emergency room physician where prospective medical expert
             Hillery, M.D., the general surgeon                     had practical knowledge of what is usually and customarily
             attending to Ms. Kyle, to ensure                       done by practitioners under similar circumstances); see also
             that proper anticoagulation occurred                   Barber v. Mercer, 303 S.W.3d 786, 795 (Tex.App.-Fort
             following surgery. The standard of                     Worth 2009, no pet.) (holding anesthesiologist qualified to
             care required Dr. Hillery to order                     opine on conduct of surgeon in health care liability claim
             administration of Heparin for Mrs.                     because anesthesiologist's report tied his education, training,
             Kyle to prevent the formation of                       and experience to *489 the specific alleged breach—the
             pulmonary embolism and thrombotic                      positioning and padding of a patient during surgery, not the
             complications. This standard applies                   conduct of the actual operating techniques); Blan, 7 S.W.3d
             to all of the healthcare providers                     at 746 (condition involved in claim was stroke, therefore,
             involved in the care of Mrs. Kyle                      neurologist qualified as expert although defendants were
             as the need for administration [of]                    emergency room physician and cardiologist).
             Heparin to anti-coagulate a patient
             following surgery involving the hip,
             leg or lower extremities is well known
                                                                                        Adequacy of Report
             among physicians practicing surgery,
             cardiology and internal medicine.                      In his second issue, Hillery contends that Dr. Goldman “fails
                                                                    to adequately set forth the standard of care, breach of the
Furthermore, as stated above, the statute setting forth the         standard of care, and the causal relationship between the
qualifications required of an expert does not focus on the          breach and injury” as required by section 74.351 of the Texas
defendant's specialty but on the condition involved in the          Civil Practice and Remedies Code. See TEX. CIV. PRAC. &
claim. See TEX. CIV. PRAC. & REM.CODE ANN. §                        REM.CODE ANN. § 74.351(a).
74.401(a)(2); Rittger, 332 S.W.3d at 558. Hillery asserts
that he was “consulted solely regarding amputation” and not
to provide any other care. However, in this case, Hillery's         A. Chapter 74 expert report requirements
conduct related to the amputation or general surgery is not the     Pursuant to section 74.351, medical-malpractice plaintiffs
basis of the Kyles' claim. Rather, the basis of the claim and the   must provide each defendant physician and health care
focus of Dr. Goldman's report is the failure to properly anti-      provider with an expert report. TEX. CIV. PRAC. &
coagulate Melinda following the surgery. The Kyles alleged          REM.CODE § 74.351(a). If a claimant timely furnishes an
that Hillery and the other defendants were negligent by failing     expert report, a defendant may file a motion challenging the
to “properly diagnose and prescribe necessary medications           report's adequacy. Id. The trial court shall grant the motion
to Melinda Kyle,” “anticoagulate Melinda Kyle,” “properly           only if it appears, after hearing, that the report does not
recognize and diagnose the condition of Melinda Kyle,               represent an objective good faith effort to comply with the
deceased, including, but not limited to hypercoaguable state,”      statutory definition of an expert report. See id. § 74.351(l ).
and “properly and timely treat Melinda Kyle.” Hillery does          The statute defines an expert report as a written report by an
not assert that Dr. Goldman, who is board-certified in              expert that provides, as to each defendant, a fair summary of
cardiovascular diseases and internal medicine, is not qualified     the expert's opinions, as of the date of the report, regarding:
to offer an opinion on the standard of care relating to the need    (1) the applicable standards of care; (2) the manner in which
to administer anti-coagulation medication following surgery.        the care rendered failed to meet the standards; and (3) the



                © 2015 Thomson Reuters. No claim to original U.S. Government Works.                                             6
Hillery v. Kyle, 371 S.W.3d 482 (2012)


causal relationship between that failure and the injury, harm,  not mention the elements of standard of care or breach, we do
or damages claimed. See id. § 74.351(r)(6); Gray v. CHCA        not address that portion of Hillery's issue concerning standard
Bayshore, L.P., 189 S.W.3d 855, 858–59 (Tex.App.-Houston        of care and breach. See TEX.R.APP. P. 33.1(a); Hawkins
[1st Dist.] 2006, no pet.).                                     v. Herrera, 296 S.W.3d 366, 370 (Tex.App.-Houston [14th
                                                                Dist.] 2009, no pet.) (refusing to address objections by
 [4]      [5]    [6]     [7]   [8] Although the report need not defendant physician who did not raise objections in trial
marshal all the plaintiff's proof, it must include the expert's court); see also Plemons v. Harris, No. 02–08–00326–CV,
opinions on the three statutory elements—standard of care,      2009 WL 51290, *3 (Tex.App.-Fort Worth Jan. 8, 2009, no
breach, and causation. See Palacios, 46 S.W.3d at 878; Gray,    pet.) (mem. op.) (holding objection to expert report made in
189 S.W.3d at 859. In detailing these elements, the report      trial court must comport with complaint asserted on appeal);
must provide enough information to fulfill two purposes:        Williams v. Mora, 264 S.W.3d 888, 891(Tex.App.-Waco
first, it must inform the defendant of the specific conduct     2008, no pet.) (holding that when defendant's only timely
the plaintiff has called into question, and, second, it must    filed objections to expert report were that two statements were
provide a basis for the trial court to conclude that the claims speculative, defendant waived all other objections).
have merit. Scoresby v. Santillan, 346 S.W.3d 546, 556
(Tex.2011) (citing Palacios, 46 S.W.3d at 879). A report
that merely states the expert's conclusions as to the standard  C. Adequacy of report concerning causation
of care, breach, and causation does not fulfill these two        [10] [11] [12] As set forth above, Hillery's objection to
purposes. Id. “ ‘[T]he expert must explain the basis of his     the  adequacy of Dr. Goldman's report is that “Dr. Goldman
statements to link his conclusions to the facts.’ ” Wright,     fails to provide any factual support for his conclusion that
79 S.W.3d at 52 (quoting Earle v. Ratliff, 998 S.W.2d           Mrs. Kyle developed blood clots and pulmonary emboli that
882, 890 (Tex.1999)). Furthermore, in assessing the report's    were the cause of her respiratory arrest as a result of failure
sufficiency, the trial court may not draw any inferences, and   [t]o provide appropriate post operative drugs.” An expert
instead must rely exclusively on the information contained      report must include a fair summary of the causal relationship
within the report's four corners. See Scoresby, 346 S.W.3d at   between the defendant's failure to meet the appropriate
556 (citing Palacios, 46 S.W.3d at 878); Wright, 79 S.W.3d      standard of care and the injury, harm, or damages claimed.
at 53.                                                          TEX. CIV. PRAC. & REM.CODE ANN. § 74.351(r)(6).
                                                                An expert cannot merely state his conclusions or “provide
                                                                insight” about the plaintiffs' claims, but must instead “explain
B. Hillery's objection                                          the basis of his statements to link his conclusions to the
 [9] Hillery's objection to Dr. Goldman's report in the trial facts.” Wright, 79 S.W.3d at 52. In explaining causation, the
court stated, in its entirety:                                  report must explain how the physician's conduct caused the
                                                                plaintiff's injuries. Id. at 53.
              Dr. Goldman's report is inadequate
              because it is conclusory and fails                Dr. Goldman's report concerning causation is not conclusory.
              to provide any factual support                    As discussed above, Dr. Goldman explains the functioning
              for the opinion expressed within.                 of the cardiovascular system, including how decreased
              Dr. Goldman states that myocardial                physical movement causes a patient to be more prone to
              infarction was ruled out as the cause             clotting, and how formation of clots causes inadequate
              of Mrs. Kyle's arrest. However, Dr.               oxygenation, respiratory arrest, and brain injury. He also
              Goldman fails to provide any factual              describes and explains the risk factors for developing clots
              support for his conclusion that Mrs.              and pulmonary emboli, many of which existed in Melinda's
              Kyle developed blood clots and *490               case, predisposing her to their development:
              pulmonary emboli that were the cause
              of her respiratory arrest as a result of                         Melinda Kyle had multiple risk
              failure [t]o provide appropriate post                            factors that predisposed her to
              operative drugs.                                                 the development of blood clots
                                                                               and pulmonary emboli. Ms. Kyle
Because Hillery objected only on the grounds that the report                   was obese, had heart disease,
was conclusory concerning the element of causation, and did                    peripheral vascular disease and was


               © 2015 Thomson Reuters. No claim to original U.S. Government Works.                                       7
Hillery v. Kyle, 371 S.W.3d 482 (2012)


            immobile. Ms. Kyle had also just                       risk factors that placed her at an
            undergone a below knee amputation,                     even greater risk for the development
            a procedure that is in itself a risk                   of pulmonary emboli, administration
            factor for development of pulmonary                    of Heparin was essential to prevent
            emboli. Ms. Kyle should have been                      formation of blood clots. By failing to
            placed back upon Heparin following                     order the Heparin resumed and failing
            this surgery. In reasonable medical                    to ensure that Ms. Kyle was receiving
            probability, had the Heparin drop                      Heparin following her surgery, Dr.
            been resumed for Ms. Kyle following                    Hillery breached and violated the
            her amputation surgery, she would                      standard of care. In reasonable medical
            not have developed the blood clots                     probability, if Dr. Hillery had met
            and pulmonary emboli that were,                        the standard of care and ordered
            in all probability, the cause of her                   Heparin following surgery, Heparin
            respiratory arrest on September 29,                    would have been resumed in Ms. Kyle
            2008. Ms. Kyle would not have                          and she would not have developed
            suffered the respiratory arrest on                     the pulmonary emboli that caused her
            September 29, 2008 if Heparin had                      respiratory arrest and anoxic brain
            been reinstituted and would not have                   injury and she would have survived her
            sustained the anoxic brain injury                      hospitalization.
            caused by her arrest.
                                                       In the “Conclusion” section of the report, Dr. Goldman
Concerning Hillery's conduct, Dr. Goldman states:      summarizes:

            The standard of care required Robert                   Ms. Kyle had several strong and
            Hillery, M.D., the general surgeon                     obvious risk factors for pulmonary
            attending to Ms. Kyle, to ensure                       emboli yet she was not placed back
            that *491 proper anticoagulation                       on Heparin following her below
            occurred following surgery. The                        knee amputation. This was below
            standard of care required Dr. Hillery                  the standard of care for all of the
            to order administration of Heparin for                 physicians attending to Ms. Kyle. The
            Ms. Kyle to prevent the formation of                   failure to resume Heparin following
            pulmonary embolism and thrombotic                      her surgery, in reasonable medical
            complications. This standard applies                   probability, caused the formation of
            to all of the health care providers                    blood clots that blocked the flow of
            involved in the care of Ms. Kyle as                    oxygen and caused her to suffer a
            the need for administration Heparin                    respiratory arrest on September 29,
            to anti-coagulate a patient following                  2008.
            surgery involving the hip, leg or
            lower extremities is well known            Dr. Goldman does more than just state his conclusions or
            among physicians practicing surgery,       provide insight regarding the Kyle's claims. See Wright, 79
            cardiology and internal medicine. Ms.      S.W.3d at 52. He explains the medical causes of the formation
            Kyle was a patient with multiple           of clots, including conditions that increase the risk, and that
            risk factors for the development of        these risks are well-known. He identifies Melinda as having
            pulmonary emboli notably including         several of these risk factors, including a trauma in the form
            surgery on the leg which is                of a surgical amputation of her leg below the knee. He
            itself a risk factor sufficient to         explains that treatment using a drug such as Heparin is well-
            warrant administration of Heparin          established to help prevent clots from forming and that the
            prophylactically following surgery.        standard of care required the defendants, including Hillery,
            For Ms. Kyle, a patient with multiple      to administer Heparin following surgery. He explains that



              © 2015 Thomson Reuters. No claim to original U.S. Government Works.                                  8
Hillery v. Kyle, 371 S.W.3d 482 (2012)


                                                                       multitude of causes for respiratory arrest for a 5–day
the test ordered by other defendants ruled out a myocardial
                                                                       postoperative patient.” To the extent this is an argument,
infarction. And, finally, he opines that the likely cause of
                                                                       distinct from the one discussed above, that Dr. Goldman did
Melinda's death was the development of blood clots and
                                                                       not rule out all possible causes of death, we overrule it. See
pulmonary emboli and that she would not have developed the
                                                                       Baylor Med. Ctr. at Waxahachie, Baylor Health Care Sys.
clots and pulmonary emboli had the Heparin been resumed
                                                                       v. Wallace, 278 S.W.3d 552, 562 (Tex.App.-Dallas 2009, no
following the amputation surgery. We conclude that this is
                                                                       pet.) (“Nothing in section 74.351 suggests the preliminary
a fair summary of the causal relationship between Hillery's
                                                                       report is required to rule out every possible cause of the
failure to meet the appropriate standard of care and the injury,
                                                                       injury, harm, or damages claimed, especially given that
harm, or damages claimed. See Manor Care Health Servs.,
                                                                       section 74.351(s) limits discovery before a medical expert's
Inc. v. Ragan, 187 S.W.3d 556, 564 (Tex.App.-Houston
                                                                       report is filed.”); see also Methodist Hosp. v. Shepherd–
[14th Dist.] 2006, pet. granted, judgment vacated w.r.m.)
                                                                       Sherman, 296 S.W.3d 193, 199 n. 2 (Tex.App.-Houston [14th
(concluding report adequate concerning causation where
                                                                       Dist.] 2009, no pet.) (whether expert's opinion is correct or
report stated that administration of anticoagulant medication
                                                                       not is issue for summary judgment, not Chapter 74 motion
was necessary to prevent pulmonary emboli and that as
                                                                       to dismiss); Manor Care Health Servs., Inc., 187 S.W.3d
result of failure to administer drugs patient probably suffered
                                                                       at 564 (report stating failure to administer anticoagulant
pulmonary emboli and consequently died); cf. *492 Shenoy
                                                                       drugs probably caused pulmonary emboli that caused death
v. Jean, No. 01–10–01116–CV, 2011 WL 6938538, at *7
                                                                       sufficient statement of causation).
(Tex.App.-Houston [1st Dist.] Dec. 29, 2011, no pet. h.)
(mem op.) (holding report inadequate concerning causation
because it failed to link decedent's pre-existing conditions to
an increased risk for the injury involved in that claim).                                       Conclusion

In his appellate brief, Hillery also argues that Dr. Goldman's         We affirm the order of the trial court.
opinion is speculative because he “fails to offer any factual
data, clinical, radiological and the like[,] to support his
                                                                       All Citations
assumption that blood clots and pulmonary emboli formed
which caused Ms. Kyle's respiratory arrest. There are a                371 S.W.3d 482

End of Document                                                    © 2015 Thomson Reuters. No claim to original U.S. Government Works.




                © 2015 Thomson Reuters. No claim to original U.S. Government Works.                                                 9
Jelinek v. Casas, 328 S.W.3d 526 (2010)
54 Tex. Sup. Ct. J. 272



                     328 S.W.3d 526                              West Headnotes (23)
                 Supreme Court of Texas.

       Michael T. JELINEK, M.D. and Columbia                     [1]   Health
         Rio Grande Healthcare, L.P. d/b/a Rio                             Proximate Cause
         Grande Regional Hospital, Petitioners,                        At a trial concerning a medical malpractice
                           v.                                          claim, the plaintiff must establish two causal
       Francisco CASAS and Alfredo DeLeon, Jr.,                        nexuses in order to be entitled to recovery: (1)
        as Personal Representatives of the Estate                      a causal nexus between the defendant's conduct
        of Eloisa Casas, Deceased, Respondents.                        and the event sued upon; and (2) a causal nexus
                                                                       between the event sued upon and the plaintiff's
              No. 08–1066. | Argued Feb.                               injuries.
          18, 2010. | Decided Dec. 3, 2010.
                                                                       6 Cases that cite this headnote
Synopsis
Background: Patient's surviving family members brought           [2]   Appeal and Error
medical malpractice action against hospital and physician,                Total failure of proof
arising out of treatment of patient at hospital. Following
                                                                       In a legal sufficiency review, when the evidence
non-suiting of physician, and following jury trial, the
                                                                       offered to prove a vital fact is so weak as to do
275th District Court, Hidalgo County, Juan R. Partida, J.,
                                                                       no more than create a mere surmise or suspicion
entered judgment for family members. Hospital and physician
                                                                       of its existence, the evidence is no more than a
appealed. The Corpus Christi Court of Appeals, 2008 WL
                                                                       scintilla and, in legal effect, is no evidence.
2894889, affirmed. Hospital and physician petitioned for
review.                                                                30 Cases that cite this headnote


                                                                 [3]   Appeal and Error
Holdings: The Supreme Court, Guzman, J., held that:                       Total failure of proof
                                                                       In a legal sufficiency review, when the
[1] lay testimony of family members did not present
                                                                       circumstances are equally consistent with either
some evidence in support of finding that hospital's alleged
                                                                       of two facts, neither fact may be inferred.
negligence caused patient's additional pain and suffering;
                                                                       2 Cases that cite this headnote
[2] expert testimony did not present some evidence in support
of finding that hospital's alleged negligence caused patient's
                                                                 [4]   Appeal and Error
additional pain and suffering; and
                                                                          On conflicting evidence
[3] expert report was conclusory with regard to causation and,         In a legal sufficiency review, when the evidence
thus, was deficient.                                                   equally supports two alternatives, the Supreme
                                                                       Court must view each piece of circumstantial
                                                                       evidence, not in isolation, but in light of all the
Reversed and rendered in part; reversed and remanded in part.          known circumstances, and must consider not just
                                                                       favorable but all the circumstantial evidence, and
Jefferson, C.J., dissented in part, and filed opinion in which         competing inferences as well.
Green and Lehrmann, JJ., joined.
                                                                       Cases that cite this headnote
Lehrmann, J., filed opinion dissenting in part.
                                                                 [5]   Health



               © 2015 Thomson Reuters. No claim to original U.S. Government Works.                                           1
Jelinek v. Casas, 328 S.W.3d 526 (2010)
54 Tex. Sup. Ct. J. 272

             Proximate cause
                                                                     13 Cases that cite this headnote
        To meet the legal sufficiency standard in
        medical malpractice cases, plaintiffs are required
        to adduce evidence of a reasonable medical            [9]    Health
        probability, or reasonable probability, that their               Proximate Cause
        injuries were caused by the negligence of one or             Correlation does not necessarily imply
        more defendants, meaning simply that it is more              causation, for purposes of a medical malpractice
        likely than not that the ultimate harm or condition          action; evidence of an event followed closely
        resulted from such negligence.                               by manifestation of or treatment for conditions
                                                                     which did not appear before the event raises
        18 Cases that cite this headnote
                                                                     suspicion that the event at issue caused the
                                                                     conditions, but suspicion has not been and is not
 [6]    Health                                                       legally sufficient to support a finding of legal
            Diagnosis and treatment of cancer                        causation.
        Lay testimony of patient's surviving husband
                                                                     4 Cases that cite this headnote
        and son regarding patient's discomfort while
        obtaining treatment for cancer in hospital did not
        present some evidence in support of finding that      [10]   Health
        hospital's alleged negligence caused patient's                   Gross or obvious negligence and matters of
        additional pain and suffering, in their medical              common knowledge
        malpractice action against hospital; testimony               Non-expert evidence alone is sufficient in a
        of husband and son raised no more than mere                  medical malpractice action to support a finding
        suspicion of causation, inasmuch as they were                of causation in limited circumstances where both
        unable to assert whether it was cancer, surgery,             the occurrence and conditions complained of are
        other infections, or lapse in medication that                such that the general experience and common
        caused such discomfort.                                      sense of laypersons are sufficient to evaluate
                                                                     the conditions and whether they were probably
        Cases that cite this headnote
                                                                     caused by the occurrence.

 [7]    Health                                                       9 Cases that cite this headnote
            Proximate cause
        Health                                                [11]   Evidence
            Gross or obvious negligence and matters of                   Cause and effect
        common knowledge                                             Evidence
        Lay testimony may be used as evidence of                         Conflict with other evidence
        causation in certain circumstances in medical                Health
        malpractice actions, but when expert testimony                   Infections and infectious diseases
        is required, lay evidence supporting liability is
                                                                     Expert testimony did not present some evidence
        legally insufficient.
                                                                     in support of finding that hospital's alleged
        8 Cases that cite this headnote                              negligence through lapse in medication caused
                                                                     patient's additional pain and suffering, in
                                                                     medical malpractice action by patient's surviving
 [8]    Health                                                       family members against hospital; competing
            Proximate cause                                          explanations existed for presence of negligence-
        A general rule in medical malpractice actions is             induced infection, and expert did not explain
        that expert testimony is necessary to establish              why presence of such infection was medically
        causation as to medical conditions outside the               more probable than competing explanations.
        common knowledge and experience of jurors.


               © 2015 Thomson Reuters. No claim to original U.S. Government Works.                                       2
Jelinek v. Casas, 328 S.W.3d 526 (2010)
54 Tex. Sup. Ct. J. 272

                                                                          Degree of proof
        3 Cases that cite this headnote
                                                                     Verdicts in a medical malpractice action must
                                                                     rest upon reasonable certainty of proof.
 [12]   Evidence
            Medical testimony                                        1 Cases that cite this headnote

        Trial
             Expert and other opinion evidence                [16]   Appeal and Error
        If no basis for the expert opinion in a medical                 Sufficiency of Evidence in Support
        malpractice action is offered, or the basis offered          Trial
        provides no support, the opinion is merely a                      Credibility of Witnesses
        conclusory statement and cannot be considered                Courts should not usurp the jury's role as
        probative evidence, regardless of whether there              fact finder, nor should they question the jury's
        is no objection; a claim will not stand or fall on           right to believe one witness over another; but
        the mere ipse dixit of a credentialed witness.               when reviewing a verdict for sufficiency of the
                                                                     evidence, courts need not, indeed, must not, defer
        10 Cases that cite this headnote
                                                                     to the jury's findings when those findings are not
                                                                     supported by credible evidence.
 [13]   Evidence
            Medical testimony                                        Cases that cite this headnote
        When the only evidence of a vital fact is
        circumstantial, an expert witness in a medical        [17]   Appeal and Error
        malpractice action cannot merely draw possible                  Total failure of proof
        inferences from the evidence and state that “in              When the evidence compels the jury to guess
        medical probability” the injury was caused by                if a vital fact exists, a reviewing court does not
        the defendant's negligence; rather, the expert               undermine the jury's role by sustaining a no-
        must explain why the inferences drawn are                    evidence challenge.
        medically preferable to competing inferences
        that are equally consistent with the known facts,            22 Cases that cite this headnote
        and thus, when the facts support several possible
        conclusions, only some of which establish that
                                                              [18]   Costs
        the defendant's negligence caused the plaintiff's
                                                                         Nature and Grounds of Right
        injury, the expert must explain to the fact
                                                                     Health
        finder why those conclusions are superior based
                                                                         Affidavits of merit or meritorious defense;
        on verifiable medical evidence, not simply the
                                                                     expert affidavits
        expert's opinion.
                                                                     Expert report was conclusory with regard to
        26 Cases that cite this headnote                             causation, and thus, was deficient, in medical
                                                                     malpractice action by patient's surviving family
 [14]   Health                                                       members against physician arising out of
            Proximate cause                                          treatment of patient, so as to entitle physician
                                                                     to award of attorney fees and costs in action;
        The proof in a medical malpractice action must
                                                                     report offered no more than bare assertion that
        establish causal connection beyond the point of
                                                                     physician's alleged breach resulted in increased
        conjecture; it must show more than a possibility.
                                                                     pain and suffering as well as prolonged hospital
        Cases that cite this headnote                                stay, but did not offer explanation of how breach
                                                                     caused injury. Vernon's Ann.Texas Civ.St. art.
                                                                     4590i, § 13.01(e) (Repealed).
 [15]   Health




               © 2015 Thomson Reuters. No claim to original U.S. Government Works.                                        3
Jelinek v. Casas, 328 S.W.3d 526 (2010)
54 Tex. Sup. Ct. J. 272


        10 Cases that cite this headnote                                 39 Cases that cite this headnote


 [19]   Health                                                    [22]   Appeal and Error
            Affidavits of merit or meritorious defense;                     Rulings on Motions Relating to Pleadings
        expert affidavits                                                The Supreme Court reviews the trial court's grant
        If a plaintiff in a medical malpractice action                   or denial of a motion for sanctions and dismissal
        timely files an expert report and the defendant                  of a medical malpractice action on the ground
        moves to dismiss because of the report's                         of a deficient expert report under the abuse-of-
        inadequacy, the trial court must grant the motion                discretion standard. Vernon's Ann.Texas Civ.St.
        only if it appears to the court, after a hearing, that           art. 4590i, § 13.01(e) (Repealed).
        the report does not represent a good faith effort
        to comply with the definition of an expert report                5 Cases that cite this headnote
        in the governing statute. Vernon's Ann.Texas
        Civ.St. art. 4590i, § 13.01(l ), (r)(6) (Repealed).       [23]   Appeal and Error
                                                                            Abuse of discretion
        20 Cases that cite this headnote
                                                                         A district court abuses its discretion if it acts
                                                                         in an arbitrary or unreasonable manner without
 [20]   Health                                                           reference to any guiding rules or principles.
            Affidavits of merit or meritorious defense;
        expert affidavits                                                30 Cases that cite this headnote
        All information needed for an inquiry into
        whether a good-faith effort was made to comply
        with expert report requirements in the governing
        statute is found within the four corners of the          Attorneys and Law Firms
        expert report, which need not marshal all the
                                                                 *529 Ronald G. Hole, Ida Cecilia Garza, Hole & Alvarez,
        plaintiff's proof, but must include the expert's
                                                                 L.L.P., McAllen, for Michael T. Jelinek, M.D.
        opinion on each of the three main elements:
        standard of care, breach, and causation. Vernon's        John N. Mastin, San Antonio, Francisco J. Rodriguez,
        Ann.Texas Civ.St. art. 4590i, § 13.01(l ), (r)(6)        Rodriguez Tovar & Lopez, LLP, McAllen, for Francisco
        (Repealed).                                              Casas.
        19 Cases that cite this headnote                         Mike A. Hatchell, Sarah B. Duncan, Elissa Gail Underwood,
                                                                 Locke Lord Bissell & Liddell, LLP, Austin, Raul Javier
 [21]   Health                                                   Guerra, Green, DuBois & Guerra, San Antonio, Susan A.
            Affidavits of merit or meritorious defense;          Kidwell, Locke Lord Bissell & Liddell, LLP, Austin, for
        expert affidavits                                        Columbia Rio Grande Healthcare, L.P.
        An expert report in a medical malpractice action
                                                                 Opinion
        cannot merely state the expert's conclusions
        about the elements of standard of care, breach,          Justice GUZMAN delivered the opinion of the Court, in
        and causation, but must explain the basis of the         which Justice HECHT, Justice WAINWRIGHT, Justice
        statements to link the conclusions to the facts; a       MEDINA, Justice JOHNSON, and Justice WILLETT joined,
        report that merely states the expert's conclusions       and in which Chief Justice JEFFERSON, Justice GREEN,
        about the elements does not fulfill the purposes         and Justice LEHRMANN joined as to Parts I and II.A.
        of a good-faith effort in complying with the
        expert report requirements in the governing              When circumstantial evidence is consistent with several
        statute. Vernon's Ann.Texas Civ.St. art. 4590i, §        possible medical conclusions, only one of which establishes
        13.01(l ), (r)(6) (Repealed).                            that the defendant's negligence caused the plaintiff's injury,



               © 2015 Thomson Reuters. No claim to original U.S. Government Works.                                           4
Jelinek v. Casas, 328 S.W.3d 526 (2010)
54 Tex. Sup. Ct. J. 272

an expert witness must explain why, based on the particular          she also had a fever and a mildly elevated white-blood-
facts of the case, that conclusion is medically superior to          cell count, potentially indicating an infection. To treat this
the others. If the expert fails to give any reason beyond            possible infection, her surgeon and primary physician, Dr.
an unsupported opinion, the expert's testimony is legally            Carlos Garcia–Cantu, consulted with an infectious disease
insufficient evidence of causation. In this case, we determine       specialist at the Hospital, Dr. Michael Jelinek, who on July
whether legally sufficient evidence supports the jury's verdict      11 prescribed two medications, Maxipime (a broad-spectrum
in favor of the estate of Eloisa Casas 1 against Rio Grande          antibiotic), and Flagyl (an antibiotic used to treat anaerobic
                                                                     bacteria).
Regional Hospital (the Hospital). 2 Following her admission
to the Hospital with abdominal pain, doctors placed Casas on
                                                                     The Hospital performed several diagnostic tests, which
antibiotics used to treat and prevent certain intra-abdominal
                                                                     revealed abnormal collections of fluid in Casas's abdomen.
infections. Two days later she underwent major abdominal
                                                                     On July 13, she underwent major abdominal surgery during
surgery and continued on the antibiotics for another five
                                                                     which Dr. Garcia–Cantu discovered that “fairly extensive”
days, but the Hospital allowed the prescriptions to lapse for
                                                                     metastatic cancer had perforated Casas's colon and allowed
four-and-a-half days. The Hospital admits it should have
                                                                     material to leak into her abdominal cavity, causing an intra-
continued the antibiotics but denies that the lapse caused
                                                                     abdominal abscess. Dr. Garcia–Cantu drained the abscess,
Casas any additional pain. We hold that the Casases failed
                                                                     repaired Casas's colon, and inserted a Jackson–Pratt drain to
to present legally sufficient evidence that Casas suffered
                                                                     prevent further problems. Following the surgery, Dr. Garcia–
from an infection the omitted antibiotics would have treated.
                                                                     Cantu continued the Maxipime and Flagyl prescriptions, and
Accordingly, we reverse the court of appeals' judgment and
                                                                     a culture of the removed abscess revealed an E. coli infection,
render judgment that the Casases take nothing. 3                     which is effectively treated with Maxipime. Casas received
                                                                     Maxipime and Flagyl for another five days, but hospital
1      Francisco Casas and Alfredo DeLeon Jr., Casas's               staff inadvertently failed to place a prescription renewal form
       husband and son, respectively, serve as personal              on Casas's chart, resulting in a four-and-a-half-day period
       representatives of her estate. We refer to them               between July 18 and 23 during which Casas did not receive
       collectively as “the Casases.”                                either medication. Even so, Casas never tested positive for E.
2                                                                    coli again and a culture of the incision site on July 18 instead
       Columbia Rio Grande Regional Healthcare, L.P., d/b/a/
       Rio Grande Regional Hospital.                                 grew Candida (a fungus) for which Diflucan (an antifungal)
                                                                     was prescribed. Then, on July 21, a second culture from
3      Because we conclude legally insufficient evidence             a blood sample grew coagulase-negative staph, for which
       supports the jury's verdict, we do not reach the Hospital's
                                                                     Vancomycin was prescribed. 4 Neither Maxipime nor Flagyl
       second issue—whether the Hospital preserved error
                                                                     would have treated the Candida or coagulase-negative staph
       regarding its proposed unavoidable accident instruction.
                                                                     infection.
In a separate petition, Dr. Michael Jelinek, one of Casas's
treating physicians sued by the Casases, argues that the             4      There was a several-day lag between taking the culture
trial court should have granted his motion for sanctions and
                                                                            and ordering the prescription, presumably to allow the
dismissal because the Casases' expert report was deficient.
                                                                            culture to grow and to transmit the results to the treating
We agree and hold that an award of attorney's fees is proper.               physicians. Thus, the Diflucan was prescribed on July 21
Therefore, we reverse and remand to the trial court for an                  and the Vancomycin on July 23.
award of attorney's fees and costs.
                                                                     On July 23, Dr. Garcia–Cantu noted an abscess in the wound,
                                                                     which he drained by removing the staples and opening the
                                                                     wound. The next day, records indicate that a foul smell was
                     *530 I. Background                              emanating from the wound site, and hospital staff brought
                                                                     fans into the room to dissipate the odor. When Dr. Jelinek
In 2000, Eloisa Casas was diagnosed with colon cancer
                                                                     learned of the lapsed prescription on July 23, he informed
and underwent surgery, radiation, and chemotherapy. A year
                                                                     Casas and then prescribed different antibiotics, Levaquin
later, doctors told her that the cancer appeared to be in
                                                                     and Vancomycin. On July 25, after a CAT scan showed no
remission, and she thought she was cured. But on July 10,
                                                                     abscess, Dr. Garcia–Cantu removed the drain. Casas left the
2001, she was admitted to the Hospital with abdominal pains;



                © 2015 Thomson Reuters. No claim to original U.S. Government Works.                                                       5
Jelinek v. Casas, 328 S.W.3d 526 (2010)
54 Tex. Sup. Ct. J. 272

Hospital on August 23, but she returned in early September          “there was no objective evidence present to demonstrate that
and died two months later.                                          intra-abdominal infection.” When reviewing the patient notes
                                                                    for July 24, which noted the presence of a foul smell, he
In May 2003, several members of Casas's family, including           suggested that the smell was consistent with an anaerobic
her husband and son, filed suit against the Hospital,               infection that would be difficult to culture because anaerobic
Dr. Garcia–Cantu, and Dr. Jelinek. The plaintiffs claimed           bacteria die when exposed to air. Dr. Carl Berkowitz, the
that the defendants' negligence caused Eloisa Casas to              Hospital's expert, offered several other explanations for the
“suffer grievous embarrassment and humiliation, as well             smell, such as the Candida infection or dying tissue.
as excruciating pain the remainder of her life which she
would not have suffered to such degree or extent if properly        The Casases also called Casas's relatives to testify about her
diagnosed, treated and cared for.” The plaintiffs sought to         condition. Consistent with Dr. Daller's testimony, Casas's son
recover damages for Casas's injuries and mental anguish.            linked the smell with the opening of the wound to drain the
They twice amended their petition, ultimately leaving the           abscess: “The odor that I noticed was after they had taken out
Casases as the sole plaintiffs.                                     the staples on her incision, and one day that I went to see her
                                                                    as soon as they opened the door the whiff of this putrid smell
 *531 As required by former article 4590i § 13.01 of                just engulfed me.” He also testified that Casas was upset upon
the Medical Liability and Insurance Improvement Act, see            learning that she had not received the antibiotics but was even
TEX.REV.CIV. STAT. art. 4590i § 13.01, 5 the Casases filed          more upset when the incision had to be opened and drained:
an expert report within 180 days of filing the original petition.   “Well, after she was told and I was told that she wasn't getting
In the report, Dr. John Daller opined that Dr. Garcia–Cantu         antibiotics, like I said, she was upset. What really upset her
and Dr. Jelinek were negligent in failing to discover that the      more was when they had to—they had to take out the staples
antibiotics were not being given to Casas and that within           out of her incision, and they had to open her incision up
“reasonable medical probability” this negligence resulted in a      again.” Casas's husband testified that, while she was upset
prolonged hospital stay and increased pain and suffering. Dr.       and did not trust the nurses or doctors after learning of the
Jelinek later filed a motion for sanctions and dismissal under      lapsed prescription, “she was still fighting. She ... wanted to
article 4590i § 13.01(e), alleging that the expert report was       beat this cancer she had.” The son testified that Casas did
deficient because, among other things, it failed to explain any     not lose hope until she witnessed the events of September 11,
causal connection between the negligence and the purported          2001, following her re-admission to the Hospital: “That's why
injury. The trial court denied the motion. Before trial began,      I remember that day so vividly in my mind because that was
however, the Casases nonsuited Dr. Jelinek and Dr. Garcia–          the turning point in my mom. She seemed to just give up, not
Cantu.                                                              fight, not want to fight anymore like she used to. And that was
                                                                    a very, very sad day.”
5       See Act of May 5, 1995, 74th Leg., R.S., ch. 140, § 1,
                                                                     *532 The jury found that the negligence of the Hospital, Dr.
        1995 Tex. Gen. Laws 985, 986, amending the Medical
                                                                    Jelinek, and Dr. Garcia–Cantu proximately caused Casas's
        Liability and Insurance Improvement Act of Texas, Act
        of May 30, 1977, 65th Leg., R.S., ch. 817, 1977 Tex.        injury. The jury apportioned ninety percent of the negligence
        Gen. Laws 2039, 2041, repealed by Act of June 2, 2003,      to the Hospital, five percent to Dr. Jelinek, and five percent
        78th Leg., R.S., ch. 204, § 10.09, 2003 Tex. Gen. Laws      to Dr. Garcia–Cantu. It awarded $250,000 in damages to the
        847, 884. Former article 4590i § 13.01 was replaced by      Casases as compensation for Casas's pain and mental anguish.
        Texas Civil Practice and Remedies Code § 74.351, as
        amended.                                                    The Hospital appealed, arguing that the evidence was legally
At trial, Dr. Daller testified as the Casases' medical expert.      and factually insufficient to prove causation or damages for
During direct examination, he analyzed the Hospital's daily         mental anguish. Dr. Jelinek also appealed, challenging the
patient notes regarding Casas and identified the significant        trial court's denial of his motion for sanctions and dismissal.
events. He noted changes in Casas's vital signs on July             The court of appeals affirmed on all issues. ––– S.W.3d ––––.
21 and 22, such as increased heart rate and temperature,
inflammation, and tenderness of the surgery site. Dr. Daller
stated that “in medical probability” there was an infection                                  II. Analysis
in the abdomen, but on cross-examination he admitted that



                © 2015 Thomson Reuters. No claim to original U.S. Government Works.                                              6
Jelinek v. Casas, 328 S.W.3d 526 (2010)
54 Tex. Sup. Ct. J. 272

We address in turn the two issues raised in this appeal: the      be inferred.’ ” City of Keller, 168 S.W.3d at 813 (quoting
legal sufficiency of the causation evidence and the sufficiency   Tubelite, a Div. of Indal, Inc. v. Risica & Sons, Inc., 819
of the Casases' expert report.                                    S.W.2d 801, 805 (Tex.1991)). When considering such cases,
                                                                  “we must ‘view each piece of circumstantial evidence, not
                                                                  in isolation, but in light of all the known circumstances,’ ”
A. Sufficiency of the Evidence                                    id. at 813–14 (quoting Lozano v. Lozano, 52 S.W.3d 141,
 [1] The facts of this case are unfortunate: a woman with         167 (Tex.2001) (per curiam)), and we “must consider not just
advanced colon cancer underwent surgery to repair her             favorable but all the circumstantial evidence, and competing
cancer-perforated and infected colon, and in the course of        inferences as well.” Id. at 814.
treatment for her many symptoms the Hospital failed to
renew her antibiotic prescriptions for a four-and-a-half-day   [5] To meet the legal sufficiency standard in medical
period. The Hospital admits it should have continued the      malpractice cases “plaintiffs are required to adduce evidence
antibiotics. Even so, the plaintiff bears the burden to prove of a *533 ‘reasonable medical probability’ or ‘reasonable
that the negligence caused an injury: “[A]t trial the plaintiff
                                                              probability’ that their injuries were caused by the negligence
must establish two causal nexuses in order to be entitled to  of one or more defendants, meaning simply that it is ‘more
recovery: (a) a causal nexus between the defendant's conduct  likely than not’ that the ultimate harm or condition resulted
and the event sued upon; and (b) a causal nexus between       from such negligence.” Kramer v. Lewisville Mem'l Hosp.,
the event sued upon and the plaintiff's injuries.” Morgan v.  858 S.W.2d 397, 399–400 (Tex.1993) (citations omitted).
Compugraphic Corp., 675 S.W.2d 729, 731 (Tex.1984). Only      Thus, we examine the record to determine if the Casases
the second nexus is at issue here.                            presented legally sufficient evidence that “in reasonable
                                                              medical probability” the Hospital's negligence caused Casas
 [2]    [3]    [4] In City of Keller v. Wilson, we considered additional pain and suffering.
at length the parameters of legal sufficiency review, quoting
with approval Chief Justice Calvert's seminal article on the  When distilled to its essence, the Casases' claim is predicated
topic:                                                        on the presence of an infection—treatable by the lapsed
                                                                  antibiotics—that caused Casas pain and mental anguish above
            “No evidence” points must, and
                                                                  and beyond that caused by the cancer, the surgery, and the
            may only, be sustained when the
                                                                  other known infections. The absence of an infection treatable
            record discloses one of the following
                                                                  by Maxipime and Flagyl would undermine the Casases'
            situations: (a) a complete absence
                                                                  claim, for then the prescription lapse would amount to an
            of evidence of a vital fact; (b) the
                                                                  unfortunate, but harmless, occurrence. The Hospital argues
            court is barred by rules of law or of
                                                                  that the Casases presented no evidence that the Hospital's
            evidence from giving weight to the
                                                                  negligence caused such an infection. The Casases' expert
            only evidence offered to prove a vital
                                                                  admitted there is no direct evidence of an anaerobic infection,
            fact; (c) the evidence offered to prove
                                                                  leaving the jury to consider the circumstantial evidence and
            a vital fact is no more than a mere
                                                                  make proper inferences from it. In reviewing the record,
            scintilla; (d) the evidence establishes
                                                                  we initially decide if jurors can determine causation under
            conclusively the opposite of the vital
                                                                  these facts unaided by expert testimony—that is, whether lay
            fact.
                                                                  testimony regarding causation is legally sufficient.
168 S.W.3d 802, 810 (Tex.2005) (quoting Robert W. Calvert,
“No Evidence” and “Insufficient Evidence” Points of Error,
38 TEX. L.REV. 361, 362–63 (1960)). “When the evidence                          1. Lay Testimony of Causation
offered to prove a vital fact is so weak as to do no more
than create a mere surmise or suspicion of its existence, the      [6] [7] [8] [9] Lay testimony may be used as evidence
evidence is no more than a scintilla and, in legal effect, is     of causation in certain circumstances, but “[w]hen expert
no evidence.” Kindred v. Con/Chem, Inc., 650 S.W.2d 61,           testimony is required, lay evidence supporting liability is
63 (Tex.1983). The same is true when the evidence equally         legally insufficient.” City of Keller, 168 S.W.3d at 812.
supports two alternatives: “ ‘When the circumstances are          In medical malpractice cases, expert testimony regarding
equally consistent with either of two facts, neither fact may     causation is the norm: “The general rule has long been



               © 2015 Thomson Reuters. No claim to original U.S. Government Works.                                            7
Jelinek v. Casas, 328 S.W.3d 526 (2010)
54 Tex. Sup. Ct. J. 272

that expert testimony is necessary to establish causation as        of laypersons are sufficient to evaluate the conditions and
to medical conditions outside the common knowledge and              whether they were probably caused by the occurrence.” Id. at
experience of jurors.” Guevara v. Ferrer, 247 S.W.3d 662,           668.
665 (Tex.2007); see also Bowles v. Bourdon, 148 Tex. 1,
219 S.W.2d 779, 782 (1949) (“It is definitely settled with          The present case does not fall within this rule. Unlike
us that a patient has no cause of action against his doctor         in Morgan, an otherwise healthy person did not suddenly
for malpractice, either in diagnosis or recognized treatment,       experience health difficulties following the defendant's
unless he proves by a doctor of the same school of practice as      negligent conduct when the plaintiff's symptoms were
the defendant: (1) that the diagnosis or treatment complained       reasonably attributable to the negligence and to nothing
of was such as to constitute negligence and (2) that it             else. Rather, a patient with terminal colon cancer did not
was a proximate cause of the patient's injuries.”). We have         receive antibiotics for four-and-a-half days following major
allowed lay evidence to establish causation “in those cases         abdominal surgery and after having received the medications
in which general experience and common sense will enable a          for eight days. There is no direct evidence that she suffered
layman to determine, with reasonable probability, the causal        from an infection treatable by the omitted antibiotics, but
relationship between the event and the condition.” Morgan,          there is evidence that she had two other infections that
675 S.W.2d at 733 (citing Lenger v. Physician's Gen. Hosp.,         accounted for all of her symptoms during that time. Given
Inc., 455 S.W.2d 703, 706 (Tex.1970)). Care must be taken           Casas's medical condition, expert testimony was crucial to
to avoid the post hoc ergo propter hoc fallacy, that is,            link the prescription lapse to an infection causing additional
finding an earlier event caused a later event merely because it     pain and suffering beyond what she would otherwise have
occurred first. Stated simply, correlation does not necessarily     experienced. See Kaster v. Woodson, 123 S.W.2d 981, 983
imply causation. As we noted in Guevara, “[e]vidence of             (Tex.Civ.App.-Austin 1938, writ ref'd) (“What is an infection
an event followed closely by manifestation of or treatment          and from whence did it come are matters determinable only
for conditions which did not appear before the event raises         by medical experts.”); see also Hart v. Van Zandt, 399 S.W.2d
suspicion that the event at issue caused the conditions. But        791, 792 (Tex.1966) (“In determining negligence in a case
suspicion has not been and is not legally sufficient to support     such as this, which concerns the highly specialized art of
a finding of legal causation.” 247 S.W.3d at 668.                   treating disease, the court and jury must be dependent on
                                                                    expert testimony. There can be no other guide, and where
 [10] When lay testimony is credited as evidence of                 want of skill and attention is not thus shown by expert
causation, it usually highlights a connection between two           evidence applied to the facts, there is no evidence of it proper
events that is apparent to a casual observer. In Morgan, for        to be submitted to the jury.”).
example, a previously healthy employee, upon exposure to
leaking chemicals, suffered watering of the eyes, blurred           The Casases point to testimony by Casas's husband and
 *534 vision, headaches, and swelling of the breathing              son to support their argument that she deteriorated rapidly
passages. 675 S.W.2d at 733. In such a circumstance,                after discovering she did not receive the antibiotics. But
lay testimony sufficed to connect the specific injury to            this characterization overstates the evidence. While Casas's
the negligence with no evidence of causation beyond the             husband testified she was upset and did not trust her doctors
leaking chemicals. Id. Likewise in Guevara, we stated               following the discovery, she was still determined to fight
that determining causation of “certain types of pain,               her cancer. The son also observed Casas's anger and lack
bone fractures, and similar basic conditions” following an          of trust but testified that the opening of her wound, which
automobile accident was within the competence of lay jurors.        occurred the same day she learned of the lapse, upset her
247 S.W.3d at 668. But we held that expert testimony was            even more. As Dr. Daller admitted, Candida likely caused the
required to prove that a patient's medical expenses resulted        abscess that required Dr. Garcia–Cantu to drain the wound.
from the accident, noting that “[p]atients in hospitals are often   Further, based on his experience at Casas's bedside, her son
treated for more than one condition brought on by causes            pinpointed the tragic events of September 11, 2001, and their
independent of each other.” Id. at 669. These cases illustrate      effect on his mother as the turning point in her mental state.
this basic premise: “[N]on-expert evidence alone is sufficient      The latter event was some seven weeks after discovery of the
to support a finding of causation in limited circumstances          lapsed prescriptions and after Casas's discharge from and re-
where both the occurrence and conditions complained of              admission to the Hospital. This evidence does not bear out the
are such that the general experience and common sense



                © 2015 Thomson Reuters. No claim to original U.S. Government Works.                                              8
Jelinek v. Casas, 328 S.W.3d 526 (2010)
54 Tex. Sup. Ct. J. 272

Casases' claim of a marked shift in Casas's mental resilience                  days she did not receive appropriate therapy. Had
following the omission of the medications.                                     she received the appropriate therapy then you would
                                                                               expect her length of stay to be shortened somewhat.
 *535 More importantly, Casas's husband and son were                           To quantitate that, I could not do that.
                                                                               ....
unable to precisely identify the cause of her suffering. While
                                                                               A. Obviously, not receiving antibiotics is not going
they could accurately describe her discomfort, they were
                                                                               to shorten your stay. Therefore, if it impacted the
unable to say if it was the cancer, the surgery, the other
                                                                               stay it must have lengthened it. (emphases added).
infections, or the lapse that caused it. Even testimony that
Casas suffered after learning of the omission raises no more
                                                                      Q. Now, Candida, infection of a wound like this, they can
than a mere suspicion of causation, and that is not enough,
                                                                      cause high temperatures. Correct?
see Guevara, 247 S.W.3d at 668, particularly in light of
the evidence that Casas thought she was cured of cancer                 A. Fungal infections can cause a high temperature, yes.
before the surgery and then learned that not only was it “back
with a vengeance,” it was terminal. The testimony of Casas's            Q. It can cause increased heart rate?
husband and son is evidence of her suffering, but not of its
cause. Thus, we hold that the lay testimony presented by the            A. That is correct.
Casases is legally insufficient to establish that the Hospital's
                                                                        Q. And inflammation?
negligence caused Casas additional pain and suffering.
                                                                        A. That is correct.

                                                                        Q. Pain?
                     2. Expert Testimony
                                                                        A. That is correct.
 [11] The Casases also presented expert testimony regarding
causation. The Casases' expert, Dr. Daller, testified that the          Q. How about an abscess?
Hospital's negligence “in medical probability” caused Casas
additional pain and suffering. He based this opinion on the             A. It caused or is part of the abscess in that wound
presence of an intra-abdominal infection that could have                that was present, that wound infection that needed to be
been treated using Maxipime and Flagyl. Admitting that                  opened.
no direct evidence indicated such an infection, Dr. Daller
                                                                        Q. So when Doctor Garcia went in on 7/23 ... and
pointed to various circumstantial indicators that suggested an
                                                                        drained that wound at bedside that abscess was within a
infection. These indicators were primarily Casas's changed
                                                                        reasonable degree of medical probability caused by the
vital signs, such as fever and increased heart rate: “Well,
                                                                        Candida?
given the fact that two to three days after the antibiotics
had been mistakingly [sic] stopped her fever curve went up               *536 A. That was one of the organisms that was there.
and her heart rate went up, to me that suggests the presence            It was the organism that was cultured. That is correct.
of on going [sic] infection.” 6 But on cross-examination, he
conceded these data were equally consistent with two other              ....
infections cultured from Casas's incision and blood—Candida
                                                                        Q. ... This coagulase negative staph causes fever?
and coagulase—negative staph—neither of which is treatable
by Maxipime or Flagyl:                                                  A. Correct.

6      When asked if the lapsed prescriptions affected Casas's          Q. Increased heart rate?
       hospital stay, Dr. Daller equivocated:
                                                                        A. The fever will cause increased heart rate.
           A. I think that it certainly did impact it. However,
           I cannot quantitate that because there are multiple
                                                                        ....
           variables that are present in a clinical condition.
           Whether it lengthened her stay by one day, two               Q. It can cause pain?
           days, three days, I cannot say that. What I would say
           from a scientific standpoint is that for four and a half     A. Depending upon the site. Correct.



                © 2015 Thomson Reuters. No claim to original U.S. Government Works.                                                   9
Jelinek v. Casas, 328 S.W.3d 526 (2010)
54 Tex. Sup. Ct. J. 272

                                                                 and from other causes not the fault of the doctor. Such
     Q. Okay. All of these things can be caused by coagulase     evidence has no tendency to show that negligence did cause
     negative staph and Candida, which we know were              the injury.”).
     present 7/18 through 7/23, the time period she did not
     get antibiotics?                                          By conceding that Casas's symptoms were consistent with
                                                               infections not treatable by Maxipime or Flagyl, Dr. Daller
      A. That's correct.
                                                               undermined his conclusion that an undetected infection was
      Q. Neither one would have been killed by Maxipime or     also present. While it is possible that Casas did have such
      Flagyl?                                                  an infection, its presence can only be inferred from facts
                                                               that are equally consistent with the Candida and coagulase-
      A. That's correct.                                       negative staph infections. “ ‘When the circumstances are
 [12] [13] It is not enough for an expert simply to opine *537 equally consistent with either of two facts, neither
that the defendant's negligence caused the plaintiff's injury. fact may be inferred.’ ” City of Keller, 168 S.W.3d at 813
The expert must also, to a reasonable degree of medical        (quoting Tubelite, 819 S.W.2d at 805). Here, objective data
probability, explain how and why the negligence caused the     —the cultures—support the Candida and staph infections but
injury. We have rejected expert opinions not grounded in       not the supposed anaerobic infection. 7
a sound evidentiary basis: “[I]f no basis for the opinion
is offered, or the basis offered provides no support, the      7       Admittedly, anaerobic bacteria are hard to culture
opinion is merely a conclusory statement and cannot be
                                                                       because they are averse to oxygen.
considered probative evidence, regardless of whether there
is no objection. ‘[A] claim will not stand or fall on the       [14]    [15] Based on the record evidence, an anaerobic
mere ipse dixit of a credentialed witness.’ ” City of San      infection cannot be proved or disproved. It is equally
Antonio v. Pollock, 284 S.W.3d 809, 818 (Tex.2009) (quoting    plausible that Casas had such an infection or that she did
Burrow v. Arce, 997 S.W.2d 229, 235 (Tex.1999)); see           not. Dr. Daller opined that she did, but he did not explain
also Whirlpool Corp. v. Camacho, 298 S.W.3d 631, 637           why that opinion was superior to the opposite view. Such
(Tex.2009) ( “Conclusory or speculative opinion testimony      evidence raises no more than a possibility of causation, which
is not relevant evidence because it does not tend to make the  is insufficient. As we said in Bowles v. Bourdon, “ ‘[t]he
existence of material facts more probable or less probable.”). proof must establish causal connection beyond the point of
When the only evidence of a vital fact is circumstantial,      conjecture. It must show more than a possibility. Verdicts
the expert cannot merely draw possible inferences from the     must rest upon reasonable certainty of proof. Where the proof
evidence and state that “in medical probability” the injury    discloses that a given result may have occurred by reason of
was caused by the defendant's negligence. The expert must      more than one proximate cause, and the jury can do no more
explain why the inferences drawn are medically preferable      than guess or speculate as to which was, in fact, the efficient
to competing inferences that are equally consistent with the   cause, the submission of such choice to the jury has been
known facts. Thus, when the facts support several possible     consistently condemned by this court and by other courts.’ ”
conclusions, only some of which establish that the defendant's 219 S.W.2d at 785 (quoting Ramberg v. Morgan, 209 Iowa
negligence caused the plaintiff's injury, the expert must      474, 218 N.W. 492, 498–99 (1928)).
explain to the fact finder why those conclusions are superior
based on verifiable medical evidence, not simply the expert's    The Casases argue that the foul smell, which is consistent
opinion. See Lenger, 455 S.W.2d at 707 (“[E]xpert testimony      with an anaerobic infection, is strong evidence of such an
that the event is a possible cause of the condition cannot       infection. Looking at the patient notes for July 24, Dr. Daller
ordinarily be treated as evidence of reasonable medical          commented on the smell:
probability except when, in the absence of other reasonable
                                                                   A. The text says something about drainage to the abdomen
causal explanations, it becomes more likely than not that the
                                                                   with moderate amount of drainage. And it says that it is
condition did result from the event.”); Hart, 399 S.W.2d at
                                                                   foul smelling.
792 (“The burden of proof is on the plaintiff to show that the
injury was negligently caused by the defendant and it is not       ....
enough to show the injury together with the expert opinion
that it might have occurred from the doctor's negligence



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Jelinek v. Casas, 328 S.W.3d 526 (2010)
54 Tex. Sup. Ct. J. 272

                                                                                    I think there's a number of reasons why she would
    Q. The [previous notes] that I remember that we have gone                       have had a bad smell, none of which can be
    over didn't say anything about foul smelling?                                   explained by four or five days of not getting Flagyl
                                                                                    [or] Maxipime.
    A. That's correct. They were just described as I recall as
                                                                         [16]    [17] Here again, there are competing explanations
    being purulent and looking like puss [sic].
                                                                        for the smell, which amounts to no more than circumstantial
    Q. What does that mean when it says “foul smelling”?                evidence of some kind of infection or possibly dying tissue.
                                                                        Because there is no direct evidence of the infection and
    A. When you have foul smelling, it suggests that the                the circumstantial evidence is meager, we “must consider
    organism is an anaerobe. In other words, one of those               not just favorable but all the circumstantial evidence, and
    bacteria that didn't need oxygen in order to grow that, for         competing inferences as well.” City of Keller, 168 S.W.3d
    example, Flagyl would treat.                                        at 814. Courts should not usurp the jury's role as fact finder,
                                                                        nor should they question the jury's right to believe one
    Q. Okay. Does that give you clinical evidence that had she
                                                                        witness over another. But when reviewing a verdict for
    been continued on Maxipime and Flagyl that they would
                                                                        sufficiency of the evidence, courts need not—indeed, must
    have had some effect with regards to the condition as we
                                                                        not—defer to the jury's findings when those findings are not
    see it on the 24th?
                                                                        supported by credible evidence. When the evidence compels
    A. Well, like I said, most anaerobes are sensitive or               the jury to guess if a vital fact exists, a reviewing court does
    susceptible to Flagyl. And she had previously been on               not undermine the jury's role by sustaining a no-evidence
    Flagyl and at this time she is not. So I would have expected        challenge. The evidence in this case—being consistent with
    that that would be an appropriate antibiotic that would have        an anaerobic infection that was treatable by Flagyl, a fungal
    covered the organism that's causing that foul smell.                infection that was not, or even with dying tissue, cancerous
                                                                        or otherwise—did not provide the jury a reasoned basis
Dr. Berkowitz, the Hospital's expert, offered several other             from which to infer the presence of a negligence—induced
explanations for the smell, including necrotic tissue, dead             infection. Because the jury could not reasonably infer an
cancer tissue, and the Candida infection. 8 As *538 noted,              infection caused by the Hospital's negligence, we agree with
Casas's son noticed the smell after the incision was opened             the Hospital that no evidence supports the jury's verdict.
to drain the abscess, which Dr. Daller admitted was likely
caused by Candida.                                                      We understand the Casas family's predicament and frustration
                                                                        at the Hospital's conduct, and we recognize the difficulty
8                                                                       of proving that the lapsed prescriptions caused a painful
         Dr. Berkowitz testified:
                                                                        infection. But the Casases shouldered that burden and must
              I think that there are a number of things that can
                                                                        prove the causal link with reasonable certainty. In that quest,
              cause things smelling bad besides just infection.
              Tissue that dies doesn't smell good. There's bacteria
                                                                        the Casases offered the testimony of Dr. Daller, but he did not
              and products released by the dead tissue that don't       explain why an undetected, anaerobic infection is medically
              smell good.                                               more probable than one based on the known infections and
              And we know based on the pathology report of the          the dying tissue, leaving the jury to guess if the lapsed
              cancer that they took out of her abdomen, that this       prescriptions caused additional pain and suffering. Without
              had grown enough that it was dying. In other words,       probative medical testimony that the lapse caused—by means
              it was probably outgrowing it's [sic] blood supply        of an infection treatable by Maxipime and Flagyl—more pain
              and was starting to die. That in and of itself can        than the cancer, the surgery, and the other infections already
              smell bad. Then you have a wound that is infected;        inflicted, there is no legally sufficient evidence of causation.
              although Candida itself does not typically smell          Dr. Daller did not provide that causal link; accordingly, we
              bad, not like something dead. It smells funky and
                                                                        hold that his testimony is legally insufficient to support the
              people don't like the way it smells. The wound itself
                                                                        jury's verdict. Because the Casases failed to prove causation,
              when it wasn't healing was probably having some
                                                                        we reverse the judgment of the court of appeals and render
              necrotic tissue, as well, or dead tissue that is in the
              wound. I'm sure that smelled bad, as well. And they
                                                                        judgment that the Casases take nothing.
              were never able to completely get rid of all that dead
              cancer tissue that was in her abdomen.



