                                   IN THE
                           TENTH COURT OF APPEALS

                                 No. 10-13-00175-CV

BARBARA BATY,
                                                         Appellant
v.

OLGA L. FUTRELL, CRNA, AND COMPLETE
ANESTHESIA CARE, PC,
                                                         Appellee



                             From the 40th District Court
                                 Ellis County, Texas
                                Trial Court No. 85552


                            MEMORANDUM OPINION


       Barbara Baty appeals from final orders that dismissed her health care liability

claims with prejudice. In her sole issue, Baty complains that the trial court erred by

determining that her amended expert report was deficient. See TEX. CIV. PRAC. & REM.

CODE ANN. § 74.351 (West Supp. 2014). Because we find no reversible error, we affirm

the orders of the trial court.
                     I.     Factual and Procedural Background

        On March 23, 2011, Baty underwent a surgical procedure at the Surgery Center of

Waxahachie to remove a cataract from her left eye. Olga Futrell, a certified registered

nurse anesthetist (CRNA), administered retrobulbar anesthesia during the procedure,

which is generally described as anesthesia behind the eyeball.                 During the

administration of the anesthesia, Futrell allegedly inserted a needle into Baty’s left optic

nerve, which eventually resulted in permanent blindness in her left eye.

        Baty sued Futrell for negligence and Complete Anesthesia Care, P.C., Futrell’s

employer, alleging that it was vicariously liable for Futrell’s negligent acts. Baty served

and attached an expert report authored by Dr. Steven Chalfin with her original petition.

Futrell and CAC filed timely objections to Chalfin’s report, and motions to dismiss

Baty’s claims, contending that Chalfin’s report was inadequate and failed to satisfy the

statutory requirements for a healthcare liability expert report.      Because the parties

agreed that Chalfin’s first report was deficient, one thirty-day extension of time was

granted to allow Baty to cure the deficiencies.

        Baty thereafter submitted Chalfin’s amended expert report to Futrell and CAC.

Futrell and CAC filed timely objections alleging that the amended expert report was

deficient as to all essential elements of a health care liability claim (standard of care,

breach of the standard of care, and causation); Futrell and CAC also filed amended

motions to dismiss and requested a hearing. At the conclusion of the hearing, the trial


Baty v. Futrell                                                                       Page 2
court sustained Futrell and CAC’s objections to the amended expert report as being

deficient, and granted their amended motions to dismiss. Pursuant to the trial court’s

orders, all claims asserted by Baty were dismissed with prejudice.            This appeal

followed.

                     II.      Health Care Liability Claim Expert Reports

        A plaintiff asserting a health care liability claim must serve each defendant with

an expert report that includes "a fair summary of the expert's opinions . . . regarding

applicable standards of care, the manner in which the care rendered by the physician or

health care provider failed to meet the standards, and the causal relationship between

that failure and the injury, harm, or damage claimed." TEX. CIV. PRAC. & REM. CODE §

74.351(r)(6). A challenge to the sufficiency of an expert report must be sustained if the

trial court concludes, after a hearing, that "the report does not represent an objective

good faith effort to comply with the [statutory requirements]." Id. § 74.351(l). An expert

report constitutes an objective “good faith effort” if it provides adequate information to

"inform the defendant of the specific conduct the plaintiff has called into question, . . .

provide[s] a basis for the trial court to conclude that the claims have merit," Bowie Mem'l

Hosp. v. Wright, 79 S.W.3d 48, 52 (Tex. 2002) (per curiam), and "does not contain a

material deficiency," Samlowski v. Wooten, 332 S.W.3d 404, 410 (Tex. 2011).

        We review a trial court's ruling on the sufficiency of an expert's report for an

abuse of discretion.       Rosemond v. Al-Lahiq, 331 S.W.3d 764, 766 (Tex. 2011); Am.


Baty v. Futrell                                                                      Page 3
Transitional Care Ctrs. of Tex., Inc. v. Palacios, 46 S.W.3d 873, 877 (Tex. 2001). Under that

standard, we defer to the trial court's factual determinations if they are supported by

the evidence, but review its legal determinations de novo. See Stockton v. Offenbach, 336

S.W.3d 610, 615 (Tex. 2011). A trial court abuses its discretion if it rules arbitrarily or

unreasonably, and without reference to guiding rules or principles. Samlowski, 332

S.W.3d at 410. Nevertheless, when reviewing matters committed to the trial court's

discretion, we may not substitute our opinion for the trial court's judgment. Id.

