                          NUMBER 13-13-00302-CV

                             COURT OF APPEALS

                   THIRTEENTH DISTRICT OF TEXAS

                      CORPUS CHRISTI - EDINBURG


CHRISTUS SPOHN HEALTH
SYSTEM CORPORATION,                                                         Appellant,

                                            v.

JOSE CASTRO,                                                                 Appellee.


                    On appeal from the 117th District Court
                          of Nueces County, Texas.


                          MEMORANDUM OPINION

     Before Chief Justice Valdez and Justices Rodriguez and Garza
             Memorandum Opinion by Justice Rodriguez
       Appellant Christus Spohn Health System Corporation (Spohn) challenges the trial

court's denial of its motion to dismiss appellee Jose Castro's health care liability claim.

See TEX. CIV. PRAC. & REM. CODE ANN. § 74.351(b) (West 2011). By two issues, Spohn
argues that: (1) Castro's experts were not qualified to opine on the specific area of

health care involved in this suit; and (2) Castro's reports were contradictory and

conclusory and were therefore "no reports" under the law. See id. § 74.351(l), (r)(6).

We reverse and remand.

                                           I. Background

        Castro alleged the following facts in his petition:

               On or about October 24, 2011, 50-year-old Jose Castro was in a
        serious car accident. He was a belted passenger in a Ford F-150 crew
        cab. The truck rolled and the roof crushed, causing severe injuries to Mr.
        Castro. Mr. Castro was transported via helicopter to the emergency room
        at Christus Spohn Hospital in critical condition. Mr. Castro sustained
        severe injuries including, but not limited to, fracture and dislocation of his
        cervical spine at C5-C6, multiple rib fractures, a collapsed lung, and
        damage to his right phrenic nerve. He remained in intensive care through
        most of December 2011. Mr. Castro had no sensation or movement below
        the nipple line, putting him at high risk of skin breakdown.

                In November 2011, Mr. Castro developed a pressure ulcer on his tail
        bone. The cause was the use of the tangible property, the hospital bed.
        By the time Mr. Castro was discharged from Christus Spohn Hospital in
        February 2012, the pressure ulcer had progressed to a grade III decubitus
        ulcer. . . .

             At all relevant times hereto, Mr. Castro was a patient of Christus
        Spohn Hospital.

        Complaining of the pressure ulcer, in particular, Castro brought a health care

liability claim against Spohn.1 In that claim, Castro alleged that Spohn was negligent in:

its use of the hospital bed; its failure to develop and employ policies to oversee patients

like Castro; its failure to train and supervise personnel to carry out such policies; its failure



        1
          In this same lawsuit, Castro has also alleged causes of action against the driver of the truck for
negligence and against Ford Motor Company for products liability. Neither of those causes of action are
before us in this accelerated, interlocutory appeal.
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to render appropriate medical and nursing intervention to Castro; its failure to provide

adequate nutritional support to Castro; its failure to plan for and protect Castro from

bedsores and ulcers; its failure to follow Castro's doctors' orders; and its failure to

maintain the highest practical level of care for Castro.          Castro alleged that this

negligence proximately caused the injuries he suffered at Spohn.

       In support of his health care liability claim, Castro timely filed two expert

reports—one authored by Donna du Bois, MPH, RN and another authored by Perry

Starer, M.D.    Both du Bois and Dr. Starer are geriatric specialists with extensive

experience in caring for pressure ulcers in hospital and nursing home settings. Spohn

objected to both expert reports, arguing that neither du Bois nor Dr. Starer was qualified to

offer opinions as to the conditions under which Castro suffered his injuries, i.e., the

development of a pressure ulcer in trauma care conditions while Castro was

simultaneously suffering from quadriplegia, diabetes, bacterial infections, and respiratory

distress. Spohn also filed motions to dismiss Castro's health care liability claim, arguing

that Castro's reports are "no reports" and the claim should therefore be dismissed

because neither du Bois nor Dr. Starer is qualified and the reports are contradictory and

conclusory. After a hearing, the trial court denied Spohn's objections and motions to

dismiss. This accelerated, interlocutory appeal followed. See id. § 51.014(a)(9) (West

Supp. 2011).

                                 II. Standard of Review

       We review a trial court's decision with respect to expert reports and the

qualifications of experts for an abuse of discretion. Larson v. Downing, 197 S.W.3d 303,


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304–05 (Tex. 2006); Jernigan v. Langley, 195 S.W.3d 91, 93 (Tex. 2006); Am.

