                              NUMBER 13-10-611-CV

                            COURT OF APPEALS

                  THIRTEENTH DISTRICT OF TEXAS

                     CORPUS CHRISTI - EDINBURG

MOSES E. WILCOX SR., M.D.,                                                   Appellant,

                                           v.

MARIA G. MONTALVO, ET AL.,                                                  Appellees.


                   On appeal from the 130th District Court
                       of Matagorda County, Texas.


                         MEMORANDUM OPINION
                   Before Justices Garza, Vela, and Perkes
                    Memorandum Opinion by Justice Vela
      This is an interlocutory appeal from a trial court order denying a motion to dismiss

a healthcare liability claim filed against appellant, Moses E. Wilcox Sr., M.D. Dr. Wilcox

asserts on appeal that the trial court erred because: (1) the expert who filed the initial

report was not qualified; (2) the opinions of the expert were insufficient with respect to
both the standard of care and causation; (3) new claims raised by appellees were not

supported by an expert report; and (4) filing a report compliant with chapter 74 of the civil

practice and remedies code was not contingent upon Dr. Wilcox submitting to a

deposition. We reverse and remand.

                                      I. BACKGROUND

       Appellees, Maria G. Montalvo, Maria Colquitt, Maria Emilia Huerta, Maria Benigna

Morales, Jose Pilar Garcia, Juan Francisco Garcia, Carlos Garcia Sr., Arnulfo Garcia, and

Benito Garcia, as surviving children of Maria Luisa Garcia, Deceased, and as

representatives of the estate of Maria Luisa Garcia (collectively “the Montalvos”), filed suit

against Dr. Wilcox, alleging that Dr. Wilcox’s negligence caused the wrongful death of

Maria Luisa Garcia. Dr. Wilcox is a urologist. The claims against Dr. Wilcox, brought as

health care liability claims, were that Garcia was dropped to the floor during an

appointment at Dr. Wilcox’s office. The Montalvos also claimed that “the Defendant’s

failure to properly care for Mrs. Garcia and allowing her to fall from the examining table

was substandard medical care and represents medical negligence that proximately

caused her premature death.” The Montalvos further asserted that Garcia’s hip was

fractured due to the fall, she developed an embolus while undergoing surgery to repair

the hip, and later died.    The Montalvos amended their petition to allege negligent

supervision and training, and claimed that Dr. Wilcox maintained unsafe premises.

Specifically, they alleged: “the Defendant allowed a hazardous condition to exist in his

examining room, specifically wires and cords stretched out across the floor which

required Defendant’s employee to negotiate while transporting your Decedent, an


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amputee.” They also claimed that Dr. Wilcox was liable pursuant to the doctrine of res

ipsa loquitur.

       In support of their claim of malpractice, the Montalvos submitted the affidavit of

Karlen Downing, M.D., who stated that she had “specific experience in supervising the

transfer of disabled patients” and that she was aware of the standard of care. Her

curriculum vitae states that, at the time she wrote her report, she was the medical director

of East Texas Medical Center in Fairfield, Texas and was on the part-time staff of the

emergency room at Lakeside Hospital in Bastrop, Texas.

       With respect to the standard of care and Dr. Wilcox’s alleged breach of the

standard of care, Dr. Downing opined:

               The standard of care in transferring patients from wheelchair to bed
        or vice versa, is to take proper precautions to make certain that the patient
        does not drop to the floor. This is especially true when an elderly amputee
        is being transferred. No documentation in either Dr. Wilcox’s records or
        the hospital records gives an appropriate explanation for why the patient
        was dropped. Therefore it appears that dropping her to the floor was a
        failure to exercise proper safety precautions.

       Dr. Downing expressed the following opinion with respect to causation:

              The records indicate that Ms. Garcia suffered a fracture of the femur
       on her amputated leg which was a direct consequence of the fall on May 14,
       2008. It is certainly forseeable that a fracture of that nature would require
       surgery and that emboli are a known complication of such surgeries.
       Therefore it follows that the fall ultimately was a contributing factor in Ms.
       Garcia’s untimely death.

