                                      In The

                                Court of Appeals
                    Ninth District of Texas at Beaumont
                           ____________________
                               NO. 09-17-00251-CV
                           ____________________

              GOLDEN YEARS ASSISTED LIVING, Appellant

                                         V.

 PRISCILLA J. RICHARD, ON BEHALF OF BRUCE RICHARD, Appellee


                    On Appeal from the 128th District Court
                           Orange County, Texas
                         Trial Cause No. A150292-C


                          MEMORANDUM OPINION

      This is an accelerated appeal from the trial court’s order denying the defendant

Golden Years Assisted Living’s (“Golden Years” or “Appellant”) objections to

plaintiff’s expert reports and denying a motion to dismiss plaintiff’s health care

liability claim. See Tex. Civ. Prac. & Rem. Code Ann. §§ 51.014(a)(9) (West Supp.

2017), 74.351 (West 2017).1 Golden Years timely filed this appeal complaining that


      1
         We cite to the current version of statutes, as subsequent amendments do not
affect the disposition of this appeal.
                                           1
the trial court erred in overruling its objections to plaintiff’s expert reports and in

failing to dismiss the health care liability claim of plaintiff Priscilla J. Richard

(“Priscilla”), on behalf of Bruce Richard (“Bruce”) (“Plaintiff” or “Appellee”). See

id. §§ 51.014, 74.351. We affirm.

                               Procedural Background

Original Petition

      On September 9, 2015, Priscilla filed an Original Petition, Requests for

Disclosure and Jury Demand (“the petition”) against defendants Golden Years and

New Century Hospice, Inc. (“New Century”) (collectively “Defendants”).2 The

petition asserted a claim of negligence based on care or treatment her husband Bruce

received between May and July of 2013 after being admitted to Defendants’ facilities

in Orange, Texas. The petition alleged that Bruce was admitted to Defendants’

facilities in May of 2013, and in June of 2013, he suffered an injury to his left heel.

In early July of 2013, Bruce also suffered an injury to “his left lower extremity on

the dorsal part of his left foot and ankle.” According to the petition, Priscilla saw the

second wound on July 15, 2013, and it was apparent to her that the wound had not

been properly treated and that Bruce needed to be taken to a hospital. Thereafter,



      2
        New Century is not a party to this appeal, and we discuss New Century
herein only as necessary to our disposition.
                                          2
Bruce was transported to Christus St. Mary’s Hospital in Port Arthur where he was

diagnosed with cellulitis in his left lower extremity and was started on antibiotics.

The Richards were informed that due to a delay and lack of proper care to Bruce’s

wounds at the Defendants’ facility, Bruce would probably never walk again and that

it was possible that his foot would have to be amputated. The petition further alleged

that, prior to incurring these wounds, Bruce could walk with the assistance of a cane,

but now he cannot and he probably will not be able to walk ever again. The petition

claimed that the agents, servants, and employees of the Defendants breached the

standard of care in the treatment of Bruce, were negligent, and that Defendants’

negligence was a proximate or medical cause of Bruce’s resulting injuries. The

petition also asserted the claim under theories of respondeat superior, alter ego, or

agency. The plaintiff attached expert reports from Michael J. Streitmann, M.D. and

Erika L. Aguirre, R.N. along with a curriculum vitae (CV) for each expert.

Nurse Aguirre’s Report

      Nurse Aguirre’s report and CV reflect that she is a Registered Nurse, board

certified as a Clinical Nurse Specialist in Adult Health. She currently serves as a

Clinical Instructor in nursing, and she has previously worked as an Infection

Control/Employee Health Practitioner. Aguirre’s report stated that she had reviewed

the medical records for Bruce from Golden Years for June 7, 2013 to July 15, 2013;

                                          3
New Century for May 29, 2013 to July 15, 2013; and Christus St. Mary Emergency

Department for July 15, 2013.

      According to Nurse Aguirre, Bruce became a resident at Golden Years on

May 25, 2013, and his care was transferred to hospice on May 28, 2013, due to his

Alzheimer’s disease and post-traumatic seizures. On June 10, 2013, a nursing note

indicated his physical status was starting to decline, he had become non-ambulatory,

and he was bedbound. An assessment by a New Century worker on June 13, 2013,

noted that Bruce’s cognitive and functional status had declined. On June 19, 2013, a

hospice nurse for New Century advised Priscilla that Bruce had developed a new

Stage 2 pressure ulcer on his left heel, that treatment would be provided, and that

Bruce would be placed on a special mattress to prevent further skin breakdown.

According to Aguirre, Bruce’s medical records reflect that he received wound care

for the pressure ulcer on June 19th, 26th, and July 1st, 3rd, 8th, and 10th. In her

report, Aquirre noted that on July 10, 2013, a New Century nursing assessment noted

that the wound was “beefy red” and showed no signs of infection. Aquirre further

stated that on July 15, 2013, Priscilla requested emergency care for Bruce for

“aggressive wound treatment to the left foot.”

      According to Aguirre, Bruce was transferred to Christus St. Mary Emergency

Department where an examination revealed an unstageable pressure ulcer on his left

                                         4
heel, and also “traumatic draining Stage 2 ulcer to the dorsal aspect [top side] of his

left foot.” Bruce was diagnosed with cellulitis of the left leg, admitted to the hospital,

and treated with antibiotics, pain management, and wound care, and he was

discharged on July 19, 2013 and transferred to Magnolia Manor Nursing Home for

continued medical care.

