                                                                                                  ACCEPTED
                                                                                              13-15-00119-CV
          FILED                                                               THIRTEENTH COURT OF APPEALS
                                                                                     CORPUS CHRISTI, TEXAS
IN THE 13TH COURT OF APPEALS                                                             8/14/2015 6:10:54 PM
  CORPUS CHRISTI - EDINBURG                                                            CECILE FOY GSANGER
                                                                                                       CLERK
        081415
                                 NO. 13-14-00700-CV                                     RECEIVED
                                                                                 IN THE 13TH COURT OF APPEALS
CECILE FOY GSANGER, CLERK           CONSOLIDATED WITH                              CORPUS CHRISTI - EDINBURG

BY mquilantan
                                 NO. 13-15-00119-CV                                     8/14/2015
                                                                                CECILE FOY GSANGER, CLERK
                                                                                BY scarranza

                        IN THE THIRTEENTH COURT OF APPEALS
                           CORPUS CHRISTI-EDINBURG, TEXAS


                    HARLINGEN MEDICAL CENTER, LIMITED PARTNERSHIP,
                                                                             Appellant,

                                              v.

                            ROSA ANDRADE, AS NEXT FRIEND OF
                       MARY HELEN ANDRADE, A MINOR CHILD, ET. AL.
                                                                             Appellees.


            On Appeal from the 404th Judicial District Court, Cameron County, Texas
                           Trial Court Cause No. 2014-DCL-1353-G



                               APPELLEES’ RESPONSE BRIEF


            F. Leighton Durham, III              Laura E. Gutierrez Tamez
            State Bar No. 24012569               State Bar No. 00793869
            ldurham@texasappeals.com             lrtamez@herreralaw.com
            Kirk L. Pittard                      Jorge A. Herrera
            State Bar No. 24010313               State Bar No. 24044242
            kpittard@texasappeals.com            jherrera@herreralaw.com
            Morgan A. McPheeters                 THE HERRERA LAW FIRM, INC.
            State Bar No. 24081279               111 Soledad Street, Suite I 900
            mmcpheeters@texasappeals.com         San Antonio, Texas 78205
            KELLY, DURHAM & PITTARD, LLP         (210) 224-1054 (Telephone)
            PO Box 224626                        (210) 228-0887 (Facsimile)
            Dallas, TX 75222
            (214) 946-8000 (Telephone)
            (214) 946-8433 (Facsimile)
                                ORAL ARGUMENT REQUESTED*
                    IDENTITY OF PARTIES AND COUNSEL

     As required by Texas Rule of Appellate Procedure 38.1(a), Appellant

correctly identifies appellate counsel, trial counsel and all parties to this

appeal. In addition to those identified by Appellant, Appellees identify the

following appellate counsel.

Appellate Counsel for Appellees:          F. Leighton Durham, III
                                          Kirk L. Pittard
                                          Morgan A. McPheeters
                                          KELLY, DURHAM & PITTARD, LLP
                                          PO Box 224626
                                          Dallas, TX 75222




                                     ii
                                           TABLE OF CONTENTS

                                                                                                                 PAGE

IDENTITY OF PARTIES AND COUNSEL ....................................................................... ii

TABLE OF AUTHORITIES ......................................................................................... viii

STATEMENT OF THE RECORD .....................................................................................2

STATEMENT REGARDING ORAL ARGUMENT ............................................................ 2

RESTATEMENT OF ISSUE PRESENTED ......................................................................... 4

STATEMENT OF FACTS................................................................................................5

        A.       Mr. Andrade presents at Harlingen Medical Center
                 with severe chest pain........................................................................ 5

        B.       Mr. Andrade is diagnosed with a Type 1 (Stanford
                 Type A) ascending aortic dissection, an emergent
                 condition ..............................................................................................5

        C.       Dr. Lopez orders that Mr. Andrade be transferred to
                 another hospital, but Harlingen Medical Center fails
                 to carry out that order ........................................................................ 7

        D.       Dr. Hilmy performs an inpatient cardiology
                 consultation and orders that Mr. Andrade be
                 transferred for emergent surgery..................................................... 8

        E.       Harlingen Medical Center’s second attempt to
                 transfer Andrade is unsuccessful ..................................................... 8




                                                          iii
                                  TABLE OF CONTENTS (CONT’D)

                                                                                                                  PAGE

        F.      Despite Andrade’s emergent condition, Harlingen
                Medical Center’s case management practitioners
                wait almost another full day to attempt another
                transfer .................................................................................................9

        G.      Unable to transfer Mr. Andrade to a facility that
                could provide him the emergent care he needed, Mr.
                Andrade dies at Harlingen Medical Center on
                December 22, 2011 ............................................................................10

        H.      Mr. Andrade’s family files suit and Harlingen
                Medical Center challenges their expert reports ...........................10

        I.      The Andrades submit another expert report in
                compliance with the trial court’s order, and
                Harlingen Medical Center challenges it too .................................12

SUMMARY OF THE ARGUMENT ................................................................................12

ARGUMENT AND AUTHORITIES ...............................................................................14

I.      The applicable standard of review is abuse of discretion ....................14

II.     Initial expert reports need only satisfy minimal
        requirements under Chapter 74................................................................15

III.    The trial court properly denied Harlingen Medical
        Center’s motions to dismiss because Plaintiffs’ expert
        reports meet the minimum requirements of § 74.351 ...........................18




                                                          iv
                       TABLE OF CONTENTS (CONT’D)

                                                                                                      PAGE

A.   Plaintiffs’ reports satisfactorily detailed the relevant
     standard of care required of Harlingen Medical
     Center .................................................................................................19
B.   Plaintiffs’ reports establish the manner in which
     Harlingen Medical Center breached the relevant
     standard of care ................................................................................21

     i.       Case management failed to effectuate the
              transfer order by failing to obtain a physician-
              to-physician call and by failing to provide all
              relevant information to potential transfer
              facilities. (2 CR 364) ................................................................22

     ii.      Case management failed to continually work
              locate an accepting facility to care for Mr.
              Andrade starting on December 19, and failed
              to look statewide for an accepting facility. (2
              CR 364-65)................................................................................25

     iii.     Case management failed to follow the chain of
              command and escalate the inability to secure
              an accepting facility. (2 CR 366) ...........................................26

     iv.      Case management failed to keep the
              physicians up to date on the inability to secure
              acceptance for transfer. (2 CR 366-67) .................................27

C.   Plaintiffs’ expert reports causally link Harlingen
     Medical Center’s breach of the standard of care to
     Mr. Andrade’s death ........................................................................28



                                               v
                                 TABLE OF CONTENTS (CONT’D)

                                                                                                             PAGE

               i.       Dr. Adams and Dr. DeBehnke sufficiently
                        established causation .............................................................31

               ii.      Harlingen Medical Center incorrectly argues
                        that Plaintiffs must conclusively establish
                        causation ..................................................................................34

                        1.       Chapter 74 does not require Plaintiffs to
                                 conclusively establish causation ................................35

                        2.       Chapter 74 does not require Plaintiffs to
                                 respond to or negate Harlingen Medical
                                 Center’s potential defenses ........................................36


                        3.       Case law cited by Harlingen Medical
                                 Center does not support its claim that
                                 Plaintiffs must prove that a specific
                                 hospital would have accepted Mr.
                                 Andrade.........................................................................41

IV.   The Court need not address Harlingen Medical Center’s
      argument that it cannot be blamed for Dr. Lopez’ decision
      not to perform Mr. Andrade’s surgery....................................................48

V.    If the Court finds that Plaintiffs’ initial reports are
      insufficient regarding causation, Plaintiffs are entitled to a
      30-day extension to cure that deficiency .................................................50

VI.   Conclusion ...................................................................................................53



                                                        vi
                                  TABLE OF CONTENTS (CONT’D)

                                                                                                          PAGE

CERTIFICATE OF COMPLIANCE ................................................................................56

CERTIFICATE OF SERVICE .........................................................................................56




                                                       vii
                                      TABLE OF AUTHORITIES

CASES                                                                                                 PAGE

Abilene Reg’l Med. Ctr. v. Allen,
 387 S.W.3d 914 (Tex. App.—Eastland 2012, pet. denied) ............................30

Am. Transitional Care Ctrs. v. Palacios,
 46 S.W.3d 873 (Tex. 2001) ................................. 14, 16, 17, 18, 19, 21, 28, 34, 35

Baylor Med. Ctr. at Waxahachie, Baylor Health Care Sys. v. Wallace,
 278 S.W.3d 552 (Tex. App.—Dallas 2009, no pet.) ........................................41

Bowie Memorial Hosp. v. Wright,
 79 S.W.3d 48 (Tex. 2002) ........................................................... 15, 17, 29, 35, 38

Certified EMS, Inc. v. Potts,
 392 S.W.3d 625 (Tex. 2013) ........................................... 13, 16, 18, 21, 34, 49, 53

Costello v. Christus Santa Rosa Health Care Corp.,
 141 S.W.3d 245 (Tex. App.—San Antonio 2004, no pet.) .............................29

Dillard v. Tex. Elec. Co-op.,
 157 S.W.3d 429 (Tex. 2005) ................................................................................40

Downer v. Aquamarine Operators, Inc.,
 701 S.W.2d 238 (Tex. 1985) ................................................................................15

Estorque v. Schafer,
 302 S.W.3d 19 (Tex. App.—Fort Worth 2009, no pet.) ........................... 42, 43

Fortner v. Hosp. of the Sw., LLP,
  399 S.W.3d 373 (Tex. App.—Dallas 2013, no pet.) ........................... 30, 38, 41

Gray v. CHCA Bayshore L.P.,
 189 S.W.3d 855 (Tex. App.—Houston [1st Dist.] 2006, no pet.) ..................40
                                                     viii
                                TABLE OF AUTHORITIES (CONT’D)

CASES (CONT’D)                                                                                          PAGE

Hutchinson v. Montemayor,
 144 S.W.3d 614 (Tex. App.—San Antonio 2004, no pet.) ................ 16, 29, 35

IHS Acquisition No. 140, Inc. v. Travis,
  No. 13-07-481-CV, 2008 WL 1822780
  (Tex. App.—Corpus Christi Apr. 24, 2008, pet. denied) ..............................16

In re Stacy K. Boone,
  223 S.W.3d 398 (Tex. App.—Amarillo 2006, orig. proceeding) ..................40