       She further concluded:

             For all of the above stated reasons it is my medical opinion, based on
       documentation provided, that the standard of care was not met [by] Dr.
       Wilcox and/or his staff and in my medical opinion the above failures directly
       caused her to suffer a fractured femur [and] contributed to the untimely
       demise of Maria Garcia.

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       Dr. Wilcox timely objected to the adequacy of the report and, thereafter, he filed a

motion to dismiss and amended motion to dismiss complaining about the report’s

adequacy.    The amended motion challenges Dr. Downing’s qualifications to opine

regarding the standard of care because, as an emergency room physician, she was not

qualified to discuss the standard of care applicable to a urologist’s office practice. The

motion to dismiss also challenges Dr. Downing’s affidavit because it fails to set forth the

standard of care, breach of the standard of care, and fails to adequately establish a

causal connection between the alleged negligence and the complained of injury. The

trial court denied the motion to dismiss.

                                 II. STANDARD OF REVIEW

       We review a trial court's order denying a motion to dismiss for failure to comply

with the expert report requirement under an abuse of discretion standard. NCED Mental

Health, Inc. v. Kidd, 214 S.W.3d 28, 32 (Tex. App.–El Paso 2006, no pet.) (applying

abuse of discretion standard to trial court's denial of motion to dismiss); Kendrick v.

Garcia, 171 S.W.3d 698, 702 (Tex. App.–Eastland 2005, pet. denied) (same); see Am.

Transitional Care Ctrs. of Tex., Inc. v. Palacios, 46 S.W.3d 873, 878 (Tex. 2001) (applying

abuse of discretion standard to trial court's granting of motion to dismiss). A trial court

abuses its discretion when it renders an arbitrary and unreasonable decision, lacking

support in the facts or circumstances of the case. Samlowski v. Wooten, No. 08-0667,

2011 WL 711091 at,       *4 (Tex. Feb. 25, 2011); Goode v. Shoukfeh, 943 S.W.2d 441,

446 (Tex. 1997). Likewise, a trial court abuses its discretion when it acts arbitrarily or

unreasonably, without reference to guiding rules or principles.        Wooten, 2011 WL

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711091 at *4; Mercedes-Benz Credit Corp. v. Rhyne, 925 S.W.2d 664, 666 (Tex. 1996)

(citing Downer v. Aquamarine Operators, Inc., 701 S.W.2d 238, 241 (Tex. 1985).

                            III. ANALYSIS AND APPLICABLE LAW

       A Claimant is required to serve each defendant health care provider with an expert

report within 120 days of filing suit. TEX. CIV. PRAC. & REM. CODE ANN. § 74.351(a)

(Vernon 2011).      The report must provide a fair summary of the expert’s opinions

concerning the applicable standard of care, the manner in which the care rendered failed

to meet the standard, and the causal relationship between the failure and the injury, harm,

and damages claimed. Id. § 74.351(r)(6). An expert report must be rendered by one

qualified to testify as an expert on the particular subject matter in issue.         Id. §

74.351(r)(5).   Expert reports cannot be based on mere conclusions or speculation.

Bowie Mem’l Hosp. v. Wright, 79 S.W.3d 48, 52 (Tex. 2002). The report must inform the

defendant of the specific conduct that the plaintiff has called into question and must

provide a basis to show that the claims have merit. Palacios, 46 S.W.3d at 879.

       A. Qualifications

       Dr. Wilcox first argues that Dr. Downing was not qualified to author the report

because she was not qualified to opine with respect to handling patients within the setting

of a urologist’s office.

       An expert report concerning standards of care for physicians “authored by a

person who is not qualified to testify . . . cannot constitute an adequate report.” In re

Windisch, 138 S.W.3d 507, 511 (Tex. App.–Amarillo 2004, orig. proceeding); see Ehrlich

v. Miles, 144 S.W.3d 620, 624-25 (Tex. App.–Fort Worth 2004, pet. denied). To be an


                                            5
“expert,” the physician must be:

              (1) practicing medicine at the time such testimony is given or was
       practicing medicine at the time the claim arose;

               (2) knowledgeable about the accepted standards of medical care for
       the diagnosis, care, or treatment of the illness, injury, or condition involved
       in the claim; and

              (3) qualified on the basis of training or experience to offer an expert
       opinion regarding those accepted standards of medical care.

