Reversed and Remanded and Memorandum Opinion filed July 11, 2013.




                                     In The

                     Fourteenth Court of Appeals

                              NO. 14-12-00812-CV

                 CHARLES J. ARAMBURO, M.D., Appellant
                                        V.

                         THELMA BROWN, Appellee

                    On Appeal from the 215th District Court
                            Harris County, Texas
                      Trial Court Cause No. 2011-65919

                 MEMORANDUM                     OPINION


        Appellee Thelma Brown sued appellant Dr. Charles J. Aramburo, alleging
that she suffered complications from a surgery he performed. On appeal, Dr.
Aramburo contends that the trial court abused its discretion in overruling his
objections and denying his motion to dismiss for Brown’s failure to serve an expert
report in compliance with Chapter 74 of the Texas Civil Practice and Remedies
Code.     We hold the trial court abused its discretion because the report is
inconsistent and fails to meet the statutory requirements. We therefore reverse the
trial court’s order and remand for the court to consider whether to grant Brown an
extension of time to cure the deficiencies in the report.

                                   BACKGROUND
      In August 2009, Brown was hospitalized at Memorial Hermann Hospital
Southwest with gastroesophageal reflux disease. Dr. Aramburo performed surgery
to treat Brown’s gastrointestinal problems. The day after her surgery, Brown
complained to the nursing staff about pain and had a recurrent fever. The nursing
staff’s notes show that Brown specifically complained about pain in the abdominal
area and shoulder. According to Brown’s expert, findings of increased pain in
these areas are consistent with the development of an infection associated with the
surgery. Just days after being discharged, Brown suffered respiratory failure and
had to be placed in an intensive care unit. Brown contends these complications,
which required additional surgeries and treatments, resulted from the nursing staff
at the hospital failing to advise Dr. Aramburo of Brown’s pain and fever and from
Dr. Aramburo discharging her prematurely.

      Brown sued Dr. Aramburo and various Memorial Hermann Hospital entities
for negligence and sought past and future damages for physical pain, mental
anguish, disfigurement, and lost income.        Brown then filed an expert report
prepared by Dr. William E. Garrett. In this report, Dr. Garrett states that Dr.
Aramburo should not have discharged Brown given her complaints of post-surgery
pain and her ongoing fever. Dr. Garrett also states that discharging Brown, who
had an ongoing infection, aggravated her condition.

       Dr. Aramburo objected that Dr. Garrett’s expert report did not meet the
requirements of Chapter 74 and filed a motion to dismiss Brown’s suit. The trial
court signed an order overruling Dr. Aramburo’s objections and denying his

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motion to dismiss. Dr. Aramburo then filed this interlocutory appeal. The hospital
is not a party to the appeal.

                                    ANALYSIS

      In a single issue, Dr. Aramburo contends that the trial court abused its
discretion in overruling his objections and denying his motion to dismiss because
Brown failed to serve an expert report in compliance with Chapter 74 of the Texas
Civil Practice and Remedies Code. Dr. Aramburo claims that Dr. Garrett’s expert
report is insufficient because it fails to adequately set forth how he breached the
standard of care and how any purported breach caused injury to Brown. We agree.

I.    Standard of review
      We review a trial court’s decision on a motion to dismiss a health care
liability claim for an abuse of discretion. Am. Transitional Care Ctrs. of Tex., Inc.
v. Palacios, 46 S.W.3d 873, 875 (Tex. 2001). A trial court abuses its discretion if
it acts in an arbitrary or unreasonable manner without reference to guiding rules or
principles. Jelinek v. Casas, 328 S.W.3d 526, 539 (Tex. 2010). When reviewing
these matters, “a court of appeals may not substitute its own judgment for the trial
court’s judgment.” Bowie Mem’l Hosp. v. Wright, 79 S.W.3d 48, 52 (Tex. 2002).
A trial court does not abuse its discretion merely because it decides a discretionary
matter differently than an appellate court would in a similar circumstance. Gray v.
CHCA Bayshore L.P., 189 S.W.3d 855, 858 (Tex. App.—Houston [1st Dist.] 2006,
no pet.).

II.   The trial court abused its discretion in holding the report sufficient.

      A.     Chapter 74 requires expert reports to address specific elements.

      This is a medical malpractice case governed by Chapter 74 of the Texas
Civil Practice & Remedies Code, which requires the plaintiff to serve an expert

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report. An expert report is defined as:

       [A] written report by an expert that provides a fair summary of the
       expert’s opinions as of the date of the report regarding applicable
       standards of care, the manner in which the care rendered by the
       physician or health care provider failed to meet the standards, and the
       causal relationship between that failure and the injury, harm, or
       damages claimed.
Tex. Civ. Prac. & Rem. Code Ann. § 74.351(r)(6) (West 2005). Therefore, the
report must fairly summarize three elements: (1) the applicable standard of care,
(2) a breach of that standard, and (3) causation. Further, a report must provide
enough information to fulfill two purposes: (1) inform the defendant of the specific
conduct that the plaintiff has called into question, and (2) provide a basis for the
trial court to conclude that the claims have merit. Univ. of Tex. Med. Branch v.
Railsback, 259 S.W.3d 860, 863 (Tex. App.—Houston [1st Dist.] 2008, no pet.).

