Reverse and Remand; and Opinion Filed July 10, 2013.




                                                In The
                                 Court of Appeals
                          Fifth District of Texas at Dallas
                                         No. 05-12-01067-CV

                         DEBRA KNIGHTSTEP, P.A., Appellant
                                                      V.
  MOLLIE JEFFERS AND JAMES JEFFERS, INDIVIDUALLY AND AS
 NEXT REPRESENTATIVES OF THE ESTATE OF JAMI KAY JEFFERS,
                        Appellees

                          On Appeal from the 397th Judicial District Court
                                      Grayson County, Texas
                               Trial Court Cause No. CV-11-1716

                                 MEMORANDUM OPINION
                         Before Justices Moseley, Bridges, and Lang-Miers
                                    Opinion by Justice Moseley

        Physician’s Assistant Debra Knightstep appeals the denial of her motion to dismiss a

health care liability claim under chapter 74 of the civil practice and remedies code. See TEX.

CIV. PRAC. & REM. CODE ANN. § 74.351 (West 2011). In a single issue, Knightstep contends the

expert reports filed in this case are insufficient.

        The background of the case is well known to the parties; thus, we do not recite it here in

detail. Because all dispositive issues are settled in law, we issue this memorandum opinion.

TEX. R. APP. P. 47.2(a), 47.4. We reverse the trial court’s order and remand this case for

determination of whether to grant a 30-day extension to cure deficiencies in the reports and for
further proceedings.

                                               BACKGROUND

        Jami Jeffers went to Wilson N. Jones Memorial Hospital on December 25, 2009; she died

there of cardiac arrest early the next morning. Jami’s parents, individually and as representatives

of her estate (the Jefferses), sued the hospital, Kevin Stacks, M.D.,1 and Knightstep, a

physician’s assistant, for medical negligence in connection with Jami’s treatment. The Jefferses

alleged Knightstep was negligent by failing to provide a reasonable evaluation of Jami by

directly examining and assessing her and by failing to timely manage Jami’s hypoxia by

providing serial physical assessments and continued investigation orders.

        Within 120 days of filing suit, the Jefferses served preliminary expert reports of William

Peacock, M.D. and Jennifer Moorfield, P.A.                 See TEX. CIV. PRAC. & REM. CODE ANN. §

74.351(a). Knightstep filed a motion to dismiss, id. § 74.351(b), which the trial court denied.

                       APPLICABLE LAW AND STANDARD OF REVIEW

        A chapter 74 expert report must provide:

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

TEX. CIV. PRAC. & REM. CODE ANN. § 74.351(r)(6). The report does not need to “marshal all the

plaintiff’s proof.”      See Loaisiga v. Cerda, 379 S.W.3d 248, 258 (Tex. 2012); see also

Hollingsworth v. Springs, 353 S.W.3d 506, 513 (Tex. App.—Dallas 2011, no pet.). However, it

must represent an objective good faith effort to comply with the statutory definition of “expert

report.” TEX. CIV. PRAC. & REM. CODE ANN. § 74.351(l). To constitute a good faith effort, the

        1
          In a separate appeal, this Court affirmed the trial court’s order denying Stacks’s motion to dismiss under
chapter 74. See Stacks v. Jeffers, No. 05-12-00942-CV, 2013 WL 1188980 (Tex. App.—Dallas March 8, 2013, no
pet.).




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report must provide enough information to meet two requirements: (1) it must inform the

defendant of the specific conduct the plaintiff has called into question, and (2) it must provide a

basis for the trial court to conclude that the claims have merit. Hollingsworth, 353 S.W.3d at

513 (citing Bowie Memorial Hosp. v. Wright, 79 S.W.3d 48, 52 (Tex. 2002)).

       A report does not fulfill the statute’s requirement if it merely states the expert’s

conclusions or if it omits any of the statutory requirements. Id. The report must contain

sufficiently specific information to demonstrate causation beyond mere conjecture. Fortner v.

Hosp. of the Sw., LLP, 399 S.W.3d 373, 379 (Tex. App.—Dallas 2013, no pet.). A court will not

“fill gaps” in an expert report by drawing inferences or guessing what the expert likely meant or

intended. See Bowie, 79 S.W.3d at 53. Instead, the expert must explain the basis for his

statements and link his conclusions to the facts. Id. at 52.

