                   COURT OF APPEALS
                    SECOND DISTRICT OF TEXAS
                         FORT WORTH

                       NO. 02-16-00245-CV


JON GOWER, INDIVIDUALLY AND                       APPELLANT
AS REPRESENTATIVE OF THE
ESTATE OF AARON ASHLEY
GOWER

                                  V.

UNIVERSITY BEHAVIORAL                             APPELLEES
HEALTH OF DENTON A/K/A UHP,
LP D/B/A UNIVERSITY
BEHAVIORAL HEALTH OF
DENTON; UNIVERSAL HEALTH
SERVICES, INC.; AND NISHENDU
M. VASAVADA, M.D.

                               ----------

       FROM THE 431ST DISTRICT COURT OF DENTON COUNTY
                 TRIAL COURT NO. 14-07848-431
                                      ----------

                           MEMORANDUM OPINION1

                                      ----------

      Appellant Jon Gower, individually and as representative of the Estate of

Aaron Ashley Gower, appeals the trial court’s dismissal of his health care liability

claims against appellees University Behavioral Health of Denton a/k/a UHP, LP

d/b/a University Behavioral Health of Denton (University); Universal Health

Services, Inc. (Universal); and Nishendu M. Vasavada, M.D.          The trial court

dismissed Gower’s claims because the expert report that he served on appellees

did not comply with provisions of chapter 74 of the civil practice and remedies

code.2 On appeal, Gower contends that the trial court should not have dismissed

his claims because the report was sufficient or because the court should have

granted him an opportunity to cure any deficiencies. He also argues that the trial

court erred by considering documents outside of the report to determine the

report’s sufficiency and that the court improperly awarded attorney’s fees to

appellees. Appellees contend that the report did not qualify as a good faith effort

to comply with the statutory requirements and that under the circumstances of

this case, the trial court was not required to grant an opportunity to cure.




      1
          See Tex. R. App. P. 47.4.
      2
          Tex. Civ. Prac. & Rem. Code Ann. §§ 74.001–.507 (West 2017).


                                          2
Because we hold that the report was deficient but that Gower was entitled to an

opportunity to cure, we reverse and remand.

                               Background Facts

      In September 2014, Gower sued appellees, seeking damages.            In his

original petition, Gower alleged that in January 2013, Aaron, Gower’s son, had

been admitted to a mental health hospital and had died there the next month.

Gower alleged that Aaron had presented to the hospital with symptoms of

insomnia, depression, suicidal gestures, hearing voices, and agitation.

According to Gower, during Aaron’s time at the hospital, he was manic,

distraught, delusional, and depressive.       Gower pled that near noon on

February 2, 2013, Aaron was found face down in his room; he had vomit in his

mouth and was unresponsive. Paramedics took Aaron to an emergency room,

where he died four days later from respiratory failure, brain death, pneumonia,

and sepsis.

      Gower alleged that during Aaron’s treatment, University (as a health care

provider) and Dr. Vasavada (as a specialist in the field of psychiatry) had acted

negligently. Specifically, Gower pled that University and Dr. Vasavada had been

negligent and grossly negligent by, among other acts, prescribing excessive

medication, failing to properly monitor Aaron, failing to adequately assess him

upon presentation and stabilize him thereafter, failing to ensure that he was seen

by qualified health care providers, and failing to properly supervise him. Gower

further pled that Universal owns and operates University and was negligent and


                                        3
grossly negligent by failing to use ordinary care to monitor and supervise its

employees, failing to properly secure the premises and protect psychiatric

patients from harm, failing to use ordinary care to protect Aaron from the danger

presented by employees and other patients, failing to adequately warn Aaron of

the dangers presented by the lack of proper security on the premises, and failing

to have or enforce policies and procedures on various matters.

      Each appellee answered the petition in November 2014. In January 2015,

Gower served appellees with an expert report. Dr. Leo Borrell, a board certified

psychiatrist, wrote the report. Concerning the events related to Aaron’s death,

the report stated,

      On January 16, 2013, [Aaron] voluntarily checked himself into
      [University]. He presented with agitation, bizarre behavior, severe
      anxiety, suicidal ideation, and . . . synthetic marijuana (K2) abuse.
      He reported a history of depression and chemical dependency.
      [Aaron], 22 years old at the time, was admitted to adult inpatient care
      at [University] for psychiatric stabilization under the care and
      treatment of psychiatrist Dr. Nishendu M. Vasavada. . . .

             [Aaron] was diagnosed [with] bipolar disorder with psychotic
      features and K2 and marijuana abuse. He was delusional and also
      had a history of suicide ideation. . . . [He] remained in [University]
      until February 2, 2013, as in inpatient in the [Critical Stabilizing Unit].

            The records reflect that [Aaron] was initially prescribed
      Depakote and Seroquel but refused to take either[,] stating he was
      worried about the side effects. . . . On January 23, he was . . .
      administered Vistaril 50 mg because he was suffering from severe
      anxiety. On January 28, there was a change in [Aaron’s] behavior
      and he became very distraught. He was suffering from a great deal
      of depression, anxiety, agitation[,] and delusional thinking. . . .
      [Aaron] became hypertensive, so an internal medicine consult was
      ordered and he began taking [Lisinopril] . . . and Clonidine . . . on



                                          4
         January 31. Dr. Dipprey,[3] the internal medicine specialist that
         treated [Aaron] for hypertension[,] did not note any specific findings
         in his charts. On February 1, . . . [Aaron] appeared to be somewhat
         sedated. . . .

