                          COURT OF APPEALS
                           SECOND DISTRICT OF TEXAS
                                FORT WORTH

                               NO. 02-12-00009-CV


COLUMBIA NORTH HILLS                                                    APPELLANT
HOSPITAL SUBSIDIARY, L.P.
D/B/A NORTH HILLS HOSPITAL

                                          V.

BULMARO ALVAREZ,                                                        APPELLEES
INDIVIDUALLY AND AS
REPRESENTATIVE OF THE
ESTATE OF SANDRA ALVAREZ,
DECEASED AND AS NEXT FRIEND
OF SARAY ALVAREZ AND
MARILYN ALVAREZ, MINORS,
AND SANDY ALVAREZ,
INDIVIDUALLY


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         FROM THE 96TH DISTRICT COURT OF TARRANT COUNTY

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                                     OPINION

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      Columbia North Hills Hospital Subsidiary, L.P. d/b/a North Hills Hospital

brings this interlocutory appeal challenging the trial court’s denial of its motion to
dismiss under section 74.351 of the Civil Practice and Remedies Code. See Tex.

Civ. Prac. & Rem. Code Ann. § 74.351 (West 2011). In five issues, North Hills

contends that the trial court abused its discretion by (1) granting appellees—

Bulmaro Alvarez, individually and as representative of the estate of Sandra

Alvarez, deceased, and as next friend of Saray Alvarez and Marilyn Alvarez,

minors, and Sandy Alvarez, individually—a thirty-day extension to amend their

expert report, (2) finding appellees’ expert qualified to give an expert report, (3 &

4) finding the expert report sufficient to meet the statutory report requirement,

and (5) failing to dismiss appellees’ health care liability claim with prejudice. We

affirm.

                                   Background

      This case is on appeal to this court for the second time. See Columbia N.

Hills Hosp. Subsidiary, L.P. v. Alvarez, No. 02-10-00342-CV, 2011 WL 3211239

(Tex. App.—Fort Worth July 28, 2011, no pet.) (mem. op. on reh’g). Forty-five-

year-old Sandra Alvarez died at North Hills after having a hysterectomy. Id. at

*1. Following the surgery, she was transferred to the recovery room where she

experienced difficulties. Id. She was eventually diagnosed as suffering from

hemorrhagic shock and returned to the operating room for surgical repair of the

source of her internal bleeding. Id. Alvarez died approximately five hours after

her second surgery. Id. Her autopsy report indicates that she died as a result of

“(1) complications of acute hemorrhagic shock due to post-operative bleed and




                                         2
(2) morbid obesity with hepatomegaly, severe fatty metamorphosis and early

fibrosis.” Id.

       Appellees sued North Hills alleging both vicarious liability and direct liability

theories of recovery. Id. at *2. Appellees alleged that North Hills was vicariously

liable for its nurses’ negligence, including the failure to invoke the chain of

command. Id. Appellees further alleged that North Hills was directly liable for

failing to adequately train its nurses, failing to enforce its policies and procedures,

and failing to adequately supervise its nurses. Id. Appellees timely served the

report and curriculum vitae of their designated expert, Dr. Tyuluman, on North

Hills. Id. North Hills filed a motion to dismiss alleging that Dr. Tyuluman was not

qualified to testify on the standard of care applicable to a hospital and also

alleging various deficiencies in his report. Id. After a hearing, the trial court ruled

that

       the expert reports submitted by [Appellees] constitute a good faith
       effort and meet the requirements of Chapter 74 of the Civil Practice
       & Remedies Code, with the exception that [Appellees] are required
       to submit an amended report breaking out specifically by name each
       defendant and/or group of defendants and the specific elements
       relating to the standard of care, breach of the standard of care, and
       causation for each defendant.

Id.

       The trial court gave appellees thirty days to file the amended report.

