                        COURT OF APPEALS
                         SECOND DISTRICT OF TEXAS
                               FORT WORTH

                             NO. 02-10-00334-CV


TTHR LIMITED PARTNERSHIP                                            APPELLANT
D/B/A PRESBYTERIAN HOSPITAL
OF DENTON

                                       V.

CLAUDIA MORENO,                                                      APPELLEE
INDIVIDUALLY AND AS NEXT
FRIEND OF FREDDY CORONADO,
A MINOR


                                    ----------

          FROM THE 362ND DISTRICT COURT OF DENTON COUNTY

                                    ----------

             MEMORANDUM OPINION ON REHEARING1
                                  ----------
      We have considered Appellant‘s motion for partial rehearing. We deny the

motion but withdraw our opinion of March 17, 2011, and we substitute the

following to clarify, as requested, what the trial court should consider granting

Moreno an extension to do.
      1
       See Tex. R. App. P. 47.4.
      TTHR Limited Partnership d/b/a Presbyterian Hospital of Denton

(Presbyterian) appeals the trial court‘s order on its motion to dismiss.

Presbyterian moved to dismiss based on the alleged failure of Appellee Claudia

Moreno, individually and as next friend of Freddy Coronado, a minor, to comply

with chapter 74 of the civil practice and remedies code. We will affirm in part and

reverse and remand in part.

                               Background Facts

      Moreno was admitted to Presbyterian in January 2007, complaining of pain

and swelling associated with her pregnancy with twin boys.               Moreno‘s

obstetrician, Dr. Marc Wilson, was out of town. Nurses in the labor and delivery

department had difficulty monitoring Moreno and paged the physician on call, Dr.

Lori Gore-Green, at 8:00 p.m. on January 21.        Dr. Gore-Green did not see

Moreno until 8:03 a.m. on January 22. Dr. Wilson arrived and also saw Moreno

that morning.

      Dr. Wilson induced labor, and the first twin was delivered without a

problem. Dr. Wilson then used forceps and a ―vacuum extraction‖ device to

assist with the delivery of the second twin, Freddy. Freddy suffered blood loss

and a ―hypoxic ischemic insult‖ that allegedly caused damage to his nervous

system and his kidneys.

      Moreno filed suit against Presbyterian, Dr. Gore-Green, and Dr. Wilson

alleging that their negligence caused Freddy‘s injuries. In an attempt to comply

with chapter 74 of the civil practice and remedies code, Moreno filed an expert

                                    2
report by Dr. Samuel Tyuluman with her petition. See Tex. Civ. Prac. & Rem.

Code Ann. § 74.351 (West Supp. 2010).              Presbyterian objected to Dr.

Tyuluman‘s report on the grounds that, as an obstetrician and gynecologist, Dr.

Tyuluman is not qualified to opine on kidney damage and neurological injuries.

Moreno then filed an expert report by Dr. Billy Arant, who is board certified in

pediatric nephrology. Presbyterian objected to this report as well and filed a

motion to dismiss for failure to comply with chapter 74. Presbyterian argued that

Dr. Arant‘s report failed to address causation and that Moreno still had not

provided a report addressing the neurological injuries.

      A hearing was held on Presbyterian‘s motion, at which the trial court found

that the reports were sufficient as to the kidney damage claims, but insufficient as

to the neurological damage claims. The trial court granted a thirty-day extension

―to make a causal link for the neurological damage.‖

      Moreno then filed a third expert report by Dr. John Seals, a neurologist.

Presbyterian objected to Dr. Seals‘s report, arguing it failed to address causation,

and it moved again to dismiss the claims against it. A hearing was held and the

court denied Presbyterian‘s motion. Presbyterian appeals.




                                     3
                                Standard of Review

      We review a trial court‘s denial of a motion to dismiss for an abuse of

discretion.   Jernigan v. Langley, 195 S.W.3d 91, 93 (Tex. 2006); Maris v.

Hendricks, 262 S.W.3d 379, 383 (Tex. App.—Fort Worth 2008, pet. denied); Ctr.

for Neurological Disorders, P.A. v. George, 261 S.W.3d 285, 290–91 (Tex.

App.—Fort Worth 2008, pet. denied). To determine whether a trial court abused

its discretion, we must decide whether the trial court acted without reference to

any guiding rules or principles; in other words, we must decide whether the act

was arbitrary or unreasonable.       Downer v. Aquamarine Operators, Inc., 701

S.W.2d 238, 241–42 (Tex. 1985), cert. denied, 476 U.S. 1159 (1986). Merely

because a trial court may decide a matter within its discretion in a different

manner than an appellate court would in a similar circumstance, does not

demonstrate that an abuse of discretion has occurred. Id. But a trial court has

no discretion in determining what the law is or in applying the law to the facts,

and thus ―a clear failure by the trial court to analyze or apply the law correctly will

constitute an abuse of discretion.‖ Walker v. Packer, 827 S.W.2d 833, 840 (Tex.