Jelinek v. Casas,
  328 S.W.3d 526 (Tex. 2010) ................................................................................29

Jernigan v. Langley,
  195 S.W.3d 91 (Tex. 2006) ..................................................................................17

Jones v. King,
  255 S.W.3d 156 (Tex. App.—San Antonio 2008, pet. denied)......... 42, 44, 45

Leland v. Brandal,
  257 S.W.3d 204 (Tex. 2008) ................................................................................52

Lenger v. Physician’s Gen. Hosp., Inc.,
  455 S.W.2d 703 (Tex. 1970) ......................................................................... 29, 35

Lewis v. Funderburk,
  253 S.W.3d 204 (Tex. 2008) ................................................................................17

Loaisiga v. Cerda,
  379 S.W.3d 248 (Tex. 2012) ................................................................................18



                                                      ix
                               TABLE OF AUTHORITIES (CONT’D)

CASES (CONT’D)                                                                                         PAGE

Otero v. Leon,
 319 S.W.3d 195
 (Tex. App.—Corpus Christi 2010, pet. denied) .......................... 15, 18, 19, 54

Patterson v. Ortiz,
 412 S.W.3d 833 (Tex. App.—Dallas 2013, no pet.) ................................. 29, 35

Renaissance Surgical Ctrs.-S. Tex., L.L.P. v. Jimenez,
 No. 13-07-121-CV, 2008 WL 3971096
 (Tex. App.—Corpus Christi Aug. 28, 2008, no pet.) .....................................52

Sanchez v. Martin,
  378 S.W.3d 581 (Tex. App.—Dallas 2012, no pet.) ........................................17

Schrapps v. Lam Pham,
  No. 09-12-00080-CV, 2012 WL 4017768
  (Tex. App.—Beaumont Sept. 13, 2012, pet. denied) ........................ 38, 42, 47

Tenet Hosp. Ltd. v. Love,
 347 S.W.3d 743 (Tex. App.—El Paso 2011, no pet.).......................... 42, 45, 46

Thota v. Young,
 366 S.W.3d 678 (Tex. 2012) ................................................................................39

Walker v. Gutierrez,
 111 S.W.3d 56 (Tex. 2003) ..................................................................................15

Whitfield v. Henson,
 385 S.W.3d 708 (Tex. App.—Dallas 2012, no pet) .........................................41




                                                      x
                             TABLE OF AUTHORITIES (CONT’D)

STATUTES                                                                                      PAGE

Tex. Civ. Prac. & Rem. Code § 74.351 ............................................. 30, 34, 49, 53

Tex. Civ. Prac. & Rem. Code § 74.351(b) ...........................................................16

Tex. Civ. Prac. & Rem. Code § 74.351(c) ..................................................... 17, 53

Tex. Civ. Prac. & Rem. Code § 74.351(i).............................................................30

Tex. Civ. Prac. & Rem. Code § 74.351(l)...................................................... 17, 18

Tex. Civ. Prac. & Rem. Code § 74.351(r)(6) .......................................... 16, 28, 36




                                                  xi
                    NO. 13-14-00700-CV
                        CONSOLIDATED WITH
                    NO. 13-15-00119-CV

         IN THE THIRTEENTH COURT OF APPEALS
            CORPUS CHRISTI-EDINBURG, TEXAS


      HARLINGEN MEDICAL CENTER, LIMITED PARTNERSHIP,
                                                                 Appellant,

                                  v.

              ROSA ANDRADE, AS NEXT FRIEND OF
         MARY HELEN ANDRADE, A MINOR CHILD, ET. AL.
                                                                 Appellees.


On Appeal from the 404th Judicial District Court, Cameron County, Texas
               Trial Court Cause No. 2014-DCL-1353-G



                APPELLEES’ RESPONSE BRIEF




                                  1
                         STATEMENT OF THE RECORD

      This is a consolidation of two appeals of orders denying Appellant’s

motions to dismiss in the same case. The Clerk’s Record related to the first

appeal (Cause No. 13-14-00700-CV) will be referenced as “1 CR [page].” The

Clerk’s Record related to the second appeal (Cause No. 13-15-00119-CV) will

be referenced as “2 CR [page].”

      Similarly, the Reporter’s Record from the first, October 30, 2014

hearing on Harlingen Medical Center’s Motion to Dismiss for Insufficient

Expert Reports (Cause No. 13-14-00700-CV) will be referenced as “1 RR

[page].” The Reporter’s Record from the second, February 17, 2015 hearing

on Harlingen Medical Center’s Second Motion to Dismiss for Insufficient

Expert Reports (Cause No. 13-15-00119-CV) will be referenced as “2 RR

[page].”

                 STATEMENT REGARDING ORAL ARGUMENT

      Because the issues in this case are relatively simple and

straightforward and the law is well established, Appellees do not believe

that oral argument is necessary and that this Court can easily affirm the trial

court’s ruling based on the briefs and record currently on file. However, if

the Court grants Appellant’s request for oral argument, Appellees request

                                      2
the opportunity to participate.




                                  3
                    RESTATEMENT OF ISSUE PRESENTED

     In light of the underlying purpose and minimal requirements for

expert reports under Chapter 74 of the Texas Civil Practice and Remedies

Code, did the trial court act within its discretion when it denied Appellant

Harlingen Medical Center’s motions to dismiss for insufficient reports,

where the Andrades’ expert reports adequately detailed the causal links

between Harlingen Medical Center’s breaches of the applicable standard of

care and Mr. Andrade’s death?




                                     4
                           STATEMENT OF FACTS

A.    Mr. Andrade presents at Harlingen Medical Center with severe chest
      pain.

      On December 18, 2011, George Andrade arrived at Harlingen Medical

Center’s emergency room at approximately 3:30 pm, complaining of severe

chest pain. (1 CR 228). The attending physician evaluated Andrade and

ordered laboratory studies, a chest x-ray, and ordered a CT angiogram of

Andrade’s chest and abdomen to rule out aortic dissection. Id. At 5:45 pm, a

second emergency room physician, Dr. Syed Ali, assumed care for Andrade

and recommended admission to the hospital under the care of Dr. Nataraj

Desai. Id. Thirty minutes later, Dr. Desai ordered Andrade’s admission to

the hospital, receipt of Lovenox, and a consult by Dr. David Yardley, a

cardiologist. Id.

B.    Mr. Andrade is diagnosed with a Type 1 (Stanford Type A)
      ascending aortic dissection, an emergent condition.

      The CT angiogram ordered while Andrade was in the emergency

room revealed an aortic dissection, exactly what the doctors hoped to rule

out. (1 CR 229). At 8:08 pm a second CT angiogram was performed, which

confirmed the aortic dissection, but further indicated an “aortic dissection

most consistent with a Type 1 or Stanford A dissection involving the

                                     5
ascending aorta.” Id.

      The finding of a Type 1 (Stanford Type A) ascending aortic dissection

is significant because it is a surgical emergency due to the high incidence of

rupture or pericardial tamponade, resulting in immediate death. (1 CR 228).

The standard of care for this type of tear in the wall of the aorta requires

emergent surgical repair to prevent rupture and death. Id. A Type 1

dissection, if not treated urgently or emergently by surgical repair, is

“universally fatal.” (1 CR 231).

      Dr. Yardley saw Andrade at 9:45 pm and confirmed that Andrade

suffered from an ascending abdominal aortic dissection. (1 CR 229). Dr.

Desai was also alerted of the results from the CT angiogram. Id. Dr. Yardley

recommended that Andrade be admitted to the CCU and indicated that Dr.

Shereef Hilmy would assume care the following day to perform an invasive

angiography with possible covered graft stenting. Id.

      A third CT angiogram was performed the following morning,

December 19, on the orders of Dr. Hilmy. (1 CR 229). The radiologist

documented that the image revealed an aortic dissection extending from the

root of the aorta through the ascending and descending aorta to the left

common iliac artery. Id.
                                      6
C.    Dr. Lopez orders that Mr. Andrade be transferred to another
      hospital, but Harlingen Medical Center fails to carry out that order.

      At 1:30 pm on December 19, vascular surgeon, Dr. Ruben Lopez

recommended that Andrade be transferred because of the ascending aortic

dissection. Dr. Lopez recommended he be transferred to Houston. Id.

      Dr. Desai called in an order of transfer. 1 Id. However, there was no

documentation of an appropriate consultation by Dr. Lopez, documentation

by any physician identifying the reason for transfer, or documentation of

communication with the patient concerning the need for transfer. Id. Dr.

Lopez signed a certification for transfer, but otherwise left the form

completely blank. Id.

      Harlingen Medical Center’s case management department initiated

transfer efforts to Memorial Hermann Hospital in Houston at 3:15 pm on

December 19, which immediately rejected the transfer for “financial

reasons.” Id. No further orders to transfer Andrade to another facility were

attempted that day. Id.


1That morning at 11:15 am, Dr. Desai completed a history and physical on Mr. Andrade,
but incorrectly noted a finding of descending aortic dissection. Id. Dr. Desai mistakenly
believed that the condition could be treated with cardiovascular surgery to place an
endovascular graft. Id. However, Mr. Andrade was actually suffering from an ascending
aortic dissection, which can only be treated through emergency surgery to repair the
aortic root and to plicate the dissected aorta with a graft. Id.
                                           7
D.    Dr. Hilmy performs an inpatient cardiology consultation and orders
      that Mr. Andrade be transferred for emergent surgery.

     The next morning, two days after Mr. Andrade first presented at

Harlingen Medical Center, Dr. Hilmy performed an “inpatient” cardiology

consultation, again diagnosed Andrade with an ascending aortic dissection,

and acknowledged that Andrade was not a candidate for endovascular graft.

(1 CR 230). Like Dr. Lopez the day before, Dr. Hilmy recommended transfer

to a higher level of care at a facility such as Methodist Hospital, Memorial

Hermann, or Texas Heart Institute. Id. At 9:00 am, Dr. Desai noted Dr.

Hilmy’s diagnosis of an ascending aortic root dissection, Type 1, and at 10:45

am, ordered that Andrade be transferred to a higher level of care for

emergency CT surgery. Id.