Appellees timely served an amended report of Dr. Tyuluman.1 Id. North Hills

       1
          All subsequent references to Dr. Tyuluman’s report are to his amended
report.


                                           3
then filed a second motion to dismiss again alleging that Dr. Tyuluman was not

qualified and alleging the same deficiencies in his report. Id. After a hearing, the

trial court denied North Hills’s second motion to dismiss, and North Hills

appealed to this court. Id.

      We held in our first opinion that Dr. Tyuluman was not qualified to give an

opinion on the standard of care for the direct liability claims against North Hills

and that his statement of the standard of care applicable to the hospital for the

direct liability claims was insufficient to meet the statutory requirement. Id. at *5.

Because the trial court had not granted appellees a thirty-day extension to cure

the deficiencies we identified, we remanded so that the trial court could

determine whether an extension should be granted to cure those deficiencies.

Id. at *7. We affirmed the trial court’s denial of the motion to dismiss on the

vicarious liability claims against North Hills. Id. at *8.

      On remand, the trial court granted appellees a thirty-day extension to cure

the deficiencies. Appellees filed a new report from Charles M. Brosseau, Jr., a

hospital management consultant. North Hills objected to the new report and filed

a motion to dismiss, arguing that appellees were not allowed to submit a new

report and also alleging various deficiencies with the new report. After holding a

hearing, the trial court overruled North Hills’s objections and denied its motion to

dismiss. North Hills then perfected this second interlocutory appeal.




                                            4
                               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); Ctr. for

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

Fort Worth 2008, pet. denied); Maris v. Hendricks, 262 S.W.3d 379, 383 (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. at 242. But a trial

court has no discretion in determining what the law is or in applying the law to the

facts; 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).

                               Thirty-Day Extension

       In its first issue, North Hills contends that the trial court erred in granting

appellees a thirty-day extension to correct the deficiencies in Dr. Tyuluman’s

report upon remand. North Hills argues that our holding in its previous appeal


                                          5
prohibited appellees from submitting a new report on the standard of care and

breach and required them to amend Dr. Tyuluman’s report to show his

qualifications to opine on the standard of care applicable to the direct liability

claims.   According to North Hills, since appellees’ motion for an extension

showed only that they intended to submit a new report from a different expert, the

trial court should not have granted the request for an extension and should not

have considered the new report from Brosseau.

      To the extent that North Hills argues that the trial court abused its

discretion in granting the thirty-day extension, the trial court’s ruling is not subject

to appellate review.    See Ogletree v. Matthews, 262 S.W.3d 316, 321 (Tex.

2007).

      The remainder of North Hills’s argument in this issue is that the trial court

erred in considering Brosseau’s report in satisfaction of the statutory

requirements. North Hills argues that because appellees had already received

one extension to correct Dr. Tyuluman’s statement of the standard of care, the

extension after remand gave appellees two extensions in disregard of section

74.351(c), which allows for only one extension. See Tex. Civ. Prac. & Rem.

Code Ann. § 74.351(c).

      A health care liability claimant is required to serve defendants with an

expert report and curriculum vitae of the report’s author within one hundred and

twenty days of filing the claim. Id. § 74.351(a). The report must be written by an

expert competent to give an opinion on the matters in the report, must inform the


                                           6
defendant of the specific conduct called into question, and must provide a basis

for the trial court to determine that the claim has merit. Id. § 74.351(r)(5)(B),

(r)(6), 74.402 (West 2011); Bowie Mem’l Hosp. v. Wright, 79 S.W.3d 48, 52 (Tex.

2002). 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 that the

report does not represent a good faith effort to comply with the statutory

requirements. Tex. Civ. Prac. & Rem. Code Ann. § 74.351(l). The court may

also grant “one 30-day extension to the claimant in order to cure the deficiency.”

Id. § 74.351(c). When curing a deficiency in a report, a plaintiff may submit an

amended report from the same expert or supplement the original report with a

new report from a different expert. Lewis v. Funderburk, 253 S.W.3d 204, 208

(Tex. 2008).