Transitional Care Ctrs. of Tex., Inc. v. Palacios, 46 S.W.3d 873, 876 (Tex. 2001). The

trial court abuses its discretion if it acts unreasonably or arbitrarily or without reference to

any guiding rules or principles. Walker v. Gutierrez, 111 S.W.3d 56, 62 (Tex. 2003).

                                    III. Applicable Law

       Under Chapter 74, an expert report is defined as:

       a written report by an expert that provides a fair summary of the expert's
       opinions as of the date of the report regarding applicable standards of care,
       the manner in which the care rendered by the physician or health care
       provider failed to meet the standards, and the causal relationship between
       that failure and the injury, harm, or damages claimed.

TEX. CIV. PRAC. & REM. CODE ANN. § 74.351(r)(6). When a document purporting to be an

expert report is timely served and is properly challenged, as is the case here, the trial

court "shall grant [the] motion challenging the adequacy of [the] report only if it appears to

the court, after hearing, that the report does not represent an objective good faith effort to

comply with the definition of an expert report in Subsection (r)(6)." Id. § 74.351(l); see

Loaisiga v. Cerda, 379 S.W.3d 248, 260 (Tex. 2012). To qualify as an objective good

faith effort, the report must (1) inform the defendant of the specific conduct the plaintiff

complains of, and (2) provide a basis for the trial court to conclude that the plaintiff's

claims have merit. Scoresby v. Santillan, 346 S.W.3d 546, 556 (Tex. 2011) (citing

Palacios, 46 S.W.3d at 879). The report and/or its accompanying curriculum vitae (CV)

must also establish that the report's author is qualified to opine as an expert on the

subject matter of the report. Leland v. Brandal, 217 S.W.3d 60, 62 (Tex. App.—San

Antonio 2006), aff'd on other grounds, 257 S.W.3d 204 (Tex. 2008). Those qualifications


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must appear within the four corners of the expert report and cannot be inferred. Id.; see

also Palacios, 46 S.W.3d at 878; Baylor Coll. of Med. v. Pokluda, 283 S.W.3d 110, 117

(Tex. App.—Houston [14th Dist.] 2009, no pet.).          To meet the "good faith effort"

requirement, "[n]o particular words or formality are required, but bare conclusions will not

suffice. The report must address all the elements, and omissions may not be supplied by

inference."   Scoresby, 346 S.W.3d at 556 (citations omitted). "The purpose of the

expert report requirement is to deter frivolous claims, not to dispose of claims regardless

of their merits." Id. at 554 (citation omitted).

       A report meets the minimum qualifications for an expert report under the statute "if

it contains the opinion of an individual with expertise that the claim has merit, and if the

defendant's conduct is implicated." Id. at 557. If a report meets these qualifications but

is deficient, the claimant is entitled to one thirty-day extension to cure the deficiencies.

TEX. CIV. PRAC. & REM. CODE ANN. § 74.351(c). "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." Scoresby, 346 S.W.3d at 557; see also

Leland, 257 S.W.3d at 207–08 (holding that when elements of a timely filed expert report

are found deficient, either by the trial court or on appeal, one thirty-day extension to cure

the report may be granted).

                              IV. Qualifications of Experts

       By its first issue, Spohn contends that because the care provided to Castro by the

hospital was under intensive care unit (ICU) or trauma conditions, his development of

pressure ulcers must be addressed in the context of those conditions. And because


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neither du Bois nor Dr. Starer practice in the field of ICU/trauma care, Spohn argues that

they are not qualified to author expert reports in this case.

        To be qualified to provide opinion testimony on whether a health care provider

departed from the accepted standard of care, an expert must satisfy section 74.402.

See TEX. CIV. PRAC. & REM. CODE ANN. § 74.351(r)(5)(B). Section 74.402 lists three

specific qualifications an expert witness must possess to provide opinion testimony on

how a health care provider departed from accepted standards of health care—the expert

must:

        (1)    [be] practicing health care in a field of practice that involves the same
               type of care or treatment as that delivered by the defendant health
               care provider, if the defendant health care provider is an individual,
               at the time the testimony is given or was practicing that type of health
               care at the time the claim arose;

        (2)    [have] knowledge of accepted standards of care for health care
               providers for the diagnosis, care, or treatment of the illness, injury, or
               condition involved in the claim; and

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

Id. § 74.402(b) (West 2011).