                When Dr. Vasavada saw [Aaron] around 10:30 a.m. on
         February 2, he noted that [Aaron] was sedated . . . and needed to be
         seen by a medical doctor. According to medical records, around
         noon [Aaron] was sleeping in his room and began making strange
         noises. The nursing staff . . . found him unconscious with vomit in
         his mouth. A code blue was called . . . . His eyes were fixed and
         dilated. . . .

                [Aaron] was transferred to [a hospital] where he was placed on
         life support. His family was advised [he] had suffered severe brain
         damage due to a lack of oxygen for an extended period of time
         leading up to the time he was found at [University]. [Aaron] was
         pronounced dead on February 6, 2013.

         In the report, Dr. Borrell separated his discussion of the alleged negligence

of Universal, University, and Dr. Vasavada. With respect to Universal, Dr. Borrell

wrote,

               At all relevant times [Universal] owned . . . and managed
         [University] . . . . [Universal] held itself out as providing for the
         diagnosis, treatment, and care of [psychiatric] patients . . . .
         [Universal] owed a duty to [Aaron] to act as a reasonably prudent
         owner, operator, and/or management company of an inpatient
         psychiatric facility under the same or similar circumstances.

                 . . . [Universal] committed one or more of the following acts
         . . . of negligence[:] . . . failing to use ordinary care to monitor and
         supervise its employees charged with the care and supervision of
         psychiatric patients, including but not limited to the plaintiff [R.H.], all
         of which posed an unreasonable risk of harm to patients like the
         plaintiff[;] . . . and failing to have/or enforce policies and procedures
         on: 1) Failing to use ordinary care in the hiring, monitoring,
         3
        Gower added Dr. Trisha Dipprey as a defendant through his first amended
petition. Dr. Dipprey is not a party in this appeal, and Gower states that she has
been dismissed from the underlying suit.


                                              5
      evaluating[,] and supervising [of] employees and staff charged with
      the care and supervision of psychiatric patients; 2) Conducting
      appropriate screening/review of credentials for staff physicians;
      3) Ensuring patient safety; 4) Preventing the prolonged
      hospitalization of patients for the purpose of profit over patient care;
      and 5) Implementing proper procedures to ensure patients were
      properly evaluated and treated from the time of admission through
      the time of discharge.

             Further, [Universal] is liable for the negligent acts and
      omissions of its various agents . . . pursuant to the doctrine of
      respondeat superior . . . . Each of the above-cited acts . . . [was]
      foreseeable and a proximate cause of the injuries, damages,
      suffering[,] and death of [Aaron]. [Emphasis added.]

      Concerning University’s alleged negligence, Dr. Borrell stated in his report

that University

      breached the standard of care in this matter. On the occasion(s) in
      question, as described herein, [University] committed one or more of
      the following acts . . . of negligence[:] . . . failing to use ordinary care
      to monitor and supervise its employees charged with the care and
      supervision of psychiatric patients, including but not limited to
      [Aaron], . . . and failing to have/or enforce policies and procedures
      on: 1) Hiring, monitoring, evaluating and supervising employees and
      staff; 2) Conducting appropriate screening/review of credentials for
      staff physicians; 3) Ensuring patient safety; 4) Prescribing excessive
      medication to [Aaron] under the circumstance[s][;] 5) Failing to
      properly monitor [Aaron’s] condition; . . . 6) Failing to provide the
      appropriate level of supervision; [and] 7)[ ]Failing to properly stabilize
      [Aaron].

             I have experience and I am familiar with the standard of care
      that . . . hospitals treating mental healthcare patients should follow
      when a patient’s vitals are out of normal range. . . . First, a
      registered nurse must supervise and evaluate the nursing care for
      each patient. Thus, once a patient’s vitals are above the normal
      range, it is imperative that those vitals are re-checked and that there
      is nurse or even physician intervention if necessary. [Aaron’s] blood
      pressure and heart rate were above the normal range on several
      occasions during his time as an inpatient . . . . [O]n each of these
      occasions, [Aaron’s] blood pressure and heart rate should have


                                           6
      been re-checked, a nurse should have been notified, and nurse
      intervention should have occurred. The staff failed to do this . . . .
      [Aaron’s] blood pressure and/or heart rate were out of the normal
      range and no follow-up and/or re-check was completed . . . .

      Finally, in the section of the report concerning Dr. Vasavada’s alleged

negligence, Dr. Borrell stated,

             Further, the internal medicine specialist, Dr. Dipprey, who
      evaluated [Aaron’s] hypertension did not note anything in his chart.
      The only thing that is noted is that [Aaron’s] hypertension was
      “treated.” No specific findings are mentioned nor even what testing
      and procedures Dr. Dipprey performed. Dr. Vasavada was the
      attending and was similarly responsible for monitoring [Aaron’s]
      medical conditions and changes thereto at all time[s], including
      ensuring proper orders were put in place to manage and monitor
      [Aaron’s] blood pressure and heart rate. Moreover, Dr. Vasavada’s
      discharge summary merely states that an internal medicine consult
      was ordered and that [Aaron] was evaluated, but once again no
      specific findings are documented. [Aaron’s] chart has no indication
      of proper treatment relating to his hypertension. . . .

            There were also other occasions that [Aaron] exhibited
      unusual behavior and/or symptoms and no follow-up or interventions
      were taken. . . . In all of the above instances, [University] did not
      meet the standard of care in that it failed to ensure registered nurses
      supervised and evaluated the nursing care of [Aaron], and the signs
      and symptoms associated with his changing medical condition.
      Specifically, [Aaron’s] vitals and life-threatening condition were either
      not documented and/or his vitals were not properly monitored and
      re-evaluated.