See TEX. CIV. PRAC. & REM. CODE ANN. §§ 74.351(r)(5)(A), 74.401(a). Courts consider

whether the physician who completed the report (1) is board certified or has other

substantial training or experience in an area of medical practice relevant to the claim, and

(2) is actively practicing medicine in rendering medical care services relevant to the claim.

Id. § 74.401(c). The offered report must generally demonstrate that the expert has

knowledge, skill, experience, training, or education regarding the specific issue before the

court which would qualify the expert to give an opinion on that particular subject.

Roberts v. Williamson, 111 S.W.3d 113, 121 (Tex. 2003). There are certain standards of

medical care that apply to multiple schools of practice and to any medical doctor. See

Blan v. Ali, 7 S.W.3d 741, 746 (Tex. App.–Houston [14th Dist.] 1999, no pet.). Therefore,

a physician “who is not of the same school of medicine [as the defendant] is competent to

testify if he has practical knowledge of what is usually and customarily done by a

practitioner under circumstances similar to those confronting the defendant.” Ehrlich v.

Miles, 144 S.W.3d at 625; see also Marling v. Maillard, 826 S.W.2d 735, 740 (Tex.

App.–Houston [14th Dist.] 1992, no writ).




                                             6
       Here, Dr. Downing’s curriculum vitae showed that she was practicing medicine at

the time she authored the report. Therefore, she sufficiently established that she met the

first prong that she was practicing medicine at the relevant time. See id. § 74.401(a)(1).

       Next, her report must establish that she has knowledge of accepted standards of

medical care for the diagnosis, care or treatment of Garcia’s injury.            See id. §

74.401(a)(2). She averred that she had specific experience in supervising the transfer of

disabled patients.     Her curriculum vitae shows board certification in emergency

medicine, and she stated that she practices emergency medicine and that she has more

than thirty-four years in family practice, general surgery, obstetrics and emergency

medicine. Dr. Downing’s affidavit also stated that she has experience in supervising the

transfer of disabled patients.

       Under the circumstances presented here, the report established that Dr. Downing

was qualified to opine on the supervision of the transfer of disabled patients. Although

Dr. Downing was not a urologist, the act of transferring or supervising the transfer of a

disabled patient would not be unique to the practice of urology. Her experience and

specific statement that she had experience in transferring disabled patients is sufficient to

show her basic qualification to opine on the specific issue of patient transfer.         We

overrule Dr. Wilcox’s first issue.

       B. Standard of Care and Breach of the Standard of Care

       With respect to the standard of care and its breach, Dr. Downing opined that the

standard “is to take proper precautions to make certain that the patient does not drop to

the floor. This is especially true when an elderly amputee is being transferred.” With


                                             7
respect to breach, she opines: “No documentation in either Dr. Wilcox’s records or the

hospital records gives an appropriate explanation for why the patient was dropped.” Dr.

Downing also states that “it appears that dropping her to the floor was a failure to exercise

proper safety precautions.”

       The expert’s opinion must include his or her opinion with respect to the three main

elements of the cause of action: “standard of care, breach and causation.” Jelinek v.

Casas, 328 S.W.3d 526, 539 (Tex. 2010). An expert report cannot merely state the

expert's conclusions about the elements of the cause of action; the expert must explain

the basis of his statements to link his or her conclusions to the facts. “A report that

merely states the expert's conclusions about the standard of care, breach, and causation”

does not fulfill the two purposes of a good-faith effort. Palacios, 46 S.W.3d at 879.

       Basically, Dr. Downing’s opinion is that proper precautions must be taken and

apparently such precautions were not taken because there is no record of explanation.

In other words, Dr. Wilcox must be negligent because his records do not explain what

happened. But, her report did not articulate what specific negligent conduct has been

called into question. And she does not state what Dr. Wilcox and his staff did or failed to

do and what a reasonable and prudent physician would have done in the same or similar

circumstances.

