                                                                                      ACCEPTED
                                                                                  13-15-00024-CV
                                                                  THIRTEENTH COURT OF APPEALS
                                                                         CORPUS CHRISTI, TEXAS
                                                                              7/6/2015 3:55:22 PM
                                                                           CECILE FOY GSANGER
                                                                                           CLERK

                  IN THE THIRTEENTH COURT OF APPEALS
                    CORPUS CHRISTI/EDINBURG, TEXAS
                                                       FILED IN
                                               13th COURT OF APPEALS
                                            CORPUS CHRISTI/EDINBURG, TEXAS
                         NO. 13-15-00024-CV     7/6/2015 3:55:22 PM
                                                 CECILE FOY GSANGER
                                                        Clerk

 MARIA ZAMARRIPA, AS GUARDIAN OF THE ESTATES OF R.F.R. AND
  R.J.R., MINORS, AND OLGA FLORES, AS ADMINISTRATOR OF THE
                ESTATE OF YOLANDA IRIS FLORES,
                              Appellants

                                      v.

   BAY AREA HEALTH CARE GROUP, LTD. D/B/A CORPUS CHRISTI
 MEDICAL CENTER, HIDALGO COUNTY EMS, AND HIDALGO COUNTY
         EMERGENCY MEDICAL SERVICE FOUNDATION,
                           Appellees.


APPELLANTS MARIA ZAMARRIPA’S AS GUARDIAN OF R.F.R. AND R.J.R., MINORS,
AND OLGA FLORES’S, AS ADMINISTRATOR OF THE ESTATE OF YOLANDA FLORES,
REPLY TO BRIEF OF APPELLEES HIDALGO COUNTY EMS AND HIDALGO COUNTY
              EMERGENCY MEDICAL SERVICES FOUNDATION


                                WEST, WEBB, ALLBRITTON & GENTRY, P.C.
                                Gaines West
                                State Bar No. 21197500
                                Email: gaines.west@westwebblaw.com
                                Jennifer D. Jasper
                                State Bar No. 24027026
                                Email: jennifer.jasper@westwebblaw.com
                                Donald Delgado
                                State Bar No. 24065139
                                E-mail: donald.delgado@westwebblaw.com
                                1515 Emerald Plaza
                                College Station, Texas 77845
                                979.694.7000 ~ Telephone
                                979.694.8000 ~ Facsimile

                                COUNSEL FOR APPELLANTS
                                  i
                                           TABLE OF CONTENTS

Table of Contents .................................................................................................... ii

Table of Authorities ................................................................................................. iii

Reply Point One: Nurse Tibaldo is properly qualified; section 74.402(b)(1) only
        applies “if the defendant health care provider is an individual” and none
        of Hidalgo EMS’s cases establish otherwise.............................................. 1

Reply Point Two: Nurse Tibaldo’s reference to causation does not disqualify him
        when Dr. Harlass separately established causation .................................... 6

Reply Point Three: Nurse Tibaldo’s report establishes the standard of care ......... 7

Reply Point Four: Dr. Harlass’s expert report is sufficient .................................... 8

Prayer.......................................................................................................................11

Certificate of Compliance........................................................................................12

Certificate of Service...............................................................................................12




                                                              ii
                                      TABLE OF AUTHORITIES

CASES

Christus Spohn Health Sys. Corp. v. Castro, .............................................................3
      No. 13-13-00302-CV, 2013 WL 6576041
      (Tex. App.—Corpus Christi Dec. 12, 2013, no pet.)

Columbia N. Hills Hosp. Subsidiary, L.P. v. Alvarez, .........................................3, 4
     No. 02-10-00342-CV, 2011 WL 3211239
     (Tex. App.—Ft. Worth July 28, 2011, no pet.)

Davis v. Webb, ..........................................................................................................7
      246 S.W.3d 768 (Tex. App.—Houston [14th Dist.] 2008, no pet.)

Health Care Unlimited, Inc. v. Villareal, No. ......................................................4, 5
      13-09-00456-CV, 2010 WL 468061
      (Tex. App.—Corpus Christi Feb. 11, 2010, no pet.)

Mack Trucks, Inc. v. Tamez, .....................................................................................6
     206 S.W.3d 572 (Tex. 2006)

Renaissance Healthcare Sys., Inc. v. Swan, ..........................................................1, 2
      343 S.W.3d 571 (Tex. App.—Beaumont 2011, no pet.)

Salais v. Tex. Dep’t of Aging & Disability Servs., ....................................................8
      323 S.W.3d 527 (Tex. App.—Waco 2010, pet. denied)

Tenet Hosp. Ltd. v. Barajas, .....................................................................................1
      451 S.W.3d 535 (Tex. App.—El Paso 2014, no pet.)

TTHR, L.P. v. Coffman,..............................................................................................2
     338 S.W.3d 103 (Tex. App.—Fort Worth 2011, no pet.)


STATUTES

TEX. CIV. PRAC. & REM. CODE ANN. § 74.402(b)(1)................ .. .....................passim



                                                           iii
TO THE HONORABLE THIRTEENTH COURT OF APPEALS:

      Maria Zamarippa, as Guardian of minors R.F.R. and R.J.R., and Olga Flores,

as Administrator of the Estate of Yolanda Flores (“Appellants”), file this Reply to

the Response of Appellees Hidalgo County EMS and Hidalgo County Emergency

Medical Services Foundation (collectively, “Hidalgo EMS”).

                                 REPLY POINTS

REPLY POINT 1: Nurse Tibaldo is properly qualified; section 74.402(b)(1)
only applies “if the defendant health care provider is an individual” and none
of Hidalgo EMS’s cases establish otherwise.

      Subsection 74.402(b)(1) provides that a person may be an expert witness if

that person is:

          [P]racticing health care in a field of practice that involves the same
          type of care or treatment as that delivered by the defendant health
          care provider, if the defendant health care provider is an
          individual, at the time the testimony is given or was practicing that
          type of health care at the time the claim arose[.]

TEX. CIV. PRAC. & REM. CODE ANN. § 74.402(b)(1) (emphasis added). Thus, the

plain language of this subsection limits its application to those situations when the

defendant health care provider “is an individual.” Id.

      Accordingly, Texas courts have found that this section does not apply, when

the defendant is an institution. Tenet Hosp. Ltd. v. Barajas, 451 S.W.3d 535, 540

n.1 (Tex. App.—El Paso 2014, no pet.) (citing Renaissance Healthcare Sys., Inc. v.




                                          1
Swan, 343 S.W.3d 571, 588 (Tex. App.—Beaumont 2011, no pet.); TTHR, L.P. v.

Coffman, 338 S.W.3d 103, 112 (Tex. App.—Fort Worth 2011, no pet.).

      In the case at bar, despite the fact that there is no question that Appellees

Hidalgo County EMS and Hidalgo County Emergency Medical Services

Foundation are both institutions (not individuals), they nevertheless insist that

section 74.402(b)(1) applies in this case (to render Nurse Tibaldo unqualified).

Hidalgo EMS argues that because Nurse Tibaldo was not practicing as an EMT

when the claim arose (in 2012) or when his report was offered (in 2014), he is

unqualified per subsection 402(b)(1). Appellees’ Brief at 9; CR 71.

      But such a position requires this Court to ignore 74.402(b)(1)’s plain

language (applying only in cases where “the defendant is an individual”) and the

existing Texas case law cited above.        TEX. CIV. PRAC. & REM. CODE ANN.

§74.402(b)(1). Even Appellee Corpus Christi Medical Center has conceded that

(b)(1) only applies to individuals.   Brief of Appellee Corpus Christi Medical

Center at 18-19.

      Hidalgo EMS attempts to supports its argument regarding section

74.402(b)(1)’s application with references to three cases (see Appellees’ Brief at

10), all of which are inapposite because none addressed the argument Appellants

make on this point.




                                        2
      Specifically, Christus Spohn Health Sys. Corp. v. Castro, No. 13-13-00302-

CV, 2013 WL 6576041, *4-5 (Tex. App.—Corpus Christi Dec. 12, 2013, no pet.)

found that neither a nurse nor physician was qualified, because although they both

had experience with decubitus ulcers, neither had specific experience with ulcers in

the context of ICU or trauma care.

      In Christus, there was no argument that plaintiff’s experts were not qualified

under 74.402(b)(1) because they were not practicing in the same field at the time

of their testimony or at the time the claim arose. (Thus, there was no argument

from the plaintiff in that case that subsection (b)(1) was inapplicable because the

defendant was a hospital.) The defendants in Christus actually recognized that

both the nurse and the doctor were experts in the field of geriatrics and nursing

home care, and had expertise in diagnosing and treating decubitus ulcers. Id. at *4.

The defendants’ specific complaint was that neither expert had experience treating

and diagnosing decubitus ulcers in the context of ICU care or trauma care. Id.

      Thus, the defendants’ complaints about why the experts were supposedly

unqualified were substantively different in Christus, than the case at bar. For this

reason, there is no application either directly or by analogy.

      In Columbia N. Hills Hosp. Subsidiary, L.P. v. Alvarez, No. 02-10-00342-

CV, 2011 WL 3211239, *5 (Tex. App.—Ft. Worth July 28, 2011, no pet.) (mem.

op.), the reviewing court affirmed a finding that an expert was not qualified to


                                           3
testify as to a hospital’s direct liability for a failure in its policies and procedures.

The court found that, although the expert was qualified to render opinions on the

nursing care in that case, his report did not establish his familiarity with the

standard of care for setting forth a hospital’s policies and procedures. Id.

      In the case at bar, Appellants have not asserted any claims for direct liability

against these Hidalgo EMS; and as to the vicarious claims, there is nothing in

Columbia that supports Hidalgo EMS’s position (and the expert was actually found

to be qualified). Id. at *4. Moreover, Hidalgo EMS in this case has not asserted

that Nurse Tibaldo lacks familiarity with the standard of care (as did the defendants

in Columbia). Their complaint is that he was not working as an EMT when the

claim arose, or when he offered his report.          Appellees’ Brief at 9; CR 71.

Accordingly, Columbia is inapposite and cannot be applied by analogy.

      The final case Hidalgo EMS cites on this point is Health Care Unlimited,

Inc. v. Villareal, No. 13-09-00456-CV, 2010 WL 468061 (Tex. App.—Corpus

Christi Feb. 11, 2010, no pet.) (mem. op.). That case involved a challenge to the

expert’s qualifications and the Court of Appeal affirmed the trial court’s denial of

the motion to dismiss, finding the expert was qualified. Id. at *2–4.

      In that case, the defendants argued the expert, a family medicine specialist,

was not qualified to opine about wound care treatment.             The appellate court

reviewed the expert’s lengthy qualifications and relevant experience, and had no


                                           4
difficulty finding the expert appropriately qualified. Id. The defendants argued

that the expert’s statements regarding his qualifications were “conclusory and

unsupported by the facts.” Id. at *4. The appellate court readily rejected this

contention. Id.

      Again, Villareal is distinguishable because the defendants in that case were

not asserting that the expert was specifically unqualified because he was not

actively practicing in the same field at the appropriate time per 74.402(b)(1); nor

did the plaintiff in that case argue that section did not apply. In any event, the

appellate court in Villareal affirmed that the expert qualified. Id.

      While these three opinions Hidalgo EMS cites each references section

74.402 and its requirements, none specifically considered any argument regarding

whether that subsection (b)(1)’s requirements applied when the defendant was not

an individual; and for this reason they are unpersuasive.

      Appellants have found no case law holding that section 74.402(b)(1) means

the very opposite of what it says (i.e., that it applies even if the defendant is not an

individual). In fact, the cases Appellants have cited for this Court have interpreted

the statute consistent with its plain language. Hidalgo EMS did not offer the lower

court (and has not offered this Court) any sound legal basis for holding otherwise.

Thus, to the extent the trial court dismissed Plaintiff’s and Intervenor’s claims on

grounds that Nurse Tibaldo was not qualified to offer an opinion in this case


                                           5
because his report did not satisfy subsection 74.402(b)(1), the trial court abused its

discretion and should be reversed.

REPLY POINT 2: Nurse Tibaldo’s reference to causation does not disqualify
him when Dr. Harlass separately established causation.

      For the first time, in their Response Brief, Hidalgo EMS argues that Nurse

Tibaldo has offered an opinion on causation, and because only physicians are

qualified to render causation opinions, Nurse Tibaldo is disqualified from offering

any opinions at all in this case. Appellees’ Brief at 11-13. However, this argument

was not before the trial court, and thus could not have been the basis for the trial

court’s ruling. CR 68-77; CR 145-47. Nowhere in Hidalgo EMS’s Objection or

Supplemental Objection did they raise this particular complaint. CR 68-77; CR

145-47. Thus, it is improper to consider this issue on appeal. Mack Trucks, Inc. v.

Tamez, 206 S.W.3d 572, 577 (Tex. 2006).

      Assuming for the sake of argument Hidalgo EMS properly raised this issue

below, it should have been soundly rejected. Plaintiffs and Intervenors in this case

have offered an opinion from Dr. Harlass, a medical doctor, as to causation in this

case. CR 91, 94. Nurse Tibaldo’s mere reference to causation, in the course of his

report which clearly sets forth the standard of care and breach of Hidalgo EMS,




                                          6
cannot as a matter of law disqualify him from offering any opinions in this case.

Hidalgo EMS has not offered any case law to support such a position.1

REPLY POINT 3: Nurse Tibaldo’s report establishes the standard of care.

       Hidalgo EMS generically argues that Nurse Tibaldo’s report fails to set forth

the standard of care applicable to Hidalgo EMS; but a plain reading of the report

demonstrates otherwise. The report discusses the applicable standard of care in

three paragraphs on its second page. CR 84, 154. Hidalgo EMS ignores this.

Instead, Hidalgo EMS cherry-picks particular sentences and phrases from Nurse

Tibaldo’s report, reads them in isolation, and then claims there is no statement of

the standard of care.

       In particular, Hidalgo EMS argues that while Nurse Tibaldo criticized the

EMTs for failing to call their Medical Director, he never explained what the

standard of care was with respect to that particular criticism. Appellees’ Brief at

13. This may be the case, but it does not mean that the report wholly fails to set

forth any applicable standard of care—which it indisputably does. CR 84, 154.