            Furthermore, I am familiar with the standard of care required
      in emergency situations like [Aaron’s], when he was found
      unresponsive in his room on the floor. The patient has the right to
      receive care in a safe setting . . . . [University] did not meet the
      standard of care in that it had inadequate emergency equipment
      needed to resuscitate [Aaron]. Namely, the pads for Automated
      External Defibrillator (AED) were not available on the crash cart
      causing the AED to be useless. (See Dept. of Health Complaints –
      Investigation dated 5/16/13).



                                         7
      Dr. Borrell closed his report with a summarizing paragraph about the

alleged negligence of all three defendants:

             In summary, the conduct called into question is the failure by
      [University], its parent company [Universal], Dr. Dipprey, and Dr.
      Vasavada to recognize and properly treat [Aaron’s] symptoms and
      failure to provide the appropriate medications that ultimately led to
      his untimely death. Furthermore, the parties also failed to meet the
      standard of care as described above by failing to adequately
      respond to [Aaron’s] distress or to have the proper life-saving
      equipment available. It is my opinion that the failures set forth above
      were the proximate cause of [Aaron’s] death. Namely, had [Aaron’s]
      high blood pressure been properly monitored and treated in a timely
      manner so as to investigate the cause, or had [University] had the
      appropriate life-saving equipment, it is my opinion that to a
      reasonable degree of medical probability he would have received
      timely treatment of his condition and [would have] survived.

      University, Universal, and Dr. Vasavada all filed timely objections to the

adequacy of Dr. Borrell’s report.    They all contended that the report did not

qualify as a good faith effort to satisfy the requirements of section 74.351 of the

civil practice and remedies code.      They all argued that the report failed to

establish Dr. Borrell’s qualifications to opine about the subjects discussed within

the report and did not sufficiently describe the applicable standard of care, how

each defendant breached the standard, and the causal relationship between the

alleged breaches and Aaron’s death. Dr. Vasavada also noted that the report

discussed the care received by an unknown patient, R.H.             University and

Universal attached documents to their objection to Dr. Borrell’s report, including a

report from Aaron’s autopsy stating that he had died from dural sinus thrombosis

with associated brain edema.



                                         8
      Dr. Borrell did not amend his report to address the deficiencies asserted by

appellees’ objections. Months after appellees filed their objections, they filed

motions to dismiss Gower’s lawsuit for his failure to serve an expert report that

complied with section 74.351.      Gower responded to the objections and the

motions to dismiss. He contended that Dr. Borrell’s report represented a good

faith effort to comply with the statute. Alternatively, he argued that he should be

granted leave to file an amended expert report to correct any deficiencies.

      Universal and University replied to Gower’s response. They restated their

contentions that Dr. Borrell’s report failed to establish his qualifications to opine

about their standard of care, failed to explain the standard of care or how the

standard of care was breached, and failed to adequately address causation from

any such breach to Aaron’s death. They also contended that the trial court could

consider the documents attached to their objections, which they asserted showed

that some of the factual statements in Dr. Borrell’s report were inaccurate. With

respect to Gower’s alternative request for an opportunity to cure any deficiencies

in Dr. Borrell’s report, Universal and University argued,

      [Gower’s] lack of any attempt to provide a compliant report (when
      there was ample time to do so after [appellees] filed their objections
      and before [Gower’s] deadline expired) or even correct the
      misinformation, misrepresentation[,] and fabrication asserted by Dr.
      Borrell . . . clearly demonstrates that there was no good faith effort
      made, and thus, [Gower] is not entitled to obtain the requested 30
      day extension . . . .

      The trial court held a hearing on the motions to dismiss. By the time the

court held the hearing in April 2016, more than a year had passed since


                                         9
appellees had first objected to Dr. Borrell’s report. During the hearing, the trial

court made the following observation:

      I would expect in a medical malpractice case to be able to read the
      report and understand precisely how and why the patient died, at
      least in a case involving a fatality, and I am left after reading this
      report with confusion as to, you know, other than the medical
      terminology, what the cause of death really was and how that in any
      way relates back to any neglect by the [defendants].

Also at the hearing, with respect to whether the trial court should grant Gower an

opportunity to amend the report to cure any deficiencies, counsel for Universal

and University stated,

      There were a couple of things that were glaring on their face that
      should have been fixed and there’s been no attempt to fix in over a
      year and no attempt to fix in the last six months since the reply was
      filed. And there have been additional conversations held with
      opposing counsel . . . where those specific things were discussed
      and no attempt has been made. And I will just leave it at that. I
      think the time that’s gone by and the lack of effort to correct not only
      those things but other things as well is indicative of a lack of good
      faith, Your Honor.

Finally, in explaining why it would be granting the motions to dismiss, the trial

court stated,

             In this case, this is not a difficult call for me. And while I am
      sympathetic with the fact that a young person lost [his] life, I simply
      don’t believe this report is a good faith representation of any opinion
      that would justify not only the expert’s qualifications to render the
      opinions that are given, but to explain the basis factually or causally
      for those opinions. And because of that, coupled with the failure to
      even attempt to remedy the obvious error in the report, if not errors
      in the report, I similarly find that it is not a good faith effort to bring
      the report into compliance as could have been done any time during
      the last year, and therefore will not only . . . sustain the objections
      and grant the dismissal of the case, but I am going to deny [Gower]
      an opportunity to revise or modify the report in the next 30 days.


                                          10
      Following the hearing, the trial court signed orders sustaining appellees’

objections to Dr. Borrell’s report and granting their motions to dismiss. Gower

filed a motion for new trial in which he alleged that he should have been given an

opportunity to cure any deficiencies in the report. To the motion for new trial,

Gower attached an amended report written by Dr. Borrell. He also attached, for

the first time, a report written by Richard Bays, a registered nurse. In his report,

Bays opined about the standards of care, alleged breaches of the standard, and

causation related to University.