        A plaintiff offering expert medical testimony must establish that the report's author

has expertise regarding "the specific issue before the court which would qualify the expert

to give an opinion on that particular subject." Broders v. Heise, 924 S.W.2d 148, 153

(Tex. 1996). Our analysis of the proffered expert's qualifications focuses on "the very

matter" on which the expert is to give an opinion. Id.

        Here, du Bois's CV shows that she has over thirty years' experience as a nurse,

primarily in the field of nursing home care and other long-term facility care. In her report,

                                               6
du Bois stated that she is familiar with the standard of care for the "prevention of pressure

ulcers . . . expected by ordinary prudent nurses in Texas." In his report, Dr. Starer states

that he is "a practicing physician licensed by the State of New York." Dr. Starer states

that he has been "board certified in Internal Medicine and Geriatrics" since 1985. Dr.

Starer states that he teaches in the field of geriatrics at Mount Sinai School of Medicine

and has given lectures on the prevention and treatment of pressure ulcers to both

physicians and nurses. Finally, Dr. Starer states:

       In the regular course of my medical practice, I have occasion to diagnose
       and treat patients with conditions substantially similar to or identical with
       those of Jose Castro, including mobility limitations. I have also served as a
       primary care physician for hospital and nursing home patients since 1985.
       Over the course of my career, I have been the primary care physician for
       more than 5,000 patients in hospitals and nursing homes. Many of those
       patients have struggled with disabilities similar to those Jose Castro
       experienced. Accordingly, I have cared for and treated numerous patients
       who, like Jose Castro, were at risk for development of pressure ulcers.

In their reports and CVs, neither du Bois nor Dr. Starer states that they have experience

preventing and treating bedsores in the context of ICU or trauma care or explains how

their fields of practice involve the same type of ICU/trauma care Spohn provided to

Castro.

       Spohn does not dispute that du Bois is an expert in the field of nursing home care

and Dr. Starer is an expert in the field of geriatrics and nursing home care, or that these

fields regularly involve the prevention and treatment of pressure ulcers. Rather, Spohn

argues that neither expert is practicing or has otherwise relevant experience in

ICU/trauma care, which is the relevant field of practice in this case. We agree. In his

petition, Castro alleges that he remained in Spohn's trauma unit and ICU from October


                                             7
24, 2011 through most of December 2011 as a result of the severe injuries he sustained in

the car accident, including a collapsed lung, multiple broken ribs, and a fractured and

dislocated spine. In their descriptions of Castro's conditions, both du Bois and Dr. Starer

acknowledge these serious injuries and that Castro was being cared for under intensive

care or trauma conditions. Castro then alleges that his pressure ulcer developed in

November 2011, which is while he was in the ICU. In short, under the facts alleged in his

own petition, it is clear that the care provided to Castro by Spohn was trauma and ICU

care.   Castro's pressure ulcer developed in this context, and his experts must be

qualified to opine on his injury in the context of these conditions. Examining only what is

within the four-corners of the experts' reports and CVs, see Palacios, 46 S.W.3d at 878;

Pokluda, 283 S.W.3d at 117, we find nothing in either du Bois or Dr. Starer's reports that

meets this requirement.

        Castro argues that Spohn's characterization of the relevant field of practice in this

case sets the bar too high, that Spohn is essentially requiring Castro to find a specialist in

the treatment of "a 50-year-old quadriplegic with diabetes, PEG tube feeding, with a

tracheostomy [sic] and neurologic deficits, with prior cardiac arrest and suffering from

bacterial infections."   This characterization overstates what is required in this case.

Although it is true that an expert need not be a practitioner in the same specialty as the

defendant to qualify as an expert, see Broders, 924 S.W.2d at 153, he or she is only

competent if he or she has practical knowledge of what is usually and customarily done by

a practitioner under circumstances similar to those confronting the defendant.           See

Ehrlich v. Miles, 144 S.W.3d 620, 625 (Tex. App.—Fort Worth 2004, pet. denied). In


                                              8
other words, the proper inquiry in assessing an expert's qualifications to submit a report is

not his or her area of expertise but his or her familiarity with the specific issues involved in

the claim before the court. See Blan v. Ali, 7 S.W.3d 741, 746 (Tex. App.—Houston

[14th Dist.] 1999, no pet.); see also Broders, 924 S.W.2d at 153. Here, as discussed

above, Castro's petition includes facts showing that the circumstances under which he

developed his pressure ulcer involved trauma and ICU treatment of his severe injuries

following the accident.         His expert must be qualified to render an opinion on the

applicable standard of care in those circumstances—i.e., the prevention and/or treatment

of pressure ulcers in the context of ICU/trauma care.2 We are not persuaded by Castro's

argument to the contrary.