                  © 2015 Thomson Reuters. No claim to original U.S. Government Works.                                                 11
Jelinek v. Casas, 328 S.W.3d 526 (2010)
54 Tex. Sup. Ct. J. 272

                                                                   district court “abuses its discretion if it acts in an arbitrary
B. Adequacy of the Expert Report                                   or unreasonable manner without reference to any guiding
 [18] [19] In his petition, Dr. Jelinek raises a single issue:     rules or principles.” Wright, 79 S.W.3d at 52 (citing Downer
whether the trial court abused its discretion by denying his       v. Aquamarine Operators, Inc., 701 S.W.2d 238, 241–42
motion for sanctions and dismissal because the Casases'            (Tex.1985)).
expert report was deficient under former article 4590i §
13.01, the statute in effect at the time. See TEX.REV.CIV.         Dr. Jelinek argues that the Casases' report is deficient in two
STAT. art. 4590i § 13.01. Article 4590i required the report        ways, failing (1) to state the applicable standard of care, and
to provide “a fair summary of the expert's opinions as of the      (2) to provide more than conclusory statements of causation.
date of the report regarding applicable standards of care, the     We focus on the latter. Dr. Daller's report concluded that
manner in which the care rendered by the physician or health       Dr. Jelinek's breach of the appropriate standard of care
care provider failed to meet the standards, and the causal         in “reasonable medical probability, resulted in a prolonged
relationship between that *539 failure and the injury, harm,       hospital course and increased pain and suffering being
or damages claimed.” Id. § 13.01(r)(6). “If a plaintiff timely     experienced by Ms. Casas.” Aside from repeating essentially
files an expert report and the defendant moves to dismiss          the same phrase twice more, the report says nothing more
because of the report's inadequacy, the trial court must grant     regarding causation. The Casases argue this statement is
the motion ‘only if it appears to the court, after hearing, that   sufficient to meet the good-faith requirement. We disagree.
the report does not represent a good faith effort to comply with
the definition of an expert report in Subsection (r)(6) of this   An expert cannot simply opine that the breach caused the
section.’ ” Bowie Mem'l Hosp. v. Wright, 79 S.W.3d 48, 51–        injury. Stated so briefly, the report fails the second Palacios
52 (Tex.2002) (per curiam) (quoting § 13.01(l )). Dismissal       element—it does not give the trial court any reasonable basis
for failure to serve an adequate expert report also carried       for concluding that the lawsuit has merit. See 46 S.W.3d at
mandatory sanctions, requiring an award to the defendant          879. An expert's conclusion that “in medical probability” one
of his costs and attorney's fees against the plaintiff or the     event caused another differs little, without an explanation
plaintiff's attorney. See Am. Transitional Care Ctrs. of Tex.,    tying the conclusion to the facts, from an ipse dixit, which
Inc. v. Palacios, 46 S.W.3d 873, 877 (Tex.2001) (citing §         we have consistently criticized. See Pollock, 284 S.W.3d at
13.01(e)).                                                        818 (citing Burrow, 997 S.W.2d at 235); Earle, 998 S.W.2d at
                                                                  890 (“An expert's simple ipse dixit is insufficient to establish
 [20] [21] We have defined a “good-faith effort” as one that a matter; rather, the expert must explain the basis of his
provides information sufficient to (1) “inform the defendant      statements to link his conclusions to the facts.”). Instead, the
of the specific conduct the plaintiff has called into question,”  expert must go further and explain, to a reasonable degree,
and (2) “provide a basis for the trial court to conclude that the  *540 how and why the breach caused the injury based on
claims have merit.” Wright, 79 S.W.3d at 52 (citing Palacios,     the facts presented. While we have said that no “magical
46 S.W.3d at 879). All information needed for this inquiry is     words” need be used to meet the good-faith requirement, mere
found within the four corners of the expert report, which need    invocation of the phrase “medical probability” is likewise no
not “marshal all the plaintiff's proof” but must include the      guarantee that the report will be found adequate. See Wright,
expert's opinion on each of the three main elements: standard     79 S.W.3d at 53.
of care, breach, and causation. Id. Importantly for this case,
the “report cannot merely state the expert's conclusions about    Under these standards, the Casases' report is conclusory on
these elements,” but “ ‘the expert must explain the basis         causation. It offers no more than a bare assertion that Dr.
of his statements to link his conclusions to the facts.’ ” Id.    Jelinek's breach resulted in increased pain and suffering and
(quoting Earle v. Ratliff, 998 S.W.2d 882, 890 (Tex.1999)).       a prolonged hospital stay. Beyond that statement, the report
“A report that merely states the expert's conclusions about the   offers no explanation of how the breach caused the injury.
standard of care, breach, and causation” does not fulfill the     Again, the plaintiff need not marshal all of his proof in the
two purposes of a good-faith effort. Palacios, 46 S.W.3d at       report, but he must include sufficient detail to allow the trial
879.                                                              court to determine if the claim has merit. Because the Casases'
                                                          report lacks any explanation linking the expert's conclusion
 [22]    [23] We review the trial court's grant or denial to the relevant facts, we hold that the trial court abused
of a motion for sanctions and dismissal under the abuse-  its discretion by denying Dr. Jelinek's motion and the court
of-discretion standard. Palacios, 46 S.W.3d at 877–78. A


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Jelinek v. Casas, 328 S.W.3d 526 (2010)
54 Tex. Sup. Ct. J. 272

of appeals erred by affirming that ruling. 9 See id. at 52.                   court's order. See Hernandez v. Ebrom, 289 S.W.3d 316,
                                                                              318 (Tex.2009) (“Generally, appeals may only be taken
Accordingly, we remand the case to the trial court for an
                                                                              from final judgments....”).
award of attorney's fees and costs 10 under former article                       We mention this point because we have since
4590i § 13.01(e) against the Casases and their counsel. 11                       cautioned that a defendant—having foregone the
                                                                                 interlocutory appeal now available—risks losing the
9                                                                                right to appeal following final judgment if, after a trial
       In his dissent, CHIEF JUSTICE JEFFERSON argues
                                                                                 on the merits, the jury finds the defendant liable. See
       that an expert report need not meet the legal sufficiency
                                                                                 id. at 321. Even if the present statute applied here, this
       requirements necessary to support a judgment and
                                                                                 caution would not bar Dr. Jelinek's appeal because he
       suggests that we hold it must. We agree that an expert
                                                                                 was not a party at trial, having been nonsuited earlier.
       report need not “meet the same requirements as the
                                                                                 We will not bar a nonsuited defendant's appeal after
       evidence offered in a summary-judgment proceeding
                                                                                 final judgment because the jury finds him liable at a
       or at trial.” Palacios, 46 S.W.3d at 879. But, as
                                                                                 former codefendant's trial. Such a defendant did not
       we stated earlier, the report must provide more than
                                                                                 call or cross-examine witnesses, present evidence, or
       conclusory statements concerning applicable standards
                                                                                 otherwise participate at trial and should not be bound
       of care, breach of those standards, and causation. See
                                                                                 by what happens there.
       id. An expert report must instead, within its four
       corners, provide some explanation as to each of these
       elements. TEX.REV.CIV. STAT. art. 4590i § 13.01(r)
                                                                                            *541 III. Conclusion
       (6); Wright, 79 S.W.3d at 52. The report here offered
       only a conclusory statement concerning causation with           For the foregoing reasons, we reverse the court of appeals'
       no explanation as to how the lapse in antibiotic treatment
                                                                       judgment, render judgment that the Casases take nothing,
       resulted in longer hospitalization, increased pain and
                                                                       and remand to the trial court for an award of Dr. Jelinek's
       suffering, or ultimately Casas's death.
                                                                       attorney's fees and costs consistent with this opinion.
10     In her dissent, JUSTICE LEHRMANN indicates that
       (1) she would remand the case to allow the Casases
       an opportunity to show that their failure to present an
                                                                       Chief Justice JEFFERSON filed an opinion, dissenting in
       adequate report was not intentional or the result of
       conscious indifference, and (2) Dr. Jelinek should not be
                                                                       part, in which Justice GREEN and Justice LEHRMANN
       entitled to attorney's fees and costs if the Casases can        joined.
       make this showing and submit an adequate report. We
                                                                       Justice LEHRMANN filed an opinion, dissenting in part.
       note that the Casases did not request a remand of this
       nature, nor brief the attorney's fees issue. See State v.
       Brown, 262 S.W.3d 365, 370 (Tex.2008) (observing that           Chief Justice JEFFERSON, joined by Justice GREEN and
       “[a] party generally is not entitled to relief it does not      Justice LEHRMANN, dissenting in part.
       seek” and refusing to sua sponte grant relief that was
                                                                       We must decide whether an expert report gave a “fair
       not sought); Fed. Sign v. Tex. S. Univ., 951 S.W.2d 401,
                                                                       summary” of the expert's opinions regarding standard of care,
       410 (Tex.1997) (noting that ordinarily, failure to brief
                                                                       failure to meet the standard, and the link between that failure
       an argument waives error on appeal); TEX.R.APP. P.
       38.1(h).
                                                                       and the patient's damages. We must consider the expert's
                                                                       opinions “as of the date of the report.” TEX.REV.CIV.
11     We briefly note that under former article 4590i a trial         STAT. art. 4590i § 13.01(r)(6) (repealed 2003). To do so,
       court's order denying a motion to dismiss premised              we must disregard today's holding that, at trial, there was
       on an inadequate expert report was not immediately              no evidence linking the discontinuation of antibiotics to
       appealable, as it now is under Texas Civil Practice and         increased suffering by Casas. The expert report submitted in
       Remedies Code §§ 51.014 and 74.351. Nor did we
                                                                       this case gave fair notice of a meritorious claim—that the
       definitively say that mandamus review was appropriate
                                                                       doctor failed to ensure that his patient received antibiotics,
       for such orders until almost four years after the trial court
                                                                       thereby increasing her pain and suffering. I would affirm the
       denied Dr. Jelinek's motion for dismissal and sanctions.
       See In re McAllen Med. Ctr., Inc., 275 S.W.3d 458, 461–
                                                                       court of appeals' judgment with respect to the doctor.
       62 (Tex.2008). Thus, we do not fault Dr. Jelinek for
       waiting until final judgment to seek review of the trial



                © 2015 Thomson Reuters. No claim to original U.S. Government Works.                                                      13
Jelinek v. Casas, 328 S.W.3d 526 (2010)
54 Tex. Sup. Ct. J. 272

                                                                    Former article 4590i provided that “[a] court shall grant a
I. Background                                                       motion challenging the adequacy of an expert report only if
                                                                    it appears to the court, after hearing, that the report does not
Eloisa Casas, a patient recently diagnosed with colon cancer,
                                                                    represent a good faith effort to comply with the definition
was admitted to Rio Grande Hospital for abdominal pain.
                                                                    of an expert report in [the statute].” TEX.REV.CIV. STAT.
The cancer had perforated her colon, the contents of which
                                                                    art. 4590i § 13.01(l ). “That definition requires, as to each
leaked into her abdominal cavity, causing an abscess. After
                                                                    defendant, a fair summary of the expert's opinions about
the doctor drained and surgically removed the abscess,
                                                                    the applicable standard of care, the manner in which the
he discovered that Casas had an E. coli infection, for
                                                                    care failed to meet that standard, and the causal relationship
which the doctor prescribed two antibiotics. Although those
                                                                    between that failure and the claimed injury.” Am. Transitional
prescriptions were supposed to have been renewed five days
                                                                    Care Ctrs. of Tex., Inc. v. Palacios, 46 S.W.3d 873,
later, they lapsed. Casas contends this mistake occurred
                                                                    878 (Tex.2001) (citing TEX.REV.CIV. STAT. art. 4590i §
because the doctor failed to ensure that hospital staff complied
                                                                    13.01(r)(6)). Because an expert report is filed long before
with his renewal order. During the four days after the
                                                                    discovery is complete, we cannot judge it according to what
prescriptions expired, Casas's surgical incision began to emit
                                                                    subsequent discovery reveals or how the evidence develops
a putrid odor. She developed several infections in addition to
                                                                    at trial. The question is whether the report fairly summarizes
E. coli, exacerbating her pain and extending her stay in the
                                                                    the malpractice elements before the case is tested in a full
hospital. Casas died two months after she was discharged.
                                                                    adversary process. For that reason, “to avoid dismissal, a
                                                                    plaintiff need not present evidence in the report as if it were
Casas's estate sued the Hospital and two of the
                                                                    actually litigating the merits. The report can be informal in
treating doctors, Dr. Garcia–Cantu and Dr. Jelinek, for
                                                                    that the information in the report does not have to meet the
negligently causing Mrs. Casas “grievous embarrassment and
                                                                    same requirements as the evidence offered in a summary-
humiliation, as well as excruciating pain the remainder of
                                                                    judgment proceeding or at trial.” Id. at 879.
her life which she would not have suffered to such degree
if properly diagnosed, treated and cared for....” The trial
                                                                    The report must also give the defendant notice of the conduct
court denied Dr. Jelinek's motion to dismiss the case against
                                                                    the plaintiff challenges, and the trial court must have a
him. Nevertheless, the estate nonsuited both doctors more
                                                                    basis to determine whether the claim has merit. Id. The
than a year before Casas's claim against the Hospital was
                                                                    dividing line between a sufficient and an inadequate report is
tried to a jury. At that trial, the jury found the hospital 90%
                                                                    impossible to draw precisely. We have said, therefore, that the
negligent, and each doctor 5% negligent. The trial court
                                                                    determination must be made in the first instance by the trial
rendered judgment against the hospital, and the court's order
                                                                    court, and review of that decision asks not how an appellate
non-suiting Dr. Jelinek “with prejudice” merged into that
                                                                    court would have resolved the issue, but instead whether the
final judgment.
                                                                    trial court abused its discretion. See, e.g., Jernigan v. Langley,
                                                                    195 S.W.3d 91, 93 (Tex.2006); Walker v. Gutierrez, 111
Dr. Jelinek and the hospital appealed the trial court's
                                                                    S.W.3d 56, 63 (Tex.2003).
judgment. The hospital complained that the evidence was
legally insufficient to support the verdict. Dr. Jelinek
complained that the trial court improperly denied him               III. Dr. Daller's report
attorney's fees, as the expert report was not a good faith effort
to comply with statutory requirements. The court of appeals         Dr. Daller is a physician and an expert on intra-abdominal
affirmed, 2008 WL 2894889, *9–*10, 2008 Tex.App. LEXIS              abscesses and infection. His report states that a doctor treating
5647, *28–*29 (Tex.App.-Corpus Christi July 29, 2008), and          a patient like Casas must ensure that the antibiotics he
the appellants below are now petitioners here. I fully join         prescribes are actually administered. Despite that standard,
the *542 Court's rendition of judgment for the hospital. I          Dr. Daller states that antibiotics prescribed for Ms. Casas
disagree with the Court's holding as to the doctor.                 were not administered from July 17 through July 23, even
                                                                    though “[t]here [wa]s no order to discontinue the antibiotic
                                                                    therapy.” He concluded that Dr. Jelinek breached the standard
II. Good faith effort; fair summary                                 of care by his “failure to recognize that the antibiotics were
                                                                    not being administered as ordered.” Dr. Daller concludes that
                                                                    “[t]his breach in the standard of care ..., within reasonable


                © 2015 Thomson Reuters. No claim to original U.S. Government Works.                                              14
Jelinek v. Casas, 328 S.W.3d 526 (2010)
54 Tex. Sup. Ct. J. 272

medical probability, resulted in a prolonged hospital course         must satisfy Palacios's two-part test. Id. at 52. Because the
and increased pain and suffering....”                                report “lack[ed] information linking the expert's conclusion
                                                                     (that [the plaintiff] might have had a better outcome) to [the
                                                                     defendant's] alleged breach (that it did not correctly read and
IV. Dr. Daller gave a “fair summary” of the required                 act upon the x-rays), the trial court could have reasonably
standard of care and how the allegedly inadequate care               determined that the report was conclusory.” Id. at 53.
fell below that standard.
                                                                     In each of those cases, the trial court could not have
The Court concludes that Dr. Daller's report lacks the detail
                                                                     evaluated the claim's merit without speculating about actions
necessary to conclude that the estate's lawsuit has merit.
                                                                     the defendant could have taken to prevent injury. No such
But the cases it cites as support involve situations in which
                                                                     speculation is required here. Dr. Daller states that had the
a hindsight view is entirely appropriate. Earle v. Ratliff,
                                                                     antibiotics been administered from July 17 through July 23,
for example, is a summary judgment case; it presents the
                                                                     Eloisa Casas would have suffered less. Dr. Daller could have
higher evidentiary standard that Palacios rejected for expert
                                                                     stated that conclusion in greater detail, of course, but “[a]
reports. Earle v. Ratliff, 998 S.W.2d 882, 890 (Tex.1999)
                                                                     report need not marshal all the plaintiff's proof.” Palacios, 46
(“Summary judgment can be granted on the affidavit of an
                                                                     S.W.3d at 878. Daller's report includes his opinions on (1)
interested expert *543 witness, ... but the affidavit must not
                                                                     the applicable standard of care (to maintain vigilance over a
be conclusory.... [R]ather, the expert must explain the basis of
                                                                     patient's treatment), (2) the manner in which the care failed to
his statements to link his conclusions to the facts.”). Similarly,
                                                                     meet that standard (failing to ensure the treatment he ordered
the standard employed in City of San Antonio v. Pollock, 284
                                                                     was actually administered), and (3) the causal connection
S.W.3d 809, 817–18 (Tex.2009), also cited by the Court, is
                                                                     between the failure and the claimed injury (without the
inapplicable here, since it examined an expert report under the
                                                                     antibiotics, the patient's pain and suffering increased and she
“no evidence” standard of review. See ––– S.W.3d at ––––.
                                                                     required additional hospitalization).

In Palacios we held that an expert report that failed to
                                                                     A “good faith effort” does not require that the report “meet
articulate a standard of care or explain how the defendant
                                                                     the same requirements as the evidence offered in a summary-
hospital breached that standard was not a good faith effort to
                                                                     judgment proceeding or at trial”; therefore, an expert report
comply with the statutory requirements. Palacios, 46 S.W.3d
                                                                     does not fail the good faith effort test merely because it
at 880. The expert in that case blamed the hospital for taking
                                                                     may not later prove legally sufficient to support a judgment.
no action to prevent a patient from falling out of his bed,
                                                                     Id. at 879. So, here, whether the Casas estate ultimately
even though the patient “had a habit of trying to undo his
                                                                     amassed sufficient proof in an adversarial trial is beside the
restraints.” Id. at 879–880. The report, as such, was not a fair
                                                                     point; the claim itself was far from frivolous. See id. at 878
summary of the evidence because it neglected to articulate
                                                                     (noting that “one purpose of the expert-report requirement
what actions the hospital should have taken that it did not.
                                                                     is to deter frivolous *544 claims”). The law imposes a
Id. at 880. Thus, the trial court did not abuse its discretion by
                                                                     penalty for filing a frivolous suit. Only by today's decree
dismissing the plaintiff's claim for lack of a good faith effort
                                                                     does it also punish a claimant for failing to win an arguably
to summarize the expert's opinions.
                                                                     meritorious case. Cf. TransAmerican Natural Gas Corp. v.
                                                                     Powell, 811 S.W.2d 913, 918 (1991) (holding that “sanctions
Subsequently, in Bowie Memorial Hospital v. Wright, we
                                                                     cannot be used to adjudicate the merits of a party's claims or
held that the trial court did not abuse its discretion in
                                                                     defenses unless a party's hindrance of the ... process justifies
concluding that an expert report failed to comply with the
                                                                     a presumption that its claims or defenses lack merit.”).
statute, as the report did not “establish how any act or
omission of employees of Bowie Memorial Hospital caused
                                                                     I agree with the Court that the Estate failed to prove causation
or contributed to [the patient's] injuries.” See Bowie Mem'l
                                                                     at trial; I disagree that, as to Dr. Jelinek, the expert report
Hosp. v. Wright, 79 S.W.3d 48, 51–53 (Tex.2002) (quoting
                                                                     was not a good faith attempt to comply with the statute. I
the expert in that case as speculating, “I do believe that it
                                                                     respectfully dissent in part from the Court's judgment.
is reasonable to believe that if the x-rays would have been
correctly read and the appropriate medical personnel acted
upon those findings then [the plaintiff] would have had the          Justice LEHRMANN, dissenting in part.
possibility of a better outcome.”). We observed that a report


                © 2015 Thomson Reuters. No claim to original U.S. Government Works.                                              15
Jelinek v. Casas, 328 S.W.3d 526 (2010)
54 Tex. Sup. Ct. J. 272

                                                                            of section 13.01(g).” Walker v. Gutierrez, 111 S.W.3d 56,
I fully join Chief Justice Jefferson's dissent. I write separately,
                                                                            62 (Tex.2003). Thus, health care claimants could receive
however, to highlight the incongruity inherent in the Court's
                                                                            an opportunity to rectify deficiencies in a report if they
decision to remand the case for an award of attorney's fees
                                                                            could show that they did not intentionally, or with conscious
and costs under former article 4590i § 13.01(e), given this
                                                                            indifference, submit an inadequate report.
case's circumstances. See TEX.REV.CIV. STAT. art. 4590i
§ 13.01(e) (repealed 2003) 1 . The Court presumes that Dr.
                                                                            Here, the Casases never had the chance to request an
Michael Jelinek is entitled to attorney's fees because the
                                                                            opportunity to cure any deficiencies in their report because
expert report filed by Eloisa Casas's estate 2 was, on appeal,              the trial court determined that the report adequately complied
determined to be insufficient. But, after a pre-trial hearing               with section 13.01(d). In Gutierrez, we were guided by our
was held on the defendant's motion to dismiss the lawsuit, the              recognition that it would be “perverse” to allow a claimant
trial court rejected Dr. Jelinek's contention that the report was           who filed no report a second chance to comply with the
inadequate; consequently, the Casases had no opportunity to                 statute's expert report requirement, while “punishing those
rectify any deficiencies as the statute and our precedent would             who attempt to comply with the statute but fail.” Id. In
have allowed.                                                               this case, perversely, the Casases may have been in a better
                                                                            position *545 than they are now if the trial court had
1       See Act of May 5, 1995, 74th Leg., R.S., ch. 140, § 1,              found that the report was inadequate; they might have had an
        1995 Tex. Gen. Laws 985, 986, amending the Medical                  opportunity to eliminate any deficiencies.
        Liability and Insurance Improvement Act of Texas, Act
        of May 30, 1977, 65th Leg., R.S., ch. 817, 1977 Tex.                I agree fully with Chief Justice Jefferson that the report
        Gen. Laws 2039, 2041, repealed by Act of June 2, 2003,              represents a good-faith effort to comply with section 13.01.
        78th Leg., R.S., ch. 204, § 10.09, 2003 Tex. Gen. Laws              Even if it did not, however, I would remand the case to
        847, 884. For ease of reference, I will refer to the relevant       allow the Casases an opportunity to show that their failure
        provisions as they were identified in article 4590i.
                                                                            to present an adequate report was not intentional or the
2       I refer to the estate, which was represented by Casas's             result of conscious indifference. See City of DeSoto v. White,
        husband and son, as “the Casases.”                                  288 S.W.3d 389, 401 (Tex.2009) (remanding in the interest
                                                                            of justice sua sponte to allow police officer “to make an
Section 13.01(e) of article 4590i provided for an order
                                                                            appellate election with full knowledge of his appellate rights
awarding attorney's fees and costs if a health care claimant
                                                                            and with knowledge of” the guidance provided in Court's
failed to supply an expert report within the time required
                                                                            opinion). In my view, the Casases should not be assessed
under subsection (d)—180 days. But the statute provided
                                                                            attorney's fees and costs if they can make the showing section
several avenues for health care claimants to obtain an
                                                                            13.01(g) requires and then submit a report complying with the
extension of the 180–day deadline, including section
                                                                            statute. For these reasons, as well as those expressed by Chief
13.01(g). That provision required the trial court to grant a
                                                                            Justice Jefferson, I respectfully dissent in part.
thirty-day extension of the statutory deadline if a claimant's
failure to provide an expert report was not intentional or
the result of conscious indifference. And we have expressly                 All Citations
held that “a party who files a timely but inadequate expert
report may seek relief under the grace period provisions                    328 S.W.3d 526, 54 Tex. Sup. Ct. J. 272

End of Document                                                         © 2015 Thomson Reuters. No claim to original U.S. Government Works.




                 © 2015 Thomson Reuters. No claim to original U.S. Government Works.                                                   16
Kelly v. Rendon, 255 S.W.3d 665 (2008)


                                                                  Affirmed.
                    255 S.W.3d 665
                Court of Appeals of Texas,
                  Houston (14th Dist.).                            West Headnotes (25)

      Michael V. KELLY, II, M.D. and Michael V.
     Kelly, II, M.D., P.A. d/b/a Aesthetic Surgery                 [1]   Health
     Center of Houston; Amit Annamaneni, M.D.                                Affidavits of merit or meritorious defense;
    and Respiratory Center of North Houston, P.A.;                       expert affidavits
    Luis Enrique Castillo, M.D. and North Houston                        Expert report need not marshal all of the
    Infectious Disease Associates Correctly Named                        plaintiff's proof, but it must include the expert's
     North Houston Infectious Disease Associates,                        opinion on each of the elements identified in
                                                                         the health care liability statute. V.T.C.A., Civil
   P.A.; and Houston Northwest Partners Ltd. d/b/
                                                                         Practice & Remedies Code § 74.351(r)(6).
   a Houston Northwest Medical Center; Appellants
                            v.                                           2 Cases that cite this headnote
 Isidro RENDON, Individually and as Representative
     of the Estate of Yolanda Leal Rendon; Julian
                                                                   [2]   Health
        Rendon; and Lauren Rendon; Appellees.                                Affidavits of merit or meritorious defense;
                                                                         expert affidavits
      No. 14–07–00622–CV.           |   March 27, 2008.
                                                                         In setting out the expert's opinions in health care
Synopsis                                                                 liability action, the plaintiff is not required to
Background: Estate of patient, who died as a result of                   present evidence in the expert report as if it were
complications from necrotizing fasciitis following tummy                 actually litigating the merits at this preliminary
tuck procedure, brought medical malpractice action against               stage of the lawsuit, and instead, the information
doctors, surgery center, and hospital. The 80th District                 in the report can be informal as it does not have
Court, Harris County, Lynn M. Bradshaw-Hull, J., denied                  to meet the same standards as evidence offered
defendants' motions to dismiss, and they appealed.                       in a summary judgment proceeding or at trial.
                                                                         V.T.C.A., Civil Practice & Remedies Code §
                                                                         74.351(r)(6).

Holdings: The Court of Appeals, John S. Anderson, J., held               2 Cases that cite this headnote
that:

[1] doctor, who was board certified in both general                [3]   Health
surgery and plastic surgery and who had experience treating                  Affidavits of merit or meritorious defense;
individuals with the same condition as patient, was qualified            expert affidavits
to render expert opinion on standard of care for plastic                 Expert report in health care liability action is
surgeon;                                                                 not required to prove the defendant's liability.
                                                                         V.T.C.A., Civil Practice & Remedies Code §
[2] internal medicine specialist/ infectious disease physician           74.351(r)(6).
and internal medicine/critical care physician were qualified
to render expert opinions on the standard of care for a plastic          1 Cases that cite this headnote
surgeon; and
                                                                   [4]   Health
[3] nurses' reports, standing alone, could not meet the                      Affidavits of merit or meritorious defense;
statutory expert report requirement on medical causation.                expert affidavits
                                                                         Expert report in health care liability action must
                                                                         provide only enough information to fulfill two


               © 2015 Thomson Reuters. No claim to original U.S. Government Works.                                             1
Kelly v. Rendon, 255 S.W.3d 665 (2008)


       purposes: (1) it must inform the defendant of                 from necrotizing fasciitis following tummy tuck
       the specific conduct the plaintiff has called into            procedure. V.T.C.A., Civil Practice & Remedies
       question and (2) it must provide a basis for the              Code § 74.401(a)(1).
       trial court to conclude that the claims have merit.
       V.T.C.A., Civil Practice & Remedies Code §                    1 Cases that cite this headnote
       74.351(r)(6).
                                                              [9]    Evidence
       3 Cases that cite this headnote
                                                                         Due care and proper conduct in general
                                                                     An internal medicine specialist/infectious
 [5]   Health                                                        disease physician and internal medicine/critical
           Affidavits of merit or meritorious defense;               care physician were qualified to render expert
       expert affidavits                                             opinions on the standard of care for a plastic
       In deciding whether the statutory standard has                surgeon in health care liability action involving
       been met for expert report under health care                  patient, who died as result of complications
       liability statute, the trial court examines only the          from necrotizing fasciitis following tummy tuck
       four corners of the expert's report and curriculum            procedure; the relevant medical services were
       vitae. V.T.C.A., Civil Practice & Remedies Code               those for a post-surgical patient showing signs
       § 74.351(r)(6).                                               and symptoms of infection, and both experts had
                                                                     extensive education, training, and experience in
       5 Cases that cite this headnote                               treating individuals similarly situated to patient.
                                                                     V.T.C.A., Civil Practice & Remedies Code §
 [6]   Appeal and Error                                              74.401(a)(1), (c)(2).
          Rulings on Motions Relating to Pleadings
                                                                     6 Cases that cite this headnote
       Appellate courts review a trial court's ruling as
       to the adequacy of an expert report under health
       care liability statute for an abuse of discretion      [10]   Evidence
       standard. V.T.C.A., Civil Practice & Remedies                     Due care and proper conduct in general
       Code § 74.351(r)(6).                                          Health care liability statute does not require
                                                                     a medical expert be practicing in the exact
       2 Cases that cite this headnote                               same field as the defendant physician, but,
                                                                     instead, requires only that the expert be actively
 [7]   Appeal and Error                                              practicing medicine in rendering medical care
          Abuse of discretion                                        services relevant to the claim. V.T.C.A., Civil
                                                                     Practice & Remedies Code § 74.401(c)(2).
       Appellate court may not reverse a trial court's
       discretionary ruling simply because appellate                 5 Cases that cite this headnote
       court might have decided it differently.

       Cases that cite this headnote                          [11]   Evidence
                                                                         Due care and proper conduct in general
 [8]   Evidence                                                      Doctor, who was board certified in both general
           Due care and proper conduct in general                    surgery and plastic surgery, was qualified to
                                                                     render expert opinion on standard of care
       Doctor, who was board certified in both general
                                                                     for infectious disease specialist in health care
       surgery and plastic surgery and who had
                                                                     liability action involving patient, who died
       experience treating individuals with the same
                                                                     as result of complications from necrotizing
       condition as patient, was qualified to render
                                                                     fasciitis following tummy tuck procedure;
       expert opinion on the standard of care for plastic
                                                                     fact that doctor was plastic surgeon did not
       surgeon in health care liability action involving
                                                                     automatically preclude him from rendering
       patient, who died as a result of complications


              © 2015 Thomson Reuters. No claim to original U.S. Government Works.                                          2
Kelly v. Rendon, 255 S.W.3d 665 (2008)


        an expert opinion against infectious disease                 Because the plain language of the health care
        specialist, and doctor stated that he had treated            liability statute defined “physician” to include
        many individuals with the same condition as                  a person licensed to practice medicine in one
        patient, and he had performed diastasis recti                or more states in the United States and each of
        abdominoplasty surgery on numerous occasions                 patient's experts met that requirement, experts
        and had diagnosed and treated patients who had               were not unqualified on the basis that they were
        been diagnosed as having necrotizing fasciitis.              not licensed in the State of Texas. V.T.C.A.,
        V.T.C.A., Civil Practice & Remedies Code §                   Civil Practice & Remedies Code § 74.401(g)(1).
        74.401(a)(1).
                                                                     Cases that cite this headnote
        3 Cases that cite this headnote
                                                              [16]   Health
 [12]   Evidence                                                         Affidavits of merit or meritorious defense;
            Due care and proper conduct in general                   expert affidavits
        Fact that doctor was a plastic surgeon and                   Under the health care liability statute, a nurse
        not an infectious disease specialist did not                 was not qualified to render an opinion on
        automatically preclude doctor, who was plastic               medical causation, and accordingly, nurses'
        surgeon, from rendering an expert opinion                    reports, standing alone, could not meet the
        against an infectious disease expert in health               statutory expert report requirement on medical
        care liability action. V.T.C.A., Civil Practice &            causation. V.T.C.A., Civil Practice & Remedies
        Remedies Code § 74.401(c)(2).                                Code § 74.351(r)(5)(C).

        Cases that cite this headnote                                2 Cases that cite this headnote


 [13]   Evidence                                              [17]   Health
            Due care and proper conduct in general                       Affidavits of merit or meritorious defense;
        Doctor, who was board certified in both                      expert affidavits
        general surgery and plastic surgery, and internal            While a nurse's report, standing alone, is
        medicine/infectious disease physician were both              inadequate to meet the requirements of the health
        qualified to render expert opinions on the                   care liability statute as to medical causation,
        standard of care for pulmonologist in health care            nothing in the statute prohibits an otherwise
        liability action involving patient, who died as a            qualified physician from relying on a nurse's
        result of complications from necrotizing fasciitis           report in the formation of the physician's own
        following tummy tuck procedure. V.T.C.A.,                    opinion. V.T.C.A., Civil Practice & Remedies
        Civil Practice & Remedies Code § 74.401(a)(1).               Code § 74.351(r)(5)(C); Rules of Evid., Rule
                                                                     703.
        Cases that cite this headnote
                                                                     7 Cases that cite this headnote
 [14]   Health
            Standard of Care                                  [18]   Health
        The public or private status of a hospital does not              Affidavits of merit or meritorious defense;
        impact the standard of care expected of a doctor             expert affidavits
        practicing in that hospital.                                 Because doctors incorporated nurse's report
                                                                     into their own expert reports and relied on
        Cases that cite this headnote                                nurse's report in the formation of their opinions
                                                                     regarding the standard of care and causation
 [15]   Evidence                                                     as it applied to hospital, trial court did not
            Due care and proper conduct in general                   abuse its discretion in considering nurse's report



               © 2015 Thomson Reuters. No claim to original U.S. Government Works.                                        3
Kelly v. Rendon, 255 S.W.3d 665 (2008)


        in its determination of hospital's motion to                       Affidavits of merit or meritorious defense;
        dismiss patient's health care liability claim for              expert affidavits
        inadequacy of patient's expert reports since it had            Doctor's expert report was not deficient under
        become part of the reports of patient's physician              health care liability statute as it addressed
        experts. V.T.C.A., Civil Practice & Remedies                   the standard of care in sufficient detail to
        Code § 74.351(r)(5)(C).                                        apprise each defendant physician of patient's
                                                                       complaints regarding their alleged violations
        4 Cases that cite this headnote
                                                                       of the standard of care, and with regard to
                                                                       his causation opinions, doctor's expert report
 [19]   Health                                                         specifically addressed each defendant physician
            Affidavits of merit or meritorious defense;                and linked his causation opinions to specific
        expert affidavits                                              facts, such that each defendant physician had
        There is no requirement that a health care                     notice of the complaints against them. V.T.C.A.,
        liability plaintiff file a single, all-encompassing            Civil Practice & Remedies Code § 74.351.
        expert report. V.T.C.A., Civil Practice &
                                                                       6 Cases that cite this headnote
        Remedies Code § 74.351(i).

        Cases that cite this headnote                           [23]   Health
                                                                           Affidavits of merit or meritorious defense;
 [20]   Health                                                         expert affidavits
            Affidavits of merit or meritorious defense;                Under health care liability statute, expert reports
        expert affidavits                                              are simply a preliminary method to show a
        The fact that expert's report addressed only                   plaintiff has a viable cause of action that is not
        one of the defendant physicians was of no                      frivolous or without expert support. V.T.C.A.,
        consequence because there was no requirement                   Civil Practice & Remedies Code § 74.351(r)(6).
        that a health care liability plaintiff file a single,
                                                                       5 Cases that cite this headnote
        all encompassing expert report and because,
        when all of the expert reports were considered
        together, they addressed all the defendant              [24]   Health
        physicians. V.T.C.A., Civil Practice & Remedies                    Affidavits of merit or meritorious defense;
        Code § 74.351(i).                                              expert affidavits
                                                                       Because patient's experts reviewed doctor's
        Cases that cite this headnote
                                                                       autopsy reports in the preparation of their
                                                                       opinions and addressed the final cause of death,
 [21]   Health                                                         necrotizing fasciitis, following tummy tuck
            Affidavits of merit or meritorious defense;                procedure, the expert reports met the statutory
        expert affidavits                                              requirements under health care liability statute.
        The two-fold purpose of an expert report under                 V.T.C.A., Civil Practice & Remedies Code §
        health care liability statute is to inform the                 74.351(r)(6).
        defendants of the specific conduct the plaintiff
                                                                       Cases that cite this headnote
        has called into question, and to provide the trial
        court with a basis to determine whether or not
        the plaintiff's claims have merit. V.T.C.A., Civil      [25]   Costs
        Practice & Remedies Code § 74.351.                                 Injuries to persons
                                                                       Because trial court did not abuse its discretion
        2 Cases that cite this headnote
                                                                       when it denied defendant physicians' motions
                                                                       to dismiss patient's health care liability claim
 [22]   Health                                                         for inadequacy of expert reports, defendant


               © 2015 Thomson Reuters. No claim to original U.S. Government Works.                                           4
Kelly v. Rendon, 255 S.W.3d 665 (2008)


        physicians were not entitled to their reasonable          On September 20, 2004, forty-three year old Yolanda
        attorney fees and costs. V.T.C.A., Civil Practice         Rendon consulted Dr. Kelly complaining of weakness and
        & Remedies Code § 74.351(b)(1).                           protrusion of the abdomen. Dr. Kelly examined Ms. Rendon
                                                                  and recommended she have diastasis recti abdominoplasty
        Cases that cite this headnote                             surgery, a surgical procedure commonly called a tummy tuck.
                                                                  On October 20, 2004, Ms. Rendon had preoperative lab work
                                                                  performed with many bacteria noted in the urine. No further
                                                                  lab work was done and no preoperative antibiotic therapy
Attorneys and Law Firms                                           was ordered. On November 1, Dr. Kelly performed the
                                                                  tummy tuck procedure on Ms. Rendon with no complications
 *668 Curry L. Cooksey, Spring, Alicia T. Kramer, Angela          reported.
N. Clarke, Houston, D. Allan Jones, The Woodlands, Gary
Sommer, James R. Boston, Marion Woodrow Kruse, Jr.,               On the evening of November 2, Ms. Rendon experienced a
Richard M. Law, Houston, for appellants.                          fever of 101.3. The Northwest Houston nurse contacted Dr.
                                                                  Kelly by telephone. Dr. Kelly ordered Tylenol for the fever.
John M. O'Quinn, Stacy Lee Little, Neil C. McCabe, Houston,
                                                                  Dr. Kelly did not order any lab work or x-ray testing and did
for appellees.
                                                                  not go to the hospital to evaluate Ms. Rendon's condition.
Panel consists of Chief Justice HEDGES and Justices
ANDERSON, and BOYCE.                                              Beginning soon after midnight on November 3, Ms. Rendon's
                                                                  condition began to rapidly worsen. In addition to fever, Ms.
                                                                  Rendon experienced nausea, vomiting, burning abdominal
                         OPINION                                  pain, decreased urine output that was dark and concentrated,
                                                                  and weakness. The nurse determined Ms. Rendon was
JOHN S. ANDERSON, Justice.                                        experiencing decreased oxygen saturation and her lungs were
                                                                  congested. Despite Ms. Rendon's deteriorating condition, the
Appellees, Isidro Rendon, individually and as representative      nurses made no effort to contact Dr. Kelly. Dr. Kelly finally
of the estate of Yolanda Rendon, Julian Rendon, and Lauren        saw Ms. Rendon at 10:00 a.m. the morning of November
Rendon, filed suit against appellants, Michael V. Kelly, II,      3. Dr. Kelly concluded Ms. Rendon's fever was caused by
M.D. and Michael V. Kelly, II, M.D., P.A. d/b/a Aesthetic         her getting out of bed. Dr. Kelly ordered no diagnostic tests,
Surgery Center of Houston (collectively “Dr. *669 Kelly”);        discontinued the Tylenol and started her on pain medication
Amit Annamaneni, M.D. and Respiratory Center of North             and an oral antibiotic.
Houston, P.A. (collectively “Dr. Annamaneni”); Luis Enrique
Castillo, M.D. and North Houston Infectious Disease               About noon on November 3, Ms. Rendon's oxygenation level
Associates, correctly named North Houston Infectious              continued to decrease and she complained of dizziness. The
Disease Associates, P.A. (collectively “Dr. Castillo”);           nurses started Ms. Rendon on supplemental oxygen therapy
and Houston Northwest Partners Ltd. d/b/a Houston                 that resulted in a small increase in Ms. Rendon's oxygenation
Northwest Medical Center (“Houston Northwest”), for               level. The duty nurses did not report this development to Dr.
medical malpractice. Appellants each filed objections to          Kelly.
appellees' expert witness reports and moved to dismiss
appellees' suit pursuant to section 74.351 of the Texas           During the afternoon of November 3, Ms. Rendon's condition
Civil Practice and Remedies Code. The trial court denied          continued to worsen as it was determined her urine output
appellants' motions. Appellants then filed this interlocutory     over the past eight hours was only fifty milliliters. When
appeal contending the trial court abused its discretion when it   the nurses did contact Dr. Kelly, he ordered additional
denied their motions to dismiss. We affirm.                       supplemental oxygen and ordered a chest x-ray, which was
                                                                  performed at 2:00 p.m. This x-ray revealed no acute disease.
                                                                  At 4:30 p.m., the nurses again contacted Dr. Kelly by
  FACTUAL AND PROCEDURAL BACKGROUND                               telephone and he ordered a CBC test and IV fluid hydration.
                                                                  The CBC test noted the white blood count was at a normal
                                                                  level but with bands exhibiting high critical at 40%. Starting



               © 2015 Thomson Reuters. No claim to original U.S. Government Works.                                           5
Kelly v. Rendon, 255 S.W.3d 665 (2008)


at 4:31 p.m. and continuing for the rest of the evening,          antibiotics at 7:50 p.m. and at 11:50 p.m., a third antibiotic
Ms. Rendon's condition severely deteriorated. Ms. Rendon's        was added.
blood pressure was critically low and she required continued
supplemental *670 oxygen therapy to maintain her oxygen           As November 3 came to a close, all three doctors treating
saturation levels. At 5:00 p.m., a Foley catheter was inserted    Ms. Rendon agreed she was in septic shock, but none
and Ms. Rendon produced only a small amount of urine,             recommended she be taken back to surgery for exploration
which was cloudy and had a foul odor. Throughout the              and drainage of the surgical wound.
afternoon of November 3, Ms. Rendon was kept on the regular
post op inpatient unit.                                           Throughout November 4, Ms. Rendon's condition continued
                                                                  to decline. Ms. Rendon's white blood count was high and
At 6:00 p.m., Dr. Kelly consulted with Dr. Annamaneni, a          continued to increase. She continued to receive morphine for
critical care specialist and pulmonologist. Dr. Annamaneni        the severe pain she suffered in her abdomen and legs. Ms.
saw Ms. Rendon an hour later and ordered she be transferred       Rendon also began to experience additional complications
to the intensive care unit (“ICU”). Dr. Annamaneni noted          as a result of the severe sepsis: pulmonary edema, kidney
Ms. Rendon had fever, tenderness in the midepigastric and         failure, and multi-system organ failure. At 5:30 p.m., Dr.
lower rib cage areas, feeble pulse, headache, shortness of        Kelly aspirated a small amount of fluid from the lower area of
breath, and severe hypotension. Dr. Annamaneni also noted         the abdominal wound, which was sent to the lab for testing.
Ms. Rendon complained of having burning, crawling pain
extending from below the left breast area all the way to          On November 5, Ms. Rendon had severe difficulty breathing,
the left ankle for the last day or so. Dr. Annamaneni's           which required she be intubated and placed on a ventilator.
differential diagnosis included likely sepsis and septic shock,   At 9:40 a.m., the lab notified the ICU that the body fluid
and he noted the source could be the abdomen, urinary tract       collected by Dr. Kelly the previous evening was positive
infection, or the lungs. Ms. Rendon's white blood count was       for Beta Hymolytic Streptococcus Group A bacteria. Dr.
now twenty-three. As part of his transfer of Ms. Rendon to        Kelly noted the lab results revealed necrotizing fasciitis.
the ICU, Dr. Annamaneni ordered additional tests. Following       Also on November 5, Dr. Castillo called in another surgeon
Dr. Annamaneni's evaluation, Ms. Rendon was transferred to        for evaluation *671 of Ms. Rendon for a possible return
the ICU at 7:45 p.m.                                              to surgery for debridement of the necrotizing fasciitis.
                                                                  Additional antibiotic therapy was also ordered. While Dr.
At 7:50 p.m., Dr. Castillo, an infectious disease specialist,     Castillo agreed Ms. Rendon had to be taken back to surgery
assessed Ms. Rendon and noted she looked acutely ill              for exploration, drainage, and debridement of her abdominal
with low blood pressure, elevated heart rate, edema of the        wound, because of her critically low platelet count, her return
abdomen, and erythema. In addition, Dr. Castillo noted Ms.        was delayed while she was given platelets and fresh, frozen
Rendon's abdomen was so tender he could not deeply palpate        plasma.
it. Dr. Castillo noted Ms. Rendon was in shock two days after
her abdominoplasty, this shock was probable septic, and the       Ms. Rendon was taken into surgery at 9:05 p.m. in critical
operative site was the most likely source of infection. Dr.       condition. While Ms. Rendon was in the operating room, a
Castillo then recommended Ms. Rendon have a CT scan of            code was called at 9:27 p.m. and all efforts to resuscitate
her abdomen and pelvis. However, he did not order the CT be       her were unsuccessful with those efforts ending at 9:45 p.m.
performed, nor did Dr. Kelly or Dr. Annamaneni.                   Prior to the code, Dr. Kelly opened the surgical wound and
                                                                  discovered a considerable amount of necrotic fatty tissue
At 9:30 p.m., Ms. Rendon's condition was so critical, she was     and suctioned off the necrotic tissue and a large amount
started on two pressor medications to keep her systolic blood     of murky fluid from Ms. Rendon's abdomen. Dr. Kelly did
pressure up. At 10:00 p.m., Ms. Rendon complained of pain         not send any of the removed necrotic tissue or the fluid to
of such severity in her abdomen and legs that Dr. Annamaneni      pathology, but instead, discarded it. The Death Summary,
ordered she be given morphine every two hours as needed           signed by Dr. Kelly noted the diagnoses at death of “diastasis
for pain. Ms. Rendon developed generalized edema and a            recti” 1 and necrotizing fasciitis. Dr. Kelly also signed Ms.
third medication was added at 11:45 p.m. for blood pressure       Rendon's Certificate of Death, which noted the immediate
support. Ms. Rendon had been started on two intravenous           cause of death to be septic shock with the underlying cause
                                                                  of necrotizing fasciitis.



               © 2015 Thomson Reuters. No claim to original U.S. Government Works.                                            6
Kelly v. Rendon, 255 S.W.3d 665 (2008)


                                                                    [1]     [2]   [3]    [4] This is a health care liability lawsuit
1      This is the original diagnosis leading to the tummy tuck    governed by chapter 74 of the Civil *672 Practice &
       procedure.                                                  Remedies Code. Tex. Civ. Prac. & Rem.Code Ann. § 74.001
                                                                   et seq. (Vernon 2005). Under these provisions, a claimant
On November 7, 2004, Dr. Albert Chen conducted an
                                                                   is required to produce an expert report within 120 days of
autopsy. Dr. Chen issued a Preliminary Report on November
                                                                   the date the claim is filed. Id. at § 74.351(a). Under the
7, 2004. Dr. Chen issued his Final Report on January 19,
                                                                   statute, the expert report must provide a fair summary of
2005, and a Supplemental Report on September 14, 2006. Dr.
                                                                   the expert's opinions regarding the applicable standards of
Chen concluded Ms. Rendon died as a result of complications
                                                                   care, the manner in which the care rendered by the defendant
from necrotizing fasciitis.
                                                                   physician or health care provider failed to meet the standards,
                                                                   and the causal relationship between that failure and the injury,
Appellees eventually filed a health care liability lawsuit
                                                                   harm, or damages claimed. Id. at § 74.351(r)(6). An expert
against appellants. Pursuant to section 74.351 of the Texas
                                                                   report need not marshal all of the plaintiff's proof, but it must
Civil Practice and Remedies Code, appellees served on
                                                                   include the expert's opinion on each of the elements identified
appellants the reports of six different experts: (1) Dr. Hubert
                                                                   in the statute. See Am. Transitional Care Ctrs. of Tex.,
Weinberg, a board certified plastic surgeon; (2) Dr. Richard
                                                                   Inc. v. Palacios, 46 S.W.3d 873, 878 (Tex.2001) (applying
F. Edlich, a board certified general and plastic surgeon; (3)
                                                                   predecessor statute). In setting out the expert's opinions on
Dr. Paul Marik, who is board certified in internal medicine
                                                                   each of these elements, the plaintiff is not required to present
and critical care medicine; (4) Dr. C. David Bakken, who is
                                                                   evidence in the report as if it were actually litigating the
board certified in internal medicine and infectious disease;
                                                                   merits at this preliminary stage of the lawsuit. Id. at 879.
(5) Lisa Ruth–Sahd, a registered nurse certified in critical
                                                                   Indeed, the information in the report can be informal as it does
care and emergency nursing; and (6) Sharla Shumaker, a
                                                                   not have to meet the same standards as evidence offered in
registered nurse with experience in critical care nursing. In
                                                                   a summary judgment proceeding or at trial. Id. The expert
response, appellants, arguing the reports were deficient, filed
                                                                   report is not required to prove the defendant's liability. See
objections to each of the expert reports and moved the trial
                                                                   Russ v. Titus Hosp. Dist., 128 S.W.3d 332, 341 (Tex.App.-
court to dismiss appellees' suit. Following a hearing, the trial
                                                                   Texarkana 2004, pet. denied) (applying predecessor statute).
court denied appellants' motions. This interlocutory appeal
                                                                   Instead, the report must provide only enough information to
followed.
                                                                   fulfill two purposes: (1) it must inform the defendant of the
                                                                   specific conduct the plaintiff has called into question and (2)
                                                                   it must provide a basis for the trial court to conclude that the
                       DISCUSSION                                  claims have merit. Palacios, 46 S.W.3d at 879.