       We review a trial court’s ruling on the adequacy of an expert report for an abuse of

discretion. See Hollingsworth, 353 S.W.3d at 512 (citing Am. Transitional Care Ctrs. of Tex.,

Inc. v. Palacios, 46 S.W.3d 873, 877 (Tex. 2001)). A trial court abuses its discretion if it acts

without reference to any guiding rules and principles, if it acts in an arbitrary and unreasonable

fashion. Downer v. Aquamarine Operators, Inc., 701 S.W.2d 238, 241–42 (Tex. 1985).

                                            ANALYSIS

       Knightstep contends the trial court abused its discretion by denying the motion to dismiss

because the reports are conclusory as to causation and do not state how Knightstep’s alleged

breach of the standard of care caused Jami’s death.

       Both reports contain a summary of facts. Jami arrived at the hospital’s emergency

department around 12:30 p.m. with rapid breathing and a rapid heart rate. After a series of tests,

Jami was released from the emergency department and admitted to the clinical decision unit

(CDU) about 6:30 p.m.        At 8:05 p.m., Knightstep was first notified of Jami’s condition,


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including her oxygen saturation, and an order for an arterial blood gas test was given.

Knightstep was again notified at 10:00 p.m. and a venti-mask was given. At 11:30 p.m.,

Knightstep was notified that Jami reported breathing difficulty and that her oxygen saturation

was 89%. Jami’s oxygen saturation dropped to the mid-80s at 12:05 a.m. and Knightstep

ordered a bi-level positive airway pressure mask. At 12:15 a.m., Jami had worsening breathing

difficulty and became unresponsive. Knightstep was at her bedside and a code was called. Jami

did not tolerate the mask well and Knightstep was paged at 12:25 a.m. At 12:30 a.m., Jami was

calmer and Knightstep was at her bedside, but at 12:45 a.m., Jami became unresponsive and a

code team arrived at 12:50 a.m. Jami passed away at 1:20 a.m.

       Peacock noted that “Ms. Jeffers presented on Christmas day with what initially seemed to

be a URI. However, the evaluation did not support the presence of a URI.” He stated that Jami’s

“HR and tachypnea exceeded that which would be expected based on the documented physical

exam, her lack of fever, and the lab and radiographic investigations.” He further reported that

“as [Jami’s] condition remarkably deteriorated, no changes in management or investigation

occurred. This patient arrived in the observation unit, profoundly hypoxic.” He stated that the

severity of Jami’s illness when she arrived in the CDU “should have been an exclusion criteria

for this unit”; yet despite her worsening condition, she “essentially received no additional

evaluation or treatment until minutes before her death.”

       Peacock opined that “[b]ecause of the cardiovascular reserve present in a young patient,

if a 29 year old is severely hypoxic, the radiographic findings should be remarkable.” He added

that “[t]he fact that this patient had relatively little chest x-ray and CT findings (per the report)

should have immediately called into question the possible diagnosis.” He opined this is also the

case with Jami’s abnormal vital signs, which are documented throughout her entire stay. He




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concluded that when Jami was found to be profoundly hypoxic, with “blood gas showing 51

mmHg oxygen (despite being on 6 liters of nasal cannula oxygen), immediate transfer to an ICU

should have occurred. By waiting until her cardiovascular collapse, she was insured no potential

for salvage[a]bility.”

       Peacock’s report states the standard of care applicable to physician’s assistants required

Knightstep to:

       1.        Provide reasonable evaluation of Ms. Jeffers’ presentation by directly
                 examining and assessing her.

       2.        Provide timely management of Ms. Jeffers’ hypoxia by providing serial
                 physical assessment and continued investigation orders.

       He states this standard of care was breached by Knightstep’s:

       1.        Failure to provide reasonable evaluation. In fact, PA Knightstep failed to
                 perform any bedside assessment/examination until 6 hours after Ms.
                 Jeffers was admitted to the CDU.