      Nurse Aguirre stated in her report that the standard of care related to nursing

practices in this case required maintenance of a complete and accurate medical

record, documentation of a complete and accurate assessment, development of an

individual service plan, and interventions to appropriately manage an injury

sustained during admission.

      Nurse Aguirre stated that Golden Years and New Century breached the

standard of care as follows:

      (1) “Failure to maintain a complete and accurate medical record[.]”
      Bruce’s medical records from Golden Years include no resident
      assessment, no resident service plan, no physician orders, no advanced
      directive, and no examination by a physician. The earliest
      documentation in Bruce’s medical records at Golden Years is dated
      June 7, whereas he was admitted on May 25.

      (2) “Failure to document complete and accurate physiological and
      mental assessments[.]” Aguirre’s report noted that Bruce’s records do
      not include a comprehensive medical, physiological, functional, and
      mental assessment, which should have been completed within fourteen
      days of admission.


                                            5
      (3) “Failure to develop an individual service plan[.]” Aguirre’s report
      states that Bruce’s medical record from Golden Years includes no
      individual service plan even though a New Century nurse identified the
      Stage 2 pressure ulcer on June 19, 2013.

      (4) “Failure to provide interventions to appropriately manage an injury
      sustained during admission[.]” The last wound assessment documented
      by New Century nursing staff was on July 10, 2013, when a single
      wound was noted, the Stage 2 pressure ulcer to Bruce’s left heel. On
      July 15, 2013, an evaluation at the hospital identified not only the
      pressure ulcer to Bruce’s left heel, but also a “traumatic wound” on the
      top of his left foot. Bruce’s Golden Years medical records included no
      documentation concerning when the injury occurred, how it was
      evaluated or treated, no notification to medical providers, and no orders
      for wound care. According to Nurse Aguirre, the wound care that Bruce
      did receive prior to his hospitalization “was inadequate as evidenced by
      the massive infection that developed.”

Nurse Aguirre concluded that

      . . . substandard nursing care management of Mr. Richard’s injury to
      the dorsal aspect of his left foot [top side] resulted in severe infection
      and cellulitis that has left him wheelchair bound. Furthermore, it is well
      understood within the nursing community, when a patient’s condition
      or situation exceeds the nurse’s level of competency, the nurse must
      notify a medical provider to ensure patient safety. A delay in
      communication of a new onset of problems causes a delay in addressing
      these problems with appropriate treatment. The medical providers were
      not able to make a clinical decision on how to properly address the
      injury to the dorsal aspect [top side] of Mr. Richard’s left foot that
      caused him to be hospitalized for five days to receive extensive wound
      care, pain management and intravenous administration of high dose
      antibiotics for a left leg infection that ensued. The breaches in the
      standards of care resulted in complications that were entirely
      preventable.



                                          6
Dr. Streitmann’s Report

      Dr. Streitmann’s report and CV reflect that he is a board certified plastic

surgeon with more than fifteen years’ experience caring for patients with wounds.

He has also been a wound care director at a hospital in Houston. Streitmann states

in his report that “Mr. Bruce Richard was a patient at New Century Hospice from

5/29/13 to 7/15/13, and developed two wounds on his left foot while in that facility.”

Streitmann noted that the medical record included no documentation of how the

wound to the dorsum of the foot had occurred. Streitmann opined that “[t]he heel

dressing could have been too tight and caused the wound[]” and that “[l]ack of

preventative care, and lack of adequate wound care once the wounds formed, caused

the cellulitis.” According to Streitmann, “[h]ad the attending physician been

informed of the true status and existence of both wounds, debridement and wound

care could have prevented the ensuing cellulitis.” Streitmann’s report also referred

to Nurse Aguirre’s report “for documentation of multiple breaches in the standard

of care at New Century Hospice.”

Golden Years’ Objections to the Reports and Motion to Dismiss

      On October 23, 2015, Golden Years filed objections, arguing that the reports

did not comply with the requirements of Chapter 74. Golden Years argued that

Plaintiff’s expert reports were deficient because (1) the opinions on standard of care

                                          7
and breach were conclusory and did not distinguish between Golden Years and New

Century, and (2) Dr. Streitmann’s opinions on causation were conclusory because

they failed to distinguish between Golden Years and New Century and they failed

to explain how the alleged breaches in “administrative tasks, such as documenting

and maintaining medical records[]” were a substantial factor in causing Bruce’s

cellulitis or injuries.

       On June 23, 2016, Golden Years filed Defendant’s Motion to Dismiss for

Failure to File an Adequate Expert Report. Therein, Golden Years reiterated its

objections and argued that because Plaintiff failed to provide an expert report that

meets the requirements of Chapter 74, the “action against Defendant must be

dismissed with prejudice[]” under section 74.351.