1992) (orig. proceeding); Ehrlich v. Miles, 144 S.W.3d 620, 624 (Tex. App.—Fort

Worth 2004, pet. denied).

                  The Chapter 74 Expert Report Requirement

      The purpose of the expert report requirement is to inform the defendant of

the specific conduct the plaintiff has called into question and to provide a basis

for the trial court to conclude that the claims have merit. Bowie Mem’l Hosp. v.

                                      4
Wright, 79 S.W.3d 48, 52 (Tex. 2002) (citing Am. Transitional Care Ctrs. of Tex.,

Inc. v. Palacios, 46 S.W.3d 873, 879 (Tex. 2001)). An expert report ―need not

marshal all the plaintiff‘s proof.‖ Palacios, 46 S.W.3d at 878 (construing former

Texas Revised Civil Statute art. 4590i, § 13.01). Additionally, 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.‖ Id. at 879.A defendant may meet

the requirements of chapter 74 through multiple reports. Tex. Civ. Prac. & Rem.

Code Ann. § 74.351(i).      A single report need not ―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.‖ Id. But read together, the reports must provide a ―fair summary‖ of the

experts‘ opinions regarding the ―applicable standards of care, the manner in

which the care rendered by the physician or health care provider failed to meet

the standards, and the causal relationship between that failure and the injury,

harm, or damages claimed.‖ Id. § 74.351 (r)(6).

      If the defendant files a motion challenging the adequacy of the expert

report, the court shall grant the motion ―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.‖ Id. § 74.351(l). An expert report is

defined as a report that ―provides a fair summary of the expert‘s opinions . . .

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

                                     5
causal relationship between that failure and the injury, harm, or damages

claimed.‖ Id. § 74.351(r)(6). The trial court may grant one thirty-day extension to

cure a deficiency in the expert report. Id. § 74.351(c).

                                    Discussion

      Moreno sued Presbyterian for failing to provide adequate training to

employees, adequately-trained personnel, adequate policies and procedures,

and adequate supervision of employees. She brought claims for negligence as

well as vicarious liability for the negligent actions of the nurses and the doctors.

For each of those claims, Moreno was required to submit expert reports that set

forth the standard of care, the breach of that standard, and the causal connection

between the breach and the damages suffered. Id. § 74.351(r)(6).

      1. The direct liability claims

      Dr. Tyuluman‘s report stated that the standard of care for a hospital is to

―have properly trained nursing staff, appropriate policies and procedures and to

make sure the nurses follow them, including a chain of command policy.‖ The

only reference by Dr. Tyuluman to a breach of the standards set forth in his

report was to summarily allege that the hospital and nurses violated each of

those standards.

      Neither Dr. Arant nor Dr. Seals attempted to describe any standard or

breach by the hospital. Instead their reports were specifically directed to fulfilling

the requirement of showing a causal connection between the failure of the health

care providers to meet the standards of care and the injury, harm, or damages

                                      6
claimed. Dr. Arant opined that the proximate cause of Freddy‘s kidney injuries

was asphyxia prior to birth. His report contains no opinion concerning how the

actions of the hospital caused asphyxia prior to birth. Dr. Seals‘s report states

that the damage to Freddy‘s brain was the result of ―an Hypoxic-Ischemic

process which occurred during the labor and delivery process.‖ Once again, the

doctor‘s report is completely devoid of any opinion as to how the hospital violated

a standard of care that caused this brain injury. Nowhere in any of the reports

does an expert provide insight on Presbyterian‘s staff training, its policies or

procedures, or what its ―chain of command‖ policy is.

      Section 74.351(r)(6) of the civil practice and remedies code specifically

requires an expert report to include a fair summary of the manner in which care

rendered by the health care provider failed to meet the standards of care. Id.

Considering all the reports together, they still do not inform the hospital of what

specific conduct Moreno is calling into question. This deficiency fails to provide a

basis for the trial court to assess whether the claims have merit. See Shaw v.