      If a trial court finds that an expert report does not meet the statutory

requirement, grants the plaintiff a thirty-day extension to correct the deficiency,

and finds the report sufficient after the extension––and we subsequently reverse

the trial court’s decision–––we may allow the trial court to grant another thirty-day

extension on remand if we hold that the report is deficient in a different manner

than found by the trial court when granting the original thirty-day extension. See

TTHR Ltd. P’ship v. Moreno, No. 02-10-00334-CV, 2011 WL 2651813, at *5

(Tex. App.—Fort Worth July 7, 2011, pet. granted) (mem. op. on reh’g); see also

Columbia N. Hills Hosp. Subsidiary, 2011 WL 3211239, at *7 (applying Moreno).

This is not a second extension in violation of section 74.351(c); rather it is the


                                         7
extension the plaintiff could have received had the trial court given him notice

about this defect after the defendant’s first objection that the report was deficient.

See TTHR Ltd. P’ship, 2011 WL 2681813, at *5.

      In the first appeal, we remanded the case to the trial court for it to

determine whether to grant a thirty-day extension to allow appellees to correct

the deficiencies this court identified, which were that the report did not show that

Dr. Tyuluman was qualified to opine on the standard of care as it applied to the

direct liability claims and that his statement of the standard of care applicable to

North Hills on the direct liability claims was insufficient. Columbia N. Hills Hosp.

Subsidiary, 2011 WL 3211239, at *5, *7. Despite North Hills’s argument that the

trial court had already granted an extension to cure the statement of the standard

of care, the deficiencies we identified on appeal are different from those originally

found by the trial court. In giving the original thirty-day extension, the trial court

had instructed appellees to “break[] out specifically by name each defendant

and/or group of defendants and the specific elements relating to the standard of

care, breach of the standard of care, and causation for each defendant.”

Id. at *2. Thus, the trial court granted the original extension to make separate

statements of each standard of care, breach, and causation for each defendant

rather than directing appellees to make a different statement of the standard of

care for each claim against North Hills.       Nor did the trial court address Dr.

Tyuluman’s qualifications to make such statements relating to the direct liability

claims against North Hills. Therefore, we conclude and hold that the trial court


                                          8
was authorized to consider Brosseau’s report addressing both the qualifications

of the expert and the statement of the standard of care for the direct claims

against North Hills because those elements were found to be deficient for the first

time in the first appeal. See Tex. Civ. Prac. & Rem. Code Ann. § 74.351(i);

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

for an extension unless, and until, elements of a report are found deficient, and

that did not occur in this case until the court of appeals so held.”); Lewis, 253

S.W.3d at 208; Columbia N. Hills Hosp. Subsidiary, 2011 WL 3211239, at *7.

      We overrule North Hills’s first issue.

                           Brosseau’s Qualifications

      In its second issue, North Hills contends that the trial court abused its

discretion in finding Brosseau qualified to give an expert opinion on the direct

liability claims. North Hills argues that (1) Brosseau is not qualified to give an

opinion on post-operative nursing care because he is not a trained, educated

nurse and must rely on the opinions of others to determine whether the care of

nurses fell below the standard of care and (2) he is not qualified to opine on

causation because he is not a physician.

      An expert report concerning standards of care for health care providers

must be authored by one who qualifies as an expert. Tex. Civ. Prac. & Rem.

Code Ann. §§ 74.351(r)(5)(B), 74.402; Davisson v. Nicholson, 310 S.W.3d 543,

550 (Tex. App.—Fort Worth 2010, no pet.) (op. on reh’g). A person may qualify




                                          9
as an expert on the issue of whether a 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.

Tex. Civ. Prac. & Rem. Code Ann. § 74.402(b). Persons practicing health care

include those serving as consultants while being licensed, certified, or registered

in the same field as the health care provider. Id. § 74.402(a)(2). A person is

qualified on the basis of training or experience if he is certified by a state or

national professional certifying agency or has substantial experience in the field

and is actively practicing health care services relevant to the claim.

