      TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN


                                       NO. 03-14-00765-CV



                                  Nancy Jo Rodriguez, Appellant

                                                  v.

               The Walgreen Company and Sara Elizabeth McGuire, Appellees


     FROM THE DISTRICT COURT OF TRAVIS COUNTY, 419TH JUDICIAL DISTRICT
      NO. D-1-GN-14-000903, HONORABLE GUS J. STRAUSS, JR., JUDGE PRESIDING



                             MEMORANDUM OPINION


               In this interlocutory appeal, Nancy Jo Rodriguez challenges the trial court’s order

granting appellees’ motion to dismiss brought pursuant to section 74.351(b) of the Texas Medical

Liability Act (TMLA). See Tex. Civ. Prac. & Rem. Code §§ 51.014(a)(10) (authorizing appeal from

interlocutory order granting relief sought under section 74.351(l) of TMLA), 74.351(l) (authorizing

court to grant motion challenging adequacy of expert report). Because we conclude that the trial

court did not abuse its discretion, we affirm the trial court’s order.


                                          BACKGROUND

               Rodriguez sued appellees the Walgreen Company, Inc. and Sara Elizabeth McGuire

asserting health care liability claims stemming from Rodriguez’s use of the drug Pradaxa.1


       1
         A separate interlocutory appeal from the same underlying proceeding is pending before this
Court in cause number 03-14-00717-CV. In that case, Dr. Vivek Goswami, one of Rodriguez’s
Rodriguez was a patient with Austin Heart, PLLC and one of her cardiologists was

Dr. David Kessler. In her petition, Rodriguez alleges: “Despite Dr. Kessler’s orders to discontinue

use of the Pradaxa, Walgreens continues to renew the refills and Austin Heart’s staff and nurses

continue to authorize them”; and, “[a]s a result of her continued use of Pradaxa, [she was] admitted

to the hospital with hypotension, acute kidney injury and apparent gastrointestinal bleeding, known

side effects of the over-use of Pradaxa”; and she “suffers severe, painful, and life-threatening injuries

due to her continued use of Pradaxa.” Rodriguez timely served appellees with expert reports and the

experts’ curriculum vitae. See id. § 74.351(a) (requiring claimant asserting health care liability claim

as threshold matter to serve expert report with curriculum vitae “for each physician or health care

provider against whom a liability claim is asserted”). One of the experts is a licensed pharmacist in

the state of Texas, and the other one holds a medical license with a speciality in cardiology.

                Appellees objected to the sufficiency of the expert reports and moved to dismiss

Rodriguez’s claims. See id. § 74.351(b) (requiring trial court to dismiss claims on motion of affected

health care provider or physician if expert report not served within 120-day window). Appellees

challenged the experts’ qualifications and asserted that the reports were conclusory and failed to set

out the causal connection between any act or failure to act by appellees and Rodriguez’s alleged

injuries. After the 120 day window expired for Rodriguez to file an expert report, Appellees filed

a subsequent motion to dismiss, urging that the reports were completely insufficient such that they

constituted “no report at all.” See Scoresby v. Santillan, 346 S.W.3d 546, 556–57 (Tex. 2011)




cardiologists, and Austin Heart, PLLC appeal the trial court’s order denying their motion to dismiss
brought pursuant to section 74.351(b) of the TMLA. See Tex. Civ. Prac. & Rem. Code § 74.351(b).

                                                   2
(discussing when expert report is “really no report at all” in context of whether trial court should

grant extension to allow claimant to cure deficiency in report). Among their arguments, appellees

urged that the reports failed to give any factual background concerning the prescription for Pradaxa.