BMW Healthcare, Inc., 100 S.W.3d 8, 12 (Tex. App.—Tyler 2002, pet. denied)

(―To constitute a good-faith effort, the report must inform the defendant of the

specific conduct the plaintiff has called into question and provide a basis for the

trial court to determine that the claims have merit.‖); RGV Healthcare Associates,

Inc. v. Estevis, 294 S.W.3d 264, 270–71 (Tex. App.—Corpus Christi 2009, pet.

denied) (holding that an expert report was deficient because it ―did not speak as

to how RGV Healthcare‘s direct conduct, such as the implementation of

                                     7
procedures, policies, or rules that could have ensured vigilant care, deviated from

the applicable standard of care‖).        These reports merely provide an expert

conclusion about a breach by the hospital and therefore do not constitute a good

faith effort. See Palacios, 46 S.W.3d at 880 (holding that an expert report‘s

conclusory statements ―do not put the defendant or the trial court on notice of the

conduct complained of‖ and does not represent a good faith effort). The expert

reports were therefore deficient as to the direct liability claims against

Presbyterian, and the trial court abused its discretion by not finding them to be

so. See Estorque v. Schafer, 302 S.W.3d 19, 25 (Tex. App.—Fort Worth 2009,

no pet.) (noting that a report does not comply with statute if it omits the statutorily

required discussion of the standards of care, breach, or causation). We affirm

Presbyterian‘s issue as to those claims.

      2. The vicarious liability claims for the nurses’ alleged negligence

      Dr. Tyuluman‘s report stated,

      The standard of care for nurses is to adequately monitor the patient
      and to keep the physician informed of the patient‘s condition. If the
      physician doesn‘t respond to notification of inability to monitor the
      patient, then the standard of care requires the nurse to invoke the
      chain of command. Further, if a nurse observes a physician
      misusing forceps and/or a vacuum extractor, the nurse likewise has
      to invoke the chain of command. According to the chart, this was
      not done.

      However, he fails to state how the nurses violated any of those standards.

An expert report ―must inform the defendant of the specific conduct the plaintiff

has called into question.‖ Palacios, 46 S.W.3d at 879. Dr. Tyuluman‘s report



                                      8
does not discuss what a nurse should do if monitoring the patient is impossible.

It does not explain what the ―chain of command‖ is or how and when a nurse

should invoke it. It does not opine on the proper length of time a nurse should

wait for a physician before invoking the chain of command or whether the amount

of time Moreno‘s nurses waited, if they did, fell below the standard of care. It

also does not state that the nurses did, in fact, observe a physician misusing

forceps or a vacuum extractor, or if they did, how and when they should have

initiated the chain of command. Dr. Tyuluman‘s report does not fairly describe

what acts he thinks are negligent, nor does it ―provide a basis for the trial court to

conclude that the claims have merit.‖ Id. Neither of the other expert reports

attempt to address the standard of care or breach by the nurses. Further, neither

Dr. Arant‘s nor Dr. Seals‘s reports describe any causal relationship between any

action or inaction of the nurses and the injuries complained of. We therefore hold

that the trial court abused its discretion by finding the reports sufficient as to

these claims. See Davisson v. Nicholson, 310 S.W.3d 543, 559 (Tex. App.—Fort

Worth 2010, no pet.) (holding that reports that failed to fault defendant for

plaintiff‘s injuries were inadequate). We sustain Presbyterian‘s issue as to these

claims.

      3. The vicarious liability claims for the doctors’ alleged negligence

      Dr. Tyuluman‘s report states that the standard of care for an obstetrician is

―to carefully monitor the patient and develop a plan for ultimate delivery;‖ ―to

obtain regular non-stress tests and biophysical profiles of the patient;‖ ―to come

                                      9
and evaluate the mother and fetus, especially when called by the nursing staff;‖

―to make sure the patient is adequately monitored and if that is not done or

cannot be done, then to proceed with a different plan;‖ and when it was

discovered that the second twin was in distress, ―to quickly deliver the second

baby.‖ He states that the doctor should have ―avoided‖ use of forceps and the

vacuum extractor, and that the doctors should have decided to perform a

Cesarean section when they realized they could not monitor the babies and

again when the second twin went into distress. Dr. Tyuluman also states that

because Moreno was of ―advanced maternal age,‖ the doctors should have

obtained ―regular non-stress tests and biophysical profiles‖ and that the doctors‘

failure to do this fell below the standard of care.      While Dr. Tyuluman was

unqualified to testify as to the causal link between the delivery and Freddy‘s

kidney and neurological injuries, Dr. Arant and Dr. Seals are qualified and did

opine on the causal connection.

      Taken together, the expert reports set out the standard of care, breach,

and causal relationship for the vicarious liability claims for the doctors‘ alleged

negligence. They therefore provide enough information to fulfill the two purposes

of the expert report—to inform the defendant of the specific conduct the plaintiff

has called into question, and to provide a basis for the trial court to conclude that

the claims have merit. See id. The trial court did not abuse its discretion in

refusing to dismiss these claims. We overrule Presbyterian‘s issue as to these

claims.

                                     10
                       Chapter 74’s Thirty-Day Extension

      If an expert report has not been served, chapter 74 requires the dismissal

of the plaintiff‘s claims. Tex. Civ. Prac. & Rem. Code Ann. § 74.351(b). It further

provides that if a report is considered not to have been served ―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.‖ Id. § 74.651(c).