        While "[t]he qualification of a witness as an expert is [a matter] within the trial

court's discretion," Larson, 197 S.W.3d at 304 (citing Broders, 924 S.W.2d at 151), such

discretion is not without limits. See Walker, 111 S.W.3d at 62 (holding that a court

abuses its discretion if it acts without reference to guiding rules and principles). Castro

was required to submit reports authored by experts who are "practicing health care in a

field of practice that involves the same type of care or treatment as that delivered by the

defendant health care provider," have "knowledge of accepted standards of care . . . for

the diagnosis, care, or treatment of the illness, injury, or condition involved in the claim,"

and are "qualified on the basis of training or experience to offer an expert opinion

regarding those accepted standards of health care." See TEX. CIV. PRAC. & REM. CODE

        2
           We note that neither du Bois nor Dr. Starer's reports foreclose the possibility that they are
qualified in this case and may need only to connect the experience they have gained in their thirty-plus year
careers to the conditions in this case. See infra sections V, VI (remanding for entry of an order granting
Castro a thirty-day extension to amend his reports). During his thirty-day extension, see id., Castro is also
entitled to serve the reports of additional experts. See In re Buster, 275 S.W.3d 475, 477 (Tex. 2008).
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ANN. § 74.402(b). Focusing on the specific issue before the trial court as alleged in

Castro's petition, see Broders, 924 S.W.2d at 153, we cannot conclude that the

information provided in du Bois and Dr. Starer's reports show them to be practicing in the

relevant field of practice or show them to have any other relevant experience giving them

knowledge of the standard of care for the specific conditions in this case. See TEX. CIV.

PRAC. & REM. CODE ANN. § 74.402(b); Blan, 7 S.W.3d at 746. As such, the trial court did

not follow guiding rules and principles in denying Spohn's objections to the expert's

qualifications and motion to dismiss on this basis. Spohn's first issue is sustained.

                               IV. Sufficiency of Report

      By its second issue, Spohn argues that Castro's reports were contradictory and

conclusory and are therefore "no report" under the statute. See TEX. CIV. PRAC. & REM.

CODE ANN. § 74.351(r)(6); Scoresby, 346 S.W.3d at 551–52.

      First, Spohn argues that because du Bois and Dr. Starer identified different

conduct as breaches of the standard of care, their reports, taken together, are inherently

inconsistent. See Fung v. Fischer, 365 S.W.3d 507, 530 (Tex. App.—Austin 2012),

overruled on other grounds, Certified EMS, Inc. v. Potts, 392 S.W.3d 625 (Tex. 2013)

("Reliable expert opinion should . . . be free from internal inconsistencies."). Spohn

contends that du Bois identified only two breaches in her report: that the nurses caring

for Castro failed to make accurate records and failed to create an appropriate treatment

plan for the prevention of pressure ulcers. Spohn contends that Dr. Starer likewise

identified only two breaches of care in his report: the nurses' failure to correctly use

Castro's bed and failure to turn Castro more frequently. In our review of du Bois's report,


                                            10
we found that she also identified as breaches of the standard of care that the nurses

caring for Castro failed to reposition Castro as needed, failed to assess his skin after each

turn, and failed to properly assess and provide for Castro's nutritional needs. And again,

in our review of Dr. Starer's report, we found that he also identified as breaches of the

standard of care that the Spohn staff caring for Castro "failed to properly develop a care

plan for ulcer prevention" and "failed to maintain an accurate and complete clinical

record." In light of the full range of conduct identified by du Bois and Dr. Starer, we

disagree with Spohn that the breaches identified in the separate reports are contradictory;

for that matter, having examined the reports in their entirety, we note that du Bois and Dr.

Starer identified largely the same breaches.