       Hidalgo EMS’s only other argument on this point actually concedes that this

expert did set forth a standard of care. Hidalgo EMS asserts that Nurse Tibaldo’s

report states that the standard of care requires EMTs to get a patient to the closest

1
  Davis v. Webb, 246 S.W.3d 768 (Tex. App.—Houston [14th Dist.] 2008, no pet.), which
Appellees cite at length in support of this particular argument, is irrelevant, because in that case
the single expert for the plaintiff was not a physician. The lower court held, and the reviewing
court affirmed, that an optician (not a physician) was not qualified to testify as to causation.
                                                 7
appropriate facility when her condition worsens.          Hidalgo EMS complains,

nevertheless, that the report never identified which facility that would be in this

case. Appellees’ Brief at 13. This is a jury argument. Hidalgo EMS can argue to

the jury that the EMTs had no other choice in this case but to proceed as directed.

But this does not, and cannot as a matter of law, constitute a “failure” on Nurse

Tibaldo’s part to set forth a standard of care, so as to render his report no report at

all.

       The law requires the standard of care to be addressed with “sufficient

specificity to inform the defendant of the conduct that plaintiff calls into question

and provides a basis for the trial court to conclude that the claims have merit.”

Salais v. Tex. Dep’t of Aging & Disability Servs., 323 S.W.3d 527, 534 (Tex.

App.—Waco 2010, pet. denied) (citations omitted). There is no valid argument

that was not done in this case.

REPLY POINT 4: Dr. Harlass’s expert report is sufficient

       In the trial court, Hidalgo EMS criticized Dr. Harlass’s report, although it

was unclear then (and remains unclear from appellate briefing) whether Hidalgo

EMS is saying his report fails to set forth standard of care, breach, or causation.

(Hidalgo EMS has never challenged Dr. Harlass’s qualifications).

       Accordingly, Appellant hereinbelow attempts to summarize the complaints

Hidalgo EMS raised as to the report, and responds to each.


                                          8
      Dr. Harlass opines that “the ground ambulance transfer (and the Hidalgo

County EMS personnel’s failure to divert) allowed her bleeding and abruption to

continue to progress to where she became non-responsive and had cardiac arrest.”

CR 190. Hidalgo EMS points to this particular sentence, and then criticizes Dr.

Harlass because he “does not establish in his report that it was the responsibility of

the emergency medical technicians in the ambulance to overrule the instructions

being given by the receiving hospital.” Appellees’ Brief at 16. However, Hidalgo

EMS recognizes that, in his supplemental report, Dr. Harlass actually states that the

EMTs should have diverted the ground transfer—thereby defeating their own

argument on this point. Appellees’ Brief at 16.

      Hidalgo EMS then points to Dr. Harlass’s assertion that the failure to divert

“allowed the patient’s continued bleeding that led to her death” and claims that he

“does not explain the medical condition that the Plaintiff experienced.” Appellees’

Brief at 16-17. Dr. Harlass’s report, however, plainly discusses and explains the

medical condition that Yolanda experienced: placenta accreta, which put her at risk

for placental abruption and significant hemorrhage. CR 91-94. Thus, this criticism

appears misinformed.

      The only other criticism Hidalgo EMS levels against Dr. Harlass’s report

was that it did not adequately link the cause of Yolanda’s death to the failure to

divert. Appellees’ Brief at 17. Hidalgo EMS argues: “Dr. Harlass does not explain


                                          9
what could have been done for the patient at any facilities, which he believes were

available for diversion.” Appellees’ Brief at 17. Again, this is material for cross-

examination. Hidalgo EMS can cross-examine Dr. Harlass on this issue; but it

does not render his report insufficient. Dr. Harlass explains that the failure to

divert resulted in Yolanda’s bleeding going “unabated” for so long, that she

suffered cardiac arrest. CR 190. He has thus sufficiently linked the failure on the

EMT’s part, to the cause of Yolanda’s death.

      Accordingly, Hidalgo EMS’s criticisms of Dr. Harlass’s report may be

properly addressed at trial.     His supposed failure to address Hidalgo EMS’s

specific, particular points in his report do not render his otherwise sufficient report,

insufficient. Thus, to the extent the trial court found his report insufficient, it

abused its discretion.




                                          10
                                     PRAYER

      Appellants pray that this Court reverse the trial court’s dismissal and remand

this case for further proceedings.

                                 Respectfully submitted,

                                 WEST, WEBB, ALLBRITTON & GENTRY, P.C.
                                 1515 Emerald Plaza
                                 College Station, Texas 77845-1515
                                 Telephone: (979) 694-7000
                                 Facsimile: (979) 694-8000

                                 By: /s Gaines West
                                 Gaines West
                                 State Bar No. 21197500
                                 gaines.west@westwebblaw.com
                                 Jennifer D. Jasper
                                 State Bar No.: 24027026
                                 E-mail: jennifer.jasper@westwebblaw.com
                                 Donald Delgado
                                 State Bar No. 24065139
                                 donald.delgado@westwebblaw.com

                                 COUNSEL FOR APPELLANTS




                                         11
                      CERTIFICATE OF COMPLIANCE

      I certify that this Reply BRIEF OF APPELLANTS complies with the typeface
and word-count requirement set forth in the Rules of Appellate Procedure. This
motion has been prepared, using Microsoft Word, in 14-point Times New Roman
font for the text and 12-point Times New Roman font for any footnotes. This
motion contains 2282 words, as determined by the word count feature of the word
processing program used to prepare this document, excluding those portions of the
notice exempted by TEX. R. APP. P. 9.4(i)(1).


                                              /s Gaines West
                                              Gaines West


                         CERTIFICATE OF SERVICE

       On July 6, 2015, the undersigned certifies that he served a copy of this Reply
Brief of Appellants on the following in the manner listed below, in compliance
with Texas Rules of Appellate Procedure 9.5 and 25.1(e):

Nichole G. Andrews                             Via Facsimile ~ 713.452.4499
Christopher Knudsen                            ECF Email
Margaret Garib                                 nandrews@serpejones.com
Serpe, Jones, Andrews, Collender & Bell        cknudsen@serpejones.com
2929 Allen Parkway, Suite 1600                 mgarib@serpejones.com
Houston, Texas 77019

Jeffrey D. Roerig                              Via Facsimile ~ 956.542.0016
David M. Roerig                                And ECF Email
Roerig, Oliverira & Fisher, LLP                ruthm@rofllp.com
855 West Price Road, Suite 9                   jroerig@rofllp.com
Brownsville, Texas 78520-8786

                                              /s Gaines West
                                              Gaines West




                                         12
CASES AND STATUTES
Christus Spohn Health System Corp. v. Castro, Not Reported in S.W.3d (2013)
2013 WL 6576041


                                                                       On or about October 24, 2011, 50–year–old Jose Castro
                  2013 WL 6576041                                      was in a serious car accident. He was a belted passenger
    Only the Westlaw citation is currently available.                  in a Ford F–150 crew cab. The truck rolled and the roof
                                                                       crushed, causing severe injuries to Mr. Castro. Mr. Castro
          SEE TX R RAP RULE 47.2 FOR
                                                                       was transported via helicopter to the emergency room at
    DESIGNATION AND SIGNING OF OPINIONS.
                                                                       Christus Spohn Hospital in critical condition. Mr. Castro
             MEMORANDUM OPINION                                        sustained severe injuries including, but not limited to,
              Court of Appeals of Texas,                               fracture and dislocation of his cervical spine at C5–C6,
              Corpus Christi–Edinburg.                                 multiple rib fractures, a collapsed lung, and damage to his
                                                                       right phrenic nerve. He remained in intensive care through
             CHRISTUS SPOHN HEALTH                                     most of December 2011. Mr. Castro had no sensation or
          SYSTEM CORPORATION, Appellant,                               movement below the nipple line, putting him at high risk
                        v.                                             of skin breakdown.
               Jose CASTRO, Appellee.
                                                                       In November 2011, Mr. Castro developed a pressure ulcer
        No. 13–13–00302–CV.           |   Dec. 12, 2013.               on his tail bone. The cause was the use of the tangible
                                                                       property, the hospital bed. By the time Mr. Castro was
On appeal from the 117th District Court of Nueces County,              discharged from Christus Spohn Hospital in February
Texas. Sandra Watts, Judge.                                            2012, the pressure ulcer had progressed to a grade III
                                                                       decubitus ulcer....
Attorneys and Law Firms
                                                                       At all relevant times hereto, Mr. Castro was a patient of
Lori W. Hanson, Beirne, Maynard & Parsons, LLP, San                    Christus Spohn Hospital.
Antonio, TX, for Appellant.
                                                                   Complaining of the pressure ulcer, in particular, Castro
Collen A. Clark, The Clark Firm, Dallas, TX, for Appellee.
                                                                   brought a health care liability claim against Spohn. 1 In that
Before Chief Justice VALDEZ and Justices RODRIGUEZ                 claim, Castro alleged that Spohn was negligent in: its use of
and GARZA.                                                         the hospital bed; its failure to develop and employ policies to
                                                                   oversee patients like Castro; its failure to train and supervise
                                                                   personnel to carry out such policies; its failure to render
               MEMORANDUM OPINION                                  appropriate medical and nursing intervention to Castro; its
                                                                   failure to provide adequate nutritional support to Castro; its
Memorandum Opinion by Justice RODRIGUEZ.                           failure to plan for and protect Castro from bedsores and
                                                                   ulcers; its failure to follow Castro's doctors' orders; and
 *1 Appellant Christus Spohn Health System Corporation
                                                                   its failure to maintain the highest practical level of care
(Spohn) challenges the trial court's denial of its motion to
                                                                   for Castro. Castro alleged that this negligence proximately
dismiss appellee Jose Castro's health care liability claim.
                                                                   caused the injuries he suffered at Spohn.
SeeTEX. CIV. PRAC. & REM.CODE ANN. § 74.351(b)
(West 2011). By two issues, Spohn argues that: (1) Castro's
                                                                   1        In this same lawsuit, Castro has also alleged causes
experts were not qualified to opine on the specific area of
                                                                            of action against the driver of the truck for negligence
health care involved in this suit; and (2) Castro's reports were
                                                                            and against Ford Motor Company for products liability.
contradictory and conclusory and were therefore “no reports”
                                                                            Neither of those causes of action are before us in this
under the law. See id. § 74.351(l ), (r)(6). We reverse and
                                                                            accelerated, interlocutory appeal.
remand.
                                                                   In support of his health care liability claim, Castro timely
                                                                   filed two expert reports—one authored by Donna du Bois,
                                                                   MPH, RN and another authored by Perry Starer, M.D. Both
                       I. Background                               du Bois and Dr. Starer are geriatric specialists with extensive
                                                                   experience in caring for pressure ulcers in hospital and
Castro alleged the following facts in his petition:
                                                                   nursing home settings. Spohn objected to both expert reports,


                © 2015 Thomson Reuters. No claim to original U.S. Government Works.                                                    1
Christus Spohn Health System Corp. v. Castro, Not Reported in S.W.3d (2013)
2013 WL 6576041

arguing that neither du Bois nor Dr. Starer was qualified           comply with the definition of an expert report in Subsection
to offer opinions as to the conditions under which Castro           (r)(6).”Id. § 74.351(l ); see Loaisiga v. Cerda, 379 S.W.3d
suffered his injuries, i.e., the development of a pressure ulcer    248, 260 (Tex.2012). To qualify as an objective good faith
in trauma care conditions while Castro was simultaneously           effort, the report must (1) inform the defendant of the specific
suffering from quadriplegia, diabetes, bacterial infections,        conduct the plaintiff complains of, and (2) provide a basis
and respiratory distress. Spohn also filed motions to dismiss       for the trial court to conclude that the plaintiff's claims have
Castro's health care liability claim, arguing that Castro's         merit. Scoresby v. Santillan, 346 S.W.3d 546, 556 (Tex.2011)
reports are “no reports” and the claim should therefore be          (citing Palacios, 46 S.W.3d at 879). The report and/or its
dismissed because neither du Bois nor Dr. Starer is qualified       accompanying curriculum vitae (CV) must also establish
and the reports are contradictory and conclusory. After a           that the report's author is qualified to opine as an expert
hearing, the trial court denied Spohn's objections and motions      on the subject matter of the report.Leland v. Brandal, 217
to dismiss. This accelerated, interlocutory appeal followed.        S.W.3d 60, 62 (Tex.App.-San Antonio 2006), aff'd on other
See id. § 51.014(a)(9) (West Supp.2011).                            grounds,257 S.W.3d 204 (Tex.2008). Those qualifications
                                                                    must appear within the four corners of the expert report
                                                                    and cannot be inferred. Id.; see also Palacios, 46 S.W.3d
                                                                    at 878; Baylor Coll. of Med. v. Pokluda, 283 S.W.3d 110,
                   II. Standard of Review
                                                                    117 (Tex.App.-Houston [14th Dist.] 2009, no pet.). To meet
 *2 We review a trial court's decision with respect to              the “good faith effort” requirement, “[n]o particular words or
expert reports and the qualifications of experts for an abuse       formality are required, but bare conclusions will not suffice.
of discretion. Larson v. Downing, 197 S.W.3d 303, 304–              The report must address all the elements, and omissions
05 (Tex.2006); Jernigan v. Langley, 195 S.W.3d 91, 93               may not be supplied by inference.”Scoresby, 346 S.W.3d
(Tex.2006); Am. Transitional Care Ctrs. of Tex., Inc. v.            at 556 (citations omitted).“The purpose of the expert report
Palacios, 46 S.W.3d 873, 876 (Tex.2001). The trial court            requirement is to deter frivolous claims, not to dispose of
abuses its discretion if it acts unreasonably or arbitrarily or     claims regardless of their merits.”Id. at 554 (citation omitted).
without reference to any guiding rules or principles. Walker
v. Gutierrez, 111 S.W.3d 56, 62 (Tex.2003).                         A report meets the minimum qualifications for an expert
                                                                    report under the statute “if it contains the opinion of an
                                                                    individual with expertise that the claim has merit, and if the
                                                                    defendant's conduct is implicated.”Id. at 557.If a report meets
                     III. Applicable Law                            these qualifications but is deficient, the claimant is entitled to
                                                                    one thirty-day extension to cure the deficiencies. TEX. CIV.
Under Chapter 74, an expert report is defined as:
                                                                    PRAC. & REM.CODE ANN. § 74.351(c).“All deficiencies,
             a written report by an expert that                     whether in the expert's opinions or qualifications, are subject
             provides a fair summary of the expert's                to being cured before an appeal may be taken from the trial
             opinions as of the date of the report                  court's refusal to dismiss the case.”Scoresby, 346 S.W.3d at
             regarding applicable standards of care,                557;see also Leland, 257 S.W.3d at 207–08 (holding that
             the manner in which the care rendered                  when elements of a timely filed expert report are found
             by the physician or health care                        deficient, either by the trial court or on appeal, one thirty-day
             provider failed to meet the standards,                 extension to cure the report may be granted).
             and the causal relationship between
             that failure and the injury, harm, or
             damages claimed.
                                                                                    IV. Qualifications of Experts
TEX. CIV. PRAC. & REM.CODE ANN. § 74.351(r)(6).                      *3 By its first issue, Spohn contends that because the care
When a document purporting to be an expert report is timely         provided to Castro by the hospital was under intensive care
served and is properly challenged, as is the case here, the trial   unit (ICU) or trauma conditions, his development of pressure
court “shall grant [the] motion challenging the adequacy of         ulcers must be addressed in the context of those conditions.
[the] report only if it appears to the court, after hearing, that   And because neither du Bois nor Dr. Starer practice in the
the report does not represent an objective good faith effort to