E.   Harlingen Medical Center’s second attempt to transfer Andrade is
     unsuccessful.

      At 1:00 pm on December 20, a second attempt to transfer Andrade to

Memorial Hermann was unsuccessful. (1 CR 230). According to the case

management notes, Andrade’s transfer was refused by Memorial Hermann

based on its mistaken belief that the “case is urgent and not emergent or else

it would have been done yesterday.” Id. There is no documentation that any

physician called Memorial Herman Hospital to correct this error and, again,

                                      8
the transfer certificate was blank. Id.

      The case management nurse, Nurse Torres, contacted a second

hospital, University of Texas Medical Branch Galveston, for transfer, but that

hospital had no capacity. Id. Case management then attempted to contact

Methodist Hospital in San Antonio. Id. The transfer coordinator for

Methodist Hospital in San Antonio requested a physician-to-physician call

but was unable to reach Dr. Desai after six attempts. Id. Finally, the

cardiothoracic surgeon in San Antonio reached Dr. Desai, but declined to

accept Andrade. Id. University Hospital in San Antonio also declined the

patient, but the reason for doing so is not known. Id. No further attempts at

transfer were made on December 20, and no one on Harlingen Medical

Center’s case management team attempted to initiate any calls by the

physicians. Id.

F.    Despite Andrade’s emergent condition, Harlingen Medical Center’s
      case management practitioners wait almost another full day to
      attempt another transfer.

      The next attempt at transfer did not occur for more than 17 hours. (1

CR 231). At 10:15 am on December 21, case management again requested

transfer to Methodist Hospital in San Antonio. Id. At 1:30 pm, the request

was again declined. Id. Later that afternoon, case management made another

                                          9
attempt to facilitate a transfer to Memorial Hermann in Houston, but

Memorial Hermann again declined the transfer. Id.

G.    Unable to transfer Mr. Andrade to a facility that could provide him
      the emergent care he needed, Mr. Andrade dies at Harlingen
      Medical Center on December 22, 2011.

      Harlingen Medical Center made no further efforts to transfer Andrade.

(1 CR 231). Predictably, on the morning of December 22, and 14 hours after

Harlingen Medical Center last attempted a transfer, Mr. Andrade

experienced a free rupture into his pericardium and died. Id. He was 47 years

old. See (1 CR 228; 1 RR 55:7-11).

H.    Mr. Andrade’s family files suit and Harlingen Medical Center
      challenges their expert reports.

      On March 3, 2014, Mr. Andrade’s surviving family members (Plaintiffs

or Appellees) filed wrongful death and survival claims against Harlingen

Medical Center, Dr. Yardley, Dr. Desai, Dr. Hilmy, and Dr. Lopez. (1 CR 6-

23). As required by § 74.351 of the Texas Civil Practice and Remedies Code,

Plaintiffs timely presented the defendants with initial expert reports from

Dr. C. Warren Adams, Dr. Dan DeBehnke, and Mr. Ralph E. Cross. See (1 CR

227-98).

      Harlingen Medical Center filed a Motion to Dismiss for Insufficient


                                     10
Expert Reports on July 18, 2014, claiming that the expert reports:

      (1) did not indicate that the experts were qualified to give expert
          opinions about the standard of care applicable to Harlingen
          Medical Center or its nurses or case managers and their
          breach of that standard;

      (2) were conclusory as to how Harlingen Medical Center or its
          agents violated the applicable standards of care; and

      (3) were conclusory and speculative regarding causation.

(1 CR 104).2

      The trial court denied Harlingen Medical Center’s motion except for

its objection to the qualifications of Plaintiffs’ experts to render an opinion

concerning the standard of care applicable to Harlingen Medical Center, and

granted the Andrades a 30-day extension to provide “a supplemental expert

report from an expert qualified to render an opinion concerning the

applicable standard of care for Harlingen Medical Center and whether that

standard of care was breached.” (1 CR 300). Harlingen Medical Center filed

a Notice of Appeal of that order. (1 CR 304-06).




2Doctors Yardley, Desai, Hilmy, and Lopez also filed Objections to Plaintiffs’ Expert
Reports. See (1 CR 186). The trial court denied the defendant doctors’ objections on
November 12, 2014. (1 CR 299; 1 RR 75:4-76:11). Doctors Yardley, Hilmy, Lopez, and
Desai did not appeal. (2 RR 24:21-25:5).
                                         11
I.   The Andrades submit another expert report in compliance with the
     trial court’s order, and Harlingen Medical Center challenges it too.

     Consistent with the trial court’s order, Plaintiffs submitted a

supplemental expert report of Mr. Gerald “Craig” Felty, a registered nurse

and hospital administrator. (2 CR 359-68). Harlingen Medical Center filed a

Second Motion to Dismiss on December 15, 2014. (2 CR 246-50). This time,

Harlingen Medical Center did not question the expert’s qualifications or

opinions regarding standard of care and breach. Rather, Harlingen Medical

Center objected to Felty’s report because it included an allegedly improper

and unsupported opinion on causation. (2 CR 246-50). Harlingen Medical

Center argued that Felty was not qualified to provide an opinion on

causation because he is not a physician. (2 CR 247-49). The trial court denied

Harlingen Medical Center’s Second Motion, (2 CR 377), and Harlingen

Medical Center filed a Notice of Appeal of that order on March 9, 2015, (2

CR 378-80). This Court consolidated these two appeals on April 28, 2015.

                       SUMMARY OF THE ARGUMENT

     The Texas Legislature’s primary objective in requiring initial expert

reports under Chapter 74 of the Texas Civil Practice and Remedies Code was

to “deter baseless claims, not block earnest ones,” and “to expeditiously


                                     12
weed out claims that have no merit.” Certified EMS, Inc. v. Potts, 392 S.W.3d

625, 631 (Tex. 2013). The Andrades satisfied that requirement when they

provided Harlingen Medical Center with four expert reports that

collectively satisfy the requirements of Chapter 74.

      The report of Mr. Felty meticulously details Harlingen Medical

Center’s failures to adhere to the relevant standards of care. Then, the reports

of Doctors Adams and DeBehnke causally link Harlingen Medical Center’s

breaches of the standards of care to Mr. Andrade’s death. These reports

explain, in great detail and based on reasonable medical probability, that

more likely than not Mr. Andrade would have been transferred to another

facility to receive emergency treatment that would have saved his life.

      In doing so, the reports sufficiently link Harlingen Medical Center’s

breaches of the standard of care directly to Mr. Andrade’s death. The reports

substantiate the Andrades’ claims that Harlingen Medical Center’s case

management team failed to follow the proper procedures required to

transfer a patient with an emergent medical condition and, as a consequence,

failed to ensure that Mr. Andrade received the emergent care his life-

threatening condition necessitated.

      Harlingen Medical Center does not seriously dispute the sufficiency of
                                      13
the reports. Instead, Harlingen Medical Center asks that this Court impose

an additional requirement on the Andrades that the Legislature has not

imposed. Harlingen Medical Center seeks to require that the Andrades also

conclusively establish that, had Harlingen Medical Center done what it was

supposed to and not breached the standard of care, another hospital would

have taken Mr. Andrade. However, neither the case law nor the statute

impose such an obligation.

      The Andrades’ reports, which unmistakably addressed standard of

care, breach, and causation, were sufficient to meet the minimal and

preliminary requirements of Chapter 74. Therefore, the trial court acted

within its discretion and in accord with the purpose of Chapter 74 when it

denied Harlingen Medical Center’s motions to dismiss. This Court should

affirm.

                           ARGUMENT AND AUTHORITIES

I.    The applicable standard of review is abuse of discretion.

      A trial court’s ruling concerning an expert report under Chapter 74 of

the Texas Civil Practice and Remedies Code is reviewable for an abuse of

discretion. See Am. Transitional Care Ctrs. v. Palacios, 46 S.W.3d 873, 877 (Tex.

2001); Otero v. Leon, 319 S.W.3d 195, 199 (Tex. App.—Corpus Christi 2010,

                                       14
pet. denied). Harlingen Medical Center’s brief largely ignores this standard

of review, perhaps because the standard necessary to reverse a trial court’s

ruling on a motion to dismiss under Chapter 74 is so high.

      Indeed, a trial court abuses its discretion only if “it acts in an arbitrary

or unreasonable manner without reference to any guiding rules or

principles,” and an appellate court may not substitute its own judgment for

the trial court’s judgment. Walker v. Gutierrez, 111 S.W.3d 56, 62 (Tex. 2003).

Accordingly, “[t]he mere fact that a trial judge may decide a matter within

his discretionary authority in a different manner than an appellate judge in

a similar circumstance does not demonstrate that an abuse of discretion has

occurred.” Downer v. Aquamarine Operators, Inc., 701 S.W.2d 238, 242 (Tex.

1985). This Court must, therefore, determine “whether the trial court acted

unreasonably and without reference to guiding principles” when it denied

Harlingen Medical Center’s motions to dismiss. Bowie Memorial Hosp. v.

Wright, 79 S.W.3d 48, 52 (Tex. 2002).

II.   Initial expert reports need only satisfy minimal requirements under
      Chapter 74.

      Plaintiffs in health care liability cases are required to provide each

defendant an initial expert report with attached curriculum vitae “not later


                                        15
than the 120th day after the date each defendant’s original answer is filed.”

Tex. Civ. Prac. & Rem. Code § 74.351(b). An “expert report” is:

       [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) (emphasis added). The Texas

Supreme Court explains that a “‘fair summary’ is something less than a full

statement of the applicable standard of care and how it was breached.”3

Palacios, 46 S.W.3d at 880 (internal quotations omitted). Rather, a “fair

summary” must simply set out what care was expected but not given. Id.

       A valid expert report has three elements: (1) it must fairly summarize

the applicable standard of care; (2) it must explain how the health care

provider failed to meet that standard; and (3) it must establish the causal

relationship between the failure and harm alleged. Certified EMS, Inc. v. Potts,



3As this Court has noted, the Texas Supreme Court’s interpretation of “fair summary” in
Palacios “implies that there is some level of ambiguity—something less than an absolutely
full description—that is left to the independent analysis of the trial court.” IHS Acquisition
No. 140, Inc. v. Travis, No. 13-07-481-CV, 2008 WL 1822780, at *9 (Tex. App.—Corpus
Christi Apr. 24, 2008, pet. denied) (mem. op.); see also Hutchinson v. Montemayor, 144
S.W.3d 614, 617-18 (Tex. App.—San Antonio 2004, no pet.) (A “‘fair summary’ is
something less than all of the evidence necessary to establish causation at trial.”).