In this appeal, each set of appellants filed separate briefs        [5] In deciding whether the statutory standard has been met,
raising issues challenging the trial court's denial of their       the trial court examines only the four corners of the expert's
motions to dismiss. As might be expected, there is significant     report and curriculum vitae. Mem'l Hermann Healthcare Sys.
overlap between many of these issues. Therefore, to more           v. Burrell, 230 S.W.3d 755, 758 (Tex.App.-Houston [14th
efficiently resolve this appeal, and for the sake of clarity,      Dist.] 2007, no pet.). If the trial court determines the expert
we will consolidate these common issues and address them           report does not represent a good faith effort to comply with
together. These consolidated issues can be broken down as          the statutory definition, then the trial court, subject to its
follows: (1) the qualifications of some or all of appellees'       discretionary authority to grant a thirty day extension to
experts to render expert opinions against appellants; (2) the      cure the deficiencies in the report, must grant a motion to
adequacy of the appellees' expert reports as some fail to name     dismiss challenging the report's adequacy. Tex. Civ. Prac. &
a specific defendant; and (3) the adequacy of the appellees'       Rem.Code Ann. § 74.351(c), (l ).
expert reports on the appropriate standard of care and on
causation. After addressing these consolidated issues, we will
then turn to the remaining issues raised by a single appellant.    II. The Standard Of Review
                                                                    [6] [7] We review a trial court's ruling as to the adequacy of
                                                                   an expert report under an abuse of discretion standard. Estate
I. Expert Report Requirements                                      of Regis ex rel. McWashington v. Harris County Hosp. Dist.,
                                                                   208 S.W.3d 64, 67 (Tex.App.-Houston [14th Dist.] 2006,


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Kelly v. Rendon, 255 S.W.3d 665 (2008)


no pet.). The trial court abuses its discretion if it acts in an
arbitrary or unreasonable manner without reference to any            (c) In determining whether a witness is qualified on the
guiding rules or principles. Burrell, 230 S.W.3d at 757. We          basis of training or experience, the court shall consider
may not reverse a trial court's discretionary ruling simply          whether, at the time the claim arose or at the time the
because we might have decided it differently. Id.                    testimony is given, the witness:

                                                                     (1) is board certified or has other substantial training or
III. Are Appellees' Experts Qualified To Render                      experience in an area of medical practice relevant to the
Opinions Against Appellants?                                         claim; and

A. Appellees' Physician Experts                                      (2) is actively practicing medicine in rendering medical
Each of the physician appellants contend some or all of              care services relevant to the claim.
appellees' doctors are not qualified to render expert opinions
                                                                     ***
against them. In their challenges to appellees' physician
experts, appellants attempt to unduly limit the field of experts     (g) In this subchapter, “physician” means a person who is:
qualified to render opinions against them to (1) doctors
licensed only in the State of Texas; (2) who practice in the         (1) licensed to practice medicine in one or more states in
same medical discipline; and (3) in the same type of hospital        the United States....
as each appellant. The statute does not require such specificity
                                                                   Id. § 74.401.
when deciding a challenge to an expert's qualifications.

 *673 An expert providing opinion testimony regarding              1. Dr. Kelly's Qualification Challenges
whether a physician departed from the accepted standards of
health care must satisfy the requirements set forth in section     a. Dr. Edlich
74.401. Tex. Civ. Prac. & Rem.Code Ann. § 74.351(r)(5)(A).          [8] Dr. Kelly initially contends Dr. Edlich is not qualified
Section 74.401 provides:                                           to provide expert opinions because, in Dr. Kelly's view, he
                                                                   is not currently practicing medicine in a field relevant to the
  (a) In a suit involving a health care liability claim against    claims against Dr. Kelly and also was not doing so when Dr.
  a physician for injury to or death of a patient, a person        Kelly treated Ms. Rendon. We disagree. The combination of
  may qualify as an expert witness on the issue of whether         Dr. Edlich's report and curriculum vitae establish he is still
  the physician departed from accepted standards of medical        practicing medicine as a physician board certified in both
  care only if the person is a physician who:                      general surgery and plastic surgery, and he has experience
                                                                   treating patients with the same condition as Ms. Rendon. As
  (1) is practicing medicine at the time such testimony is
                                                                   this health care liability case involves the care of a patient
  given or was practicing medicine at the time the claim
                                                                   following plastic surgery, we hold Dr. Edlich meets the
  arose;
                                                                   requirements set forth in section 74.401(a)(1) of the Civil
  (2) has knowledge of accepted standards of medical care          Practice and Remedies Code. See Sanjar v. Turner, 252
  for the diagnosis, care, or treatment of the illness, injury,    S.W.3d 460, 465 (Tex.App.-Houston [14th Dist.] 2008, no
  or condition involved in the claim; and                          pet. h.) (citing In re Stacy K. Boone, P.A., 223 S.W.3d 398,
                                                                   407 (Tex.App.-Amarillo 2006, no pet.) (holding cardiologist
  (3) is qualified on the basis of training or experience to       was qualified to render expert opinion as to general surgeon's
  offer an expert opinion regarding those accepted standards       care because opinion was on post-operative therapy and
  of medical care.                                                 surgeon participated in management of that therapy)).

  (b) For the purpose of this section, “practicing medicine” or
  “medical practice” includes, but is not limited to, training     b. Doctors Bakken and Marik
  residents or students at an accredited school of medicine         [9]   Next, Dr. Kelly attacks the credentials of both
  or osteopathy or serving as a consulting physician to            Dr. Bakken, an internal medicine and infectious disease
  other physicians who provide direct patient care, upon the       physician, and Dr. Marik, an internal medicine and critical
  request of such other physicians.                                care physician, to render opinions on the standard of care for



                © 2015 Thomson Reuters. No claim to original U.S. Government Works.                                           8
Kelly v. Rendon, 255 S.W.3d 665 (2008)


a plastic surgeon *674 such as Dr. Kelly. Once again, we           surgeon the antibiotic therapy for the patient.” Dr. Castillo
disagree.                                                          then goes on to conclude that since Dr. Edlich is a plastic
                                                                   surgeon and not an infectious disease specialist, Dr. Edlich is
 [10] Here, Dr. Kelly takes the position that both Dr. Bakken      not qualified to render an expert opinion against him.
and Dr. Marik are not qualified to render opinions against
him because their medical specialty is in a different medical       [12] While Dr. Castillo is correct Dr. Edlich is a plastic
discipline from his own. However, the statute does not             surgeon and not an infectious disease specialist, we do
require a medical expert be practicing in the exact same           not agree this fact automatically precludes Dr. Edlich
field as the defendant physician, but instead must only            from rendering an expert opinion against an infectious
be actively practicing medicine in rendering medical care          disease expert. See Broders v. Heise, 924 S.W.2d 148, 154
services relevant to the claim. Tex. Civ. Prac. & Rem.Code         (Tex.1996) (applying predecessor statute). In his report, Dr.
Ann. § 74.401(c)(2). Here, the relevant medical services           Edlich states: “I have treated many patients with the same
are those for a post-surgical patient showing the signs and        condition as [Ms.] Rendon. I have performed diastasis recti
symptoms of infection.                                             abdominoplasty surgery on numerous occasions. I have also
                                                                   diagnosed and treated patients who have been diagnosed as
In his report, Dr. Bakken states he has thirty-three years         having necrotizing fasciitis.” For the same reasons we found
of experience specializing in infectious disease. Dr. Bakken       Dr. Bakken and Dr. Marik qualified to render an opinion
also states he has “treated many patients in the past with         relative to Dr. Kelly, we hold Dr. Edlich is qualified to render
similar conditions as [Ms.] Rendon. As [an] infectious disease     an opinion regarding Dr. Castillo's treatment of Ms. *675
specialist, [he has] been consulted multiple times for patients    Rendon. See Sanjar, 252 S.W.3d at 465; see also Blan, 7
with diagnoses of postoperative wound infections, sepsis, and      S.W.3d at 746–47.
necrotizing fasciitis.” In his report, Dr. Marik states he has
twenty-five years experience in the fields of pulmonary and
critical care medicine and is a professor of medicine and chief    3. Dr. Annamaneni's Qualification Challenges
of the division of pulmonary and critical care medicine at          [13] Dr. Annamaneni, a pulmonologist and critical care
Thomas Jefferson University. Dr. Marik also states he has          specialist, challenges the qualifications of each of appellees'
“treated many patients diagnosed with the same conditions          physician experts to render expert opinions against him. 2
as [Ms.] Rendon, including post-operative infection, sepsis,       According to Dr. Annamaneni, the medical services relevant
septic shock syndrome, and necrotizing fasciitis.” Because         to appellees' claims against him are the services provided by
both Dr. Bakken and Dr. Marik have extensive education,            a pulmonologist/critical care specialist practicing in a private
training, and experience in treating patients similarly situated   as opposed to a public hospital who was consulted by the
to Ms. Rendon, they are qualified to render an opinion on          operating plastic surgeon to evaluate a patient in multi-system
the standard of care at issue in this case. See Sanjar, 252        organ failure and to manage that patient's hemodynamics
S.W.3d at 465; see also Blan v. Ali, 7 S.W.3d 741, 746–47          and who then brought in an infectious disease specialist to
(Tex.App.-Houston [14th Dist.] 1999, no pet.) (holding, in a       evaluate, manage, and treat a suspected infectious process.
summary judgment case, that an expert physician-witness in
a healthcare liability case need not practice medicine in the      2      In the same issue on appeal, Dr. Annamaneni also
same field as the defendant physician but only establish they             challenges the qualifications of appellees' two nurse
are qualified to render an opinion on the condition involved              experts to render expert opinions against him. We
in the claim).                                                            address that contention below in section III(B).
                                                                   [14] Based on that statement of the medical services at issue,
                                                                   Dr. Annamaneni then contends Dr. Weinberg, Dr. Edlich, and
2. Dr. Castillo's Qualification Challenge
                                                                   Dr. Bakken all lack the training, education, and experience
 [11] Dr. Castillo only challenges the qualifications of
Dr. Edlich. In support of his position, Dr. Castillo argues        to serve as medical experts against him. 3 For the reasons
the medical services relevant to appellees' claims “are            stated in sections III(A)(1) and (2) above, we disagree these
the services provided by an infectious diseases consultant         doctors are not qualified to render an opinion against Dr.
requested to provide specialized knowledge about the               Annamaneni. Dr. Annamaneni also asserts that Dr. Marik,
management of antibiotic therapy for a patient following           a pulmonologist and critical care specialist like himself, is
abdominoplasty and to assume in lieu of the attending plastic      not qualified to render an opinion in this suit because he


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Kelly v. Rendon, 255 S.W.3d 665 (2008)


practices in a large, public hospital setting as opposed to a      requirements of the statute as to medical causation, nothing
private hospital setting. Dr. Annamaneni does not cite any         in the health care liability statute prohibits an otherwise
legal authority for this unique argument, and we are not           qualified physician from relying on a nurse's report in the
persuaded the public or private status of a hospital impacts       formation of the physician's own opinion. See Tex.R. Evid.
the standard of care expected of a doctor practicing in that       703 (stating an expert may base his opinion on facts or data
hospital.                                                          that is not admissible in evidence if it is of a type reasonably
                                                                   relied on by experts in that particular field); see also Packard
3      Because Dr. Weinberg addresses only Dr. Kelly's             v. Guerra, 252 S.W.3d 511, 532–33 (Tex.App.-Houston [14th
       treatment of Ms. Rendon and does not name Dr.               Dist.] 2008, no pet. h.) (holding physician experts could rely
       Annamaneni in his expert report, his opinions cannot be     on the expert opinion of an attorney in the formation of their
       used against Dr. Annamaneni. Therefore, we need not         own opinions regarding the standard of care and causation).
       reach the issue of whether Dr. Weinberg is qualified to     Because Dr. Edlich, Dr. Bakken, and Dr. Marik incorporated
       render an opinion against Dr. Annamaneni.                   Nurse Ruth–Sahd's report into their own and relied on it in the
 [15] Finally, Dr. Annamaneni contends appellees' physician        formation of their opinions regarding the standard of care and
experts are not qualified under the statute because they are not   causation as it applies to Houston Northwest, we conclude
licensed in the State of Texas. Because the plain language of      the trial court did not abuse its discretion in considering
the statute defines “physician” to include a person licensed to    Nurse Ruth–Sahd's report in its determination of Houston
practice medicine in one or more states in the United States       Northwest's motion to dismiss since it had become part of the
and each of appellees' physicians meets that requirement, we       reports of appellees' physician experts.
refuse to find them unqualified on that basis. Tex. Civ. Prac.
& Rem.Code Ann. § 74.401(g)(1). Having addressed each of           We overrule appellants' issues challenging the qualifications
Dr. Annamaneni's qualification arguments, we hold that Dr.         of appellees' expert witnesses. 4
Edlich, Dr. Bakken, and Dr. Marik are qualified to render
an expert opinion against Dr. Annamaneni. See Sanjar, 252          4      The fact we agree with appellants that Nurse
S.W.3d at 465; see also Blan, 7 S.W.3d at 746–47.                         Shumaker's report, standing alone, cannot address the
                                                                          issue of medical causation, does not change our
                                                                          holding overruling appellants' issues challenging the
B. Appellees' Nurse Experts                                               qualifications of appellees' experts because appellees
 [16] In addition to the reports of the four physicians,                  filed adequate reports which address medical causation
appellees also filed reports prepared by two nurses. Each                 in addition to the report of Nurse Shumaker. See Tex.
appellant challenges these reports by pointing out that nurses            Civ. Prac. & Rem.Code Ann. § 74.351(i) (stating there
are not qualified under the statute to render expert opinions             is no requirement that a health care liability plaintiff file
on the issue of causation. We agree with appellants that,                 a single, all encompassing report).
under the statute, a nurse is not qualified to render an
opinion on medical causation. Tex. Civ. Prac. & Rem.Code       IV. Did Appellees' Expert Reports Fail To Address Any
Ann. § 74.351(r)(5)(C). Accordingly, the reports of Nurse      Appellants?
Shumaker and Nurse Ruth–Sahd, standing alone, can not           [19]     [20] Dr. Castillo, Dr. Annamaneni, and Houston
meet the statutory report requirement on medical causation.    Northwest point out that Dr. Weinberg does not address their
Id. However, this does not end our analysis because appellees  role in the events underlying this lawsuit. Dr. Castillo also
filed *676 physician reports in addition to the reports        complains Dr. Marik does not address Dr. Castillo's role in
prepared by the nurses.                                        his report. Appellants are correct that Dr. Weinberg's report
                                                               does not address any appellant's actions except those of Dr.
 [17]    [18] In the present case, Dr. Edlich, Dr. Bakken, Kelly, and Dr. Marik does not address Dr. Castillo. Therefore,
and Dr. Marik reviewed the report of Nurse Ruth–Sahd and       if these two reports were the only reports filed by appellees,
incorporated it by reference into their own reports. Each      then the trial court would have abused its discretion in finding
physician then relied on Ruth–Sahd's report in rendering their appellees had met the statutory expert report requirement as
own opinions regarding the standard of care and medical        to each appellant. See Tex. Civ. Prac. & Rem.Code Ann. §
causation as it applies to Houston Northwest. While a          74.351(a) (requiring a health care liability plaintiff to serve
nurse's report, standing alone, is inadequate to meet the      an expert report addressing each physician or health care



               © 2015 Thomson Reuters. No claim to original U.S. Government Works.                                                   10
Kelly v. Rendon, 255 S.W.3d 665 (2008)


provider defendant). However, there is no requirement that a                 hospitalization when her necrotizing fasciitis became
health care liability plaintiff file a single, all encompassing              irreversible; and (4) morbidity and mortality rates for
report. Id. § 74.351(i). Here, in addition to Dr. Weinberg's                 patients similarly situated to Ms. Rendon. Appellants do
and Dr. Marik's reports, appellees filed expert reports by                   not cite any authority in support of their position that a
                                                                             section 74.351 report requires the type of extreme detail
two other physicians, as well as two nurses. Thus, when
                                                                             listed above to give defendants notice of the basis of
all of appellees' expert reports are considered together, they
                                                                             the claims against them and we are not persuaded the
address all appellants. Therefore, the fact Dr. Weinberg's
                                                                             statute dictates such a level of detail. Accordingly, we
report addressed only Dr. Kelly and Dr. Marik's ignored Dr.
                                                                             reject appellants' request to require that level of detail in
Castillo, is of no benefit to appellants. Packard, 252 S.W.3d                a section 74.351 expert report.
at 526–27.
                                                                      Dr. Edlich filed a twenty-six page report detailing his
                                                                      opinions regarding the care and treatment Ms. Rendon
We overrule appellants' issues arguing the trial court abused
                                                                      received from appellants. Dr. Edlich stated that, in the
its discretion based *677 on the fact each of appellees' expert
                                                                      preparation of his report, he reviewed Ms. Rendon's death
reports do not address every appellant.
                                                                      certificate, Ms. Rendon's autopsy reports, and medical
                                                                      records from Houston Northwest, Dr. Kelly, and Kelsey
V. Are Appellees' Expert Reports Deficient Because                    Seybold Clinic, Willowbrook. Dr. Edlich's report contains a
They Do Not Adequately Address The Standard Of Care                   section titled “Summary of Facts” that details, almost hour
And Causation?                                                        by hour, the events underlying this lawsuit beginning with
Appellants contend appellees' expert reports are deficient on         Ms. Rendon's initial consultation with Dr. Kelly, continuing
                                                                      through the tummy tuck procedure, her post-surgical care,
the issues of the standard of care 5 and causation because they
                                                                      and concluding with her death less than five days after
are conclusory and do not specifically address each appellant.
                                                                      the surgery. This summary includes Ms. Rendon's condition
Because Dr. Edlich is qualified to render an opinion as to the
liability of each appellant, for reasons of judicial economy,         throughout that time period. 7 Dr. Edlich *678 then lists
we initially focus our analysis on his report and will only           multiple standards of care for diagnosing and treating patients
examine the sufficiency of the remaining expert reports if we         demonstrating symptoms like Ms. Rendon's. 8 Dr. Edlich
determine Dr. Edlich's report is deficient on the issues of the       then embarks on a detailed explanation of how each appellant
standard of care and causation.                                       violated the required standard of care. 9 In the final section
                                                                      of his report, Dr. Edlich addresses causation. In the causation
5      Houston Northwest does not raise any standard of care          section, Dr. Edlich begins by generally stating that, as a
       complaints on appeal.                                          result of their deviations from the standard of care, each
                                                                      individually named appellant caused Ms. Rendon's death. Dr.
A. Is Dr. Edlich's Expert Report Deficient?                           Edlich then provides a more detailed analysis explaining how
The physician appellants generally assert Dr. Edlich's expert         each separate appellant's violations of the standard of care
report is conclusory because it lacks sufficient specific             caused Ms. Rendon's death. 10
factual detail to adequately apprise appellants of the basis of
appellees' claims against them as to the standard of care. 6          7      As an example of the level of detail found in Dr. Edlich's
With regard to causation, appellants complain appellees'                     report, we include a small excerpt here:
expert reports are deficient because they only collectively                       On post op day # 2 (11/03/04), Ms. Rendon's
address causation and fail to link their causation opinions to                    condition severely worsened. At midnight, she
specific facts thus rendering them conclusory.                                    continued to have fever of 101.9, followed by
                                                                                  nausea and vomiting at 0045, dark concentrated
6                                                                                 urine with increased burning abdominal pain noted
       In addition to a failure to state exactly what the standard
                                                                                  at 0215, and decreased oxygen saturation of 94% at
       of care was and what each appellant should have done
                                                                                  0400 with further decrease to 93% at 0500. At 0645,
       differently to comply with that standard, examples of
                                                                                  the nurse assessed that Ms. Rendon's lungs were
       appellants' specificity complaints include: (1) a failure to
                                                                                  congested and her urine continued to be dark and
       specify which antibiotics appellants should have ordered
                                                                                  concentrated. The patient complained of weakness.
       for Ms. Rendon; (2) the timing for the administration of
                                                                                  At 0800, Ms. Rendon had further temperature
       those antibiotics; (3) the exact time during Ms. Rendon's



                © 2015 Thomson Reuters. No claim to original U.S. Government Works.                                                     11
Kelly v. Rendon, 255 S.W.3d 665 (2008)


           elevation of 101.4 with increased tenderness of the                   broad spectrum antibiotic therapy, perform an
           abdomen and declining blood pressure of 100/50.                       MRI and/or CT scan for evaluation of the
           No telephone call was made to Dr. Kelly by                            abdomen, and, if infection were found, take Ms.
           the nurses to report Ms. Rendon's deteriorating                       Rendon back to surgery for debridement and
           condition. Finally, at 1000 on 11/03/04, Dr. Kelly                    drainage of the wound.
           saw Ms. Rendon and documented that her continued                   [2.] Instead, Dr. Kelly merely ordered Tylenol per
           fever was caused by her getting out of bed. Dr.                       phone order. He did not order any tests or IV
           Kelly wrote, “Temp spike to 101 after she got up.                     antibiotic therapy, and he did not return to the
           This is commonly seen when pts get up.” Dr. Kelly                     hospital to assess Ms. Rendon.
           ordered no diagnostic tests, but merely discontinued
                                                                    10   Dr. Edlich's causation opinion as to Dr. Kelly is quoted
           the Tylenol # 3, started Vicodin for pain, and Keflex
           antibiotic therapy.                                           here in its entirety:
                                                                              Dr. Kelly failed to properly assess the condition of
8     We include an example of one of the standards of care                   Yolanda Leal Rendon prior to performing surgery
      listed by Dr. Edlich:                                                   on 11/02/04. Dr. Kelly used surgical techniques
            Standard of Care requires that postoperatively                    that increased Ms. Rendon's risk for acquiring an
            patients be assessed for signs and symptoms of                    infection at Houston Northwest Medical Center,
            infection to ensure early diagnosis and appropriate               including use of inadequate preoperative scrub,
            treatment. Success of treatment of necrotizing                    improper use of hospital equipment, lack of
            fasciitis depends upon this assessment and early                  appropriate pre-operative antibiotic therapy and
            treatment of this condition.                                      improper closure of the surgical wound. Dr. Kelly
            [1.] The most common presenting symptom of                        then delayed in assessment of Ms. Rendon's
               necrotizing fasciitis is pain out of proportion to             condition on 11/02/04, one day after surgery,
               the local inflammatory response noted by the                   when she developed a high fever. He did not
               patient.                                                       order diagnostic tests on 11/02/04 to determine
            [2.] The patient must be closely monitored for                    the cause of her elevated temperature, which
               signs and symptoms of infection, including fever,              was an indicator of Strep A infection in a
               elevated white blood cell count, pain out of                   postoperative patient less than 24 hrs after surgery.
               proportion to the operative procedure, lethargy,               By 11/03/2004, Dr. Kelly again failed to recognize
               quickly spreading erythema of the wound, and                   the rapidly deteriorating condition of Ms. Rendon
               progressive anesthesia at the site of infection.               with signs and symptoms of elevated white blood
            [3.] Early clinical diagnosis of group A Strep                    cell count, critical levels of bands in the CBC
               necrotizing infection can be made by taking a                  (left shift indicating bacterial infection), lethargy,
               careful history of the patient and performing an               decreased urine output, and critically low blood
               MRI with aspiration biopsy.                                    pressure. Dr. Kelly did not appropriately treat this
            [4.] For patients with symptoms of necrotizing                    condition, perform the proper diagnostic tests for
               fasciitis, the standard of care mandates that                  determination of causation of the infection, refer
               the wound site be immediately assessed as the                  Ms. Rendon in a timely manner to a surgeon for
               possible site for infection.                                   consultation, nor did he take Ms. Rendon back for
                                                                              exploratory surgery. In addition, on 11/04/2004,
9     We include an example of a specific violation of the                    when Ms. Rendon's only hope for survival was
      standard of care as it applies to Dr. Kelly:                            to be taken back to surgery for exploration and
           Dr. Kelly breached the standard of care when he                    debridement of the postoperative abdominal wound
           failed to adequately assess Ms. Rendon on the night                along with administration of aggressive antibiotic
           of 11/02/04 when she developed fever of 101.3 at                   therapy, Dr. Kelly merely aspirated fluid near the
           2115. Standard of care requires prompt assessment,                 incision cite, without use of an MRI, and sent the
           work-up, and treatment of a post surgical patient                  specimen to the lab for testing.
           who develops this type of elevated temp within the                 Research supports that the most important predictor
           first post op day.                                                 of morbidity and mortality in this severe life
           [1.] Upon a report of this high of fever on post op                threatening infection is the time interval between
              day # 1, standard of care required that Dr. Kelly               the onset of symptoms and definitive surgical
              go to the hospital immediately to assess Ms.                    therapy. Necrotizing fasciitis is a progressive,
              Rendon's condition and her post op wound, order                 rapidly spreading inflammatory infection located in
              diagnostic lab tests, order intravenous empiric



               © 2015 Thomson Reuters. No claim to original U.S. Government Works.                                                12
Kelly v. Rendon, 255 S.W.3d 665 (2008)


            the deep fascia, causing secondary necrosis of the      Id. Because we have determined *680 Dr. Edlich's report
            subcutaneous tissues. For treatment of necrotizing      meets the statutory requirements as to each appellant, we need
            fasciitis to be successful, this condition must be      not address appellants' complaints regarding the other expert
            diagnosed early on with administration of broad-        reports filed by appellees on the issues of the standard of care
            spectrum antibiotics and rapid surgical debridement
                                                                    and causation. Tex.R.App. P. 47.1.
            of the involved area. Once necrotizing fasciitis is
            suspected as being present, the patient should be
                                                                    11     Appellants cite a litany of cases they contend support
            immediately taken to the operating room to open up
            the surgical wound and debride the infected tissue.            their contention that appellees' expert reports are
            Dr. Kelly should have been alert to the methods                deficient in their standard of care and causation opinions.
            to diagnose serious surgical wound infections, like            We disagree as all of the cases can be distinguished from
            necrotizing fasciitis, which include: a diagnostic             the present case. Most can be distinguished because,
            incision to search for infection, ultrasound of the            unlike the present case where the trial court denied
            wound, as well as an MRI of the wound. If                      appellants' motions to dismiss, the trial court in the cited
            Dr. Kelly had ordered an MRI exam as early as                  cases granted the defendants' motions to dismiss and the
            11/02/04, he would have diagnosed the abdominal                appellate courts found the trial court's dismissal of the
            infection of Ms. Rendon. With early diagnosis of               plaintiff's claims for deficient expert reports was within
            this infection, Ms. Rendon could have received                 the trial court's discretion. See Bowie Mem'l Hosp. v.
            appropriate therapy, which would have saved                    Wright, 79 S.W.3d 48 (Tex.2002) (affirming trial court's
            her life. The MRI would have permitted the                     dismissal of plaintiff's claims); Am. Transitional Care
            visualization of soft tissue edema in the fascial              Ctr. of Tex., Inc. v. Palacios, 46 S.W.3d 873 (Tex.2001)
            planes of the abdomen for localization of necrotic             (same); Apodaca v. Russo, 228 S.W.3d 252 (Tex.App.-
            tissue and fluid accumulation. With this early                 Austin 2007, no pet.) (same); Talmore v. Baptist Hosp.
            diagnosis of suspected Group A infection, Ms.                  of Southeast Tex. d/b/a Mem'l Hermann Hosp., No. 09–
            Rendon could have received immediate appropriate               06–024–CV, 2006 WL 2883124 (Tex.App.-Beaumont
            treatment, including antibiotic therapy, surgical              Oct.12, 2006, no pet.) (mem.op.) (same); Lopez v. Sinha,
            debridement of the wound with excision of                      No. 14–05–00606–CV, 2006 WL 2669355 (Tex.App.-
            devitalized tissue, bacteriologic analysis of the              Houston [14th Dist.] Sept. 19, 2006, no pet.) (mem.op.)
            wound, and appropriate antibiotic therapy followed             (same); Clark v. HCA, Inc., 210 S.W.3d 1 (Tex.App.-
            by open wound management.                                      El Paso 2005, no pet.) (same); Gray v. CHCA Bayshore,
                                                                           L.P., 189 S.W.3d 855 (Tex.App.-Houston [1st Dist.]
 *679 [21] [22] [23] The two-fold purpose of an expert
                                                                           2006, no pet.) (same); Longino v. Crosswhite, 183
report under section 74.351 is to inform the defendants of                 S.W.3d 913 (Tex.App.-Texarkana 2006, no pet.) (same);
the specific conduct the plaintiff has called into question, and           Hardy v. Marsh, 170 S.W.3d 865 (Tex.App.-Texarkana
to provide the trial court with a basis to determine whether               2005, no pet.) (same); Taylor v. Christus Spohn Health
or not the plaintiff's claims have merit. Patel v. Williams,               Sys. Corp., 169 S.W.3d 241 (Tex.App.-Corpus Christi
237 S.W.3d 901, 906 (Tex.App.-Houston [14th Dist.] 2007,                   2004, no pet.) (same); Costello v. Christus Santa Rosa
no pet.). Pursuant to this standard, we conclude Dr. Edlich's              Health Care Corp., 141 S.W.3d 245 (Tex.App.-San
report is not deficient as it addresses the standard of care               Antonio 2004, no pet.) (same); Russ v. Titus Hosp.
in sufficient detail to apprise each appellant of appellees'               Dist., 128 S.W.3d 332 (Tex.App.-Texarkana 2004, pet.
complaints regarding their alleged violations of the standard              denied) (same); Hawkins v. Gomez, No. 01–02–01195–
                                                                           CV, 2004 WL 306077 (Tex.App.-Houston [1st Dist.]
of care. Further, we conclude, with regard to his causation
                                                                           Feb. 19, 2004, no pet.) (mem.op.) (same); Strom v.
opinions, Dr. Edlich's report specifically addresses each
                                                                           Mem'l Hermann Hosp. Sys., 110 S.W.3d 216 (Tex.App.-
appellant and links his causation opinions to specific facts
                                                                           Houston [1st Dist.] 2003, pet. denied) (same); Villa
such that each appellant had notice of the complaints against
                                                                           v. Hargrove, 110 S.W.3d 74 (Tex.App.-San Antonio
them. Therefore, keeping in mind that expert reports, such as              2003, pet. denied) (same); Kirksey v. Marupudi, No. 07–
that of Dr. Edlich, are simply a preliminary method to show                03–0076–CV, 2003 WL 23096028 (Tex.App.-Amarillo
a plaintiff has a viable cause of action that is not frivolous or          Dec. 30, 2003, no pet.) (mem.op.) (same); Leston v.
without expert support, we hold the trial court did not abuse              Cwikla, No. 05–02–01712–CV, 2003 WL 22332371
its discretion when it denied appellants' motions to dismiss               (Tex.App.-Dallas Oct. 14, 2003, rule 53.7(f) motion
based on their complaints that appellees' expert reports were              granted)(mem.op.) (same); Shaw v. BMW Healthcare,
                                                                           Inc., 100 S.W.3d 8 (Tex.App.-Tyler 2002, pet. denied)
deficient as to the standard of care and causation elements. 11


               © 2015 Thomson Reuters. No claim to original U.S. Government Works.                                                   13
Kelly v. Rendon, 255 S.W.3d 665 (2008)


       (same); Nichols v. Nacogdoches Hosp. Dist., 96 S.W.3d         his final report, Dr. Chen issued a supplemental report on
       582 (Tex.App.-Tyler 2002, no pet.) (same); De Leon            September 14, 2006. In his September 14, 2006 report, Dr.
       v. Vela, 70 S.W.3d 194 (Tex.App.-San Antonio 2001,            Chen states the reason he issued the supplemental report was
       pet. denied) (same); Rittmer v. Garza, 65 S.W.3d 718          to “render the final cause of death as complications from
       (Tex.App.-Houston [14th Dist.] 2001, no pet.) (same);
                                                                     necrotizing fasciitis.”
       Hightower v. Saxton, 54 S.W.3d 380 (Tex.App.-Waco
       2001, no pet.) (same). The remaining cases cited by
                                                                      [24] Houston Northwest argues appellees' expert reports are
       appellants can be factually distinguished. See CHCA
                                                                     deficient because they did not address each of Dr. Chen's
       Mainland, L.P. v. Burkhalter, 227 S.W.3d 221 (Tex.
       App.-Houston [1st Dist.] 2007, no pet.) (appellate court      reports and each of his conclusions as to the cause of Ms.
       reversed holding the trial court abused its discretion        Rendon's death. Here, Dr. Chen issued a supplemental report
       when it denied defendant's motion to dismiss because          in which he rendered his final opinion that Ms. Rendon's
       the plaintiff's expert reports completely failed to address   death was caused by complications from necrotizing fasciitis.
       the hospital defendant's standard of care or the breaches     Each of appellees' physician experts noted they reviewed Dr.
       of those standards); Wells v. Ashmore, 202 S.W.3d             Chen's autopsy reports in the preparation of their opinions and
       465 (Tex.App.-Amarillo 2006, no pet.) (appellate court        addressed necrotizing fasciitis as the cause of Ms. Rendon's
       reversed holding the trial court abused its discretion        death. Houston Northwest does not cite any legal authority
       when it denied defendant's motion to dismiss because          that requires an expert, in a section 74.351 preliminary
       the plaintiff's expert reports failed to include any facts
                                                                     report, to specifically address every autopsy report found
       connecting the expert's conclusions with the breaches of
                                                                     in the medical records, particularly reports that have been
       the standard of care); Methodist Health Care Sys. of San
                                                                     supplanted by later reports. Because appellees' experts
       Antonio, Ltd. v. Martinez–Partido, No. 04–05–00868–
       CV, 2006 WL 1627844 (Tex.App.-San Antonio June
                                                                     reviewed Dr. Chen's autopsy reports in the preparation of their
       14, 2006, pet. denied) (appellate court reversed holding      opinions in this case and addressed the final cause of death,
       the trial court abused its discretion when it denied          necrotizing fasciitis, we hold the reports meet the statutory
       defendant's motion to dismiss because the plaintiff's         requirements. We overrule Houston Northwest's issue on
       experts were not qualified).                                  appeal based on the autopsy reports.
We overrule appellants' issues asserting the trial court abused
its discretion when it denied appellants' motions to dismiss
                                                                     VII. Appellants Are Not Entitled To An Award Of Their
because appellees' expert reports are deficient as to the
                                                                     Attorney's Fees and Costs
standard of care and causation.                                       [25] Dr. Annamaneni contends the trial court abused its
                                                                     discretion when it did not award appellants their reasonable
                                                                     attorney's fees and costs pursuant to section 74.351(b)(1).
VI. Were Appellees' Expert Reports Deficient Because
                                                                     Tex. Civ. Prac. & Rem.Code Ann. § 74.351(b)(1). Because
They Did Not Address Each Autopsy Report Prepared
                                                                     we have determined the trial court did not abuse its discretion
By Dr. Chen?
                                                                     when it denied appellants' motions to dismiss, appellants
Houston Northwest complains appellees' expert reports are
                                                                     were not entitled to their reasonable attorney's fees and costs.
deficient because they do not address the causes of death
                                                                     We overrule Dr. Annamaneni's issue on appeal contending
found in each of the three autopsy reports drafted by Dr. Chen,
                                                                     appellants were entitled to an award of their attorney's fees
the pathologist who conducted Ms. Rendon's autopsy.
                                                                     and costs.
Dr. Chen conducted an autopsy of Ms. Rendon on November
7, 2004. Subsequent to the actual autopsy, Dr. Chen issued
three reports on his findings as a result of that autopsy.                                 CONCLUSION
His provisional *681 report was issued the same day the
autopsy was conducted. In his provisional report, Dr. Chen           Having addressed and overruled all issues raised by
opined Ms. Rendon died as the result of multiple occlusive           appellants in this appeal, we affirm the trial court's order
pulmonary thromboemboli. Dr. Chen's final report was issued          denying each appellant's motion to dismiss.
on January 19, 2005. In that report, Dr. Chen gave the cause
of Ms. Rendon's death as lethal levels of ephedrine. However,
despite the classification of the January 19, 2005 report as



                © 2015 Thomson Reuters. No claim to original U.S. Government Works.                                            14
Kelly v. Rendon, 255 S.W.3d 665 (2008)



All Citations

255 S.W.3d 665

End of Document                                       © 2015 Thomson Reuters. No claim to original U.S. Government Works.




                © 2015 Thomson Reuters. No claim to original U.S. Government Works.                                  15
Mack Trucks, Inc. v. Tamez, 206 S.W.3d 572 (2006)
50 Tex. Sup. Ct. J. 80

                                                                       causation opinions. Rules App.Proc., Rule 33.2;
                                                                       Rules of Evid., Rule 103(a)(2).
                     206 S.W.3d 572
                 Supreme Court of Texas.                               9 Cases that cite this headnote
           MACK TRUCKS, INC., Petitioner,
                        v.                                       [2]   Appeal and Error
         Elizabeth TAMEZ et. al., Respondent.                             Necessity of presentation in general
                                                                       Except for fundamental error, appellate courts
          No. 03–0526. | Argued Oct. 20,                               are not authorized to consider issues not properly
         2004. | Decided Oct. 27, 2006.                                raised by the parties.
         | Rehearing Denied Dec. 22, 2006.
                                                                       26 Cases that cite this headnote
Synopsis
Background: Survivors of petroleum tanker driver who died
                                                                 [3]   Evidence
when his truck burst into flames brought action against the
                                                                           Necessity and sufficiency
tanker manufacturer, asserting claims for negligence, strict
liability, breach of implied warranty, and misrepresentation.          In determining whether expert testimony is
The 105th District Court, Nueces County, J. Manuel                     reliable, a court should examine the principles,
Banales, J., granted summary judgment for the defendant                research, and methodology underlying an
manufacturer. The survivors appealed. The Corpus Christi–              expert's conclusions. Rules of Evid., Rule 702.
Edinburg Court of Appeals, Thirteenth District, 100 S.W.3d
                                                                       10 Cases that cite this headnote
549, reversed and remanded. Tanker manufacturer appealed.

                                                                 [4]   Evidence
                                                                           Necessity and sufficiency
Holdings: The Supreme Court, Phil Johnson, J., held that:
                                                                       When the testimony involves scientific
[1] the Court of Appeals could not consider expert's causation         knowledge, the expert's conclusions must be
testimony from bill of exceptions, and                                 grounded in the methods and procedures of
                                                                       science. Rules of Evid., Rule 702.
[2] testimony on causation from post-collision fuel-fed fire
                                                                       Cases that cite this headnote
expert was not admissible.

                                                                 [5]   Evidence
Reversed and rendered.                                                     Necessity and sufficiency
                                                                       Trial court should consider the following factors
                                                                       when determining the reliability of expert
 West Headnotes (19)                                                   testimony involving scientific knowledge; (1)
                                                                       the extent to which the theory has been or can be
                                                                       tested; (2) the extent to which the technique relies
 [1]    Appeal and Error                                               upon the subjective interpretation of the expert;
           Consideration of evidence excluded                          (3) whether the theory has been subjected to peer
        The Court of Appeals could not consider expert's               review and/or publication; (4) the technique's
        causation testimony from bill of exceptions, in                potential rate of error; (5) whether the underlying
        strict liability and negligence action arising from            theory or technique has been generally accepted
        petroleum tanker fire that allegedly resulted from             as valid by the relevant scientific community;
        defective fuel line, where the Court of Appeals                and (6) the non-judicial uses that have been made
        did not first determine that the trial court erred             of the theory or technique. Rules of Evid., Rule
        when it refused to admit expert's testimony                    702.
        and reconsider its decision to exclude expert's


               © 2015 Thomson Reuters. No claim to original U.S. Government Works.                                            1
Mack Trucks, Inc. v. Tamez, 206 S.W.3d 572 (2006)
50 Tex. Sup. Ct. J. 80

                                                                    of an expert's testimony when doing so will be
        12 Cases that cite this headnote                            helpful in determining reliability of an expert's
                                                                    testimony, regardless of whether the testimony is
 [6]    Evidence                                                    scientific in nature or experience-based. Rules of
            Determination of question of competency                 Evid., Rule 702.
        A trial court has broad discretion in determining           17 Cases that cite this headnote
        whether expert testimony is admissible. Rules of
        Evid., Rule 702.
                                                             [11]   Evidence
        10 Cases that cite this headnote                                Necessity and sufficiency
                                                                    In determining the reliability of an expert's
 [7]    Appeal and Error                                            testimony, the trial court should undertake a
           Competency of witness                                    rigorous examination of the facts on which the
                                                                    expert relies, the method by which the expert
        The trial court's ruling concerning the
                                                                    draws an opinion from those facts, and how the
        admissibility of expert testimony will be
                                                                    expert applies the facts and methods to the case
        reversed only if that discretion is abused.
                                                                    at hand. Rules of Evid., Rule 702.
        5 Cases that cite this headnote
                                                                    9 Cases that cite this headnote

 [8]    Evidence
                                                             [12]   Evidence
            Preliminary evidence as to competency
                                                                        Automobile Cases
        Because the party sponsoring the expert bears
                                                                    Testimony on causation from post-collision fuel-
        the burden of showing that the expert's
                                                                    fed fire expert was not admissible, in strict
        testimony is admissible, the burden of presenting
                                                                    liability and negligence action arising from
        understandable evidence that will persuade the
                                                                    petroleum tanker fire that allegedly resulted from
        trial court to admit the expert's testimony is on
                                                                    defective fuel line; at the hearing to determine
        the presenting party. Rules of Evid., Rule 702.
                                                                    the admissibility of expert's testimony expert
        6 Cases that cite this headnote                             opined that the fire began in the fuel and battery
                                                                    systems of the tractor, he did not identify an
                                                                    alleged defect in the tractor's fuel system that was
 [9]    Evidence
                                                                    the source of the fire, he did not specify which
            Necessity and sufficiency
                                                                    studies supported his conclusions, he did not
        When an expert's processes or methodologies                 testify that he analyzed or tested characteristics
        are obscured or concealed by testimony that                 of batteries like the battery in the wrecked
        is excessively internally contradictory, non-               tractor, and he did not describe the process in
        responsive or evasive, a trial court will not have          which he excluded other sources of ignition.
        abused its discretion in determining that the               Rules of Evid., Rule 702.
        expert's testimony is not admissible. Rules of
        Evid., Rule 702.                                            4 Cases that cite this headnote

        3 Cases that cite this headnote
                                                             [13]   Products Liability
                                                                        Proximate Cause
 [10]   Evidence
                                                                    Products Liability
            Necessity and sufficiency
                                                                        Design
        A trial court should consider the factors
                                                                    Products Liability
        mentioned in E.I. du Pont de Nemours and Co.
                                                                        Miscellaneous products
        v. Robinson for determining the admissibility
                                                                    Sales


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Mack Trucks, Inc. v. Tamez, 206 S.W.3d 572 (2006)
50 Tex. Sup. Ct. J. 80

             Damages from breach                                    that alleged defects caused diesel fuel leak in
        There was no evidence that alleged defects in               tanker and that leak caused by the defect was
        petroleum tanker's fuel system, which allegedly             ignition point for fire that occurred in connection
        caused diesel fuel leak, caused fire that                   with accident; such causation issues presented
        occurred in connection with tanker accident, as             matters beyond the general understanding and
        required to support claims asserted against tanker          common knowledge of lay jurors.
        manufacturer by survivors of tanker driver,
                                                                    16 Cases that cite this headnote
        alleging negligence, misrepresentation, breach
        of warranty, and design, manufacturing, and
        marketing defects.                                   [18]   Judgment
                                                                        Torts
        4 Cases that cite this headnote
                                                                    Expert testimony that an arced battery cable
                                                                    found in tractor of petroleum tanker could
 [14]   Evidence                                                    possibly have ignited fire that occurred in
            Particular Facts or Issues                              connection with tanker accident, offered in
        Proof other than expert testimony will constitute           opposition to tanker manufacturer's motion
        some evidence of causation only when a                      for summary judgment in strict liability and
        layperson's general experience and common                   negligence action by driver's survivors alleging
        understanding would enable the layperson to                 design defects, was speculative, and thus
        determine from the evidence, with reasonable                insufficient to prevent summary judgment, since
        probability, the causal relationship between the            expert did not testify that battery or its cable
        event and the condition.                                    probably ignited the fire, and expert could not
                                                                    determine whether cable arced before the fire
        24 Cases that cite this headnote                            was ignited or as it was being burned by an
                                                                    otherwise-ignited fire.
 [15]   Evidence                                                    24 Cases that cite this headnote
            Weight and Conclusiveness in General
        Expert testimony is required when an issue
                                                             [19]   Judgment
        involves matters beyond jurors' common
                                                                        Torts
        understanding.
                                                                    Circumstantial summary judgment evidence
        12 Cases that cite this headnote                            suggesting that fire that occurred in connection
                                                                    with petroleum tanker accident quickly reached
                                                                    tanker driver, though consistent with theory
 [16]   Trial
                                                                    asserted by driver's survivors, in strict
             Province of Court and Jury
                                                                    liability and negligence action against tanker
        Whether expert testimony is necessary to prove
                                                                    manufacturer, that fire originated with fuel
        a matter or theory is a question of law.
                                                                    from tractor's allegedly defective diesel fuel
        3 Cases that cite this headnote                             system, did not make it more likely than
                                                                    not that the battery or some other allegedly
                                                                    improperly located ignition source ignited
 [17]   Products Liability                                          diesel from the tractor, as opposed to
            Trailers                                                other possible sources of ignition such as
        Products Liability                                          the cargo of crude oil, and thus such
            Design defect                                           evidence was insufficient to preclude summary
        Expert testimony was required, in design defect             judgment for manufacturer in survivors' action
        action brought by survivors of petroleum tanker             alleging negligence, misrepresentation, breach
        driver against tanker manufacturer, to establish



               © 2015 Thomson Reuters. No claim to original U.S. Government Works.                                        3
Mack Trucks, Inc. v. Tamez, 206 S.W.3d 572 (2006)
50 Tex. Sup. Ct. J. 80

         of warranty, and design, manufacturing, and                Abram Tamez. Specifically, the Tamezes alleged that the
         marketing defects.                                         tractor had design and manufacturing defects because (1)
                                                                    the fuel system was unreasonably prone to fail and release
         209 Cases that cite this headnote                          diesel fuel in an environment conducive to ignition and fire;
                                                                    and (2) the tractor had ignition sources *576 such as hot
                                                                    manifolds and electric batteries in areas likely to contain
                                                                    released flammable fluids. The Tamezes also alleged that
Attorneys and Law Firms                                             Mack failed to provide warnings about the defects.

*575 Sean E. Breen, Randy Howry, Herman Howry &                     1      Elizabeth Tamez filed suit. Elsa Guerrero, Rosendo
Breen, L.L.P., Austin, Robert Lee Galloway, Kellye Ruth
                                                                           Tamez, Sr., Dora Tamez, Rosa Elvia Gonzales, Donna
Koehn, Thompson & Knight LLP, Houston, for petitioner.
                                                                           Kim Cantu, and Terrie L. Zay intervened. Rosa
John Blaise Gsanger, William R. Edwards, William R.                        subsequently nonsuited. For ease of reference all the
                                                                           claimants will be referred to collectively as “the
Edwards III, The Edwards Law Firm, L.L.P., Corpus Christi,
                                                                           Tamezes” or “the plaintiffs.”
John Gonzales, John Gonzales & Associates, San Antonio,
David O. Gonzalez, Law Offices of Baldemar Gutierrez,               2      Other defendants were Fruehauf Trailer Corporation,
Alice, Glenn M. Boudreaux, Maryellen Hester, Boudreaux                     Norco Crude Gathering, Inc., Glitsch Canada, Ltd., and
Leonard & Hammond, P.C., Houston, for for respondent.                      Snyder Tank Corp. The claims against those defendants
                                                                           were either nonsuited or settled and were severed from
Opinion                                                                    the claims against Mack.

Justice JOHNSON delivered the opinion of the Court.                 In connection with its claims against Mack, the Tamezes
                                                                    identified Ronald Elwell as an expert on post-collision, fuel-
In this truck accident case the trial court excluded expert         fed fires. Mack moved to exclude his testimony as unreliable
testimony as to what caused a post-accident fire that burned        and moved for summary judgment. Mack asserted multiple
the truck and the driver. After excluding the expert testimony      grounds for seeking summary judgment. Some grounds for
because it was not reliable, the trial court granted summary        its motion were directed at particular plaintiffs, while some
judgment. The court of appeals reversed. We hold that the           grounds were directed at all the Tamezes. One part of Mack's
trial court did not err, reverse the court of appeals' judgment,    motion directed at all the Tamezes was a Rule 166a(i) motion
and render judgment that the plaintiffs take nothing.               urging that the Tamezes could present no evidence that any
                                                                    alleged defects caused the fire. The Tamezes responded to the
                                                                    no-evidence part of Mack's motion, in part, by filing Elwell's
                                                                    deposition and his expert report. They also later submitted
                         I. Background
                                                                    Elwell's testimony from a bill of exceptions.
On October 19, 1996, Abram Tamez was operating a Mack
Truck tractor hauling a trailer of crude oil. Tamez was             Pretrial matters, including a Robinson 3 hearing pursuant to
rounding a curve in the road when the tractor and trailer           Mack's motion to exclude Elwell's testimony, were scheduled
overturned. A fire erupted and burned the trailer, its cargo,       and heard. During the Robinson hearing Elwell testified. He
and the tractor. Tamez was able to climb out of the tractor,        expressed the opinion that the fire was started by the tractor's
but he was badly burned and died as a result of his injuries.       battery, which was located too near the fuel tanks, igniting the
                                                                    tractor's diesel fuel, which in turn ignited the trailer's cargo
As a result of Tamez's death, suit was filed 1 against the          of crude oil.

tractor's manufacturer, Mack Trucks, Inc., and others. 2
                                                                    3      E.I. du Pont de Nemours & Co. v. Robinson, 923 S.W.2d
The Tamezes alleged that Mack defectively designed,
manufactured and marketed the tractor. They claimed that                   549 (Tex.1995).
Mack was liable for negligence, gross negligence, strict            The trial court granted Mack's motion to exclude Elwell's
products liability, breach of warranty, and misrepresentation.      testimony as to causation. The Tamezes later moved the
All five theories were based on the same complaint: diesel          trial court to reconsider its decision. The court denied the
fuel from the truck's fuel system originated the fire that burned   motion but allowed the Tamezes to have Elwell testify again



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Mack Trucks, Inc. v. Tamez, 206 S.W.3d 572 (2006)
50 Tex. Sup. Ct. J. 80

to create a bill of exceptions. 4 The court signed an order
excluding the causation portion of Elwell's testimony from                    II. Elwell's Bill of Exceptions Testimony
being considered as evidence at any trial or hearing because
it was not sufficiently reliable. Mack's motion for summary           [1] Mack argues that the court of appeals erred by
judgment was granted.                                                considering testimony admitted only for the bill when it
                                                                     reviewed the trial court's exclusion of Elwell's causation
4      An offer of proof is sometimes referred to as a bill of
                                                                     testimony. The Tamezes claim that whether Elwell's bill of
       exceptions. See TEX.R. EVID. 103(a)(2); TEX.R.APP.            exceptions testimony is considered is not relevant because
       P. 33 (comment to 1997 change). As the court of appeals       his bill testimony added nothing to his Robinson hearing
       and the parties refer to the offer of proof in this case as   testimony. Further, in their brief and at oral argument the
       a bill of exceptions, we will, also.                          Tamezes disclaim having urged in the court of appeals that
The court of appeals reversed the summary judgment,                  the trial court erred in (1) holding a Robinson hearing, (2) the
concluding that the trial court abused its discretion                manner in which the hearing was conducted, (3) the timing of
                                                                     the hearing, or (4) denying their motion for reconsideration.
in excluding Elwell's causation testimony, 5 and also
                                                                     Our review of their briefs in the court of appeals confirms the
concluding that Elwell's testimony provided some evidence
                                                                     Tamezes' position. They do not contend here either that the
of causation. The court of appeals' opinion indicates that in
                                                                     bill of exceptions testimony was improperly excluded or that
reaching its decision it considered Elwell's testimony from
                                                                     the trial court erred in denying their motion to reconsider.
both the Robinson hearing and the bill of exceptions. See 100
S.W.3d 549, 556, 559, 561.
                                                                     The purpose of a bill of exceptions is to allow a party to make
                                                                     a record for appellate review of matters that do not otherwise
5      After Elwell's expert testimony was excluded by the           appear in the record, such as evidence that was excluded.
       trial court, the Tamezes obtained testimony from another      TEX. R. APP. P. 33.2; TEX. R. EVID. 103(a)(2); see also
       expert witness, Douglas Holmes. Mack moved to                 In re Ford Motor Co., 988 S.W.2d 714, 721 (Tex.1998). The
       exclude Holmes's testimony, and the trial court orally
                                                                     court of appeals' opinion indicates that it considered Elwell's
       granted the motion. The court of appeals upheld the
                                                                     bill of exceptions testimony in evaluating the admissibility
       exclusion of Holmes's testimony. 100 S.W.3d 549, 559.
                                                                     of his opinions even though the trial court did not. See 100
       The Tamezes do not challenge the court of appeals' ruling
       as to Holmes.
                                                                     S.W.3d at 556, 559. As one example, the court of appeals
                                                                     referenced Elwell's opinion that at least one of the tractor's
Mack urges that the trial court correctly excluded Elwell's          side fuel tanks became displaced during the rollover and
testimony on causation, did not abuse its discretion in              separated the balance line connecting the two fuel tanks. Id.
refusing to reconsider that ruling, and properly granted             at 557. The court pointed to Elwell's testimony interpreting
summary judgment because the Tamezes presented no                    photographic evidence of steel straps which held the tanks as
evidence of causation. Mack asserts, among other matters,            support for his opinion. Id. The referenced testimony as to
that the court of appeals erred by (1) considering Elwell's          Elwell's opinion and interpretation of photographic evidence
causation testimony from both the Robinson hearing and               was given as part of his bill of exceptions testimony, but he
the bill of exceptions; (2) reversing the trial court's ruling       did not give similar testimony during the Robinson hearing.
as to admissibility of Elwell's causation testimony; and (3)
reversing the summary judgment.                                       [2] Except for fundamental error, appellate courts are not
                                                                     authorized to consider issues not properly raised by the
We conclude that the trial court did not abuse its discretion        parties. See In the Interest of B.L.D., 113 S.W.3d 340,
in excluding Elwell's testimony on causation and that the            350–52 (Tex.2003). We have described fundamental error
court *577 of appeals erred in considering testimony from            as those instances in which error directly and adversely
the bill of exceptions in evaluating the trial court's exclusion     affects the interest of the public generally, as that interest
of Elwell's causation testimony. We further conclude that            is declared by the statutes or Constitution of our State, or
the Tamezes presented no summary judgment evidence of                instances in which the record affirmatively and conclusively
causation and summary judgment was properly granted.                 shows that the court rendering the judgment was without
                                                                     jurisdiction of the subject matter. See McCauley v. Consol.
                                                                     Underwriters, 157 Tex. 475, 304 S.W.2d 265, 266 (1957).