Plaintiff’s Response to the Motion to Dismiss

       On August 1, 2016, Plaintiff filed its response to Golden Years’ motion to

dismiss. Plaintiff first argued that there are deficiencies in Bruce’s medical records

because the records of Golden Years and of New Century do not document Bruce’s

injury to the dorsum of his left foot and fail to show who may have administered

care for such injury. Plaintiff argued that additional discovery is necessary, that the

expert reports should not be determined to be deficient, and that any deficiency is

attributable to the medical records. Plaintiff also argued that Bruce was under the

                                          8
care of both Golden Years and New Century and that grouping the Defendants

together under a common standard of care does not render an expert report

inadequate where multiple defendants are jointly providing care. Plaintiff further

argued that Dr. Streitmann’s report adequately addressed causation by opining that

breaches by Golden Years and New Century “in failing to inform Mr. Richard’s

physician of each of his wounds and failing to provide adequate and timely wound

care caused the cellulitis and hospitalization at issue in this case.” Finally, Plaintiff

argued that Dr. Streitmann’s and Nurse Aguirre’s reports constitute a good faith

effort under Chapter 74 and requested a thirty-day extension to correct any

deficiencies. Plaintiff’s response also noted that New Century had not objected to

the expert reports.

Golden Years’ Reply

      On August 4, 2016, Golden Years filed a reply. Golden Years argued that

Nurse Aguirre’s report failed to identify separate standards of care for Golden Years

and for New Century and that Dr. Streitmann’s report addressed New Century only

and made no mention of Golden Years. In particular, Golden Years noted Dr.

Streitmann’s observation that “multiple breaches in the standard of care of Mr. Bruce

Richard while a patient at New Century Hospice led to cellulitis and admission to

Christus St. Mary Hospital on 7/15/13.”

                                           9
Trial Court’s Ruling

      On August 23, 2016, the trial court signed an order granting Plaintiff a thirty-

day extension to cure deficiencies, and explained as follows:

      The report must be more specific as to which breaches of the standard
      of care apply to Golden Years Assisted Living and which breaches of
      the standard of care apply to New Century Hospice. The report must
      explain how and why the breaches by Golden Years Assisted Living
      caused the injury in question.

Nurse Aguirre’s Addendum

      On September 20, 2016, Nurse Aguirre authored an addendum to her report,

which noted the following breaches in the standard of care by Golden Years:

       Failure to maintain documentation of care, resident assessment,
        resident service plan, physician orders, advanced directive and
        examination by a physician.
       Failure to document a comprehensive physiological and mental
        assessment within fourteen days of admission.
       Failure to develop an individual service plan.
       Failure to provide interventions to appropriately manage an injury
        sustained during admission.
       As to the injury to the dorsal aspect of the left foot, failure to
        document how the injury was evaluated or treated, failure to
        document notification to medical providers, and failure to document
        orders for wound care.
       Failure to notify New Century of a change in the status of the
        pressure ulcer.
       Failure to notify physician of development of a Stage 2 heel ulcer.

According to Nurse Aguirre, had the nursing staff of Golden Years or New Century

notified a physician of Bruce’s injuries, the physician “would have been able to make

                                         10
a clinical decision on how to properly address the problem and adapt the medical

plan of care with appropriate treatment.”

Dr. Streitmann’s Addendum

      Also on September 20, 2016, Dr. Streitmann authored an addendum to his

report. Therein, Dr. Streitmann explained the following:

      [I]t was apparently a Golden Years Assisted Living employee who
      pushed a wheelchair into Mr. Richard’s foot, causing the initial injury
      to the dorsum of the left foot. . . . [A] representative of Golden Years
      Assisted Living[] should have immediately contacted Mr. Richard’s
      attending physician when the new injury to the dorsum of the left foot
      occurred so that proper wound care could be provided to Mr. Richard’s
      left foot. . . . Failing to notify Mr. Richard’s physicians so that proper
      wound care could be immediately provided, in reasonable probability,
      caused the cellulitis that was diagnosed upon his admission to the
      hospital. . . . [H]ad the attending physician been informed of the true
      status and existence of both wounds, debridement and wound care, in
      reasonable probability, would have prevented the ensuing cellulitis.

Golden Years’ Second Motion to Dismiss

      On October 13, 2016, Golden Years filed its second motion to dismiss.

Therein, Golden Years argued that the expert reports are conclusory as to standard

of care and breach because they did not specify “what care Defendants should have

given, but did not.” According to Golden Years, Nurse Aguirre’s report only

provided a “vague” standard of care, which does not provide the specificity required

by Chapter 74. Golden Years also argued that Dr. Streitmann’s report is conclusory

as to proximate cause because it failed to “explain how and why the breach caused
                                         11
the purported injury[]” and failed to “explain how and why Defendant’s alleged

failure to maintain proper records was a substantial factor in causing Mr. Richard’s

injuries.” Defendant’s second motion to dismiss also argued that only physicians are

qualified to opine as to causation as a matter of law.

Plaintiff’s Response to Second Motion to Dismiss

      In its response, Plaintiff argued that Golden Years and New Century owed the

same duty of care to Bruce and that “it is entirely proper to apply the same standard

of care to all of the providers and conclude that the providers’ breaches of the

standard of care collectively caused the Plaintiff’s injuries.” Plaintiff also asserted

that Bruce was under the care of both Golden Years and New Century from May 28

to July 15, 2013. Plaintiff argued that Nurse Aguirre’s report sets out what care was

expected but was not given, specifically that Golden Years failed to monitor its

patient for wounds, failed to notify New Century of a change in status of the heel

wound, and failed to “make arrangements so that Mr. Richard could obtain medical

treatment for his injuries.” According to Plaintiff, the result of these failures was that

Bruce’s injuries “festered into a severe infection.”