                Rodriguez filed a response to appellees’ objections and motion to dismiss, but she

did not file additional or amended expert reports. After a hearing, the trial court informed the parties

by letter that it found that the expert reports as to appellees did not satisfy the requirements of the

TMLA. Rodriguez thereafter filed a motion to reconsider the dismissal of her claims against

appellees and to permit a thirty-day extension to cure the deficiencies that the trial court found in her

reports. See Tex. Civ. Prac. & Rem. Code § 74.351(c) (allowing trial court to grant one thirty-day

extension to cure deficiencies in expert report). Appellees filed a response to the motion to

reconsider, opposing an extension to cure and arguing that an extension was not justified. The trial

court thereafter signed its order granting appellees’ motion to dismiss. This appeal followed.


                                             ANALYSIS

        Chapter 74 Expert Report Requirements

                Section 74.351 of the TMLA provides a 120-day window for a claimant, who is

asserting a health care liability claim, to serve each defendant physician and health care provider with

an expert report with the expert’s curriculum vitae. See id. § 74.351(a). “The purpose of the expert

report requirement is to deter frivolous claims, not to dispose of claims regardless of their merits.”

Scoresby, 346 S.W.3d at 554. “A valid expert report has three elements: it must fairly summarize

the applicable standard of care; it must explain how a physician or health care provider failed to meet

that standard; and it must establish the causal relationship between the failure and the harm alleged.”

                                                   3
Certified EMS, Inc. v. Potts, 392 S.W.3d 625, 630 (Tex. 2013) (citing Tex. Civ. Prac. & Rem. Code

§ 74.351(r)(6)).2

                 On the motion of an affected defendant physician or health care provider, the trial

court must dismiss the case if the claimant fails to serve an expert report within the 120-day window.

Tex. Civ. Prac. & Rem. Code § 74.351(b). If the claimant timely files an expert report, a trial court

should not grant a motion challenging the report’s adequacy unless “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). The Texas Supreme Court has defined “a

‘good faith effort’ as one that provides information sufficient to (1) ‘inform the defendant of the

specific conduct the plaintiff has called into question,’ and (2) ‘provide a basis for the trial court to

conclude that the claims have merit.’” Jelinek v. Casas, 328 S.W.3d 526, 539 (Tex. 2010) (quoting

Bowie Mem’l Hosp. v. Wright, 79 S.W.3d 48, 52 (Tex. 2002) (per curiam) (citing American

Transitional Care Ctrs. of Tex., Inc. v. Palacios, 46 S.W.3d 873, 879 (Tex. 2001))).3



        2
            Section 74.351(r)(6) of the Texas Medical Liability Act (TMLA) defines an expert report
to mean:

        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 § 74.351(r)(6).
        3
          The trial court also may grant one thirty-day extension to the claimant to cure a deficiency
in a timely-filed expert report. Id. § 74.351(c). Rodriguez, however, has not briefed or otherwise
requested that this Court remand the case for the purpose of allowing her the opportunity to cure
deficiencies in the expert reports.

                                                   4
               To determine whether an expert report complies with section 74.351, courts consider

the information “found within the four corners of the expert report, which need not ‘marshall all the

plaintiff’s proof’ but must include the expert’s opinion on each of the three main elements: standard

of care, breach, and causation.” Id. The “‘report cannot merely state the expert’s conclusions about

these elements,’ but ‘the expert must explain the basis of his statements to link his conclusions to

the facts.’” Id. (quoting Wright, 79 S.W.3d at 52 (quoting Earle v. Ratliff, 998 S.W.2d 882, 890

(Tex. 1999))); see Shenoy v. Jean, No. 01-10-01116-CV, 2011 Tex. App. LEXIS 10212, at *16 (Tex.

App.—Houston [1st Dist.] Dec. 29, 2011, pet. denied) (mem. op.) (noting that “an expert report that

merely asserts that a defendant physician’s breach caused the plaintiff’s injury without providing a

factual basis does not provide the trial court with the information necessary to evaluate the merits

of the plaintiff’s claim”). “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.” Austin Heart, P.A.

v. Webb, 228 S.W.3d 276, 279 (Tex. App.—Austin 2007, no pet.) (citing Wright, 79 S.W.3d at 53;

Gray v. CHCA Bayshore L.P., 189 S.W.3d 855, 859 (Tex. App.—Houston [1st Dist.] 2006, no pet.)).