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Mack Trucks, Inc. v. Tamez, 206 S.W.3d 572 (2006)
50 Tex. Sup. Ct. J. 80

The court of appeals did not classify the trial court's refusal      opinion proffered.’ ” Gammill, 972 S.W.2d at 726 (quoting
to allow the Tamezes to present further evidence and to then         Gen. Elec. Co. v. Joiner, 522 U.S. 136, 146, 118 S.Ct. 512,
reconsider its ruling to exclude Elwell's causation testimony        139 L.Ed.2d 508 (1997)).
as fundamental error, and neither do we. The court of appeals
erred in considering Elwell's causation testimony from the           6      Id. (identifying the following considerations regarding
bill of exceptions without having first determined, pursuant                reliability of scientific testimony: (1) the extent to
to properly assigned error, that the trial court erred in refusing          which the theory has been or can be tested; (2) the
to admit the testimony and reconsider its decision to exclude               extent to which the technique relies upon the subjective
Elwell's causation opinions. Under the record and issues                    interpretation of the expert; (3) whether the theory
presented to us, we may not consider Elwell's testimony                     has been subjected to peer review and/or publication;
from the bill of exceptions in determining whether the trial                (4) the technique's potential rate of error; (5) whether
court erred in excluding Elwell's causation *578 testimony.                 the underlying theory or technique has been generally
See Exito Elecs. Co. v. Trejo, 142 S.W.3d 302, 304 n. 1                     accepted as valid by the relevant scientific community;
                                                                            and (6) the non-judicial uses that have been made of the
(Tex.2004).
                                                                            theory or technique).
                                                                  [6]     [7]    [8]    [9] A trial court has broad discretion in
                                                                 determining whether expert testimony is admissible. Zwahr,
             III. Reliability of Elwell's Testimony
                                                                 88 S.W.3d at 629. Its ruling will be reversed only if that
                                                                 discretion is abused. K–Mart Corp. v. Honeycutt, 24 S.W.3d
                     A. Standard of Review                       357, 360 (Tex.2000). Because the party sponsoring the expert
                                                                 bears the burden of showing that the expert's testimony is
 [3]     [4]     [5] An expert witness may testify regarding admissible, the burden of presenting understandable evidence
“scientific, technical, or other specialized” matters if the     that will persuade the trial court is on the presenting party. See
expert is qualified and if the expert's opinion is relevant and  Robinson, 923 S.W.2d at 557. When an expert's “processes”
based on a reliable foundation. TEX. R. EVID. 702; Helena        or “methodologies” are obscured or concealed by testimony
Chem. Co. v. Wilkins, 47 S.W.3d 486, 499 (Tex.2001);             that is excessively internally contradictory, non-responsive or
Robinson, 923 S.W.2d at 556. In determining whether              evasive, a trial court will not have abused its discretion in
expert testimony is reliable, a court should examine “the        determining that the expert's testimony is not admissible. See
principles, research, and methodology underlying an expert's     GMC v. Iracheta, 161 S.W.3d 462, 470–72 (Tex.2005).
conclusions.” Exxon Pipeline Co. v. Zwahr, 88 S.W.3d 623,
629 (Tex.2002). When the testimony involves scientific
knowledge, the expert's conclusions must be “grounded
‘in the methods and procedures of science.’ ” Robinson,                               B. Reliability Factors
923 S.W.2d at 557 (quoting Daubert v. Merrell Dow
                                                                 The court of appeals noted that Elwell's testimony largely
Pharms., Inc., 509 U.S. 579, 590, 113 S.Ct. 2786, 125
                                                                 applied his knowledge, training, and experience to the
L.Ed.2d 469 (1993)). Otherwise, the testimony is “no more
                                                                 underlying data and that his methodology was not easily
than ‘subjective belief or unsupported speculation.’ ” Id.
                                                                 tested by objective criteria such as identifiable scientific
(quoting Daubert, 509 U.S. at 590, 113 S.Ct. 2786). We
                                                                 formulas. The court of appeals concluded that under such
have identified several non-exclusive factors that trial courts
                                                                 circumstances *579 the reliability of Elwell's opinion is not
should consider when determining the reliability of expert
                                                                 properly measured by a Robinson-factor analysis, but that the
testimony involving scientific knowledge. 6 We recognize         “analytical gap” test should be applied. 100 S.W.3d at 555–
that these factors may not apply when testimony is not           56.
scientific, but, rather, involves technical or other specialized
knowledge. Gammill v. Jack Williams Chevrolet, 972 S.W.2d        Mack argues that the court of appeals' analysis is flawed.
713, 726 (Tex.1998). Even then, however, there must be some      Mack urges that Elwell's inability to demonstrate at least one
basis for the opinion to show its reliability. Id. An expert's   of the Robinson factors, coupled with his inability to eliminate
bare opinion will not suffice. Merrell Dow Pharms., Inc. v.      the crude oil tanker as the source of the fire, rendered Elwell's
Havner, 953 S.W.2d 706, 711 (Tex.1997). And, there cannot        testimony unreliable. The Tamezes, on the other hand, argue
be “ ‘too great an analytical gap between the data and the       that because Elwell's testimony was based on his training and



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Mack Trucks, Inc. v. Tamez, 206 S.W.3d 572 (2006)
50 Tex. Sup. Ct. J. 80

experience, and not science, application of the analytical gap      and determine which factors and evaluation methodology
test, as opposed to use of Robinson factors, was appropriate.       are most appropriate to apply. For example, in the present
They contend that Elwell's opinion was reliable because there       case the trial court would have been within its discretion
were no analytical gaps in his testimony. See Gammill, 972          to measure the reliability of Elwell's testimony, at least in
S.W.2d at 726.                                                      part, by considering (1) the extent to which Elwell's theory
                                                                    had been or could be tested; (2) the extent to which his
In Gammill we clarified that the list of non-exclusive factors      methodology relied upon his subjective interpretation; (3)
listed in Robinson may not be applicable when assessing             the methodology's potential rate *580 of error; (4) whether
certain kinds of expert testimony. 972 S.W.2d at 720. We            the underlying theory or methodology has been generally
held that Robinson factors did not apply to the mechanical          accepted as valid by the accident reconstruction and post-
engineer expert under consideration in Gammill, even though         collision fire investigation community; and (5) the non-
his claimed expertise was scientific in nature. Id. at 727. In so   judicial uses that have been made of his methodology. These
holding, however, we did not mean to imply that a trial court       are similar to factors 1, 2, 4, 5 and 6 of those enumerated in
should never consider the Robinson factors when evaluating          Robinson. But, as we have said above, that is not to imply
the reliability of expert testimony that is based on knowledge,     that the trial court was precluded from measuring Elwell's
training or experience, or that the factors can only be applied     methodology by Gammill's analytical gap analysis.
when evaluating scientific expert testimony. We recognized
that the criteria for assessing reliability must vary depending
on the nature of the evidence. Id. at 726.
                                                                                  C. Elwell's Causation Testimony

 [10] The United States Supreme Court has noted that it              [12] At the Robinson hearing, Elwell testified that the fuel
is not possible to “rule out, nor rule in, for all cases and        and battery system on the tractor were designed improperly,
for all time the applicability of the factors mentioned in          and suggested safer designs. He criticized the placement of
Daubert.” Kumho Tire v. Carmichael, 526 U.S. 137, 150,
                                                                    the fuel tanks and also of the batteries' 7 proximity to the fuel
119 S.Ct. 1167, 143 L.Ed.2d 238 (1999). Nor can the Court
                                                                    tanks. He criticized certain parts of the fuel system such as the
“now do so for subsets of cases categorized by category
                                                                    crossover or “balance line” hose between the two fuel tanks
of expert or by kind of evidence,” as “[t]oo much depends
                                                                    and the spigots by which the hose was attached to each of
upon the particular circumstances of the particular case at
                                                                    the tanks. He referenced a particular report, which was not
issue.” Id. In Robinson we likewise explained that the factors
                                                                    introduced, which he asserted supported his design critiques
mentioned do not constitute an exclusive list and that the trial
                                                                    and his suggested safer designs.
court's gatekeeping inquiry will differ with each particular
case depending on the “[t]he factors a trial court will
                                                                    7       The record is not clear whether the tractor had one battery
find helpful in determining whether the underlying theories
                                                                            or two.
and techniques ... are scientifically reliable.” Robinson, 923
S.W.2d at 557. Thus, a trial court should consider the factors      Elwell's analysis and conclusion that the fire began with
mentioned in Robinson when doing so will be helpful in              the fuel system and the battery system were based on
determining reliability of an expert's testimony, regardless of     the “fire triangle” theory. He explained that under the fire
whether the testimony is scientific in nature or experience-        triangle theory, a post-collision fuel-fed fire such as the one
based. See Kumho Tire, 526 U.S. at 139, 119 S.Ct. 1167;             under consideration must be analyzed with an eye toward
Gammill, 972 S.W.2d at 726.                                         the ignition, fuel, and oxygen sources that were available.
                                                                    Because the air provided oxygen, his analysis centered on the
 [11] In determining reliability, the trial court “should           other parts required to complete the triangle, “the source of
undertake a rigorous examination of the facts on which the          fluids that could be ignited and what would it take to ignite
expert relies, the method by which the expert draws an              those fluids and fuel, of course, is the primary suspect, either
opinion from those facts, and how the expert applies the facts      fuel or crude oil in this particular case.”
and methods to the case at hand.” See Amorgianos v. Amtrak,
303 F.3d 256, 267 (2d Cir.2002). A significant part of the          He did not testify that he inspected the remnants of the
trial court's gatekeeper function is to evaluate the expert's       burned tractor and trailer or that he performed or reviewed
qualifications, listen to the testimony, view the evidence,         any accident reconstruction analysis as to how the rollover



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Mack Trucks, Inc. v. Tamez, 206 S.W.3d 572 (2006)
50 Tex. Sup. Ct. J. 80

occurred and how different parts of the vehicle would have          ignition or flash points of the crude and diesel fuel. He did not
been affected or harmed thereby. His Robinson hearing               address any analysis or process by which he concluded that
testimony did not identify a particular alleged defect of the       some part of a trailer of crude oil would continue to burn for
tractor's fuel system that he concluded was the source of a         several minutes only if it was ignited by, rather than being the
diesel fuel leak that initiated the fire.                           ignitor of, diesel fuel from the tractor's fuel system.

On cross-examination he testified that he had read and relied       In sum, Elwell did not testify at the Robinson hearing to
on “over 5,000” studies on the subject of the causes of post-       a methodology by which he reached the conclusions as
collision fuel-fed fires. He did not specify any studies that       to the fire having been caused by defects in the tractor's
supported his conclusion as to the specifics involved in the        fuel and battery systems. In order for Elwell's testimony on
accident, and none were offered as evidence for the trial court     causation to be reliable, he was required to present some
to consider in evaluating his testimony.                            methodology that reliably supported his opinions that the
                                                                    “fuel” and “ignition” parts of the fire triangle were supplied,
In coming to his conclusion that the fire began with the fuel       respectively, by the tractor's alleged fuel system defects and
system and battery system of the tractor, Elwell asserted that      battery system. He did not do so. The mere fact that the fuel
he relied on several specific factors and facts. Each of the        system had a design that could cause the hoses to separate is
factors and facts he enumerated supported conclusions that          not evidence that the hoses separated in this case.
Tamez was burned by diesel and that the diesel ignited so
quickly that Tamez could not escape.                                Elwell's testimony did no more than set out “factors”
                                                                    and “facts” which were consistent with his opinions, then
Even assuming that what Elwell relied on and classified as          conclude that the fire began with diesel fuel from the tractor.
“factors” and “facts” were true, however, which Mack denies,        The reliability inquiry as to expert testimony does not ask
the factors and facts are merely consistent with diesel fuel        whether the expert's conclusions appear to be correct; it asks
having been released during the rollover and Tamez having           whether the methodology and analysis used to reach those
been burned by part of the fire fed by the tractor's diesel fuel.   conclusions is reliable. Kerr–McGee Corp. v. Helton, 133
They are not probative evidence that diesel fuel was released       S.W.3d 245, 254 (Tex.2004). The trial court was not required
because of one of the asserted defects in the fuel system or        to accept his opinions at face value just because Elwell was
that it was ignited by the battery system. He did not testify       experienced in examining post-collision fuel-fed fires. See
to having analyzed, tested, or investigated the characteristics     Gammill, 972 S.W.2d at 726 (holding that a court should not
of batteries like the battery in the wrecked tractor to support     admit opinion evidence which is connected to existing data
his *581 opinion that the battery system was involved in            only by the ipse dixit of the expert).
causing the fire. He failed to set out any process by which
he excluded other sources for ignition of the diesel fuel such      We conclude that the trial court did not abuse its discretion
as mechanical sparks which could be generated when parts            when it excluded Elwell's testimony on causation. The court
of a truck make contact with the pavement, or ignition of the       of appeals erred when it determined otherwise.
cargo fuel which in turn could have ignited the diesel fuel. See
Gammill, 972 S.W.2d at 728; see also Robinson, 923 S.W.2d
at 559 (noting that an expert who is trying to find a cause
                                                                                    IV. The Summary Judgment
of something should carefully consider alternative causes).
For example, when Elwell was asked during the Robinson              Mack moved for summary judgment on multiple grounds,
hearing why he concluded that the fire originated with the          including the ground that there was no evidence Mack's fuel
fuel and battery systems instead of with the crude oil cargo,       system design was a producing or proximate cause of Tamez's
his response was that “if [crude oil] remains to be burned,         injuries. The Tamezes contend that even without Elwell's
that after five or ten or fifteen minutes, then that's not the      testimony as to causation, they presented sufficient evidence
fuel that started the fire.” He did not explain any investigation   to survive summary judgment.
or research that supported such a conclusion. He did not
elaborate on the amount of crude that was in the trailer when
the wreck occurred, calculate the amount of time it would take
the cargo to burn, or discuss or compare the relative ease of                          A. Standard of Review




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Mack Trucks, Inc. v. Tamez, 206 S.W.3d 572 (2006)
50 Tex. Sup. Ct. J. 80

A summary judgment motion pursuant to TEX. R. CIV. P.                See Iracheta, 161 S.W.3d at 470 (holding that the possibility
166a(i) is essentially a motion for a pretrial directed verdict.     that the fire occurred in the manner the plaintiff suggested is
See *582 Merrell Dow Pharms., Inc. v. Havner, 953 S.W.2d             not enough to support the jury's findings); Nissan Motor Co.
706, 711 (Tex.1997). Once such a motion is filed, the burden         v. Armstrong, 145 S.W.3d 131, 137 (Tex.2004).
shifts to the nonmoving party to present evidence raising
an issue of material fact as to the elements specified in            The Tamezes point to several parts of their summary
the motion. Id.; W. Invs., Inc. v. Urena, 162 S.W.3d 547,            judgment evidence that they say are sufficient, individually
550 (Tex.2005). We review the evidence presented by the              or collectively, to defeat summary judgment: (1) an accident
motion and response in the light most favorable to the party         witness's “personal assumption,” based on his averred
against whom the summary judgment was rendered, crediting            experience with and ability to recognize the smell of diesel
evidence favorable to that party if reasonable jurors could,         fuel, that Tamez was burned by diesel fuel because Tamez
and disregarding contrary evidence unless reasonable jurors          was coated with a shiny, oily substance and did not smell like
could not. See City of Keller v. Wilson, 168 S.W.3d 802, 827         crude oil; (2) a notation by Mack's accident reconstruction
(Tex.2005); Johnson v. Brewer & Pritchard, P. C., 73 S.W.3d          expert noting a diesel fuel spill on the road; (3) a statement by
193, 208 (Tex.2002).                                                 Elwell that the design of the system was such that if there was
                                                                     any significant dislodgement of the fuel tanks, the fuel line
                                                                     would separate; 8 (4) a statement by Mack's expert witness
                         B. Causation                                that it was possible that a battery cable found in the tractor
                                                                     had arced and ignited the fire, although *583 the witness
Producing or proximate cause is an element of all                    ultimately concluded that the crude-oil cargo caused the fire;
of the Tamezes' claims, which included negligence,                   and (5) an eyewitness's statement implying that it took the fire
misrepresentation, breach of warranty, and design,                   a short period of time to reach Tamez, who exited and crawled
manufacturing, and marketing defects. Causation-in-fact is           away from the tractor after the accident.
common to both proximate and producing cause, including
the requirement that the defendant's conduct or product be a         8       Elwell's testimony on design defect, as opposed to his
substantial factor in bringing about the injuries in question.               testimony on causation, was not excluded.
See Union Pump Co. v. Allbritton, 898 S.W.2d 773, 775
                                                                      [14]     [15]      [16]     Proof other than expert testimony
(Tex.1995).
                                                                     will constitute some evidence of causation only when a
                                                                     layperson's general experience and common understanding
All the Tamezes' theories regarding the fire's cause
                                                                     would enable the layperson to determine from the evidence,
were based on allegations that the tractor's fuel system
                                                                     with reasonable probability, the causal relationship between
was defectively designed and manufactured so as to be
                                                                     the event and the condition. Expert testimony is required
unreasonably prone to fail and release flammable fluids in
                                                                     when an issue involves matters beyond jurors' common
an environment conducive to ignition and fire; that such
                                                                     understanding. See Alexander v. Turtur & Assocs., 146
defects caused the release of diesel fuel; and that a defectively
                                                                     S.W.3d 113, 119–20 (Tex.2004). Whether expert testimony
designed and placed ignition source then caused ignition of
                                                                     is necessary to prove a matter or theory is a question of law.
the released diesel.
                                                                     See FFE Transp. Servs., Inc. v. Fulgham, 154 S.W.3d 84,
                                                                     89 (Tex.2004). In Fulgham we held that expert testimony
 [13] To survive summary judgment on their theory that
                                                                     was necessary to establish the standard of care for connecting
a defect in the tractor's fuel system was the cause of
                                                                     refrigerated trailers to tractors and for the frequency and type
the fire, the Tamezes were required to present more than
                                                                     of inspection and maintenance of such connectors, because
evidence of a fuel leak. See Ford Motor Co. v. Ridgway,
                                                                     those matters were not within the general experience and
135 S.W.3d 598, 600–01 (Tex.2004) (affirming summary
                                                                     common understanding of laypersons. Id. at 91; See also
judgment because the plaintiffs' evidence “establishe[d] only
                                                                     Turbines, Inc. v. Dardis, 1 S.W.3d 726, 738 (Tex.App.-
that a fire occurred, and [the plaintiffs' expert] could say no
                                                                     Amarillo 1999, pet. denied) (holding that performance of
more than that he ‘suspects' the electrical system caused the
                                                                     mechanical work on turbine aircraft engines is not within the
fire”). They had to present evidence that (1) the diesel fuel
                                                                     experience of a layperson).
leaked because of one or more of the alleged defects, and (2)
the leak caused by the defect was the ignition point for the fire.



                © 2015 Thomson Reuters. No claim to original U.S. Government Works.                                                   9
Mack Trucks, Inc. v. Tamez, 206 S.W.3d 572 (2006)
50 Tex. Sup. Ct. J. 80

                                                                       cable could possibly have ignited the fire is not evidence that
 [17]    A lay juror's general experience and common
                                                                       it probably did so. The expert who provided this testimony
knowledge do not extend to whether design defects such as
                                                                       could not determine whether the cable arced before the fire
those alleged in this case caused releases of diesel fuel during
                                                                       was ignited or as it was being burned by an otherwise-ignited
a rollover accident. See Nissan Motor Co., 145 S.W.3d at
                                                                       fire. As proof of what caused the fire, such evidence is
137 (stating that we have consistently required competent
                                                                       speculative and is insufficient to prevent summary judgment.
expert testimony and objective proof that a defect caused the
                                                                       See Wal–Mart Stores, Inc. v. Gonzalez, 968 S.W.2d 934, 936
condition complained of). Nor would a lay juror's general
                                                                       (Tex.1998).
experience and common knowledge extend to determining
which of the fire triangle's fuel sources, diesel from the
                                                                        *584 [19] The plaintiffs also rely on circumstantial
tractor or crude from the tanker, would have first ignited,
                                                                       evidence suggesting that the fire quickly reached Tamez. That
or the source for the first ignition. That part of Elwell's
                                                                       evidence is consistent with the Tamezes' theory that the fire
testimony that was properly before the trial court and the
                                                                       originated with fuel from the tractor's diesel fuel system. But,
testimony of other experts as to the amount of time they
                                                                       such evidence does not make it more likely than not that the
spent in studying, investigating, and working in the field of
                                                                       battery or some other allegedly improperly located ignition
post-collision, fuel-fed fires demonstrated the intricacies of
                                                                       source ignited diesel from the tractor, as opposed to other
such subject matter. Issues such as those regarding the fire's
                                                                       possible sources of ignition such as the cargo of crude oil.
cause(s) present matters beyond the general understanding
                                                                       Accordingly, the circumstantial evidence is not sufficient to
and common knowledge of lay jurors. Proof of causation in
                                                                       prevent summary judgment. Id.
this case also required expert testimony.

The summary judgment evidence presented by the Tamezes
did not contain proof that any of the possible sources of diesel                               V. Conclusion
fuel was more likely than any other, or more likely than the
crude oil cargo, to have been the source of liquids that first         The plaintiffs produced no evidence that the alleged defects
caught fire. Accordingly, there is no evidence that the source         of the Mack tractor were a cause-in-fact of injuries to Abram
was one of the alleged fuel system defects. Kindred v. Con/            Tamez. Because causation is a required element of each of
Chem, Inc., 650 S.W.2d 61, 63 (Tex.1983).                              the Tamezes' claims, the trial court properly granted summary
                                                                       judgment. Accordingly, we reverse the court of appeals'
 [18] The Tamezes also alleged that several ignition sources           judgment and render judgment that the plaintiffs take nothing.
were located in areas likely to contain diesel that would be
released in a wreck. The Tamezes point to expert testimony
                                                                       All Citations
that an arced battery cable found in the tractor could possibly
have ignited the fire. But, testimony that the battery or its          206 S.W.3d 572, 50 Tex. Sup. Ct. J. 80

End of Document                                                    © 2015 Thomson Reuters. No claim to original U.S. Government Works.




                © 2015 Thomson Reuters. No claim to original U.S. Government Works.                                               10
Rittger v. Danos, 332 S.W.3d 550 (2009)




                    332 S.W.3d 550                               Affirmed.
                Court of Appeals of Texas,
                  Houston (1st Dist.).

          Kevin RITTGER, M.D., Appellant,                         West Headnotes (14)
                         v.
    Virginia Lou DANOS, Individually and as Next
                                                                  [1]   Health
     Friend of Ryan Cochran, a Minor, Appellees.
                                                                            Affidavits of merit or meritorious defense;
         No. 01–08–00588–CV. | June 18,                                 expert affidavits
    2009. | Rehearing Overruled July 17, 2009.                          In reviewing whether an expert report complies
                                                                        with the Medical Liability and Insurance
Synopsis                                                                Improvement Act, the court evaluates whether
Background: Patient, individually and on behalf of newborn              the report represents a good-faith effort to
child, brought medical malpractice action against emergency             comply with the Act, and in making this
room physician and obstetrician, based on defendants' failure           evaluation, the court must look only at the
to timely diagnose stroke when she, while pregnant, presented           information that is contained within the four
to emergency room with numbness in right arm. The 55th                  corners of the report. V.T.C.A., Civil Practice &
District Court, Harris County, Jeffrey Brown, J., granted               Remedies Code § 74.351(a).
emergency room physician's motion to dismiss on grounds
that expert reports did not comply with Medical Liability               Cases that cite this headnote
and Insurance Information Act, and patient appealed. The
Court of Appeals, 253 S.W.3d 294, affirmed. On review, the        [2]   Health
Supreme Court, 253 S.W.3d 215, reversed judgment of The                     Affidavits of merit or meritorious defense;
Court of Appeals, and remanded matter back to District Court.           expert affidavits
On remand, the District Court, Jeffrey A. Shadwick, J., denied
                                                                        Although an expert's report pursuant to the
physician's motion to dismiss, and physician appealed.
                                                                        Medical Liability and Insurance Information Act
                                                                        need not marshall all the plaintiff's proof, it
                                                                        must include the expert's opinions on the three
Holdings: The Court of Appeals, George C. Hanks, Jr., J.,               statutory elements-standard of care, breach, and
held that:                                                              causation. V.T.C.A., Civil Practice & Remedies
                                                                        Code § 74.351(r)(6).
[1] expert obstetrician was not required to submit separate
expert reports for emergency room physician and pregnant                Cases that cite this headnote
patient's obstetrician who owed patient same standard of care;
                                                                  [3]   Health
[2] expert emergency room physician's report provided                       Affidavits of merit or meritorious defense;
defendant emergency room physician with adequate notice of              expert affidavits
what standard of care was and what action defendant should
                                                                        In order to constitute a good faith effort to
have taken;
                                                                        comply with the Medical Liability and Insurance
                                                                        Information Act, an expert's report must provide
[3] expert neurologist's report was not merely conclusory on
                                                                        enough information to fulfill two purposes: first,
issue of causation of pregnant patient's stroke; and
                                                                        the report must inform the defendant of the
                                                                        specific conduct the plaintiff has called into
[4] board-certified neurologist was qualified to give expert
                                                                        question; and second, the report must provide a
opinion regarding applicable standard of care for pregnant
                                                                        basis for the trial court to conclude that the claims
emergency room patient who presented with numbness in
right arm.


               © 2015 Thomson Reuters. No claim to original U.S. Government Works.                                              1
Rittger v. Danos, 332 S.W.3d 550 (2009)


        have merit. V.T.C.A., Civil Practice & Remedies
        Code § 74.351(r)(6).                                       5 Cases that cite this headnote

        Cases that cite this headnote
                                                             [7]   Health
                                                                       Affidavits of merit or meritorious defense;
 [4]    Health                                                     expert affidavits
            Affidavits of merit or meritorious defense;            An expert's report under the Medical Liability
        expert affidavits                                          and Insurance Information Act is not required to
        An expert report that merely states the expert's           specifically state the same standard of care for
        conclusions as to the standard of care, breach,            each individual defendant physician practicing
        and causation does not constitute a good faith             on the same patient when each physician owes
        effort to comply with the Medical Liability                the same duties to the patient. V.T.C.A., Civil
        and Insurance Information Act; the expert must             Practice & Remedies Code § 74.351(r)(6).
        explain the basis for his statements and link his
        conclusions to the facts. V.T.C.A., Civil Practice         2 Cases that cite this headnote
        & Remedies Code § 74.351(r)(6).
                                                             [8]   Health
        Cases that cite this headnote
                                                                       Affidavits of merit or meritorious defense;
                                                                   expert affidavits
 [5]    Health                                                     Expert emergency room physician's report
            Affidavits of merit or meritorious defense;            provided defendant emergency room physician
        expert affidavits                                          with adequate notice of what standard of
        In assessing an expert report's sufficiency, for           care was and what action defendant should
        the purposes of determining whether the report             have taken when presented with pregnant
        complies with the requirements for such reports            patient who complained of numbness in right
        under the Medical Liability and Insurance                  arm, as required to comply with expert
        Information Act, the trial court may not draw any          report requirements under Medical Liability and
        inferences, and instead must rely exclusively on           Insurance Information Act, in patient's action
        the information contained within the report's four         against defendant physician; report indicated
        corners. V.T.C.A., Civil Practice & Remedies               that, upon recognizing high risk of transient
        Code § 74.351(r)(6).                                       ischemic attack and stroke, defendant should
                                                                   have admitted patient for further evaluation and
        Cases that cite this headnote                              treatment. V.T.C.A., Civil Practice & Remedies
                                                                   Code § 74.351(r)(6).
 [6]    Health
                                                                   Cases that cite this headnote
            Affidavits of merit or meritorious defense;
        expert affidavits
        Expert obstetrician was not required to submit       [9]   Health
        separate expert reports detailing applicable                   Affidavits of merit or meritorious defense;
        standard of care, breach of care, and causation            expert affidavits
        with respect to both emergency room physician              Expert neurologist's report was not merely
        and pregnant patient's obstetrician, in patient's          conclusory on issue of causation of pregnant
        suit against both, where both emergency room               patient's stroke, for purposes of determining
        physician and obstetrician owed same duty to               whether report complied with requirements
        patient when she presented to emergency room               under Medical Liability and Insurance
        with numbness in arm. V.T.C.A., Civil Practice             Information Act, in patient's action against
        & Remedies Code § 74.351(r)(6).                            emergency room physician; expert expressly
                                                                   linked emergency room physician's alleged



              © 2015 Thomson Reuters. No claim to original U.S. Government Works.                                     2
Rittger v. Danos, 332 S.W.3d 550 (2009)


        breach of standard of care, specifically, failure           of a medical malpractice claim, and that the
        to admit and treat patient for pregnancy-related            report satisfies the statutory requirements of
        toxemia, to patient's thrombosis. V.T.C.A., Civil           the Medical Liability and Insurance Information
        Practice & Remedies Code § 74.351(r)(6).                    Act. V.T.C.A., Civil Practice & Remedies Code
                                                                    § 74.401(a).
        1 Cases that cite this headnote
                                                                    1 Cases that cite this headnote
 [10]   Evidence
            Due care and proper conduct in general           [13]   Evidence
        The expert testifying in a medical malpractice                  Due care and proper conduct in general
        case need not be a specialist in the particular             No definitive guidelines exist for determining
        branch of the profession for which testimony                whether a proffered medical expert witness's
        is offered; the statute setting out the requisite           education, experience, skill, or training qualify
        qualifications focuses not on the defendant                 him as an expert to provide an opinion regarding
        doctor's area of expertise, but on the condition            the applicable standard of care, breach of that
        involved in the claim. V.T.C.A., Civil Practice &           care, and causation elements of a medical
        Remedies Code § 74.401(a).                                  malpractice claim, for the purposes of the
                                                                    Medical Liability and Insurance Information
        Cases that cite this headnote                               Act. V.T.C.A., Civil Practice & Remedies Code
                                                                    § 74.401(a).
 [11]   Evidence
                                                                    Cases that cite this headnote
            Due care and proper conduct in general
        Board-certified neurologist was qualified to give
        expert opinion regarding applicable standard of      [14]   Evidence
        care for pregnant emergency room patient who                    Due care and proper conduct in general
        presented with numbness in right arm, in medical            Where a particular subject of inquiry is common
        malpractice action brought against emergency                to and equally developed in all fields of practice,
        room physician; neurologist had knowledge of                and the prospective medical expert witness
        standard of care for brain trauma, and treatment            has practical knowledge of what is usually
        of patients with brain trauma was common in                 and customarily done by a practitioner under
        field of neurology, and fact that patient was               circumstances similar to those which confronted
        pregnant when she suffered stroke or was in                 the practitioner charged with malpractice, the
        emergency room did not require expert to be                 witness is qualified to testify. V.T.C.A., Civil
        either emergency room physician or obstetrician.            Practice & Remedies Code § 74.401(a).
        V.T.C.A., Civil Practice & Remedies Code §
        74.401(a).                                                  2 Cases that cite this headnote

        4 Cases that cite this headnote


 [12]   Evidence                                            Attorneys and Law Firms
            Preliminary evidence as to competency
                                                            *553 Jeffrey H. Uzick, Uzick, Oncken, Scheuerman &
        Health                                              Berger, P.C., Houston, TX, for Appellant.
            Affidavits of merit or meritorious defense;
        expert affidavits                                   Joshua Paul Davis, Youngdahl & Citti, P.C., Houston, TX,
        The expert's proponent has the burden to            for Appellee.
        show that their expert is qualified to give an
                                                            Panel consists of Justices KEYES, HANKS, and BLAND.
        opinion on the applicable standard of care,
        breach of that care, and causation elements


              © 2015 Thomson Reuters. No claim to original U.S. Government Works.                                         3
Rittger v. Danos, 332 S.W.3d 550 (2009)


                                                                   found that, section 74.351(c) did not permit Danos to serve a
                                                                   report from a new expert. The trial court dismissed Danos's
                          OPINION                                  case and awarded Rittger $10,000 in attorney's fees.

GEORGE C. HANKS, JR., Justice.                                     1      All defendants except Rittger were eventually nonsuited.

In this interlocutory appeal, appellant, Kevin Rittger, M.D.,      2      Section 74.351(a) provides as follows:
challenges the trial court's order denying his motion to dismiss               In a health care liability claim, a claimant shall,
the medical malpractice claims made against him by appellee,                   not later than the 120th day after the date the
Lou Virginia Danos, individually and as next friend of Ryan                    original petition was filed, serve on each party
Cochran, a minor. In his sole issue, Rittger contends that the                 or the party's attorney one or more expert report,
trial court erred by not dismissing the suit on the ground                     with a curriculum vitae of each expert listed in the
that Danos submitted expert reports that did not satisfy the                   report for each physician or health care provider
requirements of Chapter 74 of the Texas Civil Practice and                     against whom a liability claim is asserted. The date
                                                                               for serving the report may be extended by written
Remedies Code. We affirm.
                                                                               agreement of the affected parties. Each defendant
                                                                               physician or health care provider whose conduct
                                                                               is implicated in a report must file and serve any
                       I. Background                                           objection to the sufficiency of the report not later
                                                                               than the 21st day after the date it was served, failing
On May 30, 2003, Danos, who was 28–weeks pregnant with                         which all objections are waived.
her second child, went to St. John Hospital's emergency                        TEX. CIV. PRAC. & REM.CODE ANN. §
room complaining of right arm numbness. Rittger, the                           74.351(a) (Vernon Supp. 2008).
emergency room physician, obtained a CT scan of her                3      Section 74.351(c) provides: “[i]f an expert report has not
head and called for a consultation by Danos's obstetrician,
                                                                          been served within the period specified by Subsection (a)
Dr. Victor Patel. Dr. Patel evaluated Danos and ordered a                 because elements of the report are found deficient, the
neurological examination. Before the scheduled neurological               court may grant one 30–day extension to the claimant in
exam could take place, Patel discharged Danos with a                      order to cure the deficiency.” See id. § 74.351(c).
diagnosis of “generalized anxiety.” Two days later, Danos
                                                                   Danos appealed the dismissal of her case to this court, and a
went to Memorial Hermann Hospital with weakness of her
                                                                   panel of this court affirmed the judgment of the trial court.
right upper and lower extremities. Medical Professionals
                                                                   Danos v. Rittger, 253 S.W.3d 294, 295 (Tex.App.-Houston
there found that she had experienced a left middle cerebral
                                                                   [1st Dist.] 2007, pet. granted). The Supreme Court reversed,
artery (“MCA”) stroke due to a clot at the bifurcation of the
                                                                   holding that section 74.351(a) allows a claimant to cure a
left MCA.
                                                                   deficiency in a report by serving a report from a separate
                                                                   expert during the 30–day cure period. Danos v. Rittger, 253
Danos sued Rittger and other healthcare providers for medical
                                                                   S.W.3d 215 (Tex.2008). The Supreme Court remanded the
negligence. 1 Pursuant to section 74.351 of the Texas Civil        case to the trial court to consider the adequacy of Dr. Meyer's
Practice and Remedies Code, 2 Danos timely *554 filed              expert report. Id. at 215–16. Following an oral hearing,
expert reports from Dave David, M.D., an obstetrician,             the trial court denied Rittger's motion to dismiss, and this
and Frank Baker, M.D., an emergency room physician. Dr.            interlocutory appeal followed.
David's report did not address the care provided by Rittger.
Rittger objected to the sufficiency of Baker's report and          On appeal, Rittger reasserts his challenges to the adequacy
moved to dismiss. The trial court ruled that the report did        of the plaintiff's expert reports, claiming that the reports of
not comply with section 74.351 and gave Danos 30 days to           Baker and Meyer, considered together or separately, fail to
cure the deficiency. 3 Within the 30 days, Danos served a          satisfy Chapter 74's requirements. Rittger also seeks remand
new report from Baker as well as a report from John Meyer,         on the issue of attorney's fees.
M.D., a neurological expert not previously designated. The
trial court found that Baker, although qualified to opine on
the standard of care and its breach, failed to show the nexus                       II. Medical Expert Reports
between the negligence and the injury. The trial court further


                © 2015 Thomson Reuters. No claim to original U.S. Government Works.                                                      4
Rittger v. Danos, 332 S.W.3d 550 (2009)


                                                                    that failure and the injury, harm, or damages claimed. See id.
A. Standard of Review                                               § 74.351(r)(6); Palacios, 46 S.W.3d at 877.
We review all section 74.351 rulings under an abuse
of discretion standard. Am. Transitional Care Centers v.             [2] [3] [4] [5] Although the report need not marshall all
Palacios, 46 S.W.3d 873, 877 (Tex.2001). A trial court abuses       the plaintiff's proof, it must include the expert's opinions on
its discretion if it acts in an arbitrary or unreasonable manner    the three statutory elements—standard of care, breach, and
without reference to guiding rules or principles. See Garcia v.     causation. See Palacios, 46 S.W.3d at 878; Gray v. CHCA
Martinez, 988 S.W.2d 219, 222 (Tex.1999). When reviewing            Bayshore, L.P., 189 S.W.3d 855, 859 (Tex.App.-Houston [1st
matters committed to the trial court's discretion, we may           Dist.] 2006, no pet.). In detailing these elements, the report
not substitute our own judgment for that of the trial court.        must provide enough information to fulfill two purposes if
Walker v. Packer, 827 S.W.2d 833, 839 (Tex.1992). A trial           it is to constitute a good faith effort. First, the report must
court does not abuse its discretion merely because it decides       inform the defendant of the specific conduct the plaintiff has
a discretionary matter differently than an appellate court          called into question. Palacios, 46 S.W.3d at 879. Second, the
would in a similar circumstance. See Downer v. Aquamarine           report must provide a basis for the trial court to conclude
Operators, Inc., 701 S.W.2d 238, 242 (Tex.1985).                    that the claims have merit. Id. A report that merely states
                                                                    the expert's conclusions as to the standard of care, breach,
 *555 Although we may defer to the trial court's factual            and causation does not fulfill these two purposes. Id. The
determinations, we review questions of law de novo. Rittmer         expert must explain the basis for his statements and link his
v. Garza, 65 S.W.3d 718, 722 (Tex.App.-Houston [14th Dist.]         conclusions to the facts. Bowie, 79 S.W.3d at 52 (citing Earle
2001, no pet.). To the extent resolution of the issue before        v. Ratliff, 998 S.W.2d 882, 890 (Tex.1999)). Furthermore,
the trial court requires interpretation of the statute itself, we   in assessing the report's sufficiency, the trial court may not
apply a de novo standard. Buck v. Blum, 130 S.W.3d 285, 290         draw any inferences, and instead must rely exclusively on the
(Tex.App.-Houston [14th Dist.] 2004, no pet.).                      information contained within the report's four corners. See
                                                                    Palacios, 46 S.W.3d at 878.
 [1] In reviewing whether an expert report complies with
Chapter 74.351, we evaluate whether the report “represents
a good-faith effort” to comply with the statute. Strom v.           C. Adequacy of Experts' Reports
Mem'l Hermann Hosp. Sys., 110 S.W.3d 216, 221 (Tex.App.-            Reading both the Baker and Meyer reports together, we
Houston [1st Dist.] 2003, pet. denied). In making this              conclude that the documents satisfy all three elements under
evaluation, we must look only at the information that is            Palacios. Specifically, they identify the standard of care,
contained within the four corners of the report. Bowie Mem'l        describe the conduct that allegedly breached that standard,
Hosp. v. Wright, 79 S.W.3d 48, 53 (Tex.2002).                       and identified a causal relationship between the alleged
                                                                    breach and Danos's injury.

B. Chapter 74 Expert Report Requirements
Pursuant to section 74.351, medical-malpractice plaintiffs          1. Dr. Baker's Reports
must provide each defendant physician and health care                *556 [6] First, we review the adequacy of Dr. Baker's
provider with an expert report or voluntarily nonsuit the           reports as it pertains to the standard of care for Rittger
action. TEX. CIV. PRAC. & REM.CODE ANN. § 74.351(a)                 and the breach of that standard. The initial report by Baker
(Vernon Supp. 2008). If a claimant timely furnishes an expert       collectively addressed the negligence of Rittger and others.
report, a defendant may file a motion challenging the report's      Specifically, the report alleged that:
adequacy. Id. The trial court shall grant the motion only if
it appears, after hearing, that the report does not represent a       Dr. Rittger and Dr. V. Patel deviated from the standard
good faith effort to comply with the statutory definition of          of care by failing to diagnose TIA [transient ischemic
an expert report. See id. § 74.351(1). The statute defines an         attack] and by failing to admit the patient for further
expert report as a written report by an expert that provides,         evaluation and treatment of her TIA. That evaluation
as to each defendant, a fair summary of the expert's opinions         should have initially consisted of laboratory work such
as of the date of the report regarding: (1) applicable standards      as a CBC with platelet count, prothrombin time, and
of care; (2) the manner in which the care provided failed to          partial thromboplastin time in an effort to explore
meet the standards; and (3) the causal relationship between           hypercoagulabile states, an echocardiogram looking for



                © 2015 Thomson Reuters. No claim to original U.S. Government Works.                                            5
Rittger v. Danos, 332 S.W.3d 550 (2009)


  cardiac sources of emboli, and a carotid Dopplar ultrasound      on the same patient when each physician owes the same
  to evaluate the patient for carotid sources of emboli, and, if   duties to the patient. In re Boone, 223 S.W.3d 398, 405–
  warranted, an MIR/MRA for further evaluation. It is well-        06 (Tex.App.-Amarillo 2006, no pet.) (holding expert report
  known that pregnancy predisposes patients to thrombo-            sufficient with same standard of care for multiple defendants
  embolic phenomenon including TIA's and strokes. This             when each defendant was performing same duties on same
  is because physiologic states associated with elevated           patient); Romero v. Lieberman, 232 S.W.3d 385, 391–92
  estrogen and progesterone levels such as pregnancy and the       (Tex.App.-Dallas 2007, no pet.) (defendants' argument that
  use of birth control pills cause hypercoagulabile states that    expert report was insufficient because they were not given
  are associated with increased clotting resulting in strokes      individual standards of care and were being held to “one size
  [sic] and other thrombo-embolic phenomenon. Failure to           fits all” standard were unmeritorious as each physician owed
  make the diagnosis of TIA and to formulate a plan to treat       same duties and were held to same standard).
  Virginia Danos was a deviation from the standard of care
  and causally related to her subsequent stroke.                    *557 Rittger relies on Taylor v. Christus Spohn Health
                                                                   System Corp. and Rittmer v. Garza to support his contention
  ...                                                              that Baker's reports are inadequate as to the standard of
                                                                   care and breach because it collectively refers to a group of
  With a reasonable degree of medical certainty, had she been
                                                                   doctors rather than setting forth individual standards as to
  admitted and treated, her TIA would not have progressed
                                                                   Rittger. See Taylor v. Christus Spohn Health Sys. Corp., 169
  to a left MCA stroke.
                                                                   S.W.3d 241, 243 (Tex.App.-Corpus Christi 2005, no pet.);
                                                                   Rittmer v. Garza, 65 S.W.3d 718, 721 (Tex.App.-Houston
In the second report, Baker added the following paragraph:
                                                                   [14th Dist.] 2001, no pet.). We find both Taylor and Rittmer
             Virginia Danos was pregnant at the                    distinguishable.
             time of this incident and, because
             of her pregnancy, she had elevated                    In Taylor, the defendants included a hospital, a doctors'
             estrogen and progesterone levels. As                  association, an emergency room physician, and a cardiologist,
             a direct result, she was predisposed                  and the expert failed to state what each defendant should
             to thrombo-embolic events including                   have done to meet the standard of care and failed to do,
             TIA's and strokes. Dr. Rittger and                    and how the failure led to the patients death. Taylor, 169
             Dr. V. Patel should have recognized                   S.W.3d at 243. Here, Baker's report comments on the failure
             that she was predisposed to these                     of a uniform duty owed by both doctors to the same
             thrombo-embolic events because of                     patient. And, also unlike Taylor, Baker specifically names the
             her elevated estrogen and progesterone                individual doctors, identifies their specific negligent actions,
             levels. High suspicions should have                   and discusses their failures according to the uniform standard
             led them to diagnose TIA which                        of care that both doctors owed to Danos.
             should have resulted in admission for
             further evaluation and treatment.                     In Rittmer, the plaintiff conceded her report failed to set
                                                                   out specific standards of care for two distinct specialists—
                                                                   an oncologist performing a mastectomy and a plastic surgeon
Dr. Baker's reports detail the standard of care to which Rittger
                                                                   performing reconstructive surgery. Rittmer, 65 S.W.3d at
was required to conform and the breach of that standard.
                                                                   722. This is distinct from Baker's articulation of a standard
See TEX. CIV. PRAC. & REM.CODE ANN. § 74.351(r)
                                                                   of care for a duty owed to a patient in an emergency room
(6). The reports provide Rittger with a fair summary of
                                                                   setting.
Baker's opinions concerning the standard of care and how
Rittger failed to meet that standard of care. Palacios, 46
                                                                    [8] Rittger argues further that Baker's report failed to
S.W.3d at 880. Nevertheless, Rittger argues that the reports
                                                                   specify what particular actions or what additional specific
are insufficient because Baker collectively referenced Rittger
                                                                   care Rittger should have provided Danos. On the contrary,
and Patel in discussing the standard of care. We disagree.
                                                                   Baker's supplemental report indicates that, upon recognizing
                                                                   the high risk of TIA and stroke present during pregnancy,
 [7] Appellees are not required to specifically state the same
standard of care for each individual physician practicing



                © 2015 Thomson Reuters. No claim to original U.S. Government Works.                                             6
Rittger v. Danos, 332 S.W.3d 550 (2009)


Rittger and Patel should have admitted Danos for further
evaluation and treatment.                                            Nevertheless, Rittger contends that Meyer's report is
                                                                     conclusory as to causation. We disagree. Meyer causally links
For the foregoing reasons, we conclude that Baker's                  Rittger's failure to admit and treat Danos for her pregnancy-
report provides a sufficiently specific standard of care and         related toxemia directly to Danos's thrombosis of her left
specifically identifies the breach of that standard of care for      middle cerebral artery and thus provides a sufficient basis for
an emergency room physician. Thus, Baker's reports meet the          his opinion. Consequently, we conclude that Meyer's report
first and second prongs of Palacios.                                 satisfies the third prong of Palacios.


2. Dr. Meyer's Report                                                D. Qualifications of Experts
 [9] Next, we review Dr. Meyer's report to determine whether         Section 74.351 defines an “expert” with respect to a person
it sufficiently links the alleged breaches of the standard of care   opining as to whether a physician departed from accepted
with Danos's injuries. Meyer's report reads, in pertinent part:      standards of medical care, as one who is qualified to testify
                                                                     under the requirements of Section 74.401. See TEX. CIV.
  Dr. Rittger and Dr. Patel and the triage staff at Christus St.     PRAC. & REM.CODE ANN. § 74.351(r)(5)(A) (Vernon
  John Hospital all fell below [the] standard of care for not        Supp. 2008). Section 74.401 states that a physician is
  admitting [Danos] and working her up for probable stroke           qualified to give such testimony against a physician if he:
  with diagnosis of left middle cerebral artery impending            (1) is practicing medicine at the time such testimony is given
  thrombosis or stroke due to toxemia of pregnancy.                  or was practicing medicine at the time the claim arose; (2)
                                                                     has knowledge of accepted standards of medical care for the
  ...
                                                                     diagnosis, care, or treatment of the illness, injury, or condition
  Christus St. John Hospital and the conduct of ER Triage            involved in the claim; and (3) is qualified on the basis of
  nurse, C. Southard, RN, Kevin Rittger, MD, John Gillespie,         training or experience to offer an expert opinion regarding
  MD and Victor Patel, MD were all negligent and all                 those accepted standards of medical care. TEX. CIV. PRAC.
  fell below the standard of care in their treatment of Lou          REM.CODE ANN. § 74.401(a) (Vernon 2005).
  Virginia Danos by not admitting her to the hospital with
  diagnosis of impending stroke and treating her with anti-          When determining whether a witness is qualified on the basis
  platelet drugs, control of her BP and treatment of her             of training or experience, the court considers whether, “at the
  eclampsia or toxemia of pregnancy and arranging for                time the claim arose or at the time the testimony is given, the
  immediate Caesarian Section by delivering her child for            witness (1) is board certified or has other substantial training
  prevention of complications or pre-eclampsia or toxemia            or experience in an area of medical practice relevant to the
  pregnancy.                                                         claim and (2) is actively practicing medicine in rendering
                                                                     medical care services relevant to the claim.” Id. § 74.401(c)
  As a result, Ms. Virginia Danos suffered from thrombosis           (Vernon 2005).
  of her left middle cerebral artery as a complication of
  toxemia of pregnancy, which if treated early, [the] stroke          [10] The expert testifying in a medical malpractice case need
  would have been prevented *558 and she would have                  not be a specialist in the particular branch of the profession for
  remained neurologically normal. Apart from termination             which testimony is offered; the statute setting out the requisite
  of pregnancy by Caesarian section, control of her elevated         qualifications focuses not on the defendant doctor's area of
  blood pressure, plus treatment with anti-platelet drugs            expertise, but on the condition involved in the claim. Blan v.
  would have all been indicated to prevent her stroke.               Ali, 7 S.W.3d 741, 745 (Tex.App.-Houston [14th Dist.] 1999,
                                                                     no pet.).
We conclude that Meyer's report is sufficient to establish
causation because it links Rittger's alleged breaches of the
standard of care with Danos's injuries. Meyer unequivocally          1. Dr. Baker
states that Danos suffered neurological injury as the result of      Baker is board certified in emergency medicine. As such,
appellant's breach of the standard of care. Meyer reaches this       he has the training and experience to testify concerning
conclusion after he sets forth the pertinent standard of care        the appropriate standard of care for an emergency room
and how Danos's injury could have been prevented.                    physician. TEX. CIV. PRAC. & REM.CODE ANN. §


                © 2015 Thomson Reuters. No claim to original U.S. Government Works.                                                 7
Rittger v. Danos, 332 S.W.3d 550 (2009)


                                                                require that Dr. Meyer be an obstetrician or emergency room
74.401(a)(3) (Vernon 2005). Rittger does not dispute that
                                                                physician. Dr. Meyer is shown to be sufficiently competent
Baker is qualified to testify regarding the standard of care and
                                                                and qualified to testify as to the care of patients with stroke as
breach. Danos, 253 S.W.3d at 299.
                                                                a complication of pregnancy-related toxemia. See Simpson,
                                                                537 S.W.2d at 116–18 (concluding that general physician
2. Dr. Meyer                                                    qualified to testify as expert against physician specializing in
 [11] [12] [13] Rittger argues that neither Meyer's report obstetrics and gynecology).
nor his curriculum vitae qualify Meyer, a neurologist, to
provide an opinion on the pertinent standard of care or breach
thereof by Rittger as an emergency room physician. Danos,
                                                                                         III. Conclusion
as the expert's *559 proponent, has the burden to show
that Meyer is qualified and that Meyer's report satisfies the   The expert reports, considered together, satisfy the
statutory requirements. Mem'l Hermann Healthcare Sys. v.        requirements provided in Palacios by informing the appellant
Burrell, 230 S.W.3d 755, 757 (Tex.App.-Houston [14th Dist.]     of the specific conduct called into question and giving the
2007, no pet.). No definitive guidelines exist for determining  trial court a basis to conclude whether or not the claims have
whether a witness's education, experience, skill, or training   merit. See Palacios, 46 S.W.3d at 879. The reports comply
qualify him as an expert. Id. at 762.                           with section 74.351 by detailing the standard of care to which
                                                                Rittger was required to conform, the breach of that standard,
 [14] As a board-certified neurologist and professor in Baylor and causation. See TEX. CIV. PRAC. & REM.CODE ANN.
College of Medicine's Department of Neurology, Meyer            § 74.351(r)(6); Palacios, 46 S.W.3d at 878. Based on the
has knowledge of the accepted standards of care for brain       standards articulated in Palacios, we conclude that Danos
trauma. Where a particular subject of inquiry is common         made a good faith effort to comply with the statute and that the
to and equally developed in all fields of practice, and the     trial court did not err in overruling Rittger's objections to the
prospective medical expert witness has practical knowledge      expert reports. Accordingly, we hold that the trial court did
of what is usually and customarily done by a practitioner       not abuse its discretion in denying Rittger's motion to dismiss.
under circumstances similar to those which confronted the       We overrule Rittger's issue on appeal and affirm the order that
practitioner charged with malpractice, the witness is qualified denied Rittger's motion to dismiss.
to testify. Simpson v. Glenn, 537 S.W.2d 114, 117 (Tex.App.-
Amarillo 1976, writ ref'd n.r.e.). The treatment of patients
with brain trauma is common in the field of neurology;          All Citations
therefore Dr. Meyer qualifies as an expert. The fact that Danos
                                                                       332 S.W.3d 550
was pregnant when she experienced her stroke or that she
presented herself in an emergency room setting does not

End of Document                                                    © 2015 Thomson Reuters. No claim to original U.S. Government Works.




                © 2015 Thomson Reuters. No claim to original U.S. Government Works.                                                 8
Salais v. Texas Dept. of Aging & Disability Services, 323 S.W.3d 527 (2010)




                    323 S.W.3d 527                                 West Headnotes (17)
                Court of Appeals of Texas,
                          Waco.
                                                                   [1]   Appeal and Error
       Ana Maria Gonzalez SALAIS, Individually                              Rulings on Motions Relating to Pleadings
         and as Representative of the Estate of                          A trial court's decision to dismiss a health-care
        Ruben Gonzalez, Deceased, Appellants,                            liability claim under the expert report statute
                          v.                                             is reviewed by the abuse-of-discretion standard.
          TEXAS DEPARTMENT OF AGING                                      V.T.C.A., Civil Practice & Remedies Code §
         & DISABILITY SERVICES, Appellee.                                74.351.

        No. 10–09–00155–CV.           |   Aug. 4, 2010.                  Cases that cite this headnote

Synopsis
                                                                   [2]   Appeal and Error
Background: Mother of patient who died at a Texas
                                                                            Competency of witness
Department of Aging and Disability Services (TDADS)
                                                                         A trial court's decision on whether a person is
facility brought a health-care liability action against TDADS.
                                                                         qualified to offer an expert opinion in a health-
The 77th District Court, Limestone County, Deborah Oakes
                                                                         care liability claim is reviewed under the abuse-
Evans, J., granted motion to dismiss by TDADS, and mother
                                                                         of-discretion standard. V.T.C.A., Civil Practice
appealed.
                                                                         & Remedies Code § 74.351.

                                                                         1 Cases that cite this headnote
Holdings: The Court of Appeals, Rex D. Davis, J., held that:
                                                                   [3]   Appeal and Error
[1] paramedic was qualified to provide an expert opinion on                 Nature and Extent of Discretionary Power
the accepted standard of care in restraining patients;
                                                                         A trial court has no discretion in determining
                                                                         what the law is or applying the law to the facts.
[2] paramedic's expert report represented a good-faith effort
to comply with the expert report statute;                                Cases that cite this headnote

[3] physician's expert report did not establish he was qualified
to provide an opinion on the cause of patient's death; but         [4]   Appeal and Error
                                                                            Abuse of discretion
[4] expert reports of paramedic and physician together                   A clear failure by the trial court to analyze or
constituted a good-faith effort to provide a fair summary of             apply the law correctly will constitute an abuse
the cause of patient's death; and                                        of discretion.