                © 2015 Thomson Reuters. No claim to original U.S. Government Works.                                                2
Christus Spohn Health System Corp. v. Castro, Not Reported in S.W.3d (2013)
2013 WL 6576041

field of ICU/trauma care, Spohn argues that they are not           treatment of pressure ulcers to both physicians and nurses.
qualified to author expert reports in this case.                   Finally, Dr. Starer states:

To be qualified to provide opinion testimony on whether                        In the regular course of my medical
a health care provider departed from the accepted standard                     practice, I have occasion to diagnose
of care, an expert must satisfy section 74.402. SeeTEX.                        and treat patients with conditions
CIV. PRAC. & REM.CODE ANN. § 74.351(r)(5)(B).Section                           substantially similar to or identical
74.402 lists three specific qualifications an expert witness                   with those of Jose Castro, including
must possess to provide opinion testimony on how a health                      mobility limitations. I have also served
care provider departed from accepted standards of health care                  as a primary care physician for
—the expert must:                                                              hospital and nursing home patients
                                                                               since 1985. Over the course of my
  (1) [be] practicing health care in a field of practice that                  career, I have been the primary care
     involves the same type of care or treatment as that                       physician for more than 5,000 patients
     delivered by the defendant health care provider, if the                   in hospitals and nursing homes. Many
     defendant health care provider is an individual, at the                   of those patients have struggled with
     time the testimony is given or was practicing that type                   disabilities similar to those Jose
     of health care at the time the claim arose;                               Castro experienced. Accordingly, I
                                                                               have cared for and treated numerous
  (2) [have] knowledge of accepted standards of care for                       patients who, like Jose Castro, were
     health care providers for the diagnosis, care, or treatment               at risk for development of pressure
     of the illness, injury, or condition involved in the claim;               ulcers.
     and
                                                                    *4 In their reports and CVs, neither du Bois nor Dr. Starer
  (3) [be] qualified on the basis of training or experience        states that they have experience preventing and treating
     to offer an expert opinion regarding those accepted           bedsores in the context of ICU or trauma care or explains how
     standards of health care.                                     their fields of practice involve the same type of ICU/trauma
                                                                   care Spohn provided to Castro.
Id.§ 74.402(b) (West 2011).

                                                                   Spohn does not dispute that du Bois is an expert in the
A plaintiff offering expert medical testimony must establish
                                                                   field of nursing home care and Dr. Starer is an expert in the
that the report's author has expertise regarding “the specific
                                                                   field of geriatrics and nursing home care, or that these fields
issue before the court which would qualify the expert to give
                                                                   regularly involve the prevention and treatment of pressure
an opinion on that particular subject.”Broders v. Heise, 924
                                                                   ulcers. Rather, Spohn argues that neither expert is practicing
S.W.2d 148, 153 (Tex.1996). Our analysis of the proffered
                                                                   or has otherwise relevant experience in ICU/trauma care,
expert's qualifications focuses on “the very matter” on which
                                                                   which is the relevant field of practice in this case. We agree.
the expert is to give an opinion. Id.
                                                                   In his petition, Castro alleges that he remained in Spohn's
                                                                   trauma unit and ICU from October 24, 2011 through most of
Here, du Bois's CV shows that she has over thirty years'
                                                                   December 2011 as a result of the severe injuries he sustained
experience as a nurse, primarily in the field of nursing home
                                                                   in the car accident, including a collapsed lung, multiple
care and other long-term facility care. In her report, du Bois
                                                                   broken ribs, and a fractured and dislocated spine. In their
stated that she is familiar with the standard of care for the
                                                                   descriptions of Castro's conditions, both du Bois and Dr.
“prevention of pressure ulcers... expected by ordinary prudent
                                                                   Starer acknowledge these serious injuries and that Castro was
nurses in Texas.”In his report, Dr. Starer states that he is “a
                                                                   being cared for under intensive care or trauma conditions.
practicing physician licensed by the State of New York.”Dr.
                                                                   Castro then alleges that his pressure ulcer developed in
Starer states that he has been “board certified in Internal
                                                                   November 2011, which is while he was in the ICU. In short,
Medicine and Geriatrics” since 1985. Dr. Starer states that
                                                                   under the facts alleged in his own petition, it is clear that
he teaches in the field of geriatrics at Mount Sinai School
                                                                   the care provided to Castro by Spohn was trauma and ICU
of Medicine and has given lectures on the prevention and
                                                                   care. Castro's pressure ulcer developed in this context, and
                                                                   his experts must be qualified to opine on his injury in the


               © 2015 Thomson Reuters. No claim to original U.S. Government Works.                                             3
Christus Spohn Health System Corp. v. Castro, Not Reported in S.W.3d (2013)
2013 WL 6576041

context of these conditions. Examining only what is within            is not without limits. See Walker, 111 S.W.3d at 62 (holding
the four-corners of the experts' reports and CVs, see Palacios,       that a court abuses its discretion if it acts without reference to
46 S.W.3d at 878; Pokluda, 283 S.W.3d at 117, we find                 guiding rules and principles). Castro was required to submit
nothing in either du Bois or Dr. Starer's reports that meets this     reports authored by experts who are “practicing health care
requirement.                                                          in a field of practice that involves the same type of care
                                                                      or treatment as that delivered by the defendant health care
Castro argues that Spohn's characterization of the relevant           provider,” have “knowledge of accepted standards of care ...
field of practice in this case sets the bar too high, that            for the diagnosis, care, or treatment of the illness, injury,
Spohn is essentially requiring Castro to find a specialist in         or condition involved in the claim,” and are “qualified on
the treatment of “a 50–year–old quadriplegic with diabetes,           the basis of training or experience to offer an expert opinion
PEG tube feeding, with a tracheostomy [sic] and neurologic            regarding those accepted standards of health care.”SeeTEX.
deficits, with prior cardiac arrest and suffering from bacterial      CIV. PRAC. & REM.CODE ANN. § 74.402(b). Focusing on
infections.”This characterization overstates what is required         the specific issue before the trial court as alleged in Castro's
in this case. Although it is true that an expert need not be a        petition, see Broders, 924 S.W.2d at 153, we cannot conclude
practitioner in the same specialty as the defendant to qualify        that the information provided in du Bois and Dr. Starer's
as an expert, see Broders, 924 S.W.2d at 153, he or she               reports show them to be practicing in the relevant field of
is only competent if he or she has practical knowledge of             practice or show them to have any other relevant experience
what is usually and customarily done by a practitioner under          giving them knowledge of the standard of care for the specific
circumstances similar to those confronting the defendant. See         conditions in this case. SeeTEX. CIV. PRAC. & REM.CODE
Ehrlich v. Miles, 144 S.W.3d 620, 625 (Tex.App.-Fort Worth            ANN. § 74.402(b); Blan, 7 S.W.3d at 746. As such, the trial
2004, pet. denied). In other words, the proper inquiry in             court did not follow guiding rules and principles in denying
assessing an expert's qualifications to submit a report is not        Spohn's objections to the expert's qualifications and motion
his or her area of expertise but his or her familiarity with          to dismiss on this basis. Spohn's first issue is sustained.
the specific issues involved in the claim before the court.
See Blan v. Ali, 7 S.W.3d 741, 746 (Tex.App.-Houston [14th
Dist.] 1999, no pet.); see also Broders, 924 S.W.2d at 153.
                                                                                        IV. Sufficiency of Report
Here, as discussed above, Castro's petition includes facts
showing that the circumstances under which he developed               By its second issue, Spohn argues that Castro's reports were
his pressure ulcer involved trauma and ICU treatment of his           contradictory and conclusory and are therefore “no report”
severe injuries following the accident. His expert must be            under the statute. SeeTEX. CIV. PRAC. & REM.CODE
qualified to render an opinion on the applicable standard             ANN. § 74.351(r)(6); Scoresby, 346 S.W.3d at 551–52.
of care in those circumstances—i.e., the prevention and/or
treatment of pressure ulcers in the context of ICU/trauma             First, Spohn argues that because du Bois and Dr. Starer
     2                                                                identified different conduct as breaches of the standard of
care. We are not persuaded by Castro's argument to the
contrary.                                                             care, their reports, taken together, are inherently inconsistent.
                                                                      See Fung v. Fischer, 365 S.W.3d 507, 530 (Tex.App.-Austin
2        We note that neither du Bois nor Dr. Starer's reports
                                                                      2012), overruled on other grounds, Certified EMS, Inc. v.
         foreclose the possibility that they are qualified in this    Potts, 392 S.W.3d 625 (Tex.2013) (“Reliable expert opinion
         case and may need only to connect the experience             should ... be free from internal inconsistencies.”). Spohn
         they have gained in their thirty-plus year careers to        contends that du Bois identified only two breaches in her
         the conditions in this case. See infra sections V, VI        report: that the nurses caring for Castro failed to make
         (remanding for entry of an order granting Castro a thirty-   accurate records and failed to create an appropriate treatment
         day extension to amend his reports). During his thirty-      plan for the prevention of pressure ulcers. Spohn contends
         day extension, see id., Castro is also entitled to serve     that Dr. Starer likewise identified only two breaches of care
         the reports of additional experts. See In re Buster, 275     in his report: the nurses' failure to correctly use Castro's bed
         S.W.3d 475, 477 (Tex.2008).                                  and failure to turn Castro more frequently. In our review of
 *5 While “[t]he qualification of a witness as an expert is [a        du Bois's report, we found that she also identified as breaches
matter] within the trial court's discretion,”Larson, 197 S.W.3d       of the standard of care that the nurses caring for Castro
at 304 (citing Broders, 924 S.W.2d at 151), such discretion           failed to reposition Castro as needed, failed to assess his skin



                 © 2015 Thomson Reuters. No claim to original U.S. Government Works.                                                 4
Christus Spohn Health System Corp. v. Castro, Not Reported in S.W.3d (2013)
2013 WL 6576041

after each turn, and failed to properly assess and provide for
Castro's nutritional needs. And again, in our review of Dr.       Finally, Spohn argues that the reports do not adequately
Starer's report, we found that he also identified as breaches     establish causation because they do not “explain how taking
of the standard of care that the Spohn staff caring for Castro    any particular action would have prevented the development
“failed to properly develop a care plan for ulcer prevention”     of a pressure ulcer given the complex medical issues involved
and “failed to maintain an accurate and complete clinical         in [Castro]'s care.” Spohn argues that “[w]ithout addressing
record.”In light of the full range of conduct identified by       [these] critical issues, it is impossible to know if [Castro]'s
du Bois and Dr. Starer, we disagree with Spohn that the           pressure ulcer could have been prevented.” On this account,
breaches identified in the separate reports are contradictory;    we agree with Spohn. Although du Bois and Dr. Starer's
for that matter, having examined the reports in their entirety,   reports go into great detail about the procedures necessary
we note that du Bois and Dr. Starer identified largely the same   to prevent pressure ulcers in standard conditions, they do
breaches.                                                         not address the specific conditions present in Castro's care.
                                                                  As discussed in detail above, Castro's claim involves his
 *6 But assuming for the sake of argument that the breaches       development of a pressure ulcer while he was being treated
in the reports are limited to those identified by Spohn,          in Spohn's ICU over the course of several months for severe
we believe that Dr. Starer's report identified additional         injuries he suffered in an automobile accident. Neither du
instances of conduct that breached the standard of care. Read     Bois nor Dr. Starer discusses Castro's injuries in the context
together in the manner in which they are characterized by         of these conditions. And the omission of this context renders
Spohn, the reports are not contradictory, but provide a more      any conclusion on the cause of Castro's injuries incomplete.
complete picture of the instances of conduct giving rise to       Because Castro's reports do not adequately address the
Castro's claim. SeeTEX. CIV. PRAC. & REM.CODE ANN. §              causation element, they did not provide a basis for the
74.351(i) (“Nothing in this section shall be construed to mean    trial court to conclude that Castro's claims have merit. See
that a single expert must address all liability and causation     Palacios, 46 S.W.3d at 879. The reports therefore do not
issues with respect to all physicians or health care providers    amount to a good faith effort to comply with the statute and
or with respect to both liability and causation issues for        are deficient. See Scoresby, 346 S.W.3d at 556 (requiring that
a physician or health care provider.”). Thus, we are not          the report adequately address all the elements to qualify as
persuaded by Spohn's argument in this regard, and the trial       a good-faith effort). The trial court abused its discretion in
court did not abuse its discretion in denying Spohn's motion      denying Spohn's objections and motions to dismiss on this
to dismiss on this basis. Spohn's second issue is overruled in    basis. See Walker, 111 S.W.3d at 62. Spohn's second issue is
so far as it depends on this argument.                            sustained as to its causation argument.