               We review a trial court’s denial of a motion to dismiss brought under section

74.351(b) for an abuse of discretion. TTHR Ltd. P’ship v. Moreno, 401 S.W.3d 41, 44 (Tex. 2013)

(citing Palacios, 46 S.W.3d at 877). “Under that standard, appellate courts defer to the trial court’s

factual determinations if they are supported by evidence, but review its legal determinations de

novo.” Van Ness v. ETMC First Physicians, 461 S.W.3d 140, 142 (Tex. 2015). “A trial court

abuses its discretion if it rules without reference to guiding rules and principles.” Id. With these

standards in mind, we turn to Rodriguez’s issues.



                                                  5
       Adequacy of Expert Reports

               Rodriguez raises two appellate issues. She argues that her expert who is a pharmacist

was qualified to give an opinion on appellees’ breach of the applicable standard of care and that the

expert reports “when considered in the aggregate” are sufficient because they apprise appellees of

the claims against them and inform the court that the claims are not frivolous. See Tex. Civ. Prac.

& Rem. Code § 74.351(i) (allowing claimant to satisfy expert report requirement “by serving reports

of separate experts . . . regarding different issues arising from conduct of physician or health care

provider, such as issues of liability and causation”); Mitchell v. Satyu, No. 05-14-00479-CV,

2015 Tex. App. LEXIS 6127, *12 n.3 (Tex. App.—Dallas June 17, 2015, no pet.) (mem. op.) (noting

that expert report requirement may be satisfied by utilizing more than one expert report and that

“court may read the reports together”). Rodriguez argues that, “when these reports are read in the

aggregate, they apprise Walgreens and McGuire of the specific conduct called into question by

Rodriguez’s claims and demonstrate that Rodriguez’s claims have merit.” Rodriguez, however,

concedes that her expert who is a pharmacist is not qualified to opine on causation because he is not

a medical doctor. See Tex. Civ. Prac. & Rem. Code §§ 74.351(r)(5)(C) (limiting “expert” with

respect to opinion testimony about causation to “physician who is otherwise qualified to render

opinions on such causal relationships under the Texas Rules of Evidence”), .403(a) (generally

requiring expert on causation to be physician).

               Appellees argue that the trial court did not abuse its discretion by dismissing

Rodriguez’s claims against appellees. Among their arguments, they contend that the experts’

opinions are speculative and conclusory, that they fail to provide a factual basis for their opinions,



                                                  6
that the physician’s report does not mention appellees but is directed to the conduct of Rodriguez’s

cardiologist, and that the physician’s report “does not bridge the gaps” in the pharmacist’s report.

We turn then to review the information “found within the four corners” of the expert reports to

determine whether the trial court abused its discretion in granting appellees’ motion to dismiss. See

Jelinek, 328 S.W.3d at 539.

                 In his report, the pharmacist lists the records that he reviewed to form his opinions

and concludes that appellees did not meet the applicable standards of care.4 He opines in

relevant part:


                                          Standards of Care

       The standard of care required to fill Ms. Rodriguez’s dabigatran etexilate
       (PRADAXA) prescription are as follows:

       •         Pharmacists have a duty to contact the prescribing physician if patient harm
                 is possible to validate the prescription

       •         Pharmacists are responsible for ensuring a prescription is accurately
                 communicated and dispensed as intended by the prescriber

       •         Pharmacists are responsible for communicating with the prescribing
                 physician to validate continuation of therapy when no refills remain on
                 a prescription

                                     Breach of Standard of Care

       Walgreens, Sara Elizabeth McGuire (pharmacist), and pharmacist with
       initials MDD breached the applicable standards of care. Specifically, Walgreens,




       4
        The pharmacist also opines on causation but, as previously noted, Rodriguez concedes that
the pharmacist was not qualified to opine on that issue. See Tex. Civ. Prac. & Rem. Code
§§ 74.351(r)(5)(C), .403(a).