                                             16
392 S.W.3d 625, 630 (Tex. 2013). The expert must explain the basis of his

statements to link his conclusions to the facts. Wright, 79 S.W.3d at 52.

       However, the expert report need not “marshal every bit of the

plaintiff’s evidence.” Jernigan v. Langley, 195 S.W.3d 91, 93 (Tex. 2006). Nor

must the plaintiff “present evidence in the report as if it were actually

litigating the merits.” Palacios, 46 S.W.3d at 879 (The report does not need to

meet the same requirements as the evidence offered in a summary judgment

proceeding or at trial.). Instead, plaintiffs must simply make “an objective

good faith effort to comply” with the Chapter 74 expert report requirements.

Tex. Civ. Prac. & Rem. Code § 74.351(l). 4

       The statute’s primary objective is to “deter baseless claims, not block

earnest ones,” and “to expeditiously weed out claims that have no merit.”




4Additionally, Chapter 74 provides a built-in protection for plaintiffs if their initial expert
report is deficient. A trial court may grant a plaintiff a 30-day extension to cure a defective
report as long as the defective report (1) is timely, (2) contains the opinion of an individual
with expertise that the claim has merit, and (3) implicates the defendant’s conduct.
Scoresby, 346 S.W.3d at 557; Sanchez v. Martin, 378 S.W.3d 581, 595-96 (Tex. App.—Dallas
2012, no pet.); see Tex. Civ. Prac. & Rem. Code § 74.351(c). A deficient report may be cured
by amending the report or by serving a new report from a separate expert that cures the
deficiencies in the previously filed report. See Lewis v. Funderburk, 253 S.W.3d 204, 208
(Tex. 2008).


                                              17
Potts, 392 S.W.3d 625, 631 (Tex. 2013). 5 Thus, if a plaintiff timely files an

expert report and a defendant objects to the report on the grounds that the

report is inadequate, the trial court may dismiss “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 . . . .” Tex. Civ. Prac.

& Rem. Code § 74.351(l) (emphasis added). To constitute a “good faith

effort,” the report must (1) put the defendant on notice of the specific

conduct complained of, and (2) provide the trial court a basis on which to

conclude the claims have merit. Otero, 319 S.W.3d at 199 (citing Palacios, 46

S.W.3d at 879).

III.   The trial court properly denied Harlingen Medical Center’s motions
       to dismiss because Plaintiffs’ expert reports meet the minimum
       requirements of § 74.351.

       Plaintiffs’ expert reports collectively constituted an “objective good

faith effort” to comply with Chapter 74. See Tex. Civ. Prac. & Rem. Code §

74.351(l). Plaintiffs’ experts are qualified to opine on the standard of care,

breach, and causation applicable to Harlingen Medical Center.6 Mr. Felty


5 See also Loaisiga v. Cerda, 379 S.W.3d 248, 264 (Tex. 2012) (Hecht, J., concurring in part
and dissenting in part) (“An expert report . . . is a low threshold a person claiming against
a health care provider must cross merely to show that [her] claim is not frivolous.”).
6 In its first motion to dismiss, Harlingen Medical Center objected to the qualifications of

Plaintiffs’ initial experts—Dr. Adams, Dr. DeBehnke, and Mr. Cross—arguing that,
                                             18
established the standard of care and Harlingen Medical Center’s breaches of

that standard, and Doctors Adams and DeBehnke established causation.

Collectively, the reports (1) put Harlingen Medical Center on notice of the

specific conduct complained of, and (2) provided the trial court a basis on

which to conclude that the claims have merit. See Otero, 319 S.W.3d at 199;

Palacios, 46 S.W.3d at 879. Therefore, this Court should affirm the trial court’s

denial of the motions to dismiss, because Plaintiffs’ collective reports were

sufficient under Chapter 74.

      A.     Plaintiffs’ reports satisfactorily detailed the relevant standard
             of care required of Harlingen Medical Center.

      According to Mr. Felty’s report, once a transfer order is placed, the

standard of care for the nurse case managers, nursing supervisors, and

nursing staff of Harlingen Medical Center includes the following



because these experts were not nurses or case managers, they were not qualified to opine
on the standard of care applicable to nurses or case managers. (1 CR 103-15). Harlingen
Medical Center did not challenge Dr. Adams’ and Dr. DeBehnke’s qualifications
regarding causation. The trial court sustained Harlingen Medical Center’s objection
regarding qualifications for standard of care, so Plaintiffs supplemented their reports
with a report from Mr. Felty. (1 CR 300; 2 CR 359-68). In its second motion to dismiss,
Harlingen Medical Center challenged Mr. Felty’s report only on the ground that Mr. Felty
was not qualified to opine on causation. (2 CR 247-49). Harlingen Medical Center did not
challenge Mr. Felty’s qualifications or opinions regarding standard of care or breach.
Accordingly, it is undisputed that Mr. Felty is qualified regarding standard of care and
breach and Dr. Adams and Dr. DeBehnke are qualified regarding causation.


                                          19
requirements:7

      (1)    Follow and carry out the physician transfer orders for an
             emergency condition on December 19, 20, 21, and 22
             without delay;

      (2)    Research and identify all patient resources and facilities by
             obtaining the hospital’s transfer agreements, contacting
             facilities ordered or finding those facilities capable of
             providing necessary care and treatment or engaging a
             transfer service;

      (3)    Ensure that a physician order of transfer of a patient with
             an emergency medical condition carries over between shift
             changes;

      (4)    Communicate fully with the receiving hospitals to convey
             critical information, including whether the transfer is
             emergent or urgent, the reason for the transfer, and the
             patient’s proper diagnosis;

      (5)    Obtain a certification of patient transfer from a physician,
             certifying that the benefits to the patient of the transfer
             outweigh the risks and indicating the correct diagnosis and
             information regarding the patient’s condition;

      (6)    Arrange for physician-to-physician calls to facilitate full
             communication about the patient’s emergency condition,
             diagnosis,   treatment,   stabilization,    and      avoid
             miscommunication;




7Mr. Felty provided an opinion on the standard of care applicable to Harlingen Medical
Center, which Harlingen Medical Center never challenged at the trial court and does not
challenge here. Mr. Felty’s opinion on the relevant standard of care is briefly summarized
here for context.
                                           20
         (7)    Invoke the chain of command when a physician’s order
                cannot be carried out or the patient’s needs are not being
                met;

         (8)    Obtain the patient’s informed consent for transfer; and

         (9)    Communicate with attending physicians regarding the
                inability to secure a transfer.

See (2 CR 362-63). Accordingly, Mr. Felty’s report provided a “fair summary”

of the standard of care that Harlingen Medical Center was expected to

provide to Mr. Andrade, thus complying with the requirements of Chapter

74. See Palacios, 46 S.W.3d at 880; Potts, 392 S.W.3d at 630.

         B.     Plaintiffs’ reports establish the manner in which Harlingen
                Medical Center breached the relevant standard of care.

         Next, Mr. Felty provided a fair summary of the breaches of the

standard of care by Harlingen Medical Center—i.e., what care was expected

but not given to Mr. Andrade. 8 See Palacios, 46 S.W.3d at 880. In his report,

Mr. Felty detailed how the nursing care managers, nursing supervisors, and

nursing staff, specifically Heather Smith, Debbie Mendoza, Terri Wood, and

Maria Torres, breached the standard of care that was due to Andrade.

         Ultimately, Mr. Felty opined that case management failed to

appropriately, and within the standard of care, carry out the physician


8   Harlingen Medical Center does not challenge Mr. Felty’s report regarding breach either.
                                             21
transfer order of an emergency condition on December 19, 20, 21, and 22. (2

CR 364).

           i.     Case management failed to effectuate the transfer order
                  by failing to obtain a physician-to-physician call and by
                  failing to provide all relevant information to potential
                  transfer facilities. (2 CR 364).

      Nurse Smith only contacted one facility on December 19 and failed to

provide or obtain the appropriate patient data, including the proper

diagnosis of an ascending or Type 1 aortic dissection requiring emergency

surgery. (2 CR 364). There was no consult in the chart indicating the proper

diagnosis and there is no record that Nurse Smith contacted any physician

to obtain one. Id. She also did not obtain a physician certification indicating

whether Mr. Andrade was stable for transfer, whether he had an emergency

condition, and why he was being transferred (i.e. whether he was being

transferred merely due to being unfunded or because he needed a facility

that could provide greater expertise). Id.

      Mr. Felty said that it is crucial to a receiving hospital to have this

information so it can evaluate whether a transfer is medically indicated or

necessary and whether transfer is in the best interest of the patient. Id. Failure

by Nurse Smith to obtain the appropriate data to communicate to the


                                       22
receiving hospital, such as a physician certification, led to an incorrect

diagnosis of descending aortic dissection being included in Dr. Desai’s history

and physical. Id.

      Nurse Smith further failed to determine if Mr. Andrade’s condition

was emergent or non-emergent to facilitate an appropriate transfer. Id. Nurse

Smith failed to coordinate physician-to-physician calls, which would have

allowed for full communication between physicians and provided the

patient with the best opportunity to transfer. Id. Nurse Smith also did not

communicate with any physician to seek alternative orders or assistance in

finding an accepting physician or hospital. Id. Such actions or inactions were

breaches of the applicable standard of care for a nurse supervisor. Id.

Furthermore, Nurse Smith’s failure to communicate that Andrade had an

emergent condition on December 19 was a breach of the standard of care. Id.

      It was not until the following day, December 20, that Nurse Torres

found a consult in Mr. Andrade’s chart that indicated the correct diagnosis

of an ascending aortic dissection. Id. Nurse Torres sent that information to

Memorial Hospital, the same hospital that had denied Andrade the day

before. Id. Tellingly, however, the receiving physician at Memorial indicated



                                      23
that Mr. Andrade’s case must not have been emergent, otherwise Harlingen

Medical Center would have transferred him out “yesterday.” Id.