Id. § 74.402(c). To determine whether the author of a report is qualified, we may

look only at the four corners of the report and the author’s curriculum vitae.

Barber v. Mercer, 303 S.W.3d 786, 794 (Tex. App.—Fort Worth 2009, no pet.)

(citing Am. Transitional Care Ctrs. of Tex., Inc. v. Palacios, 46 S.W.3d 873, 878

(Tex. 2001)).

      The direct liability claims against North Hills allege that the hospital is

directly liable for failing to adequately train its nurses, enforce its policies and



                                         10
procedures, and adequately supervise its nurses. Therefore, an expert making a

report as to the standard of care involved in such a claim must have adequate

familiarity, training, or experience with formulation of training programs,

formulation or enforcement of hospital policies and procedures, and supervision

of nurses to be qualified to make such a report. See Columbia N. Hills Hosp.

Subsidiary, 2011 WL 3211239, at *5; see also Reed v. Granbury Hosp. Corp.,

117 S.W.3d 404, 409–13 (Tex. App.—Fort Worth 2003, no pet.) (holding that

expert must have knowledge of hospital policies and procedures for direct liability

claim against hospital); Hendrick Med. Ctr. v. Conger, 298 S.W.3d 784, 788 (Tex.

App.—Eastland 2009, no pet.) (holding that expert must have knowledge,

training, or experience concerning standard of care in formulation of hospital

policies and procedures for report on direct liability claim).

      Looking at the four corners of the report and curriculum vitae, we conclude

that they establish that Brosseau is qualified to opine as to the standard of care

applicable to North Hills. According to the report, Brosseau has been a hospital

management consultant since 1996 and has been certified as a Fellow of the

American College of Healthcare Executives since 2001.            He has a Masters

degree in Healthcare Administration and has been working as a hospital

administrator or administration consultant for over thirty years.     In that time,

Brosseau has been responsible for the “preparation and implementation of

hospital policies and procedures, including but not limited to, policies and

procedures regarding environment of care, treatments, training/competencies,


                                          11
nursing, chain of command, human resources and leadership.” He states that

because of his knowledge, training, and experience, he is familiar with the

standard of care applicable to the administrative and managerial duties that

hospitals owe their patients.

      The qualifications listed in Brosseau’s report are sufficient to qualify him as

an expert under section 74.402 because he has shown that he is a practicing

health care provider with the proper education, certifications, and experience to

qualify as an expert in hospital administration under the statute. See Tex. Civ.

Prac. & Rem. Code Ann. § 74.402(b); Hollingsworth v. Springs, 353 S.W.3d 506,

516–18 (Tex. App.—Dallas 2011, no pet.) (holding that Brosseau is qualified to

opine on standard of care applicable to hospital administration).

      North Hills argues that Brosseau is not qualified to opine on the standard

of care because he is not a nurse or physician and therefore must rely on the

opinions of others when determining whether direct patient care was deficient.

However, such expertise is not required for this particular claim. We held in our

prior opinion in this case that Dr. Tyuluman had such expertise on matters of the

medical care of nurses and could opine on the standard of care as it applied to

direct nursing care for the vicarious liability claims against the hospital but that he

was not qualified to opine on the direct liability claims. See Columbia N. Hills

Hosp. Subsidiary, 2011 WL 3211239, at *4–5. For these direct liability claims,

the expert needed to demonstrate expertise in “the standard of care applicable to

a hospital in training its nurses, in enforcing its policies and procedures, and in


                                          12
supervising its nurses, which is an entirely separate standard.” Id. at *5 (citing

Denton Reg’l Med. Ctr. v. LaCroix, 947 S.W.2d 941, 950–51 (Tex. App.—Fort

Worth 1997, pet. denied), for the general discussion of the standard of care for

direct hospital liability). Thus, Brosseau has shown the kind of expertise required

for the direct liability claims.