       A court must grant a motion challenging the adequacy of a report if it is not
“an objective good faith effort to comply with the definition of an expert report in
Subsection (r)(6).” Tex. Civ. Prac. & Rem. Code Ann. § 74.351(l). When a report
does not fairly summarize the three elements or provide enough information to
fulfill the two purposes above, it is not considered an “objective good faith effort”
to comply with the statute. Scoresby v. Santillan, 346 S.W.3d 546, 555–56 (Tex.
2011). A report that merely states the expert’s conclusions also does not amount to
a good faith effort. Palacios, 46 S.W.3d at 879. It is not necessary, however, for
the plaintiff to assemble all his proof or present evidence in the report as if he were
in fact litigating the merits. Id.

       If the expert report is deficient, “the court may grant one 30-day extension to
the claimant in order to cure the deficiency.” Tex. Civ. Prac. & Rem. Code Ann.
§ 74.351(c). The extension may be granted if the report is served by the statutory
deadline, if it contains the expert’s opinion that the claim has merit, and if it
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implicates the defendant’s conduct. Scoresby, 346 S.W.3d at 557.

      B.     This report does not fairly summarize the required elements.

      Dr. Aramburo contends that Dr. Garrett’s report is insufficient and does not
put him or the trial court on notice of the specific conduct complained of.
Specifically, he argues that the expert report is not an “objective good faith effort”
because it fails to address how he breached a standard of care and its causation
allegations are merely conclusory.

      As an initial matter, we reject Dr. Aramburo’s argument that the causation
statements are wholly conclusory because the report does state a causation theory.
Dr. Garrett opines in his report that if Dr. Aramburo had ordered more laboratory
tests, it is “highly likely” they would have shown the developing infection. Thus,
Brown “would have been kept in the hospital and treated . . . and . . . probably . . .
would not have suffered complications.” The report also states that “discharging
this patient with an ongoing infection exposed her to worsening of her condition
and the need for re-hospitalization with acute infections and distress.”           As
discussed next, however, the report does not sufficiently tie this causal chain to any
breach of the standard of care.

      Dr. Garrett’s expert report discusses three theories of negligence: (1) failure
to document the reason for performing an open procedure, (2) failure to review and
assess laboratory results over the course of a patient’s post-operative recovery
period, and (3) failure to review the nursing staff notes. As explained below, the
report does not provide enough information to meet the statutory requirements on
any of these theories. Regarding the first theory, the report is deficient because it
does not fairly summarize how Dr. Aramburo’s failure to document the reason for
performing an open procedure caused Brown’s injuries or caused him not to order
additional laboratory tests. As to the second theory, failure to review and assess
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laboratory results, the report is deficient because it does not fairly summarize a
breach of the standard of care by Dr. Aramburo. For the third theory, failure to
review the nursing staff notes, the report fails to summarize an appropriate
standard of care and a breach of that standard. For these reasons, the expert report
is not an objective good faith effort to comply with the statute.

             1.      The expert report fails to fairly summarize causation
                    regarding an open procedure.
      On the first theory, Dr. Aramburo argues that the standard of care alleged is
confusing and that Dr. Garrett’s report fails to state a breach of the standard. We
disagree. The report states that it is a “standard of care to document the reason for
doing the procedure as an open procedure” and that Dr. Aramburo breached this
standard of care when he failed to document his reason. Thus, the first two
elements are present.

      We agree with Dr. Aramburo’s argument that the report fails to address
causation, however. Nowhere in the report is there any claim that Dr. Aramburo’s
failure to document the reason for performing an open procedure caused Brown’s
injuries or caused him to not order additional laboratory tests. Accordingly, a fair
summary of the required causation element is missing.

             2.     The expert report fails to fairly summarize a breach of the
                    standard of care regarding review of post-operative
                    laboratory tests.
      On the second theory, Dr. Aramburo argues that Dr. Garrett’s report fails to
summarize any breach of the standard of care for reviewing and assessing
laboratory tests over the course of a patient’s post-operative recovery period. We
agree. The report clearly states the standard of care: “[I]t is the responsibility of
the physician . . . to review and assess laboratory tests over the course of the
patient’s post-operative recovery period . . . .” The only laboratory tests mentioned
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in the report are white blood count tests. These tests showed that Brown had a
high white blood count on August 21 and 23; Dr. Garrett states that a high white
blood count is an important indicator that the patient is developing an infection.
Later in the report, Dr. Garrett reveals that on August 24, “[t]here is
documentation . . . by a resident physician of the improving (trending down) white
count.”

