                    In The
              Court of Appeals
Sixth Appellate District of Texas at Texarkana


                  No. 06-13-00052-CV



       CHRISTUS HEALTH ARK-LA-TEX D/B/A
  CHRISTUS ST. MICHAEL HEALTH SYSTEM, Appellant

                            V.

   WILLIAM C. CURTIS AND TINA CURTIS, Appellees



          On Appeal from the 5th District Court
                 Bowie County, Texas
             Trial Court No. 12C1341-005




       Before Morriss, C.J., Carter and Moseley, JJ.
            Opinion by Chief Justice Morriss
                                                   OPINION
            William C. Curtis and wife, Tina Curtis, and their three expert reports allege that William

was improperly treated by Dr. James Urbina 1 at Christus Saint Michael Hospital—owned and

operated by Christus Health Ark-La-Tex d/b/a Christus St. Michael Health System—for

symptoms of “sudden muffled hearing, balance issues, nausea and feeling poorly.” The Hospital

claims that the trial court should have dismissed the Curtises’ lawsuit because the expert reports

were conclusory on the element of causation. Because we find no abuse of discretion in the trial

court’s denial of the Hospital’s motion to dismiss, we affirm 2 the trial court’s ruling.

            According to the Curtises’ petition and their experts’ reports, Urbina’s treatment of

William included administering what are called the Dix-Hallpik and Epley maneuvers (explained

below). Allegedly, as a result, William suffered a brainstem stroke and a dissection or separation

of the complex basilar artery at the anterior inferior cerebellar artery junction, 3 and this suit

followed.

            As a case involving alleged health care liability, this matter is governed by Chapter 74 of

the Texas Civil Practice and Remedies Code.                        See TEX. CIV. PRAC. & REM. CODE ANN.

§§ 74.001–.507 (West 2011 & Supp. 2012). The plaintiff in such a suit must “serve on each


1
    While the Curtises also sued Urbina, Urbina is not a party to this appeal.
2
 This is a proper subject for an interlocutory appeal. See TEX. CIV. PRAC. & REM. CODE ANN. § 51.014(a)(9) (West
Supp. 2012) (appeal of interlocutory order from district court that “denies all or part of the relief sought by a
motion” seeking to dismiss plaintiff’s claim for failure to meet expert report requirements); see also Lewis v.
Funderburk, 253 S.W.3d 204, 208 (Tex. 2008).
3
This injury may be generally understood as a breach or separation of the artery at or near the cerebellum. See
Medical Dictionary, MERRIAM-WEBSTER.COM, http://www.merriam-webster.com/medlineplus/anterior%20inferior
%20cerebellar%20artery (last visited Aug. 29, 2013).

                                                              2
party or the party’s attorney one or more expert reports” within 120 days after filing the original

petition. TEX. CIV. PRAC. & REM. CODE ANN. § 74.351(a) (West 2011). The report 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 health care provider failed to meet the standards, and the causal
       relationship between that failure and the injury, harm, or damages claimed.

TEX. CIV. PRAC. & REM. CODE ANN. § 74.351(r)(6) (West 2011).

       A trial court must grant a motion to dismiss if it appears the report does not amount to an

objective, good-faith effort to comply with the statutory requirements. Bowie Mem’l Hosp. v.

Wright, 79 S.W.3d 48, 51 (Tex. 2002) (per curiam); Longino v. Crosswhite, 183 S.W.3d 913,

916 (Tex. App.—Texarkana 2006, no pet.). An action should be dismissed if the expert report is

not sufficiently specific “to provide a basis for the trial court to conclude that the claims have

merit.” Am. Transitional Care Ctrs. of Tex., Inc. v. Palacios, 46 S.W.3d 873, 875 (Tex. 2001);

see TEX. CIV. PRAC. & REM. CODE ANN. § 74.351(r)(6). To be a good-faith effort, the report

must discuss the standard of care and breach of that standard with sufficient specificity to inform

each defendant of the conduct the plaintiff has called into question and to provide a basis for the

trial court to conclude that the claims have merit. Jernigan v. Langley, 195 S.W.3d 91, 94 (Tex.