      University and Universal filed a motion to strike Dr. Borrell’s amended

report and Bays’s report on the ground that they were untimely. Dr. Vasavada

also objected to Dr. Borrell’s amended report and responded to Gower’s motion

for new trial, contending that the trial court’s “action of denying an opportunity

cure was justified by the incurable nature of the deficiencies.” After holding a

hearing on Gower’s motion for new trial, the trial court denied it. Gower brought

this appeal.

                     The Trial Court’s Dismissal Decision

      In his first issue, Gower contends that Dr. Borrell’s original report met the

“minimal requirement” of a good faith effort to comply with chapter 74’s

requirements and that the trial court abused its discretion by ordering dismissal.

In his second issue, Gower contends that the trial court abused its discretion by

considering evidence outside the four corners of Dr. Borrell’s report to support




                                        11
dismissal.   Gower contends in his third issue that the trial court improperly

awarded attorney’s fees to appellees.

The inadequacy of Dr. Borrell’s first report

      In a health care liability claim,4 a plaintiff must serve each defendant with a

report and a curriculum vitae of the report’s author. Tex. Civ. Prac. & Rem. Code

Ann. § 74.351(a). The report must be written by an expert qualified to give an

opinion on the matters in the report, must inform the defendant of the specific

conduct called into question, and must provide a basis for the trial court to

determine that the plaintiff’s claim has merit. See id. §§ 74.351(r)(5)(A), (r)(6),

74.401(a); Bowie Mem’l Hosp. v. Wright, 79 S.W.3d 48, 52 (Tex. 2002); see also

Hebner v. Reddy, 498 S.W.3d 37, 40 (Tex. 2016) (explaining that chapter 74

aims to eliminate frivolous claims expeditiously while preserving claims of

potential merit).

      A report has not been “served” under the statute when it has been

physically served but is found deficient. Moore v. Gatica, 269 S.W.3d 134, 139

(Tex. App.—Fort Worth 2008, pet. denied) (op. on remand). A report is deficient

only if it does not represent an objective good faith effort to comply with the

statutory requirements. Tex. Civ. Prac. & Rem. Code Ann. § 74.351(a)–(b), (l).


      4
       A health care liability claim is, in pertinent part, “a cause of action against
a health care provider or physician for treatment, lack of treatment, or other
claimed departure from accepted standards of medical care, or health care, . . .
which proximately results in injury to or death of a claimant.” Tex. Civ. Prac. &
Rem. Code Ann. § 74.001(a)(13).


                                         12
Upon a defendant’s motion, when a court finds that an expert report does not

represent a good faith attempt to comply with the statute’s requirements, the

court must either (1) dismiss the plaintiff’s claim with prejudice and award

attorney’s fees to the defendant, or (2) grant one thirty-day extension to cure the

report’s deficiencies.   Id. § 74.351(b)–(c); see Am. Transitional Care Ctrs. of

Tex., Inc. v. Palacios, 46 S.W.3d 873, 879 (Tex. 2001) (explaining that a report

does not meet the good faith standard if it merely states the expert’s conclusions

or if it omits any of the statutory requirements).

      While the expert report “need not marshal all the plaintiff’s proof,” Palacios,

46 S.W.3d at 878, it must provide a fair summary of the expert’s opinions as to

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.” Tex.

Civ. Prac. & Rem. Code Ann. § 74.351(r)(6). The information in the report “does

not have to meet the same requirements as the evidence offered in a summary-

judgment proceeding or at trial.” Palacios, 46 S.W.3d at 879. When reviewing

the adequacy of a report, the only information relevant to the inquiry is the

information contained within the four corners of the document. Id. at 878. “This

requirement precludes a court from filling gaps in a report by drawing inferences

or guessing as to what the expert likely meant or intended.” Moore, 269 S.W.3d

at 140.




                                          13
      We review a trial court’s decision to grant a motion to dismiss alleging the

inadequacy of an expert report for an abuse of discretion. Merry v. Wilson, 498

S.W.3d 270, 272 (Tex. App.—Fort Worth 2016, no pet.). A trial court abuses its

discretion if the court acts without reference to guiding rules or principles. Moore,

269 S.W.3d at 139.

      In their objections and motions to dismiss, all of the appellees contended

that Dr. Borrell’s original report was insufficient because, among other alleged

deficiencies, it failed to establish Dr. Borrell’s qualifications to comment about the

causal connection between any breaches of the standards of care and Aaron’s

death and failed to adequately explain that causal connection. We agree that Dr.

Borrell’s report was deficient in those regards.

      To qualify as an “expert report,” the report must be drafted by an “expert”

as that term is defined in the statute. See Tex. Civ. Prac. & Rem. Code Ann.

§ 74.351(r)(5).   As to the causal relationship between the injury, harm, or

damages claimed and the alleged departure from the applicable standard of

care, an expert must be “a physician who is otherwise qualified to render

opinions on such causal relationship under the Texas Rules of Evidence.” Id.

§ 74.351(r)(5)(C); see TTHR, L.P. v. Coffman, 338 S.W.3d 103, 112 (Tex. App.—

Fort Worth 2011, no pet.) (“The legislature has prescribed that it is necessary for

a physician to opine as to causation of damages.”).          The rules of evidence

provide that a witness may testify on “scientific, technical, or other specialized




                                         14
knowledge” if the witness is qualified as an expert on the matter “by knowledge,

skill, experience, training, or education.” Tex. R. Evid. 702.