Spohn next argues that du Bois's report, in particular, did no
more than “state that nurses failed to keep accurate records
                                                                                   V. Thirty–Day Extension
or to implement appropriate plans of care.”Spohn argues
that du Bois was required to “state what documentation             *7 Although Castro's expert reports are deficient in that
was inaccurate, what documentation was lacking, on what           they do not establish the authors' qualifications and do not
dates it was wrong or missing and who was responsible             adequately address causation, we do not believe the reports
for that charting.”But du Bois's report includes the exact        are fatally deficient, or “no report” under the statute. Both
elements that Spohn claims are required. Du Bois refers to        meet the minimum qualifications set out in Scoresby—both
specific medical record dates and page numbers throughout         du Bois and Dr. Starer are individuals with expertise who
her report and specifically identifies what she characterizes     opine about Castro's injuries in great detail and implicate the
as the deficiencies in those records. Where du Bois points        conduct of Spohn's staff. See346 S.W.3d at 557. Because
out that certain details are missing from the records, she        Castro met these minimum qualifications, he is entitled to one
does not specify page numbers, but as she is pointing to          thirty-day extension to cure the deficiencies in his reports.
the absence of something, we cannot fault her for failing to      SeeTEX. CIV. PRAC. & REM.CODE ANN. § 74.351(c);
specify where that missing detail is not located. In short, we    see also Scoresby, 346 S.W.3d at 557 (holding that all
are not persuaded by Spohn's generalized assertions in this       deficiencies, whether in an expert's opinion or qualifications,
regard. Again, Spohn's second issue is overruled in so far as     are subject to being cured). This disposition is consistent with
it depends on this argument.                                      the goal of the statute, which is to deter frivolous claims but



               © 2015 Thomson Reuters. No claim to original U.S. Government Works.                                             5
Christus Spohn Health System Corp. v. Castro, Not Reported in S.W.3d (2013)
2013 WL 6576041

                                                                      a thirty-day extension to amend his expert reports. SeeTEX.
not dispose of claims regardless of their merits. See Scoresby,
                                                                      CIV. PRAC. & REM.CODE ANN. § 74.351(c).
346 S.W.3d at 554.


                                                                      All Citations
                       VI. Conclusion
                                                                      Not Reported in S.W.3d, 2013 WL 6576041
We reverse the order of the trial court denying Spohn's motion
to dismiss and remand for entry of an order granting Castro

End of Document                                                   © 2015 Thomson Reuters. No claim to original U.S. Government Works.




               © 2015 Thomson Reuters. No claim to original U.S. Government Works.                                                 6
Columbia North Hills Hosp. Subsidiary, L.P. v. Alvarez, Not Reported in S.W.3d (2011)
2011 WL 3211239

                                                                and as Next Friend of Saray Alavarez and Marilyn Alvarez,
                                                                Minors, and Sandy Alvarez, Individually. We withdraw our
                   2011 WL 3211239
                                                                opinion and judgment dated April 7, 2011, and substitute the
     Only the Westlaw citation is currently available.
                                                                following.
           SEE TX R RAP RULE 47.2 FOR
     DESIGNATION AND SIGNING OF OPINIONS.                       After due consideration, we deny North Hills Hospital's
                                                                motion for rehearing and motion for en banc reconsideration.
    MEMORANDUM OPINION ON REHEARING                             We grant Appellees' motion for rehearing to the extent
           Court of Appeals of Texas,                           that we modify our opinion to permit the trial court on
                  Fort Worth.                                   remand to determine whether to grant a thirty-day extension
                                                                to Appellees to cure the deficiencies in the expert report
              COLUMBIA NORTH HILLS
                                                                regarding Appellees' pleaded direct liability claims.
          HOSPITAL SUBSIDIARY, L.P., d/
          b/a North Hills Hospital, Appellant.
                           v.
                                                                                   I. INTRODUCTION
        Bulmaro ALVAREZ, Individually and as
         Representative of the Estate of Sandra                 Appellant Columbia North Hills Hospital Subsidiary, L.P.,
        Alvarez, Deceased and as Next Friend of                 d/b/a North Hills Hospital appeals from the trial court's
       Saray Alvarez and Marilyn Alvarez, Minors,               order denying its motion to dismiss the health care liability
       and Sandy Alvarez, Individually, Appellees.              claims asserted against it by Appellees Bulmaro Alvarez,
                                                                Individually and as Representative of the Estate of Sandra
        No. 02–10–00342–CV.         |   July 28, 2011.          Alvarez, Deceased and as Next Friend of Saray Alavarez and
                                                                Marilyn Alvarez, Minors, and Sandy Alvarez, Individually.
From the 96th District Court of Tarrant County, Jeff Walker,    In three issues, North Hills Hospital complains that although
Judge.                                                          Appellees timely served and timely amended the expert report
                                                                of Samuel A. Tyuluman, M.D., the trial court nonetheless
Attorneys and Law Firms
                                                                abused its discretion by refusing to dismiss the claims against
Linda M. Stimmel, Nichol L. Bunn, Wilson, Elser,                North Hills Hospital because Dr. Tyuluman was not qualified
Moskowitz, Edelman & Dicker, LLP, Dallas, TX, for               to offer the opinions he did; because Dr. Tyuluman's report
appellant.                                                      fails to set forth a standard of care, breach, or causation
                                                                relating to North Hills Hospital; and generally because the
Les Weisbrod, Max Freeman, & Lawrence R. Lassiter, Miller       trial court did not dismiss Appellees' claims. Because the
Weisbrod, LLP, Dallas, TX, for appellees.                       record before us reflects no abuse of discretion by the trial
                                                                court concerning Appellees' vicarious liability claims against
Panel LIVINGSTON, C.J.; GARDNER and WALKER, JJ.
                                                                North Hills Hospital, we will affirm the portion of the trial
                                                                court's order refusing to dismiss those claims. But because Dr.
                                                                Tyuluman's report does not demonstrate that he is qualified
    MEMORANDUM OPINION 1 ON REHEARING                           to offer an opinion concerning the direct liability causes of
                                                                action that Appellees pleaded against North Hills Hospital,
1       SeeTex.R.App. P. 47.4.                                  we will reverse the portion of the trial court's order denying
                                                                North Hills Hospital's motion to dismiss those claims.
SUE WALKER, Justice.

 *1 On April 7, 2011, this court issued an opinion affirming
in part and reversing in part the trial court's order denying    II. FACTUAL AND PROCEDURAL BACKGROUND
Appellant Columbia North Hills Hospital Subsidiary, L.P.'s
                                                                Forty-five-year-old Sandy Alvarez died at North Hills
motion to dismiss the health care liability claims asserted
                                                                Hospital after a vaginal hysterectomy was performed on
against it by Appellees Bulmaro Alvarez, Individually and
                                                                her. Following the surgery, Mrs. Alvarez was transferred to
as Representative of the Estate of Sandra Alvarez, Deceased
                                                                the recovery room where she experienced difficulties. She



                © 2015 Thomson Reuters. No claim to original U.S. Government Works.                                         1
Columbia North Hills Hosp. Subsidiary, L.P. v. Alvarez, Not Reported in S.W.3d (2011)
2011 WL 3211239

was eventually diagnosed as suffering from hemorrhagic            2      All subsequent references to Dr. Tyuluman's report are
shock and returned to the operating room for surgical repair             to his amended report.
of the source of her internal bleeding. Mrs. Alvarez died
approximately five hours after her second surgery. Mrs.
Alvarez's autopsy report indicates that she died as a result of                 III. STANDARD OF REVIEW
“(1) complications of acute hemorrhagic shock due to post-
operative bleed and (2) morbid obesity with hepatomegaly,         We review a trial court's denial of a motion to dismiss
severe fatty metamorphosis and early fibrosis.”                   for an abuse of discretion. Jernigan v. Langley, 195
                                                                  S.W.3d 91, 93 (Tex.2006); Maris v. Hendricks, 262 S.W.3d
 *2 Appellees filed suit against North Hills Hospital             379, 383 (Tex.App.-Fort Worth 2008, pet. denied); Ctr.
alleging both vicarious liability and direct liability theories   for Neurological Disorders, P.A. v. George, 261 S.W.3d
of recovery. Appellees alleged that North Hills Hospital          285, 290–91 (Tex.App.-Fort Worth 2008, pet. denied). To
was vicariously liable for its nurses' negligence and alleged     determine whether a trial court abused its discretion, we
various acts and omissions by the North Hills Hospital            must decide whether the trial court acted without reference
nursing staff, including the failure to invoke the chain of       to any guiding rules or principles; in other words, we must
command. Appellees alleged that North Hills Hospital was          decide whether the act was arbitrary or unreasonable. Downer
directly liable for failing to adequately train its nurses,       v. Aquamarine Operators, Inc., 701 S.W.2d 238, 241–42
failing to enforce its policies and procedures, and failing to    (Tex.1985), cert. denied,476 U.S. 1159, 106 S.Ct. 2279, 90
adequately supervise its nurses. Appellees timely served on       L.Ed.2d 721 (1986). Merely because a trial court may decide
North Hills Hospital the report and curriculum vitae of Dr.       a matter within its discretion in a different manner than an
Tyuluman. North Hills Hospital filed a motion to dismiss          appellate court would in a similar circumstance does not
alleging that Dr. Tyuluman was not qualified to testify on the    demonstrate that an abuse of discretion has occurred.Id. But
standard of care applicable to a hospital and alleging various    a trial court has no discretion in determining what the law
deficiencies in Dr. Tyuluman's report. After a hearing, the       is or in applying the law to the facts, and thus “a clear
trial court ruled that                                            failure by the trial court to analyze or apply the law correctly
                                                                  will constitute an abuse of discretion.”Walker v. Packer, 827
            the expert reports submitted by                       S.W.2d 833, 840 (Tex.1992) (orig.proceeding); Ehrlich v.
            Plaintiffs constitute a good faith effort             Miles, 144 S.W.3d 620, 624 (Tex.App.-Fort Worth 2004, pet.
            and meet the requirements of Chapter                  denied).
            74 of the Civil Practice & Remedies
            Code, with the exception that Plaintiffs
            are required to submit an amended
                                                                               IV. STATUTORY STANDARDS
            report breaking out specifically by
                                                                                  FOR EXPERT REPORTS
            name each defendant and/or group of
            defendants and the specific elements                   *3 Chapter 74 requires a health care liability claimant to
            relating to the standard of care, breach              serve defendants with an expert report and curriculum vitae
            of the standard of care, and causation                within 120 days of filing the claim. SeeTex. Civ. Prac. &
            for each defendant.                                   Rem.Code Ann. § 74.351(a) (Vernon 2011). The purpose of
                                                                  the expert report requirement is to inform the defendant of the
The trial court gave Appellees thirty days to file the amended
                                                                  specific conduct the plaintiff has called into question and to
report; Appellees timely served an amended report of Dr.
                                                                  provide a basis for the trial court to conclude that the claims
Tyuluman. 2 North Hills Hospital then filed a second motion       have merit. Bowie Mem'l Hosp. v. Wright, 79 S.W.3d 48,
to dismiss again alleging that Dr. Tyuluman was not qualified     52 (Tex.2002) (citing Am. Transitional Care Ctrs. of Tex.,
and alleging the same deficiencies in his report. After a         Inc. v. Palacios, 46 S.W.3d 873, 878 (Tex.2001)). An expert
hearing, the trial court denied North Hills Hospital's second     report “need not marshal all the plaintiff's proof.”Palacios, 46
motion to dismiss, and North Hills Hospital perfected this        S.W.3d at 878 (construing former Texas Revised Civil Statute
appeal.                                                           article 4590i, section 13.01). Additionally, the information in
                                                                  the report “does not have to meet the same requirements as




               © 2015 Thomson Reuters. No claim to original U.S. Government Works.                                                2
Columbia North Hills Hosp. Subsidiary, L.P. v. Alvarez, Not Reported in S.W.3d (2011)
2011 WL 3211239

the evidence offered in a summary-judgment proceeding or          to offer an expert opinion regarding those accepted standards.
at trial.”Id. at 879.                                             The report states, in pertinent part,

If the defendant files a motion challenging the adequacy of                   Over the past 22 years, I have cared
the expert report, the court shall grant the motion “only if it               for patients just like Mrs. Alvarez
appears to the court, after hearing, that the report does not                 hundreds of times. I am familiar with
represent an objective good faith effort to comply with the                   the standard of care for such patients
definition of an expert report.”Tex. Civ. Prac. & Rem.Code                    based both on my personal experience
Ann. § 74.351(l ). The trial court may grant the claimant one                 and my decades in the profession.
thirty-day extension to cure a deficiency in the initial expert               As a function of my practice in
report. Id. § 74.351(c).                                                      obstetrics and gynecology, as well
                                                                              as the administrative positions noted
                                                                              above, I am familiar with not only
                                                                              standards of care as they apply to
              V. CHALLENGES TO DR.                                            gynecologists, but also as they apply to
           TYULUMAN'S QUALIFICATIONS                                          other physicians caring for patients in
                                                                              the post operative period following a
        A. Dr. Tyuluman is Qualified Concerning                               vaginal hysterectomy with a suspicion
         North Hills Hospital's Nurses' Conduct                               of post operative hemorrhage. The
                                                                              standard of care is to return the
Dr. Tyuluman's report demonstrates that he practices health                   patient in a situation such as this
care in a field of practice that involves the same type of care               case back to surgery to fix the bleed.
or treatment as that delivered by the nurses at North Hills                   This standard applies across lines of
Hospital. It states, in pertinent part,                                       specialty.... Further, I am familiar with
                                                                              the standards of care as they apply
            I practice obstetrics and gynecology                              to nurses and to the administration
            in Dallas, Texas and have been since                              of the department of gynecology
            1986. I am a Clinical Professor                                   from both a physician's point of
            of Obstetrics and Gynecology,                                     view and an administrator's. I work
            University of Texas Southwestern                                  with consulting physicians as well
            Medical School, Parkland Memorial                                 as recovery room and postoperative
            Hospital. I maintain board certification                          nurses and am familiar with their
            with the American Board Obstetrics                                training and standards as they apply
            and Gynecology. I am a Fellow of the
                                                                              to them. I am qualified to review this
            American College of Obstetrics and                                case from all of these perspectives. For
            Gynecology and the American College                               further details, please see a copy of my
            of Surgeons.... I was the Chairman                                CV, which is attached.
            of the Texas Health Resources,
            Presbyterian Hospital Dallas, Quality
                                                                   *4 In part of its first issue, North Hills Hospital claims
            Improvement Committee from 1998
                                                                  that the trial court abused its discretion by determining that
            until 2002. I served as an elected
                                                                  Dr. Tyuluman was qualified to render opinions concerning
            member of the Clinical Case Reviews
                                                                  post-operative nursing care or nurses invoking the chain of
            Committee (Advisory Committee) of
                                                                  command in a hospital setting. North Hills Hospital argues
            Margot Perot Hospital of Texas Health
                                                                  that because Dr. Tyuluman is not a nurse, he is not qualified
            Resources.
                                                                  to opine on the nursing standard of care. When a physician
Dr. Tyuluman's report demonstrates that he has knowledge          states that he is familiar with the standard of care for both
of the accepted standards of health care providers for the        nurses and physicians and for the prevention and treatment
condition at issue and by training or experience is qualified     of the illness, injury, or condition involved in the claim, the
                                                                  physician is qualified on the issue of whether the health care