        To be sufficient, an expert report may not merely state the expert's conclusions as

to the standard of care, breach of the standard of care, and causation. See Palacios, 46

S.W.3d at 879. Rather, the expert must explain the basis for his statements and link his

conclusions to the facts. Bowie Mem'l Hosp. v. Wright, 79 S.W.3d 48, 52 (Tex.2002). In a

healthcare liability context, to avoid a dismissal of the asserted claims the plaintiff’s

expert report must constitute an objective “good faith effort” to comply with the

requirements of section 74.351(r)(6). See Leland v. Brandal, 257 S.W.3d 204, 206-07 (Tex.

2008); Palacios, 46 S.W.3d at 879. As such, an expert report that is inadequate with

reference to any of the three required elements, or which states the expert’s opinions in

conclusory form, will not satisfy the objective good faith standard. See Samlowski, 332

S.W.3d at 410; Palacios, 46 S.W.3d at 879.

        Although the expert report need not marshal all of the plaintiff's proof, it

nonetheless must include the expert's opinion on each of the elements identified in the


Baty v. Futrell                                                                        Page 4
statute. See Jelinek v. Casas, 328 S.W.3d 526, 539 (Tex. 2010); Ehrlich v. Miles, 144 S.W.3d

620, 626 (Tex. App.—Fort Worth 2004, pet. denied). It is the substance of the opinions,

not the technical words used, that constitutes compliance with the statute. See Ehrlich,

144 S.W.3d at 626-27. However, statements concerning the standard of care and breach

of the standard of care must be articulated in an expert report with sufficient specificity

so that inferences need not be indulged to discern them. Benish v. Grottie, 281 S.W.3d

184, 198 (Tex. App.—Fort Worth 2009, pet. denied) (citing Palacios, 46 S.W.3d at 880). As

this Court has held, no court may infer or speculate as to what an expert intends to

opine. See Salais v. Tex. Dep’t of Aging & Disability Servs., 323 S.W.3d 527, 536 (Tex.

App.—Waco 2010, pet. denied).

                                III. Standard of Care

        The expert report must first set forth and articulate the applicable standard of

care. TEX. CIV. PRAC. & REM. CODE ANN. § 74.351(r)(6). Identifying the standard of care

is critical because whether a defendant breached his or her duty to a patient cannot be

ascertained without specific information as to what the defendant should have done

differently. Palacios, 46 S.W.3d at 880.

        The amended expert report authored by Chalfin, and relied on by Baty, states the

standard of care to be as follows:

               In evaluating and providing medical care for a patient such as Mrs.
        Baty, the standard of care for an ordinarily prudent practitioner such as a
        MD or CRNA requires:


Baty v. Futrell                                                                       Page 5
                  1. Adequate preoperative assessment of the patient;
                  2. Adequate communication with the patient and/or the
                     patient’s family;
                  3. Performance of only procedures for which adequate
                     training and level of competence has been achieved;
                  4. Performance of such procedures at the level of
                     competence and skill required to minimize risk to the
                     patient;
                  5. In the case of retrobulbar anesthetic blocks,
                     administering the block in the proper manner to preclude
                     injuring the delicate structures of the orbit, including the
                     globe and optic nerve.

Additionally, in Chalfin’s summary of the medical care that was provided to Baty, he

states:

                  Of note, the initial block attempt produced inadequate akinesia and
          anesthesia, so a second retrobulbar block attempt was performed (Refs. 6,
          11). This is significant because complications such as globe penetration
          and optic nerve injury are more common when blocks require
          augmentation (additional needle sticks). This is due to the fact that the
          initial injection volume can distort the anatomy of the orbital structures,
          and lead to injury by the needle on the subsequent attempt. For this
          reason, many Opthalmic surgeons augment an inadequate block by using
          a blunt cannula inserted via a conjunctival incision, rather than a needle.

          Baty argues the language above provides an adequate description of the

applicable standard of care because all that was required to satisfy the standard of care

element was for the amended report to state that (1) it was erroneous for Futrell to place

the needle into Baty’s optic nerve, and (2) Futrell should not have done so. Baty

contends that no additional explanation of what constitutes the applicable standard of

care is necessary. We disagree.



Baty v. Futrell                                                                         Page 6
        "While a 'fair summary' is something less than a full statement of the applicable

standard of care . . . even a fair summary must set out what care was expected, but not

given." Palacios, 46 S.W.3d at 880. Further, the standard of care is defined by what an

ordinarily prudent healthcare provider would have done under the same or similar

circumstances.    Id.   Here, despite Baty’s efforts to cure the report’s deficiencies,

Chalfin’s amended expert report is conclusory, inadequate, and does not satisfy the

Palacios objective “good faith” standard.