[5] case would be remanded so that trial court could exercise            Cases that cite this headnote
its discretion regarding mother's request for an extension to
cure technical deficiency in physician's report.                   [5]   Evidence
                                                                             Due care and proper conduct in general

Reversed.                                                                Paramedic, who provided opinion for mother of
                                                                         developmentally disabled patient who died after
Tom Gray, C.J., dissented and filed opinion.                             being physically retrained by healthcare staff
                                                                         at Texas Department of Aging and Disability
                                                                         Services (TDADS) facility, was qualified to
                                                                         offer an expert opinion on the accepted standards



                © 2015 Thomson Reuters. No claim to original U.S. Government Works.                                          1
Salais v. Texas Dept. of Aging & Disability Services, 323 S.W.3d 527 (2010)


        of care in mother's health-care liability action               the statute the report must address the standard
        against TDADS, where, based on mother's                        of care, breach, and causation with sufficient
        allegations, the type of care or treatment                     specificity to inform the defendant of the conduct
        and the condition involved was the use of                      the plaintiff calls into question and to provide a
        physical restraint and a restraint board on a                  basis for the trial court to conclude that the claims
        combative person, and paramedic was a certified                have merit. V.T.C.A., Civil Practice & Remedies
        practitioner familiar with the standard of care                Code § 74.351.
        in restraining combative persons and instructed
        others on such standard of care. V.T.C.A., Civil               2 Cases that cite this headnote
        Practice & Remedies Code § 74.351.
                                                                [9]    Health
        Cases that cite this headnote
                                                                           Affidavits of merit or meritorious defense;
                                                                       expert affidavits
 [6]    Health                                                         Paramedic's expert report, provided on behalf
            Affidavits of merit or meritorious defense;                of mother of developmentally disabled patient
        expert affidavits                                              in health-care liability action brought against
        When considering a motion to dismiss under                     Texas Department of Aging and Disability
        the expert report statute for health-care liability            Services (TDADS) after patient died while
        claims, the issue is whether the report represents             being physically restrained by TDADS facility,
        a good-faith effort to comply with the statutory               represented a good-faith effort to comply with
        definition of an expert report. V.T.C.A., Civil                the expert report statute for health-care liability
        Practice & Remedies Code § 74.351.                             claims, where report noted that paramedic had
                                                                       been qualified as an expert in restraint asphyxia,
        1 Cases that cite this headnote                                stated he was familiar with the standard of care
                                                                       for restraining combative persons, stated what
 [7]    Health                                                         steps should be taken to monitor for respiratory
            Affidavits of merit or meritorious defense;                distress, and stated that had any of the restrainers
        expert affidavits                                              prevented the application of the restraint board
                                                                       it was more likely than not that the patient
        In determining whether a report represents a
                                                                       would not have suffered from restraint asphyxia.
        good-faith effort to comply with the expert
                                                                       V.T.C.A., Civil Practice & Remedies Code §
        report statute for health-care liability claims, the
                                                                       74.351.
        inquiry is limited to the four corners of the report.
        V.T.C.A., Civil Practice & Remedies Code §                     Cases that cite this headnote
        74.351.

        1 Cases that cite this headnote                         [10]   Health
                                                                           Affidavits of merit or meritorious defense;
                                                                       expert affidavits
 [8]    Health
            Affidavits of merit or meritorious defense;                Expert reports can be considered together in
        expert affidavits                                              determining whether the plaintiff in a health
                                                                       care liability action has provided adequate
        An expert report need only represent a good-faith
                                                                       expert opinion regarding the standard of care,
        effort to provide a fair summary of the expert's
                                                                       breach, and causation. V.T.C.A., Civil Practice
        opinions, in order to comply with the expert
                                                                       & Remedies Code § 74.351.
        report statute for health-care liability claims;
        the report does not have to marshal all of the                 2 Cases that cite this headnote
        plaintiff's proof and the plaintiff need not present
        evidence in the report as if it were actually
        litigating the merits, and, instead, to comply with     [11]   Health



               © 2015 Thomson Reuters. No claim to original U.S. Government Works.                                             2
Salais v. Texas Dept. of Aging & Disability Services, 323 S.W.3d 527 (2010)


            Affidavits of merit or meritorious defense;               report statute for health-care liability claims.
        expert affidavits                                             V.T.C.A., Civil Practice & Remedies Code §
        A physician's report on causation should not be               74.351.
        read in isolation, for purposes of the expert report
                                                                      1 Cases that cite this headnote
        statute for health-care liability claims. V.T.C.A.,
        Civil Practice & Remedies Code § 74.351.
                                                               [15]   Health
        2 Cases that cite this headnote                                   Affidavits of merit or meritorious defense;
                                                                      expert affidavits
 [12]   Health                                                        Expert reports of paramedic and emergency
            Affidavits of merit or meritorious defense;               medicine physician, in health care liability action
        expert affidavits                                             mother of developmentally disabled patient
        The qualifications of an expert must appear                   brought against Texas Department of Aging and
        in the report itself and cannot be inferred, for              Disability Services (TDADS) after patient died
        purposes of the expert report statute for health-             while being physically restrained by TDADS
        care liability claims. V.T.C.A., Civil Practice &             employees, together constituted a good-faith
        Remedies Code § 74.351.                                       effort to provide a fair summary of the causal
                                                                      relationship between employees' conduct and
        3 Cases that cite this headnote                               patient's death by restraint asphyxia as required
                                                                      by the expert report statute for health-care
                                                                      liability claims, though physician's report did not
 [13]   Health
                                                                      show that he was qualified to give an expert
            Affidavits of merit or meritorious defense;
                                                                      opinion on causation, as the reports provided
        expert affidavits
                                                                      enough information linking the breach of the
        Expert report of physician did not establish
                                                                      standard of care to the death. V.T.C.A., Civil
        that he was qualified to opine on the causal
                                                                      Practice & Remedies Code § 74.351.
        relationship of employees' conduct and patient's
        death, as required in order for the report to                 1 Cases that cite this headnote
        satisfy the expert report statute for health-care
        liability claims in health care liability action
                                                               [16]   Judgment
        mother of developmentally disabled patient
                                                                          Necessity for entry
        brought against Texas Department of Aging and
        Disability Services (TDADS) after patient died                Motions
        while being restrained by health care workers at                  Entry or Filing of Orders
        TDADS facility, where physician's curriculum                  Any order or judgment, to be effective, must be
        vitae (CV) only disclosed that he was practicing              entered of record.
        in the field of emergency medicine, and in the
        past held positions as an emergency medicine                  1 Cases that cite this headnote
        physician and a general and trauma surgeon.
        V.T.C.A., Civil Practice & Remedies Code §             [17]   Appeal and Error
        74.351.                                                           Ordering New Trial, and Directing Further
                                                                      Proceedings in Lower Court
        3 Cases that cite this headnote
                                                                      Health care liability action, brought by mother
                                                                      of developmentally disabled patient against
 [14]   Health                                                        Texas Department of Aging and Disability
            Affidavits of merit or meritorious defense;               Services (TDADS) after patient died while being
        expert affidavits                                             physically restrained by TDADS employees,
        Merely being a physician is insufficient to                   would be remanded by Court of Appeals to the
        qualify as a medical expert under the expert                  trial court so that the trial court could exercise


               © 2015 Thomson Reuters. No claim to original U.S. Government Works.                                          3
Salais v. Texas Dept. of Aging & Disability Services, 323 S.W.3d 527 (2010)


        its discretion under the expert report statute            Salais also pleads:
        regarding whether mother should be granted
        an extension to cure technical deficiency in                In the Prevention & Management of Aggressive Behavior
        physician's report, i.e., report did not set forth          Course Synopsis allegedly provided by Defendant Mexia
        his qualifications to give an expert opinion on             [State School] to its employees, employees are warned that
        causation, as only the docket sheet indicated that          “[e]xtreme care must be exercised during any horizontal
        mother's motion for an extension was denied,                restraint to insure that the person's ability to breathe
        but docket-sheet entries were not “of-record”               is not restricted.... [D]uring all horizontal restraints, the
        rulings. V.T.C.A., Civil Practice & Remedies                person must remain in a side-lying position and monitored
        Code § 74.351(c).                                           continuously. Failure to do so may risk serious injury
                                                                    and death from positional asphyxia, [which] occurs when
        Cases that cite this headnote                               there is insufficient intake of oxygen as a result of
                                                                    body positioning that interferes with one's ability to
                                                                    breathe.” [Ellipsis and brackets in original].


Attorneys and Law Firms                                           She further pleads that the “Mexia State School Annual
                                                                  Retraining Course Synopsis,” allegedly provided to every
 *530 R. Keith Weber, Woodfill & Pressler LLP, Houston,           participant, gives the same warning and also provides
for Appellants.                                                   “that the person who is restraining the lower body has
                                                                  an important role in monitoring breathing, circulation, and
John P. Giberson, Atty. General's Office, Tort Litigation         general condition of the restrained individual, and in assisting
Division, Austin, Neal E. Pirkle, Naman, Howell, Smith &          in maintaining the restrained individual in a side-lying
Lee LLP, Waco, for Appellee.                                      position.”
Before Chief Justice GRAY, Justice REYNA, and Justice
                                                                   *531 In her health-care liability cause of action, Salais
DAVIS.
                                                                  alleges that TDADS [Mexia State School] and TDADS
                                                                  employees Korn, Thornton, and Thomas were negligent in the
                                                                  care and treatment of Ruben in each of the following ways:
                         OPINION
                                                                    1. Failure to recognize and/or appreciate the risk factors
REX D. DAVIS, Justice.
                                                                       for the potential occurrence of death when performing a
Ana Maria Gonzalez Salais appeals the trial court's order              physical restraint;
dismissing her health-care liability claim against the Texas
                                                                    2. Misuse of the restraints and restraint board when
Department of Aging and Disability Services (TDADS).
                                                                      performing a physical restraint;

Salais's live petition alleges that her son Ruben Gonzalez          3. Failure to anticipate the risk of traumatic asphyxia when
was a patient at the Mexia State School, a TDADS facility,             performing a physical restraint;
because of his developmental disability. Late one evening
(after midnight), Ruben had refused to go to bed and was            4. Failure to plan the physical restraint according to the
then physically restrained by Sheri Thornton and Charles               increased risk for serious injury to Decedent;
Korn, two TDADS employees. After Joel Thomas, a third
                                                                    5. Inappropriate management of the complication of
employee, arrived, they placed Ruben on a restraint board.
                                                                      performing a physical restraint;
Sue Sanderson, a TDADS nurse, was called to the scene and
found Ruben pale with no pulse or blood pressure. Sanderson         6. Failure to have the requisite knowledge regarding
was unable to resuscitate Ruben. An automated external                appropriate responses to a combative physical restraint;
defibrillator (AED) was employed, but it was not used to
shock Ruben. Paramedics arrived and their monitor showed a          7. Failure to perform the appropriate interventions
flat line and no cardiac rhythm. Ruben was taken to a hospital,       during the physical restraint of Decedent once health
where he was pronounced dead.                                         complications were encountered;



               © 2015 Thomson Reuters. No claim to original U.S. Government Works.                                             4
Salais v. Texas Dept. of Aging & Disability Services, 323 S.W.3d 527 (2010)


                                                                  TDADS's motion to dismiss and brief assert that Wohlers's
  8. Failure to provide proper education and training to          report and CV do *532 not establish his qualifications
    employees who were called upon to assist in the restraint     to testify about the standards of care applicable to the
    of Decedent.                                                  Mexia State School healthcare staff or to the treatment
                                                                  for individuals with behavioral, mental, and developmental
Section 74.351 of the Civil Practices and Remedies Code           disabilities. Its brief also asserts that Wohlers's report does
provides that within 120 days of filing suit, a claimant must     not show that the “management and care” of Ruben on the
serve a curriculum vitae (CV) and one or more expert reports      occasion in question is “something universally done.”
regarding every defendant against whom a health care claim
is asserted. TEX. CIV. PRAC. & REM.CODE ANN. § 74.351             Regarding his qualifications, Wohlers's report states:
(Vernon Supp. 2009). Salais provided two expert reports. One
report was by James Wohlers, a paramedic, which addresses                     I received my paramedic education
the standard of care and breach elements relating to the use of               from Creighton University in 1992.
the restraint board and the AED. The other report, of Donald                  Initially I was a paramedic in
Winston, M.D., addresses the causation element.                               Omaha, Nebraska from 1992 to
                                                                              1996, then a paramedic for the
TDADS objected to the reports and moved to dismiss Salais's                   City and County of Denver from
health-care liability claim under section 74.351. See id. The                 1996 until 2000. Since 2000, I
motion asserted that Salais's experts were not qualified and                  have been with the Grand Island
that their reports were inadequate. The trial court granted                   Fire Department in Grand Island,
TDADS's motion to dismiss without stating any grounds.                        Nebraska as a paramedic/firefighter. I
In her first issue, Salais argues that the trial court erred in               have also been involved in restraint
granting TDADS's motion to dismiss.                                           asphyxia education since 2006. I
                                                                              teach to EMS, Law Enforcement and
 [1]     [2]    [3]    [4] We review the trial court's decision               persons involved in the restraining
to dismiss a health-care liability claim by the abuse-of-                     of combative persons. I have been
discretion standard. American Transitional Care Ctrs. of Tex.,                qualified as an expert in the field of
Inc. v. Palacios, 46 S.W.3d 873, 877 (Tex.2001). Also, a                      restraint asphyxia.
trial court's decision on whether a person is qualified to offer
an expert opinion in a health-care liability claim is reviewed   Wohlers's CV restates the above history and notes his
under the abuse-of-discretion standard. Moore v. Gatica, 269     certification as an EMS instructor and that he specializes
S.W.3d 134, 139 (Tex.App.-Fort Worth 2008, pet. denied).         in “restraint-related issues” and instructs on Advanced Life
“However, a trial court has no discretion in determining what    Support and Basic Life Support topics. His report further
the law is or applying the law to the facts. Walker v. Packer,   states:
827 S.W.2d 833, 840 (Tex.1992). A clear failure by the trial
court to analyze or apply the law correctly will constitute                   I am familiar with the standard of care
an abuse of discretion. Id.” Austin Heart, P.A. v. Webb, 228                  for restraining a combative person and
S.W.3d 276, 279–80 (Tex.App.-Austin 2007, no pet.); see                       understand what steps should be taken
also Methodist Hosp. v. Shepherd–Sherman, 296 S.W.3d 193,                     to monitor for respiratory distress.
197 (Tex.App.-Houston [14th Dist.] 2009, no pet.) (“Though                    Through my education, background
we may not substitute our judgment for that of the trial court,               and experience, I am knowledgeable
the trial court has no discretion in determining what the law                 in the standard of care that the staff
is or applying the law to the facts.”).                                       of Mexia State School should have
                                                                              provided to Mr. Gonzales on the night
                                                                              he died.

                      Wohlers Report
                                                                  On the issue of Wohlers's qualifications, we turn to the
Qualifications                                                    applicable statute, section 74.402, which provides in pertinent
                                                                  part:



                 © 2015 Thomson Reuters. No claim to original U.S. Government Works.                                          5
Salais v. Texas Dept. of Aging & Disability Services, 323 S.W.3d 527 (2010)


                                                                  in Wohlers's report, the type of care or treatment and the
  (b) In a suit involving a health care liability claim against   condition involved is the use of physical restraint and a
  a health care provider, a person may qualify as an expert       restraint board on a combative person. Wohlers's report and
  witness on the issue of whether the health care provider        CV show that he is a certified practitioner and instructor
  departed from accepted standards of care only if the person:    in health care services relevant to the health-care liability
                                                                  claim in this case; he has been a paramedic since 1992
  (1) is practicing health care in a field of practice that
                                                                  and has been instructing on restraint asphyxia since 2006,
  involves the same type of care or treatment as that delivered
                                                                  including teaching persons involved in the restraining of
  by the defendant health care provider, if the defendant
                                                                  combative persons. His report states that he is familiar with
  health care provider is an individual, at the time the
                                                                  the standard of care for restraining a combative person and is
  testimony is given or was practicing that type of health care
                                                                  knowledgeable of the standard of care that the staff of Mexia
  at the time the claim arose;
                                                                  State School should have provided to Ruben on the night he
  (2) has knowledge of accepted standards of care for health      died with respect to the use of physical restraint and a restraint
  care providers for the diagnosis, care, or treatment of the     board.
  illness, injury, or condition involved in the claim; and
                                                                  Under the applicable criteria in section 74.402(b), Wohlers's
  (3) is qualified on the basis of training or experience to      report and CV demonstrate that he is qualified to offer an
  offer an expert opinion regarding those accepted standards      expert opinion on the accepted standards of care for this type
  of health care.                                                 of care or treatment by TDADS healthcare staff of combative
                                                                  persons. To the extent the trial court concluded otherwise, the
  (c) In determining whether a witness is qualified on the        trial court abused its discretion.
  basis of training or experience, the court shall consider
  whether, at the time the claim arose or at the time the
  testimony is given, the witness:                                Adequacy
                                                                  TDADS's motion to dismiss asserted that Wohlers's report is
  (1) is certified by a licensing agency of one or more states
                                                                  inadequate because it does not articulate the relevant standard
  of the United States or a national professional certifying
                                                                  of care and/or the bases for the relevant standards of care
  agency, or has other substantial training or experience, in
                                                                  applicable to TDADS and it does not specifically state the
  the area of health care relevant to the claim; and
                                                                  manner in which TDADS breached the applicable standard
  (2) is actively practicing health care in rendering health      of care.
  care services relevant to the claim.
                                                                   [6] When considering a motion to dismiss under subsection
TEX. CIV. PRAC. & REM.CODE ANN. § 74.402(b, c)                    74.351(b), the issue is whether the report represents a good-
(Vernon 2005).                                                    faith effort to comply with the statutory definition of an expert
                                                                  report. See Bowie Mem. Hosp. v. Wright, 79 S.W.3d 48, 52
 [5] We disagree that Wohlers was required to be qualified        (Tex.2002); Palacios, 46 S.W.3d at 878. An “expert report”
in general as an expert about the standards of care applicable    is “a written report by an expert that provides a fair summary
to the Mexia State School healthcare staff for the care and       of the expert's opinions as of the date of the report regarding
treatment for individuals *533 with behavioral, mental, and       applicable standards of care, the manner in which the care
developmental disabilities. Rather, under the literal language    rendered by the physician or health care provider failed to
of subsections 74.402(b)(1, 2), Wohlers is only required to       meet the standards, and the causal relationship between that
be practicing health care in a field of practice that involves    failure and the injury, harm, or damages claimed.” TEX. CIV.
the same type of care or treatment as that delivered by the       PRAC. & REM.CODE ANN. § 74.351(r)(6).
defendant health care provider and have knowledge of the
accepted standards of care for health care providers for the       [7]     [8] In determining whether the report represents a
care or treatment of the condition involved in the claim.         good-faith effort, the inquiry is limited to the four corners
See id. § 74.402(b)(1, 2); see, e.g., Group v. Vicento, 164       of the report. Palacios, 46 S.W.3d at 878. The report need
S.W.3d 724, 730–31 (Tex.App.-Houston [14th Dist.] 2005,           only represent a good-faith effort to provide a fair summary of
pet. denied). Based on Salais's allegations and the information   the expert's opinions. Id. The report does not have to marshal
                                                                  all of the plaintiff's proof and the plaintiff need not present


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Salais v. Texas Dept. of Aging & Disability Services, 323 S.W.3d 527 (2010)


evidence in the report as if it were actually litigating the        conduct that Salais calls into question and provides a basis
merits. Id. at 879. Rather, to constitute a good-faith effort,      for the trial court to conclude that the claims have merit.
the report must address the standard of care, breach, and           See Palacios, 46 S.W.3d at 875. It informs TDADS “what
causation with sufficient specificity to inform the defendant       care was expected but not given.” Fagadau v. Wenkstern, 311
of the conduct the plaintiff calls into question and to provide a   S.W.3d 132, 138 (Tex.App.-Dallas 2010, no pet. h.) (citing
basis for the trial court to conclude that the claims have merit.   Palacios, 46 S.W.3d at 880). To the extent the trial court
Id. at 875.                                                         concluded otherwise, the trial court abused its discretion.

 [9] The Wohlers report notes that he has been qualified as
an expert in restraint *534 asphyxia. It cites an investigative
                                                                                        Dr. Winston Report
report that he reviewed and details the course of events and the
conduct of three employees (Thomas, Korn, and Thornton) in           [10] [11] Section 74.351(i) permits a claimant to satisfy
placing Ruben on a restraint board and, according to Thomas,        any requirement of section 74.351 for serving an expert report
using a restraint strap across his diaphragm, after which           by serving reports of separate experts. TEX. CIV. PRAC.
Ruben “was breathing hard, in gasps, and making gurgling            & REM.CODE ANN. § 74.351(i); see Packard v. Guerra,
sounds.” According to Korn, a restraint strap was across            252 S.W.3d 511, 527 (Tex.App.-Houston [14th Dist.] 2008,
Ruben's chest, and Korn observed only a “slight rise” in his        pet. denied). Expert reports can be considered together in
chest; Ruben had a weak pulse. Thornton observed Ruben on           determining whether the plaintiff in a health–care liability
the restraint board and thought he was asleep, but he looked        action has provided adequate expert opinion regarding the
“funny” and was breathing shallow. Nurse Sanderson arrived,         standard of care, breach, and causation. See Walgreen Co.
and after finding Ruben's color to be abnormally pale, no           v. Hieger, 243 S.W.3d 183, 186 n. 2 (Tex.App.-Houston
blood pressure, and no pulse, she initiated CPR and attempted       [14th Dist.] 2007, pet. denied); Martin v. Abilene Regional
to use an AED. Mexia Fire/EMS then arrived, took over CPR,          Med. Center, No. 11–04–00303–CV, 2006 WL 241509, at
and did an endotracheal intubation before transferring Ruben        *4–5 (Tex.App.-Eastland Feb. 2, 2006, no pet.) (mem. op.).
to Parkview Regional Hospital, where he was pronounced              A physician's report on causation should not be read in
dead. Wohlers states:                                               isolation. See Martin, 2006 WL 241509, at *4; see also
                                                                    TEX. CIV. PRAC. & REM.CODE ANN. § 74.351(r)(5)(C)
  I am familiar with the standard of care for restraining
                                                                    (providing that only a physician can be an expert giving
  a combative person and understand what steps should
                                                                    opinion testimony on causal relationship).
  be taken to monitor for respiratory distress. Through
  my education, background and experience, I am
  knowledgeable in the standard of care that the staff of            *535 Qualifications
  Mexia State School should have provided to Mr. Gonzalez           TDADS's motion to dismiss and brief assert that Dr.
  on the night he died.                                             Winston's report and CV do not establish his qualifications
                                                                    to testify about causation. Its brief first asserts that there
  The standard of care requires that if any one of the persons
                                                                    is no showing that Dr. Winston is a licensed physician.
  involved in the restraining of Mr. Gonzalez had recognized
                                                                    “Expert” means, “with respect to a person giving opinion
  that he was in respiratory distress, he should not have
                                                                    testimony about the causal relationship between the injury,
  been placed on a restraint board and had straps placed
                                                                    harm, or damages claimed and the alleged departure from the
  across his chest. Had anyone of the restrainers prevented
                                                                    applicable standard of care in any health care liability claim,
  the application of the restraint board, it is more likely than
                                                                    a physician who is otherwise qualified to render opinions on
  not that Mr. Gonzalez would not have suffered restraint
                                                                    such causal relationship under the Texas Rules of Evidence.”
  asphyxia. No one intervened in the application of the
                                                                    TEX. CIV. PRAC. & REM.CODE ANN. § 74.351(r)(5)
  restraint board.
                                                                    (C) (Vernon Supp. 2009); see also TEX. CIV. PRAC. &
                                                                    REM.CODE ANN. § 74.403(a) (Vernon 2005).
Wohlers's report sets forth his familiarity with the standard
of care and the basis therefor, what the standard of care
                                                                    Dr. Winston's report is in a letter format, and his
is, and how the TDADS staff breached it on the occasion
                                                                    letterhead and typed signature block identify him as “Donald
in question. The report addresses the standard of care and
                                                                    Winston, MD.” His letterhead also reveals his website
breach with sufficient specificity to inform TDADS of the


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Salais v. Texas Dept. of Aging & Disability Services, 323 S.W.3d 527 (2010)


(www.urbansurgeon.com) and his email address at that
website. Furthermore, his December 2008 CV reflects that           1      To the extent that Salais has asserted a health-care
he is a licensed Texas physician (No. F0832, licensed                     liability claim based on alleged misuse of the AED (it
in February 1978 and expiring May 31, 2010). TDADS's                      is in the Wohlers report, but it is not pleaded by Salais),
assertion that there is no showing that Dr. Winston is a                  there is “no report” at all as to causation, and the trial
licensed physician is incorrect.                                          court properly dismissed that part of the health-care
                                                                          liability claim. See Benson v. Vernon, 303 S.W.3d 755,
Dr. Winston's report is a letter to Salais's attorney and states          760–61 (Tex.App.-Waco 2009, no pet.).
in its entirety:                                                    [12]    [13]     [14] TDADS is correct that Dr. Winston's
                                                                   report fails to show how he is qualified to render an expert
  At your request, I have reviewed an autopsy report and
                                                                   opinion on causation in this case. Rule 702 of the Texas
  death certificate of Ruben Gonzales, a 15 year old Hispanic
                                                                   Rules of Evidence requires that an *536 expert be qualified
  male who apparently was a student at the Mexia State
                                                                   by “knowledge, skill, experience, training, or education.”
  School.
                                                                   TEX.R. EVID. 702. The qualifications of an expert must
  I have no way of knowing exactly what took place on              appear in the report itself and cannot be inferred. See Benson
  or about January 15, 2007, but I have reviewed a Third           v. Hall, No. 10–09–00284–CV, 2010 WL 376957, at *1
  Amended Petition in Cause 28901A which states that three         (Tex.App.-Waco Feb. 3, 2010, no pet. h.); Estorque v.
  employees of Mexia State School physically restrained Mr.        Schafer, 302 S.W.3d 19, 26 (Tex.App.-Fort Worth 2009, no
  Gonzales. After a period of time, a nurse at the hospital        pet.); Philipp v. McCreedy, 298 S.W.3d 682, 686 (Tex.App.-
  found Mr. Gonzales dead. Resuscitation failed, and after         San Antonio 2009, no pet.); Baylor College of Medicine
  endotrachial [sic] intubation by Mexia Fire Department           v. Pokluda, 283 S.W.3d 110, 117 (Tex.App.-Houston [14th
  EMS, he was taken to Parkview Regional Hospital where            Dist.] 2009, no pet.); Hansen v. Starr, 123 S.W.3d 13, 19
  he was pronounced dead.                                          (Tex.App.-Dallas 2003, pet. denied). Dr. Winston's report
                                                                   does not set forth his qualifications at all. His CV reflects
  My focus is on the Autopsy report in Case No. JP0187–07–         that he is currently practicing in the field of emergency
  0120ACG done January 16th 2007.                                  medicine in Houston and has held several positions as an
                                                                   emergency medicine physician and a general and trauma
  I agree with the physical findings of:                           surgeon. Aside from their not being in the report itself, these
                                                                   position descriptions alone are inadequate to show how Dr.
     1. Petechiae in the right and left conjunctivae
                                                                   Winston is qualified to opine on the causal relationship of
     2. Contusions to the right arm and left leg                   Ruben's death. Merely being a physician is insufficient to
                                                                   qualify as a medical expert. See Broders v. Heise, 924 S.W.2d
     3. Subcutaneous hemorrhage on the upper back and              148, 152 (Tex.1996); Hagedorn v. Tisdale, 73 S.W.3d 341,
     lower back                                                    350 (Tex.App.-Amarillo 2002, no pet.).

     4. Two subgaleal hemorrhages                                  Because there is no showing in Dr. Winston's report that he is
                                                                   qualified to give an expert opinion on causation, to the extent
     5. Abrasions and contusions on face and arms
                                                                   the trial court granted the motion to dismiss on this basis, it
     6. Mechanical asphyxia                                        did not abuse its discretion. We overrule Salais's first issue.

  I disagree with the final opinion of the nine pathologists
  to the extent that there is evidence that Mr. Gonzales in        Adequacy
  any way contributed to his own death, but I agree that his        [15] Because of our disposition of the second issue, we
  death was a homicide caused by restraint and mechanical          must address TDADS's challenge to the adequacy of Dr.
  asphyxia imposed on him by the three Mexia State School          Winston's report in its motion to dismiss. On the adequacy of
  employees.                                                       Dr. Winston's report, we are precluded “from filling gaps in a
                                                                   report by drawing inferences or guessing as to what the expert
  If you have any other questions, please feel free to contact     likely meant or intended.” Austin Heart, 228 S.W.3d at 279.
  me. 1                                                            But here, there is no gap, and there is no guessing, that Dr.



                © 2015 Thomson Reuters. No claim to original U.S. Government Works.                                                     8
Salais v. Texas Dept. of Aging & Disability Services, 323 S.W.3d 527 (2010)


Winston's opinion on the cause of Ruben's death—“restraint
and mechanical asphyxia imposed on him by the three Mexia            [17] Dr. Winston's report is technically deficient—as
State School employees”—is the same conduct referred to             opposed to being “no report”—because the report lacks his
in the Wohlers report as being the three Mexia State School         qualifications to give an expert opinion on causation. It is thus
employees' breach of the standard of care in restraining a          appropriate to remand this case to the trial court so it can
person in respiratory distress.                                     exercise its discretion whether to grant a thirty-day extension
                                                                    so that Salais can attempt to cure this deficiency. See Austin
When the reports are read together, as they must be in this         Heart, 228 S.W.3d at 284–85; see also In re Buster, 275
case, they satisfy the causal-relationship requirement because      S.W.3d 475, 477 (Tex.2008) (“A report by an unqualified
they constitute a good-faith effort to provide a fair summary       expert will sometimes (though not always) reflect a good-
of the causal relationship between the employees' conduct           faith effort sufficient to justify a 30–day extension.”).
and Ruben's death by restraint asphyxia. See Martin, 2006
WL 241509, at *5. Read together, they provide “enough               Accordingly, we sustain the second issue and remand this
information linking the defendant's breach of the standard of       cause to the trial court with the instruction to consider and
care to the plaintiff's injury.” Baker v. Gomez, 276 S.W.3d         rule on Salais's motion for a thirty-day extension to attempt
1, 8 (Tex.App.-El Paso 2008, pet. denied). And because              to cure the deficiency in Dr. Winston's report.
Dr. Winston's report does link the employees' conduct with
Gonzalez's death, TDADS's reliance on Bogar v. Esparza
and Shaw v. BMW Healthcare, Inc. is misplaced, as those
                                                                    Chief Justice GRAY dissenting.
cases are distinguishable on that basis. Cf. Bogar v. Esparza,
257 S.W.3d 354, 364 (Tex.App.-Austin 2008, no pet.) (“In
essence, Dr. Adame's report is a second autopsy report,             TOM GRAY, Chief Justice, dissenting.
opining about the cause of Ms. Guerrero's death without             Ana Maria Gonzalez Salais appeals the trial court's judgment
explaining who caused it or how.”) (emphasis added); Shaw           dismissing her health care liability claim against the Texas
v. BMW Healthcare, Inc., 100 S.W.3d 8, 12–13 (Tex.App.-             Department of Aging and Disability Services. Because the
Tyler 2002, pet. denied) (op. on reh'g) (“An opinion solely         trial court did not abuse its discretion in granting TDADS's
addressing the cause of death does not satisfy the statutory        motion to dismiss or in denying Salais's request for a 30–
requirements.”).                                                    day extension, we should affirm the trial court's judgment.
                                                                    Because the Court does not, I respectfully dissent.


                          Extension
                                                                                          BACKGROUND
Subsection 74.351(c) provides: “If an expert report has not
been served within the *537 period specified by Subsection          Salais's son, Ruben Gonzalez, was a patient at a TDADS
(a) because elements of the report are found deficient, the         facility, the Mexia State School. After an altercation with the
court may grant one 30–day extension to the claimant in order       State School staff, Gonzalez was placed on a restraint board.
to cure the deficiency.” TEX. CIV. PRAC. & REM.CODE                 He then died. Salais sued both TDADS and the Mexia State
ANN. § 74.351(c). In her second issue, Salais asserts that the      School. The trial court granted TDADS's motion to dismiss.
trial court abused its discretion in not granting her alternative
motion for a thirty-day extension to cure her expert report's       In two issues on appeal, Salais argues that the trial court
deficiency.                                                         erred in granting TDADS's motion to dismiss pursuant to
                                                                    section 74.351 of the Texas Civil Practice and Remedies Code
 [16] The docket sheet appears to reflect the trial court's         and erred in denying Salais's request for a 30–day extension
denial of that motion, but docket-sheet entries are not “of-        pursuant to section 74.351(c) of the Texas Civil Practice and
record” rulings. Any order or judgment, to be effective, must       Remedies Code.
be entered of record. Kocman v. Kocman, 581 S.W.2d 516,
518 (Tex.Civ.App.-Waco 1979, no writ); see also Willis v.
Nucor Corp., 282 S.W.3d 536, 543 (Tex.App.-Waco 2008,
                                                                                            DISMISSAL
no pet.).



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Salais v. Texas Dept. of Aging & Disability Services, 323 S.W.3d 527 (2010)


Section 74.351 of the Civil Practices and Remedies Code              The report must include the expert's opinion on each of the
provides that within 120 days of filing, a claimant must             three elements that the statute identifies: standard of care,
serve a curriculum vitae and one or more expert reports              breach, and causal relationship. Bowie, 79 S.W.3d at 52;
regarding every defendant against whom a health care                 Palacios, 46 S.W.3d at 878. A report cannot merely state the
claim is asserted. TEX. CIV. PRAC. & REM.CODE ANN.                   expert's conclusions about these elements. Bowie, 79 S.W.3d
§ 74.351(a) (Vernon Supp. 2009). “Section 74.351 has                 at 52; Palacios, 46 S.W.3d at 879. “Rather, the expert must
numerous subparts, including:                                        explain the basis of his statements to link his conclusions to
                                                                     the facts.” Earle v. Ratliff, 998 S.W.2d 882, 890 (Tex.1999).
• subpart (b) requiring trial courts to dismiss a claim with
prejudice and award fees if “an expert report has not been           We review a trial court's order dismissing a claim for failure
served” by the statutory deadline;                                   to comply with the expert report requirements under an abuse-
                                                                     of-discretion standard. Bowie, 79 S.W.3d at 52; Palacios,
• subpart (c) allowing a 30–day extension of the deadline if a       46 S.W.3d at 878. Expert reports that omit at least one of
report is found inadequate; and                                      the three specifically enumerated requirements of an expert
                                                                     report cannot constitute a good faith effort to meet the
 *538 • subpart (l ) providing that a motion challenging a           statutory requirements. See Jernigan v. Langley, 195 S.W.3d
report's adequacy should be granted only if the report does          91, 94 (Tex.2006); Palacios, 46 S.W.3d at 879.
not represent a good-faith effort to comply with the statute.”
Lewis v. Funderburk, 253 S.W.3d 204, 207 (Tex.2008)                  Salais provided two reports to serve as her expert report.
(footnotes omitted); TEX. CIV. PRAC. & REM.CODE ANN.                 One report was prepared by James Wohlers, a paramedic
§ 74.351(b), (c), (l ) (Vernon Supp. 2009).                          from Nebraska, which Salais alleged addressed the expert
                                                                     report elements of the standard of care and the breach of that
When considering a motion to dismiss under section 74.351,           standard. The other report was prepared by Donald Winston,
the issue for the trial court is whether the report represents a     a physician from Houston. Salais alleged Dr. Winston's report
good-faith effort to comply with the statutory definition of an      addressed the causation element. TDADS complains, and I
expert report. See Bowie Mem'l Hosp. v. Wright, 79 S.W.3d            agree, that Dr. Winston's report wholly fails to address the
48, 52 (Tex.2002); American Transitional Care Ctrs. of Tex.,         causation element.
Inc. v. Palacios, 46 S.W.3d 873, 878 (Tex.2001). An “expert
report” means:                                                       Assuming without deciding that Dr. Winston is otherwise
                                                                     qualified to render an opinion on causation, he does not. Dr.
             A written report by an expert that                      Winston states in his report that he reviewed the autopsy
             provides a fair summary of the expert's                 report of Ruben Gonzalez and the death certificate. Then,
             opinions as of the date of the report                   he simply states that, although he disagrees with the nine
             regarding the applicable standards of                   pathologists on whether Gonzalez was in part responsible
             care, the manner in which the care                      for his own death, he agrees with them in their conclusion
             rendered by the physician or health                     that it was homicide caused by restraint and mechanical
             care provider failed to meet the                        asphyxiation “imposed on him by the three Mexia State
             standards and the causal relationship                   School employees.”
             between that failure and the injury,
             harm, or damages claimed.                                *539 What Dr. Winston fails to do is draw the connection
                                                                     or explain the causal link between the negligent actions of
TEX. CIV. PRAC. & REM.CODE ANN. § 74.351(r)(6)
                                                                     a specific health care provider (the elements of standard of
(Vernon Supp. 2009). To constitute a “good-faith effort,” the
                                                                     care and breach as described by Wohlers, the other purported
report must discuss the standard of care, breach, and causation
                                                                     expert) and the damages/injury (Gonzalez's death). In other
with sufficient specificity to fulfill two purposes: (1) to inform
                                                                     words, his report on causation must make the connection
the defendant of the specific conduct the plaintiff has called
                                                                     that the death by mechanical asphyxiation was caused by the
into question; and (2) to provide a basis for the trial court to
                                                                     conduct described by Wohlers, assuming that was adequately
conclude that the claims have merit. Bowie, 79 S.W.3d at 52;
                                                                     presented in the other expert report. See Bowie, 79 S.W.3d
Palacios, 46 S.W.3d at 879.
                                                                     at 53. Because Dr. Winston did not indicate he had reviewed



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Salais v. Texas Dept. of Aging & Disability Services, 323 S.W.3d 527 (2010)


                                                                   parties agree and the trial court's docket sheet indicates that a
the other purported expert's report, this required connection
                                                                   request for a 30–day extension was denied. Section 74.351(c)
is simply missing. Further, it is impermissible to infer that
                                                                   provides in part that the trial court may grant one 30–day
the conduct referenced in one report is the basis for the
                                                                   extension to the claimant to cure a deficiency in an expert
conclusions in the other report. See Austin Heart, P.A. v.
                                                                   report. Id. The term “may” as used in subsection (c) vests the
Webb, 228 S.W.3d 276, 279 (Tex.App.-Austin 2007, no pet.).
                                                                   trial court with discretion to grant a 30–day extension. Bosch
                                                                   v. Wilbarger Gen. Hosp., 223 S.W.3d 460, 465 (Tex.App.-
Dr. Winston's report is similar to an expert report discussed in
                                                                   Amarillo 2006, pet. denied); Hardy v. Marsh, 170 S.W.3d
Shaw v. B.M.W. Healthcare, Inc., 100 S.W.3d 8 (Tex.App.-
                                                                   865, 870–71 (Tex.App.-Texarkana 2005, no pet.).
Tyler 2002, pet. denied). In Shaw, the Shaws filed two expert
reports to address the three elements, one from a physician
                                                                   I assume without deciding that once the trial court determines
and one from a registered nurse. The Shaws agreed that the
                                                                   that the report furnished *540 did not constitute a good faith
physician's report did not set out the applicable standards of
                                                                   effort to meet the requirements of an expert report, the trial
care or address how the defendants breached any standards.
                                                                   court can, nevertheless, grant a 30–day extension to cure the
They argued, however, that those omissions were irrelevant
                                                                   deficiency. To grant such an extension, the trial court would
because the physician only rendered an opinion on the cause
                                                                   have to consider the totality of the circumstances surrounding
of death. Citing to Palacios, the Tyler Court of Appeals
                                                                   the preparation of the report, such as the difficulty, if any,
held that because there was no discussion in the report as
                                                                   encountered by the plaintiff in obtaining the necessary experts
to the applicable standard of care and any breaches of that
                                                                   or in getting the medical records necessary for the expert to
standard, an opinion solely addressing the cause of death did
                                                                   review, the diligence of the plaintiff in securing an expert on
not satisfy the statutory requirements of an expert report.
                                                                   the specific type of healthcare liability claim, whether a 30–
Shaw, 100 S.W.3d at 13 (citing Palacios, 46 S.W.3d at
                                                                   day extension would have allowed the plaintiff to cure the
879). Like the report in Shaw, Dr. Winston's report only
                                                                   defect, and the extent of the deficiency in the proffered report.
addressed Gonzalez's cause of death without a link between
                                                                   This list of considerations is by no means exhaustive.
the alleged breach and the injury. Accordingly, I would hold
that Dr. Winston's report does not meet the requirement of
                                                                   But in this case, we have not been provided any record
an expert report because there is nothing in the report that
                                                                   from which we could review the trial court's determination.
addresses the causal connection between the breach by the
                                                                   Because we have no record to review, Salais is unable to
Mexia State School employees of the standard of care as
                                                                   support the complaint that the trial court abused its discretion
allegedly contained in Wohlers's report and the injury, the
                                                                   in failing to grant a 30–day extension. See In the Interest
death of Gonzalez, claimed. The causation element has been
                                                                   of D.W., 249 S.W.3d 625, 648 (Tex.App.-Fort Worth 2008,
omitted from the report.
                                                                   no pet.) (because no record of hearing on motion to extend
                                                                   dismissal deadline, court presumes evidence supported trial
Because Salais's expert reports omit at least one of the three
                                                                   court's ruling and no abuse of discretion shown).
specifically enumerated requirements of subsection (r)(6),
they cannot constitute a good faith effort to meet those
                                                                   Salais's second issue should be overruled.
requirements. I need not decide TDADS's objections to
Wohlers's report. Accordingly, because the trial court did not
abuse its discretion in granting TDADS's motion to dismiss
Salais's suit against TDADS, Salais's first issue should be                               CONCLUSION
overruled.
                                                                   Having overruled each issue, I would affirm the interlocutory
                                                                   order of dismissal of the trial court. Because the Court does
                                                                   not, I respectfully dissent.
                      CONTINUANCE

Salais further argues that should we determine the reports
                                                                   All Citations
were deficient, we should remand the matter back to the
trial court for a 30–day extension. See TEX. CIV. PRAC. &          323 S.W.3d 527
REM.CODE ANN. § 74.351(c) (Vernon Supp. 2009). The




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Salais v. Texas Dept. of Aging & Disability Services, 323 S.W.3d 527 (2010)




End of Document                                          © 2015 Thomson Reuters. No claim to original U.S. Government Works.




              © 2015 Thomson Reuters. No claim to original U.S. Government Works.                                       12
Scoresby v. Santillan, 346 S.W.3d 546 (2011)
54 Tex. Sup. Ct. J. 1413

                                                                      Affirmed.
                      346 S.W.3d 546
                                                                      Willett, J., filed concurring opinion.
                  Supreme Court of Texas.

          Tyler SCORESBY, M.D., Petitioner,                           Johnson, J., dissented and filed opinion in which Wainwright,
                           v.                                         J., joined.
    Catarino SANTILLAN, Individually and As Next
   Friend of Samuel Santillan, A Minor, Respondent.
                                                                       West Headnotes (20)
            No. 09–0497. | Argued Nov. 9,
           2010. | Decided July 1, 2011. |
             Rehearing Denied Sept. 30, 2011.                          [1]     Health
                                                                                   Affidavits of merit or meritorious defense;
Synopsis                                                                       expert affidavits
Background: Patient brought action against physicians under                    Medical Liability Act entitles a defendant to
Medical Liability Act. The 96th District Court, Tarrant                        dismissal of a health care liability claim if, within
County, Jeff Walker, J., denied physicians' motions to dismiss                 120 days of the date suit was filed, he is not
for failure to file compliant health care expert report, and                   served with an expert report showing that the
granted patient 30-day extension to cure deficiencies in                       claim against him has merit. V.T.C.A., Civil
report. Both physicians appealed. On consolidated appeal, the                  Practice & Remedies Code §§ 74.001–74.507.
Fort Worth Court of Appeals, Bill Meier, J., 287 S.W.3d 319,
dismissed the appeals. Physicians appealed.                                    9 Cases that cite this headnote


                                                                       [2]     Appeal and Error
Holdings: The Supreme Court, Hecht, J., held that:                                On motions relating to pleadings
                                                                               Trial court's refusal to dismiss health care
[1] trial court should err on side of granting plaintiff additional            liability claim when defendant is not served
30 days in which to cure deficiency in expert report, and                      with an expert report within 120 days of the
defendant cannot seek review of this ruling or appeal court's                  date suit was filed is immediately appealable.
concomitant refusal to dismiss claim before 30 day period has                  V.T.C.A., Civil Practice & Remedies Code §§
expired;                                                                       74.001–74.507.

[2] document qualifies as “expert report” under Medical                        5 Cases that cite this headnote
Liability Act if it contains statement of opinion by individual
with expertise indicating that claim asserted by plaintiff has
                                                                       [3]     Appeal and Error
merit;
                                                                                  On motions relating to pleadings

[3] 30 day extension to cure deficiencies in expert report                     Health
may be granted if report is served by statutory deadline and                       Affidavits of merit or meritorious defense;
contains opinion of individual with expertise that claim has                   expert affidavits
merit;                                                                         Medical Liability Act sets specific requirements
                                                                               for an adequate expert report and mandates that
[4] doctor's expert report was deficient because it did not state              objective good faith effort be made to comply
standard of care; and                                                          with them, but it also authorizes the trial court to
                                                                               give a plaintiff who meets the 120–day deadline
[5] doctor's expert report, although deficient, was not the legal              for serving expert report an additional thirty days
equivalent of “no report” at all under Act.                                    in which to cure a “deficiency” in the elements of
                                                                               the report, and trial court should err on the side
                                                                               of granting the additional time and must grant


                © 2015 Thomson Reuters. No claim to original U.S. Government Works.                                                    1
Scoresby v. Santillan, 346 S.W.3d 546 (2011)
54 Tex. Sup. Ct. J. 1413

        it if the deficiencies are curable, and defendant
        cannot seek review of this ruling or appeal                  3 Cases that cite this headnote
        the court's concomitant refusal to dismiss the
        claim before the thirty-day period has expired.       [7]    Health
        V.T.C.A., Civil Practice & Remedies Code §§                      Purpose
        51.014(a)(9), 74.351(a–c, l), (r)(6).
                                                                     Goal of the Medical Liability and Insurance
        18 Cases that cite this headnote                             Improvement Act (MLIIA) and the Medical
                                                                     Liability Act is to make health care more
                                                                     available and less expensive by reducing the
 [4]    Health                                                       cost of health care liability claims, and eliciting
            Affidavits of merit or meritorious defense;              an expert's opinions early in the litigation is an
        expert affidavits                                            obvious place to start in attempting to reduce
        While Medical Liability Act contemplates that                frivolous lawsuits and thereby reduce the costs
        a document can be considered an expert                       of claims. V.T.C.A., Civil Practice & Remedies
        report despite its deficiencies, the Act does                Code §§ 74.001–74.507; Vernon's Ann.Texas
        not suggest that a document utterly devoid of                Civ.St. art. 4590i (Repealed).
        substantive content will qualify as an expert
        report. V.T.C.A., Civil Practice & Remedies                  5 Cases that cite this headnote
        Code § 74.351(r)(6).
                                                              [8]    Health
        4 Cases that cite this headnote
                                                                         Affidavits of merit or meritorious defense;
                                                                     expert affidavits
 [5]    Health                                                       Purpose of Medical Liability Act's expert report
            Affidavits of merit or meritorious defense;              requirement is to deter frivolous claims, not
        expert affidavits                                            to dispose of claims regardless of their merits.
        Document qualifies as an “expert report” under               V.T.C.A., Civil Practice & Remedies Code §
        Medical Liability Act if it contains a statement             74.351(r)(6).
        of opinion by an individual with expertise
        indicating that the claim asserted by the plaintiff          16 Cases that cite this headnote
        against the defendant has merit. V.T.C.A., Civil
        Practice & Remedies Code § 74.351(r)(6).              [9]    Health
                                                                         Affidavits of merit or meritorious defense;
        15 Cases that cite this headnote
                                                                     expert affidavits
                                                                     Failing to timely file an expert report, or filing
 [6]    Health                                                       a report that does not evidence a good-faith
            Affidavits of merit or meritorious defense;              effort to comply with the definition of an expert
        expert affidavits                                            report under Medical Liability Act, means that
        Under Medical Liability Act, expert's lack                   the claim is either frivolous, or at best has been
        of relevant qualifications and his opinion's                 brought prematurely. V.T.C.A., Civil Practice &
        inadequacies are deficiencies the plaintiff should           Remedies Code § 74.351(c), (r)(6).
        be given an opportunity to cure if it is possible
        to do so, and this lenient standard avoids the               24 Cases that cite this headnote
        expense and delay of multiple interlocutory
        appeals and assures plaintiff a fair opportunity      [10]   Pretrial Procedure
        to demonstrate that his claim is not frivolous.                  Dismissal or default judgment
        V.T.C.A., Civil Practice & Remedies Code §
                                                                     There are constitutional limitations upon the
        74.351(r)(6).
                                                                     power of courts to dismiss an action for
                                                                     discovery violations without affording a party


               © 2015 Thomson Reuters. No claim to original U.S. Government Works.                                         2
Scoresby v. Santillan, 346 S.W.3d 546 (2011)
54 Tex. Sup. Ct. J. 1413

        the opportunity for a hearing on the merits of               readily curable. V.T.C.A., Civil Practice &
        his cause, and those limitations constrain the               Remedies Code § 74.351(c), (r)(6).
        legislature no less in requiring dismissal.
                                                                     18 Cases that cite this headnote
        1 Cases that cite this headnote
                                                              [15]   Health
 [11]   Health                                                           Affidavits of merit or meritorious defense;
            Affidavits of merit or meritorious defense;              expert affidavits
        expert affidavits                                            Medical Liability Act's thirty-day extension to
        No particular words or formality are required in             cure deficiencies in an expert report may be
        expert report under Medical Liability Act, but               granted if the report is served by the statutory
        bare conclusions will not suffice, and the report            deadline, if it contains the opinion of an
        must address all the elements set forth in Act,              individual with expertise that the claim has merit,
        and omissions may not be supplied by inference.              and if the defendant's conduct is implicated.
        V.T.C.A., Civil Practice & Remedies Code §                   V.T.C.A., Civil Practice & Remedies Code §
        74.351(r)(6).                                                74.351(c), (r)(6).

        8 Cases that cite this headnote                              45 Cases that cite this headnote


 [12]   Health                                                [16]   Appeal and Error
            Affidavits of merit or meritorious defense;                 On motions relating to pleadings
        expert affidavits                                            Under Medical Liability Act, all deficiencies in
        Medical Liability Act allows a claimant a                    expert report, whether in the expert's opinions
        thirty-day period to cure deficiencies before the            or qualifications, are subject to being cured
        trial court finally determines that the report is            before an appeal may be taken from the trial
        inadequate and the claim must be dismissed.                  court's refusal to dismiss the case. V.T.C.A.,
        V.T.C.A., Civil Practice & Remedies Code §                   Civil Practice & Remedies Code § 74.351(c), (r)
        74.351(c), (r)(6).                                           (6).

        Cases that cite this headnote                                4 Cases that cite this headnote


 [13]   Health                                                [17]   Health
            Purpose                                                      Affidavits of merit or meritorious defense;
        Medical Liability Act's principal purpose is to              expert affidavits
        reduce the expense of health care liability claims.          Doctor's expert report was deficient, and thus
        V.T.C.A., Civil Practice & Remedies Code §§                  did not satisfy standards for expert report under
        74.001–74.507.                                               Medical Liability Act, because it did not state the
                                                                     standard of care, but, rather, only implied that it
        2 Cases that cite this headnote                              was inconsistent with the defendant physicians'
                                                                     conduct. V.T.C.A., Civil Practice & Remedies
 [14]   Health                                                       Code § 74.351(r)(6).
            Affidavits of merit or meritorious defense;
                                                                     9 Cases that cite this headnote
        expert affidavits
        Goal of the Medical Liability Act's expert report
        requirement is to deter frivolous claims, and         [18]   Health
        inadequate expert report does not indicate a                     Affidavits of merit or meritorious defense;
        frivolous claim if the report's deficiencies are             expert affidavits




               © 2015 Thomson Reuters. No claim to original U.S. Government Works.                                         3
Scoresby v. Santillan, 346 S.W.3d 546 (2011)
54 Tex. Sup. Ct. J. 1413

        Doctor's expert report, although deficient
        because it did not state the standard of care, was     Attorneys and Law Firms
        not the legal equivalent of “no report” at all under
                                                               *548 Eric Rene Reyes, Jason C.N. Smith, Art Brender, Fort
        Medical Liability Act, given that there was no
                                                               Worth, for Catarino Santillan.
        question that, in doctor's expert opinion, patient's
        health care liability claim against defendant          *549 Michael Alan Yanof, Philipa Remington, Dallas, for
        physicians had merit, and since the report was         Tyler Scoresby, M.D.
        served within the statutory 120 day deadline, trial
        court had authority under Act to grant patient         Randy J. Hall, David Leon Pratt II, Fort Worth, for Yadranko
        an additional 30 days to cure deficiencies in          Ducic, M.D.
        the expert report. V.T.C.A., Civil Practice &
        Remedies Code § 74.351(a–c).                           Opinion

                                                               Justice HECHT delivered the opinion of the Court, in
        29 Cases that cite this headnote
                                                               which Chief Justice JEFFERSON, Justice MEDINA, Justice
                                                               GREEN, Justice WILLETT, Justice GUZMAN, and Justice
 [19]   Appeal and Error                                       LEHRMANN joined.
           On motions relating to pleadings
        Health                                                  [1]    [2]    [3] The Medical Liability Act 1 entitles a
            Affidavits of merit or meritorious defense;        defendant to dismissal of a health care liability claim if,
        expert affidavits                                      within 120 days of the date suit was filed, he is not served
        Although doctor's expert report was deficient,         with an expert report showing that the claim against him has
        because it did not state the standard of care, it      merit. 2 The trial court's refusal to dismiss is immediately
        was possible to cure deficiencies in the expert        appealable. 3 The Act sets specific requirements for an
        report, and thus, trial court granted patient an
                                                               adequate report 4 and mandates that “an objective good
        additional 30 days to cure deficiencies in the
        expert report, and trial court's decision granting     faith effort [be made] to comply” with them, 5 but it also
        patient an additional 30 days to cure deficiencies,    authorizes the trial court to give a plaintiff who meets the
        and denying the defendant physicians' motions          120–day deadline an additional thirty days in which to cure
        to dismiss patient's health care liability claim,      a “deficiency” in the elements of the report. 6 The trial court
        were not appealable before the 30 day period had       should err on the side of granting the additional time 7 and
        expired. V.T.C.A., Civil Practice & Remedies
                                                               must grant it if the deficiencies are curable. 8 The defendant
        Code § 74.351(a–c), (r)(6).
                                                               cannot seek review of this ruling 9 or appeal the court's
        14 Cases that cite this headnote                       concomitant refusal to dismiss the claim before the thirty-day
                                                               period has expired. 10
 [20]   Health
            Affidavits of merit or meritorious defense;        1      TEX. CIV. PRAC. & REM.CODE §§ 74.001–.507. All
        expert affidavits                                             references to the Act are to these provisions.
        Medical Liability Act requires that expert's           2      Id. § 74.351(b).
        knowledge, training or experience, and practice
                                                               3      Id. § 51.014(a)(9); Badiga v. Lopez, 274 S.W.3d 681, 685
        be relevant to patient's claim. V.T.C.A., Civil
        Practice & Remedies Code § 74.351(r)(6).                      (Tex.2009).
                                                               4      TEX. CIV. PRAC. & REM.CODE § 74.351(r)(6).
        Cases that cite this headnote
                                                               5      Id. § 74.351(l ).
                                                               6      Id. § 74.351(c).