                                                   7
        Sara Elizabeth McGuire (pharmacist), and pharmacist with initials MDD conduct fell
        below the standard of care by:

        •       Continuing to dispense a prescription for dabigatran etexilate (PRADAXA)
                after the prescribing physician indicated it should be discontinued; and

        •       Failing to verify if the prescription for dabigatran etexilate (PRADAXA)
                should be continued with the prescribing physician

        Walgreens, Sara Elizabeth McGuire (pharmacist), and pharmacist with initials MDD
        should have provided Ms. Rodriguez with the care and treatment in the standard of
        care paragraph above. However, this expected care was not provided to
        Ms. Rodriguez as set forth in the preceding paragraph.


To satisfy the statutory elements of standard of care and breach, Rodriguez relies on the pharmacist’s

opinion that appellees’ conduct fell below the standard of care by “continuing to dispense” the

prescription for Pradaxa “after the prescribing physician indicated it should be discontinued” and by

failing to verify if the prescription “should be continued with the prescribing physician.” See Jelinek,

328 S.W.3d at 539 (requiring expert report on standard of care, breach, and causation).

                In his report, the physician describes his qualifications and the records that he

reviewed to form his opinions, and then opines:


        In my opinion the care and treatment provided to Nancy Jo Rodriguez by Austin
        Heart fell below the accepted standards of care in the following particulars: Despite
        Dr. David Kessler, one of her cardiologists from Austin Heart, requesting that the
        Pradaxa be discontinued (in this patient who, at best, has bipolar disorder and at
        times was confused, this was a reasonable request), Pradaxa therapy nevertheless was
        continued after her acute hospitalization. This request to stop the medication was not
        appreciated by her primary cardiologist, Dr. Vivek Goswami (who was in the same
        group as Dr. Kessler). Furthermore, Ms. Rodriguez appeared to be obtaining refills
        for this medication authorized by nurses and staff of this same heart group who
        recommended discontinuing this medication (Austin Heart). The standard of care
        would have been to follow the orders of Dr. Kessler to stop the administration
        of Pradaxa.

                                                   8
       Failure to discontinue the use of Pradaxa was a direct cause of her subsequent acute
       admission to the hospital with hypotension, acute kidney injury and apparent
       gastrointestinal bleeding—known side effects of the over-use of Pradaxa.
       Ms. Rodriguez’s entire hospitalization was attributable to the failure to stop Pradaxa
       therapy as ordered by Dr. Kessler. More likely than not, had the Pradaxa medication
       been discontinued as requested, Ms. Rodriguez’s hospitalization would never have
       needed to take place.

       I hold these opinions to a reasonable degree of medical certainty. They are based
       upon my education, training and experience as well as the records which I
       have reviewed.


To satisfy the statutory element of causation, Rodriguez relies on the physician’s opinion that

Rodriguez’s continued use of Pradaxa caused her hospitalization.

               Both reports, however, fail to include underlying facts to support the experts’

opinions, such as the factual background concerning Rodriguez’s prescription for Pradaxa and refills

on the prescription. Compare Gray, 189 S.W.3d at 859–60 (upholding dismissal of claims against

medical center and doctor based on inadequate expert report and noting that conclusory statements

do not satisfy requirements of section 74.351), with Van Ness, 461 S.W.3d at 142–44 (reciting facts

contained in expert report and concluding that trial court did not abuse discretion “by determining

that report was not conclusory” and that it was “good faith effort to comply with the TMLA’s

requirements”); Bakhtari v. Estate of Dumas, 317 S.W.3d 486, 496–99 (Tex. App.—Dallas 2010,

no pet.) (affirming trial court’s denial of motion to dismiss claims that alleged doctor negligently

prescribed drug and describing specific facts contained in expert report that addressed standard of

care, breach, and causation).