      Plaintiff also argued that Dr. Streitmann’s addendum adequately addresses

causation because he opined that Golden Years and New Century should have

notified a physician so that proper wound care could be given and that proper wound

                                           12
care would, in all reasonable medical probability, have prevented cellulitis from

developing.

Golden Years’ Reply

      On January 4, 2017, Golden Years filed a reply to Plaintiff’s response. Golden

Years again argued that Dr. Streitmann’s opinion as to causation was conclusory

because he “generally opined that Defendant’s nurse failed to immediately inform

[Bruce’s] treating physician regarding the wound” and did not explain how earlier

treatment would have avoided the development of cellulitis.

Trial Court’s Order and Subsequent Procedural Filings

      The trial court heard argument on Golden Years’ motion to dismiss on January

4, 2017. On January 11, 2017, the trial court signed an order denying Golden Years’

Motion to Dismiss for Failure to File an Adequate Expert Report.

      On May 18, 2017, Golden Years filed a Motion for Entry of Order alleging

that until about May 1, 2017, it had been informed “that the judge had not ruled on

the motion and that she would send a notice when she had decided.” Golden Years

also alleged that on May 1, 2017, it received an email from counsel for New Century

that included the executed order as an attachment. According to Golden Years, “[i]t

appears the order was e-filed, but none of the parties received service.” The Motion



                                        13
for Entry of Order requested that the trial court enter a new order denying the motion

to dismiss, serving all parties.

      Golden Years filed a notice of appeal on May 19, 2017, stating that the trial

court notified the parties on May 1, 2017, that it had signed the order denying Golden

Years’ motion. See Golden Years Assisted Living v. Richard, No. 09-17-00171-CV,

2017 Tex. App. LEXIS 5762, at *1 (Tex. App.—Beaumont June 22, 2017, no pet.)

(mem. op.). We dismissed Golden Years’ appeal because the notice of appeal was

not timely filed. Id. at **1-2 (citing Tex. R. Civ. P. 306a(4)).

      On June 15, 2017, Plaintiff filed a response to Golden Years’ motion for entry

of order. Therein, Plaintiff asserted that the trial court filed its signed order denying

Golden Years’ motion to dismiss on January 11, 2017. According to Plaintiff,

counsel for New Century obtained a copy of the order on May 1, 2017, and circulated

it to all counsel by email. Plaintiff argued that Golden Years’ motion for entry of

order “is essentially asking th[e trial court] to enter a new order to correct a ‘clerical

error not the fault of any of the parties’ to extend postjudgment deadlines.”

According to Plaintiff, lack of notice is not a clerical error and it is improper under

Texas law for a trial court to enter a new order that was identical to the previous

order for the sole purpose of extending the appellate deadlines. Plaintiff also argued



                                           14
that the trial court’s plenary power to vacate the previous order and enter a new order

had expired on or about April 11, 2017.

      Golden Years filed a reply on June 19, 2017, arguing that the trial court

retained plenary power over the case because no final judgment had been rendered

and that the trial court had the inherent authority to change or modify an

interlocutory order. Golden Years argued that due process requires proper notice.

Golden Years also argued that the cases on which Plaintiff relied for its argument

that a court may not enter a new order for the sole purpose of extending appellate

deadlines pertain to orders entered after a final judgment, and that no final judgment

had been entered in this case.

      A hearing on the Motion for Entry of Order was held on June 20, 2017. Also

on June 20, 2017, the trial court signed an Order on Defendant’s Motion for Entry

of Order, granting Golden Years’ motion for entry of order. On June 29, 2017, the

trial court signed an Order on Defendant’s Motion to Dismiss for Failure to File an

Adequate Expert Report, which stated as follows:

              Came to be heard Defendant GOLDEN YEARS ASSISTED
      LIVING’s Motion to Dismiss for Failure to Produce an Adequate
      Expert Report, and the Court, having heard the arguments of counsel,
      is of the opinion that Defendant’s Objections and Motion should be in
      all things, DENIED. It is, therefore,
              ORDERED, ADJUDGED and DECREED that Defendant
      GOLDEN YEARS ASSISTED LIVING’s Motion to Dismiss for

                                          15
      Failure to Produce an Adequate Expert Report is hereby DENIED. It is
      also,
            ORDERED, ADJUDGED and DECREED that the previous
      order on this motion dated January 11, 2017 is withdrawn for failure to
      provide notice.
            SIGNED this 29th day of June, 2017.

Golden Years subsequently appealed.

                                  Issues on Appeal

      Golden Years argues that the trial court erred in refusing to dismiss the action

under Chapter 74 of the Civil Practice and Remedies Code because (1) the expert

reports failed to adequately explain the factual basis for the conclusions, (2) the

expert reports failed to provide specific information regarding the applicable

standard of care and how it was breached, and (3) the expert reports failed to provide

specific information regarding how the alleged breaches were a substantial factor in

Bruce’s claimed injuries.