               © 2015 Thomson Reuters. No claim to original U.S. Government Works.                                               4
Scoresby v. Santillan, 346 S.W.3d 546 (2011)
54 Tex. Sup. Ct. J. 1413

7       Samlowski v. Wooten, 332 S.W.3d 404, 411 (Tex.2011)             to stop the bleeding, resulting in brain damage and partial
        (plurality op. of Medina, J., joined by Jefferson, C.J.,        paralysis.
        and Hecht, J.) (“ ‘[T]rial courts should err on the side
        of granting claimants' extensions to show the merits of         To satisfy the Act's expert report requirement, Santillan
        their claims.’ ” (quoting id. at 416 (Guzman, J., joined by     timely served the Physicians with a letter from Dr. Charles
        Lehrmann, J., concurring in the judgment))).                    D. Marable to Santillan's attorney. The letter did not attach
8                                                                       Marable's curriculum vitae or describe his credentials or
        Id. at 411 (plurality op. of Medina, J., joined by Jefferson,
                                                                        experience other than to state that he is “a Board–Certified
        C.J., and Hecht, J.); id. at 416 (Guzman, J., joined by
        Lehrmann, J., concurring in the judgment).
                                                                        neurologist”. From having examined Samuel and reviewed
                                                                        his medical records, Marable explained his condition as
9       TEX. CIV. PRAC. & REM.CODE § 51.014(a)(9)                       follows:
        (no interlocutory appeal); In re Watkins, 279 S.W.3d
        633, 634 (Tex.2009) (orig.proceeding) (no review by               The patient was initially seen on 8/3/07. He is now
        mandamus).                                                        a 17–year–old Latin–American male who was taken to
10                                                                        John Peter Smith on 1/17/06 for a preoperative diagnosis
        Ogletree v. Matthews, 262 S.W.3d 316, 321 (Tex.2007).
                                                                          of maxillary sinus neoplasm under the care of Dr.
 [4]     [5]    [6] While the Act thus contemplates that a                Yadro Ducic, M.D., an ENT physician, and another
document can be considered an expert report despite its                   surgeon, Dr. Tyler Scorsby [sic], with procedures of
deficiencies, the Act does not suggest that a document                    left mediomaxillectomy [sic], excision of neoplasm of
utterly devoid of substantive content will qualify as an expert           the maxilla, calvarial bone growth and reconstruction of
report. Based on the Act's text and stated purposes, we hold              maxilla and excision of tumor of pterygopalatin [sic]
that a document qualifies as an expert report if it contains              structures. During the procedure, an incision was made in
a statement of opinion by an individual with expertise                    the right parietal region in a coronal fashion and carried
indicating that the claim asserted by the plaintiff against               down the pericranium. As a result of this, there was cortical
the defendant has merit. An individual's lack of relevant                 laceration with active bleeding from several medium size
qualifications and an opinion's inadequacies are deficiencies             vessels in the area.
the plaintiff should be given an opportunity to cure if it is
possible to do so. This lenient standard avoids the expense               According to Dr. Scorsby's [sic] note, the patient awoke in
and delay of multiple interlocutory appeals and assures a                 the operating room without complications and was taken
claimant a fair opportunity to demonstrate that his claim is              to the post anesthesia care unit. However, on awakening
not frivolous. The expert report before us meets this test,               he did not have a normal neurologic exam, in fact, had a
and therefore the trial court's order allowing thirty days to             right-sided hemiparesis, and due to the progression of his
cure deficiencies and denying the defendants' motions to                  neurological deficit, increasing intercerebral hemorrhage
dismiss were not appealable. Accordingly, we affirm the                   was noted by CT scanning.
court of appeals' judgment dismissing the appeal for want of
                                                                          He was taken back to the operating suite on 1/18/06 by
jurisdiction. 11                                                          Dr. Gregory Smith, D.O., a neurosurgeon. Dr. Smith's
                                                                          preoperative diagnosis was that of expanding inter-cerebral
11      287 S.W.3d 319 (Tex.App.-Fort Worth 2009).                        hematoma, status post split thickness skull harvesting,
                                                                          with postoperative diagnosis of expanding intercerebral
                                                                          hematoma and intercerebral hematoma skull perforation.
                               *550 I                                     Procedure performed was that of a left parietal craniotomy
                                                                          with evacuation of intercerebral hematoma, repair and
On behalf of Samuel Santillan, a minor, Catarino Santillan
                                                                          hemostasis. Dr. Smith's operative report states there was
sued Dr. Tyler Scoresby and Dr. Yadranko Ducic,
                                                                          cortical laceration with active bleeding from several
two otolaryngology (ENT) surgeons (collectively, “the
                                                                          medium-sized vessels in the left parietal area, which
Physicians”), alleging that they negligently performed a
                                                                          were then cauterized with bipolar cautery for hemostatis.
medial maxillectomy to remove growths from Samuel's sinus
                                                                          An underlying intercerebral hematoma was entered and
cavity. Santillan asserts that an incision made too far into
                                                                          eventually evacuated successfully with suction.
Samuel's brain lacerated a blood vessel and required surgery




                   © 2015 Thomson Reuters. No claim to original U.S. Government Works.                                              5
Scoresby v. Santillan, 346 S.W.3d 546 (2011)
54 Tex. Sup. Ct. J. 1413

***                                                                 Marable's curriculum vitae was not included, as the Act
                                                                    requires. 12 The Physicians argued Marable's letter was so
  It appears he was in the hospital until 2/11/06, and at
                                                                    woefully deficient, it did not even qualify as an expert report
  that time was transferred to HealthSouth Rehabilitation
                                                                    under the Act to meet the 120–day deadline. They moved the
  Hospital, Cityview, admitted on 2/11/06, date of discharge
                                                                    court to dismiss the case with prejudice and award them their
  2/21/06. He was discharged with the diagnosis of left
                                                                    reasonable attorney fees and costs.
  parietal hemorrhage, maxillary sinus tumor resection, right
  hemiparesis, persistent pain, apraxia, seizure prophylaxis,
                                                                    12     TEX. CIV. PRAC. & REM.CODE § 74.351(a).
  peptic ulcer prophylaxis and right hemisensory deficit.
  During his stay at HealthSouth Hospital he progressed in          After the 120–day deadline, Santillan served the Physicians
  all areas of mobilization and self-care. He was ambulating        with Marable's curriculum vitae and his amended report,
  greater than 400′, but still had significant right upper          in which he added that “the applicable standard of care
  extremity weakness and spasticity. It was then deemed             would have been to perform the procedure of a calvaria bone
  necessary to transfer him to an outpatient brain injury           transplant without nicking or lacerating the parietal cortex
  program and work on his strength, cognition and overall           [and] to get the appropriate surgeon, such as a neurosurgeon,
  mobilization....                                                  instead of an ENT physician to do a calvaria bone grafting
                                                                    procedure”, and that “Dr. Ducic and Dr. Scorsby [sic] ...
   *551 He was seen on 8/3/07. He still has weakness of his
                                                                    failed to perform a careful and well-planned surgery, causing
  right arm and leg. Walking seems to still be a problem....
                                                                    a laceration of the cortical hemisphere, causing substantial
  He is still having headaches in the occipital region.
                                                                    bleeding”. At the hearing on the Physicians' objections and
Marable's letter concluded:                                         motions, the trial court refused to consider Marable's post-
                                                                    deadline amended report. The Physicians complained that
             As a Board–Certified neurologist, my                   Marable's original letter did not show that he had sufficient
             opinion is that Dr. Ducic violated                     qualifications and experience to render an opinion regarding
             the standards of care, as well as                      the surgery, and did not define the standard of care, state how
             Dr. Scorsby [sic], and as a result                     it was breached, or explain how a breach resulted in Samuel's
             his damages are that of a right-sided                  injuries. The Physicians acknowledged that Samuel suffered
             hemiparesis with possibility of seizure                a lacerated artery but argued that such things are inevitable in
             foci in the future. Although he has                    surgery, no matter how carefully it is performed, and do not
             not had any seizures, he certainly does                necessarily indicate a breach of the standard of care. The trial
             meet the criteria for a seizure disorder.              court denied the motions to dismiss and granted Santillan a
             Had it not been for Dr. Ducic and                      thirty-day extension to cure deficiencies in the report.
             Dr. Scorsby's [sic] negligent activity
             in causing cortical laceration of this                 The Physicians appealed, persisting in their contention that
             patient's left parietal lobe, he would                 Marable's letter was too inadequate to qualify as an expert
             not have needed further hospitalization                report; therefore, Santillan had not met the 120–day deadline;
             at John Peter Smith or the ICU therapy,                and consequently, the Act did not permit an additional thirty
             or going to HealthSouth Rehab, and is                  days to cure the deficiencies but instead required that the
             now left with a right hemiparesis at a                 case be dismissed. 13 The court of appeals construed our
             young age.
                                                                    analysis in Ogletree v. Matthews 14 to mean that deficiencies
                                                                     *552 in a document tendered as an expert report will not
The Physicians each timely objected that the letter was
                                                                    preclude it from qualifying as such. 15 The court concluded
inadequate as an expert report, asserting that: (i) a neurologist
                                                                    that an interlocutory appeal in these circumstances was not
is not qualified to testify regarding the standard of care for
an ENT surgeon in performing the procedures the Physicians          permitted. 16
performed on Samuel; (ii) Marable's opinions regarding the
Physicians' standard of care, breach, and causal relationship       13     287 S.W.3d at 320.
to Samuel's injuries were conclusory and directed to Scoresby       14     262 S.W.3d 316.
and Ducic collectively rather than individually; and (iii)



                © 2015 Thomson Reuters. No claim to original U.S. Government Works.                                              6
Scoresby v. Santillan, 346 S.W.3d 546 (2011)
54 Tex. Sup. Ct. J. 1413

15     287 S.W.3d at 324.                                             22     1977 Act, § 1.02(b)(1)–(3), (5).
16     Id. at 325.                                                    In 2003, the Legislature replaced the MLIIA with the Medical
                                                                      Liability Act, repeating its 1977 findings and statements of
We granted the Physicians' petitions for review. 17
                                                                      purpose. 23

17     53 Tex.Sup.Ct.J. 1061 (Aug. 27, 2010). We have                 23     Act of June 2, 2003, 78th Leg., R.S., ch. 204, §§ 10.01,
       jurisdiction to determine whether the court of appeals
                                                                             10.09, 10.11, 2003 Tex. Gen. Laws 847, 864–882, 884–
       had jurisdiction. Tex. Dep't of Criminal Justice v. Simons,
                                                                             885.
       140 S.W.3d 338, 343 (Tex.2004).
                                                                       [7] Fundamentally, the goal of the MLIIA and the Medical
While this appeal has been pending, the Physicians have
                                                                      Liability Act has been to make health care in Texas more
lodged essentially the same objections to Santillan's amended
                                                                      available and less expensive by reducing the cost of health
report as they made to the original report. They have also
                                                                      care liability claims. To that end, both statutes have sought
moved again for dismissal, attorney fees, and costs. The trial
                                                                      to deter frivolous lawsuits by requiring a claimant early in
court has not ruled on those objections and motions.
                                                                      litigation to produce the opinion of a suitable expert that his
                                                                      claim has merit. “[E]liciting an expert's opinions early in the
                                                                      litigation [is] an obvious place to start in attempting to reduce
                                 II                                   frivolous lawsuits” 24 and thereby reduce the costs of claims.
The Legislature enacted the Medical Liability and Insurance
                                                                      24     Am. Transitional Care Ctrs. of Tex., Inc. v. Palacios, 46
Improvement Act (“MLIIA”) in 1977 18 in response to “a
                                                                             S.W.3d 873, 877 (Tex.2001).
medical malpractice insurance crisis in the State of Texas”
that was having “a material adverse effect on the delivery            The Legislature first added an expert report requirement
of medical and health care in Texas, including significant            to the MLIIA in 1993, then strengthened it over the next
reductions of availability of medical and health care services        ten years, finally allowing interlocutory appeals to ensure
to the people of Texas and a likelihood of further reductions         uniform enforcement. We *553 look first at the requirement,
                                                                      then the appeal, and finally at their proper operation together.
in the future”. 19 The Legislature found that the crisis had
been created by an “inordinate[ ]” increase in the volume and
expense of health care liability claims. 20 Concerned that “the
direct cost of medical care to the patient and public of Texas                                       A

ha[d] materially increased”, 21 the Legislature's purpose in          The 1993 amendment to the MLIIA required a plaintiff,
the MLIIA, expressly stated, was to                                   within ninety days of filing suit, either to file an affidavit
                                                                      that he had obtained a suitable expert's opinion that his claim
18     Act of May 30, 1977, 65th Leg., R.S., ch. 817, 1977            had merit or to post a $2,000 bond or cash deposit. 25 The
       Tex. Gen. Laws 2039, formerly TEX.REV.CIV. STAT.               trial court could extend the deadline for up to ninety days
       ANN.. art. 4590i [hereinafter 1977 Act].
                                                                      “for good cause shown”. 26 A plaintiff who failed to comply
19     1977 Act, § 1.02(a)(5)–(6).                                    risked dismissal without prejudice and liability for costs,
20     1977 Act, § 1.02(a)(1)–(5).                                    again, except for “good cause ... shown”. 27

21     1977 Act, § 1.02(a)(8).                                        25     Act of May 25, 1993, 73rd Leg., R.S., ch. 625, § 3, 1993
                                                                             Tex. Gen. Laws 2347, 2347, formerly TEX.REV.CIV.
  reduce excessive frequency and severity of health care                     STAT. ANN.. art. 4590i, § 13.01(a)–(b) [hereinafter
  liability claims [,] ... decrease the cost of those claims[,] ...          1993 Act].
  do so in a manner that will not unduly restrict a claimant's
                                                                      26     1993 Act, former art. 4590i, § 13.01(d).
  rights any more than necessary to deal with the crisis[, and
  thereby] ... make affordable medical and health care more           27     1993 Act, former art. 4590i, § 13.01(c).
                                                            22
  accessible and available to the citizens of Texas....



                © 2015 Thomson Reuters. No claim to original U.S. Government Works.                                                      7
Scoresby v. Santillan, 346 S.W.3d 546 (2011)
54 Tex. Sup. Ct. J. 1413

In 1995, the Legislature required that the expert report itself    36     TEX. CIV. PRAC. & REM.CODE § 74.351(a).
be filed and raised the amount of the bond or deposit posted
                                                                   37     Id. § 74.351(r)(6).
in lieu of a report to $5,000. 28 The amendment retained
the ninety-day initial deadline but added that even if a bond      38     Id. §§ 74.351(r)(5), 74.401–.403.
or deposit were posted, an expert report and curriculum
                                                                   The Act now distinguishes between missing a deadline
vitae must be filed within 180 days of initiating suit. 29         altogether and serving an inadequate report. Section
The amendment specified the qualifications the expert was          74.351(b) provides that
required to have 30 and defined the report as one “provid[ing]
a fair summary of the expert's opinions ... regarding                [i]f, as to a defendant ..., an expert report has not been
applicable standards of care, the manner in which the care           served [by the deadline], the court, on the motion of the
rendered by the physician or health care provider failed to           *554 [defendant], shall, subject to Subsection (c), enter
meet the standards, and the causal relationship between that         an order that:

failure and the injury, harm, or damages claimed.” 31 The            (1) awards [the defendant] reasonable attorney's fees and
failure to make “a good faith effort” to comply 32 could             costs of court ...; and
result in dismissal with prejudice and liability for attorney
                                                                     (2) dismisses the claim with respect to the [defendant] with
fees as well as costs. 33 But if the failure—even missing the
                                                                     prejudice to the refiling of the claim. 39
deadline completely 34 —was “not intentional or the result of
conscious indifference but was the result of an accident or
                                                                   39     Id. § 74.351(b).
mistake,” the trial court was required to grant “a grace period
of 30 days to permit the claimant to comply”. 35                   Under section 74.351(l ), the same consequences attend
                                                                   serving an inadequate report that “does not represent an
28                                                                 objective good faith effort” to comply with the Act's
       Act of May 5, 1995, 74th Leg., R.S., ch. 140, § 1, 1995
       Tex. Gen. Laws 985, 986, formerly TEX.REV.CIV.              requirements. 40 But before those consequences are imposed,
       STAT. ANN.. art. 4590i, § 13.01(a) [hereinafter 1995        the Act provides an opportunity for deficiencies to be
       Act].                                                       cured. Section 74.351(a) requires that any objection to the
29                                                                 sufficiency of a report be lodged within twenty-one days of
       1995 Act, former art. 4590i, § 13.01(d).
                                                                   service, 41 and section 74.351(c) provides:
30     1995 Act, former art. 4590i, §§ 13.01(r)(5) & 14.01.
31                                                                 40     Id. § 74.351(l ).
       1995 Act, former art. 4590i, § 13.01(r)(6).
32                                                                 41     Id. § 74.351(a).
       1995 Act, former art. 4590i, § 13.01(l ).
33     1995 Act, former art. 4590i, § 13.01(e).                      If an expert report has not been served [by the deadline]
34                                                                   because elements of the report are found deficient, the court
       Stockton v. Offenbach, 336 S.W.3d 610, 616 (Tex.2011)
       ( “Under article 4590i, a plaintiff could obtain an           may grant one 30–day extension to the claimant in order to
       extension, even when no report was provided by the            cure the deficiency.” 42
       deadline, if the plaintiff could show an ‘accident or       42     TEX. CIV. PRAC. & REM.CODE § 74.351(c).
       mistake’ in failing to furnish a timely report.”).
                                                                    [8]    [9]    [10] The Act's thirty-day extension to cure
35     1995 Act, former art. 4590i, § 13.01(g).                    deficiencies replaces the 1995 law's thirty-day “grace period”
The Medical Liability Act, adopted in 2003 and now in effect,      for “accident or mistake”, shifting the focus from the
eliminates the bond/deposit alternative, shortens the deadline     claimant's conduct to the report's contents. But the importance
for the expert report and curriculum vitae to 120 days (unless     of an appropriate delay in finally dismissing a claim for
extended by agreement), and requires service rather than           want of an adequate report is undiminished. The purpose of
filing. 36 The Act retains the definition of an expert report 37   the expert report requirement is to deter frivolous claims, 43
                                                                   not to dispose of claims regardless of their merits. “The
but is more specific about an expert's qualifications. 38
                                                                   Legislature has determined that failing to timely file an expert



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Scoresby v. Santillan, 346 S.W.3d 546 (2011)
54 Tex. Sup. Ct. J. 1413

report, or filing a report that does not evidence a good-faith       extension under Section 74.351”. 48 In a series of cases, we
effort to comply with the definition of an expert report, means      have explained the limits of this review mechanism.
that the claim is either frivolous, or at best has been brought
prematurely.” 44 But the Legislature has likewise recognized         47     In re McAllen Med. Ctr., Inc., 275 S.W.3d 458, 461–462
that when an expert report can be cured in thirty days, the                 (Tex.2008).
claim is not frivolous. It must be remembered that “ ‘[t]here
                                                                     48     TEX. CIV. PRAC. & REM.CODE § 51.014(a)(9); Act
are constitutional limitations upon the power of courts ... to
dismiss an action without affording a party the opportunity for             of June 2, 2003, 78th Leg., R.S., ch. 204, § 1.03, 2003
                                                                            Tex. Gen. Laws 847, 849.
a hearing on the merits of his cause’ ”, 45 and those limitations
constrain the Legislature no less in requiring dismissal.            If an expert report is timely served, even without a
                                                                     curriculum vitae, we held in Ogletree v. Matthews that the
43                                                                   trial court's denial of a motion to dismiss, asserting the
        Am. Transitional Care Ctrs. of Tex., Inc. v. Palacios, 46
                                                                     report's inadequacy, cannot be appealed if the court also
        S.W.3d 873, 878 (Tex.2001) (“And one purpose of the
        expert-report requirement is to deter frivolous claims.”).   grants a thirty-day extension to cure deficiencies. 49 “This

44                                                                   prohibition,” we said, “is both logical and practical.” 50
        Id.
                                                                     Otherwise,
45      TransAmerican Natural Gas Corp. v. Powell, 811
        S.W.2d 913, 918 (Tex.1991) (quoting Societe                  49     262 S.W.3d at 321.
        Internationale v. Rogers, 357 U.S. 197, 209–210, 78
        S.Ct. 1087, 2 L.Ed.2d 1255 (1958), citing Hammond            50     Id.
        Packing Co. v. Arkansas, 212 U.S. 322, 350–351, 29
        S.Ct. 370, 53 L.Ed. 530 (1909), and Hovey v. Elliott, 167      the court of appeals would address the report's sufficiency
        U.S. 409, 17 S.Ct. 841, 42 L.Ed. 215 (1897); accord Ins.       while its deficiencies were presumably being cured at the
        Corp. of Ir., Ltd. v. Compagnie des Bauxites de Guinee,        trial court level, an illogical and wasteful result. Moreover,
        456 U.S. 694, 705–706, 102 S.Ct. 2099, 72 L.Ed.2d 492
                                                                       because the Legislature authorized a single, thirty day
        (1982)); see also Walker v. Gutierrez, 111 S.W.3d 56, 66
                                                                       extension for deficient reports, health care providers
        (Tex.2003).
                                                                       face only a minimal delay before a report's sufficiency
For these reasons, we have held that trial courts should               may again be challenged and the case dismissed, if
be lenient in granting thirty-day extensions and must do
                                                                       warranted. 51
so if deficiencies in an expert report can be cured within
                                                                     51     Id.
the thirty-day period. This “minimal delay before a report's
sufficiency may again be challenged and the case dismissed,          If after an extension has been granted, the defendant again
                46                                                   moves to dismiss, we held in Lewis v. Funderburk that a
if warranted”        does not impair the purpose of the Act.
                                                                     denial of the motion is appealable. 52
46      Ogletree v. Matthews, 262 S.W.3d 316, 321 (Tex.2007).
                                                                     52     253 S.W.3d 204, 207–208 (Tex.2008).
                                                                     If no expert report is timely served, we held in Badiga v.
                                 B
                                                                     Lopez that the denial of a motion to dismiss is appealable,
Under the MLIIA, there was no interlocutory appeal from              even if the court grants an extension. 53 The Medical Liability
the denial of a motion *555 to dismiss a health care                 Act, unlike the MLIIA, does not authorize an extension if no
liability claim for failure to comply with the expert report         report is timely served. Granting an extension not authorized
requirement, and we did not make clear until 2008 that               by section 74.351 does not preclude appeal. But because an
review by mandamus was available. 47 In adopting the                 appeal is available, we held in In re Watkins that review by
Medical Liability Act in 2003, the Legislature permitted an          mandamus is not available. 54
interlocutory appeal from an order denying “all or part of the
relief sought by a motion under Section 74.351(b), except            53     274 S.W.3d 681, 685 (Tex.2009).
that an appeal may not be taken from an order granting an




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Scoresby v. Santillan, 346 S.W.3d 546 (2011)
54 Tex. Sup. Ct. J. 1413

54     279 S.W.3d 633, 634 (Tex.2009).                               all the elements, 62 and omissions may not be supplied by
The present case requires us to determine whether a document         inference. 63
served on a defendant can be so lacking in substance that
it does not qualify as an expert report, and therefore an            59     Bowie Mem'l Hosp. v. Wright, 79 S.W.3d 48, 53
immediate appeal from the denial of a motion to dismiss is                  (Tex.2002) (per curiam) (“[A] report's adequacy does
available under Badiga.                                                     not depend on whether the expert uses any particular
                                                                            ‘magical words.’ ”).
                                                                     60     Palacios, 46 S.W.3d at 879 (“The report can be informal
                               C                                            in that the information in the report does not have to
                                                                            meet the same requirements as the evidence offered in a
[11]   The Act defines an expert report to be                               summary-judgment proceeding or at trial.”).

             a written report by an expert that                      61     Id. (“A report that merely states the expert's conclusions
             provides a fair summary of the expert's                        about the standard of care, breach, and causation does not
             opinions as of the date of the report                          fulfill these two purposes.”).
             regarding applicable standards of care,                 62     Id. (“Nor can a report meet these purposes and thus
             the manner in which the care rendered                          constitute a good-faith effort if it omits any of the
             by the physician or health care                                statutory requirements.”).
             provider failed to meet the standards,
                                                                     63     See Bowie Mem'l Hosp., 79 S.W.3d at 53 (“[T]he report
             and the causal relationship between
             that failure and the injury, harm, or                          must include the required information within its four
                                                                            corners.”).
             damages claimed. 55
                                                                      [12] But as we have seen, the Act allows a claimant a thirty-
                                                                     day period to cure deficiencies before the trial court finally
55     TEX. CIV. PRAC. & REM.CODE § 74.351(r)(6).
                                                                     determines that the report is inadequate and the claim must
The qualifications and experience necessary for an expert            be dismissed. In Ogletree, we rejected the argument that a
are prescribed in great detail. 56 The adequacy of a report is       deficient report is no report. 64 There, the claimant provided
determined by whether it “represent[s] an objective good faith       the opinion of a radiologist, without a curriculum vitae, on a
effort to comply” with *556 the statutory definition. 57 As          urologist's standard of care. 65 Dr. Ogletree argued that the
we have explained:                                                   report was really no report at all, but we held that despite its
                                                                     shortcomings, it “implicated Dr. Ogletree's conduct”, so that
56     Id. §§ 74.351(r)(5), 74.401–.403.                             the trial court was authorized to grant a thirty-day extension,

57                                                                   and an appeal was prohibited. 66
       Id. § 74.351(l ).

                                                                     64     Ogletree v. Matthews, 262 S.W.3d 316, 320–321
  In setting out the expert's opinions on each of those
                                                                            (Tex.2007).
  elements, the report must provide enough information to
  fulfill two purposes if it is to constitute a good-faith effort.   65     Id. at 318.
  First, the report must inform the defendant of the specific
                                                                     66     Id. at 321.
  conduct the plaintiff has called into question. Second, and
  equally important, the report must provide a basis for the          [13]     [14] Ogletree's holding, though sound, can be
                                                         58          extended only so far. To stretch the meaning of deficient
  trial court to conclude that the claims have merit.
58                                                                   to include a sheet of paper with the two words, “expert
       Am. Transitional Care Ctrs. of Tex., Inc. v. Palacios, 46
                                                                     report”, written on it would mock the Act's requirements. The
       S.W.3d 873, 879 (Tex.2001).
                                                                     expert report in Lewis was substantively no more than that
No particular words 59 or formality 60 are required, but bare        —one physician's thank-you letter to another for referring
conclusions will not suffice. 61 The report must address             the patient. 67 In determining where to draw the line, we are
                                                                     guided by two considerations. One is that the Act's principal



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Scoresby v. Santillan, 346 S.W.3d 546 (2011)
54 Tex. Sup. Ct. J. 1413

purpose is to reduce the expense of health care liability           trial court did not specifically address the matter, and it is
claims. The Legislature could reasonably have determined            premature for us to consider it. But the dissent's arguments,
that that purpose is served by an interlocutory appeal from the     we believe, show the wisdom of our approach in determining
denial of a motion to dismiss for want of an adequate expert        what qualifies as an expert report.
report, but as we observed in Ogletree, permitting two such
appeals—one before the thirty-day cure period and one after         68     See TEX. CIV. PRAC. & REM.CODE § § 74.351(r)(5),
—is simply wasteful. The other consideration is the goal of                74.401(a), (c).
the Act's expert report requirement: to deter frivolous claims.
                                                                    The dissent acknowledges that, as in Ogletree, a radiologist
An inadequate expert report does not indicate a frivolous
                                                                    is qualified to opine on “whether the urologist should
claim if the report's deficiencies are readily curable.
                                                                    have involved radiology-related devices and techniques (the
                                                                    specialty in which the expert was qualified) in treating
67     Lewis v. Funderburk, 191 S.W.3d 756, 762–763                 the patient and whether the failure to do so resulted in
       (Tex.App.-Waco 2006) (Gray, C.J., dissenting), rev'd,
                                                                    injury.” 69 In that instance, the dissent contends, there is an
       253 S.W.3d 204 (Tex.2008).
                                                                    “apparent closely-related connection” between radiology and
 *557 [15] [16] We conclude that a thirty-day extension
                                                                    neurology. 70 The dissent sees no such connection between
to cure deficiencies in an expert report may be granted if
the report is served by the statutory deadline, if it contains      neurology and ENT surgery that damages the brain. 71 But
the opinion of an individual with expertise that the claim          surely a neurologist's expertise is relevant in explaining
has merit, and if the defendant's conduct is implicated. We         the connection between the Physicians' injury to blood
recognize that this is a minimal standard, but we think it is       vessels during surgery and the hemiparesis and weakness
necessary if multiple interlocutory appeals are to be avoided,      Simon suffered. What further relevance that expertise has to
and appropriate to give a claimant the opportunity provided         Santillan's claim should first be addressed by the trial court.
by the Act's thirty-day extension to show that a claim has          In no event, however, do we think a claimant's opportunity to
merit. All deficiencies, whether in the expert's opinions or        cure and a defendant's immediate right to appeal should turn
qualifications, are subject to being cured before an appeal may     on such fine distinctions, either in an expert's qualifications
be taken from the trial court's refusal to dismiss the case.        or in his opinions.

                                                                    69     Post at ––––.

                              III                                   70     Id.

 [17]     [18]    [19] Dr. Marable's letter in this case easily     71     Id.
meets this standard. Claiming expertise as a neurologist,
                                                                    This case also demonstrates the difficulty with any more
he described the injury to Samuel's brain, ascribed it to
                                                                    stringent standard. The trial court denied the Physicians'
the Physicians' breach of the standards of care, and stated
                                                                    motions to dismiss and ordered that Santillan have a thirty-
that their breach caused Samuel's partial paralysis and other
                                                                    day extension to cure deficiencies in Dr. Marable's report
lingering debilities. As an expert report, Dr. Marable's letter
                                                                    nearly three years ago. Santillan had already served an
was deficient. For example, it did not state the standard
                                                                    amended report, in response to which the Physicians had filed
of care but only implied that it was inconsistent with the
                                                                    renewed objections *558 and again moved to dismiss the
Physicians' conduct. But there is no question that in his
                                                                    case. Now that we have dismissed this appeal for want of
opinion, Santillan's claim against the Physicians has merit.
                                                                    jurisdiction, the trial court will rule on the objections to the
                                                                    amended report and the motions to dismiss. Whatever the
 [20] The dissent argues that Dr. Marable was not qualified
                                                                    ruling, another appeal will undoubtedly follow. Our holding
to give an opinion about the Physicians' conduct because he
                                                                    today will all but eliminate the first, wasteful appeal. Just as
is only a neurologist, not a surgeon, and therefore his letter is
                                                                    importantly, it will help assure that a claimant, after being
so deficient it does not qualify as an expert report. The Act
                                                                    apprised of a defendant's objections to an expert report, and
requires that Dr. Marable's knowledge, training or experience,
                                                                    having had an opportunity to discuss those objections at a
and practice be “relevant” to Santillan's claim. 68 We express      hearing before the trial court, will have a fair opportunity to
no view on the adequacy of Dr. Marable's qualifications; the



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Scoresby v. Santillan, 346 S.W.3d 546 (2011)
54 Tex. Sup. Ct. J. 1413

cure any deficiencies and demonstrate that his claim is not     4      In re Watkins, 279 S.W.3d 633, 636 (Tex.2009) (Willett,
frivolous and should be determined on the merits.                      J., concurring).
                                                                In Ogletree v. Matthews, I described what I naively hoped
***
                                                                would be “a rare bird in Texas legal practice” 5 —a plaintiff
Accordingly, the judgment of the court of appeals dismissing    passing off as a bona fide report a document so facially absurd
this appeal for want of jurisdiction is                         that, “no matter how charitably viewed, it simply cannot be
                                                                deemed an ‘expert report’ at all, even a deficient one.” 6 The
Affirmed.                                                       deficient-or-no-report issue was not present in Ogletree, but I
                                                                noticed it in another then-pending case, Lewis v. Funderburk,
                                                                filed one week before Ogletree. 7
Justice WILLETT filed a concurring opinion.
                                                                5      262 S.W.3d at 324 (Willett, J., concurring).
Justice JOHNSON filed a dissenting opinion, in which Justice
WAINWRIGHT joined.                                              6      Id. at 323.
                                                                7      Funderburk, 253 S.W.3d at 209 (Willett, J., concurring).
Justice WILLETT, concurring.                                    In Funderburk, the Court confronted “an actual sighting of
Since 2006 we have circled an issue both recurring and          this rare bird, a species that in my view merits extinction,
elusive: whether any document, even one that never accuses
                                                                not conservation.” 8 The “report” in Funderburk was a thank-
anyone of committing malpractice, suffices to warrant an
                                                                you letter from one *559 doctor to another—a letter that
unreviewable thirty-day extension under Section 74.351(c). 1    never once in any manner, way, shape, or form accused
Until today, the issue was procedurally (and frustratingly)
                                                                anyone of malpractice. 9 This thanks-for-your-referral letter
unreachable and thus unresolvable. Finally it is squarely
                                                                was no more a medical-expert report “than a doctor-signed
presented, and I am confident today's decision will brighten
                                                                prescription or Christmas card would be,” I wrote, adding, “If
the line between deficient-report cases (where an extension
                                                                a report is missed, not just amiss, courts are remiss if they
is discretionary) and no-report cases (where dismissal is
mandatory).                                                     do not dismiss.” 10 Alas, the defendant did not raise the “no
                                                                report” issue, thus foreclosing a merits-based challenge. 11
1      See TEX. CIV. PRAC. & REM.CODE § 74.351(c).
       ***                                                      8      Id.

In a trio of concurrences in 2007, 2 2008, 3 and 2009, 4 I      9      The letter is reproduced in its entirety in Chief Justice
focused on this nagging question: Is there a legal difference          Gray's dissent in the court of appeals. See Lewis v.
between filing nothing and filing something that amounts to            Funderburk, 191 S.W.3d 756, 762–63 (Tex.App.-Waco
nothing? That is, can a filing be so utterly lacking in the            2006) (Gray, C.J., dissenting), rev'd, 253 S.W.3d 204
required statutory elements as to be no report at all, thus            (Tex.2008).
requiring dismissal? I join today's decision, which I read to   10     Funderburk, 253 S.W.3d at 210–11 (Willett, J.,
confirm my consistently stated view: If a document bears zero
                                                                       concurring).
resemblance to what the statute envisions—more to the point,
if it never asserts that anyone did anything wrong—it cannot    11     Id. at 208 (majority opinion) (“We do not reach the
receive an extension.                                                  question addressed in the concurring opinions here
                                                                       because it is not raised. As stated in his reply brief,
2                                                                      ‘[Dr.] Lewis has made it abundantly clear that he is
       Ogletree v. Matthews, 262 S.W.3d 316, 323 (Tex.2007)
                                                                       not appealing the trial court's [initial] order (no matter
       (Willett, J., concurring).
                                                                       how vehemently he disagrees with it),’ but instead is
3      Lewis v. Funderburk, 253 S.W.3d 204, 210 (Tex.2008)             only appealing the order denying his second motion to
       (Willett, J., concurring).                                      dismiss.”).
                                                                Finally came In re Watkins, where a plaintiff merely filed
                                                                a narrative of treatment, something that omitted every


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Scoresby v. Santillan, 346 S.W.3d 546 (2011)
54 Tex. Sup. Ct. J. 1413

statutorily required element and had no apparent relationship       malpractice case at all—no mention of a claim or a defendant,
                                    12                              much less a claim that “an individual with expertise” indicates
to a medical-malpractice case.    Like Funderburk, this
case also had a procedural wrinkle that kept the marquee            “has merit.” 18
“no report” vs. “deficient report” issue out of reach. 13
But the rare-bird sightings, I noticed, were becoming               15     346 S.W.3d 546, 549.
more commonplace. And they would proliferate on our                 16     Id. at 549.
docket, I predicted, absent appellate enforcement of the
statute's mandatory-dismissal provision 14 —or alternatively,       17     262 S.W.3d at 321 (“Because a report that implicated
this Court's express adoption of a grace-period test that is               Dr. Ogletree's conduct was served and the trial court
indeed gracious, allowing extensions for most everything.                  granted an extension, the court of appeals could not reach
                                                                           the merits of the motion to dismiss.”) (emphasis added).
12     279 S.W.3d at 637 (Willett, J., concurring).                 18     346 S.W.3d at 549. The narrative in In re Watkins might
                                                                           also fail today's test, as it lacked every required statutory
13     Id. at 634 (majority opinion) (“The separate writings join          element, though unlike the referral letter in Funderburk,
       issue again today on the question whether the item served           it at least mentions (twice) the defendant physician's
       was a deficient report or no report at all. But here it             name.
       does not matter. If no report was served, interlocutory             ***
       appeal was available, so mandamus is unnecessary. If
       the report was merely deficient, then an interlocutory       Based on my understanding of the Court's “minimal
       appeal was prohibited, and granting mandamus to review       standard” 19 —requiring that someone with expertise express
       it would subvert the Legislature's limit on such review.”)   an opinion that the plaintiff has a meritorious malpractice
       (citations omitted).                                         claim against the defendant—I join the Court's decision.
14     My sense is that such sightings have indeed grown
       more prevalent, making Chapter 74 defendants perhaps         19     Id. at 557.
       “identify with the seaside residents of Bodega Bay,
       besieged by avian attacks,” In re Watkins, 279 S.W.3d
       at 637 n. 13 (Willett, J., concurring) (citing THE BIRDS     Justice JOHNSON, joined by Justice WAINWRIGHT,
       (Universal Pictures 1963)), or else those Arkansans who      dissenting.
       witnessed the so-called Aflockalypse last New Year's         The Court says that a plaintiff who timely files a defective
       Eve, when thousands of blackbirds and starlings fell         expert report is eligible for an extension of time to cure the
       mysteriously from the skies.                                 report if
Under the Court's admittedly “lenient standard,” 15 the
                                                                                 [the report] contains a statement
document must merely “[contain] a statement of opinion
                                                                                 of opinion by an individual with
by an individual with expertise indicating that the claim
                                                                                 expertise indicating that the claim
asserted by the plaintiff against the defendant has merit.” 16                   asserted by the plaintiff against the
The line is forgiving but bright: The “report” must actually                     defendant has merit. An individual's
allege someone committed malpractice. The genesis of this                        lack of relevant qualifications and an
elemental requirement is found in Ogletree, where the Court                      opinion's inadequacies are deficiencies
first indicated that the purported report must implicate a                       the plaintiff should be given an
provider's conduct. 17 It merits emphasis, however, that                         opportunity to cure if it is possible to
today's standard, benevolent as it is, is not satisfied by                       do so.
any medical-related piece of paper; the bar is low but not
subterranean. For example, the “report” in Funderburk would         346 S.W.3d 546, 549. In my view the Court's standard
surely fail even today's lax test. The thank-you letter in that     does not conform to requirements the Legislature imposed
case never mentioned malpractice by anyone, *560 even in            in authorizing an extension to cure a deficient report. I
the most implicit or glancing manner. Again, it is not merely       respectfully dissent.
that the letter omitted every required statutory element.
Rather, it never even hinted at having any relationship to a        A trial court is statutorily authorized to grant an extension
                                                                    to cure elements of an expert report that are found deficient,


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Scoresby v. Santillan, 346 S.W.3d 546 (2011)
54 Tex. Sup. Ct. J. 1413

not to cure a report that substantively is not a report, nor to       TEX. CIV. PRAC. & REM.CODE § 74.351(r)(5)(A).
cure a report from which elements are absent as opposed to            Section 74.401 provides specific requirements for an
deficient:                                                            expert to be qualified to provide the section 74.351 report:

    (b) If, as to a defendant physician or health care provider,         (a) In a suit involving a health care liability claim
    an expert report has not been served within the period               against a physician for injury to or death of a patient, a
    specified by Subsection (a), the court, on the motion of the         person may qualify as an expert witness on the issue of
    affected physician or health care provider, shall, subject to        whether the physician departed from accepted standards
    Subsection (c), enter an order that:                                 of medical care only if the person is a physician who:

      (1) awards to the affected physician or health care                  (1) is practicing medicine at the time such testimony is
      provider reasonable attorney's fees and costs of court               given or was practicing medicine at the time the claim
      incurred by the physician or health care provider; and               arose;

      (2) dismisses the claim with respect to the physician or             (2) has knowledge of accepted standards of medical
      health care provider, with prejudice to the refiling of the          care for the diagnosis, care, or treatment of the illness,
      claim.                                                               injury, or condition involved in the claim; and

    (c) If an expert report has not been served within the period          (3) is qualified on the basis of training or experience
    specified by Subsection                                                to offer an expert opinion regarding those accepted
                                                                           standards of medical care.
    (a) because elements of the report are found deficient, the
    court may grant one 30–day extension to the claimant in            Id. § 74.401(a). The Court has said that “[a] report
    order to cure the deficiency.                                      by an unqualified expert will sometimes (though not
                                                                       always) reflect a good-faith effort sufficient to justify a
TEX. CIV. PRAC. & REM.CODE § 74.351(b), (c); 1 see In                  30–day extension.” In re Buster, 275 S.W.3d 475, 477
re Watkins, 279 S.W.3d 633, 634–35 (Tex.2009) (Johnson, J.,            (Tex.2008) (per curiam) (citing Leland v. Brandal, 257
concurring) (“The definition [of expert report] requires that          S.W.3d 204, 208 (Tex.2008)). The Court has recognized
for a document to qualify as a statutory expert report, it must        that not every doctor is qualified to render an opinion
demonstrate three things: (1) someone with relevant expertise          about every aspect of medicine or medical science. In re
(‘ “[e]xpert report” means a written report by an expert’), (2)        McAllen Med. Ctr., Inc., 275 S.W.3d 458, 463 (Tex.2008);
has an opinion (‘that provides a fair summary of the expert's          Broders v. Heise, 924 S.W.2d 148, 152 (Tex.1996)
opinions'), and (3) that the defendant was at fault for failing        (“[G]iven the increasingly specialized and technical nature
to meet applicable standards of care and thereby harmed the            of medicine, there is no validity, if there ever was, to
plaintiff....”). Absent an expert with relevant expertise, I do        the notion that every licensed medical doctor should be
not see *561 how there can be an expert report under the               automatically qualified to testify as an expert on every
statute, because the foundation of an expert report is the             medical question.”).
requirement that the report be by a qualified expert. “Expert”      The Court's new test apparently allows a report to qualify
for purposes of a report means:                                     as a deficient report even if the report demonstrates none of
                                                                    the three requirements of section 74.401(a). The test requires
1        Further references to the Civil Practice and Remedies      only that the person rendering the opinion have some type
         Code will be by referring to section numbers unless        of undefined level of expertise. It abandons the requirements
         otherwise indicated.                                       that the report show the expert (1) has knowledge of accepted
                                                                    standards of care for the diagnosis, care, or treatment of the
    [W]ith respect to a person giving opinion testimony             illness, injury, or condition involved in the claim; and (2)
    regarding whether a physician departed from accepted            qualifies on the basis of training or experience to offer an
    standards of medical care, an expert qualified to testify       expert opinion regarding those accepted standards of medical
    under the requirements of Section 74.401....                    care. See TEX. CIV. PRAC. & REM.CODE § 74.401(a)(2),
                                                                    (3). Nor does the test require a showing that the expert is
                                                                    practicing medicine or was doing so when the claim arose.
                                                                    See id. § 74.401(a)(1).


                 © 2015 Thomson Reuters. No claim to original U.S. Government Works.                                            14
Scoresby v. Santillan, 346 S.W.3d 546 (2011)
54 Tex. Sup. Ct. J. 1413

                                                                      In Ogletree v. Matthews, we considered a defendant's
Dr. Marable's report says nothing about his surgical                  contention that no statutory expert report had been filed
qualifications. The report does not give any facts or                 because the report was by a radiologist who was not qualified
information which would qualify him to opine on the                   to express an opinion on the standard of care for a urologist.
standards of care for the type of surgery performed in this           262 S.W.3d 316, 319 (Tex.2007). The urologist defendant
case, and he did not attach a CV to the report. 2 The report          had performed a urethral catheterization during which the
was written on a letterhead showing that he maintains board           patient suffered bruising and bladder perforation. Id. at
certification in neurology *562 and psychiatry. In his report         317. We held that the radiologist's report was deficient,
he makes it clear that he is basing his opinion on his expertise      not absent. Id. at 320. But in Ogletree the radiologist was
in neurology, not surgery: “As a board certified neurologist,         opining about whether the urologist should have performed
my opinion is that Dr. Ducic violated the standards of                the catheterization under flouroscopic guidance in order to
care, as well as Dr. Scoresby, and as a result [Santillan's]          avoid or more timely diagnose the perforation. Id. at 318. In
damages are that of a right-sided hemiparesis with possibility        that instance, the radiologist was opining about whether the
of seizure foci in the future.” The neurological expertise            urologist should have involved radiology-related devices and
on which Dr. Marable relies does not involve surgery. See             techniques (the specialty in which the expert was qualified)
WILSON STEGEMAN, MEDICAL TERMS SIMPLIFIED                             in treating the patient and whether the failure to do so resulted
106 (1976) (noting that neurologists do not perform surgery);         in injury. The matter before us is different from Ogletree
American Academy of Neurology, Working with Your                      because there is no apparent closely related connection
Doctor, https://patients.aan.com/go/workingwithyourdoctor             between the expertise involved in the specialty of neurology
(last visited Apr. 18, 2011) (“Neurologists do not perform            and the expertise involved in knowing how to perform, and
surgery.”). Dr. Marable's report does not claim that he now           performing, the surgery performed by Drs. Scoresby and
performs or has in the past performed surgery, much less              Ducic.
this particular type of surgery. The report neither claims that
he has knowledge of the standard of care for performing               In McAllen Medical Center, 275 S.W.3d 458, we considered
the surgery nor that he is qualified on the basis of training         the validity of a doctor's expert reports in negligent
or experience to offer an expert opinion on those standards           credentialing suits against the medical center. McAllen
of care. See TEX. CIV. PRAC. & REM.CODE 74.401(a)                     challenged the adequacy of the reports on the basis that
(2), (3). The report does not say that he has participated in,        the doctor was not qualified to express opinions as to the
observed, or even read about how to do “procedures of left            credentialing process. Id. at 462. We agreed with McAllen
mediomaxillectomy, excision of neoplasm of the maxilla,               and held that the reports were inadequate:
calvarial bone growth and reconstruction of maxilla and
                                                                        On this record, the plaintiffs have not established Dr.
excision of tumor of pterygopalatin structures,” which were
                                                                        Brown's qualifications. “The standard of care for a hospital
the surgical procedures performed by Drs. Scoresby and
                                                                        is what an ordinarily prudent hospital *563 would do
Ducic. 3 In short, nothing in Dr. Marable's report raises an            under the same or similar circumstances.” Nothing in the
inference that he is a qualified expert as to this type of surgery,     record here shows how Dr. Brown is qualified to address
as prescribed by statute, and the report is all that was before         this standard. Nor can we infer that she may have some
the trial court in regard to his qualifications.                        knowledge or expertise that is not included in the record.

2       An amended report by Dr. Marable with a CV attached             Moreover, “a negligent credentialing claim involves a
        was filed on the day the defendants' motions to dismiss         specialized standard of care” and “the health care industry
        were heard. The CV was not considered by the trial court,       has developed various guidelines to govern a hospital's
        but it did not show that Dr. Marable had any training or        credentialing process.” Dr. Brown's reports contain no
        expertise in the type of surgery involved here.                 reference to any of those guidelines, or any indication
3                                                                       that she has special knowledge, training, or experience
        Santillan's attorney represented during oral argument
                                                                        regarding this process. Nor was Dr. Brown qualified
        that he believed Dr. Marable's amended report contained
                                                                        merely because she is a physician; “given the increasingly
        statements by Dr. Marable that he had seen surgery of
                                                                        specialized and technical nature of medicine, there is no
        this type because he had treated patients after they had
        the surgery.                                                    validity, if there ever was, to the notion that every licensed




                © 2015 Thomson Reuters. No claim to original U.S. Government Works.                                               15
Scoresby v. Santillan, 346 S.W.3d 546 (2011)
54 Tex. Sup. Ct. J. 1413

                                                                     The Court says that “ ‘there are constitutional limitations upon
  medical doctor should be automatically qualified to testify
                                                                     the power of courts ... to dismiss an action without affording
  as an expert on every medical question.”
                                                                     a party the opportunity for a hearing on the merits of his
Id. at 463 (citations omitted).                                      cause.’ ” 346 S.W.3d at 554 (quoting TransAmerican Natural
                                                                     Gas Corp. v. Powell, 811 S.W.2d 913, 918 (Tex.1991)). I
The substance of the issue before us is similar to the issue         agree. But the statement does not fit here. First of all, the
we decided in McAllen Medical Center. Dr. Marable's report           constitutionality of the statute is not challenged. Second,
indicates that the defendants violated standards of care for         even if it were, the statutory requirement of a timely report
the surgery and their negligent activity caused damages to           by a qualified expert did not spring upon Santillan without
Santillan. But Dr. Marable's report does not show he was             warning. The requirement was in place before the surgery
qualified under the statute to give such an expert opinion,          took place in January 2006, while suit was not filed against the
nor did his opinion about the surgeons' decisions and actions        defendant doctors and Tarrant County Hospital until January
during surgery involve his specialty except to the extent a          2008. Santillan had time to find a qualified expert to provide
physician with his specialty would have been involved in             the report required to show his claim had merit, if he could
post-surgical care and possibly a decision to reoperate.             find such an expert.

If Dr. Marable's report had in some manner demonstrated              I would hold that failure to timely serve a report by an expert
that he was qualified to render an opinion about the                 qualified under the statute is not merely a deficiency in an
standard of care for the surgery involved, then I might              element of the report, it is a deficiency going to the question of
agree that his conclusory statements about the defendants            whether the report is competent and is entitled to be given any
having negligently violated applicable standards of care             weight. And I would hold that it is not an expert report and the
and those negligent activities having caused damages were            filing of such a report supports inferences that a *564 proper
sufficient to support an extension of time. But the report           report by a qualified expert was not available, the claim lacks
sets out his opinion as a neurologist, not a physician with          merit, and the claim should be dismissed.
surgical expertise. The Legislature did not intend that an
expert report could be by a doctor with no demonstrated or           I would reverse the judgment of the court of appeals and
inferable experience and training in a practice area who reads       dismiss the case. See Badiga v. Lopez, 274 S.W.3d 681, 684–
medical records and writes a report containing the simplistic        85 (Tex.2009).
indictments in the report here: the defendants negligently
lacerated the brain and further surgery was required. See TEX.
CIV. PRAC. & REM.CODE § 74.401(a).                                   All Citations

                                                                     346 S.W.3d 546, 54 Tex. Sup. Ct. J. 1413

End of Document                                                  © 2015 Thomson Reuters. No claim to original U.S. Government Works.




                © 2015 Thomson Reuters. No claim to original U.S. Government Works.                                               16
Tawa v. Gentry, Not Reported in S.W.3d (2013)
2013 WL 1694869

                                                               The following summary of the plaintiff's hospital visit, during
                                                               which he suffered a stroke, is taken from Dr. Nicolaos
                  2013 WL 1694869
    Only the Westlaw citation is currently available.          Madias's August 8, 2011 expert report 1 :

          SEE TX R RAP RULE 47.2 FOR                           1      For purposes of our review of the adequacy of a medical
    DESIGNATION AND SIGNING OF OPINIONS.                              expert report under Chapter 74, we take the allegations
                                                                      in the report as true.Marino v. Wilkins, ––– S.W.3d ––––,
             MEMORANDUM OPINION
                                                                      –––– n. 1, 2012 WL 749997, at *17 n. 1 (Tex.App.-
              Court of Appeals of Texas,
                                                                      Houston [1st Dist.] Mar, 8, 2012, pet. denied).
                Houston (1st Dist.).
                                                               On November 14, 2008, 53 year-old plaintiff/appellee Glenn
           Cyril B. TAWA, M.D., Houston                        Gentry (Gentry) visited his primary physician, Dr. Keller,
        Interventional Cardiology, P.A., and                   complaining of fatigue and shortness of breath. Keller
      Angela Rowan, R.N. F.N.P. -C, Appellants                 determined that he had atrial fibrillation with a rapid
                         v.                                    ventricular rate. Keller sent Gentry to the Emergency Room at
                                                               North Cypress Medical Center. Upon admittance, he was seen
  Glenn P. GENTRY and Patricia Gentry, Appellees.
                                                               by defendant/appellant Dr. Cyril B. Tawa, M.D., the attending
       No. 01–12–00407–CV.         |      April 18, 2013.      physician, and defendant/appellant Angela Rowan, Tawa's
                                                               nurse practitioner. Gentry's primary complaint was heart
On Appeal from the 333rd District Court, Harris County,        palpitations and he was “found to have atrial fibrillation with
Texas, Trial Court Case No.2011–05219.                         a ventricular rate of 130 beats per minute.”In the Emergency
                                                               Room, Gentry was given “Cardizem bolus followed by a
Attorneys and Law Firms                                        Cardizem drip to control the ventricular rate.”
Gordon M. Carver III, for Houston Interventional Cardiology,
                                                               Upon admission, Gentry was taken off some of his regular
PA, Cyril B. Tawa, M.D., Angela Rowan.
                                                               medication and others were prescribed. Specifically, he was
Matias J. Adrogue, for Patricia Gentry.                        “prescribed to discontinue Lovenox and Lisinopril; to take
                                                               Toprol XL, Clonidine, started [on] a Heparin drip and
Panel consists of Chief Justice RADACK and Justices            Coumadin (warfarin).” The following three days, November
HIGLEY and BROWN.                                              15, 16, and 17, Tawa ordered Coumadin be administered.