               © 2015 Thomson Reuters. No claim to original U.S. Government Works.                                            3
Columbia North Hills Hosp. Subsidiary, L.P. v. Alvarez, Not Reported in S.W.3d (2011)
2011 WL 3211239

provider departed from the accepted standards of care for
health care providers. See Baylor Med. Ctr. at Waxachachie
                                                                          B. Dr. Tyuluman is Not Qualified Concerning
v. Wallace, 278 S.W.3d 552, 558 (Tex.App.-Dallas 2009, no
                                                                              North Hills Hospital's Direct Liability
pet.)(holding doctor expert's statement that he had worked
with nurses, nurse practitioners, physician's assistants, and        *5 In the balance of its first issue, North Hills Hospital
physicians, including emergency room physicians, and was            contends that the trial court abused its discretion by
familiar with the standards of care that applied to such health     determining that Dr. Tyuluman was qualified to render
care providers in similar situations, was sufficient to show        opinions concerning North Hills Hospital's direct liability.
expert was qualified to render opinion as to each type of           Appellees pleaded that North Hills Hospital was directly
health care provider); San Jacinto Methodist Hosp. v. Bennett,      liable for failing to adequately train its nurses, failing to
256 S.W.3d 806, 814 (Tex.App.-Houston [14th Dist.] 2008,            enforce its policies and procedures, and failing to adequately
no pet.)(holding doctor expert qualified to render opinion on       supervise its nurses. Looking only to the four corners of
nursing standard of care in field in which doctor practiced);       Dr. Tyuluman's report, we hold that it does not establish
see also Jorgensen v. Tex. MedClinic, 327 S.W.3d 285, 288–          that he has any familiarity, training, or experience that
89 (Tex.App.-San Antonio 2010, no pet.)(holding doctor              would allow him to opine as to the standard of care for
expert qualified to render opinion as to standard of care           a hospital in formulating training programs, formulating
for all health care providers concerning proper protocol for        or enforcing its policies and procedures, or supervising its
administration of flu vaccine because standard of care did not      nurses. See Hendrick Med. Ctr. v. Conger, 298 S.W.3d
vary among health care providers).                                  784, 788 (Tex. App–Eastland 2009, no pet.). As set forth
                                                                    above, Dr. Tyuluman is qualified to opine on the standard of
As quoted above, after setting forth his credentials and board      care applicable to recovery room nurses caring for a patient
certification in obstetrics and gynecology, Dr. Tyuluman's          like Mrs. Alvarez; but the standard of care applicable to
report indicates that he is familiar with the standard of care      a hospital in training its nurses, in enforcing its policies
for treating patients like Mrs. Alvarez, that he has cared          and procedures, and in supervising its nurses is an entirely
for hundreds of patients like her during the past twenty-two        separate standard. See generally Denton Reg'l Med. Ctr. v.
years, and that he is familiar with the standards of care for       LaCroix, 947 S.W.2d 941, 950–51 (Tex.App.-Fort Worth
recovery room and post-operative nurses caring for patients         1997, writ denied) (discussing theories of direct hospital
like Mrs. Alvarez through his experience working with               liability and applicable standard of care). Although Dr.
those nurses. Looking to the four corners of Dr. Tyuluman's         Tyuluman's report states that he has served as chairman of
report, we hold that it establishes that he is qualified to         a hospital quality improvement committee and a member
testify concerning North Hills Hospital's nurses' conduct in        of a clinical case review committee, nowhere in the report
the care of Mrs. Alvarez. SeeTex. Civ. Prac. & Rem.Code             does he state that as a result of this or other experience
Ann. § 74.402(b)(1), (2), (3) (Vernon 2011) (setting forth          he is familiar with the standard of care for a reasonable,
qualifications required for experts providing statutory report);    prudent hospital in training its nurses, in enforcing its
see also, e.g., Wallace, 278 S.W.3d at 558. We hold that            policies and procedures, and in supervising its nurses. The
the trial court did not abuse its discretion by determining         report does not indicate that, as a result of his committee
that Dr. Tyuluman was qualified to offer expert medical             service, Dr. Tyuluman gained experience in formulating,
opinions concerning Appellees' vicarious liability claims           implementing, or monitoring either hospital nurses' training
against North Hills Hospital for the alleged negligence of its      or enforcement of hospital policies and procedures or hospital
nurses, including negligence in failing to invoke the chain of      nurses' supervision. In short, looking only to the four corners
command. We overrule the portion of North Hills Hospital's          of Dr. Tyuluman's report, we hold that it does not establish
first issue contending that the trial court abused its discretion   that he is qualified to opine on these hospital standards of
by determining that Dr. Tyuluman was qualified to opine on          care. We sustain the portion of North Hills Hospital's first
the recovery room nursing standard of care applicable to a          issue contending that the trial court abused its discretion by
patient like Mrs. Alvarez.                                          determining that Dr. Tyuluman was qualified to opine on the
                                                                    standard of care applicable to a hospital in training its nurses,
                                                                    in enforcing its policies and procedures, and in supervising
                                                                    its nurses.




                © 2015 Thomson Reuters. No claim to original U.S. Government Works.                                               4
Columbia North Hills Hosp. Subsidiary, L.P. v. Alvarez, Not Reported in S.W.3d (2011)
2011 WL 3211239

In a subargument included in its second issue, North Hills           *6 In its second issue, North Hills Hospital challenges the
Hospital contends that Dr. Tyuluman's report does not               adequacy of Dr. Tyuluman's report as to specific statutory
provide a fair summary of how North Hills Hospital breached         elements. In its third issue, North Hills Hospital simply argues
the standard of care applicable to a hospital. Looking to           that the trial court generally abused its discretion by failing to
the four corners of Dr. Tyuluman's report, we hold that it          dismiss Appellees' health care liability claim with prejudice.
does not set forth what the standard of care is for North           North Hills Hospital argues its third issue together with its
Hills Hospital with respect to adequate training of its nurses,     second issue in its brief. North Hills Hospital's third issue
enforcement of its policies and procedures, or supervision          therefore presents only the same arguments and grounds for
of its nurses. Accord Reed v. Granbury Hosp. Corp., 117             reversal as presented in its second issue. We accordingly
S.W.3d 404, 409 (Tex.App.-Fort Worth 2003, no pet.). That           address issues two and three together.
is, Dr. Tyuluman's report does not state anywhere what the
standard of care is for a reasonable, prudent hospital in
training its nurses, in enforcing its policies and procedures,
                                                                            A. Nurses' Breach of the Standard of Care
and in supervising its nurses. 3 Accordingly, even if the four
corners of Dr. Tyuluman's report had established that he was        In part of its second and third issues, North Hills Hospital
qualified to opine on these standards of care applicable to a       contends that Dr. Tyuluman's report does not provide a fair
hospital, because his report does not set forth these standards     summary of how the nurses breached the applicable standard
of care, we alternatively hold that any determination by the        of post-operative nursing care.
trial court that Dr. Tyuluman's report adequately set forth
these standards of care constituted an abuse of discretion. 4       Dr. Tyuluman's report states, in pertinent part concerning the
                                                                    nurses' breach of the standard of care,
3      Dr. Tyuluman's report does state that “[t]he standard of                  The standard of care for North
       care required the hospital to have adequately trained and                 Hill[s] Hospital and its nursing
       qualified PACU and ICU nurses” and that “[t]he standard                   staff caring for a patient like Mrs.
       also required that the hospital have and enforce proper
                                                                                 Alvarez in the PACU and CCU
       chain of command policies.”But these statements are
                                                                                 is to recognize the emergent and
       very broad, general, and conclusory; they fall short of
                                                                                 critical post-operative bleed and to
       stating any standard of care as to what specific training
       or policies were required. See Bowie Mem'l Hosp., 79
                                                                                 fully invoke the chain of command
       S.W.3d at 53 (“A conclusory report does not meet                          to make sure she was returned
       the Act's requirements, because it does not satisfy the                   to surgery by Dr. Allen or some
       Palacios test.”).                                                         other surgeon in a timely fashion.
                                                                                 Additionally, North Hill[s] Hospital
4      Because we have held that Dr. Tyuluman's report does                      nurses were required, according to the
       not establish that he was qualified to opine on the
                                                                                 applicable standard of care, to properly
       hospital's standard of care on the direct liability claims
                                                                                 evaluate operative blood loss. The
       pleaded by Appellees and because we have alternatively
                                                                                 nursing staff of North Hill[s] Hospital
       held that, in any event, Dr. Tyuluman's report does
       not adequately state the standard of care applicable
                                                                                 was negligent when they grossly
       to a hospital concerning Appellees' pleaded theories                      underestimated operative blood loss,
       of direct liability, we need not address North Hills                      not accounting for approximately 4800
       Hospital's contention that Dr. Tyuluman's report does                     cc's. The nursing staff of North
       not adequately set forth causation concerning Appellees'                  Hill[s] Hospital was also negligent in
       direct liability theories of recovery. SeeTex.R.App. P.                   their post-operative management of
       47.1 (requiring appellate court to address in opinion only                Mrs. Alvarez, watching her decline
       issues necessary to disposition of appeal).                               throughout the day without effectively
                                                                                 utilizing the chain of command [ ]
                                                                                 to make sure that Dr. Allen or some
          VI. CHALLENGES TO ELEMENTS
                                                                                 other surgeon returned Mrs. Alvarez
          OF STATUTORY EXPERT REPORT
                                                                                 to surgery. The standard of care



               © 2015 Thomson Reuters. No claim to original U.S. Government Works.                                                 5
Columbia North Hills Hosp. Subsidiary, L.P. v. Alvarez, Not Reported in S.W.3d (2011)
2011 WL 3211239

             for the nursing staff requires that                                corrected, preventing further blood
             they both recognize and effectively                                loss. I have performed such surgeries
             communicate the emergency nature of                                to locate and repair injury following
             the situation and then, should Dr. Allen                           vaginal hysterectomy and know from
             not move quickly to surgery, go up                                 my experience the effectiveness of
             the chain of command. By 1900, the                                 such procedures. Had ordinary care
             Assistant CNO and Nurse Manager                                    been provided during the operative and
             were at the bedside. The standard                                  post operative period, in all medical
             of care required that the nursing                                  probability, Mrs. Alvarez would be
             staff insist on their involvement much                             alive today.
             earlier.
                                                                   Looking to the four corners of Dr. Tyuluman's report, we
As set forth above, Dr. Tyuluman's report specifically             hold that the trial court did not abuse its discretion by
identifies how North Hills Hospital's recovery room nurses         determining that the report adequately sets forth how the
breached the standard of care: they did not recognize the          nurses' negligence proximately caused Mrs. Alvarez's death.
emergent and critical post-operative bleed; they watched Mrs.      See Bowie Mem'l Hosp., 79 S.W.3d at 52. The fact that a
Alvarez decline throughout the day; they did not properly          trier of fact may ultimately reject Dr. Tyuluman's opinion
evaluate Mrs. Alvarez's blood loss; they failed to account for     regarding the nurses' causation—i.e., that the nurses failed
4800 cc's of lost blood; and they failed to invoke the chain       to properly monitor Mrs. Alvarez's blood loss, failed to
of command to get the Assistant CNO and Nurse Manager to           recognize her compromised status, and failed to invoke
come to Mrs. Alvarez's bedside much sooner.                        the chain of command, proximately causing Mrs. Alvarez's
                                                                   death—does not render the report insufficient. See Hayes v.
Looking to the four corners of Dr. Tyuluman's report, we hold      Carroll, 314 S.W.3d 494, 507 (Tex.App.-Austin 2010, no
that the trial court did not abuse its discretion by determining   pet.). The report sufficiently informs North Hills Hospital
that the report adequately sets forth how the recovery room,       of the specific conduct of its nurses that Appellees are
post-operative nurses breached the standards of care set forth     questioning and provides a basis for the trial court to
in the report. We overrule the portion of North Hills Hospital's   determine that Appellees' claims have merit. This is all
second and third issues contending otherwise.                      that is required of an expert report. See Leland v. Brandal,
                                                                   257 S.W.3d 204, 206–07 (Tex.2008) (explaining that expert
                                                                   report is meant to serve two purposes: (1) to inform the
                                                                   defendant of the specific conduct the claimant is questioning
       B. Causation Element of Nurses' Negligence
                                                                   and (2) to provide a basis for the trial court to conclude the
 *7 In the balance of its second and third issues, North Hills     claims have merit).
Hospital argues that Dr. Tyuluman's report fails to adequately
set forth how the nurses' negligence proximately caused Mrs.       We overrule the remainder of North Hills Hospital's second
Alvarez's death. Dr. Tyuluman's report provides,                   and third issues contending otherwise.