       2.        Failure to provide timely management of a profoundly hypoxic patient.
                 PA Knightstep failed to consider that Ms. Jeffers’ symptoms were
                 inconsistent with the assigned diagnosis and she failed to perform
                 appropriate, additional testing. Failing to physically examine a patient
                 who was obviously suffering profound hypoxia in an observation unit
                 constitutes a breach in the standard of care.

       Moorfield (herself a physician’s assistant) stated in her report that the applicable standard

of care required Knightstep to provide reasonable and timely evaluation of reported changes in

the patient’s condition and includes direct examination and assessment. Moorfield opined that

Knightstep breached the standard of care by failing to manage Jami’s hypoxia by failing to

perform serial physical assessments and order continued investigations. According to Moorfield,

Knightstep breached the standard of care by failing “to come to the patient’s bedside once

notified to evaluate the patient’s condition in a timely manner, despite being contacted three

times over a 3 hour and 25 minutes period of time with reports of worsening patient condition.”



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         Knightstep challenges only whether the expert reports are sufficient as to causation.

Although we read both reports in context, Moorfield is not a physician, and thus is not qualified

to opine on causation. See TEX. CIV. PRAC. & REM. CODE ANN. § 74.403(a) (expert on causation

must be a physician and otherwise qualified to render opinions on that causal relationship under

the rules of evidence). Therefore, we focus on Peacock’s report with respect to causation.

         Peacock’s report states:

         PA Knightstep failed to timely examine Ms. Jeffers and appropriately intervene.
         As such, she failed to appreciate and address Ms. Jeffers’ clearly deteriorating
         condition. As a result, Ms. Jeffers’ worsening hypoxia ultimately led to
         profoundly inadequate oxygenation and associated cardiac arrest and death.

Knightstep argues Peacock’s report addresses causation only in a conclusory manner and does

not identify how her alleged breach of the standard of care resulted in Jami’s death. We agree.

         Peacock identified several alleged failures by Knightstep as breaches of the standard of

care, but he failed to state an opinion on the causal connection between those breaches and

Jami’s death. Peacock does not state how Knightstep’s failing to physically examine Jami

caused her death or how performing appropriate additional testing would have prevented her

death.

         Peacock’s report does not go as far as the report in Hollingsworth regarding the chain of

command and “call for help” claims. See Hollingsworth, 353 S.W.3d at 522–23. In that case the

report stated that had the nurses made an earlier call for help, “it is likely that Mr. Springs could

have been woken up and that his hypoxic brain injury would have been avoided” and “the injury

would have been avoided or certainly mitigated.” Id. Yet even those statements were held to be

conclusory because the expert did not “explain what actions would have resulted from the call

for help (or initiation of the chain of command) that would have resulted in awakening Springs.

Again, we are not permitted to infer how the solicitation of assistance would have remedied the



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situation; the causation expert must tell us.” Id.

       As in Hollingsworth, Peacock does not explain what actions would have resulted from a

reasonable evaluation of Jami by Knightstep or how that evaluation or physical examination

would have prevented the worsening of Jami’s hypoxia. Nor does he explain what “appropriate,

additional testing” would have done to prevent her injury. Peacock’s report fails to tie the stated

breaches of the standard of care to Jami’s injuries or explain how Jami would have had a better

outcome but for these breaches. We cannot infer how the failure to evaluate and timely manage

the patient would have prevented or lessened the injury. See Bowie, 79 S.W.3d at 53.

       The Jefferses cite to Ortiz v. Patterson, 378 S.W.3d 667 (Tex. App.—Dallas 2012, no

pet.), for the proposition that causation is to be considered in the context of the entire report, not

by isolating on one or two sentences. We agree with that proposition, but we disagree as to

whether Peacock’s report here provided adequate information to support a conclusion as to

causation. In Ortiz, the expert report stated that the doctor’s failure to diagnose Ortiz with

pneumonia and admit him to the hospital “contributed to the premature death of this man. If Mr.