2006) (per curiam). A report that states an expert’s bare conclusions about the standard of care,

breach, and causation does not meet the statutory requirements. Wright, 79 S.W.3d at 52;

Longino, 183 S.W.3d at 917. Rather, the expert must explain the basis of his or her statements to

link the expert’s conclusions to the facts. Wright, 79 S.W.3d at 52.

       A trial court’s decision regarding the adequacy of an expert report is reviewed for an

abuse of discretion. Wright, 79 S.W.3d at 52; Longino, 183 S.W.3d at 916. Before reversing the
                                                3
trial court, we must find the court acted arbitrarily or unreasonably without reference to guiding

rules or principles. Wright, 79 S.W.3d at 52. We may not, however, substitute our opinion for

that of the trial court. Id. Nevertheless, “a clear failure by the trial court to analyze or apply the

law correctly” is an abuse of discretion. Walker v. Packer, 827 S.W.2d 833, 840 (Tex. 1992)

(orig. proceeding).

            The Hospital’s appeal claims the experts’ opinions as to causation are conclusory, and

therefore insufficient to meet the requirements of Section 74.351(r)(6). 4 The Curtises’ suit

included allegations of direct negligence in staffing decisions and protocols, as well as

allegations of vicarious liability of the Hospital for the treatment administered by Urbina. The

Hospital does not argue these allegations were inadequate to allege vicarious liability. See RGV

Healthcare Assocs., Inc. v. Estevis, 294 S.W.3d 264, 273 (Tex. App.—Corpus Christi 2009, pet.

denied) (“When a plaintiff’s claim against a hospital is not for direct negligence, but is based on

the conduct of an employee through the doctrine of respondeat superior,” the report “is sufficient

as against the hospital to satisfy the expert report requirement for the vicarious liability claims” if

“the report identifies conduct by the hospital’s employee, the hospital is implicated, and . . . the

report adequately addresses the standard of care applicable to the employee, how the employee

breached the standard of care, and that the breach caused the plaintiff’s injury.”)

            [W]hen a health care liability claim involves a vicarious liability theory, either
            alone or in combination with other theories, an expert report that meets the
            statutory standards as to the employee is sufficient to implicate the employer’s
            conduct under the vicarious theory. And if any liability theory has been
            adequately covered, the entire case may proceed.


4
    The Hospital’s appeal does not challenge the reports’ discussion of the standard of care and breach of that standard.
                                                             4
Certified EMS, Inc. v. Potts, 392 S.W.3d 625, 632 (Tex. 2013). The Curtises’ petition alleged

that Urbina was an agent, representative, or employee of the Hospital acting within the scope of

that agency or employment at the time of the treatment of William.5

         Each of the three expert opinions took note of William’s “abnormal cerebrovascular

anatomy” and stated that the relevant standard of care for treating a patient with such anatomy

requires the treating physician “not [to] perform the Dix-Hallpik and Epley maneuvers under any

circumstance.”

         Dr. Urbina evaluated Mr. Curtis’ condition and made the diagnosis of Benign
         Proximal Positional Vertigo. On 9/18/2010, Dr. Urbina performed the Dix-
         Hallpik maneuver on Mr. Curtis to reposition the crystals in his ears. The Dix-
         Hallpik maneuver which consists of repeated rapid significant torsion, bending,
         flexing, extending and rotating Mr. Curtis’s neck many times at varying angles
         and varying degrees was performed. At this point, Mr. Curtis demonstrated
         double vision, blood pressure drop, abnormal vital signs, vomiting, and additional
         hearing issues. Dr. Urbina proceeded to have Mr. Curtis do the Epley maneuver
         after the Dix-Hallpik was performed. Like the Dix-Hallpik, the Epley maneuver
         involved the physical manipulation of Mr. Curtis’ neck. Mr. Curtis did not
         respond favorably to these procedures.