             The failure of all defendants to provide
             surgery to control the hemorrhage,
                                                                                        VII. CONCLUSION
             continuing to administer pressor
             agents when contraindicated, failure to               Having sustained the portion of North Hills Hospital's first
             properly monitor intraoperative blood                 issue claiming that the four corners of Dr. Tyuluman's report
             loss, and failure to recognize the                    does not establish that he was qualified to opine on the
             compromised status of the patient                     standard of care applicable to a hospital in training its nurses,
             during this process are proximate                     in enforcing its policies and procedures, and in supervising its
             cause of the death of [Mrs.] Alvarez.                 nurses, we reverse the trial court's September 13, 2010 order
             Had prompt surgery been performed, it                 to the extent that it failed to dismiss Appellees' direct liability
             is more likely than not that the injury               claims against North Hills Hospital for allegedly failing to
             would have been easily found and                      adequately train its nurses, failing to enforce its policies and



                © 2015 Thomson Reuters. No claim to original U.S. Government Works.                                                6
Columbia North Hills Hosp. Subsidiary, L.P. v. Alvarez, Not Reported in S.W.3d (2011)
2011 WL 3211239

                                                                     *8 Having overruled the balance of North Hills Hospital's
procedures, and failing to adequately supervise its nurses.
                                                                    first issue and its second and third issues and having held that
Because Appellees did not have an opportunity to amend this
                                                                    the trial court did not abuse its discretion by determining that
defect in Dr. Tyuluman's report—the trial court specifically
                                                                    Dr. Tyuluman was qualified to opine on the standard of care
directed the deficiency to be addressed during the thirty-day
                                                                    applicable to North Hills Hospital's recovery room nurses or
extension that it granted—and because the trial court has not
                                                                    by determining that Dr. Tyuluman's report adequately sets
had an opportunity to consider whether Appellees should be
                                                                    forth the nurses' breach of the standard of care and how that
granted an extension of time to cure the deficiency found
                                                                    breach proximately caused Mrs. Alvarez's death, we affirm
by this court to exist in Dr. Tyuluman's report concerning
                                                                    the trial court's September 13, 2010 order to the extent that
Appellees' pleaded direct liability claims, we remand those
                                                                    it denied North Hills Hospital's motion to dismiss Appellees'
claims to the trial court for a determination of whether to
dismiss them or to grant a thirty-day extension of time for         vicarious liability claims. 5
Appellees to cure the deficiencies found by this court in
Dr. Tyuluman's report regarding Appellees' pleaded direct           5       This court's November 30, 2010 order staying discovery
liability claims. See TTHR Ltd. P'ship v. Moreno, No. 02–                   in the trial court is lifted.
10–00334–CV, 2011 WL 2651813, at *12–14 (Tex.App.-Fort
Worth July 7, 2011, no pet. h.) (mem. op. on reh'g); Estorque       All Citations
v. Schafer, 302 S.W.3d 19, 25 (Tex.App.-Fort Worth 2009,
no pet.).                                                           Not Reported in S.W.3d, 2011 WL 3211239



End of Document                                                 © 2015 Thomson Reuters. No claim to original U.S. Government Works.




               © 2015 Thomson Reuters. No claim to original U.S. Government Works.                                                   7
Davis v. Webb, 246 S.W.3d 768 (2008)


                                                                          V.T.C.A., Civil Practices & Remedies Code §
                                                                          74.351(a).
                     246 S.W.3d 768
                 Court of Appeals of Texas,                               Cases that cite this headnote
                   Houston (14th Dist.).

               William DAVIS, Appellant,                            [2]   Appeal and Error
                          v.                                                 Abuse of Discretion
          John Q.A. WEBB, Jr., M.D., Appellee.                            An abuse of discretion occurs when a trial court
                                                                          acts in an unreasonable and arbitrary manner, or
            No. 14–07–00331–CV. | Jan. 22,                                when it acts without reference to any guiding
    2008.    | Rehearing Overruled Feb. 21, 2008.                         principles.

Synopsis                                                                  1 Cases that cite this headnote
Background: Patient who underwent cataract surgery
brought medical malpractice action against physician who
performed the surgery after fragments of lens nucleus were          [3]   Appeal and Error
allegedly left in patient's eye due to a small capsular tear.                Cases Triable in Appellate Court
The 215th District Court, Harris County, Levi James Benton,               Appeal and Error
J., granted ophthalmologist's motion to dismiss based on                     Conclusiveness in General
patient's failure to timely file an expert report. Patient                Court of Appeals defers to the trial court's factual
appealed.                                                                 determinations, but reviews questions of law de
                                                                          novo.

                                                                          2 Cases that cite this headnote
Holdings: The Court of Appeals, Eva M. Guzman, J., held
that
                                                                    [4]   Health
[1] optometrist was not qualified to give expert opinion                      Affidavits of Merit or Meritorious Defense;
regarding standard of care, and                                           Expert Affidavits
                                                                          Optometrist was not qualified to give expert
[2] trial court did not abuse its discretion by awarding attorney         opinion regarding standard of care in patient's
fees and cost to physician.                                               medical malpractice action against physician
                                                                          who specialized in ophthalmology and, thus, trial
                                                                          court did not abuse its discretion by dismissing
Affirmed.                                                                 case for failing to timely file expert report;
                                                                          optometrist was not a physician, and pursuant
Price, Senior Justice, concurred and filed a separate opinion.            to statute, only a physician could qualify as
                                                                          an expert witness on the issue of whether a
                                                                          physician departed from the standards of medical
 West Headnotes (5)                                                       care, patient did not show that his act of filing
                                                                          expert report authored by optometrist constituted
                                                                          good faith effort to comply with statute, and
 [1]     Appeal and Error                                                 nothing indicated that the report was curable
            Rulings on Motions Relating to Pleadings                      by a discretionary 30-day extension. V.T.C.A.,
         Court of Appeals applies an abuse of discretion                  Civil Practices & Remedies Code §§ 74.351(a,
         standard in reviewing a trial court's decision, in               c), 74.401(a).
         an action asserting a health care liability claim,
         on a motion to dismiss in which a defendant                      6 Cases that cite this headnote
         claims the expert opinion was untimely served.
                                                                    [5]   Costs


                © 2015 Thomson Reuters. No claim to original U.S. Government Works.                                              1
Davis v. Webb, 246 S.W.3d 768 (2008)


             On Dismissal, Nonsuit, Default, or                   left in Davis's eye due to a small capsular tear. Webb saw
        Settlement                                                Davis shortly after the surgery for post-operative treatment,
        Trial court did not abuse its discretion                  and it is Webb's post-operative treatment that Davis claims
        by awarding attorney fees and cost to                     fell below the acceptable standard of care. According to
        physician following dismissal of patient's                Davis's petition filed on October 6, 2006, Webb failed to: (a)
        medical malpractice action against physician for          perform a one-day postoperative assessment, (b) document
        failure to timely serve required expert report;           Davis's chief complaint, (c) assess all structures of the eye,
        dismissal of defendant's suit was appropriate.            (d) perform a dilated fundus assessment, and (e) provide
        V.T.C.A., Civil Practice & Remedies Code §                a treatment and management plan. He claims this alleged
        74.351(b)(1).                                             mistreatment caused

        5 Cases that cite this headnote                                       blurred vision, significant pain, and
                                                                              seeing rings for weeks.... Mr. Davis
                                                                              had to undergo numerous other
                                                                              surgeries, suffered from cystoid
                                                                              macular edema in his operative eye,
Attorneys and Law Firms
                                                                              and will continue to suffer a severe loss
*769 Jason Bradley Ostrom, Houston, for appellant.                            of visual acuity. Mr. Davis is now at
                                                                              risk for developing recurrent cystoid
T. Marc Calvert, Houston, for appellant.                                      macular edema, chronic inflammation,
                                                                              glaucoma, decompensation [of] which
Panel consists of Chief Justice HEDGES, Justice GUZMAN,
                                                                              could require a corneal transplant, and
and Justice FRANK C. PRICE. *                                                 retinal detachment.

*      Former Justice Frank C. Price sitting by assignment.
                                                                  Davis timely served an expert report on February 2, 2007. 1
                                                                  This report was authored by Anastis Pass, O.D., M.S., J.D.,
                                                                  FAAO, who is a doctor of optometry, but not a physician. 2
                  MAJORITY OPINION                                On February 23, 2007, Webb filed a motion to dismiss
                                                                  alleging that Davis failed to timely file an expert report
EVA M. GUZMAN, Justice.
                                                                  because Pass does not meet the statutory qualifications for an
In this medical malpractice case, we determine whether an         expert. 3 Webb also timely objected to the sufficiency of the
optometrist may generate an expert report concerning an
                                                                  report. 4 On March 27, 2007, the *771 trial court granted the
ophthalmologist's alleged departure from accepted standards
                                                                  motion and subsequently rendered final judgment on August
of medical care. Because *770 an ophthalmologist is a
                                                                  6, 2007, awarding attorneys' fees and costs to Webb. This
physician and an optometrist is not, and only a physician
                                                                  appeal followed.
is qualified to author an expert report regarding whether
a physician departed from accepted standards of medical
                                                                  1      The version of section 74.351(a) applicable to this suit
care, we affirm the trial court's dismissal of this lawsuit. We
                                                                         required an expert report in a health care liability claim
further conclude that the trial court properly awarded appellee
                                                                         to be served 120 days from the date the claim was filed.
attorneys' fees and costs. We therefore affirm the judgment
                                                                         See Act of June 2, 2003, 78th Leg., R.S., ch. 204, §§
of the trial court.
                                                                         10.01, 10.09, 23.02(a), (d), 2003 Tex. Gen. Laws 847,
                                                                         864, 875, 884, 898–99, amended by Act of May 18,
                                                                         2005, 79th Leg., R.S., ch. 635, § 1, 2005 Tex. Gen.
    I. FACTUAL AND PROCEDURAL BACKGROUND                                 Laws 1590, 1590 (current version at TEX. CIV. PRAC.
                                                                         & REM.CODE ANN. § 74.351(a) (Vernon Supp.2007)).
On October 7, 2004, appellee John Q.A. Webb, Jr., M.D., a                The Legislature later amended section 74.351(a) to
physician specializing in ophthalmology, performed surgery               require a claimant to serve an expert report not later
to remove a cataract from appellant William Davis's left eye.            than the 120th day after the original petition is filed.
                                                                         See Act of May 18, 2005, 79th Leg., R.S., ch. 635, §
During the surgery, fragments of lens nucleus were allegedly


               © 2015 Thomson Reuters. No claim to original U.S. Government Works.                                                    2
Davis v. Webb, 246 S.W.3d 768 (2008)


       1, 2005 Tex. Gen. Laws 1590, 1590 (current version at        challenging the adequacy of an expert report if it appears to
       TEX. CIV. PRAC. & REM.CODE ANN. § 74.351(a)                  the court, after hearing, that the report does not represent an
       (Vernon Supp.2007)). That amendment, however, does           objective good-faith effort to comply with the requirements
       not apply to this lawsuit. See Act of May 18, 2005, 79th     of an expert report as set forth in section 74.351(r)(6). Id. §
       Leg. R.S., ch. 635, § 2, 2005 Tex. Gen. Laws 1590, 1590
                                                                    74.351(l ).
       (providing that 2005 amendment of section 74.351(a)
       applies only to causes of action that accrued on or after
                                                                    Under subsection 74.351(r)(6), an “expert report” is defined
       amendment's effective date of September 1, 2005). Thus,
                                                                    as:
       Davis was required to serve his expert report(s), with
       curriculum vitae of each expert listed in the report(s),
                                                                                  a report by an expert that provides a
       by February 3, 2007. For simplicity's sake, references to
                                                                                  fair summary of the expert's opinions
       section 74.351(a) in the remainder of this opinion will be
       to the version applicable to this lawsuit.
                                                                                  as of the date of the report regarding
                                                                                  applicable standards of care, the
2      According to his curriculum vitae, Pass received his                       manner in which the care rendered
       doctoral degree in optometry from the Illinois College                     by the physician or health care
       of Optometry, his master's degree in physiological optics                  provider failed to meet the standards,
       from the University of Houston, and his juris doctorate                    and the causal relationship between
       from South Texas College of Law. Pass is also a Fellow
                                                                                  that failure and the injury, harm, or
       of the American Academy of Optometry.
                                                                                  damages claimed.
3      See TEX. CIV. PRAC. & REM.CODE ANN. §
       74.351(b) (Vernon Supp.2007).
                                                                    Id. § 74.351(r)(6). In turn, “expert” means, inter alia,:

4      See id. § 74.351(a).                                             with respect to a person giving opinion testimony regarding
                                                                        whether a physician departed from accepted standards
                                                                        of medical care, an expert qualified to testify under the
                 II. ISSUES PRESENTED                                   requirements of Section 74.401;

In his first issue, Davis asserts that the trial court erred in         with respect to a person giving opinion testimony regarding
dismissing his claim because the report prepared by Pass is             whether a health care provider departed from accepted
deficient but curable pursuant to subsection 74.351(c) of the           standards of health care, an expert qualified to testify under
Texas Civil Practice and Remedies Code. In his second issue,            the requirements of Section 74.402.
Davis contends that, because the report was deficient rather
than untimely or non-existent, the award of fees and costs          Id. § 74.351(r)(5)(A), (B) (emphasis added). Under section
based on dismissal must also be reversed.                           74.401, only a physician may qualify as an expert regarding
                                                                    whether a physician departed from accepted standards of
                                                                    medical care. Id. § 74.401(a). According to section 74.402,
                                                                    in contrast, in a suit involving a health care liability claim
                       III. ANALYSIS                                against a health care provider, another health care provider
                                                                    may qualify as an expert witness on the issue of whether the
A. Standard of Review
                                                                    health care provider departed from accepted standards of care.
Chapter 74 of the Texas Civil Practice and Remedies Code
                                                                    Id. § 74.402(b). Finally, under subsection 74.351(r)(5)(C),
(the “Code”) requires a health care liability claimant to serve
                                                                    only a physician may render opinions regarding causation in
providers with expert reports within 120 days of filing suit.
TEX. CIV. PRAC. & REM.CODE ANN. § 74.351(a). If                     an expert medical report. 5 Id. § 74.351(r)(5)(C).
the claimant fails to timely serve a report, the trial court
must grant the provider's motion to dismiss the claim, and          5        At oral argument, appellant's attorney acknowledged that
the failure to do so is subject to interlocutory appeal. Id. §§              an entirely new report authored by a physician would be
51.014(a)(9), 74.351(b) (Vernon Supp.2007). If a report is                   necessary to address causation.
timely served, but is deficient as to one or more elements, the      [1] [2] [3] We apply an abuse-of-discretion standard in
court may grant one 30–day extension to cure the deficiency.        reviewing a trial court's decision on a motion to dismiss
Id. § 74.351(c). But the trial court must grant a motion            in which a defendant claims the expert opinion was *772