      Rule 702 does not necessarily require that a plaintiff’s expert and the

defendant doctor be physicians practicing in the same field. Simpson v. Barton,

No. 08-16-00076-CV, 2016 WL 7176998, at *3 (Tex. App.—El Paso Dec. 9,

2016, no pet.). On the other hand, a medical license does not automatically

qualify a doctor to testify about causation on every medical question.         See

Roberts v. Williamson, 111 S.W.3d 113, 121 (Tex. 2003). Rather, to establish

qualifications, a doctor must show that he had knowledge, skill, experience, or

training regarding the specific issue before the court. See id.; see also Otero v.

Richardson, 326 S.W.3d 363, 371 (Tex. App.—Fort Worth 2010, no pet.) (holding

that when the plaintiff’s claim concerned a doctor’s alleged negligence in treating

an ankle fracture, the expert established his qualification by showing that he had

treated “approximately 20,000 patients with orthopedic injuries”); Menefee v.

Ohman, 323 S.W.3d 509, 514 (Tex. App.—Fort Worth 2010, no pet.) (“The

proper inquiry concerning whether a doctor is qualified to testify is not his or her

area of practice but rather the doctor’s familiarity with the issues involved in the

claim before the court.”); Collini v. Pustejovsky, 280 S.W.3d 456, 466 (Tex.

App.—Fort Worth 2009, no pet.) (op. on remand) (holding that a doctor was not

qualified to opine on causation about a drug causing tardive dyskinesia when he

did not state experience or training regarding prescribing that drug or diagnosing




                                         15
tardive dyskinesia). We review a trial court’s determination concerning a medical

expert’s qualifications for an abuse of discretion. Otero, 326 S.W.3d at 371.

      The “injury” at issue is Aaron’s death; as such, Dr. Borrell’s report or

curriculum vitae needed to demonstrate how he was qualified by knowledge,

skill, experience, training, or education to opine about how any of appellees’ acts

or omissions caused the death.        See Tex. Civ. Prac. & Rem. Code Ann.

§ 74.351(r)(5)(C); Tex. R. Evid. 702. To do so, he needed to show that he had

some knowledge, skill, experience, or training concerning the physical conditions

that caused Aaron’s death. Roberts, 111 S.W.3d at 121.

      Dr. Borrell’s initial report stated that he is a board-certified and practicing

psychiatrist5 and that he treats patients for stress, anxiety, drug addiction,

depression, suicidal ideation, and psychosis. The report states that Dr. Borrell

has treated “thousands of patients with a wide variety of mental health conditions

similar” to Aaron’s upon his admission to University. [Emphasis added.] Later,

the report states,

      As a psychiatrist, I have been involved in clinical care of patients like
      [Aaron] hundreds of times, administration and management of
      clinical services provided to patients like [Aaron], program
      development, training[,] and research. . . . As a psychiatrist and
      supervisor of nurses, and in my training of hospital staff, I have
      become familiar with the standards of care that apply to both
      psychiatrists and nurses providing care to psychiatric patients.


      5
       Psychiatry is the “medical specialty concerned with the diagnosis and
treatment of mental disorders.” Stedman’s Medical Dictionary 1594 (28th ed.
2006).


                                         16
Dr. Borrell’s curriculum vitae similarly recites his board certification and details

his experience in practicing psychiatry and publishing articles concerning

psychiatry and related subjects.

      However, neither the report nor the curriculum vitae show how Dr. Borrell

was qualified to opine about some of the physical conditions that Aaron suffered

from that led to his death, including the cause of his vomiting and his lack of

oxygen associated with his brain damage. While the report discusses Aaron’s

out-of-range blood pressure and heart rate on days preceding the day he died

and shows Dr. Borrell’s familiarity with standards of care for treating those

conditions, the report does not explain whether or how those conditions caused

appellant’s death;6 identify the precise medical cause of Aaron’s death; explain

why Dr. Borrell was qualified to opine about any such cause; or explain, beyond

conclusory statements,7 why any change in appellees’ alleged acts or failures to


      6
       In his live pleading, Gower alleged that “respiratory failure, brain death,
pneumonia[,] and sepsis” caused Aaron’s death. Dr. Borrell’s report does not
explain how Aaron’s out-of-range blood pressure and heart rate contributed to
these conditions or how Dr. Borrell was qualified to opine about these conditions.
      7
        Gower recognizes in his brief to this court that the “expert’s report must
contain information linking the harm to the alleged breach in a manner that is not
merely conclusory.” In re Stacy K. Boone, P.A., 223 S.W.3d 398, 406 (Tex.
App.—Amarillo 2006, orig. proceeding); see also Farishta v. Tenet Healthsystem
Hosps. Dallas, Inc., 224 S.W.3d 448, 453 (Tex. App.—Fort Worth 2007, no pet.)
(stating that a report must demonstrate causation beyond mere conjecture).

       Gower argues that one sentence in the report’s final substantive paragraph
sets forth Dr. Borrell’s opinions on causation in a nonconclusory manner: “[H]ad
[Aaron’s] high blood pressure been properly monitored and treated in a timely
manner, . . . or had [University] had the appropriate life-saving equipment, it is

                                        17
act   (including   their   alleged   failures   to   provide   undefined   “appropriate

medications”) would have affected the outcome. See Craig v. Dearbonne, 259

S.W.3d 308, 313 (Tex. App.—Beaumont 2008, no pet.) (holding that a report was

conclusory and insufficient when it failed to “explain what treatment would have

been effective, but was not provided, or whether the treatment [the doctor]

provided would have been effective if it had been started earlier”); Hardy v.

Marsh, 170 S.W.3d 865, 870 (Tex. App.—Texarkana 2005, no pet.) (concluding

that a report that stated that the patient “should have had a consultation with a

vascular surgeon” was insufficient because it did not “state what additional

procedures or treatment would have been provided by the surgeon” or “connect

the consultation to avoidance of the amputation”). Further, while the report faults

University for not having pads for an Automated External Defibrillator, the report

does not explain how or why Aaron would have lived had the defibrillator been

used or how Dr. Borrell would be qualified based on his education, training, or

experience to make that assessment.