      Appellee’s brief argues that this Court lacks jurisdiction over this appeal

because the trial court’s June 29, 2017 order did not extend the time for the Appellant

to perfect an appeal and was not an appealable order because “the trial court [did]

not have the plenary powers to issue an identical order on the same matters already

ruled upon for the purpose of restarting the clock on a party’s ability to appeal an

order.”


                                          16
                               Appellate Jurisdiction

      We have jurisdiction over an interlocutory appeal of an order that denies all

or part of the relief sought by a motion to dismiss under section 74.351(b). See Tex.

Civ. Prac. & Rem. Code Ann. § 51.014(a)(9). However, Appellee argues that this

Court lacks jurisdiction over this appeal because the Texas Rules of Civil Procedure

do not provide a remedy when a party receives notice more than ninety days after an

order is signed, and specifically that Rule 306a(4) “cannot extend a trial court’s

plenary power when a party learns of an order more than 90 days after it is signed.”

Here, Golden Years did not receive notice of the trial court’s order denying its

motion to dismiss until about May 1, 2017, which was more than ninety days after

January 11, 2017, when the trial court’s order was signed. Therefore, as we explained

in our previous opinion, Rule 306a(4) does not provide an extension, and Golden

Years’ interlocutory notice of appeal filed on May 19, 2017, was not timely filed.

Richard, 2017 Tex. App. LEXIS 5762, at **1-2.

      Nevertheless, a trial court has plenary power over a case while it is pending

and for thirty days following entry of a final judgment. See Lane Bank Equip. Co. v.

Smith S. Equip., Inc., 10 S.W.3d 308, 310 (Tex. 2000) (citing Tex. R. Civ. P.

329b(d); Check v. Mitchell, 758 S.W.2d 755, 756 (Tex. 1988)). In this case, no final

judgment has been entered. As a general rule, a trial court retains plenary power over

                                         17
its interlocutory orders until a final judgment is entered. See Fruehauf Corp. v.

Carrillo, 848 S.W.2d 83, 84 (Tex. 1993). Consequently, a trial court has the inherent

authority to change or modify any interlocutory order until its plenary power expires.

See In re Commitment of Richards, 202 S.W.3d 779, 785 (Tex. App.—Beaumont

2006, pet. denied) (citing Mendez v. San Benito/Cameron Cty. Drainage Dist. No.

3, 45 S.W.3d 746, 754 (Tex. App.—Corpus Christi 2001, pet. denied)); see also

Fruehauf Corp., 848 S.W.2d at 84 (“The trial court also retains continuing control

over interlocutory orders and has the power to set those orders aside any time before

a final judgment is entered.”).

      According to Appellee, the trial court’s order signed on July 29, 2017 was

“identical” to the order signed on January 11, 2017 and “it addressed the same

matters which were already ruled upon[.]” Citing to CTL/Thompson Tex., LLC v.

Homes, 337 S.W.3d 437, 442 (Tex. App.—Fort Worth 2011, pet. denied) and

Anderson v. Casebolt, 493 S.W.2d 509, 510 (Tex. 1973), Appellee further argues

that a trial court cannot issue an identical order on the same matters already ruled

upon for the purpose of restarting appellate deadlines. We find those cases

inapposite. In CTL/Thompson, the Fort Worth Court explained that to the extent a

second order “simply rules on the same matters already ruled on by the trial court in

[an earlier] order, it is not an appealable order.” 337 S.W.3d at 442. In Anderson, the

                                          18
Texas Supreme Court stated that a “trial court may not make an order that simply

affirms a former judgment and thereby enlarge the period for perfecting an appeal,”

but Anderson was a case that involved a final judgment and when the trial signed

the second judgment and attempted to set aside the first judgment, the trial court had

already lost plenary power and lacked jurisdiction to alter any of its previous orders.

493 S.W.2d at 510.

      As we have explained, the trial court has the inherent authority to change or

modify an interlocutory order. See Fruehauf Corp., 848 S.W.2d at 84; In re

Richards, 202 S.W.3d at 785. Here, the trial court’s June 29, 2017 order expressly

withdrew the January 11, 2017 interlocutory order and denied Golden Years’ motion

to dismiss. Therefore, we have jurisdiction over Golden Years’ interlocutory appeal

from the June 29, 2017 order under section 51.014(a)(9) of the Texas Civil Practice

and Remedies Code. See Tex. Civ. Prac. & Rem. Code Ann. § 51.014(a)(9). We

reject Appellee’s argument and overrule its cross-issue that this Court lacks

jurisdiction.

                                 Standard of Review

      We review the trial court’s decision regarding the adequacy of a Chapter 74

expert report under an abuse of discretion standard. See Van Ness v. ETMC First

Physicians, 461 S.W.3d 140, 142 (Tex. 2015) (citing Rosemond v. Al-Lahiq, 331

                                          19
S.W.3d 764, 766 (Tex. 2011); Am. Transitional Care Ctrs. of Tex., Inc. v. Palacios,

46 S.W.3d 873, 877 (Tex. 2001)). In reviewing the trial court’s decision, we may

not substitute our judgment for that of the trial court in reviewing factual matters or

matters committed solely to the trial court’s discretion. See In re Mem’l Hermann

Hosp. Sys., 464 S.W.3d 686, 698 (Tex. 2015) (citing Walker v. Packer, 827 S.W.2d

833, 839-40 (Tex. 1992)); Bowie Mem’l Hosp. v. Wright, 79 S.W.3d 48, 52 (Tex.