       An expert must provide statements concerning the standard of care to identify the

care expected that was not given with such specificity that inferences are not needed to

discern them. Palacios, 46 S.W.3d at 880. The report must provide a basis for the trial

court to conclude that the claims have merit. Id. at 879. Dr. Downing’s affidavit was


                                             8
simply conclusory with respect to both the standard of care and its breach. She did not

specifically describe the standard of care for transferring a disabled patient or what Dr.

Wilcox did or failed to do that breached the standard. Identifying the standard of care is

vital because “[w]hether a defendant breached his or her duty to a patient cannot be

determined absent specific information about what the defendant should have done

differently.” Id. at 880. Here, the report does not mention what precautions should be

taken to properly transfer a patient or in what manner Dr. Wilcox acted or failed to act in

accordance with those precautions.

        The Montalvos argue that Dr. Wilcox could not have been more specific in her

affidavit because Dr. Wilcox refused to respond to discovery and refused to appear for

deposition prior to Dr. Downing’s report being filed. The record does not reflect that Dr.

Wilcox refused to respond to proper discovery requests. Regardless, this argument is

also meritless in view of the statute’s near moratorium on discovery until an expert report

and curriculum vitae are served. Certain discovery is allowed, such as information,

including medical or hospital records or other documents or tangible things through

written discovery and deposition on written questions. Id. § 74.351(s). Subsection (u)

of the statute limits the claimant to not more than two depositions before the expert report

is filed.   Id. § 74.351(u). Decisions construing the statute have strictly applied the

statutory prohibition against discovery in general. See In re Jordan, 249 S.W.3d 416,

418 (Tex. 2008) (orig. proceeding); In re Huag, 175 S.W.3d 449, 456 (Tex. App.–Houston

[1st Dist.] 2005, orig. proceeding); see also In re Knapp Med. Ctr. Hosp., No.

13-09-00382, 2009 WL 2398003, at *3 (Tex. App.–Corpus Christi July 1, 2009, orig.


                                             9
proceeding) (mem. op.) (stating that the statute does not allow an oral deposition of a

party prior to the service of an expert report). Thus, the Montalvos may not rely upon the

inability to depose Dr. Wilcox prior to filing an expert report as a reason for producing a

deficient report. Because Dr. Downing’s report was deficient with respect to both the

standard of care and its breach, we sustain Dr. Wilcox’s second issue.

       C. Causation

       Dr. Downing’s affidavit was equally conclusory with respect to causation. She

opined that Garcia suffered a fracture of the femur on her amputated leg which was a

direct consequence of the fall on May 14, 2008. She indicated that it was forseeable that

a fracture of that nature would require surgery and that emboli are a known complication

of such surgeries. She concluded that the fall ultimately was a contributing factor in Ms.

Garcia’s untimely death.

       In order for a report to be sufficient on causation, it must link the health care

provider's acts with an injury. See Jernigan v. Langley, 195 S.W.3d 91, 94 (Tex. 2006).

In Bowie v. Wright, the plaintiff argued that a single statement was sufficient to establish

causation: “if the x-rays would have been correctly read and the appropriate medical

personnel acted upon those findings then Wright would have had the possibility of a

better outcome.”     Bowie Mem'l Hosp., 79 S.W.3d at 52-53.           The supreme court

disagreed, holding that the report was insufficient because it did not explain how the

hospital's conduct caused the plaintiff's injury. Id. at 53. The court, in Bowie, ultimately

concluded that there was no testimony linking the expert's conclusion to the hospital's

breach. Id. at 53.


                                            10
      While Dr. Downing opines that the fall was a contributing factor to the death, she

does not opine that the negligence, if any, of Dr. Wilcox caused the fall. In fact, she

attempts to utilize the lack of information as indicia of negligence. The Montalvos’ theory

was that the fall happened because of negligence, which necessitated the surgery, which

ultimately caused the death. Dr. Downing was required under the case law to flesh out

what Dr. Wilcox did wrong and how the purported failure to properly transfer the patient

proximately caused Garcia’s injuries and death. Dr. Downing’s report did not link any

alleged departure from the standard of care to the facts. See Gray v. CHCA Bayshore,

L.P., 189 S.W.d 855, 859 (Tex. App.–Houston [1st Dist.] 2006, no pet.). Here, the report

was conclusory because it did not provide information linking a negligent act to the death.