      On December 20, for the first time, Nurse Torres contacted a facility

other than Memorial Hermann. Id. There is no indication that Nurse Torres

facilitated a physician-to-physician call to communicate that Mr. Andrade

needed more than just an open bed. (2 CR 364-65). She also contacted

Methodist Hospital, but she did not facilitate a physician call or even provide

a physician phone number. (2 CR 365). This led to a delay in physician

communication. Id. Nurse Torres did not make any other calls to any other

facilities and simply waited on Methodist to respond. Id. Only after

Methodist declined the transfer did Nurse Torres then contact University

Hospital. Id. However, again, she did not facilitate a physician-to-physician

call, which led to a quick decline of transfer within 35 minutes. Id. Nurse

Torres’s failure to facilitate a physician-to-physician call for a transfer was a

breach in the standard of care. Id. Nurse Torres notified Terri Wood, case

manager, but then ceased all efforts to follow the transfer order on that day.

Id.

      Mr. Felty’s report states that Nurse Torres did not attempt another

transfer until approximately 16 hours later at 10:30 on December 21. Id.

                                       24
However, this attempt was merely to the same hospital that had already

declined Mr. Andrade the prior day. Id. Two hours later, that hospital

declined again. Id. Nurse Torres did not contact an attending physician or

invoke the chain of command to advise that she was unable to transfer

Andrade, who was in need of emergency surgery. Id. After a delay of almost

three hours, instead of contacting a different facility, Nurse Torres contacted

Memorial Hermann for a third time, which again declined Andrade within

45 minutes. Id. Nurse Torres made no further efforts to coordinate an

emergent transfer of Mr. Andrade. Id. Nurse Torres’s failure to carry out the

transfer order was, therefore, also a breach of the standard of care. Id.

          ii.     Case management failed to continually work to locate an
                  accepting facility to care for Mr. Andrade starting on
                  December 19, and failed to look statewide for an
                  accepting facility. (2 CR 364-65).

      All transfer attempts were ceased each day by early evening. (2 CR

365). Nurse Smith failed to provide a shift change report and handoff to the

oncoming house supervisor in order to continue the transfer order efforts.

Id. By failing to carry out the transfer order on December 19, Nurse Smith

placed Mr. Andrade’s medical condition at risk for deterioration. Id. By

calling only one or two facilities repeatedly, when numerous facilities in


                                      25
Houston, Dallas, San Antonio, Corpus Christi, Galveston, Austin, and Fort

Worth would have been available, Nurse Smith ensured that Mr. Andrade’s

healthcare needs would not be met. Id.

      Neither Nurse Torres nor Nurse Wood continued efforts of transfer

through shift change handoff reports or by contacting a physician for an

alternate care plan or by contacting any other facility in Texas or the United

States on December 20—despite knowing that Mr. Andrade needed

emergency surgery. Id. Nurse Torres and Nurse Wood breached the

standard of care by such failures. Id. Thus, during the almost 14 hours

leading up to Mr. Andrade’s death, neither Nurse Torres nor anyone from

Harlingen Medical Center documented any attempts to carry out the

emergent order for Mr. Andrade’s transfer, depriving him of any chance of

receiving the necessary surgical treatment. (2 CR 365-66).

         iii.     Case management failed to follow the chain of command
                  and escalate the inability to secure an accepting facility.
                  (2 CR 366).

      Nurse Smith did not seek assistance from any supervisor, physician,

or administrator in order to attempt a transfer. (2 CR 366). This failure led to

a delay in meeting Mr. Andrade’s medical needs. Id. Although Nurse Torres

advised a case manager regarding Andrade on December 20, she failed to

                                      26
follow up to determine the next step or alternative and abandoned her

efforts to follow the physician order. Id. This failure by Nurse Torres led to

a delay in Andrade’s medical care needs including emergency surgery,

which is a breach of the standard of care. Id.

      Nurse Wood and Nurse Mendoza also failed to carry out the physician

emergency transfer order by failing to contact a supervisor, nurse

administrator, chief nursing officer, or chief of staff to advise that a patient

needing emergency surgery was not having his medical care needs met. Id.

Nurse Torres’, Nurse Smith’s, Nurse Mendoza’s, and Nurse Woods’ failures

to invoke the chain of command when a physician’s emergent order could

not be carried out was a violation of the applicable standard of care. Id.

         iv.      Case management failed to keep the physicians up to
                  date on the inability to secure acceptance for transfer. (2
                  CR 366-67).

      Finally, Mr. Felty noted that case management breached the standard

of care by failing to inform Mr. Andrade’s physicians of case management’s

failures to locate a transfer facility. (2 CR 366-67). Nor did any of the nurses

ever inform the physicians that they were going to stop working on the

transfer order. Id. Meanwhile, it appears that the physicians were under the

impression that transfer efforts were ongoing, when in reality the nurses

                                      27
were not properly carrying over the transfer orders from shift to shift. Id.

      As demonstrated above, Harlingen Medical Center breached the

standard of care by failing to follow the required steps to transfer Mr.

Andrade, a patient with an emergent medical condition who Harlingen

Medical Center’s physicians refused to operate on. Mr. Felty’s report

meticulously detailed what care was expected, but not given to Mr.

Andrade. This certainly constituted a “fair summary” and was sufficient

under § 74.351. See Palacios, 46 S.W.3d at 880.

      C.    Plaintiffs’ expert reports causally link Harlingen Medical
            Center’s breach of the standard of care to Mr. Andrade’s death.

      With the exception of a few related issues, Harlingen Medical Center’s

appeal only challenges Dr. Adams’ and Dr. DeBehnke’s reports regarding

causation. However, because Plaintiffs’ reports meet the minimum

requirements for causation under Chapter 74, the trial court did not abuse

its discretion in denying Harlingen Medical Center’s motions to dismiss.

      Section 74.351 requires experts to provide a “fair summary of the

expert’s opinions” regarding “the causal relationship between [the failure to

meet the applicable standards of care] and the injury, harm, or damages

claimed.” Tex. Civ. Prac. & Rem. Code § 74.351(r)(6). Generally, “[a] causal


                                      28
relationship is established by proof that the negligent act or omission

constituted a substantial factor in bringing about the harm and absent the

act or omissions, the harm would not have occurred.” Cornejo, 446 S.W.3d at

123 (citing Costello v. Christus Santa Rosa Health Care Corp., 141 S.W.3d 245,

249 (Tex. App.—San Antonio 2004, no pet.)). In other words, Plaintiffs “must

present evidence ‘that it is more likely than not that the ultimate harm or

condition resulted from such negligence.’” Patterson v. Ortiz, 412 S.W.3d 833,

836 (Tex. App.—Dallas 2013, no pet.) (quoting Jelinek v. Casas, 328 S.W.3d

526, 532-33 (Tex. 2010)) (emphasis added).

      While a plaintiff’s expert reports must establish a causal connection

beyond mere conjecture or possibility, a “‘fair summary’ is something less

than all of the evidence necessary to establish causation at trial.” Hutchinson,

144 S.W.3d at 617-18 (citing Lenger v. Physician’s Gen. Hosp., Inc., 455 S.W.2d

703, 706 (Tex. 1970); Wright, 79 S.W.3d at 52). Furthermore,

      [a]n expert report need not marshal all of the plaintiff’s proof
      necessary to establish causation at trial, and it need not anticipate
      or rebut all possible defensive theories that may ultimately be
      presented to the trial court. The expert must simply provide some
      basis that a defendant’s act or omission proximately caused injury.
      And the expert must explain the basis of his statements and link
      his conclusions to the facts.

Cornejo, 446 S.W.3d at 123 (emphasis added) (citing Wright, 79 S.W.3d at 52-
                                       29
53; Fortner v. Hosp. of the Sw., LLP, 399 S.W.3d 373, 383 (Tex. App.—Dallas

2013, no pet.)).

      Plaintiffs provided reports from Dr. Adams and Dr. DeBehnke to

demonstrate how Harlingen Medical Center’s negligence contributed to

cause Mr. Andrade’s death. Harlingen Medical Center argues that Plaintiffs’

reports were insufficient on causation because they “were impermissibly

conclusory and speculative.” Appellant’s Br. at x, 11. However, Plaintiffs’

expert reports collectively provide a “fair summary” of the causal

connection between Harlingen Medical Center’s negligence and Mr.

Andrade’s death and, therefore, fulfil the requirements of § 74.351. 9


9 In a separate issue, Harlingen Medical Center also argues that Mr. Cross and Mr. Felty
were disqualified from opining on causation because neither of them are physicians.
Appellant’s Br. at 19-20. The Court should overrule this issue. First, neither Cross nor
Felty needed to provide the causation opinion required by § 74.351 because causation
was covered by Dr. Adams and Dr. DeBehnke, who are both qualified physicians. See
Abilene Reg’l Med. Ctr. v. Allen, 387 S.W.3d 914, 918 (Tex. App.—Eastland 2012, pet.
denied) (citing Tex. Civ. Prac. & Rem. Code § 74.351(i)) (“a plaintiff may serve multiple
reports by separate experts regarding different defendants, different claims, and different
issues, as long as the reports, read together, provide a fair summary of the standard of
care, breach, and causation.”). Furthermore, Mr. Cross did not offer any opinion on
causation. And while the last sentence of Mr. Felty’s report states, “If the nurses had
complied with the standard of care, in reasonable probability, Andrade would have been
placed and would have received the surgery he needed,” the trial court acted within its
discretion to disregard that sentence and deny the Harlingen Medical Center’s Second
Motion to Dismiss, because Plaintiffs’ collective reports otherwise satisfied the
requirements of § 74.351. (2 CR 247-48, 367). Additionally, to the extent that Mr. Felty’s
attempted causation opinion is merely an opinion relating to the administrative functions
of Harlingen Medical Center and case management, rather than a medical diagnosis or
medical cause of death, Mr. Felty is arguably qualified to offer such an opinion.
                                            30
          i.     Dr. Adams and Dr. DeBehnke sufficiently established
                 causation.

     Dr. Adams and Dr. DeBehnke each linked the breaches of the standard

of care committed by Harlingen Medical Center’s case management team to

Mr. Andrade’s death. (1 CR 242-43, 265-66).

     In his report, Dr. Adams stated that Mr. Andrade’s dissection was

treatable through emergency cardiovascular surgery and that Mr. Andrade’s

aortic rupture ultimately occurred due to a lack of surgical intervention and

timely care. (1 CR 243). Further, Dr. Adams specifically explained that

patients with conditions and comorbidities like Mr. Andrade who receive

immediate medical treatment with a beta blockade while undergoing

preparation for cardiovascular surgery to repair a dissection have superior

outcomes, and that Mr. Andrade’s dissection, in reasonable medical

probability, would have likely been halted and repaired. (1 CR 242). Dr.