2002). “Merely because a trial court may decide a matter within its discretion in a

different manner than an appellate court would in a similar circumstance does not

demonstrate that an abuse of discretion has occurred.” Palladian Bldg. Co. v. Nortex

Found. Designs, Inc., 165 S.W.3d 430, 433 (Tex. App.—Fort Worth 2005, no pet.)

(citing Downer v. Aquamarine Operators, Inc., 701 S.W.2d 238, 241-42 (Tex.

1985)). “A trial court abuses its discretion if it acts in an arbitrary or unreasonable

manner without reference to any guiding rules or principles.” Wright, 79 S.W.3d at

52. A trial court also abuses its discretion if it fails to analyze or apply the law

correctly. See In re Prudential Ins. Co. of Am., 148 S.W.3d 124, 135 (Tex. 2004)

(citing Walker, 827 S.W.2d at 840).

                          Expert Report Under Chapter 74

      A health care liability claimant must provide each defendant physician and

health care provider with an expert report within a specified time. See Tex. Civ. Prac.

                                          20
& Rem. Code Ann. § 74.351(a). The report serves a two-fold purpose: (1) to inform

the defendant of the specific conduct the plaintiff has called into question; and (2) to

provide a basis for the trial court to conclude the plaintiff’s claims have merit. See

Baty v. Futrell, 543 S.W.3d 689, 693-94 (Tex. 2018) (citing Palacios, 46 S.W.3d at

879); see also In re Buster, 275 S.W.3d 475, 476-77 (Tex. 2008) (per curiam);

Wright, 79 S.W.3d at 52; HEB Grocery Co., L.L.P. v. Farenik, 243 S.W.3d 171, 173

(Tex. App.—San Antonio 2007, no pet.). The purpose of the expert report

requirement is to deter frivolous claims, not to dispose of claims regardless of their

merit. Scoresby v. Santillan, 346 S.W.3d 546, 554 (Tex. 2011). “The expert report

requirement is a threshold mechanism to dispose of claims lacking merit[.]”

Certified EMS, Inc. v. Potts, 392 S.W.3d 625, 631 (Tex. 2013).

      The statute defines “expert report” as follows:

      . . . 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). The defendant may file

challenges to the adequacy of the report. Id. § 74.351(l).

      According to the express wording of the statute, the trial court “shall grant a

motion challenging the adequacy of an expert report only if it appears to the court,
                                       21
after hearing, that the report does not represent an objective good faith effort to

comply with the definition of an expert report in Subsection (r)(6).” Id. When

determining whether the report represents an objective good faith effort to comply

with the statute, the trial court’s inquiry is limited to the four corners of the report.

See Wright, 79 S.W.3d at 53 (“[T]he report must include the required information

within its four corners.”); Palacios, 46 S.W.3d at 878 (“a trial court should look no

further than the report” to determine whether it meets the statutory requirements).

To constitute a good faith effort, the report “must discuss the standard of care,

breach, and causation with sufficient specificity to inform the defendant of the

conduct the plaintiff has called into question and to provide a basis for the trial court

to conclude that the claims have merit.” Palacios, 46 S.W.3d at 875; see also Wright,

79 S.W.3d at 52.

      While the report “need not marshal every bit of the plaintiff’s evidence,” it

must provide a fair summary of the expert’s opinions as to the 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. Jernigan v. Langley, 195 S.W.3d 91, 93

(Tex. 2006); Palacios, 46 S.W.3d at 875, 878; see also Tex. Civ. Prac. & Rem. Code

Ann. § 74.351(r)(6). In determining the adequacy of an expert report, a court reviews

                                           22
the pleadings to determine the claims alleged and whether the report addresses those

claims. See Christus Health Se. Tex. v. Broussard, 306 S.W.3d 934, 938 (Tex.

App.—Beaumont 2010, no pet.) (citing Windsor v. Maxwell, 121 S.W.3d 42, 51

(Tex. App.—Fort Worth 2003, pet. denied)). The report must “explain, to a

reasonable degree, how and why the breach caused the injury based on the facts

presented.” Jelinek v. Casas, 328 S.W.3d 526, 539-40 (Tex. 2010). “If a health care

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

report meeting the statutory requirements, the claim cannot be frivolous.” Potts, 392

S.W.3d at 631.

      When determining whether a report adequately explains how the defendant

health care provider caused an injury to a patient, we evaluate whether the report

demonstrates causation beyond mere conjecture. See Wright, 79 S.W.3d at 53 (a

conclusory report does not meet the statutory requirements); Rosemond v. Al-Lahiq,

362 S.W.3d 830, 836 (Tex. App.—Houston [14th Dist.] 2012, pet. denied) (same);

see also HEB Grocery Co., LP v. Galloway, No. 09-13-00486-CV, 2014 Tex. App.

LEXIS 5506, at **19-20 (Tex. App.—Beaumont May 22, 2014, no pet.) (mem. op.)