Dr. Khalid Malik, who supplied one of the Curtises’ expert reports, opines that, at that point,

William suffered a brainstem stroke. The expert reports, later referring again to William’s

“abnormal cerebrovascular anatomy,” all stated that, because of that abnormal anatomy, “the

treatment consisting of the Dix-Hallpik and the Epley maneuvers were contraindicated,

dangerous, and very risky.”




5
 In its brief, the Hospital argues that nothing in the experts’ reports gave any basis for vicarious liability for the acts
of Urbina. However, each report identified Urbina as a hospitalist at the Hospital and the attending physician when
William was admitted. The question of vicarious liability is a legal matter to be decided later, not on the basis of the
medical expert reports.
                                                            5
       The expert reports also state that, during the Dix-Hallpik procedure, William “suffered

classical stroke symptoms of double vision, blood pressure drop, acute hearing loss, vomiting,

dizziness, and vital sign compromise.” Each report opines that, “[b]ased on reasonable medical

probability,” at this point, William’s brainstem was infarcted and he suffered a dissection of his

complex basilar artery. Nonetheless, at this juncture, Urbina performed another contraindicated

procedure, the Epley maneuver. The reports each then state unequivocally that “the rapid and

repeated significant torsion, bending, flexing, extending and rotating” of William’s neck, taking

into consideration his abnormal cerebrovascular anatomy, caused the brainstem infarction and a

“tear that resulted in a complex dissection of his basilar artery at the [anterior inferior cerebellar

artery] junction.” Each report then concludes, based on its author’s expert medical opinion, that

the previously described negligent acts and omissions of both Urbina and the Hospital

proximately caused William’s brainstem stroke and dissection of the complex basilar artery.

Because the Curtises alleged a theory of vicarious liability, the causal allegations that Urbina’s

treatments caused injury to William are sufficient, alone, to satisfy Section 74.351 of the Texas

Civil Practice and Remedies Code as to the Hospital. See id. And, since it was sufficient to

surmount the expert-report hurdle as to the Hospital’s potential vicarious liability, it was

sufficient to avoid the dismissal of the Hospital from this action. See TTHR Ltd. P’ship v.

Moreno, 401 S.W.3d 41, 42 (Tex. 2013); Potts, 392 S.W.3d at 632.




                                                  6
         The expert reports’ assertions of causation on the vicarious liability 6 action against the

Hospital were not conclusory and were good-faith efforts to comply with the statutory

requirements. The trial court did not abuse its discretion in finding the reports sufficient to

satisfy Section 74.351.

         We affirm the trial court’s ruling. 7




                                                        Josh R. Morriss, III
                                                        Chief Justice

Date Submitted:             July 31, 2013
Date Decided:               August 30, 2013




6
 Additionally, in allegations addressing direct liability, the reports opined that the Hospital should not have allowed
Urbina on its staff; should have had policies or procedures in place to prevent Urbina from performing the two
procedures, which were contraindacted because of William’s abnormal cerebrovascular anatomy; and should have
had a neurologist available to assess and treat William. The reports cite these omissions as well as the above-
detailed acts of Urbina as proximate causes of William’s injuries. We need not address whether the challenged
causation link of the reports is sufficient as to these direct-liability allegations against the Hospital, since the
vicarious liability cause of action is medically supported by the expert reports.
7
 The Hospital also argues that, because the Curtises did not specifically argue vicarious liability to the trial court, the
argument cannot be relied upon on appeal. We do not find that argument compelling. As mentioned, the plaintiffs’
petition alleged agency and respondeat superior, which is de facto the same as vicarious liability. Even if the trial
court’s ruling does not specifically state that vicarious liability was a basis for finding the reports sufficient, we will
affirm that ruling if it can be upheld on any legal theory that finds support in the record. See In re W.E.R., 669
S.W.2d 716, 717 (Tex. 1984) (per curiam). In answer to the Hospital’s claim that the Curtises waived the theory of
vicarious liability, we find that such theory was adequately argued in the petition with its allegations of agency and
respondeat superior.
                                                            7