      Moreno already received one extension.         However, that extension was

only to cure the deficiency ―regarding the causal relationship between the failure

to meet applicable standards of care of the hospital and/or nurses and Freddy

Coronado‘s alleged neurological injury.‖ The trial court specifically directed what

deficiency should be addressed. It otherwise found the expert reports sufficient.

Moreno therefore had no cause to amend the expert reports in any other regard. 2

See Leland v. Brandal, 257 S.W.3d 204, 207 (Tex. 2008) (―The statute does not

      2
        But see Women’s Clinic of South Tex. v. Alonzo, No. 13-10-00159-CV,
2011 WL 1106698, at *3, *6 (Tex. App.—Corpus Christi Mar. 24, 2011, no pet.)
(mem. op.) (refusing to remand for consideration of a thirty-day extension
because plaintiff already took advantage of an extension). In Alonzo, the trial
court‘s order directed Alonzo ―to cure the report‘s deficiency‖ and ―to produce a
report that attempts to cure the deficiencies in [the] current expert report.‖ Id. at
*1. Because the defendant had claimed there were a number of deficiencies,
Alonzo moved the court to specify what deficiencies she was to correct. Id. The
trial court did not so specify, and Alonzo attempted to correct only one of the
purported deficiencies. The appeals court noted that by virtue of the defendant‘s
objections and motion to dismiss, Alonzo ―was on notice of the potential
deficiencies in her report and acted at her own risk in failing to remedy those
alleged deficiencies . . . .‖ Id. at *3. In Alonzo, the trial court arguably found
more than one element deficient. In this case, the trial court specifically noted in
its order what it found deficient, and Moreno was only ordered to cure the
specified deficiency.


                                     11
allow for an extension unless, and until, elements of a report are ‗found

deficient.‘‖). Moreno attempted to cure the deficiency as directed by the court by

filing the report by Dr. Seals, and we hold that Dr. Seals‘s report adequately

summarized the causal relationship between events at delivery and Freddy‘s

neurological injuries.3 What we have not found sufficient is the description of the

hospital‘s standard of care, its breach of that standard, and the breach of the

nursing standard of care by the nurses. Because the trial court did not find the

reports deficient on those issues, the trial court did not determine whether

Moreno should be granted an extension to cure those deficiencies or if it should

dismiss the claims against the hospital as well as the vicarious liability claims for

the nurses‘ alleged negligence.

      Contrary to Presbyterian‘s assertion in its motion for rehearing, this court is

not allowing Moreno a second extension. Rather, we remand the case so that

the trial court has the opportunity to determine whether Moreno should be

granted a thirty-day extension to cure what we have held to be deficient. See

Leland, 257 S.W.3d at 207 (noting that every court of appeals that has

addressed a deficient report has remanded the case to the trial court for the trial

court to determine whether to grant an extension); see also Gates v. Altaras, No.

10-09-00236-CV, 2010 WL 965960, at *3 (Tex. App.—Waco Mar. 10, 2010, no

pet.) (remanding the case to the trial court to consider an extension despite the

      3
        We also agree with the trial court that Dr. Arant‘s report satisfactorily
states the causal relationship between the delivery and Freddy‘s kidney injuries.


                                     12
fact that the parties previously agreed to one extension in the trial court because

the report was not found to be deficient until the appeal). Specifically, the trial

court must determine whether to afford Moreno the opportunity to serve an

expert report which sufficiently (1) sets forth the standard of care for the hospital

and describes the manner in which the hospital failed to meet that standard; and

(2) describes the manner in which the nurses breached the standard of care that

Dr. Tyuluman described as it pertains to them. See Tex. Civ. Prac. & Rem. Code

Ann. § 74.351(r)(6) (requiring an expert report to ―provide[] a fair summary of the

expert‘s opinions . . . 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‖); Ctr. For Neurological Disorders, P.A. v. George, 261

S.W.3d 285, 296 (Tex. App.—Fort Worth 2008, pet. denied) (―The dismissal

remedy under subsection 74.351(b) is expressly made ‗subject to‘ subsection

74.351(c), and thus the legislature intended that the right to have a claim

dismissed under the subsection be limited by the trial court‘s ability to grant an

extension of time to cure any deficiencies.‖).




                                     13
                                     Conclusion

      We affirm the trial court‘s order as to the vicarious liability claims for the

doctors‘ actions. As for the direct liability claims against Presbyterian and the

vicarious liability claims for the nurses‘ actions, we reverse. We remand the case

to the trial court for further proceedings consistent with this opinion.




                                                     LEE GABRIEL
                                                     JUSTICE

PANEL: DAUPHINOT, MEIER, and GABRIEL, JJ.

DELIVERED: July 7, 2011




                                      14