               © 2015 Thomson Reuters. No claim to original U.S. Government Works.                                                      3
Davis v. Webb, 246 S.W.3d 768 (2008)


untimely served. Mokkala v. Mead, 178 S.W.3d 66, 70                  of the Code, rather than “no expert report.” 7 According
(Tex.App.-Houston [14th Dist.] 2005, pet. denied). An abuse          to Davis, section 74.402 of the Code should apply when
of discretion occurs when a trial court acts in an unreasonable      determining the statutory qualifications of an expert in
and arbitrary manner, or when it acts without reference to           this case because Davis's post-operative treatment, although
any guiding principles. Id. We defer to the trial court's factual    provided by a physician, could have been provided by an
determinations, but review questions of law de novo. 6 Id.           optometrist. As noted above, section 74.402 establishes the
Thus, to the extent resolution of the issue before the trial court   qualifications of an expert witness testifying on the issue
requires interpretation of the statute itself, we apply a de novo    of whether a health care provider departed from accepted
standard. Id.                                                        standards of care. TEX. CIV. PRAC. & REM.CODE ANN.
                                                                     § 74.402 (Vernon 2005). And Pass meets the statutory
6       Our sister court has cited Mokkala for the proposition       definition of a health care provider. See id. § 74.001(a)(12)
        that the standard of review under section 74.351 is abuse    (vi) (defining an optometrist as a “health care provider”).
        of discretion even when an appeal involves an issue of
        statutory interpretation. See Univ. of Tex. Health Sci.      7      We note that a trial court is not required to permit an
        Ctr. at Houston v. Gutierrez, 237 S.W.3d 869, 871                   extension when a report is deficient as to one or more
        n. 1 (Tex.App.-Houston [1st Dist.] 2007, no pet. h.);               elements; the statutory language leaves the determination
        Intracare Hosp. N. v. Campbell, 222 S.W.3d 790, 795                 of whether to permit an extension to the trial court's
        (Tex.App.-Houston [1st Dist.] 2007, no pet.). But in                discretion. See TEX. CIV. PRAC. & REM.CODE ANN.
        Mokkala, we specifically identified the de novo standard            § 74.351(c). Although the trial court stated in its
        of review as appropriate when resolving issues involving            dismissal order that it would have granted a 30–day
        statutory interpretation, contrary to our sister court's            extension had it found the report merely deficient, such
        interpretation of this case. Mokkala, 178 S.W.3d at 70.             language is mere surplusage and has no bearing on
                                                                            whether the trial court abused its discretion in dismissing
B. The Expert Report                                                        Davis's suit. See, e.g., Valley Mun. Util. Dist. No. 2
 [4] In his first issue, Davis contends the trial court erred in            v. Hild, 578 S.W.2d 827, 829 (Tex.Civ.App.-Houston
dismissing his claims rather than granting a 30–day extension               [1st Dist.] 1979, no writ) (stating that recitations in a
to cure any deficiencies in his report. In its order of dismissal,          dismissal order that do not constitute a judgment are mere
the trial court noted as follows:                                           surplusage).
                                                                     Webb responds that, because he is a physician, section
             The Court concludes that under the                      74.401 of the Code establishes the necessary qualifications
             facts of this case and the applicable                   for an expert providing an expert report regarding the care
             law, no “expert report” has been                        rendered by a physician. *773 As discussed supra, this
             served. Accordingly, the Court has                      section provides that only a physician may qualify as an
             no basis to reach the plaintiff's                       expert witness on the issue of whether a physician departed
             request for a 30–day extension to
                                                                     from accepted standards of medical care. 8 Id. § 74.401(a).
             cure any deficiency found in the
                                                                     The term “physician” is defined to include, as is relevant
             proffered report. In the event [the]
                                                                     here, those individuals licensed to practice medicine. Id. §
             reviewing court(s) disagree with the
                                                                     74.001(a)(23). An optometrist, on the other hand, is licensed
             conclusion that no “expert report”
                                                                     to practice optometry rather than to practice medicine. See
             has been served, this Court grants
                                                                     TEX. OCC.CODE ANN. § 351.002(4), (6), (7), (9) (Vernon
             such extension effective the date the
             reviewing court(s) issue a mandate                      2004). 9
             to this court. Because this Court
             concludes that no “expert report” was                   8      This section permits the trial court to accept an expert
             served, the Court hereby dismisses                             report that departs from the criteria only if, “under the
             plaintiff's claims against defendant                           circumstances, the court determines that there is a good
             Webb with prejudice.                                           reason to admit the expert's testimony. The court shall
                                                                            state on the record the reason for admitting the testimony
                                                                            if the court departs from the criteria.” Id. § 74.401(d)
Davis asserts that the report filed by Pass was merely a
                                                                            (Vernon 2005).
deficient report curable pursuant to subsection 74.351(c)


                © 2015 Thomson Reuters. No claim to original U.S. Government Works.                                                       4
Davis v. Webb, 246 S.W.3d 768 (2008)


9       Optometrists are regulated by the State Optometry           regarding medical causation or the alleged breach of the
        Board. Id. §§ 351.002–.608 (Vernon 2004 & Supp.2007).       standard of care applicable to a physician. See id. § 74.351(r)
        Regulations affecting optometrists are included in Title    (5)(A) and (C). Second, the trial courts in both Leland and
        3, Health Professions, but under Subtitle F, “Professions   Foster did not dismiss the plaintiffs' lawsuits; instead, the
        Related to Eyes and Vision.” Id. Physicians, however,       defendants appealed the trial court's denial of their motions
        are regulated in Subtitle B of Title 3, “Physicians.”       to dismiss. Here, *774 the trial court dismissed Davis's
        Id. §§ 151.001–165.160. Physicians are regulated by         case when it determined that no “expert report” had been
        the State Board of Medical Examiners and are licensed       filed because, under the statutes governing expert reports,
        to practice medicine. Id. §§ 152.001, 155.001. Indeed,      Pass is not qualified to offer an expert opinion applicable to
        section 155.001 explicitly states, “A person may not
                                                                    Webb. And Davis has provided no support for his argument
        practice medicine in this state unless the person holds a
                                                                    that filing an expert report authored by an optometrist
        license issued under [Subtitle B].” Id. § 155.001.
                                                                    constitutes a good faith effort to comply with the statutory
Davis cites no cases in which an expert report by a health          requirements for an expert report in a health care liability
care provider such as an optometrist concerning the standard        claim against a physician. Moreover, as noted above, even
of care required of and allegedly breached by a physician           if Pass were qualified to render opinion testimony regarding
has been determined to constitute a good faith effort to            the standard of care, he still is not qualified to render opinion
comply with the statutory scheme. Instead, Davis relies on          testimony about the causal relationship between Webb's
Leland v. Brandal, a case in which a dentist was sued for           alleged departure from the standard of care and Davis's
malpractice and the plaintiff provided expert reports by an         injuries because he is not a physician. See id. § 74.351(r)(5)
anesthesiologist. 217 S.W.3d 60, 62 (Tex.App.-San Antonio           (C).
2006, pet. granted). The dentist appealed the denial of his
motion to strike the expert report. Id. The Fourth Court            In sum, Davis has provided no authority supporting his
of Appeals determined that the anesthesiologist had not             contention that Pass meets the statutory requirements for an
established that he was qualified to express an expert opinion      expert in a medical malpractice claim against a physician.
regarding the injuries alleged. Id. The court further concluded     See id. § 74.401 (Vernon 2005). Moreover, nothing in section
that a report had been filed, but was deficient. Id. Thus,          74.351(c) indicates that a report authored by an individual
the trial court had discretion to grant a 30–day extension          who is not statutorily qualified to offer an expert opinion is a
under subsection 74.351(c). The appellate court reversed            deficient report curable by a discretionary 30–day extension,
and remanded so that the trial court could consider such an         rather than “no expert report,” as the trial court determined
extension. Id.                                                      here. See Danos v. Rittger, 253 S.W.3d 294, 2007 WL
                                                                    625816, at *3–4 (Tex.App.-Houston [1st Dist.] March 1,
Likewise, in Foster v. Zavala, on which Davis also relies, a        2007, pet. filed); see also Chisholm v. Maron, 63 S.W.3d
podiatrist appealed the trial court's denial of his motion to       903, 905 (Tex.App.-Amarillo 2001, no pet.) (determining
dismiss. 214 S.W.3d 106, 108–09 (Tex.App.-Eastland 2006,            that because expert was not qualified, no report was filed
pet. filed). The expert report served by Zavala was provided        under the predecessor statute); Cuellar v. Warm Springs
by a cardiovascular surgeon. Id. at 109. Because Zavala's           Rehab. Found., No. 04–06–00698–CV, 2007 WL 3355611,
expert was not practicing health care in a field of practice that   at *3 (Tex.App.-San Antonio Nov.14, 2007, no pet. h.)
involved the same type of care or treatment as the podiatrist,      (mem.op.) (concluding that reports authored by individuals
the Eleventh Court of Appeals reversed and remanded to              not statutorily qualified as experts constituted “no report” and
permit the trial court to consider whether to grant a 30–day        did not constitute a “good faith effort” to comply with the
extension under section 74.351(c). Id. at 117.                      statutory requirements); De La Vergne v. Turner, No. 04–06–
                                                                    00722–CV, 2007 WL 1608872, at *1 (Tex.App.-San Antonio
These cases are readily distinguishable from Davis's suit.          June 6, 2007, no pet.) (mem.op.) (reasoning that because
First, a physician authored the expert reports in each of           plaintiff could cure deficiency only by obtaining a new report
these cases, which is specifically authorized by subsections        from a physician, trial court did not abuse its discretion in
74.351(r)(5)(D) (dentist) and (E) (podiatrist). See TEX. CIV.       denying motion for grace period); Methodist Health Ctr.
PRAC. & REM.CODE ANN. § 74.351(r)(5)(D), (E) (Vernon                v. Thomas, No. 14–07–00085–CV, 2007 WL 2367619, at
Supp.2007). But, as discussed above, Pass is not a physician.       *4 (Tex.App.-Houston [14th Dist.] Aug. 21, 2007, no pet.)
Thus, he is barred by statute from offering an expert opinion       (mem.op.) (determining that plaintiffs could comply only



                © 2015 Thomson Reuters. No claim to original U.S. Government Works.                                               5
Davis v. Webb, 246 S.W.3d 768 (2008)


with the statutory requirements by filing a “wholly new report      in accordance with the statutory requirements of Texas Civil
by a different expert” and therefore a thirty-day extension was     Practice and Remedies Code sections 74.351 and 74.401.
not available).                                                     Unfortunately, sections 74.351 and 74.401 were drafted, in
                                                                    all likelihood inadvertently, in such a way as to create the
Under these circumstances, we conclude the trial court was          occasional miscarriage of justice. Hence, although I agree the
within its discretion to dismiss the case. Thus, we overrule        majority opinion is in accord with a plain reading of these
Davis's first issue.                                                sections, I cannot agree with the application of this statute
                                                                    under these circumstances for two reasons.

C. Award of Costs and Attorneys' Fees                               First, when a physician is engaged in the work that only a
 [5] Under subsection 74.351(b)(1), the trial court must            physician may render, the requirement that another physician
enter an order awarding reasonable attorneys' fees and              opine concerning that treatment logically follows. When,
costs of court when dismissing a case for failure to timely         however, a physician fails to provide the type of treatment
serve the required expert report. See TEX. CIV. PRAC. &             he could have delegated to another, or the type of treatment
REM.CODE § 74.351(b)(1). Because dismissal of Davis's               another often performs, this negligence should not be shielded
suit was appropriate, the award of costs and fees was also          by his medical degree. In these situations, the physician is
proper. See id. (stating that the court shall enter an order        “wearing another hat,” and the individuals who most often
awarding reasonable attorneys' fees and costs on motion of          adorn that hat might be aptly trained to opine as to the
defendant, subject to the trial court's exercise of discretion to   standard of care or causation. Such might be true when a
grant a 30–day extension under subsection (c)). Accordingly,        physician performs medical care at the site of an accident
we overrule Davis's second issue.                                   where an EMT would be best qualified to testify as to on-
                                                                    scene standards of care, or when a physician refers an injured
                                                                    patient to a physical therapist or chiropractor who, though
                     IV. CONCLUSION                                 not a physician, may have greater training and experience
                                                                    in rehabilitation and might be best qualified to opine as to
We conclude the trial court did not abuse its discretion in         causation in a review of post-operative care. Such is arguably
holding that Davis failed to timely file the statutorily required   true, as in the present case, where an optometrist is well-
expert report. Thus, we overrule Davis's first issue. Because       trained in post-operative treatment and is often charged by
the trial court did not *775 abuse its discretion in dismissing     an ophthalmologist to conduct this very care. When a doctor
Davis's lawsuit, its award of attorneys' fees and costs was         provides the type of after-care that another professional could
appropriate. We therefore overrule Davis's second issue and         provide, and does so negligently, his credentials should not
affirm the trial court's judgment.                                  force the plaintiff to face a higher predicate to bringing suit.
                                                                    In fact, the non-physician professional may be more equipped
                                                                    to perform the follow-up treatment, and that non-physician
                                                                    may be the more appropriate person to opine on the quality
FRANK C. PRICE, Senior Justice, concurring.
                                                                    of treatment provided.