      For these reasons, because neither Dr. Borrell’s initial report nor his

curriculum vitae explained his qualifications to opine about the causal link

between appellees’ alleged negligence and Aaron’s death or adequately

my opinion that . . . he would have . . . survived.” But a mere assertion that a
patient “would have survived,” without an explanation of how or why, is
insufficient to satisfy section 74.351’s requirements. See Costello v. Christus
Santa Rosa Health Care Corp., 141 S.W.3d 245, 249 (Tex. App.—San Antonio
2004, no pet.); see also Ortiz v. Patterson, 378 S.W.3d 667, 674 (Tex. App.—
Dallas 2012, no pet.).


                                           18
explained that causal link, we conclude that the trial court did not abuse its

discretion by deciding that the original report did not qualify as a good faith effort

to comply with the statute and by sustaining appellees’ objections to the report.8

See Tex. Civ. Prac. & Rem. Code Ann. § 74.351(l), (r)(5)(C), (r)(6); Tex. R. Evid.

702; Palacios, 46 S.W.3d at 879; Merry, 498 S.W.3d at 272. To the extent that

Gower’s first issue challenges the trial court’s decision to sustain these

objections to Dr. Borrell’s initial report, we overrule the issue.

The trial court’s denial of an opportunity to cure

      In the alternative to arguing that Dr. Borrell’s first report qualified as a good

faith effort to comply with section 74.351, Gower contends that the trial court

should have granted him a thirty-day extension to cure any deficiencies. See

Tex. Civ. Prac. & Rem. Code Ann. § 74.351(c) (“If an expert report has not been

served within the period specified by Subsection (a) because elements of the

report are found deficient, the court may grant one 30-day extension to the

claimant in order to cure the deficiency.”). He relies on our supreme court’s

decision in Scoresby v. Santillan, 346 S.W.3d 546, 549, 556 (Tex. 2011) (stating

that a “trial court should err on the side of granting the additional time” and



      8
        Given our conclusion that the initial report and curriculum vitae were
insufficient in this regard and that the trial court therefore did not err by sustaining
appellees’ objections to the report, we decline to address all the other ways in
which appellees contend that Dr. Borrell’s initial report was inadequate. See Tex.
R. App. P. 47.1; Baylor All Saints Med. Ctr. v. Martin, 340 S.W.3d 529, 535 n.1
(Tex. App.—Fort Worth 2011, no pet.).


                                          19
explaining that an “inadequate expert report does not indicate a frivolous claim if

the report’s deficiencies are readily curable”).

      In Scoresby, the court explained that when a trial court finds deficiencies

within an expert report, it should “err on the side of granting the additional time

and must grant it if the deficiencies are curable.” Id. at 549 (emphasis added).

The court also explained that an individual’s “lack of relevant qualifications and

an opinion’s inadequacies are deficiencies the plaintiff should be given an

opportunity to cure if it is possible to do so.” Id. The court stated that trial courts

should be “lenient” in granting opportunities to cure so that a plaintiff has a “fair

opportunity demonstrate that [a] claim is not frivolous.”        Id.   Applying these

standards, the court held that a letter written by an expert to the plaintiff’s

attorney that was unaccompanied by the expert’s curriculum vitae, did not detail

the expert’s credentials or experience, and did not state a standard of care was

nonetheless worthy of allowing an opportunity to cure those (and other)

deficiencies. Id. at 550–58. The court explained,

      The purpose of the expert report requirement is to deter frivolous
      claims, not to dispose of claims regardless of their merits. “The
      Legislature has determined that failing to timely file an expert report,
      or filing a report that does not evidence a good-faith effort to comply
      with the definition of an expert report, means that the claim is either
      frivolous, or at best has been brought prematurely.” But the
      Legislature has likewise recognized that when an expert report can
      be cured in thirty days, the claim is not frivolous. It must be
      remembered that “‘[t]here are constitutional limitations upon the
      power of courts . . . to dismiss an action without affording a party the
      opportunity for a hearing on the merits of his cause’”, and those
      limitations constrain the Legislature no less in requiring dismissal.



                                          20
Id. at 554 (footnotes omitted). Finally, in describing when a claim should be

dismissed without giving a plaintiff an opportunity to cure, the court stated,

      To stretch the meaning of deficient to include a sheet of paper with
      the two words, “expert report”, written on it would mock the Act’s
      requirements. . . . In determining where to draw the line, we are
      guided by two considerations. One is that the Act’s principal
      purpose is to reduce the expense of health care liability claims. . . .
      The other consideration is the goal of the Act’s expert report
      requirement: to deter frivolous claims. An inadequate expert report
      does not indicate a frivolous claim if the report’s deficiencies are
      readily curable.

             We conclude that a thirty-day extension to cure deficiencies in
      an expert report may be granted if [1] the report is served by the
      statutory deadline, if [2] it contains the opinion of an individual with
      expertise that the claim has merit, and if [3] the defendant’s conduct
      is implicated. We recognize that this is a minimal standard, but we
      think it is necessary if multiple interlocutory appeals are to be
      avoided, and appropriate to give a claimant the opportunity provided
      by the Act’s thirty-day extension to show that a claim has merit. All
      deficiencies, whether in the expert’s opinions or qualifications, are
      subject to being cured before an appeal may be taken from the trial
      court’s refusal to dismiss the case.