Adams stated that delays in the necessary treatment for this type of disease

process, however, can result in death. (1 CR 241). Similarly, Dr. DeBehnke

stated that an ascending aortic dissection is a medical emergency and that

the consequence for failing to immediately treat the condition is ultimately

death. (1 CR 265). Time was of the essence and Harlingen Medical Center


                                     31
and its staff failed to ensure an emergent transfer by not requiring a

physician-to-physician call or a documented consult of Andrade’s condition.

(1 CR 242). Dr. Adams further explained that transfer communication for

this type of disease process should be physician-to-physician between the

sending and receiving hospitals and should never be left solely to case

management personnel. (1 CR 243).

     Dr. Adams then stated that “Harlingen Medical Center and its staff’s

delay and failure to provide and arrange for providing immediate surgery

within the capabilities of the hospital and medical staff, arranging for an

emergent and proper transfer of Mr. Andrade to a tertiary center as ordered

by physicians as outlined above and in a timely manner resulted in

progression of the dissection, with the known complication of rupture and

death.” (1 CR 242). The failures of the case management team to provide and

arrange for an emergent and proper transfer as ordered by physicians

resulted in the progression of Mr. Andrade’s aortic dissection and ultimate

death. Id. Basing his opinions on a reasonable medical probability, Dr.

Adams ultimately opined:

     [I]f the case management staff had not breached the applicable
     standard of care on December 19th, 20th, 21st, and 22nd, Mr.
     Andrade’s condition would not have led to a subsequent
                                    32
     ruptured aorta and death. It is my further opinion that their
     negligence in delay of diagnosis and substandard care as
     outlined above was a proximate cause of his progressive
     deterioration, free aortic rupture and death.

(1 CR 242).

     Dr. DeBehnke’s report echoed Dr. Adams’ report, stating that

Harlingen Medical Center’s case management team denied Mr. Andrade the

opportunity to receive emergency surgical treatment at another facility in a

timely manner by failing to complete two separate transfer orders through

the various breaches in the standard of care. (1 CR 265). The negligence of

the case management team contributed to cause Mr. Andrade’s death

because these acts and omissions in breach of the standard of care resulted

in a complete failure of treatment for three days, at the end of which Mr.

Andrade’s aorta ruptured and he died. Id. Dr. DeBehnke stated that

Harlingen Medical Center’s delays adversely affected Mr. Andrade’s

condition and were a proximate cause of a downward clinical spiral in his

condition, which resulted in his death. (1 CR 265-66).

     Therefore, Dr. Adams and Dr. DeBehnke provided a “fair summary”

of the causal connection between Harlingen Medical Center’s breach of the

standard of care in failing to transfer Mr. Andrade and Mr. Andrade’s death


                                     33
due to lack of surgical intervention. See Potts, 392 S.W.3d at 630; Palacios, 46

S.W.3d at 880. Collectively, their reports (1) inform Harlingen Medical

Center of the specific conduct that Plaintiffs have called into question, and

(2) provide a basis for the trial court to conclude that the claims have merit.

Potts, 392 S.W.3d at 630. The requirements of § 74.351 are plainly met for at

least one theory against Harlingen Medical Center. Accordingly, the trial

court did not abuse its discretion in denying Harlingen Medical Center’s

motions to dismiss. See Potts, 392 S.W.3d at 631.

          ii.     Harlingen Medical Center incorrectly argues that
                  Plaintiffs must conclusively establish causation.

      Harlingen Medical Center’s real problem with the Andrades’ expert

reports is that they do not identify a specific hospital that would have

accepted Mr. Andrade. See Appellant’s Br. at 11-12. According to Harlingen

Medical Center, “Appellees’ case depends on an adequate hospital and a

qualified surgeon being willing to accept Andrade as a patient despite his

lack of financial resources.” Id. at 12. Thus, according to Harlingen Medical

Center, “[t]o prove causation, [Plaintiffs] must identify such a hospital with

such a surgeon, and explain how compliance by HMC with the standard of

care for transfers would have gotten Andrade into such a hospital.” Id. at 8.


                                      34
However, this argument is incorrect and improperly places a much higher

burden on Plaintiffs than Chapter 74 requires.

                    1.     Chapter 74 does not require                   Plaintiffs    to
                           conclusively establish causation.

      Section 74.351 does not require Plaintiffs to conclusively establish

causation, as Harlingen Medical Center’s argument suggests—nor do any of

the cases cited in Harlingen Medical Center’s brief support this proposition.

At this stage in litigation, the law does not require Plaintiffs to marshal all of

their proof or to provide all of the evidence that would be necessary to

establish causation at trial, so it certainly does not require Plaintiffs to

conclusively establish causation. See Lenger, 455 S.W.2d at 706; Wright, 79

S.W.3d at 52; Palacios, 46 S.W.3d at 879; Hutchinson, 144 S.W.3d at 617-18.

Even at trial, plaintiffs only must present evidence that it is “more likely than

not” that the ultimate harm resulted from the defendant’s negligence.10

      Here, Plaintiffs need only provide a “fair summary” of causation, and

the reports of Drs. Adams and DeBehnke did just that. See Tex. Civ. Prac. &



10See Patterson, 412 S.W.3d at 836 (“Causation is established in medical malpractice cases
through evidence of a ‘reasonable medical probability’ or ‘reasonable probability’ that
the injuries were caused by the defendant’s negligence; in other words, the plaintiff must
present evidence that it is more likely than not that the ultimate harm or condition
resulted from such negligence.”) (internal citations omitted).
                                           35
Rem. Code § 74.351 (r)(6). Furthermore, Plaintiffs’ experts make clear that it

was not merely Harlingen Medical Center’s failure to continually work to

effectuate the transfer that led to Mr. Andrade’s death. Plaintiffs do not

simply argue that if Harlingen Medical Center had called more facilities, Mr.

Andrade would have lived. Rather, Plaintiffs’ experts also note that of the

handful of other hospitals the case management team even bothered to

contact, the information that the team was communicating about Mr.

Andrade and his level of need for a transfer was incorrect and missing critical

pieces. Thus, not only did case management only contact four hospitals and

cease all transfer efforts at 4:00-6:00 pm each day, but even when they were

trying to transfer Andrade, they failed to provide potential facilities with the

right information in the proper format.

      Harlingen Medical Center argues that it could not find any place that

would accept Mr. Andrade and that Plaintiffs’ claim must fail absent

evidence of a specific hospital that would have taken him. However, while

Plaintiffs’ experts do not identify a specific hospital by name, they state that

had Harlingen Medical Center provided potential accepting facilities with

the correct diagnosis, the correct information about Mr. Andrade’s

condition, and the proper physician-to-physician communication, the other
                                      36
facilities would have known that this was an emergency transfer situation—

not a non-emergent situation or a situation where Harlingen Medical Center

wanted to transfer Mr. Andrade out simply because he was unfunded.

Plaintiffs’ experts say this was crucial information and would have made a

difference.

      Additionally, had the case management team communicated with Mr.

Andrade’s physicians regarding the difficulties they were encountering in

transferring him, those physicians could have assisted in the search or

further adjusted Mr. Andrade’s care plan. Instead, absent proper

communication from the case management team, it appears that the

physicians believed that a successful transfer was pending. Further, had the

case management nurses instituted the chain of command when Mr.

Andrade’s needs were not being met, other hospital administrators such as

Harlingen Medical Center’s CEO, Chief of Medical Staff, or Chief of

Cardiothoracic Surgery could have stepped in and assisted.

      In any event, Plaintiffs were not required to prove what specific

hospital would have accepted Mr. Andrade, how he would have paid, or

exactly how he would have gotten there. Rather, Plaintiffs were only

required to provide Harlingen Medical Center and the trial court with some
                                     37
basis that Harlingen Medical Center’s acts or omissions proximately caused

Plaintiffs’ injuries, which they did. See Cornejo, 446 S.W.3d at 123; Wright, 79

S.W.3d at 52-53; Fortner, 399 S.W.3d at 383. As discovery is conducted, new

information regarding the specific hospitals that would have been available

to accept Mr. Andrade may be learned, however, the question here is

whether Plaintiffs’ expert reports represent a “good faith effort to comply

with the statutory requirements”—nothing more. See Schrapps v. Lam Pham,

No. 09-12-00080-CV, 2012 WL 4017768, at *4 (Tex. App.—Beaumont Sept. 13,

2012, pet. denied) (mem. op.) (“As discovery is conducted, new information

regarding the perforation, and when it occurred, may be learned. The

question at this stage is not one of summary judgment, but whether the

report represents a good faith effort to comply with the statutory

requirements.”).

                   2.   Chapter 74 does not require Plaintiffs to respond to
                        or negate Harlingen Medical Center’s potential
                        defenses.

      By arguing that Plaintiffs can only survive a motion to dismiss for

insufficient expert reports by proving that a specific hospital would have

accepted Andrade, Harlingen Medical Center attempts to redefine Plaintiffs’

burden under Chapter 74 to include an extra requirement of anticipating and

                                      38
rebutting all possible defensive theories that may ultimately be presented to

the trial court.

       Harlingen Medical Center’s argument focuses entirely on the

availability (or unavailability) of third party hospitals and essentially boils

down to this: even if Harlingen Medical Center had done everything

required by the standard of care, Mr. Andrade probably still would have

died because no hospital would have accepted him. In other words,

Harlingen Medical Center blames Mr. Andrade’s death on the potential

unavailability of a third party hospital willing to accept transfer. This is a

new and independent cause argument. 11 The existence of a new and

independent cause is an inferential rebuttal defense, which operates to rebut

the element of proximate cause of a plaintiff’s case.12 Defendants raise an

inferential rebuttal defense any time they “blame an occurrence on someone



11 “A new and independent cause of an occurrence is the act or omission of a separate
and independent agent, not reasonably foreseeable, that destroys the causal connection,
if any, between the act or omission inquired about and the occurrence in question.”
Columbia Rio Grande Healthcare, L.P. v. Hawley, 284 S.W.3d 851, 856 (Tex. 2009).