       To the extent that medical expert testimony is required to address the

underlying medical procedures and nursing care at issue, Dr. Tyuluman’s report

may be taken together with Brosseau’s to address how the underlying nursing

care relates to the alleged failures of administrative care. See Tex. Civ. Prac. &

Rem. Code Ann. § 74.351(i) (any report requirement can be satisfied by offering

more than one report); Columbia N. Hills Hosp. Subsidiary, 2011 WL 3211239, at

*4–5 (holding Dr. Tyuluman’s report adequate as to the underlying medical care);

Reed, 117 S.W.3d at 409 (holding medical expert testimony necessary to explain

underlying medical procedures). Because the direct liability claims are about the

failure in North Hills’s administrative care, Brosseau does not need to be a nurse

or physician to qualify as an expert for the direct liability claims; rather, he needs

to be an experienced hospital administrator. See Hollingsworth, 353 S.W.3d at

516. Thus, the trial court did not abuse its discretion in finding Brosseau qualified

to make an expert report on the standard of care for the direct liability claims

against North Hills.

       In the remainder of its second issue, North Hills contends that Brosseau is

not qualified to opine on how the actions of North Hills caused Alvarez’s death


                                         13
because he is not a physician. North Hills is correct in that only a physician can

give an opinion on causation in an expert report. Tex. Civ. Prac. & Rem. Code

Ann. § 74.351(r)(5)(C). However, as we explain below, Brosseau did not offer an

opinion on causation, nor was it necessary for him to do so.

      Therefore, we overrule North Hills’s second issue.

                           Brosseau’s Expert Report

      In its third and fourth issues, North Hills contends that the trial court

abused its discretion in finding Brosseau’s report sufficient to meet the statutory

requirements of chapter 74 of the Civil Practice and Remedies Code. North Hills

argues that the report does not adequately set forth the standard of care, does

not show how North Hills breached the standard of care, and does not show how

North Hills caused Alvarez’s death because it is too conclusory.

Applicable Law

      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. Palacios, 46 S.W.3d at

878. A report that merely states the expert’s conclusions about the standard of

care, breach, and causation does not fulfill these purposes. Id. at 879. Rather,

the expert must explain the basis of his statements to link his conclusions to the

facts. Bowie Mem’l Hosp., 79 S.W.3d at 52. An expert report “need not marshal

all the plaintiff’s proof,” and the information in the report “does not have to meet

the same requirements as the evidence offered in a summary-judgment


                                        14
proceeding or at trial.” Palacios, 46 S.W.3d at 878–79. A plaintiff 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); Barber, 303 S.W.3d at 791.

      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.” Tex. Civ. Prac. & Rem. Code Ann.

§ 74.351(l). In reviewing the sufficiency of the reports, we look no further than

the information contained in the reports themselves. Bowie Mem’l Hosp., 79

S.W.3d at 52.

Standard of Care and Breach

      The standard of care for a hospital is what an ordinary, prudent hospital

would do under the same or similar circumstances. Palacios, 46 S.W.3d at 880.

Identifying the standard of care is critical: whether a defendant breached his or

her duty to a patient cannot be determined absent specific information about


                                       15
what the defendant should have done differently. Id. When an expert report

opines on the standard of care and how it was breached, it is not sufficient to

simply state that the expert knows the standard of care and concludes that it was

not met. Id. While a “fair summary” is something less than a 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. Id.