Ortiz had received appropriate evaluation and treatment it is more likely than not that he would

have survived this ordeal.” Ortiz, 378 S.W.3d at 673. We concluded the report was conclusory

about causation because it merely stated the violations of the standard of care proximately caused

the injury; it failed to explain how the alleged breach of the standard of care caused Ortiz’s

alleged injury. Id. at 674. We explained, that without relying on impermissible inferences, the

report failed to explain how Ortiz’s condition worsened from very ill to death in a short time as a

result of failing to conduct certain tests and admit him to a hospital. Id. at 674–75. Here also,

without resorting to impermissible inferences, Peacock fails to explain how Jami’s condition

worsened from very ill to death as a result of Knightstep’s failure to examine her or the other




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failures identified as breaches of the standard of care.

       In Stacks (the appeal involving Dr. Stacks arising out of his treatment of Jami), we

distinguished Ortiz and concluded: “Peacock thus explained in his report how the failure to

properly diagnose Ms. Jeffers’s condition and place her in a closely monitored care unit allowed

her hypoxia to worsen to the point that there was ‘no potential for salvageability’ when she was

finally transferred to the intensive care unit.” Stacks, 2013 WL 1188980, at *5. However, with

regard to Knightstep, Peacock does not link her alleged negligence to Jami’s injuries; he does not

explain how the alleged failures to examine, evaluate, appropriately intervene or appreciate and

address Jami’s clearly deteriorating condition proximately caused Jami’s injuries. See Fortner,

399 S.W.3d at 379; Hollingsworth, 353 S.W.3d at 518–19. Peacock does not explain why a

different, better result would have been achieved if Knightstep had met her standard of care. See

Hollingsworth, 353 S.W.3d at 519. Instead, the report is conclusory in its attempts to connect

Knightstep’s alleged breaches of the standard of care to Jami’s injury.

       Moreover, Peacock’s opinion about causation as to Stacks does not apply to Knightstep

because Knightstep’s alleged breaches of the standard of care are different from Stacks’s

breaches. Peacock did not state that Knightstep misdiagnosed Jami’s condition or assigned her

to the CDU. Thus, the opinion that Stacks’s breach caused Jami’s death does not support an

opinion that Knightstep’s breach also caused her death. See Kettle v. Baylor Med. Ctr. at

Garland, 232 S.W.3d 832, 839 (Tex. App.—Dallas 2007, pet. denied) (“Each provider’s

individual treatment must also be causally linked to the damages claimed.”).

       We conclude the trial court abused its discretion by denying Knightstep’s motion to

dismiss and sustain Knightstep’s issue.

       We reverse the trial court’s amended order on expert report challenges as to Knightstep




                                                 –8–
and remand this case for determination of whether to grant a 30-day extension to cure

deficiencies in the reports and for further proceedings.




                                                      /Jim Moseley/
                                                      JIM MOSELEY
                                                      JUSTICE
121067F.P05




                                                –9–
                               Court of Appeals
                        Fifth District of Texas at Dallas
                                        JUDGMENT

DEBRA KNIGHTSTEP, P.A., Appellant                      On Appeal from the 397th Judicial District
                                                       Court, Grayson County, Texas
No. 05-12-01067-CV         V.                          Trial Court Cause No. CV-11-1716.
                                                       Opinion delivered by Justice Moseley.
MOLLIE JEFFERS AND JAMES                               Justices Bridges and Lang-Miers
JEFFERS, INDIVIDUALLY AND AS                           participating.
REPRESENTATIVES OF THE ESTATE
OF JAMI KAY JEFFERS, Appellees

        In accordance with this Court’s opinion of this date, the trial court’s amended order on
expert report challenges is REVERSED as to appellant DEBRA KNIGHTSTEP, P.A. and this
cause is REMANDED to the trial court for determination of whether to grant a 30-day extension
to cure deficiencies in the reports and for further proceedings.
        It is ORDERED that appellant DEBRA KNIGHTSTEP, P.A. recover her costs of this
appeal from appellees MOLLIE JEFFERS AND JAMES JEFFERS, INDIVIDUALLY AND AS
REPRESENTATIVES OF THE ESTATE OF JAMI KAY JEFFERS.


Judgment entered this 10th day of July, 2013.




                                                   /JimMoseley/
                                                   JIM MOSELEY
                                                   JUSTICE




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