12 See, e.g., Dillard v. Tex. Elec. Co-op., 157 S.W.3d 429, 430 (Tex. 2005) (“An inferential
rebuttal defense operates to rebut an essential element of the plaintiff’s case by proof of
other facts. For example, the defendants in this case contended at trial that the fatal auto
accident in issue was not caused by their negligence, but rather by the presence of cattle
on the roadway or by the conduct of the cattle’s owner who allowed them to be there.”);
see also Thota v. Young, 366 S.W.3d 678, 692-93 (Tex. 2012).
                                            39
or something other than themselves.” Dillard v. Tex. Elec. Co-op., 157 S.W.3d

429, 432 (Tex. 2005). But Chapter 74 does not require Plaintiffs to respond to

or negate inferential rebuttal defenses in their expert reports.

      First, requiring a court to evaluate inferential rebuttal defenses during

the preliminary expert report stage would violate the “four corners” rule. A

trial court is required to evaluate a health care liability plaintiff’s expert

reports based only on the “four corners” of the document. Gray v. CHCA

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

pet.). If the trial court is able to determine the basis of the plaintiff’s

complaint from the four corners of the report, it is adequate under Chapter

74. See In re Stacy K. Boone, 223 S.W.3d 398, 406 (Tex. App.—Amarillo 2006,

orig. proceeding) (Noting that “[w]hile [defendants] may disagree with [an

expert’s] opinions,” a report that contains a fair summary of the expert’s

opinions is sufficient under Chapter 74). Plaintiffs’ expert reports provide a

fair summary of the experts’ opinions that had Harlingen Medical Center

complied with the standard of care, more likely than not Mr. Andrade would

have been transferred and would have received the emergency treatment

necessary for him to survive.

      More importantly, Chapter 74 does not require health care liability
                                      40
plaintiffs to “anticipate or rebut all possible defensive theories that may

ultimately be presented to the trial court.” Cornejo, 446 S.W.3d at 123; see also

Fortner, 399 S.W.3d at 383. Nor does it require plaintiffs to exclude all other

possible causes of their injuries. See Baylor Med. Ctr. at Waxahachie, Baylor

Health Care Sys. v. Wallace, 278 S.W.3d 552, 562 (Tex. App.—Dallas 2009, no

pet.) (“Nothing in section 74.351 suggests the preliminary report is required

to rule out every possible cause of the injury, harm, or damages claimed,

especially given that section 74.351(s) limits discovery before a medical

expert’s report is filed.”). Where an expert report provides a fair summary

of the expert’s opinions, informs the defendant of the specific conduct the

plaintiff questions, and provides a basis for the trial court to conclude that

the plaintiff’s claims have merit, it is adequate, whether or not it addresses

every causation issue that a defendant may raise in a challenge. See, e.g.,

Whitfield v. Henson, 385 S.W.3d 708 (Tex. App.—Dallas 2012, no pet).

                  3.    Case law cited by Harlingen Medical Center does
                        not support its claim that Plaintiffs must prove that
                        a specific hospital would have accepted Mr.
                        Andrade.

      Harlingen Medical Center cites several cases that it claims support the




                                       41
argument that Plaintiffs’ experts were deficient. 13 However, each of those

cases are distinguishable from the facts of this case—and none of them state

specifically that in negligent failure to transfer cases a plaintiff must identify

a specific hospital or doctor who would have accepted the plaintiff, or even

remotely require the level of proof that Harlingen Medical Center demands

here.

        Estorque v. Schafer is a failure to consult case. In Estorque, the expert

stated that the treating physicians should have obtained a urological

consultation, a gynecological consultation, and/or referrals in order to

obtain definitive care and treatment of the patient’s ureteral obstruction and

ovarian mass. Estorque, 302 S.W.3d at 28. Then, without any further

explanation, the expert concluded that the treating physicians’ “‘failure to

practice according to acceptable standards, more likely than not and to a

reasonable degree of medical probability, resulted in loss of function of [the

patient]’s kidney’ and ‘resulted in needless pain and suffering to [the

patient].’” Id. The court held that the report was insufficient because it



13See Appellant’s Br. at 16-19 (citing Estorque v. Schafer, 302 S.W.3d 19 (Tex. App.—Fort
Worth 2009, no pet.); Jones v. King, 255 S.W.3d 156 (Tex. App.—San Antonio 2008, pet.
denied); Tenet Hosp. Ltd. v. Love, 347 S.W.3d 743, 755 (Tex. App.—El Paso 2011, no pet.);
and Schrapps v. Lam Pham, No. 09-12-00080-CV, 2012 WL 4017768).
                                           42
“leaves gaps by not explaining how or why the physicians’ failure to consult

a urologist or gynecologist caused worsening or progression of [the

patient]’s listed conditions.” Id.

      Notably, however, the court did not state that the report was

insufficient because it failed to name the specific doctors who could have

and would have performed the necessary urological and gynecological

consults. If Harlingen Medical Center is correct that the Andrades’ expert

reports were required to identify a specific hospital that would have

accepted Mr. Andrade, then that same rule would require a plaintiff in any

failure to consult case like Estorque to conclusively establish that a particular

specialist capable and willing to perform the necessary consult would have

been available and able to get to the patient on that particular date. No Texas

cases require such evidence from a health care liability plaintiff at the expert

report stage—if ever.

      Rather, the Estorque court merely held that the report failed to explain

fully how the physicians’ inaction caused the plaintiff’s injuries. Id. at 29.

However, Plaintiffs’ reports do not suffer from this defect here, since Doctors

Adams and DeBehnke sufficiently explained how the case management

team’s inaction caused Mr. Andrade’s death.
                                       43
      Doctors Adams and DeBehnke each identified the specific treatment

for a Type 1 ascending aortic dissection that Mr. Andrade needed to avoid

the known consequences of rupture and death.14 Since the physicians at

Harlingen Medical Center were not going to provide that treatment,

Andrade needed to be transferred. Harlingen Medical Center tried, but

failed, and Mr. Felty’s report details the standard of care required of

Harlingen Medical Center once a transfer order is placed and how the its

staff woefully failed to comply with that standard.

      In Jones v. King, the expert report stated that a delay in diagnosing the

plaintiff’s meningitis for 48 hours caused it to become much worse, resulting

in increased pain and suffering of the plaintiff. Jones, 255 S.W.3d at 159. The

San Antonio Court of Appeals held that the report “wholly fails to explain

how these alleged breaches caused the injuries alleged . . . .” Id. The expert

failed “to link any delay in diagnosis to any additional pain and suffering or

exacerbation of the meningitis than what would have occurred in the face of

an earlier diagnosis.” Id. at 159-60. Essentially, the expert “[did] not attempt


14 “Those patients, like Mr. Andrade and his comorbidities, who receive immediate
medical treatment with beta blockade while undergoing timely preparation for
cardiovascular surgical intervention have superior and better outcomes as this dissection
in reasonable medical probability, will more likely than not, be halted and repaired.” (1
CR 242).
                                           44
to explain how these results would not have occurred if the diagnosis of

meningitis had occurred 48 hours earlier,” nor did the expert offer any

“medical explanation about whether earlier treatment would have been

effective in shortening the duration of the meningitis, precluding additional

pain and suffering, or preventing other alleged injuries and damages.” Id.

(emphasis added).

      Harlingen Medical Center attempts to liken the facts of Jones to this

case, arguing that “[i]n our case, plaintiffs’ experts say Andrade needed a

transfer and criticize HMC’s efforts to accomplish the transfer, but they do

not say how better efforts would have resulted in a successful transfer.”

Appellant’s Br. at 18. However, Plaintiffs’ experts do explain what better

efforts were required, that more likely than not those efforts would have

resulted in a successful transfer, and they provide a medical explanation that

without transfer, Andrade was deprived of the emergency surgery that more

likely than not would have saved him.

      Furthermore, Plaintiffs’ reports are nothing like the overbroad and

conclusory report in Tenet Hospitals. There, “[t]he only specific breach that

[the expert] mentioned in support of causation against the hospital claimed

that if [the hospital] ‘had a pulmonologist or critical care specialist on call
                                      45
and available to see and treat this patient or had transferred this patient

before her condition worsened, [the patient] would more likely than not be

alive today,’ . . . .” Tenet Hosp. Ltd., 347 S.W.3d at 755. The court said that

“such a broad statement does not set out specifically the causal relationship

between the hospital’s conduct and [the patient]’s death. [The expert]

provided no analysis of how [the hospital] should have made a physician

available for a consult with other physicians, how either of those consults

would have saved [the patient]’s life, or how the hospital could have

effectuated the transfer separate and apart from Dr. Pallares.” Id. In short, by

opining, inter alia, that if the plaintiff had been transferred, “[she] would not

have died, [the expert] simply expressed an inference without stating the

underlying facts upon which that inference was based. Thus, the statement

is conclusory. It is without any medical explanation about whether a consult

or transfer would have resulted in care and treatment, or a different

outcome.” Id.

      Here, Plaintiffs’ experts do not offer a bare assertion that “had

Andrade been transferred, he would have lived” or “had Harlingen Medical

Center tried harder he would have lived.” Rather, the reports collectively

explained how the hospital should have gone about transferring Andrade,
                                       46
and how its failure to follow those standards directly led to his death.

      Finally, Harlingen Medical Center argues that the expert report in

Schrapps v. Pham “demonstrates what a sufficient expert report in a transfer

case looks like.” Appellant’s Br. at 18. Harlingen Medical Center says that

Schrapps has the crucial link that is missing in our case: the expert in Schrapps

identified a specific hospital that would accept the transfer. Id. (citing

Schrapps, 2012 WL 4017768, at *6-7). However, Harlingen Medical Center

fails to explain that the facts in Schrapps are distinguishable from the facts

here. Namely, Schrapps is a case where, unlike here, the plaintiff was

successfully transferred to an accepting hospital, but the transfer was simply

too late and the patient died anyway. Schrapps, 2012 WL 4017768, at *1. Thus,

in Schrapps there was no issue as to whether any hospital would have

accepted the plaintiff because a hospital ultimately did. Here, Mr. Andrade

died before Harlingen Medical Center could transfer him anywhere.

Harlingen Medical Center knew he needed to be transferred, but failed to do

what it needed to do to transfer him.

      Plaintiffs’ experts provided a “fair summary” of the causal links

between the Hospital’s breaches of the relevant standards of care and Mr.

Andrade’s death. The experts provided opinions on the causes of Mr.
                                        47
Andrade’s death and sufficiently linked their conclusions to the facts.