Id. at 556–57 (emphasis added); see id. at 558–60 (Willett, J., concurring)

(describing the standard for granting an opportunity to cure as “lenient,”

“benevolent,” and “low, and indicating that such an opportunity should be granted

when “someone with expertise express[es] an opinion that the plaintiff has a

meritorious malpractice claim against the defendant”); see also Certified EMS,

Inc. v. Potts, 392 S.W.3d 625, 631 (Tex. 2013) (emphasizing that the

“Legislature’s goal was to deter baseless claims, not to block earnest ones”);

Haskell v. Seven Acres Jewish Senior Care Servs., 363 S.W.3d 754, 760 (Tex.

App.—Houston [1st Dist.] 2012, no pet.) (holding that documents submitted by a


                                         21
plaintiff did not meet the Scoresby standard when they did not tie the plaintiff’s

injury to any alleged wrongful action of a defendant).

      Dr. Borrell’s report in this case, although deficient for the reasons

explained above (and perhaps other reasons as argued by appellees) meets the

three-part “minimal” standard of Scoresby for an opportunity to cure. 346 S.W.3d

at 557. First, the report was served by the statutory deadline. See id.; see also

Tex. Civ. Prac. & Rem. Code Ann. § 74.351(a).

      Second, the report contained the opinion of an individual with general

expertise that Gower’s claims have merit. See Scoresby, 346 S.W.3d at 557.

Dr. Borrell recited that he is a board-certified psychiatrist, has been licensed

since 1971, and has treated “thousands” of patients for conditions similar to

Aaron’s conditions upon his admission to University. He also stated that he was

familiar with the laws of Texas concerning the voluntary admission of mental

health patients and concerning mental health hospital staffing requirements.

Dr. Borrell further expressed that he had experience managing, supervising, and

training nursing staff in psychiatric hospitals and had become familiar with

standards of care applying to psychiatrists and nurses in that setting. He stated,

“I regularly give orders to nurses regarding patients like [Aaron], and I follow up

on the provision of such orders as part of my clinical practice. Further, based

upon my training and experience I am familiar with the staffing requirements for

facilities like [University] and its parent companies.” Finally, Dr. Borrell stated,




                                          22
            I have experience and I am familiar with the standard of care
      that nurses, physicians, and hospitals treating mental healthcare
      patients should follow when a patient’s vitals are out of normal
      range.    Specifically, I am familiar with the standard of care that
      nurses, physicians, and hospitals should follow when a patient’s
      blood pressure is above normal range.

      We conclude that these statements, along with the remainder of

Dr. Borrell’s report, establish his expertise concerning the general subject matter

of Gower’s claims. Moreover, our holding above concerning Dr. Borrell’s failure

to establish his qualifications to opine about causation is not inconsistent with our

conclusion in this regard. We note that the court in Scoresby stated that the

expert’s letter in that case “easily” met the standard of containing the opinion of

an individual with “expertise.” Id. The court reached this holding even though

(1) the defendants challenged the expert’s qualifications, (2) the expert’s letter

“did not attach [the expert’s] curriculum vitae or describe his credentials or

experience other than to state that he [was] a ‘Board-Certified neurologist,’” and

(3) the court “express[ed] no view on the adequacy of [the expert’s]

qualifications.” Id. at 550–52, 557. Thus, our conclusion above that Dr. Borrell

failed to establish qualifications to opine about causation does not foreclose

Gower’s ability to cure the deficiencies in the report.       See id. at 557 (“All

deficiencies, whether in the expert’s opinions or qualifications, are subject to

being cured before an appeal may be taken from the trial court’s refusal to

dismiss the case.”).




                                         23
      Third, Dr. Borrell’s report implicated appellees’ conduct. See id. Although

perhaps in a conclusory or vague fashion (as argued by appellees), the report

faulted Universal, University, and Dr. Vasavada for several acts and omissions.

Cf. Blevins v. Bishai, No. 09-16-00071-CV, 2017 WL 1425590, at *10 (Tex.

App.—Beaumont Apr. 20, 2017, no pet. h.) (mem. op.) (holding that a plaintiff

was not entitled to an opportunity to cure when a report stated that the defendant

doctor “did not breach the standard of care”); Alsup v. Hickory Trail Hosp., No.

05-16-00527-CV, 2017 WL 1046769, at *8 (Tex. App.—Dallas Mar. 20, 2017, no

pet.) (mem. op.) (“Appellant could cure all of these alleged deficiencies within the

thirty-day extension period by submitting a more detailed, non-conclusory expert

report.”); Post Acute Med., LLC v. Montgomery, 514 S.W.3d 889, 894 (Tex.

App.—Austin 2017, no pet.) (rejecting an opportunity to cure when the report did

“not in any way implicate” the defendant’s conduct). For example, the report

faulted Universal for failing to use ordinary care to monitor and supervise

employees charged with the supervision of psychiatric patients and for failing to

ensure that patients were properly evaluated and treated; faulted University for

those same acts and for failing to properly stabilize Aaron, for prescribing

excessive medication to him, and for failing to adequately respond to his out-of-

range blood pressure and heart rate; and faulted Dr. Vasavada for not

adequately monitoring Aaron’s blood pressure and heart rate and for not

providing appropriate medications for those conditions.




                                        24
      Appellees argue that the trial court acted within its discretion by denying an

opportunity to cure because Dr. Borrell’s report omitted statutory requirements.

But no report that needs curing contains all the requirements, and the statute

contemplates an opportunity to meet the requirements through a second chance.

See Scoresby, 346 S.W.3d at 550, 557 (holding that a trial court did not err by

granting an extension even though the expert did not provide a curriculum vitae,

the expert did not explain his credentials, and the report did not state a standard

of care); see also Tex. Civ. Prac. & Rem. Code Ann. § 74.351(c); Koutsoufis v.