                                                               Several medical tests were performed on Gentry's heart
              MEMORANDUM OPINION                               and kidneys during his hospital stay. According to the
                                                               records, Mr. Gentry had “elevated creatinine.” Tawa then
SHERRY RADACK, Chief Justice.                                  consulted with Dr. Lal, who determined that a kidney
                                                               biopsy was necessary. “Medications that promote reversal
 *1 This is an interlocutory appeal from the denial of
                                                               of Coumadin effects as well as infusion of coagulation facts
appellants' motions to dismiss under Chapter 74 of the
                                                               were prescribed on November 18, 2008, including vitamin K
Texas Civil Practice and Remedies Code. We reverse the
                                                               iv and FFP (fresh frozen plasma).”“Lal wrote in a Progress
trial court's order denying appellants Angela Rowan's and
                                                               Note on November 18 that a plan was made for a kidney
Houston Interventional Cardiology's motion to dismiss (as it
                                                               biopsy (Dr. Tawa, Dr. Keller, Dr. Morello, patient); FFP, vit
relates to care provided by Rowan) and remand to the trial
                                                               K iv; hold Coumadin and heparin.”
court for assessment of attorneys' fees and costs. We affirm
the trial court's order denying appellants Cyril Tawa's and
                                                               The kidney biopsy was performed on November 19, 2008,
Houston Interventional Cardiology's motion to dismiss (as it
                                                               and later that day Gentry's records indicate he had a “CVA
relates to care provided by Tawa).
                                                               (cerebrovascular accident ) believed to be of ischemic origin
                                                               with left hemiparesis, aphasia, lethargy.”“Impression and
                                                               plan included: atrial fibrillation, embolism, not a candidate
                     BACKGROUND                                for TPA because of recent kidney biopsy, MRI, and
                                                               transfer to ICU,” where he “received a ‘heparin drip.” His


               © 2015 Thomson Reuters. No claim to original U.S. Government Works.                                                1
Tawa v. Gentry, Not Reported in S.W.3d (2013)
2013 WL 1694869

stroke“resulted in aphasia and weakness of left extremities.”A    Section 74.351 of the Texas Civil Practice and Remedies
neurology consultation that same night indicated that “Gentry     Code requires the trial court perform a ‘gate-keeper’ function,
had developed hemiplegia, probably cardio embolic and this        to prevent medical negligence causes of actions from
was discussed with Dr. Lal, Dr. Tawa, and his family, and         proceeding unless the claimant has made a good-faith effort
heparin infusion was prescribed.”                                 to demonstrate that at least one expert believes that a breach
                                                                  of the applicable standard of care caused the claimed injury.
 *2 The medical records also describe the results of CT scans     TTHR, L.P. v. Guyden, 326 S.W .3d 316, 319 (Tex.App.-
of his heart and brain, and later ultrasound images of his        Houston [1st Dist.] 2010, no pet.)(citing TEX. CIV. PRAC. &
carotid and vertebral arteries.” At the time of his discharge     REM.CODE ANN. § 74.351; Murphy v. Russell, 167 S.W.3d
from the hospital on December 1, 2008, “Gentry had left-          835, 838 (Tex.2005)).“A report need not marshal all of the
sided weakness, speech impairment, sitting up in a chair and      plaintiff's proof but it must include the expert's opinions
in normal sinus rhythm.”                                          on the three statutory elements: standard of care, breach,
                                                                  and causation.”Id.; see Am. Transitional Care Centers v.
Gentry and his wife, Patricia Gentry, sued Dr. Tawa, Dr.          Palacios, 46 S.W.3d at 873, 880 (Tex.2001); Spitzer v. Berry,
Lal, Rowan, and Houston Intervention Cardiology, P.A.             247 S.W.3d 747, 750 (Tex.App.-Tyler 2008, pet. denied)
On June 14, 2011, pursuant to Chapter 74 of the Texas             (quoting Palacios, 46 S.W.3d at 880) (stating “fair summary”
Civil Practice and Remedies Code, the Gentrys served the          is “something less than a full statement” of applicable
defendants with an expert report and curriculum vitae (CV)        standard of care, how it was breached, and how that breach
of Dr. Nicolaos E. Madias, M.D. Defendants Tawa, Rowan,           caused injury).
and Houston Intervention Cardiology filed objections and
motions to dismiss. The trial court overruled the objections,     To constitute a good faith effort, the report must provide
but granted the Gentrys 30 days to cure any deficiencies in       enough information to fulfill two purposes: (1) inform the
Madias's report. The Gentrys timely filed an Amended Expert       defendant of the specific conduct that the plaintiff has called
Report and CV. Tawa, Rowan, and Houston Intervention              into question; and (2) provide a basis for the trial court to
Cardiology filed objections again, as well as a motion            conclude that the claims have merit. Palacios, 46 S.W.3d at
to dismiss and request for attorneys' fees. The trial court       879. A report that merely states the expert's conclusions as
denied defendants' motion, and Tawa, Rowan, and Houston           to the standard of care, breach, and causation does not fulfill
Intervention Cardiology timely brought this interlocutory,        these two purposes. Id. The expert must explain the basis for
accelerated appeal.                                               his statements and link his conclusions to the facts. Bowie
                                                                  Mem'l Hosp. v. Wright, 79 S.W.3d 48, 52 (Tex.2002) (citing
                                                                  Earle v. Ratliff, 998 S.W.2d 882, 890 (Tex.1999)). The trial
                                                                  court may not draw any inferences, but must rely exclusively
                   ISSUES ON APPEAL
                                                                  on the information contained within the report's four corners.
Appellants argue that Madias's amended report does not            See TTHR, 326 S.W.3d at 319. In addition to setting forth the
represent a good faith effort to comply with section 74.351(r)    requisite criteria, a Chapter 74 report must also be authored
(6) of the Texas Civil Practice and Remedies Code.                by a qualified “expert.” TEX. CIV. PRAC. & REM.CODE
Accordingly, appellants argue that the trial court abused its     ANN. § 74.351(r)(6).
discretion by overruling their objections to Madias's amended
report, and by denying their motions to dismiss and refusing       *3 We review a trial court's decision on a motion to dismiss
to award attorneys' fees. Appellants seek reversal of the         a case for failure to comply with section 74.351 for an abuse
trial court's orders, dismissal with prejudice of the Gentrys'    of discretion.Palacios, 46 S.W.3d at 877; Tex. Civ. Prac. &
claims against appellants, and a remand to the trial court with   Rem.Code Ann. § 74.351(Vernon Supp.2009). Although we
instructions to award to appellants reasonable attorneys' fees    defer to the trial court's factual determinations, we review
and costs.                                                        questions of law de novo. Rittmer v. Garza, 65 S.W.3d
                                                                  718, 722 (Tex.App.-Houston [14th Dist.] 2001, no pet.). To
                                                                  the extent that resolution of the issue before the trial court
                                                                  requires interpretation of the statute itself, we apply a de novo
                   APPLICABLE LAW                                 standard. Buck v. Blum, 130 S.W.3d 285, 290 (Tex.App.-
                                                                  Houston [14th Dist.] 2004, no pet.).



               © 2015 Thomson Reuters. No claim to original U.S. Government Works.                                              2
Tawa v. Gentry, Not Reported in S.W.3d (2013)
2013 WL 1694869

                                                                     with treating patients with fluctuating mental status gives
                                                                     him expertise regarding a hospital's ‘administrative decision’
                                                                     about the circumstances under which a hospital can disregard
                          DR. TAWA
                                                                     a doctor's discharge order.”Id. at 536.It thus held that the
In appellants' first issue, they argue that the trial court abused   expert's report did not demonstrate that he was qualified
its discretion in failing to find Madias's report deficient as       to opine on the hospital's standard of care in making
it relates to Tawa (and to the vicarious liability of Houston        administrative decisions:
Interventional Cardiology for Tawa's care). Specifically,
                                                                        *4 [The expert's] report and curriculum vitae explain
Tawa argues that Madias's report is deficient because (1) he
                                                                       that he has active staff privileges at Reston Hospital,
is “not qualified to render an opinion regarding the applicable
                                                                       where he sits on the credentials committee, and that he is
standard of care for Dr. Tawa,” (2) it “fails to specify the
                                                                       on the utilization review subcommittee for the neurology
applicable standard of care,” (3) it “fails to adequately set
                                                                       section of Fairfax Hospital. As [plaintiff] argued in his
forth the manner in which Tawa allegedly breached the
                                                                       response to the motion to dismiss, “this case concerns the
standard of care,” and (4) it “fails to discuss the causal
                                                                       Defendant Hospital's decision to abandon [complainant],
relationship between the breach and Mr. Gentry's” stroke.
                                                                       not whether the nursing staff followed protocol.”The
                                                                       report does not state that [the expert] is familiar with
A. Qualification                                                       hospital administration or the standards to be applied to
Tawa contends that Madias's report “seek[s] to hold Dr. Tawa           implementing an attending physician's discharge order.
strictly liable for the conduct of all, solely by virtue of the        The fact that [the expert] is on staff at a hospital and serves
fact that Dr. Tawa signed Mr. Gentry's admitting order.”This,          on that hospital's credentials committee does not establish
according to Tawa, “invents a dangerous new brand of                   that he possesses specialized knowledge of the protocols,
vicarious liability, casting a net over the ‘attending physician’      policies, or procedures a hospital of ordinary prudence
and any and all health care providers that subsequently come           would have had in place in determining when a facility
into contact with a patient.”He notes that not every licensed          should disregard a discharge order. See Reed v. Granbury
doctor is automatically qualified to testify on every medical          Hosp. Corp., 117 S.W.3d 404, 409 (Tex.App.-Fort Worth
question, Broders v. Heise, 924 S.W.2d 148, 152 (Tex.1996),            2003, no pet.).
and that, to offer his opinion on the standard of care applicable
                                                                       [The expert's] report and curriculum vitae do not explain
to attending physicians, Madias's expertise must be evident
                                                                       how [his] committee assignments and experience on staff
from the four corners of his report and his CV. Palacious, 46
                                                                       at Reston Hospital make him familiar with the standards
S.W.3d at 878.
                                                                       applied by hospitals under these circumstances. Thus, the
                                                                       trial court abused its discretion in overruling [defendant's]
Tawa relies on Christus Health Southeast Texas v. Broussard,
                                                                       objections to [the expert's] report.
267 S.W.3d 531, 536–37 (Tex.App.-Beaumont 2008, no
pet.), a case in which a neurologist expert opined on the            267 S.W.3d at 536.
standard of care applicable to a hospital's administrative
decisions. Specifically, the expert—who had experience               According to Tawa, “Dr. Madias' opinion regarding Dr.
treating patients that, like the complainant, had “a history of      Tawa's liability is not based upon the medical care Mr.
fluctuating mental capacities”—opined about the hospital's           Gentry received from Dr. Tawa.”Rather, he asserts, “Madias'
decisions related to the complainant's discharge from long-          conclusion regarding liability is based upon whether Dr.
term care. Id. The complainant was intubated and being               Tawa should have made the administrative decision to
treated for “pneumonia and acute respiratory deficiency.”            prevent implementation of another physician's order.”Thus,
Id. at 534.While the complainant was waiting to be                   Tawa contends that, like the report at issue in Broussard,
discharged pursuant to her doctor's orders, plaintiff alleged        Madias's report does not show he is qualified to opinion about
that the defendant hospital removed the complainant's finger         “customs, policies and procedures.”
pulse oximeter, then left complainant unrestrained and
unsupervised. Id. She dislodged her breathing tube and               The Gentrys respond that Tawa's argument “represents either
suffered a hypoxic brain injury.Id. The court noted that the         a mischaracterization or a misunderstanding of the opinion
expert's report and CV did not “explain how his experience           offered by Dr. Madias.”They argue that nowhere in Madias's



                © 2015 Thomson Reuters. No claim to original U.S. Government Works.                                                3
Tawa v. Gentry, Not Reported in S.W.3d (2013)
2013 WL 1694869

report does he opine that Tawa as the attending physician is       to testify.”Rittger v. Danos, 332 S.W.3d 550, 559 (Tex.App.-
strictly liable for other's care; nor does he suggest that Tawa    Houston [1st Dist.] 2009, no pet.).
should have “overruled” the orders of another physician.
Instead, Madias notes that as the attending physician, Tawa
is responsible for managing the overall care of the patient,       2. Analysis
which might include attempting to prevent performing               Madias is board certified in Internal Medicine, licensed
procedures that “pose a great risk to the patient given the        to practice in Massachusetts, and is a professor at Tuffs
totality of that patient's medical circumstances.”The Gentrys      University School of Medicine. His report states that he
also point out that Lal's progress notes “indicate that Dr. Tawa   has reviewed Gentry's medical records and is “qualified to
was a party to the decision to stop Mr. Gentry's antithrombotic    evaluate and render an opinion ... based on the following”:
treatment and administer procoagulant treatment,” such that
                                                                     (1) I have the training and experience in the management
he may have “endorsed or approved these decisions.” Finally,
                                                                        of patients with atrial fibrillation; in the use of
the Gentrys contend that it is apparent from Madias's report
                                                                        anticoagulation therapy in these patients; in the risk of
and CV that he familiar with the standard of care regarding
                                                                        embolic stroke in the absence of anticoagulation therapy;
attending physicians similarly situated with Tawa.
                                                                        in the indications and contraindications of a kidney
                                                                        biopsy; and in the diagnosis and management of kidney
1. Applicable Law                                                       disease.
 *5 Chapter 74 sets forth general criteria for qualifying an
                                                                     (2) I have been actively practicing medicine and caring for
expert physician:
                                                                        patients like Mr. Gentry at the time he was diagnosed
  (a) In a suit involving a health care liability claim against         with atrial fibrillation and thereafter including the time
  a physician for injury to or death of a patient, a person             that the claim was filed. In addition, I have been actively
  may qualify as an expert witness on the issue of whether              involved in the diagnosis and management of kidney
  the physician departed from accepted standards of medical             disease during the same period.
  care only if the person is a physician who:
                                                                     (3) I have knowledge of the standard of care associated with
  (1) is practicing medicine at the time such testimony is              the diagnosis and treatment of the illness and injury that
  given or was practicing medicine at the time the claim                Mr. Gentry suffered, including his atrial fibrillation, the
  arose;                                                                need for anticoagulation, the risks of embolic stroke, and
                                                                        management of kidney diseases.
  (2) has knowledge of accepted standards of medical care
  for the diagnosis, care, or treatment of the illness, injury,      (4) As a doctor of Internal Medicine who has
  or condition involved in the claim; and                               treated many patients with atrial fibrillation and
                                                                        uncontrolled hypertension, I have knowledge of the risks
  (3) is qualified on the basis of training or experience to            involved when such patients' antithrombotic treatment
  offer an expert opinion regarding those accepted standards            is discontinued. The consequences of discontinuation
  of medical care.                                                      of antithrombotic therapy and the causes of cardiac
                                                                        embolism are well known within the specialty of Internal
TEX. CIV. PRAC. & REM.CODE § 74.401(a).                                 Medicine. Because of this, I am qualified to offer
                                                                        opinions on the causation of Mr. Gentry's injuries.
The relevant issue is not “the physician's area of practice
but the stated familiarity with the issues involved in the          *6 To determine if Madias is qualified to opine on the
claim before the court.”Pediatric Med. Group, Inc. v.              standard of care applicable to Tawa, we look to “the medical
Robinson, 352 S.W.3d 879, 884 (Tex.App.-Dallas 2011, no            condition involved in the claim and ... the expert's familiarity
pet.).“Where a particular subject of inquiry is common to          and experience with it.”Grandbury Minor Emergency. Clinic
and equally developed in all fields of practice, and the           v. Thiel, 296 S.W.3d 261, 267 (Tex.App.-Fort Worth 2009,
prospective medical expert witness has practical knowledge         no pet.).
of what is usually and customarily done by a practitioner
under circumstances similar to those with confronted the           Tawa's argument that Madias is not qualified to render an
practitioner charged with malpractice, the witness is qualified    opinion rests primarily on his assertion that “Dr. Madias'


                © 2015 Thomson Reuters. No claim to original U.S. Government Works.                                             4
Tawa v. Gentry, Not Reported in S.W.3d (2013)
2013 WL 1694869

opinion regarding Dr. Tawa's liability is not based upon the       Rowan NP–C, the expected management to be implemented
medical care Mr. Gentry received from Dr. Tawa,” but instead       by competent and responsible professionals?”
whether “Tawa should have made the administrative decision
to prevent implementation of another physician's order.”From                     *7 Unfortunately, Mr. Gentry's
this, Tawa argues that Madias has not shown himself qualified                   health care providers decided soon
to testify about such “administrative” decisions.                               after his admission, and despite the
                                                                                persistence of atrial fibrillation, to stop
We disagree with Tawa's narrow characterization of Madias's                     the antithrombotic therapy in order
opinion. Madias opines that Gentry's stroke was most                            to address by means of a kidney
likely caused by “the discontinuation of Coumadin and                           biopsy the possible cause of the
administration of FFP and vitamin K.” He opined that Tawa's                     patient's reduced renal function; this
standard of care encompassed both his role as attending                         problem was unrelated to the patient's
physician to be “responsible for the entire care delivered                      symptoms.
to the patient by all healthcare providers,” and his “role of
internist caring for the atrial fibrillation and the management    Madias's report states that he has experience treating and
of this condition.”Madias opined that a “patient with atrial       managing patients similarly situated with Gentry, i.e., those
fibrillation of uncertain time as to the initiation of the         diagnosed with atrial fibrillation, and that he has “knowledge
arrhythmia and on Coumadin therapy should not discontinue          of the standard of care associated with the diagnosis and
all antithrombotic therapy unless clots in the atria are absent    treatment of the illness and injury that Mr. Gentry suffered,
or active bleeding is present.”He also states, with regard to      including his atrial fibrillation, the need for anticoagulation,
Tawa, that “the standard of care requires an internist to know     the risks of embolic strike, and management of kidney
that administration of fresh frozen plasma and vitamin K to        disease.”He further states that in his Internal Medicine
reverse the anticoagulation caused by Coumadin therapy is          practice, he has “treated many patients with atrial fibrillation
very risky in a patient like Mr. Gentry since discontinuation of   and uncontrolled hypertension,” and that he has “knowledge
antithrombotic therapy may help to trigger the development         of the risks involved when such patient's antithrombotic
of more clots in the atria.”                                       treatment is discontinued.”

According to the medical record summary contained in               Madias's report further explains that the “consequences of
Madias's report, after admitting Gentry to the hospital, Tawa      discontinuation of antithrombotic therapy and the causes
prescribed, among other things, Coumadin and Heparin to            of cardiac embolism are well known within the specialty
address his atrial fibrillation. “Lal wrote in a Progress Note     of Internal Medicine,” and that “[a]ll of the concepts
on November 18 that a plan was made for a kidney biopsy            and opinions that I present are completely in the domain
(Dr. Tawa, Dr. Keller, Dr. Morello, patient); FFP. Vit K iv.;      and expected knowledge of an internist without additional
hold Coumadin and heparin.”Tawa argues that this Progress          training in cardiology or any other subspecialty.”Finally, he
Note is not sufficient to suggest that he had any involvement      notes that the “standard of care that apply to a subspecialist in
in the medical decision to discontinue the medication that         Cardiology or Nephrology managing Mr. Gentry must satisfy
he had previously prescribed, and he argues that “the              or even exceed those that apply to a specialist in Internal
Amended Report does not state or even suggest that Dr. Tawa        Medicine. That is, the standard of care applicable to internist
participated in the decision to discontinue Coumadin therapy       that do not have additional subspecialties such as Cardiology
and administer vitamin K and fresh frozen plasma.”A fair           or Nephrology.”
reading of Lal's Progress Note is that Dr. Tawa was involved
or, at a minimum, acquiesced in a treatment that called for        “Where a particular subject of inquiry is common to
an order discontinuing medication that Tawa had prescribed.        and equally developed in all fields of practice, and the
And, contrary to Tawa's argument that Madias does not              prospective medical expert witness has practical knowledge
suggest elsewhere in his report that Tawa was involved in this     of what is usually and customarily done by a practitioner
decision, Madias's report further attributes these decisions to    under circumstances similar to those which confronted
Tawa in a section entitled “Was the treatment that Mr. Gentry      the practitioner charged with malpractice, the witness is
received after his admission on November 14, 2008 by his           qualified to testify.”Rittger, 332 S.W.3d at 558 (holding that
health care providers including Dr. Tawa, Dr. Lai, and Angela      neurologist/ professor of medicine was qualified to opine



                © 2015 Thomson Reuters. No claim to original U.S. Government Works.                                              5
Tawa v. Gentry, Not Reported in S.W.3d (2013)
2013 WL 1694869

on the standard of care in case against emergency room              (Tex.App.-Dallas 2007, pet. denied) for the proposition that
physician who failed to diagnose stroke in pregnant patient,        Madias's failure to include specific information about the time
explaining that the fact that the patient “was pregnant when        frame in which Tawa was “required to intervene” renders his
she experienced her stroke or that she presented herself in         articulation of the standard of care fatally deficient. Finally,
a emergency room setting does not require that [the expert]         Tawa argues that the “report impermissibly infers that the
be a an obstetrician or emergency room physician,” because          standards of care applicable to Dr. Lal also apply to Dr.
he “is shown to be sufficiently competent and qualified to          Tawa.”
testify as to the care of patients with stoke as a complication
of pregnancy-related toxemia”). When, according to the              The Gentrys respond that a physician can be liable for
expert's report, the relevant standard of care is basic and not     negligence in Texas based on a number of different acts or
limited to any particular specialty, an expert is qualified if      omissions, including choosing an inappropriate procedure,
“actively participating in rendering medical care ‘relevant to      abandoning a patient, not obtaining informed consent, and
the claim,’ which can be demonstrated by a report showing           not monitoring a patient's condition. Thus, they argue, “a
the “injury involved was of the type [the expert] treated           physician can be held liable for omissions-an affirmative
in his practice.”Padilla v. Loweree, 354 S.W.3d 856, 864            action is not required in every case.”Additionally, they note
(Tex.App.-El Paso 2011, pet. denied) (holding that orthopedic       that even the authority Tawa cites acknowledges that a full
surgeon was qualified to opine on standard of care against          statement of the standard of care is not required, Kingwood
gynecological surgeon because subject-matter of claimi.e.,          Pines Hosp., 362 S.W.3d at 748; all that is required is a
positioning and padding of patients' extremities-is common          statement sufficient to put the defendants on notice of the
to types of surgeries expert performs).                             nature of the claims against them, which Madias's report does.

 *8 We disagree with Tawa that Madias's report and opinions         The Gentrys also contend that the Kingwood Pines case
are analogous to the expert's report and opinions “about            primarily relied upon by Tawa is distinguishable on its facts
the administrative decisions of the Defendant Hospital” that        because it involved a conclusory articulation of a nonmedical
the court in Brossard held the expert was not qualified             standard of care not present in this case. The Gentrys argue
by experience or knowledge to opine about. 267 S.W.3d               that Kettle—the case Tawa cites for the proposition that
at 536. Rather, Madias's report and CV demonstrate that             Madias's report lacks requisite specificity about the timeframe
he has experience treating patients similarly situated with         for intervention—is likewise distinguishable. In that case, the
Gentry, and that the standards about which he opines are            court found the word “promptly” to be too ambiguous to
generally and well-known within his field of expertise. Tawa        articulate the standard of care that turned on when a procedure
has not established that the trial court abused its discretion in   should have been performed to prevent a patient's death.
finding Madias qualified to render an opinion regarding the         According to the Gentrys, this case does not involve the
applicable standard of care for Tawa.                               same ambiguity concerns, given that the only possible time
                                                                    to intervene in this case would have been before cessation
                                                                    of antithrombotic therapy and the subsequent administration
B. Adequacy of Report                                               of vitamin K and fresh frozen plasma. Finally, the Gentrys
                                                                    assert that Tawa's contention that Madias's report imputes
1. Standard of Care
                                                                    Lal's standard of care to Tawa is simply not supported by the
Tawa next argues that Madias's report “fails to specify
                                                                    actual contents of the Amended Report.
an adequate standard of care for Dr. Tawa.”Specifically,
Tawa asserts that the “standard of care articulated in the
                                                                     *9 Madias's report contains the following articulation of the
report is ambiguous and conclusory because the report
                                                                    standard of care as it relates to Tawa:
provides no specific information about what Dr. Tawa should
have done differently to meet the expected standard.”Tawa             The accepted standard of medical care applicable to Dr.
cites Kingwood Pines Hospital v. Gomez, 362 S.W.3d                    Tawa relates to this dual role of attending physician and
740, 743 (Tex.App.-Houston [14th Dist.] 2011, no pet.)                that of internist caring for the patient. As the attending
for the proposition that Madias's report fails to include             physician in the admission to the hospital of Mr. Gentry,
specific enough information about what an ordinarily prudent          Dr. Tawa is responsible for the entire care delivered to
healthcare provider would have done, and Kettle v. Baylor             the patient by all healthcare providers, including Dr. Lal
Medical Center at Garland, 232 S.W.3d 832, 838–39                     and Angela Rowan. Thus, Dr. Tawa must oversee the


                © 2015 Thomson Reuters. No claim to original U.S. Government Works.                                              6
Tawa v. Gentry, Not Reported in S.W.3d (2013)
2013 WL 1694869

  care delivered by the other providers and ensure that           prevent brain damage” was sufficient articulation of standard
  it is within the standard of care. Failure to fulfill this      of review, in case alleging that physician was negligent in
  task leads to substandard care. Dr. Tawa also treated           failing to immediately prescribe anticonvulsants).
  Mr. Gentry in the role of internist caring for the atrial
  fibrillation and the management of this condition. A             *10 The cases relied upon by Tawa are inapposite. In
  patient with atrial fibrillation of uncertain time as to the    Kingwood Pines, a minor who was being evaluated for
  intuition of the arrhythmia and on Coumadin therapy             a psychiatric condition stemming from sexual abuse sued
  should not discontinue all antithrombotic therapy unless        her doctor and hospital after she was sexually molested by
  clots in the atria are absent or active bleeding is present.    another patient while in the hospital. 362 S.W.3d at 743–
  The standard of care requires an internist to know              44. The court noted that her expert's report contained only
  that administration of fresh frozen plasma and vitamin          conclusory statements “regarding the provision of a secure
  K to reverse the anticoagulation caused by Coumadin             environment, the supervision of patients, and the prevention
  therapy is very risky in a patient like Mr. Gentry since        of harm to patients,” without “indicat[ing] what an ordinarily
  discontinuation of antithrombotic therapy may help to           prudent health care provider would do under the same or
  trigger the development of more clots in the atria.             similar circumstances.”Id. at 749.The court thus held that the
                                                                  articulation of the standard of care was insufficient as the
  It is important to recognize that the accepted standards of     expert merely stated “that appellants did not provide a safe
  care for the diagnosis and management of the illness of         and secure environment for [the plaintiff], but do not specify
  Mr. Gentry are entirely dependent on his condition as a         how this should have been accomplished.”Id. Given that
  patient and are largely independent of the subspecialty (e.g.   Medias's report does indicate what course of action was called
  Cardiology or Nephrology) of the providers. Mr. Gentry          for, it does not lack specificity as the report in Kingwood
  had a medical condition typically managed by internists         Pines did.
  (specialty in Internal Medicine), and both Dr. Lal and Dr.
  Tawa were board certified in Internal Medicine.                 Kettle, the other case cited by Tawa, is likewise
                                                                  distinguishable. In that case, the court affirmed the trial
The standard of care is defined by what an ordinarily prudent     court's dismissal of a plaintiff's claim for failure to serve an
health care provider or physician would have done under the       adequate expert report as to plaintiffs claims against certain
same or similar circumstances.Palacios, 46 S.W.3d at 880;         physicians. 232 S.W.3d at 638–39. Among other things, the
Strom v. Mem'l Hermann Hosp. Sys., 110 S.W.3d 216, 222            court concluded that the expert's articulation of the standard
(Tex.App.-Houston [1st Dist.] 2003, pet. denied). Identifying     of care was vague in that it did not specify what action should
the standard of care is critical: whether a defendant breached    have been taken when:
his or her duty to a patient cannot be determined absent
specific information about what the defendant should have                      Cohen's opinion that all the physician-
done differently. Palacios, 46 S.W.3d at 880. While a “fair                    defendants collectively shared the
summary” is something less than a full statement of the                        same duty to diagnose and treat
applicable standard of care and how it was breached, even a                    Kettle's condition “promptly” or
fair summary must set out what care was expected, but not                      “earlier” is also too vague and general
given. Id.                                                                     to satisfy Palacios.It could be stated
                                                                               that every physician has a general
Madias's report adequately set forth the standard of care. It                  duty to diagnose or treat medical
states that, in managing atrial fibrillation such as Gentry's,                 conditions timely but that truism does
antithrombotic therapy should not be discontinued unless                       not inform the physician-defendants
certain conditions are present. This is sufficient to put                      what the standard specifically required
Tawa on notice of the “specific conduct” that the Gentrys                      them to do. It is conclusory.
have called into question, and what he should have done
differently. Palacios, 46 S.W.3d at 879;e.g., Menefee v.          Id. This analysis is simply not relevant to the Gentrys' claims,
Ohman, 323 S.W.3d 509, 519 (Tex.App.-Fort Worth, 2010,            as it is clear when each action was taken that Madias's views
no pet.)(expert's statement that defendant-physician “owed        as a breach of the standard of care, i.e., discontinuation of
the patient in an acute care setting the duty to immediate        antithrombotic therapy and administration of fresh frozen
and sufficient medical response to her condition in order to      plasma and vitamin K.


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Tawa v. Gentry, Not Reported in S.W.3d (2013)
2013 WL 1694869

                                                                              management of Johnson utilizing a
We find the facts presented here to be more analogous                         combination of warfarin and aspirin.
to Springer v. Johnson, 280 S.W.3d 322, 334 (Tex.App.-
Amarillo 2008, no pet.). In Springer, the plaintiff was           *11 Id. at 331–32.The Springer court rejected the
admitted to the hospital for cardiac surgery and, prior          defendants' reliance on Kettle for the proposition that the
to that surgery, her attending physicians discontinued her       standard of care was not sufficiently articulated. Id. at
anticoagulant therapy. 280 S.W .3d at 325. Three days            333.The court pointed out that the report at issue “states
later, she was discharged without receiving a prescription or    the standard of care, the clinical indicators that should have
instructions to resume her anticoagulant therapy. Id. She then   prompted treatment (patient with newly implanted aortic
suffered a stroke. Id. Similar to Madias's report, the expert    mechanical prosthesis and history of atrial fibrillation), and
in Springer opined that she should have been prescribed          the treatment that should have been administered (warfarin
anticoagulation medication, and further that each doctor had     therapy with a prescribed low dose aspirin) to satisfy the
a duty to coordinate her care to ensure that she received the    duty of care.”Id. Here, Madias likewise states the clinical
proper medication, given the risk indicators:                    indicators (atrial fibrillation of uncertain time) and the
                                                                 treatment that should have been administered (continued
            [The] expert report indicates [plaintiff]            antithrombotic therapy).
            suffered from paroxysmal atrial
            fibrillation, an abnormal heart rhythm               Finally, we agree with the Gentrys that Tawa's assertion that
            alternating between a normal heart                   Madias's report does not differentiate between the standards
            rhythm, and she underwent a                          of care applicable to Tawa and Lal is not supported by
            combined coronary bypass graft and                   the contents of the actual report. While Madias states that
            aortic valve replacement while at                    the standards applicable to both Tawa and Lal are known
            Lubbock Heart Hospital. He opines                    and applicable to internists generally without regard to their
            that these two facts are clinical                    additional specialties, his report clearly articulates a separate
            indicators establishing a compelling                 standard for both Tawa and Lal individually, and then states
            and absolute need for anticoagulation                that they had an obligation to coordinate their treatment of
            therapy using warfarin because                       Gentry.
            (1) an aortic valve replacement
            significantly increased her risk of                  The trial court did not abuse its discretion in determining
            thromboembolism, i.e., clot formation                that Madias's report adequately articulated a standard of care
            in a blood vessel that breaks loose                  related to Tawa.
            and is carried by the blood stream
            until it eventually plugs another
            blood vessel, and (2) her paroxysmal                 2. Causation
            atrial fibrillation added to that risk.              Tawa next argues that Madias's report “fails entirely to
            [The expert] further opines that                     discuss a causal relationship between Dr. Tawa's conduct
            [plaintiff] should have been prescribed              and Mr. Gentry's embolic CVA.”Specifically, he argues that
            warfarin and aspirin. He states that                 “the report does not state or even suggest that Mr. Gentry
            Springer, [plaintiff]'s cardiac surgeon,             would not have suffered a stroke if he had remained on
            and Rizzo and Solis, her attending                   antithrombotic therapy.”Tawa cites several cases for the
            cardiologists, were under a duty to                  proposition that a report that only sets forth causation in a
            coordinate an appropriate plan for                   conclusory fashion is not sufficient. Tenet Hosp. LLC v. Love,
            their patient's care which would have                347 S.W.3d 743, 755 (Tex.App.-El Paso 2011, no pet.)(expert
            included coordinating care between                   opinion that if defendant hospital “had a pulmonologist
            themselves as well as employees and                  or critical care specialist on call and available to see and
            agents of Lubbock Heart Hospital. He                 treat this patient or had transferred this patient before her
            further opines they were also under                  condition worsened, [patient] would more likely than not
            a duty to supervise anticoagulation                  be alive today” was impermissibly conclusory); Costello v.
                                                                 Christus Santa Rosa Health Care Corp., 141 S.W.3d 245, 249
                                                                 (Tex.App.-San Antonio 2004, no pet.)(expert's mere assertion


               © 2015 Thomson Reuters. No claim to original U.S. Government Works.                                             8
Tawa v. Gentry, Not Reported in S.W.3d (2013)
2013 WL 1694869

that patient would have survived was conclusory when report       proximately caused of Gentry's stroke, and (4) why a kidney
did not explain causal relationship between patient's death and   biopsy was not indicated, given Gentry's symptoms. Contrary
alleged omissions by hospital, including whether treatment        to Tawa's assertions, Madias's report clearly states his opinion
would have or could have been effective).                         that the discontinuation of Coumadin and infusion of vitamin
                                                                  K and fresh frozen plasma was the most likely cause of
The Gentrys contend that Tawa's argument does not represent       Gentry's stroke. The cases Tawa cites are inapposite because
a fair reading of Madias's report. They assert that “when one     unlike the conclusory reports in those cases, Madias's report
views the report in total, it is clear that causation of Mr.      does “explain the basis of the expert's statements regarding
Gentry's injuries is sufficiently addressed and connects the      causation and link his conclusions to the facts.”Love, 347
actions and omissions of Dr. Tawa to those injuries.”             S.W.3d at 754.

Madias's report states that the care Gentry received at North     The trial court did not abuse its discretion in determining that
Cypress Medical Center by Tawa, Rowan, and Lal was                Madias's report adequately articulated a causal link between
“below the standard of ordinary care, and that it was a           Tawa's care and Gentry's stroke. Because we have concluded
proximate cause of his cerebrovascular accident (embolic          that Madias possessed the required qualifications to prepare
stroke) that resulted in hemiplegia with permanent and severe     an expert report opining on Tawa's care, and because we have
neurologic disability.”His report then goes on to explain the     concluded Madias's report meets the statutory requirements,
underlying medical basis for his opinion:                         we overrule appellants' first issue complaining that the trial
                                                                  court abused its discretion in failing to grant Tawa's motion
             *12 The cause of the CVA was                         to dismiss.
            acute cerebral ischemia with brain
            infarction within the right side of the
            brain that resulted from embolism of
            blood clots that originated in the left                                         ROWAN
            cardiac chambers (i.e., left atrium).
                                                                  In appellants' second issue, they argue that the trial court
            The consulting neurologist, the CT
                                                                  abused its discretion in failing to find Madias's report
            head, the Brain MRI, all support that
                                                                  deficient as it relates to Rowan (and to the vicarious liability
            cardiac embolism was the cause of the
                                                                  of Houston Interventional Cardiology for Rowan's care).
            patient's CVA. The relative normalcy
                                                                  Specifically, Rowan argues that Madias's report is deficient
            of the Duplex carotid evaluation is
                                                                  because (1) he is “not qualified to render an opinion regarding
            also consistent with embolism as the
                                                                  the standard of care applicable to nurse practitioners,” (2) it
            basis for the CVA. Because patients
                                                                  “fails to specify a standard of care applicable to Ms. Rowan,”
            with atrial fibrillation are at a much
                                                                  and (3) “fails entirely to dismiss the causal relationship
            higher risk for embolic stroke, it
                                                                  between Ms. Rowan's alleged breach and Mr. Gentry's
            is important for them to receive
                                                                  embolic CVA.”
            antithrombotic therapy unless there
            is active bleeding or the absence of
            clots has been confirmed. In this case,               A. Qualification
            the discontinuation of Coumadin and                   Rowan argues that Madias is not qualified to testify on the
            administration of FFP and vitamin                     standard of care for a nurse practitioner. She relies on HB
            K was the most likely cause of the                    Properties L.P. v. Cox, No, 02–09–00111–CR, 2009 WL
            formation of clots in Mr. Gentry's atria              3337190 (Tex.App.-Fort Worth Oct. 5, 2009, pet. denied)
            and his subsequent CVA.                               (mem.op.), which held that a doctor board certified in internal
                                                                  medicine was not qualified to render an opinion on the
Madias's report contains additional information about (1)
                                                                  standard of care applicable to nurses. In that case, although
the source of Gentry's blood clots leading to his CVA,
                                                                  the expert's CV reflected experience and expertise in internal
(2) the substantial risk and usual course of treatment for
                                                                  medicine and as a medical administrator, nothing in his report
patients with atrial fibrillation associated with substantial
                                                                  or CV demonstrated familiarity with the acceptable standard
hypertension and left atrial enlargement, (3) why the actions
                                                                  of care for nurses. HB Props. L.P., 2009 WL 3337190, at
of each defendant healthcare provider were negligent and


               © 2015 Thomson Reuters. No claim to original U.S. Government Works.                                             9
Tawa v. Gentry, Not Reported in S.W.3d (2013)
2013 WL 1694869

*4 (holding trial court abused its discretion in failing to                      claim, or that he has ever worked
grant motion to dismiss because “[t]hough [expert] is not                        with or supervised the specific types
automatically disqualified from giving an expert opinion                         of health care providers involved
regarding the accepted standard of care for HN's nurses                          in the claim, the physician is not
simply because he is an internal medicine physician instead                      qualified on the issue of whether the
of a nurse, we may not through inferences or otherwise fill                      health care provider departed from
in the gaps in his report where he fails to detail why or                        the accepted standards of care for
how he is qualified to opine about the applicable standard                       health care providers. However, if the
of care for HN's nurses.”). Rowan contends that Madias's                         physician states he is familiar with
report similarly fails to demonstrate a familiarity with the                     the standard of care for both nurses
standard of care applicable to a nurse practitioner working in                   and physicians, and for the prevention
cardiology.                                                                      and treatment of the illness, injury,
                                                                                 or condition involved in the claim,
 *13 The Texas Civil Practice and Remedies Code sets forth                       the physician is qualified on the issue
the criteria for an expert witness against a health care provider                of whether the health care provider
such as Rowan:                                                                   departed from the accepted standards
                                                                                 of care for health care providers.
  (b) In a suit involving a health care liability claim against                  Further, if a physician states he is
  a health care provider, a person may qualify as an expert                      familiar with the standard of care
  witness on the issue of whether the health care provider                       and responsibilities and requirements
  departed from accepted standards of care only if the person:                   for physician's assistants, and he has
                                                                                 worked with, interacted with, and
     (1) is practicing health care in a field of practice that
                                                                                 supervised physician's assistants, the
     involves the same type of care or treatment as that
                                                                                 physician is qualified on the issue
     delivered by the defendant health care provider, if the
                                                                                 of whether the health care provider
     defendant health care provider is an individual, at the
                                                                                 departed from the accepted standards
     time the testimony is given or was practicing that type
                                                                                 of care for health care providers.
     of health care at the time the claim arose;
                                                                    Baylor Med. Center at Waxahachie v. Wallace, 278
     (2) has knowledge of accepted standards of care for
                                                                    S.W.3d 552, 558 (Tex.App.Dallas 2009, no pet.)(citations
     health care providers for the diagnosis, care, or treatment
                                                                    omitted).Compare Simonson v. Keppard, 225 S.W.3d 868,
     of the illness, injury, or condition involved in the claim;
                                                                    873 (Tex.App.-Dallas 2007, no pet.)(physician not qualified
     and
                                                                    to opine on standard of care for nurse practitioner because
     (3) is qualified on the basis of training or experience        his report does not “state that he either has knowledge of
     to offer an expert opinion regarding those accepted            the standard of care applicable to nurse practitioners or that
     standards of health care.                                      he has ever worked with or supervised nurse practitioners)
                                                                    and Jones v. Ark–La–Tex Visiting Nurses, Inc., 128 S.W.3d
TEX. CIV. PRAC. & REM.CODE § 74.402(b).                             393, 396 (Tex.App.Texarkana 2004, no pet.)(physician not
                                                                    qualified to opine on standard of care for nurse because his
Applying this standard, the courts of appeals have                  “report fails to state [his] qualifications to give the standard
consistently required a physician-expert proffering an opinion      of care for nurses monitoring a patient in a home healthcare
on the applicable standard of care of a nonphysician to             setting”), with San Jacinto Methodist Hosp. v. Bennett, 256
affirmatively demonstrate experience and familiarity with the       S.W .3d 806, 813 (Tex.App.-Houston [14th Dist.] 2008, no
standard of care for the nonphysician's field.                      pet.)(physician qualified to opine on standard of care for nurse
                                                                    because his “report stated that he is familiar with the standard
             When a physician fails to state in                     of care for both nurses and physicians for the prevention and
             his expert report or affidavit that he                 treatment of decubitus ulcers”).
             has knowledge of the standard of care
             applicable to the specific types of                     *14 Madias's report does not profess any knowledge about
             health care providers involved in the                  the standard of care applicable to nurse practitioners. He


                © 2015 Thomson Reuters. No claim to original U.S. Government Works.                                             10
Tawa v. Gentry, Not Reported in S.W.3d (2013)
2013 WL 1694869

does not claim to have experience training or supervising
                                                                        Section 74.351 provides that, if a timely expert report is not
nurse practitioners or provide any other basis for the trial
                                                                        filed, upon motion, the court “shall... enter an order that: ...
court to conclude that he was familiar with such standard.
                                                                        awards to the affected physician or health care provider
In contending that Madias is qualified to opine about the
                                                                        reasonable attorney's fees and costs of court incurred by
standard of care applicable to Rowan, the Gentrys only point
                                                                        the physician or health care provider.” TEX. CIV. PRAC.
to evidence that Madias is “familiar with the management
                                                                        & REM.CODE § 74.351. This “automatic attorney's fees
of patients with medical conditions similar to Mr. Gentry,”
                                                                        sanction comes into play when a timely but deficient expert
and ask us to conclude that he “therefore would be familiar
                                                                        report has been filed.”Hightower v. Baylor Univ. Med.
with the standard of care as it relates to nurses managing
                                                                        Ctr., 348 S.W.3d 512, 522 (Tex.App.-Dallas 2011, pet.
such patients.”Neither the text of section 74.402 nor the cases
                                                                        denied). Thus, appellants Rowan and Houston Interventional
interpreting it allow us to make such an assumption.
                                                                        Cardiology are entitled to an award of reasonable attorneys'
                                                                        fees and costs incurred related to claims premised on care
Because nothing in Madias's report demonstrates that he
                                                                        provided by Rowan.
is familiar with the standard of care applicable to nurse
practitioners, we hold that the trial court abused its discretion
by denying Rowan's motion to dismiss (and Houston
Intervention Cardiology's motion to dismiss as it relates to                                   CONCLUSION
vicarious liability for Rowan's care of Gentry). We thus
sustain appellants' second issue.                                       We affirm the trial court's order denying appellants Tawa and
                                                                        Houston Interventional Cardiology's motion to dismiss claims
                                                                        related to Tawa's care of Gentry. We dismiss the Gentrys'
B. Attorneys' Fees                                                      claims against appellants Rowan and Houston Interventional
Rowan and Houston Intervention Cardiology request that                  Cardiology (only as to vicarious liability claims related to
we reverse the trial court's order denying their motion to              Rowan's care of Gentry). We remand to the trial court for an
dismiss the Gentrys' claims related to Rowan's care and                 award of reasonable attorneys' fees and costs to Rowan and
remand to the trial court with instructions to award to them            Houston Interventional Cardiology related to the dismissed
reasonable attorneys' fees and costs under section 74.351 of            claims and for further proceedings.
the Texas Civil Practice and Remedies Code. The Gentrys
argue that an award of attorneys' fees under section 74.351 is
not appropriate, even if Madias's report is deficient, because          All Citations
it is not so deficient that it should be considered “no report
                                                                        Not Reported in S.W.3d, 2013 WL 1694869
at all.”

End of Document                                                     © 2015 Thomson Reuters. No claim to original U.S. Government Works.




                © 2015 Thomson Reuters. No claim to original U.S. Government Works.                                                 11
Tovar v. Methodist Healthcare System of San Antonio, Ltd., L.L.P., 185 S.W.3d 65 (2005)




                                                                   [2]   Health
                     185 S.W.3d 65                                           Affidavits of merit or meritorious defense;
                Court of Appeals of Texas,                               expert affidavits
                      San Antonio.
                                                                         For an expert's report to constitute a “good-
  Marie TOVAR, Individually and as Representative                        faith effort” under the Medical Liability and
     of The Estate of Guadalupe M. Rodriguez,                            Insurance Improvement Act, the report must
                                                                         provide enough information to (1) inform the
 Guadalupe Palacios, and Gilda Sanchez, Appellants,
                                                                         defendant of the specific conduct the plaintiff has
                         v.
                                                                         called into question, and (2) provide a basis for
      METHODIST HEALTHCARE SYSTEM
                                                                         the trial court to conclude that the claims have
      OF SAN ANTONIO, LTD., L.L.P., d/b/a                                merit. Vernon's Ann.Texas Civ.St. art. 4590i, §
   Southwest Texas Methodist Hospital, Appellee.                         13.01(l),(r)(6)(Repealed).

       No. 04–05–00054–CV.            |   Nov. 16, 2005.                 6 Cases that cite this headnote

Synopsis
Background: Patient's estate brought medical malpractice           [3]   Health
action against hospital, alleging that the negligence of                     Affidavits of merit or meritorious defense;
hospital's nurses resulted in a delay in diagnosis that caused           expert affidavits
patient's condition to deteriorate and that the delay in                 In determining the adequacy of an expert
diagnosis delayed the discovery of a cerebral hemorrhage.                report under the Medical Liability and Insurance
The 285th Judicial District Court, Bexar County, Lori                    Improvement Act, trial court should look no
Massey, J., dismissed action, and estate appealed.                       further than the report itself, because all the
                                                                         information relevant to the inquiry is contained
                                                                         within the document's four corners. Vernon's
[Holding:] The Court of Appeals, Sandee Bryan Marion, J.,                Ann.Texas Civ.St. art. 4590i, § 13.01(l), (r)
held that doctor's expert report satisfied Medical Liability and         (6)(Repealed).
Insurance Improvement Act's requirements on standard of
                                                                         Cases that cite this headnote
care, breach of that standard, and causation.

                                                                   [4]   Health
Reversed and remanded.                                                       Affidavits of merit or meritorious defense;
                                                                         expert affidavits
                                                                         Although expert report under Medical Liability
 West Headnotes (12)                                                     and Insurance Improvement Act need not
                                                                         marshal all the plaintiff's proof, it must include
                                                                         the expert's opinion on each of the three elements
 [1]     Health                                                          that the Act identifies: standard of care, breach,
             Affidavits of merit or meritorious defense;                 and causal relationship. Vernon's Ann.Texas
         expert affidavits                                               Civ.St. art. 4590i, § 13.01(l), (r)(6)(Repealed).
         Medical malpractice plaintiffs must provide
         each defendant physician and health care                        6 Cases that cite this headnote
         provider an expert report with the expert's
         curriculum vitae, or voluntarily nonsuit the              [5]   Health
         action. Vernon's Ann.Texas Civ.St. art. 4590i, §                    Affidavits of merit or meritorious defense;
         13.01(d)(Repealed).                                             expert affidavits

         Cases that cite this headnote                                   Under Medical Liability and Insurance
                                                                         Improvement Act, expert report cannot merely



                © 2015 Thomson Reuters. No claim to original U.S. Government Works.                                            1
Tovar v. Methodist Healthcare System of San Antonio, Ltd., L.L.P., 185 S.W.3d 65 (2005)


        state the expert's conclusions about standard of             of standard of care with his conclusion that
        care, breach, and causal relationship; instead, the          patient's neurological condition would not have
        expert report must explain the basis of expert's             deteriorated, resulting in need for surgery.
        statements to link his conclusions to the facts.             Vernon's Ann.Texas Civ.St. art. 4590i, § 13.01(r)
        Vernon's Ann.Texas Civ.St. art. 4590i, § 13.01(r)            (6)(Repealed).
        (6)(Repealed).
                                                                     6 Cases that cite this headnote
        2 Cases that cite this headnote
                                                              [9]    Health
 [6]    Health                                                           Affidavits of merit or meritorious defense;
            Standard of Care                                         expert affidavits
        Health                                                       It is not enough that expert report under
            Hospitals in General                                     Medical Liability and Insurance Improvement
        The standard of care for a hospital or other                 Act provides insight about the plaintiff's claims.
        medical provider is what an ordinarily prudent               Vernon's Ann.Texas Civ.St. art. 4590i, § 13.01(r)
        hospital or other medical provider would do                  (6)(Repealed).
        under the same or similar circumstances.
                                                                     Cases that cite this headnote
        Cases that cite this headnote
                                                              [10]   Health
 [7]    Health                                                           Affidavits of merit or meritorious defense;
            Standard of Care                                         expert affidavits
        Health                                                       Medical Liability and Insurance Improvement
            Breach of Duty                                           Act requires only a fair summary of the expert's
                                                                     opinions, and although a fair summary is
        Identifying the standard of care is critical in
                                                                     something less than all the evidence necessary
        medical malpractice action because whether
                                                                     to establish causation at trial, a fair summary
        a defendant breached his or her duty to a
                                                                     must contain sufficiently specific information to
        patient cannot be determined absent specific
                                                                     demonstrate causation beyond mere conjecture
        information about what the defendant should
                                                                     in order to meet the Act's requirements.
        have done differently.
                                                                     Vernon's Ann.Texas Civ.St. art. 4590i, § 13.01(r)
        Cases that cite this headnote                                (6)(Repealed).

                                                                     3 Cases that cite this headnote
 [8]    Health
            Affidavits of merit or meritorious defense;
                                                              [11]   Health
        expert affidavits
                                                                         Affidavits of merit or meritorious defense;
        Doctor's expert report satisfied Medical Liability           expert affidavits
        and Insurance Improvement Act's requirements
                                                                     Under Medical Liability and Insurance
        on standard of care, breach of that standard, and
                                                                     Improvement Act, plaintiff need not present
        causation; doctor's expert report sufficiently set
                                                                     evidence in the expert report as if it were actually
        forth standard of care because doctor specifically
                                                                     litigating the merits. Vernon's Ann.Texas Civ.St.
        stated what should have been done for patient
                                                                     art. 4590i, § 13.01(r)(6)(Repealed).
        with acute neurological process, doctor's expert
        report also sufficiently set forth how standard              Cases that cite this headnote
        of care was breached because he specifically
        stated what nurses should have done, but did
        not do, and doctor's expert report linked his         [12]   Health
        conclusion regarding nurses' alleged breach


               © 2015 Thomson Reuters. No claim to original U.S. Government Works.                                          2
Tovar v. Methodist Healthcare System of San Antonio, Ltd., L.L.P., 185 S.W.3d 65 (2005)


             Affidavits of merit or meritorious defense;            Although she was alert and oriented at the time, she
         expert affidavits                                          complained of a headache and right-arm numbness. Ms.
         Under Medical Liability and Insurance                      Rodriguez was evaluated and an order admitting her to
         Improvement Act, expert report can be informal             the Neurological Care Unit was written at approximately
         in that the information in the report does not have        5:10 p.m. However, she was not admitted to the unit until
         to meet the same requirements as the evidence              approximately 8:00 p.m., allegedly because of a nursing
         offered in a summary-judgment proceeding or at             shortage. Over the next several hours, Ms. Rodriguez was
         trial. Vernon's Ann.Texas Civ.St. art. 4590i, §            seen by doctors who evaluated her condition, and nurses who
         13.01(r)(6)(Repealed).                                     documented her condition. At 9:30 p.m., a call placed to Dr.
                                                                    Chandrahasan was returned by Dr. Osonma, who ordered
         Cases that cite this headnote                              medication to treat Ms. Rodriguez's blood pressure and
                                                                    nausea. At 12:30 a.m. the next morning, the nursing personnel
                                                                    called Dr. Garrison and reported neurological changes and
                                                                    elevated blood pressure. Dr. Garrison ordered an emergency
Attorneys and Law Firms                                             CT scan, which revealed a massive occipital parietal temporal
                                                                    hemorrhage. At 3:45 a.m., Ms. Rodriguez underwent surgery,
 *66 Jeff Small, Law Office of Jeff Small, M. Stephen               following which she was kept on life-support until she was
Cichowski, Cichowski & Gonzalez, P.C., San Antonio, for             transferred to a hospice where she died on June 13, 2001.
appellants.
                                                                    After filing suit against the hospital and doctors, appellants
Lucretia R. Marmor, Ruth G. Malinas, Ball & Weed, P.C.,
                                                                    filed the expert report of Dr. Kenneth C. Fischer. The hospital
San Antonio, for appellee.
                                                                    moved to dismiss appellants' claims on the grounds that Dr.
Sitting: SARAH B. DUNCAN, Justice, KAREN ANGELINI,                  Fischer's report did not adequately address the elements of
Justice, SANDEE BRYAN MARION, Justice.                              standard of care, breach, and causation. After a hearing, the
                                                                    trial court granted the motion, and severed appellants' claims
                                                                    against the hospital from their claims against the doctors. This
                                                                    appeal ensued.
                          OPINION

Opinion by SANDEE BRYAN MARION, Justice.
                                                                              ADEQUACY OF EXPERT REPORT
This is an appeal from the trial court's dismissal of appellants'
medical malpractice case against appellee on the grounds that        [1] [2] Medical-malpractice plaintiffs must provide each
appellants' expert report did not satisfy the requirements of       defendant physician and health-care provider an expert report
the Medical Liability and Insurance Improvement Act (“the           with the expert's curriculum vitae, or voluntarily nonsuit the
Act”). In the underlying lawsuit, appellants sued three doctors     action. See TEX.REV.CIV. STAT. ART.. 4590i, § 13.01(d)
and Southwest *67 Methodist Hospital, alleging, in part,
                                                                    (Vernon Supp.2003); 1 American Transitional Care Ctrs.
that the hospital nurses' negligence resulted in a delay in
                                                                    of Tex., Inc. v. Palacios, 46 S.W.3d 873, 877 (Tex.2001).
diagnosis that caused Guadalupe M. Rodriguez's condition
                                                                    The expert report must provide “a fair summary of the
to deteriorate. Appellants contend the delay in diagnosis
                                                                    expert's opinions as of the date of the report regarding
delayed the discovery of a cerebral hemorrhage. According to
                                                                    applicable standards of care, the manner in which the care
appellants, if the hemorrhage had been discovered and treated
                                                                    rendered by the physician or health care provider failed
sooner, Ms. Rodriguez's neurological deterioration and death
                                                                    to meet the standards, and the causal relationship between
could have been averted. We reverse and remand.
                                                                    that failure and the injury, harm, or damages claimed.”
                                                                    TEX.REV.CIV. STAT. ART.. 4590i, § 13.01(r)(6). If a
                                                                    defendant moves to dismiss the plaintiff's case based upon
                      BACKGROUND                                    the report's inadequacy, the trial court must grant the motion
                                                                    “only if it appears to the court, after hearing, that the report
On June 7, 2001 at approximately 1:26 p.m., seventy-five-           does not represent a good faith effort to comply with the
year-old Guadalupe M. Rodriguez arrived at the hospital.            definition of an expert report in Subsection (r)(6) of this


                © 2015 Thomson Reuters. No claim to original U.S. Government Works.                                              3
Tovar v. Methodist Healthcare System of San Antonio, Ltd., L.L.P., 185 S.W.3d 65 (2005)


section.” Id. § 13.01(l ). To constitute a “good-faith effort,”                 obvious deterioration at that time, they
the report must provide enough information to (1) inform the                    meekly accepted inadequate responses
defendant of the specific conduct the plaintiff *68 has called                  of Dr. Garrison and Dr. Osonma with
into question, and (2) provide a basis for the trial court to                   no further calls to physicians until
conclude that the claims have merit. Palacios, 46 S.W.3d at                     12:30 a.m. when the patient was in
879.                                                                            extremis. The appropriate standard of
                                                                                care for nursing personnel treating a
1      Article 4590i was repealed by Act of June 2, 2003,                       patient with acute neurological process
       78th Leg., R.S., ch. 204, § 10.09, 2003 Tex. Gen. Laws                   is to promptly and expeditiously
       847, 884, and has been re-codified at TEX. CIV. PRAC.                    transfer the patient to the appropriate
       & REM.CODE ANN. § 74.351 (Vernon Supp.2004)                              setting and carefully inform the
       (effective Sept. 1, 2003). Because the underlying lawsuit                treating physicians of changes in
       was filed on August 11, 2003, all references in this                     the patient's clinical status so that
       opinion will be to former article 4590i.                                 appropriate care can be rendered.
 [3]    [4]    [5] A trial court should look no further than                    The nursing personnel ... failed to
the report itself, because all the information relevant to the                  perform these critical functions in
inquiry is contained within the document's four corners. Id. at                 their management of Ms. Rodriguez,
878. Although the report need not marshal all the plaintiff's                   thereby breaching the standard of care.
proof, it must include the expert's opinion on each of the
three elements that the Act identifies: standard of care, breach,   We conclude Dr. Fischer's report sufficiently sets forth
and causal relationship. Id. A report cannot merely state the       the standard of care because he specifically states what
expert's conclusions about these elements. Id. at 879. Instead,     should have been done for a patient “with acute neurological
“the expert must explain the basis of his statements to link his    process.” We also conclude Dr. Fischer's report sufficiently
conclusions to the facts.” Bowie Mem'l Hosp. v. Wright, 79          sets forth how the standard of care was breached because he
S.W.3d 48, 52 (Tex.2002).                                           specifically states what the nurses should have, but did not,
                                                                    do.