Accordingly, the trial court did not abuse its discretion in denying Harlingen

Medical Center’s motions to dismiss.

IV.   The Court need not address Harlingen Medical Center’s argument
      that it cannot be blamed for Dr. Lopez’ decision not to perform Mr.
      Andrade’s surgery.

      In its last issue, but again without ever arguing that the trial court

abused its discretion, Harlingen Medical Center argues that it cannot be

blamed for Dr. Lopez’s decision not to perform surgery on Mr. Andrade. See

Appellant’s Br. at xi, 20. According to Harlingen Medical Center, Plaintiffs’

experts “suggest HMC was negligent for not seeing to it that surgery was

performed on Andrade at HMC.” Id. at 20. Harlingen Medical Center claims

that Plaintiffs’ experts failed to show (1) how the standard of care could

require Harlingen Medical Center to provide surgery, when physicians at

private hospitals in Texas are independent contractors and not under the

control of the hospital; and (2) that Harlingen Medical Center and its doctors

were capable of providing the surgery Andrade needed. Id. at 20-22. The

Court should overrule this issue.

      First, this Court need not address this issue. Plaintiffs provided expert

reports that demonstrate at least one viable theory against Harlingen

                                      48
Medical Center, which fully satisfies the requirements of § 74.351. In Certified

EMS, Inc. v. Potts, the Texas Supreme Court held that “[i]f a health care

liability claim contains at least one viable theory, as evidenced by an expert

report meeting the statutory requirements, the claim cannot be frivolous.”

Potts, 392 S.W.3d at 631. Once a health care liability claimant clears this “first

hurdle,” she has a “right to have the entire case move forward.” Id. Here,

Plaintiffs’ expert reports demonstrate a viable theory of liability against

Harlingen Medical Center for its negligent failure to transfer Mr. Andrade

to another facility. Therefore, Plaintiffs have the right to have their case move

forward.

      Second, Harlingen Medical Center mischaracterizes the reports of

Plaintiffs’ experts with regard to this issue. Neither Plaintiffs, nor their

experts, claim that Harlingen Medical Center should have forced Dr. Lopez

or any other doctor to perform surgery on Mr. Andrade. Rather, Plaintiffs’

experts opine that the standard of care required that Harlingen Medical

Center have physicians on staff capable of performing the surgery, but if

those physicians could not or would not, then Harlingen Medical Center was

required to transfer Mr. Andrade to another facility that would provide the

treatment he needed to survive. Indeed, Dr. DeBehnke’s report states that
                                       49
“[a] reasonable and prudent hospital that advertises its cardiothoracic

surgical services and has on staff a qualified cardiothoracic surgeon is

required to provide definitive surgical care to a patient such as Mr. Andrade

unless it is deemed beyond the capabilities of the organization and/or the

staff. Furthermore, the reasonable and prudent hospital is required through

its medical staff agents to provide appropriate and expedient transfer to

another facility when unable to perform the services.” (1 CR 263).

      Dr. DeBehnke’s opinion is underscored by the fact that Harlingen

Medical Center holds itself out to the community as having expertise in

cardiac care and cardiothoracic surgery. (1 CR 262). While it may be true, as

Harlingen Medical Center says, that “each patient is different and presents

his own set of complications and comorbidities,” a hospital that holds itself

out to the public for its cardiothoracic surgical services should have

physicians on staff capable of performing those services, and in the event

that its physicians are not capable of performing an emergency surgery,

should arrange for an emergent and proper transfer of the patient. (See 1 CR

242, 263).

      As Harlingen Medical Center states in its brief, “[b]oth experts

acknowledge that cardiovascular surgeon Dr. Ruben Lopez was consulted,
                                     50
and Dr. Lopez decided not to take Andrade into surgery himself but rather

that Andrade should be transferred.” Appellant’s Br. at 20. Therefore, once

the order of transfer was made, the standard of care required Harlingen

Medical Center’s case management team to arrange for emergent transfer of

Mr. Andrade to a medical facility capable of performing the aortic surgery

he required. Harlingen Medical Center has not shown that the trial court

abused its discretion in any way.

V.    If the Court finds that Plaintiffs’ initial reports are insufficient
      regarding causation, Plaintiffs are entitled to a 30-day extension to
      cure that deficiency.

      Finally, Harlingen Medical Center argues that if this Court finds that

Plaintiffs’ expert reports are insufficient, “the proper remedy is to remand

with instructions to dismiss the claims against HMC with prejudice to

refiling.” Appellant’s Br. at 23. Harlingen Medical Center claims that

Plaintiffs would not be entitled to another 30-day extension to cure because

they have already had one extension. Id. According to Harlingen Medical

Center, this is because a plaintiff who was granted an extension “was on

notice of all potential deficiencies in the expert report and acted at her own risk

in failing to remedy those alleged deficiencies.” Id. (emphasis added).

      Harlingen Medical Center is incorrect. The trial court granted Plaintiffs

                                        51
the 30-day extension for the express purpose of curing deficiencies

concerning qualifications of Plaintiffs’ experts regarding standard of care

and breach, but otherwise found the reports sufficient regarding causation.15

Therefore, Plaintiffs have never been on notice of any deficiencies in their

opinions concerning causation.

      Furthermore, “[t]he Texas Supreme Court has held that when the court

of appeals reverses a trial court’s determination that an expert report is

sufficient, the appropriate remedy is for the court of appeals to remand to

the trial court to consider whether to grant a thirty-day extension.”

Renaissance Surgical Ctrs.-S. Tex., L.L.P. v. Jimenez, No. 13-07-121-CV, 2008 WL

3971096, at *11 (Tex. App.—Corpus Christi Aug. 28, 2008, no pet.) (mem. op.)

(citing Leland v. Brandal, 257 S.W.3d 204, 207-08 (Tex. 2008)).

      Therefore, if this Court determines that the trial court abused its

discretion in finding Plaintiffs’ initial reports sufficient on causation, the

Court should remand to the trial court with instructions to determine

whether to grant Plaintiffs a 30-day extension to remedy that specific


15See 1 CR 300 (“Plaintiffs are hereby granted a 30-day extension from the date of this
order to serve on HMC a supplemental expert report from an expert qualified to render
an opinion concerning the applicable standard of care for Harlingen Medical Center and
whether that standard of care was breached. Otherwise, Harlingen Medical Center’s
Motion to Dismiss for Insufficient Expert Reports is DENIED.”).
                                          52
deficiency. Because Plaintiffs have never been on notice of any deficiencies

regarding causation, and the trial court previously found that Plaintiffs’

reports were sufficient regarding causation, Plaintiffs would be entitled to

an additional 30-day extension to cure. See Tex. Civ. Prac. & Rem. Code §

74.351(c); Renaissance Surgical, No. 13-07-121-CV, 2008 WL 3971096, at *11.

VI.   Conclusion

      The purpose of Chapter 74 of the Texas Civil Practice and Remedies

Code is to “deter baseless claims, not block earnest ones.” Potts, 392 S.W.3d

at 631. Accordingly, to meet the requirements of Chapter 74 and survive a

motion to dismiss, a health care liability plaintiff need only make a “good

faith effort” to provide a fair summary of the applicable standards of care,

the manner in which the provider failed to meet the standards, and the

causal relationship between that failure and the harm claimed.

      Harlingen Medical Center seeks to require Plaintiffs to conclusively

establish causation and to anticipate and rebut all possible defensive

theories—a burden that is never required at this stage of litigation. However,

Plaintiffs have more than made a good faith effort to comply with Chapter

74. Plaintiffs provided reports from qualified experts that collectively (1) put

Harlingen Medical Center on notice of the specific conduct complained of

                                      53
and (2) provided the trial court a basis on which to conclude that the claims

have merit. See Otero, 319 S.W.3d at 199.

      Accordingly, the trial court did not abuse its discretion in denying

Harlingen Medical Center’s motions to dismiss. Plaintiffs respectfully

request that this Court affirm the trial court’s rulings. However, if this Court

determines that Plaintiffs’ reports are insufficient regarding causation,

Plaintiffs request that this Court remand this case to the trial court with

instructions to determine whether a second 30-day extension should be

granted to cure the reports of that specific defect. Plaintiffs further request

any other relief to which they may be entitled under law or equity.




                                      54
     Respectfully submitted,

By: /s/ Morgan A. McPheeters
    F. Leighton Durham, III
    State Bar No. 24012569
    ldurham@texasappeals.com
    Kirk L. Pittard
    State Bar No. 24010313
    kpittard@texasappeals.com
    Morgan A. McPheeters
    State Bar No. 24081279
    mmcpheeters@texasappeals.com
    KELLY, DURHAM & PITTARD, LLP
    PO Box 224626
    Dallas, TX 75222
    (214) 946-8000 (Telephone)
    (214) 946-8433 (Facsimile)

     COUNSEL FOR APPELLEES

     AND


     Laura E. Gutierrez Tamez
     State Bar No. 00793869
     lrtamez@herreralaw.com
     Jorge A. Herrera
     State Bar No. 24044242
     jherrera@herreralaw.com
     THE HERRERA LAW FIRM, INC.
     111 Soledad Street, Suite I 900
     San Antonio, Texas 78205
     (210) 224-1054 (Telephone)
     (210) 228-0887 (Facsimile)

     CO-COUNSEL FOR APPELLEES



55
                        CERTIFICATE OF COMPLIANCE


       This document complies with the typeface requirements of Texas Rule
of Appellate Procedure 9.4(e) because it has been prepared in a conventional
typeface no smaller than 14-point for text and 12-point for footnotes. This
document also complies with the word-count limitations of Rule 9.4(i)(2)(B)
because it contains 10,930 words, excluding any parts exempted by Rule
9.4(i)(1).


                                    /s/ Morgan A. McPheeters
                                    MORGAN A. MCPHEETERS


                          CERTIFICATE OF SERVICE

      I hereby certify that a true and correct copy of the foregoing Appellees’
Brief was served on all counsel of record in accordance with the Texas Rules
of Civil Procedure.

Mr. Scott T. Clark
sclark@adamsgraham.com
Mr. Roger W. Hughes
rhughes@adamsgraham.com
ADAMS & GRAHAM, L.L.P.
P. O. Drawer 1429
Harlingen, TX 78551-1429

                                    /s/ Morgan A. McPheeters
                                    MORGAN A. MCPHEETERS




                                      56