                                                 9
               For example, Rodriguez argues that appellees should have contacted her physicians

so that appellees would have been aware that her prescription was discontinued. The physician’s

only statement in his report about prescription refills for Pradaxa, however, does not support this

argument. The physician asserted in his report that “Ms. Rodriguez appeared to be obtaining refills

for this medication authorized by nurses and staff of this same heart group.” He further stated that

the “request to stop the medication was not appreciated by” Rodriguez’s primary cardiologist.

Missing from the report is how or when appellees would have become aware of the alleged request

to stop the medication even if they had contacted the prescribing physician, given the expert’s

assertion that refills were authorized by the heart group and the lack of information about when the

request to stop was made or how or when the primary cardiologist should have “appreciated” the

request. “[N]either the trial court nor this Court may infer additional opinions or underlying facts

to fill in gaps that the report itself leaves open.” Hebert v. Hopkins, 395 S.W.3d 884, 890 (Tex.

App.—Austin 2013, no pet.) (citing Wright, 79 S.W.3d at 53); see Smith v. Wilson, 368 S.W.3d 574,

577 (Tex. App.—Austin 2012, no pet.) (noting that trial court should confine inquiry to four corners

of expert report when adequacy of report challenged and that report must link conclusions to facts);

Webb, 228 S.W.3d at 279 (precluding “court from filling gaps in a report by drawing inferences or

guessing as to what the expert likely meant or intended”).

               Further, the physician’s report—the only report addressing causation—does not

mention appellees by name or position and does not otherwise “implicate” appellees. See Haskell

v. Seven Acres Jewish Senior Care Servs., Inc., 363 S.W.3d 754, 760–61 (Tex. App.—Houston [1st

Dist.] 2012, no pet.) (concluding that report that only named nurse as intended recipient of report



                                                10
was “not a report as to” nurse); Fung v. Fischer, 365 S.W.3d 507, 529–30 (Tex. App.—Austin 2012,

no pet.) (noting that “defendant may be ‘implicated’ in a report even if the defendant is not

specifically named” but concluding that expert report did not “implicate” and was “no report” as to

primary care physician), overruled in part on other grounds by Potts, 392 S.W.3d 625; Rivenes

v. Holden, 257 S.W.3d 332, 338–39 (Tex. App.—Houston [14th Dist.] 2008, pet. denied)

(concluding that expert report that did not refer to doctor by name or position and did not offer an

opinion as to doctor’s conduct was not report as to doctor). Thus, the trial court would not have

abused its discretion by finding that the report fails to establish a “causal relationship” between an

alleged breach by appellees and Rodriguez’s harm. See Potts, 392 S.W.3d at 630; see also Jelinek,

328 S.W.3d at 539–40 (requiring that “expert must go further and explain, to a reasonable

degree, how and why the breach caused the injury based on the facts presented”); Mitchell,

2015 Tex. App. LEXIS 6127, at *10 (explaining that “causal relationship is established by proof that

the negligent act or omission was a substantial factor in bringing about the harm, and that, absent this

act or omission, the harm would not have occurred”).

                Without factual background concerning the prescription such as the inclusion of

underlying facts to link appellees’ conduct to Rodriguez’s harm, the expert reports fail to provide

a basis to conclude that Rodriguez’s claims have merit. See Jelinek, 328 S.W.3d at 539. Thus, we

conclude that the trial court did not abuse its discretion when it granted appellees’ motion to dismiss.

See Moreno, 401 S.W.3d at 44.




                                                  11
                                         CONCLUSION

              For these reasons, we overrule Rodriguez’s issues and affirm the trial court’s order

granting appellees’ motion to dismiss.



                                            __________________________________________
                                            Melissa Goodwin, Justice

Before Chief Justice Rose, Justices Goodwin and Field

Affirmed

Filed: January 27, 2016




                                               12