       But assuming for the sake of argument that the breaches in the reports are limited

to those identified by Spohn, we believe that Dr. Starer's report identified additional

instances of conduct that breached the standard of care. Read together in the manner in

which they are characterized by Spohn, the reports are not contradictory, but provide a

more complete picture of the instances of conduct giving rise to Castro's claim. See TEX.

CIV. PRAC. & REM. CODE ANN. § 74.351(i) ("Nothing in this section shall be construed to

mean that a single expert must address all liability and causation issues with respect to all

physicians or health care providers or with respect to both liability and causation issues

for a physician or health care provider."). Thus, we are not persuaded by Spohn's

argument in this regard, and the trial court did not abuse its discretion in denying Spohn's

motion to dismiss on this basis. Spohn's second issue is overruled in so far as it

depends on this argument.


                                             11
       Spohn next argues that du Bois's report, in particular, did no more than "state that

nurses failed to keep accurate records or to implement appropriate plans of care."

Spohn argues that du Bois was required to "state what documentation was inaccurate,

what documentation was lacking, on what dates it was wrong or missing and who was

responsible for that charting." But du Bois's report includes the exact elements that

Spohn claims are required. Du Bois refers to specific medical record dates and page

numbers throughout her report and specifically identifies what she characterizes as the

deficiencies in those records. Where du Bois points out that certain details are missing

from the records, she does not specify page numbers, but as she is pointing to the

absence of something, we cannot fault her for failing to specify where that missing detail

is not located. In short, we are not persuaded by Spohn's generalized assertions in this

regard.   Again, Spohn's second issue is overruled in so far as it depends on this

argument.

       Finally, Spohn argues that the reports do not adequately establish causation

because they do not "explain how taking any particular action would have prevented the

development of a pressure ulcer given the complex medical issues involved in [Castro]'s

care." Spohn argues that "[w]ithout addressing [these] critical issues, it is impossible to

know if [Castro]'s pressure ulcer could have been prevented." On this account, we agree

with Spohn. Although du Bois and Dr. Starer's reports go into great detail about the

procedures necessary to prevent pressure ulcers in standard conditions, they do not

address the specific conditions present in Castro's care. As discussed in detail above,

Castro's claim involves his development of a pressure ulcer while he was being treated in


                                            12
Spohn's ICU over the course of several months for severe injuries he suffered in an

automobile accident. Neither du Bois nor Dr. Starer discusses Castro's injuries in the

context of these conditions. And the omission of this context renders any conclusion on

the cause of Castro's injuries incomplete. Because Castro's reports do not adequately

address the causation element, they did not provide a basis for the trial court to conclude

that Castro's claims have merit. See Palacios, 46 S.W.3d at 879. The reports therefore

do not amount to a good faith effort to comply with the statute and are deficient. See

Scoresby, 346 S.W.3d at 556 (requiring that the report adequately address all the

elements to qualify as a good-faith effort). The trial court abused its discretion in denying

Spohn's objections and motions to dismiss on this basis. See Walker, 111 S.W.3d at 62.

Spohn's second issue is sustained as to its causation argument.

                                V. Thirty-Day Extension

       Although Castro's expert reports are deficient in that they do not establish the

authors' qualifications and do not adequately address causation, we do not believe the

reports are fatally deficient, or "no report" under the statute. Both meet the minimum

qualifications set out in Scoresby—both du Bois and Dr. Starer are individuals with

expertise who opine about Castro's injuries in great detail and implicate the conduct of

Spohn's staff.    See 346 S.W.3d at 557.          Because Castro met these minimum

qualifications, he is entitled to one thirty-day extension to cure the deficiencies in his

reports. See TEX. CIV. PRAC. & REM. CODE ANN. § 74.351(c); see also Scoresby, 346

S.W.3d at 557 (holding that all deficiencies, whether in an expert's opinion or

qualifications, are subject to being cured). This disposition is consistent with the goal of


                                             13
the statute, which is to deter frivolous claims but not dispose of claims regardless of their

merits. See Scoresby, 346 S.W.3d at 554.

                                     VI. Conclusion

       We reverse the order of the trial court denying Spohn's motion to dismiss and

remand for entry of an order granting Castro a thirty-day extension to amend his expert

reports. See TEX. CIV. PRAC. & REM. CODE ANN. § 74.351(c).



                                                                NELDA V. RODRIGUEZ
                                                                Justice

Delivered and filed the 12th
day of December, 2013.




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