        Because the statements outlined in the amended expert report are conclusory,

numerous matters are unexplained. For example, what constitutes: (1) an adequate

preoperative assessment of the patient; (2) adequate communication with the patient

concerning the procedure to be performed; (3) an adequate level of training, skill, and

competence to perform this procedure? At a minimum, the amended expert report

should specify and articulate what procedures and testing are necessary to perform the

retrobulbar block, and the level of skill and competence that is required for a CRNA,

such as Futrell, to successfully do so.      Further, what is the “proper manner” to

administer the retrobulbar block?      What should be done by a CRNA under the

circumstances to avoid injury to a patient? The amended expert report is silent on these

queries, and one is left to infer what Futrell should have done differently.

        Clearly, the amended report does not specify what actions, procedures, or

treatment was either required or should have been performed or provided by Futrell


Baty v. Futrell                                                                    Page 7
while administering the retrobulbar block to Baty. In fact, the amended report does not

(1) identify or articulate the applicable standard of care for a CRNA when performing a

retrobulbar block procedure, (2) describe what actions or courses of action are

encompassed within the requisite standard of care for performing said procedure, or (3)

even explain, as it should, how an ordinarily prudent CRNA should perform this

procedure under the same or similar circumstances. 1 The amended report does not

properly analyze Futrell’s specific conduct in treating Baty in accordance with the

applicable standard of care, or how Futrell’s compliance with the requisite standard of

care would have avoided injury to her. Moreover, there is no explanation recited in the

amended report as to what actions or procedures a reasonably prudent healthcare

professional, such as Futrell, should take to avoid inserting a needle into a patient’s

optic nerve in the event a first injection for a retrobulbar block was insufficient. As

such, the failure to explain or articulate in Chalfin’s amended report what specific

actions and precautions were required and should have been taken by Futrell to properly

treat Baty in this instance is fatal to her recovery.

        It is conclusory to state that Futrell should not have placed the needle into the

optic nerve of Baty’s left eye, as Chalfin has opined. Common sense dictates that a

healthcare provider should not insert a needle into a patient’s optic nerve.


1Typically, standards of care are not formulated to state what actions or procedures should be specifically
avoided. Rather, standards of care are adopted to articulate and specify the affirmative actions or
procedures that a reasonably prudent healthcare professional should take and comply with to achieve the
desired result.

Baty v. Futrell                                                                                     Page 8
Nevertheless, common sense and the standards of care which must be adhered to by

healthcare professionals are not synonymous. Further, the additional statements made

by Chalfin in his summary of Baty’s medical care (which only attempts to articulate the

standard of care for a surgeon, rather than for a CRNA) are insufficient and cannot

provide a basis for determining what the proper standard of care should be for an

ordinarily prudent healthcare professional that is treating a patient under the same or

similar circumstances. In light of these inadequate statements, one must again infer as

to what the healthcare professional should do. Because it is improper to speculate or

make inferences in this context, we cannot say that Chalfin’s description in his amended

report of a procedure that is used by “many” surgeons is sufficient to establish that this

alternative procedure is part of the recognized standard of care for a CRNA such as

Futrell.

        The trial court’s determination to sustain the objections to the amended expert

report and to grant the motions to dismiss was not outside of the zone of reasonable

disagreement. Because the amended expert report is silent as to Futrell’s duties and

what an ordinarily prudent CRNA should have done in this instance, the trial court could

have reasonably concluded that Baty’s claims were meritless.            Although Baty’s

circumstances are most unfortunate, we conclude that the trial court did not abuse its

discretion in dismissing Baty’s claims with prejudice. Therefore, Baty’s sole issue is

overruled.


Baty v. Futrell                                                                     Page 9
                                        IV.     Conclusion

        To survive a dismissal of asserted healthcare liability claims, a plaintiff’s expert

report must adequately address each of the three required statutory elements. The

failure to satisfy even one of the statutory elements will bar recovery. Here, Baty’s

amended expert report is inadequate, conclusory, and fails to satisfy the standard of

care requirement as to Futrell. Because of these deficiencies, the amended expert report

cannot resurrect the vicarious liability claims that Baty has asserted against CAC. See

Gardner v. U.S. Imaging, Inc., 274 S.W.3d 669, 671-72 (Tex. 2008). In light of this Court’s

holding, we need not address the adequacy, or lack thereof, of the breach of the

standard of care and causation elements of Baty’s healthcare liability claims.

        Having found no reversible error, we affirm the orders of the trial court.




                                                W. STACY TROTTER
                                                Judge



Before Chief Justice Gray,
       Justice Davis, and
       Judge Trotter2
       (Justice Davis, dissenting)
Affirmed
Opinion delivered and filed November 19, 2015
[CV06]


2The Honorable W. Stacy Trotter, Judge of the 358th District Court of Ector County, sitting by assignment
of the Chief Justice of the Supreme Court of Texas pursuant to section 74.003(h) of the Government Code.
See TEX. GOV’T CODE ANN. § 74.003(h) (West 2013).

Baty v. Futrell                                                                                  Page 10