      Thus, the report does not state that Dr. Aramburo breached the standard of
care by not reviewing laboratory results. Rather than alleging a breach of the
standard of care, the report says there is evidence that a physician reviewed
Brown’s latest laboratory test in which her white blood count was trending down.
Because a fair summary of the required breach element is missing, the expert’s
report on this theory does not meet the requirements of Chapter 74.

            3.     The expert report fails to fairly summarize an appropriate
                   standard of care and breach for reviewing nursing staff notes.
      On the third theory, Dr. Aramburo argues that the report is unclear regarding
the standard of care for physicians in reviewing nursing staff notes and contradicts
itself regarding whether Dr. Aramburo breached any such standard. We agree.

      An inconsistent report may fail to put the defendant on notice as to who had
what responsibility and how he departed from the standard of care. See Gray, 189
S.W.3d at 860. When a report does not put the defendant on notice of the conduct
complained of and what he should have done differently, the report is not a good
faith effort to comply with the statute and does not fairly summarize the standard
of care and how it was breached. Palacios, 46 S.W.3d at 880.

      That is the case here because Dr. Garrett’s report is self-contradictory
regarding a breach by Dr. Aramburo. First, Dr. Garrett states that if the “nursing
staff did not advise [Dr. Aramburo] of the elevated temperatures and reports of

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pain in [the] hospital chart . . . this is below the standard of care for both physicians
and nurses” (emphasis added). This statement seems to imply that there was a
breach of the standard of care by Dr. Aramburo in failing to discover these
complaints. The report then contradicts itself when it states that “[i]t is also part of
the responsibility of the . . . nursing staff to bring findings such as elevated
temperature and . . . pain . . . to the physicians’ attention.” The report goes on to
say that “Dr. Aramburo would be reasonable in discharging the patient given his
limited clinical picture of the patient . . . but he should have been advised by the
nursing staff of . . . [the] complaints.” The report affirmatively states that the
“nursing staff failed to follow standards of care.” Dr. Garrett opines that he
“suspect[s] that Dr. Aramburo was not told by the nursing staff of the new
complaints” and “there is no documentation that [he] was notified of these
findings.”

      This inconsistency regarding breach arises again later in the report. In
summarizing his opinions, Dr. Garrett states that “Dr. Aramburo should have
ordered additional lab tests before discharging the patient.” Only a few paragraphs
earlier, however, he states that “Dr. Aramburo, if he had been advised of the
patient’s status by nursing staff, should have ordered additional lab tests”
(emphasis added).

      Moreover, the report does not state the standard of care that Dr. Aramburo
had to follow. The report does not say that Dr. Aramburo was required to look at
the nursing staff notes; rather, it says the nursing staff should have informed him of
the complaints. Dr. Aramburo correctly states that when a plaintiff sues more than
one defendant, the expert report must dictate the specific standard of care for “each
physician or health care provider.”         Tex. Civ. Prac. & Rem. Code Ann.
§ 74.351(a); see Sanjar v. Turner, 252 S.W.3d 460, 465 (Tex. App.—Houston

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[14th Dist.] 2008, no pet.). Given the report’s inconsistency, it is unclear whether
the appropriate standard of care requires Dr. Aramburo to review the nursing staff
notes, or whether it requires the nursing staff to affirmatively communicate patient
complaints to him.

      Because there is no clear standard of care stated, it is difficult to reconcile
the inconsistencies in the report and we are left to our own inferences regarding
whether there was a breach. We cannot infer either a standard of care or a breach
from the report because we must rely solely on information within the four corners
of the expert report. See Palacios, 46 S.W.3d at 878. Because we do not know the
standard of care, we have no basis for concluding there was a breach. Therefore,
we hold that the report does not fairly summarize either the standard of care or a
breach of that standard with respect to Brown’s third negligence theory.

                                   *      *      *

      The report is deficient because it does not provide a fair summary of the
expert’s opinions on all required elements with respect to any of the negligence
theories against Dr. Aramburo. We therefore sustain Dr. Aramburo’s sole issue
and reverse the trial court’s order denying his motion to dismiss. The existence of
a deficient report, however, does not automatically lead to the conclusion that
Brown’s claims should be dismissed.

      A thirty-day extension may be granted to cure deficiencies in a timely expert
report if the expert opines that the claim has merit and if the defendant’s conduct is
implicated. See Tex. Civ. Prac. & Rem. Code Ann. § 74.351(c); Scoresby, 346
S.W.3d at 557–58. Brown has requested such an extension in the event her report
is held deficient. Under Leland v. Brandal, 257 S.W.3d 204, 207 (Tex. 2008), we
remand for the trial court to consider whether to grant an extension.


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                                  CONCLUSION

      For these reasons, we reverse the trial court’s order denying Dr. Aramburo’s
motion to dismiss and remand for the trial court to consider whether to exercise its
discretion to grant Brown a thirty-day extension to cure the deficiencies in Dr.
Garrett’s expert report.



                                                  /s/     J. Brett Busby
                                                          Justice



Panel consists of Justices Frost, Brown, and Busby.




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