See Lopez v. Montemayor, 131 S.W.3d 54, 60 (Tex. App.–San Antonio 2004, pet

denied). We sustain Dr. Wilcox’s third issue.

      D. Amended Claims

      By his fourth issue, Dr. Wilcox argues that the amended claims raised by the

Montalvos are health care liability claims for which there is no report. The nature of the

safety related claims the Legislature intended to be included under the Medical Liability

and Insurance Improvement Act (“MLIIA”) are matters of statutory construction,

reviewable de novo. Marks v. St. Luke's Episcopal Hosp., 319 S.W.3d 658, 663 (Tex.

2010). The amended claims urged here are that there was a hazardous condition in Dr.

Wilcox’s examining room, specifically wires and cords, which required Dr. Wilcox’s

employees to negotiate around them while transporting Garcia.




                                            11
       To determine whether a cause of action is a health care liability claim, we examine

the underlying nature of the claim. Marks, 319 S.W.2d at 664 (citing Garland Cmty.

Hosp. v. Rose, 156 S.W.3d 541, 543 (Tex. 2004). We look to the essence of the claim

and consider the alleged wrongful conduct and the duties allegedly breached.              See

Diversicare Gen. Partner, Inc. v. Rubio, 185 S.W.3d 842, 851 (Tex. 2005). When the

essence of the suit is a health care liability claim, a party cannot avoid the requirements of

the statute through artful pleading.     Garland Cmty. Hosp., 156 S.W.3d at 543; see

Yamada v. Friend, No. 08-0262, 2010 WL 5135334, at **2, 4, 5 (Tex. Dec. 17, 2010)

(unchallenged holding that claims encompassing physician's safety advice to water park

were health care liability claims required dismissal of all claims arising from same facts on

theory of improper claim-splitting). “Whether the underlying claim involves a health care

provider’s negligent act or omission, or the patient’s exposure to some other safety risk,

the relationship between the injury causing event and the patient’s care or treatment must

be substantial and direct for the cause of action to be a health care liability claim under the

MLIIA.” Marks, 319 S.W.3d at 664.

        The Montalvos’ claim is that Garcia was improperly transferred while in the care of

Dr. Wilcox and his employees. The gravamen of their claim is a health care liability claim

because it clearly involved the safety and care rendered to Garcia while in the care of Dr.

Wilcox. The substance of the Montalvos’ claim is that Dr. Wilcox failed to provide a safe

method or environment for transferring a disabled patient. All of the Montalvos’ claims

are based on the same underlying facts. Permitting the same underlying facts to give

rise to both a health care liability claim and an ordinary negligence claim as the Montalvos


                                              12
attempted to plead in their amended pleading, would negate the procedures and

limitations of the MLIIA. Turtle Healthcare Group, L.L.C., v. Linan, No. 09-0613, 2011

WL 711102, at *3 (Tex. Feb. 25, 2011) (per curiam).

       The amended claims were merely shades and phases of the earlier pleaded health

care liability claims, so we do not believe there was “no report” as to these claims. Even

though Dr. Downing’s report did not specifically address the amended claims, they were

not substantively different from the earlier pleaded complaints that she did attempt to

address, though deficiently. We overrule Dr. Wilcox’s fourth issue.

                                      IV. CONCLUSION

       Because we find Dr. Downing’s report deficient with respect to the standard of

care, its breach, and causation, we reverse the trial court’s denial of the motion to dismiss

and remand to the trial court for it to decide whether to grant the Montalvos a thirty-day

extension. Leland v. Brandal, 257 S.W.3d 204, 207 (Tex. 2008); see Wooten, 2011 WL

711091 at *4. Section 74.351’s plain language permits one thirty-day extension when a

court of appeals finds deficient a report that the trial court considered adequate.

Brandal, 257 S.W.3d at 207. In light of our ruling, we decline to address Dr. Wilcox’s fifth

issue regarding his request for attorney’s fees.



                                                   ROSE VELA
                                                   Justice

Dissenting Memorandum Opinion
by Justice Dori Contreras Garza

Delivered and filed the
14th day of April, 2011.

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