              STANDARD OF CARE AND
             BREACH OF THE STANDARD                                                        CAUSATION

 [6] [7] [8] The standard of care for a hospital or other            [9] To constitute a good-faith effort to establish the causal-
medical provider is what an ordinarily prudent hospital or          relationship element, the expert report must fulfill Palacios's
other medical provider would do under the same or similar           two-part test. See Wright, 79 S.W.3d at 52; Palacios, 46
circumstances. See Palacios, 46 S.W.3d at 880; see also             S.W.3d at 879. It is not enough that the expert report
Strom v. Mem'l Hermann Hosp. Sys., 110 S.W.3d 216, 222              “provided insight” about the plaintiff's claims. Wright, 79
(Tex.App.-Houston [1st Dist.] 2003, pet. denied). Identifying       S.W.3d at 52. Nor may liability in a medical malpractice
the standard of care is critical because whether a defendant        suit be made to turn upon speculation or conjecture. See
breached his or her duty to a patient cannot be determined          Hutchinson v. Montemayor, 144 S.W.3d 614, 618 (Tex.App.-
absent specific information about what the defendant should         San Antonio 2004, no pet.). Therefore, although a fair
have done differently. Palacios, 46 S.W.3d at 880.                  summary is something less than all the evidence necessary
                                                                    to establish causation at trial, a fair summary must contain
Dr. Fischer's report stated the following with regard to the        sufficiently specific information to demonstrate causation
standard of care and the nurses' alleged breach of the standard     beyond mere conjecture in order to *69 meet the Act's
of care:                                                            requirements and satisfy the Palacios test. See Wright, 79
                                                                    S.W.3d at 52.
            ... [T]he nursing personnel provided
            poor documentation of the clinical                      On causation, Dr. Fischer's report stated the following:
            status of Ms. Rodriguez between 5
            p.m. and 9 p.m. Despite the patient's



               © 2015 Thomson Reuters. No claim to original U.S. Government Works.                                             4
Tovar v. Methodist Healthcare System of San Antonio, Ltd., L.L.P., 185 S.W.3d 65 (2005)


                                                                  In Lopez, the plaintiffs relied on the following single sentence
  The results of the standard of care departures exercised        in the report to establish causation: “Additionally, it is the
  by Dr. Chandrahasan, Garrison, Osonma, and the nursing          aspiration of the bridge section which caused and precipitated
  personnel in the ER and the receiving floor caused              the medical circumstances leading to the patient's demise.”
  a substantial delay in the appropriate diagnosis and            131 S.W.3d at 60. A panel of this court concluded that this
  initiation of treatment for the cerebral hemorrhage             statement was conclusory, and did not constitute a good
  sustained by Ms. Rodriguez. This type of lesion harbored by     faith effort to comply with the statute's causation requirement
  Ms. Rodriguez requires prompt cessation of the Coumadin,        because the statement did not provide information linking
  an immediate brain CT scan, immediate institution of fresh      Montemayor's actions to Lopez's death. Id.
  frozen plasma to reverse the Coumadin, and obtaining
  neurological and neurosurgical consultation on a stat           In Costello, the expert report contained the following single
  basis. The failure of Dr. Chandrahasan to promptly              sentence on causation: “Dr. Schilling's report states, ‘If this
  have the patient transferred to the ICU from the ER             patient would have been appropriately triaged and evaluated,
  as well as his failure to convey the particulars of Ms.         then in all reasonable medical probability she would have
  Rodriguez' [sic] clinical situation to his on-call physician,   survived.’ *70 ” Costello, 141 S.W.3d at 249. A panel
  Dr. Osonma, delayed the addressing of the patient's clinical    of this court held that the expert's assertion that the patient
  deterioration. Similarly, the failure of Dr. Osonma and         would have survived was conclusory and we listed a variety
  Dr. Garrison to respond appropriately to the changes            of deficiencies in the report. Id. For example, the report
  conveyed to them by the nursing personnel also delayed          did not explain the causal connection between failure to
  realization of the appropriate diagnosis. Again, the failure    appropriately triage and evaluate and the patient's death;
  of the nursing personnel to insist upon prompt evaluation       offered no explanation of what medical information a more
  of the patient's changing clinical status further delayed       timely triage and evaluation would have revealed; did not
  diagnosis. Had the appropriate diagnosis been made              state what would have been done had Christus not failed to
  expeditiously in the afternoon hours, when it should have       act; did not state how Christus' failure to act was a substantial
  been, instead of 2 a.m. in the morning, when it was finally     factor in bringing about the patient's death and without which
  discovered, the hemorrhage would have been detected at          her death would not have occurred; and did not explain the
  a much earlier stage with the possibility of only medical       medical basis or reasoning for the conclusion that Lozano “in
  treatment required as opposed to the desperate and              all reasonable medical probability” would have survived. Id.
  unsuccessful surgery which transpired at 3:45 a.m. Within
  reasonable medical probability, the dramatic neurological        [10] Although our opinion in Costello listed these various
  deterioration and death of Ms. Rodriguez would have been        deficiencies, this list should not be construed as mandatory.
  averted. The failure of the doctors and nursing personnel to    As we stated in Costello, the Act requires only “a
  perform within appropriate medical and nursing standards        ‘fair summary’ ” of the expert's opinions. Id. Here, the
  unfortunately caused this untoward result. (Emphasis            expert report meets that requirement. Dr. Fischer links
  added.)                                                         his conclusion regarding the nurses' alleged breach of the
                                                                  standard of care with his conclusion that Ms. Rodriguez's
The hospital asserts Dr. Fischer's report contains no factual     neurological condition would not have deteriorated, resulting
statements or explanation supporting his conclusion that          in the need for surgery. Dr. Fischer states that if the nurses had
the nurses' conduct caused Ms. Rodriguez's death; does            “carefully inform[ed] the treating physicians of changes in
not identify what the nurses failed to communicate to the         the patient's clinical status ... [the] type of lesion harbored by
physicians between 9:30 p.m. and 12:30 a.m., and does             Ms. Rodriguez .... [should have resulted in] prompt cessation
not identify what information the doctors should have acted       of the Coumadin, an immediate brain CT scan, immediate
upon. The hospital argues Dr. Fischer's report is no more         institution of fresh frozen plasma to reverse the Coumadin,
adequate than the reports considered by this court in Lopez v.    and obtaining neurological and neurosurgical consultation
Montemayor, 131 S.W.3d 54 (Tex.App.-San Antonio 2003,             on a stat basis ... [then] ... [w]ithin reasonable medical
pet. denied) and Costello v. Christus Santa Rosa Health Care      probability, the dramatic neurological deterioration and death
Corp., 141 S.W.3d 245 (Tex.App.-San Antonio 2004, no              of Ms. Rodriguez would have been averted.” We conclude Dr.
pet.). We disagree.                                               Fischer's report satisfies the Act's requirement on causation.




               © 2015 Thomson Reuters. No claim to original U.S. Government Works.                                              5
Tovar v. Methodist Healthcare System of San Antonio, Ltd., L.L.P., 185 S.W.3d 65 (2005)


                                                                and represents a good-faith effort to provide a fair summary
                     CONCLUSION
                                                                of the statutory elements of standard of care, breach, and
 [11] [12] “[A] plaintiff need not present evidence in the causation. For these reasons, we reverse the trial court's order
report as if it were actually litigating the merits. The report of dismissal and remand the cause for further proceedings.
can be informal in that the information in the report does not
have to meet the same requirements as the evidence offered
in a summary-judgment proceeding or at trial.” Palacios,
                                                                All Citations
46 S.W.3d at 879. We conclude that Dr. Fischer's report
put the defendant on notice of the conduct complained of,       185 S.W.3d 65

End of Document                                             © 2015 Thomson Reuters. No claim to original U.S. Government Works.




               © 2015 Thomson Reuters. No claim to original U.S. Government Works.                                           6
American Transitional Care Centers of Texas, Inc. v. Palacios, 46 S.W.3d 873 (2001)
44 Tex. Sup. Ct. J. 720

                                                                       A trial court's determination about the adequacy
                                                                       of an expert report under the Medical Liability
                     46 S.W.3d 873
                                                                       and Insurance Improvement Act is reviewed
                 Supreme Court of Texas.
                                                                       under an abuse-of-discretion standard. Vernon's
           AMERICAN TRANSITIONAL CARE                                  Ann.Texas Civ.St. art. 4590i, § 13.01(l), (r)(6).
            CENTERS OF TEXAS, INC. d/b/a
                                                                       172 Cases that cite this headnote
        American Transitional Hospital, Petitioner,
                             v.
          Teofilo PALACIOS and Maria Palacios,                   [3]   Appeal and Error
                                                                          Costs and Allowances
          individually and a/n/f of Gloria Janeth
           Palacios and Rocio Daniela Palacios,                        Sanctions are generally reviewed under an
                                                                       abuse-of-discretion standard.
       minors, Maria Angelica Palacios, and Sentry
       Insurance, a mutual company, Respondents.                       68 Cases that cite this headnote

            No. 99–1311. | Argued Dec. 6,
         2000. | Decided May 10, 2001. |                         [4]   Health
           Rehearing Overruled June 28, 2001.                              Affidavits of merit or meritorious defense;
                                                                       expert affidavits
Medical malpractice action was brought against hospital                In determining the adequacy of an expert
to recover for injuries patient allegedly suffered in fall at          report under the Medical Liability and Insurance
hospital. The 280th District Court, Harris County, Tony                Improvement Act, the trial court should look
Lindsay, J., dismissed case for failure to file expert report,         no further than the report. Vernon's Ann.Texas
as required by Medical Liability and Insurance Improvement             Civ.St. art. 4590i, § 13.01(l).
Act. Patient appealed. The Houston Court of Appeals, First
District, reversed and remanded, 4 S.W.3d 857. On petition             9 Cases that cite this headnote
for review, the Supreme Court, Hankinson, J., held that: (1)
trial court's determination about adequacy of expert report
                                                                 [5]   Health
under Act is reviewed under abuse-of-discretion standard, and
                                                                           Affidavits of merit or meritorious defense;
(2) expert's report did not provide fair summary of standard
                                                                       expert affidavits
of care and how it was breached.
                                                                       For an expert's report to satisfy the requirements
Court of Appeals' judgment reversed.                                   of the Medical Liability and Insurance
                                                                       Improvement Act, the report need not marshal
                                                                       all the plaintiff's proof, but it must include
                                                                       the expert's opinion on each of the elements
 West Headnotes (12)                                                   identified in the statute. Vernon's Ann.Texas
                                                                       Civ.St. art. 4590i, § 13.01(l).

 [1]     Health                                                        138 Cases that cite this headnote
             Necessity of Expert Testimony
         Expert testimony is necessary in medical-
                                                                 [6]   Health
         malpractice cases. Vernon's Ann.Texas Civ.St.
                                                                           Affidavits of merit or meritorious defense;
         art. 4590i, § 13.01(d).
                                                                       expert affidavits
         11 Cases that cite this headnote                              For an expert's report to constitute a good-faith
                                                                       effort under the Medical Liability and Insurance
                                                                       Improvement Act, the report must provide
 [2]     Appeal and Error
                                                                       enough information to fulfill two purposes: first,
            Rulings on Motions Relating to Pleadings
                                                                       the report must inform the defendant of the
                                                                       specific conduct the plaintiff has called into


               © 2015 Thomson Reuters. No claim to original U.S. Government Works.                                          1
American Transitional Care Centers of Texas, Inc. v. Palacios, 46 S.W.3d 873 (2001)
44 Tex. Sup. Ct. J. 720

        question; second, and equally important, the                 same requirements as the evidence offered in
        report must provide a basis for the trial court to           a summary-judgment proceeding or at trial.
        conclude that the claims have merit. Vernon's                Vernon's Ann.Texas Civ.St. art. 4590i, §
        Ann.Texas Civ.St. art. 4590i, § 13.01(l), (r)(6).            13.01(l), (r)(6).

        485 Cases that cite this headnote                            85 Cases that cite this headnote


 [7]    Health                                                [11]   Health
            Affidavits of merit or meritorious defense;                  Affidavits of merit or meritorious defense;
        expert affidavits                                            expert affidavits
        A report that merely states the expert's                     Conclusory statement in expert's report that
        conclusions about the standard of care, breach,              defendant hospital did not use precautions to
        and causation does not constitute a good-faith               prevent patient's fall was not good-faith effort
        effort under the Medical Liability and Insurance             to provide fair summary of standard of care
        Improvement Act. Vernon's Ann.Texas Civ.St.                  and how it was breached, and thus, dismissal of
        art. 4590i, § 13.01(l), (r)(6).                              medical malpractice action was warranted under
                                                                     Medical Liability and Insurance Improvement
        262 Cases that cite this headnote                            Act; it could not be determined from that
                                                                     statement if expert believed that standard of care
 [8]    Health                                                       required hospital to have monitored patient more
            Affidavits of merit or meritorious defense;              closely, restrained him more securely, or done
        expert affidavits                                            something else entirely. Vernon's Ann.Texas
                                                                     Civ.St. art. 4590i, § 13.01(l), (r)(6).
        An expert's report that omits any of the statutory
        requirements does not constitute a good-faith                141 Cases that cite this headnote
        effort under the Medical Liability and Insurance
        Improvement Act. Vernon's Ann.Texas Civ.St.
        art. 4590i, § 13.01(l), (r)(6).                       [12]   Health
                                                                         Affidavits of merit or meritorious defense;
        46 Cases that cite this headnote                             expert affidavits
                                                                     An expert's report does not constitute a good-
 [9]    Health                                                       faith effort under the Medical Liability and
            Affidavits of merit or meritorious defense;              Insurance Improvement Act if it simply states
        expert affidavits                                            that he or she knows the standard of care and
                                                                     that it was or was not met. Vernon's Ann.Texas
        To avoid dismissal due to inadequacy of an
                                                                     Civ.St. art. 4590i, § 13.01(l), (r)(6).
        expert's report under the Medical Liability and
        Insurance Improvement Act, a plaintiff need                  111 Cases that cite this headnote
        not present evidence in the report as if it
        were actually litigating the merits. Vernon's
        Ann.Texas Civ.St. art. 4590i, § 13.01(l), (r)(6).

        36 Cases that cite this headnote                     Attorneys and Law Firms

                                                              *875 Matthew T. McCracken, John C. Marshall, James C.
 [10]   Health                                               Marrow, Dee L. Dawson, Marshall & McCraken, Houston,
            Affidavits of merit or meritorious defense;      for Petitioner.
        expert affidavits
                                                             D. John Leger, Leger & Coplen, Levon G. Hovnatanian,
        The expert's report in a medical malpractice
                                                             Martin Disiere & Jefferson, Houston, Mickey C. Shyrock,
        action can be informal in that the information
                                                             Law Office of Mickey C. Shyrock, Athens, for Respondents.
        in the report does not have to meet the


               © 2015 Thomson Reuters. No claim to original U.S. Government Works.                                        2
American Transitional Care Centers of Texas, Inc. v. Palacios, 46 S.W.3d 873 (2001)
44 Tex. Sup. Ct. J. 720

                                                                     Palacios and his family sued American Transitional and
Opinion                                                              the treating doctors, respectively, for negligently failing to
                                                                     prevent the fall and negligently treating him after the fall.
Justice HANKINSON delivered the opinion of the Court.
                                                                     After ninety days passed from the date the Palacioses filed
In this medical-malpractice case we determine the standards          suit, American Transitional, along with the other defendants,
for reviewing an expert report under section 13.01 of                moved to require the Palacioses to file a $7,500 cost bond,
the Medical Liability and Insurance Improvement Act.                 as required by section 13.01(b) of the Medical Liability
TEX.REV.CIV. STAT. ANN.. art. 4590i, § 13.01. The trial              and Insurance Improvement Act. See TEX.REV.CIV. STAT.
court dismissed the Palacioses' medical-malpractice claims           ANN.. art. 4590i, § 13.01(b) (authorizing a trial court
against American Transitional Care Centers, Inc., d/b/a              to order a plaintiff to file a $7,500 cost bond for each
American Transitional Hospital, because it determined that           defendant physician or health-care provider if the plaintiff
the Palacioses' expert report did not show a good-faith effort       has not complied with the expert-report or $5,000 cost-bond
to provide a fair summary of the expert's opinions about             requirement in section 13.01(a)); id. § 13.01(a) (requiring the
the standard of care, breach, and causation, as required by          plaintiff to file either an expert report or a $5,000 cost bond
section 13.01. See id. § 13.01(d), (e), (l), (r)(6). The court of    for each defendant physician or health-care provider within
appeals, after evaluating the trial court's decision as it would a   ninety days of filing suit). The trial court granted the motion,
summary-judgment decision, reversed, holding that the report         and the Palacioses filed a cost bond for each defendant.
did meet the statutory requirements. 4 S.W.3d 857, 860.
                                                                     After 180 days passed from the date the Palacioses filed
We hold that a trial court's decision to dismiss a case              suit, American Transitional moved to dismiss the case against
under section 13.01(e) is reviewed for abuse of discretion.          it because the Palacioses did not file an expert report and
We further hold that to constitute a good-faith effort to            curriculum vitae, or nonsuit the claims against American
provide a fair summary of an expert's opinions under section         Transitional, as section 13.01(d) of the Act requires. Id. §
13.01(l ), an expert report must discuss the standard of care,       13.01(d), (e). The Palacioses moved for an extension of time
breach, and causation with sufficient specificity to inform the      to file the report, which the trial court granted. See id. §
defendant of the conduct the plaintiff has called into question      13.01(f), (g). The Palacioses then filed a report prepared by
and to provide a basis for the trial court to conclude that          Dr. Catherine F. Bontke, who treated Palacios at the first
the claims have merit. In this case, the trial court did not         rehabilitation hospital. American Transitional again moved
abuse its discretion in concluding that the challenged report        to dismiss under section 13.01(e), claiming that the report
does not meet the statutory requirements and in dismissing           did not satisfy the statutory requirements. See id. § 13.01(l),
with prejudice the claims against American Transitional.             (r)(6). The trial court granted the motion, dismissed with
Accordingly, we reverse the court of appeals' judgment and           prejudice the claims against American Transitional, and
dismiss with prejudice the Palacioses' claims.                       severed those claims to make the judgment against American
                                                                     Transitional final. See id. § 13.01(e).
Teofilo Palacios suffered brain damage and other severe
injuries following a two-story fall at work. After almost            The Palacioses appealed, and with one justice dissenting, the
a year in an intensive rehabilitation program, he was                court of appeals reversed and remanded after using summary-
transferred to American Transitional Hospital for further            judgment review standards to evaluate the sufficiency of
rehabilitation. Although Palacios at that time was able to           the expert report. 4 S.W.3d at 860. After indulging every
 *876 communicate with others and respond to simple                  reasonable inference in the Palacioses' favor and eliminating
commands, he required assistance with most daily tasks. In           any deference to the trial court's decision, the court of appeals
addition, due to the severity of his brain damage, Palacios'         concluded that the trial court erred in dismissing the case
physicians prescribed bed restraints for him. Nevertheless,          because the Palacioses made a good-faith effort to provide
while a patient at American Transitional, Palacios fell from         a report that met the requirements of section 13.01(r)(6).
his bed and required additional medical care for his injuries.       Id. at 862–63. American Transitional petitioned for review
His family claims that this fall caused him to sustain further       challenging both the standard of review applied by the court
brain injury, which impaired his ability to communicate with         of appeals and the sufficiency of the Palacioses' report.
others and to assist them in his care.




                © 2015 Thomson Reuters. No claim to original U.S. Government Works.                                                3
American Transitional Care Centers of Texas, Inc. v. Palacios, 46 S.W.3d 873 (2001)
44 Tex. Sup. Ct. J. 720

 [1] Texas courts have long recognized the necessity of              requirements of subsections 13.01(l) and (r)(6) is a question
expert testimony in medical-malpractice cases. E.g., Hart            of law. They suggest that a trial court's decision on the
v. Van Zandt, 399 S.W.2d 791, 792 (Tex.1965); Bowles v.              adequacy of a report should be reviewed as a court would
Bourdon, 148 Tex. 1, 219 S.W.2d 779, 782 (1949). “There              review a summary-judgment decision: that is, by indulging
can be no other guide [than expert testimony], and where want        every reasonable inference and resolving any doubts in the
of skill and attention is not thus shown by expert evidence          nonmovant's favor, and eliminating any deference to the trial
applied to the facts, there is no evidence of it proper to be        court's decision. We agree with American Transitional.
submitted to the jury.” Hart, 399 S.W.2d at 792. Because
expert testimony is crucial to a medical-malpractice case,            [2] [3] The plain language of section 13.01 leads to the
 *877 knowing what specific conduct the plaintiff's experts          conclusion that abuse of discretion is the proper standard.
have called into question is critical to both the defendant's        First, the statute directs the trial court to grant a motion
ability to prepare for trial and the trial court's ability to        challenging the adequacy of an expert report if it “appears
evaluate the viability of the plaintiff's claims. This makes         to the court” that the plaintiffs did not make a good-faith
eliciting an expert's opinions early in the litigation an obvious    effort to meet the statutory requirements. Id. § 13.01(l).
place to start in attempting to reduce frivolous lawsuits. See       This language plainly vests the trial court with discretion.
HOUSE COMM. ON CIV. PRAC., BILL ANALYSIS, Tex.                       See TEX. GOV'T CODE § 312.002. (“[W]ords shall be
H.B. 971, 74th Leg., R.S. (1995).                                    given their ordinary meaning.”). Second, the statute states
                                                                     that dismissal under section 13.01(e) is a sanction: If the
Accordingly, in section 13.01, the Legislature requires              requirements of section 13.01(d) are not met, the court must
medical-malpractice plaintiffs, within 180 days of filing suit,      “enter an order as sanctions” dismissing the case and granting
either to provide each defendant physician and health-care           the defendant its costs and attorneys' fees. TEX.REV.CIV.
provider with an expert report and the expert's curriculum           STAT. ANN .. art. 4590i, § 13.01(e). Sanctions are generally
vitae, or to nonsuit the claims. TEX.REV.CIV. STAT. ANN..            reviewed under an abuse-of-discretion standard. Koslow's v.
art. 4590i, § 13.01(d). If the plaintiff fails within the time       Mackie, 796 S.W.2d 700, 704 (Tex.1990). And we presume
allowed either to provide the expert reports and curriculum          the Legislature was aware of the standard of review ordinarily
vitae, or to nonsuit the case, the trial court must sanction         applied in sanctions cases when it explicitly identified a
the plaintiff by dismissing the case with prejudice, awarding        court's dismissal under section 13.01(e) as a sanction. *878
costs and attorney's fees to the defendant, and ordering the         See McBride v. Clayton, 140 Tex. 71, 166 S.W.2d 125, 128
forfeiture of any applicable cost bond necessary to pay that         (1943) ( “All statutes are presumed to be enacted by the
award. Id. § 13.01(e). If the plaintiff does timely file a report,   legislature with full knowledge of the existing condition of
the defendant may move to challenge the adequacy of the              the law and with reference to it.”).
report, and the trial court must grant the motion if “it appears
to the court ... that the report does not represent a good faith     Nevertheless, the court of appeals concluded that the usual
effort to comply with the definition of an expert report.” Id.       standard of review for sanctions should not apply here. The
§ 13.01(l). The statute defines an expert report as “a written       court reasoned that the provisions of article 4590i at issue
report by an expert that provides a fair summary of the expert's     here were intended to discourage frivolous lawsuits, while
opinions ... regarding applicable standards of care, the manner      sanctions, in contrast, are a response to litigation misconduct.
in which the care rendered ... failed to meet the standards,         We disagree with this distinction.
and the causal relationship between that failure and the injury,
harm, or damages claimed.” Id. § 13.01(r)(6). If a trial court       Filing a frivolous lawsuit can be litigation misconduct subject
determines that an expert report does not meet these statutory       to sanction. See TEX.R. CIV. P. 13 (imposing sanctions for
requirements and the time for filing a report has passed,            filing groundless motions, pleadings, or other papers in bad
it must then dismiss with prejudice the claims against the           faith or for the purposes of harassment). And one purpose
defendant who has challenged the report. Id. § 13.01(e).             of the expert-report requirement is to deter frivolous claims.
                                                                     HOUSE COMM. ON CIV. PRAC., BILL ANALYSIS, Tex.
American Transitional contends that a trial court's                  H.B. 971, 74th Leg., R.S. (1995). The Legislature has
determination about the adequacy of an expert report                 determined that failing to timely file an expert report, or
should be reviewed under an abuse-of-discretion standard.            filing a report that does not evidence a good-faith effort to
The Palacioses respond that whether a report meets the               comply with the definition of an expert report, means that



                © 2015 Thomson Reuters. No claim to original U.S. Government Works.                                               4
American Transitional Care Centers of Texas, Inc. v. Palacios, 46 S.W.3d 873 (2001)
44 Tex. Sup. Ct. J. 720

the claim is either frivolous, or at best has been brought            on each of those elements, the report must provide enough
prematurely. See id. This is exactly the type of conduct for          information to fulfill two purposes if it is to constitute a good-
which sanctions are appropriate. See TransAmerican Natural            faith effort. First, the report must inform the defendant of the
Gas Corp. v. Powell, 811 S.W.2d 913, 918 (Tex.1991)                   specific conduct the plaintiff has called into question. Second,
(holding that “death-penalty” sanctions are appropriate when          and equally important, the report must provide a basis for
a party's discovery abuse justifies a presumption that its            the trial court to conclude that the claims have merit. See 4
claims lack merit). For these reasons, we hold that an abuse-         S.W.3d at 865 (Taft, J. dissenting); Wood v. Tice, 988 S.W.2d
of-discretion standard of review applies to a trial court's           829, 830 (Tex.App.—San Antonio 1999, pet. denied) (noting
decision to dismiss a case under section 13.01(e).                    that one of the purposes of article 4590i is to deter frivolous
                                                                      claims).
 [4] We next consider whether the trial court abused
its discretion in dismissing the Palacioses' claims against            [7] [8] [9] [10] A report that merely states the expert's
American Transitional. The parties disagree about how                 conclusions about the standard of care, breach, and causation
to determine a report's adequacy under section 13.01(l ).             does not fulfill these two purposes. Nor can a report meet
American Transitional argues that the trial court must engage         these purposes and thus constitute a good-faith effort if it
in a two-step process: (1) the trial court must determine             omits any of the statutory requirements. See, e.g., Hart, 16
whether the report constitutes a fair summary of the expert's         S.W.3d at 877 (holding that a report was inadequate because
opinions, TEX.REV.CIV. STAT. ANN.. art. 4590i, § 13.01(r)             it stated that the patient had a heart attack and the doctor
(6); and (2) if the trial court concludes that the report is not      breached the standard of care, without describing the standard
a fair summary, it must then look outside the report at the           of care); Wood, 988 S.W.2d at 831–32 (holding that an expert
plaintiff's conduct to determine whether the plaintiff made           report did not meet the statutory requirements because it did
a good-faith effort to meet the statutory requirements, id.           not name the defendants, state how the defendants breached
§ 13.01(l ). The Palacioses, on the other hand, argue that            the standard of care, demonstrate causation and damages, or
the statute requires only one inquiry—whether the report              include a curriculum vitae). However, to avoid dismissal, a
evidences a good-faith effort to provide a fair summary of the        plaintiff need not present evidence in the report as if it were
expert's opinions. According to the Palacioses, the trial court       actually litigating the merits. The report can be informal in
does not have to make any factual determinations because the          that the information in the report does not have to meet the
only relevant information is in the report itself. We agree with      same requirements as the evidence offered in a summary-
the Palacioses that a trial court should look no further than the     judgment proceeding or at trial. See, e.g., TEX.R. CIV. P.
report in conducting a section 13.01(l ) inquiry.                     166(f) (setting out the requirements for the form and content
                                                                      of affidavits offered as summary-judgment proof); TEX.R.
The issue for the trial court is whether “the report” represents      EVID. 802 (stating that most hearsay is inadmissible).
a good-faith effort to comply with the statutory definition of
an expert report. Id. § 13.01(l ). That definition requires, as        [11] American Transitional contends that Dr. Bontke's
to each defendant, a fair summary of the expert's opinions            report does not meet the statutory requirements because
about the applicable standard of care, the manner in which the        it does not represent a good-faith effort to provide a fair
care failed to meet that standard, and the causal relationship        summary of her opinion on the standard of care and how
between that failure and the claimed injury. Id. § 13.01(r)           American Transitional breached that standard. The Palacioses
(6). Because the statute focuses on what the report discusses,        respond that the following parts of Dr. Bontke's report
the only information relevant to the inquiry is within the four       establish these elements:
corners of the document.
                                                                        Based on the available documentation I was able to
 [5] [6] Under subsections 13.01(l ) and (r)(6), the expert             conclude that: Mr. Palacios fell from his bed on 5/14/94
report must represent only a good-faith effort to provide a             while trying to get out of it on his own. The nursing notes
fair summary of the expert's opinions. A report need not                document that he was observed by nursing on the hour
marshal all the plaintiff's proof, but it must include the expert's     for two hours prior to the fall. In addition, ten minutes
opinion on each of the elements identified in the statute. See          before the fall, the nursing notes documents [sic] the his
 *879 Hart v. Wright, 16 S.W.3d 872, 877 (Tex.App.—Fort                 wrist/vest restraints were on. Yet, at the time of his fall
Worth 2000, pet. denied). In setting out the expert's opinions          he was found on the floor with his vest/wrist restraints on
                                                                        but not tied to the bed. It is unclear how he could untie


                © 2015 Thomson Reuters. No claim to original U.S. Government Works.                                                  5
American Transitional Care Centers of Texas, Inc. v. Palacios, 46 S.W.3d 873 (2001)
44 Tex. Sup. Ct. J. 720

                                                                         statement of a standard of care. Neither the trial court nor
  all four of the restraints from the bedframe in under ten
                                                                         American Transitional would be able to determine from this
  minutes. Obviously, Mr. Palacios had a habit of trying to
                                                                         conclusory statement if Dr. Bontke believes that the standard
  undo his restraints and precautions to prevent his fall were
                                                                         of care required American Transitional to have monitored
  not properly utilized.
                                                                         Palacios more closely, restrained him more securely, or done
  ....                                                                   something else entirely. “It is not sufficient for an expert
                                                                         to simply state that he or she knows the standard of care
  All in all, Mr. Palacios sustained a second brain injury with          and concludes it was [or was not] met.” See Chopra v.
  a left subdural hematoma while he was an inpatient at [the             Hawryluk, 892 S.W.2d 229, 233 (Tex.App.—El Paso 1995,
  Hospital].... [I]n my opinion, the medical care rendered to            writ denied). Knowing only that the expert believes that
  Mr. Palacios at the time of his second brain injury was                American Transitional did not take precautions to prevent
  below the accepted and expected standard of care which                 the fall might be useful if American Transitional had an
  he could expect to receive. Moreover, this [sic] below the             absolute duty to prevent falls from its hospital beds. But as
  accepted standard of care extends to both the cause of the             a general rule, res ipsa loquitur does not apply in medical-
  second injury as well as the subsequent treatment....                  malpractice cases. TEX.REV.CIV. STAT. ANN.. art. 4590i,
                                                                         § 7.01 (limiting res ipsa loquitur in medical malpractice to
The Palacioses rely mostly on one sentence in the report
                                                                         the limited classes of cases to which it applied as of August
to establish the standard of care: “Mr. Palacios had a habit
                                                                         29, 1977); Haddock v. Arnspiger, 793 S.W.2d 948, 951
of *880 trying to undo his restraints and precautions to
                                                                         (Tex.1990).
prevent his fall were not properly utilized.” They argue that
the inference can be made from that sentence, along with the
                                                                         When the expert report's conclusory statements do not put
statement that “[i]t is unclear how he could untie all four of the
                                                                         the defendant or the trial court on notice of the conduct
restraints from the bed frame in under ten minutes,” that Dr.
                                                                         complained of, section 13.01(l ) affords the trial court no
Bontke believes American Transitional's staff should have
                                                                         discretion but to conclude, as the trial court did here, that
tied the restraints to the bed more securely.
                                                                         the report does not represent a good-faith effort to provide
                                                                         a fair summary of the standard of care and how it was
 [12] The standard of care for a hospital is what an
                                                                         breached, as section 13.01(r)(6) requires. And because the
ordinarily prudent hospital would do under the same or
                                                                         statutory 180 day time period had passed when the trial court
similar circumstances. See Birchfield v. Texarkana Mem'l
                                                                         here made that determination, section 13.01(e) required the
Hosp., 747 S.W.2d 361, 366 (Tex.1987). Identifying the
                                                                         court to dismiss with prejudice the Palacioses' claims against
standard of care is critical: Whether a defendant breached his
                                                                         American Transitional. See TEX.REV.CIV. STAT. ANN..
or her duty to a patient cannot be determined absent specific
                                                                         art. 4590i, § 13.01(e). Accordingly, we reverse the court of
information about what the defendant should have done
                                                                         appeals' judgment and dismiss with prejudice the Palacioses'
differently. “While a ‘fair summary’ is something less than a
                                                                         claims.
full statement of the applicable standard of care and how it
was breached, even a fair summary must set out what care was
expected, but not given.” 4 S.W.3d at 865 (Taft, J. dissenting).         All Citations
The statement the Palacioses rely upon—that precautions
to prevent Palacios' fall were not properly used—is not a                46 S.W.3d 873, 44 Tex. Sup. Ct. J. 720


End of Document                                                      © 2015 Thomson Reuters. No claim to original U.S. Government Works.




                © 2015 Thomson Reuters. No claim to original U.S. Government Works.                                                   6
§ 217.11. Standards of Nursing Practice, 22 TX ADC § 217.11




  Texas Administrative Code
    Title 22. Examining Boards
      Part 11. Texas Board of Nursing
         Chapter 217. Licensure, Peer Assistance and Practice

                                                       22 TAC § 217.11
                                               Tex. Admin. Code tit. 22, § 217.11

                                            § 217.11. Standards of Nursing Practice

                                                           Currentness


The Texas Board of Nursing is responsible for regulating the practice of nursing within the State of Texas for Vocational Nurses,
Registered Nurses, and Registered Nurses with advanced practice authorization. The standards of practice establish a minimum
acceptable level of nursing practice in any setting for each level of nursing licensure or advanced practice authorization. Failure
to meet these standards may result in action against the nurse's license even if no actual patient injury resulted.


(1) Standards Applicable to All Nurses. All vocational nurses, registered nurses and registered nurses with advanced practice
authorization shall:


     (A) Know and conform to the Texas Nursing Practice Act and the board's rules and regulations as well as all federal, state,
     or local laws, rules or regulations affecting the nurse's current area of nursing practice;


     (B) Implement measures to promote a safe environment for clients and others;


     (C) Know the rationale for and the effects of medications and treatments and shall correctly administer the same;


     (D) Accurately and completely report and document:


          (i) the client's status including signs and symptoms;


          (ii) nursing care rendered;


          (iii) physician, dentist or podiatrist orders;


          (iv) administration of medications and treatments;


          (v) client response(s); and


          (vi) contacts with other health care team members concerning significant events regarding client's status;



               © 2015 Thomson Reuters. No claim to original U.S. Government Works.                                              1
§ 217.11. Standards of Nursing Practice, 22 TX ADC § 217.11




    (E) Respect the client's right to privacy by protecting confidential information unless required or allowed by law to disclose
    the information;


    (F) Promote and participate in education and counseling to a client(s) and, where applicable, the family/significant other(s)
    based on health needs;


    (G) Obtain instruction and supervision as necessary when implementing nursing procedures or practices;


    (H) Make a reasonable effort to obtain orientation/training for competency when encountering new equipment and
    technology or unfamiliar care situations;


    (I) Notify the appropriate supervisor when leaving a nursing assignment;


    (J) Know, recognize, and maintain professional boundaries of the nurse-client relationship;


    (K) Comply with mandatory reporting requirements of Texas Occupations Code Chapter 301 (Nursing Practice Act),
    Subchapter I, which include reporting a nurse:


         (i) who violates the Nursing Practice Act or a board rule and contributed to the death or serious injury of a patient;


         (ii) whose conduct causes a person to suspect that the nurse's practice is impaired by chemical dependency or drug
         or alcohol abuse;


         (iii) whose actions constitute abuse, exploitation, fraud, or a violation of professional boundaries; or


         (iv) whose actions indicate that the nurse lacks knowledge, skill, judgment, or conscientiousness to such an extent that
         the nurse's continued practice of nursing could reasonably be expected to pose a risk of harm to a patient or another
         person, regardless of whether the conduct consists of a single incident or a pattern of behavior.


         (v) except for minor incidents (Texas Occupations Code §§ 301.401(2), 301.419, 22 TAC § 217.16), peer review
         (Texas Occupations Code §§ 301.403, 303.007, 22 TAC § 217.19), or peer assistance if no practice violation (Texas
         Occupations Code § 301.410) as stated in the Nursing Practice Act and Board rules (22 TAC Chapter 217).


    (L) Provide, without discrimination, nursing services regardless of the age, disability, economic status, gender, national
    origin, race, religion, health problems, or sexual orientation of the client served;


    (M) Institute appropriate nursing interventions that might be required to stabilize a client's condition and/or prevent
    complications;



              © 2015 Thomson Reuters. No claim to original U.S. Government Works.                                              2
§ 217.11. Standards of Nursing Practice, 22 TX ADC § 217.11




     (N) Clarify any order or treatment regimen that the nurse has reason to believe is inaccurate, non-efficacious or
     contraindicated by consulting with the appropriate licensed practitioner and notifying the ordering practitioner when the
     nurse makes the decision not to administer the medication or treatment;


     (O) Implement measures to prevent exposure to infectious pathogens and communicable conditions;


     (P) Collaborate with the client, members of the health care team and, when appropriate, the client's significant other(s)
     in the interest of the client's health care;


     (Q) Consult with, utilize, and make referrals to appropriate community agencies and health care resources to provide
     continuity of care;


     (R) Be responsible for one's own continuing competence in nursing practice and individual professional growth;


     (S) Make assignments to others that take into consideration client safety and that are commensurate with the educational
     preparation, experience, knowledge, and physical and emotional ability of the person to whom the assignments are made;


     (T) Accept only those nursing assignments that take into consideration client safety and that are commensurate with the
     nurse's educational preparation, experience, knowledge, and physical and emotional ability;


     (U) Supervise nursing care provided by others for whom the nurse is professionally responsible; and


     (V) Ensure the verification of current Texas licensure or other Compact State licensure privilege and credentials of
     personnel for whom the nurse is administratively responsible, when acting in the role of nurse administrator.


(2) Standards Specific to Vocational Nurses. The licensed vocational nurse practice is a directed scope of nursing practice under
the supervision of a registered nurse, advanced practice registered nurse, physician's assistant, physician, podiatrist, or dentist.
Supervision is the process of directing, guiding, and influencing the outcome of an individual's performance of an activity. The
licensed vocational nurse shall assist in the determination of predictable healthcare needs of clients within healthcare settings
and:


     (A) Shall utilize a systematic approach to provide individualized, goal-directed nursing care by:


          (i) collecting data and performing focused nursing assessments;


          (ii) participating in the planning of nursing care needs for clients;


          (iii) participating in the development and modification of the comprehensive nursing care plan for assigned clients;



                © 2015 Thomson Reuters. No claim to original U.S. Government Works.                                              3
§ 217.11. Standards of Nursing Practice, 22 TX ADC § 217.11




          (iv) implementing appropriate aspects of care within the LVN's scope of practice; and


          (v) assisting in the evaluation of the client's responses to nursing interventions and the identification of client needs;


     (B) Shall assign specific tasks, activities and functions to unlicensed personnel commensurate with the educational
     preparation, experience, knowledge, and physical and emotional ability of the person to whom the assignments are made
     and shall maintain appropriate supervision of unlicensed personnel.


     (C) May perform other acts that require education and training as prescribed by board rules and policies, commensurate
     with the licensed vocational nurse's experience, continuing education, and demonstrated licensed vocational nurse
     competencies.


(3) Standards Specific to Registered Nurses. The registered nurse shall assist in the determination of healthcare needs of clients
and shall:


     (A) Utilize a systematic approach to provide individualized, goal-directed, nursing care by:


          (i) performing comprehensive nursing assessments regarding the health status of the client;


          (ii) making nursing diagnoses that serve as the basis for the strategy of care;


          (iii) developing a plan of care based on the assessment and nursing diagnosis;


          (iv) implementing nursing care; and


          (v) evaluating the client's responses to nursing interventions;


     (B) Delegate tasks to unlicensed personnel in compliance with Chapter 224 of this title, relating to clients with acute
     conditions or in acute are environments, and Chapter 225 of this title, relating to independent living environments for
     clients with stable and predictable conditions.


(4) Standards Specific to Registered Nurses with Advanced Practice Authorization. Standards for a specific role and specialty
of advanced practice nurse supersede standards for registered nurses where conflict between the standards, if any, exist. In
addition to paragraphs (1) and (3) of this subsection, a registered nurse who holds authorization to practice as an advanced
practice nurse (APN) shall:


     (A) Practice in an advanced nursing practice role and specialty in accordance with authorization granted under Board Rule
     Chapter 221 of this title (relating to practicing in an APN role; 22 TAC Chapter 221) and standards set out in that chapter.



               © 2015 Thomson Reuters. No claim to original U.S. Government Works.                                               4
§ 217.11. Standards of Nursing Practice, 22 TX ADC § 217.11




    (B) Prescribe medications in accordance with prescriptive authority granted under Board Rule Chapter 222 of this title
    (relating to APNs prescribing; 22 TAC Chapter 222) and standards set out in that chapter and in compliance with state and
    federal laws and regulations relating to prescription of dangerous drugs and controlled substances.


Credits
Source: The provisions of this § 217.11 adopted to be effective September 28, 2004, 29 TexReg 9192; amended to be effective
November 15, 2007, 32 TexReg 8165.


Current through 40 Tex.Reg. No. 3730, dated June 12, 2015, as effective on or before June 19, 2015

22 TAC § 217.11, 22 TX ADC § 217.11

End of Document                                                  © 2015 Thomson Reuters. No claim to original U.S. Government Works.




              © 2015 Thomson Reuters. No claim to original U.S. Government Works.                                                 5
§ 74.351. Expert Report, TX CIV PRAC & REM § 74.351




  Vernon's Texas Statutes and Codes Annotated
    Civil Practice and Remedies Code (Refs & Annos)
      Title 4. Liability in Tort
         Chapter 74. Medical Liability (Refs & Annos)
           Subchapter H. Procedural Provisions (Refs & Annos)

                                      V.T.C.A., Civil Practice & Remedies Code § 74.351

                                                      § 74.351. Expert Report

                                                   Effective: September 1, 2013
                                                           Currentness


(a) In a health care liability claim, a claimant shall, not later than the 120th day after the date each defendant's original answer
is filed, serve on that party or the party's attorney one or more expert reports, with a curriculum vitae of each expert listed in the
report for each physician or health care provider against whom a liability claim is asserted. The date for serving the report may
be extended by written agreement of the affected parties. Each defendant physician or health care provider whose conduct is
implicated in a report must file and serve any objection to the sufficiency of the report not later than the later of the 21st day after
the date the report is served or the 21st day after the date the defendant's answer is filed, failing which all objections are waived.


(b) If, as to a defendant physician or health care provider, an expert report has not been served within the period specified
by Subsection (a), the court, on the motion of the affected physician or health care provider, shall, subject to Subsection (c),
enter an order that:


  (1) awards to the affected physician or health care provider reasonable attorney's fees and costs of court incurred by the
  physician or health care provider; and


  (2) dismisses the claim with respect to the physician or health care provider, with prejudice to the refiling of the claim.


(c) If an expert report has not been served within the period specified by Subsection (a) because elements of the report are found
deficient, the court may grant one 30-day extension to the claimant in order to cure the deficiency. If the claimant does not
receive notice of the court's ruling granting the extension until after the 120-day deadline has passed, then the 30-day extension
shall run from the date the plaintiff first received the notice.


(d) to (h) [Subsections (d)-(h) reserved]


(i) Notwithstanding any other provision of this section, a claimant may satisfy any requirement of this section for serving an
expert report by serving reports of separate experts regarding different physicians or health care providers or regarding different
issues arising from the conduct of a physician or health care provider, such as issues of liability and causation. Nothing in
this section shall be construed to mean that a single expert must address all liability and causation issues with respect to all
physicians or health care providers or with respect to both liability and causation issues for a physician or health care provider.




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§ 74.351. Expert Report, TX CIV PRAC & REM § 74.351




(j) Nothing in this section shall be construed to require the serving of an expert report regarding any issue other than an issue
relating to liability or causation.


(k) Subject to Subsection (t), an expert report served under this section:


  (1) is not admissible in evidence by any party;


  (2) shall not be used in a deposition, trial, or other proceeding; and


  (3) shall not be referred to by any party during the course of the action for any purpose.


(l) A court shall grant a motion challenging the adequacy of an expert report only if it appears to the court, after hearing, that
the report does not represent an objective good faith effort to comply with the definition of an expert report in Subsection (r)(6).


(m) to (q) [Subsections (m)-(q) reserved]


(r) In this section:


  (1) “Affected parties” means the claimant and the physician or health care provider who are directly affected by an act or
  agreement required or permitted by this section and does not include other parties to an action who are not directly affected
  by that particular act or agreement.


  (2) “Claim” means a health care liability claim.


  (3) [reserved]


  (4) “Defendant” means a physician or health care provider against whom a health care liability claim is asserted. The term
  includes a third-party defendant, cross-defendant, or counterdefendant.


  (5) “Expert” means:


     (A) with respect to a person giving opinion testimony regarding whether a physician departed from accepted standards of
     medical care, an expert qualified to testify under the requirements of Section 74.401;


     (B) with respect to a person giving opinion testimony regarding whether a health care provider departed from accepted
     standards of health care, an expert qualified to testify under the requirements of Section 74.402;




                 © 2015 Thomson Reuters. No claim to original U.S. Government Works.                                             2
§ 74.351. Expert Report, TX CIV PRAC & REM § 74.351




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


     (D) with respect to a person giving opinion testimony about the causal relationship between the injury, harm, or damages
     claimed and the alleged departure from the applicable standard of care for a dentist, a dentist or physician who is otherwise
     qualified to render opinions on such causal relationship under the Texas Rules of Evidence; or


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


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


(s) Until a claimant has served the expert report and curriculum vitae as required by Subsection (a), all discovery in a health
care liability claim is stayed except for the acquisition by the claimant of information, including medical or hospital records or
other documents or tangible things, related to the patient's health care through:


  (1) written discovery as defined in Rule 192.7, Texas Rules of Civil Procedure;


  (2) depositions on written questions under Rule 200, Texas Rules of Civil Procedure; and


  (3) discovery from nonparties under Rule 205, Texas Rules of Civil Procedure.


(t) If an expert report is used by the claimant in the course of the action for any purpose other than to meet the service requirement
of Subsection (a), the restrictions imposed by Subsection (k) on use of the expert report by any party are waived.


(u) Notwithstanding any other provision of this section, after a claim is filed all claimants, collectively, may take not more than
two depositions before the expert report is served as required by Subsection (a).


Credits
Added by Acts 2003, 78th Leg., ch. 204, § 10.01, eff. Sept. 1, 2003. Amended by Acts 2005, 79th Leg., ch. 635, § 1, eff. Sept.
1, 2005; Acts 2013, 83rd Leg., ch. 870 (H.B. 658), § 2, eff. Sept. 1, 2013.



Notes of Decisions (1880)

V. T. C. A., Civil Practice & Remedies Code § 74.351, TX CIV PRAC & REM § 74.351



                © 2015 Thomson Reuters. No claim to original U.S. Government Works.                                                3
§ 74.351. Expert Report, TX CIV PRAC & REM § 74.351


Current through Chapters effective immediately through Chapter 46 of the 2015 Regular Session of the 84th Legislature

End of Document                                                 © 2015 Thomson Reuters. No claim to original U.S. Government Works.




              © 2015 Thomson Reuters. No claim to original U.S. Government Works.                                                4
§ 74.402. Qualifications of Expert Witness in Suit Against..., TX CIV PRAC & REM...




  Vernon's Texas Statutes and Codes Annotated
    Civil Practice and Remedies Code (Refs & Annos)
      Title 4. Liability in Tort
         Chapter 74. Medical Liability (Refs & Annos)
           Subchapter I. Expert Witnesses (Refs & Annos)

                                    V.T.C.A., Civil Practice & Remedies Code § 74.402

                    § 74.402. Qualifications of Expert Witness in Suit Against Health Care Provider

                                                Effective: September 1, 2003
                                                         Currentness


(a) For purposes of this section, “practicing health care” includes:


  (1) training health care providers in the same field as the defendant health care provider at an accredited educational
  institution; or


  (2) serving as a consulting health care provider and being licensed, certified, or registered in the same field as the defendant
  health care provider.


(b) In a suit involving a health care liability claim against a health care provider, 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;


  (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.


(c) In determining whether a witness is qualified on the basis of training or experience, the court shall consider whether, at the
time the claim arose or at the time the testimony is given, the witness:


  (1) is certified by a licensing agency of one or more states of the United 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


  (2) is actively practicing health care in rendering health care services relevant to the claim.



               © 2015 Thomson Reuters. No claim to original U.S. Government Works.                                             1
§ 74.402. Qualifications of Expert Witness in Suit Against..., TX CIV PRAC & REM...




(d) The court shall apply the criteria specified in Subsections (a), (b), and (c) in determining whether an expert is qualified to
offer expert testimony on the issue of whether the defendant health care provider departed from accepted standards of health
care but may depart from those criteria if, under the circumstances, the court determines that there is good reason to admit the
expert's testimony. The court shall state on the record the reason for admitting the testimony if the court departs from the criteria.


(e) This section does not prevent a health care provider who is a defendant, or an employee of the defendant health care provider,
from qualifying as an expert.


(f) A pretrial objection to the qualifications of a witness under this section must be made not later than the later of the 21st day
after the date the objecting party receives a copy of the witness's curriculum vitae or the 21st day after the date of the witness's
deposition. If circumstances arise after the date on which the objection must be made that could not have been reasonably
anticipated by a party before that date and that the party believes in good faith provide a basis for an objection to a witness's
qualifications, and if an objection was not made previously, this subsection does not prevent the party from making an objection
as soon as practicable under the circumstances. The court shall conduct a hearing to determine whether the witness is qualified
as soon as practicable after the filing of an objection and, if possible, before trial. If the objecting party is unable to object in time
for the hearing to be conducted before the trial, the hearing shall be conducted outside the presence of the jury. This subsection
does not prevent a party from examining or cross-examining a witness at trial about the witness's qualifications.


Credits
Added by Acts 2003, 78th Leg., ch. 204, § 10.01, eff. Sept. 1, 2003.



Notes of Decisions (82)

V. T. C. A., Civil Practice & Remedies Code § 74.402, TX CIV PRAC & REM § 74.402
Current through Chapters effective immediately through Chapter 46 of the 2015 Regular Session of the 84th Legislature

End of Document                                                         © 2015 Thomson Reuters. No claim to original U.S. Government Works.




                © 2015 Thomson Reuters. No claim to original U.S. Government Works.                                                      2