(an expert report must do more than merely make conclusory statements and should

address causation and the link between the negligence and the injury alleged). A

causal relationship is established “by proof that the negligent act or omission was a

                                          23
substantial factor in bringing about the harm and without which the harm would not

have occurred.” Costello v. Christus Santa Rosa Health Care Corp., 141 S.W.3d

245, 249 (Tex. App.—San Antonio 2004, no pet.); see also Columbia Valley

Healthcare Sys., L.P. v. Zamarripa, 526 S.W.3d 453, 460 (Tex. 2017) (noting that

an expert report must explain both foreseeability and cause-in-fact in order to satisfy

the Act).

      A plaintiff may satisfy the statutory requirements by serving reports by

separate experts. See Tex. Civ. Prac. & Rem. Code Ann. § 74.351(i). Where a

plaintiff does so, we consider the expert reports in the aggregate, and a single expert

need not address all liability and causation issues with respect to a defendant. Id.;

see also Miller v. JSC Lake Highlands Operations, 536 S.W.3d 510, 513 (Tex.

2017); Tenet Hosps. Ltd. v. De La Rosa, 496 S.W.3d 165, 170 (Tex. App.—El Paso,

2016, no pet.); Gannon v. Wyche, 321 S.W.3d 881, 896 (Tex. App.—Houston [14th

Dist.] 2010, pet. denied); Packard v. Guerra, 252 S.W.3d 511, 526 (Tex. App.—

Houston [14th Dist.] 2008, pet. denied). “When a plaintiff sues more than one

defendant, the expert report must set forth the standard of care applicable to each

defendant and explain the causal relationship between each defendant’s individual

acts and the injury.” Estorque v. Schafer, 302 S.W.3d 19, 29 (Tex. App.—Fort

Worth 2009, no pet.) (citing Tex. Civ. Prac. & Rem. Code Ann. § 74.351(a), (r)(6);

                                          24
Sanjar v. Turner, 252 S.W.3d 460, 465 (Tex. App.—Houston [14th Dist.] 2008, no

pet.)). However, grouping defendants together in discussing the relevant standards

of care may not render an expert report inadequate when all the defendants owed the

same duty to the plaintiff. Sanjar, 252 S.W.3d at 466-67 (holding same standard of

care may be applied to more than one physician if they all owe the same duty to

patient).

                           Standard of Care and Breach

      Appellant argues that Nurse Aguirre’s reports are conclusory because she

failed to explain the factual basis for her conclusions, and because she failed to

explain how Golden Years was responsible for the standard of care outlined given

Aguirre’s observation that Golden Years had transferred Bruce’s care to New

Century. Appellant complains that Aguirre impermissibly applied the same standard

of care to Golden Years and New Century without explanation and she failed to

identify what care was expected but not given.

      Nurse Aguirre noted what she described as multiple failures of documentation

and communication by Golden Years and explained that her opinion was based on

her review of Golden Years’ medical records for Bruce. In particular, Aguirre’s

addendum stated

      [b]ecause Golden Years [] failed to document the injury that Mr. Bruce
      Richard sustained, nor notify his wife or New Century Hospice of the
                                        25
      injury, nor make arrangements for him to obtain medical treatment for
      his traumatic injury that not only affected the top of his left foot, but
      also the pre-existing heel ulcer, Golden Years [] is in breach of the
      standard of care.

Although Nurse Aguirre’s initial report addressed both Golden Years and New

Century collectively, her addendum addresses Golden Years individually. The

addendum includes the following statements that address Golden Years’ standard of

care and breach:

       “Golden Years [] failed to maintain this documentation . . .”
       “. . . Golden Years [] failed to document a comprehensive
        physiological and mental assessment . . .”
       “. . . Golden Years [] failed to maintain an individual service
        plan . . .”
       “[an employee] of Golden Years [] refused to contact Emergency
        Medical Services . . .”
       “. . . Golden Years [] should have notified the nursing staff at New
        Century . . .”
       “The nursing staff from Golden Years [] failed to notify the
        physician and/or New Century [] of Mr. Richard’s development of
        a stage 2 left heel ulcer.”

Based on our review of Nurse Aguirre’s addendum, issued after the trial court

order’s required the report to be “more specific as to which breaches of the standard

of care apply to Golden Years[,]” we cannot say that Nurse Aguirre’s report as

amended by her addendum failed to identify Golden Years’ standard of care and

alleged breach with specificity. The allegations in the Aguirre addendum identify

the alleged conduct Plaintiff has called into question and specifically advise Golden

                                         26
Years of the care Plaintiff alleges Golden Years should have provided but did not

provide. See Baty, 543 S.W.3d at 693-94; Palacios, 46 S.W.3d at 880.

      But even assuming Nurse Aguirre’s reports were deficient as to setting forth

the standard of care and breach, Appellant’s brief on appeal does not challenge Dr.

Streitmann’s reports’ or opinions as to stating a standard of care and breach. Where

a plaintiff serves reports of more than one expert, we consider the expert reports in

the aggregate to determine whether the plaintiff has satisfied the requirements of

Chapter 74. See Tex. Civ. Prac. & Rem. Code Ann. § 74.351(i). In this case, Dr.