Pinnacle Health Facilities GP V, No. 02-16-00150-CV, 2017 WL 370956, at *6

n.4 (Tex. App.—Fort Worth Jan. 26, 2017, no pet.) (mem. op.) (relying on

Scoresby to state that even if an expert was “unqualified to opine as to the

standard of care applicable to [certain defendants], such a deficiency would not

warrant outright dismissal with no opportunity to cure”).

      Appellees also contend that Gower was not entitled to an extension

because their objections gave him notice of the report’s deficiencies, and he did

not address those deficiencies during the lengthy period before the trial court

sustained their objections.9 We conclude, however, that in most circumstances,

including these circumstances, penalizing a plaintiff for declining to fix a report’s

alleged deficiencies before a trial court rules on objections to the report would be


      9
       At the motion to dismiss hearing, the trial court indicated that its busy
docket resulted in the lengthy delay before the trial court heard and ruled on
appellees’ objections and motions to dismiss.


                                         25
unreasonable and contrary to the purpose of section 74.351(c), which is to grant

an opportunity to cure after “elements of the report are found deficient.”10 Tex.

Civ. Prac. & Rem. Code Ann. § 74.351(c).

      It is true, as appellees argue, that the court in Scoresby indicated that a

trial court should not grant an opportunity to cure when the initial report “mock[s]

[section 74.351’s] requirements.” 346 S.W.3d at 556. But in giving an example

of such a mockery, the court cited a case in which the plaintiff relied only on a

thank-you-for-your-referral letter from one physician to another physician as

satisfying the section’s requirements. See id. (citing Lewis v. Funderburk, 253

S.W.3d 204, 206 (Tex. 2008)).         The facts here are not analogous to that

circumstance.

      We emphasize and rely on the language from Scoresby that a trial court

“must grant” an opportunity to cure if deficiencies are curable. Id. at 549. In

dismissing Gower’s suit, the trial court did not expressly find that the deficiencies

in Dr. Borrell’s report were incurable; rather, the court appeared to recognize that

the deficiencies were curable, stating, “I . . . find that [the report] is not a good



      10
         We recognize that the report’s reference to another patient was a glaring
error. However, typographical errors within a report will not render a report
insufficient under section 74.351 when the report otherwise satisfies the
requirements of that section. See Keller SNF v. Koutsoufis, No. 02-16-00227-
CV, 2017 WL 117318, at *7–8 (Tex. App.—Fort Worth Jan. 12, 2017, no pet.)
(mem. op.) (holding that a report complied with section 74.351 even though the
report referred to a skilled nursing facility that was not connected to the plaintiff’s
claim).


                                          26
faith effort to bring the report into compliance as could have been done any time

during the last year.” [Emphasis added.]

      Finally, we disagree with Dr. Vasavada’s argument that allowing for an

opportunity to cure in this case will “render the trial judge powerless to address

incompetent reports in any effective way.”         The trial court has not ruled on

whether the amended and supplemental reports submitted by Gower cure the

deficiencies in Dr. Borrell’s original report.11    If the trial court finds that the

amended and supplemental reports cure the deficiencies in the original report,

the trial court will have effectively addressed those original deficiencies.

Conversely, if the trial court finds that the amended and supplemental reports still

do not satisfy section 74.351’s requirements, the court has authority to dismiss

Gower’s suit (subject to Gower’s appeal of such a decision), thus providing

appellees with a remedy for such a deficiency. See Tex. Civ. Prac. & Rem. Code

Ann. § 74.351(b).

      In sum, we agree with appellees’ argument that an opportunity to cure

deficiencies under section 74.351(c) is not automatic; however, we also conclude

that Scoresby and the other decisions cited above shape the contours of the trial

court’s discretion—providing the guiding rules and principles—concerning

whether to grant such an opportunity.        346 S.W.3d at 557; see Moore, 269


      11
        We conclude that it would not be appropriate for us to consider the
adequacy of the amended and supplemental reports without allowing the trial
court an opportunity to do so.


                                        27
S.W.3d at 139. We conclude that under the principles discussed in those cases,

Gower was entitled to an opportunity to cure. Therefore, we sustain Gower’s first

issue to the extent that he appeals the trial court’s decision to dismiss his suit for

a deficient expert report without granting an opportunity to cure under section

74.351(c). See Tex. Civ. Prac. & Rem. Code Ann. § 74.351(c).

Consideration of extrinsic evidence and attorney’s fees

      In his second issue, Gower asserts that the trial court erred by considering

extrinsic evidence: documents that University and Universal attached to their

objections to Dr. Borrell’s report. In his third issue, Gower argues that the trial

court improperly awarded attorney’s fees to appellees. In light of our holding

above that requires reversal of the trial court’s orders that dismissed Gower’s

claims, we conclude that we must also sustain Gower’s challenge to the award of

attorney’s fees. See id. § 74.351(b)(1)–(2) (linking an award of attorney’s fees

with the dismissal of the plaintiff’s claim). We sustain Gower’s third issue. We

decline to address his second issue, as resolution of the question concerning the

trial court’s consideration of extrinsic evidence is not necessary to the disposition

of this appeal. See Tex. R. App. P. 47.1.




                                         28
                                   Conclusion

      Having sustained part of Gower’s first issue and all of his third issue, we

reverse the trial court’s orders that dismissed Gower’s claims against Universal,

University, and Dr. Vasavada and that required Gower to pay attorney’s fees.

We remand this case to the trial court for further proceedings consistent with this

opinion.

                                                   /s/ Terrie Livingston

                                                   TERRIE LIVINGSTON
                                                   CHIEF JUSTICE

PANEL: LIVINGSTON, C.J.; SUDDERTH and KERR, JJ.

DELIVERED: July 20, 2017




                                        29