      Looking at the four corners of the reports, we conclude that Brosseau’s

report adequately states the standard of care applicable to the hospital and how

the hospital breached that standard. Brosseau states that the standard of care

requires hospital administration to ensure that its employees are competent, to

have and enforce policies and procedures, and to ensure that those policies are

being implemented. Specifically, Brosseau states that hospitals must train their

nurses to be competent and to understand the hospitals’ policies and

procedures. This includes training nurses to (1) make appropriate assessments

and reassessments of patients, (2) develop appropriate nursing plans of care,

and (3) become effective patient advocates by using the hospital’s chain of

command to keep a patient from harm.        The standard of care, according to

Brosseau, also includes requiring hospital management and administration to

formulate and enforce policies to facilitate this training and to ensure nurse

competency. Brosseau states that a hospital must have policies regarding the

chain of command that can “be emergently and immediately invoked to involve

hospital management to ensure safe resolution of the patient’s condition” and


                                       16
that resolution “must include not only nursing management, but also the Medical

Department Chair and/or the Chief of Staff.”

      Relying on Dr. Tyuluman’s opinion that surgery was the only proper

treatment to stop internal bleeding, Brosseau concluded that the standard of care

dictated that the nurses, nurse management, and administrators use a plan of

care and the chain of command to get surgeons, the Chief of Staff, or the

Department Chair involved to help get Alvarez to surgery quickly.        Brosseau

opined that the standard of care was breached because North Hills did not

ensure that its nurses were competent to care for Alvarez and the required

policies and procedures for nursing administration were either not in place or not

enforced. He concluded that the failure to ensure competency was evidenced by

Dr. Tyuluman’s findings that the nurses failed to appreciate Alvarez’s

deteriorating condition and failed to invoke the chain of command to get her the

care she needed.           Brosseau further concluded that the failure to have,

implement, and enforce policies on patient assessment and advocacy was

evidenced by the failure of nurses, nurse managers, and administrators to

implement a plan of care to get Alvarez to surgery when her condition

deteriorated as well as by the belated involvement of the Assistant CNO and

Nurse Manager and the lack of involvement of the Department Chair and Chief of

Staff in Alvarez’s care.

      We hold that Brosseau’s report, taken together with Dr. Tyuluman’s

assessment of the medical care involved, sufficiently ties his conclusions to facts


                                         17
to put the hospital on notice of what care he opined was required but not given.

See Palacios, 46 S.W.3d at 879; Hollingsworth, 353 S.W.3d at 517–18 (holding

similar statements by Brosseau to be sufficient to show standard of care and

breach). Therefore, we overrule North Hills’s third issue.

Causation

      In its fourth issue, North Hills contends that Brosseau’s report did not

provide a fair summary of how its conduct caused Alvarez’s death. Appellees

concede that Brosseau’s report is not being proffered as an expert opinion on

causation but instead argue that Dr. Tyuluman’s report is sufficient on the issue

of causation.

      When a plaintiff relies on one report to show the standard of care and

breach and a second report to show causation, we must look to both reports to

see whether the breach identified in the standard-of-care report is sufficiently

linked to the cause of the alleged injury in the causation report. See Salais v.

Tex. Dep’t of Aging & Disability Servs., 323 S.W.3d 527, 536 (Tex. App.—Waco

2010, pet. denied) (holding when paramedic expert report offered only for

standard of care and breach, court examines whether physician’s report

adequately links breach to alleged injury); Martin v. Abilene Reg’l Med. Ctr., No.

11-04-00303-CV, 2006 WL 241509, at *4–5 (Tex. App.—Eastland Feb. 2, 2006,

no pet.) (mem. op.) (holding report of nurse expert on standard of care and

breach sufficiently linked to physician expert report on causation to satisfy report

requirement); cf. Gannon v. Wyche, 321 S.W.3d 881, 894–97 (Tex. App—


                                        18
Houston [14th Dist.] 2010, pet. denied) (holding physician’s report on causation

not sufficiently linked to nurse expert report on standard of care and breach when

statement of causation specifically referred to physicians only).

      North Hills’s argument that the Brosseau report’s statement of causation is

conclusory is based upon the assumption that we cannot consider Dr.