Streitmann’s addendum stated that a Golden Years employee pushed a wheelchair

into Bruce’s foot, and that some representative of Golden Years should have

contacted Bruce’s attending physician immediately when the new injury to the

dorsum of the left foot occurred so that Bruce could receive proper wound care. We

conclude that the specific allegations in Nurse Aguirre’s and Dr. Streitmann’s

reports, as amended by their addenda, collectively provide Golden Years with notice

of the conduct complained of by Plaintiff and what the experts believe Golden Years

should have done differently. See id. We find no abuse of discretion by the trial court

in concluding the expert reports sufficiently identified the relevant standard of care

and alleged breach. See Tex. Civ. Prac. & Rem. Code Ann. § 74.351(r)(6).



                                          27
                                      Causation

      With respect to Dr. Streitmann’s reports, Appellant argues that Dr.

Streitmann’s reports are conclusory as to causation because the doctor failed to

explain how Golden Years’ failure to keep proper records resulted in Bruce’s

injuries, failed to adequately explain how Golden Years’ alleged breach was a

substantial factor in causing Bruce’s injuries, and failed to adequately explain how

Bruce’s outcome would have been different with more timely treatment.

      Dr. Streitmann’s initial report states that

      . . . the attending physician should have been immediately notified of
      the new wound on the dorsum of the foot, and the worsening condition
      of the heel wound. . . Had the attending physician been informed of the
      true status and existence of both wounds, debridement and wound care
      could have prevented the ensuing cellulitis.

Dr. Streitmann’s addendum further states that

      Failing to notify Mr. Richard’s physicians so that proper wound care
      could be immediately provided, in reasonable probability, caused the
      cellulitis that was diagnosed upon his admission to the hospital.

            ....

      . . . had the attending physician been informed of the true status and
      existence of both wounds, debridement and wound care, in reasonable
      probability, would have prevented the ensuing cellulitis.

      We disagree with the Appellant’s argument that Dr. Streitmann’s report, as

supplemented by his addendum, does nothing more than merely assert that causation

                                          28
exists. Cf. Ngo v. Lewis, No. 09-10-00140-CV, 2010 Tex. App. LEXIS 7432, at **8,

13-15 (Tex. App.—Beaumont Sept. 9, 2010, no pet.) (mem. op.) (expert report that

“merely asserts that causation exists is not enough[]” and was insufficient for not

explaining the basis of the expert’s opinions and for not identifying anything

defendants could have done to change the outcome). Dr. Streitmann’s reports

contain factual references linked to the basis for his opinion. See Wright, 79 S.W.3d

at 52 (citing Palacios, 46 S.W.3d at 879); Windsor, 121 S.W.3d at 47 (quoting Earle

v. Ratliff, 998 S.W.2d 882, 890 (Tex. 1999)). The doctor’s reports reference how the

alleged breaches by Golden Years were a substantial factor in bringing about the

injury to the dorsum of the left foot and that, absent said acts or omissions, the

cellulitis would not have developed. See Clapp v. Perez, 394 S.W.3d 254, 261-62

(Tex. App.—El Paso 2012, no pet.) (citing Wright, 79 S.W.3d at 53; Tenet Hosps.

Ltd. v. Love, 347 S.W.3d 743, 755 (Tex. App.—El Paso 2011, no pet.)).

      On appeal, Golden Years also argues that Dr. Streitmann did not “adequately

describe what ‘wound care’ he envisions, when this wound care needed to be

implemented in the five-day window in question in order for cellulitis to be avoided,

or explain why Mr. Richard, an individual already on hospice care, would have been

a candidate for this treatment and would have responded to it.” However, Golden

Years did not make these arguments in its Motion to Dismiss or Reply filed after

                                         29
Plaintiff submitted Dr. Streitmann’s addendum. Because this argument does not

comport with the argument made to the trial court, no error has been preserved on

this argument. See Tex. R. App. P. 33.1, 47.1; Wohlfahrt v. Holloway, 172 S.W.3d

630, 639-40 (Tex. App.—Houston [14th Dist.] 2005, pet. denied) (“To have

preserved error, a party’s argument on appeal must comport with its argument in the

trial court.”).

       Considering Plaintiff’s expert reports in the aggregate, and the arguments that

were made before the trial court, we cannot say that the trial court erred in denying

the Motion to Dismiss. The trial court could have reasonably concluded that

Aguirre’s and Steinmann’s reports are sufficient to meet the threshold requirements

under Chapter 74 and provide a fair summary of the applicable standard of care,

explain how Golden Years allegedly breached that standard, inform Golden Years

of the specific conduct called into question, and explain how Golden Years’ failure

allegedly caused an injury to Bruce. See Wright, 79 S.W.3d at 52; Palacios, 46

S.W.3d at 879; see also Tex. Civ. Prac. & Rem. Code Ann. § 74.351(r)(6). The

reports provide a basis for the trial court to conclude that Plaintiff’s claims contain

at least one viable liability theory with merit. See Potts, 392 S.W.3d at 631; Wright,

79 S.W.3d at 52; Palacios, 46 S.W.3d at 879.



                                          30
         We conclude that the trial court did not abuse its discretion in overruling

Golden Years’ objections and denying Golden Years’ motion to dismiss. See Baty,

543 S.W.3d at 693. Having overruled all appellate issues, we affirm the trial court’s

order.

         AFFIRMED.



                                                    _________________________
                                                       LEANNE JOHNSON
                                                             Justice


Submitted on November 27, 2017
Opinion Delivered July 12, 2018

Before McKeithen, C.J., Horton and Johnson, JJ.




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