Tyuluman’s report because we have already ruled it to be “inadequate as it

pertains to the direct liability claims against North Hills.” However, North Hills

misconstrues our holding. We held only that Dr. Tyuluman was not qualified to

opine on the standard of care as it related to the direct liability claims against

North Hills, expressly declining to examine the adequacy of his statement of

causation with respect to the direct liability claims.   Columbia N. Hills Hosp.

Subsidiary, 2011 WL 3211239, at *5 n.4. Further, a physician does not need to

be qualified to opine on the standard of care for a direct liability claim to be

qualified to opine on causation; a physician needs only to show how he is

qualified to opine on the cause of the plaintiff’s injury. See Salais, 323 S.W.3d at

535–36 (holding separate physician report on causation must show qualification

to opine on causation when report on paramedic standard of care and breach

found to be sufficient). Accordingly, our only inquiry is whether Dr. Tyuluman’s

report adequately links the injury to the breaches identified by Brosseau. See

Salais, 323 S.W.3d at 536; Martin, 2006 WL 241509, at *4–5.

      Dr. Tyuluman’s report provides as follows:




                                        19
             The failure of all defendants to provide surgery to control the
      hemorrhage, continuing to administer pressor agents when
      contraindicated, failure to properly monitor intraoperative blood loss,
      and failure to recognize the compromised status of the patient during
      this process are proximate cause of the death of Alvarez. Had
      prompt surgery been performed, it is more likely than not that the
      injury would have been easily found and corrected, preventing
      further blood loss. I have performed such surgeries to locate and
      repair injury following vaginal hysterectomy and know from my
      experience the effectiveness of such procedures. Had ordinary care
      been provided during the operative and post operative period, in all
      medical probability, . . . Alvarez would be alive today.

Further, Brosseau’s report specifically states that the failure to recognize

Alvarez’s deteriorating condition and the failure to get her to surgery were

breaches of the standard of care by the hospital administration. Dr. Tyuluman’s

report implicates these same actions by the nurses and hospital staff, among

others, as causing Alvarez’s death.      Therefore, we hold that Dr. Tyuluman’s

causation opinion sufficiently links the acts and omissions of North Hills identified

by Brosseau to the cause of Alvarez’s death.

      Therefore, we further conclude and hold that the trial court did not abuse

its discretion by finding that Dr. Tyuluman’s report supplies the causation element

of the statutory expert report requirement. We overrule North Hills’s fourth issue.

Having overruled all of North Hills’s issues upon which it predicates its fifth

issue––that the trial court should have granted its motion to dismiss with

prejudice––we also overrule its fifth issue.




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                                     Sanctions

         In their sole cross point, appellees contend that North Hills should be

sanctioned for filing a frivolous appeal. They argue that this appeal was filed with

the sole purpose of delaying proceedings without any reasonable expectation

that the appeal would succeed.

         If the court of appeals determines that an appeal is frivolous, it may—on

the motion of any party or on its own initiative, after notice and a reasonable

opportunity for response—award each prevailing party just damages. Tex. R.

App. P. 45.     Whether to award damages is within the court’s discretion, but

sanctions should only be imposed in the most egregious circumstances. Durham

v. Zarcades, 270 S.W.3d 708, 720 (Tex. App.—Fort Worth 2008, no pet.). In

determining whether to award damages, the court must not consider any matter

that does not appear in the record, briefs, or other papers filed in the court of

appeals. Tex. R. App. P. 45. Although we have overruled all of North Hills’s

issues, we do not believe its appeal is so egregious that it warrants sanctions.

See Angelou v. African Overseas Union, 33 S.W.3d 269, 282 (Tex. App.—

Houston [14th Dist.] 2000, no pet.). Therefore, we overrule appellees’ sole cross

point.




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                                   Conclusion

       Having overruled all of North Hills’s issues and appellees’ cross point, we

affirm the trial court’s order.




                                                  TERRIE LIVINGSTON
                                                  CHIEF JUSTICE

PANEL: LIVINGSTON, C.J.; GARDNER and WALKER, JJ.

DELIVERED: September 27, 2012




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