FRANK C. PRICE, Senior Justice, concurring (Assigned).              Second, our application of Texas Civil Practice and Remedies
Appellant William Davis brought suit against John Q.A.              Code sections 74.351 and 74.401 creates a dual standard in
Webb, Jr. M.D., for his failure to provide appropriate post-        our courts, whereby an individual cannot be an expert for the
operative treatment. This failure led to serious medical            purposes of an expert report unless he is a physician, but for
problems for which Davis sought recovery, but that recovery         the same individual to testify at trial the court could conduct
was barred because of a defect in his expert report. Although       the more permissive Daubert/Robinson test. See Daubert v.
timely served, the expert report did not reflect the opinion of     Merrell Dow Pharms., Inc., 509 U.S. 579, 113 S.Ct. 2786, 125
a “physician” under Texas Civil Practice and Remedies Code          L.Ed.2d 469 (1993); E.I. du Pont de Nemours and Co., Inc. v.
section 74.401. Instead, Davis offered the expert opinion of an     Robinson, 923 S.W.2d 549 (Tex.1995). If the court is capable
optometrist who was proficient and trained in post-operative        of being the gate-keeper at trial, the same latitude should be
treatment and care. The trial court dismissed the lawsuit with       *776 allotted the court in analysis of the expert report.
prejudice, and a majority of this court upheld that dismissal,



                © 2015 Thomson Reuters. No claim to original U.S. Government Works.                                              6
Davis v. Webb, 246 S.W.3d 768 (2008)


                                                                     Accordingly, while concurring in the disposition of this case
The Legislature drafted Texas Civil Practice and Remedies
                                                                     under the current law, I believe the application of the law to all
Code sections 74.351 and 74.401 with an eye toward reducing
                                                                     fact-scenarios is problematic and can lead to the miscarriage
the number of frivolous medical malpractice lawsuits in
                                                                     of justice in some instances.
Texas, but in so doing failed to consider many possible
scenarios where an expert who is not a physician might be
qualified to opine as to the standard of care and/or causation
                                                                     All Citations
in a case pursued against a physician.
                                                                     246 S.W.3d 768

End of Document                                                  © 2015 Thomson Reuters. No claim to original U.S. Government Works.




               © 2015 Thomson Reuters. No claim to original U.S. Government Works.                                                  7
Health Care Unlimited, Inc. v. Villarreal, Not Reported in S.W.3d (2010)
2010 WL 468061


                                                               On appeal from the 206th District Court of Hidalgo County,
                   2010 WL 468061                              Texas, Rose Guerra Reyna, Judge.
     Only the Westlaw citation is currently available.
                                                               Attorneys and Law Firms
           SEE TX R RAP RULE 47.2 FOR
     DESIGNATION AND SIGNING OF OPINIONS.                      David Luningham, Lauren M. Lockett, Fort Worth, for
                                                               appellants.
                Court of Appeals of Texas,
                Corpus Christi-Edinburg.                       Mark Lesher, Texarkana, Steven M. Gonzalez, Edward
                                                               Castillo, Gonzalez Palacios L.L.P., McAllen, for appellee.
       HEALTH CARE UNLIMITED, INC. and
      Health Care Unlimited-McAllen, Appellants,               Before Justices RODRIGUEZ, GARZA, and BENAVIDES.
                          v.
          Servando VILLARREAL, Appellee.
                                                                              MEMORANDUM OPINION
         No. 13-09-00456-CV.        |      Feb. 11, 2010.
                                                               Memorandum Opinion by Justice RODRIGUEZ.

 West KeySummary                                                *1 Appellants Health Care Unlimited, Inc. and Health
                                                               Care Unlimited-McAllen (collectively HCU) complain of
                                                               the trial court's denial of their motion to dismiss appellee
 1       Health
                                                               Servando Villarreal's health care liability claim for failure
             Affidavits of merit or meritorious defense;
                                                               to serve an adequate expert report, as required by section
         expert affidavits
                                                               74.351. SeeTEX. CIV. PRAC. & REM.CODE ANN. §
         A doctor who had been continuously practicing         74.351(a)-(b) (Vernon Supp.2009). By one issue, HCU
         medicine in a field involving the same type of        complains that the trial court abused its discretion by failing
         care involved in a health care liability claim        to dismiss Villarreal's claims because his expert report did
         was qualified to submit an expert report. The         not demonstrate that the expert is qualified, identify the
         patient alleged that the defendant hospital had       applicable standard of care, or explain the causal connection
         left a sponge inside of his body when they            between the alleged breach and Villarreal's injury. We affirm.
         operated on him. The sponge caused an infection,
         multiple health problems and had to be removed
         surgically. The doctor stated in his report that
         he had been licensed to practice medicine                                 I. BACKGROUND
         and had continuously practiced medicine in
                                                               In late July 2005, Villarreal underwent spinal fusion surgery
         the state of Texas since 1985. The doctor
                                                               to repair a fractured lumbar vertebra in his back. Over the
         also stated that he was familiar with wound
                                                               course of the next year, Villarreal suffered complications,
         treatment and the standards of care applicable
                                                               including chronic refractory osteomyelitis-a recurring severe
         to physicians, nurses, hospitals, emergency
                                                               abscess-on what Villarreal's expert report describes as his
         departments, wound care centers and home
         health care agencies. He also routinely was in        left flank. 1 Villarreal was hospitalized once in January 2006,
         contact with other medical staff that takes care      twice in March 2006, and once in August 2006, for treatment
         of patients with similar condition as the patient.    of the abscess; each time, the abscess was surgically drained,
         Tex. Civ. Prac. & Rem.Code Ann. § 74.402(b)           and at the March and August surgeries, the wound was
         (1)-(3), (c)(1)-(2).                                  fitted with a vacuum assisted closure (VAC) sponge device
                                                               to promote healing. After discharge from his August 2006
         1 Cases that cite this headnote                       hospital stay, Villarreal began receiving home health care
                                                               from HCU, which continued the use of the VAC sponge
                                                               device in its treatment of Villarreal.




               © 2015 Thomson Reuters. No claim to original U.S. Government Works.                                         1
Health Care Unlimited, Inc. v. Villarreal, Not Reported in S.W.3d (2010)
2010 WL 468061

1                                                                             Renaissance Doctors Hospital, and Doctors Hospital,
        Osteomyelitis is defined as an “[i]nflammation of the
                                                                              Ltd. However, none of the foregoing are parties to this
        bone marrow caused by bacteria, such as staphylococci,
                                                                              appeal.
        that gains entry through a wound or injury.”IDA G. DOX
        ET AL., ATTORNEY'S ILLUSTRATED MEDICAL
        DICTIONARY O21 (1997). Flank is defined as the
        “side of the body between the ribs and the pelvis.”Id.
                                                                                     II. STANDARD OF REVIEW
        at F21.Villarreal's expert report refers to the site of his                    AND APPLICABLE LAW
        infection interchangeably as his left flank or hip.
                                                                       *2 We review a trial court's decision on a motion to dismiss
In June 2007, Villarreal was again admitted to the hospital           under section 74.351 of the civil practice and remedies code
because of continued drainage from the same wound in his              for abuse of discretion. Jernigan v. Langley, 195 S.W.3d 91,
left flank; doctors at the hospital determined that the wound         93 (Tex.2006); Am. Transitional Care Ctrs. of Tex., Inc. v.
was infected. During surgery to incise and drain the wound,           Palacios, 46 S.W.3d 873, 878 (Tex.2001). The trial court
doctors discovered a foreign body in the wound, which was             abuses its discretion if it acts unreasonably or arbitrarily or
eventually determined to be a sponge from the VAC device.             without reference to any guiding rules or principles. Walker
The doctor who performed the surgery noted that the sponge            v. Gutierrez, 111 S.W.3d 56, 62 (Tex.2003).
had been left in the wound so long that tissue had grown
into the sponge. In September 2007, Villarreal underwent              Under section 74.351 of the Texas Civil Practice and
another surgery to remove more sponge material from the               Remedies Code, a claimant must “serve on each party or
same wound.                                                           the party's attorney” an expert report and curriculum vitae
                                                                      “not later than the 120th day after the date the original
On October 10, 2008, Villarreal sued HCU, 2 alleging that             petition was filed.”TEX. CIV. PRAC. & REM.CODE ANN.
it had negligently left a sponge from the VAC device                  § 74.351(a). An expert report is “a written report by an
in Villarreal's wound causing extended hospitalization and            expert that provides a fair summary of the expert's opinions ...
multiple surgeries to remove the sponge. Villarreal prayed            regarding applicable standards of care, the manner in which
for damages in the form of past and future medical expenses,          the care rendered ... failed to meet the standards, and the
past and future lost wages, past and future pain and mental           causal relationship between that failure and the injury, harm,
anguish, disfigurement, loss of enjoyment of life, and any            or damages claimed.”Id. § 74.351(r)(6).
other damages allowed by law. Villarreal served an expert
report authored by Keith Miller, M.D. on January 29, 2009.            In our review of the expert report, we are limited to the
HCU objected to the adequacy of the report and filed a                four corners of the report in determining whether the report
motion to dismiss Villarreal's claims on the grounds that Dr.         manifests a good faith effort to comply with the statutory
Miller was unqualified as an expert, failed to identify the           definition of an expert report. Palacios, 46 S.W.3d at
applicable standard of care, and failed to explain the causal         878;seeTEX. CIV. PRAC. & REM.CODE ANN. § 74.351(l )
relationship between HCU's alleged breach and Villarreal's            (requiring that the trial court “grant a motion challenging the
injuries. See id. § 74.351(a)-(b), (r)(6). On April 13, 2009,         adequacy of the expert report only if appears to the court, after
the trial court found the report deficient but granted Villarreal     hearing, that the report does not represent an objective good
a thirty-day extension to submit a sufficient amended report.         faith effort to comply” with the statutory definition). The
See id. § 74.351(c). On May 11, 2009, Dr. Miller submitted an         report “need not marshal all the plaintiff's proof.”Palacios,
amended report, to which HCU filed further objections. After          46 S.W.3d at 878; Jernigan, 195 S.W.3d at 93. If the expert
a hearing on HCU's objections and motion to dismiss, the trial        report puts the defendant on notice of the specific conduct
court overruled HCU's objections to the report and denied its         complained of and provides the trial court a basis on which to
motion to dismiss. This interlocutory appeal ensued. See id.          conclude the claims have merit, the report represents a good-
§ 51.014(a)(9) (Vernon 2008) (authorizing an interlocutory            faith effort to comply with the statute.Palacios, 46 S.W.3d at
appeal of the denial of a motion to dismiss filed under section       879.
74.351(b)).

2       Villarreal also sued Drs. Noel Oliveira and Raul Barreda,                           III. DISCUSSION
        Doctors Hospital at Renaissance Wound Care Center,
        Edinburg Regional Medical Center, Rehab Center at



                 © 2015 Thomson Reuters. No claim to original U.S. Government Works.                                                    2
Health Care Unlimited, Inc. v. Villarreal, Not Reported in S.W.3d (2010)
2010 WL 468061

By its sole issue, HCU argues that the trial court erred in
denying its motion to dismiss Villarreal's claims because his               (2) is actively practicing health care in rendering
expert report was inadequate under section 74.351. SeeTEX.                     health care services relevant to the claim.
CIV. PRAC. & REM.CODE ANN. § 74.351(a)-(b).
                                                                        Id.§ 74.402(c)(1)-(2); see also Polone v. Shearer, 287
                                                                           S.W.3d 229, 238 (Tex.App.-Fort Worth 2009, no pet.).
                                                                           Chapter 74 does not require that the expert be a
                A. Qualifications of Dr. Miller                            specialist in the exact same field as the health care
                                                                           provider. See Roberts v. Williamson, 111 S.W.3d 113,
First, HCU complains that Dr. Miller's amended report                      121 (Tex.2003). Our analysis of the qualifications of
fails to demonstrate that he is qualified to be an expert                  an expert under section 74.351 is limited to the four
in Villarreal's case. HCU contends, in particular, that Dr.                corners of the expert's report and curriculum vitae. San
Miller's certification in family medicine does not qualify                 Jacinto Methodist Hosp. v. Bennett, 256 S.W.3d 806,
him to render an opinion regarding chronic wound care                      813 (Tex.App.-Houston [14th Dist.] 2008, no pet.).
management, the type of care HCU provided to Villarreal.             Our review of Dr. Miller's expert report and curriculum vitae
                                                                     reveals that he is a medical doctor licensed in the State
In a suit alleging health care liability against a health care       of Texas and board-certified in family medicine who has
provider, 3 a person qualifies as an expert witness if the           been practicing for over twenty years. Dr. Miller served
person:                                                              as a commissioner on the Texas State Board of Medical
                                                                     Examiners for nearly four years and as a faculty member at
3        It is undisputed that HCU is a health care provider         both the University of Texas Health Science Center Family
         subject to chapter 74 of the civil practice and remedies    Practice Residency Program and the Panola College School
         code. SeeTEX. CIV. PRAC. & REM.CODE ANN. §                  of Licensed Vocational and Registered Nursing. He also
         74.001(12)(A) (Vernon 2005).                                worked for two years as the chief of staff and for ten years
                                                                     as the director of emergency services at the Shelby Regional
    (1) is practicing health care in a field of practice that        Medical Center in Center, Texas. Dr. Miller's expert report
       involves the same type of care or treatment as that           provides the following with regard to his qualifications that
       delivered by the defendant health care provider, if the       is specifically relevant to this case:
       defendant health care provider is an individual, at the
       time the testimony is given or was practicing that type                   I am a medical doctor currently
       of health care at the time the claim arose;                               licensed to practice in the state
                                                                                 of Texas. I have been a licensed
          *3 (2) has knowledge of accepted standards of care                     medical doctor since 1985, have
           for health care providers for the diagnosis, care,                    been practicing medicine continuously
           or treatment of the illness, injury, or condition                     since then, including during the
           involved in the claim; and                                            time of this claim, and as part of
                                                                                 my practice, have been, and am
         (3) is qualified on the basis of training or experience                 currently involved in the diagnosis,
            to offer an expert opinion regarding those accepted                  care, and treatment of many patients
            standards of health care.                                            similar to Mr. Servando Villarreal.
                                                                                 I am familiar with the diagnosis
    Id.§ 74.402(b)(1)-(3) (Vernon 2005). In determining
                                                                                 and treatment of patients with
       whether a witness is qualified on the basis of training or
                                                                                 conditions and their complications
       experience, we consider whether, at the time the claim
                                                                                 similar to those experienced by Mr.
       arose or at the time the testimony is given, the witness:
                                                                                 Servando Villarreal. I am familiar
         (1) is certified by a licensing agency of one or more                   with the standards of care applicable
            states of the United States or a national professional               to physicians, nurses, hospitals,
            certifying agency, or has other substantial training                 emergency departments, wound care
            or experience, in the area of health care relevant to                centers, and home health care
            the claim; and                                                       agencies, which treat patients with



                 © 2015 Thomson Reuters. No claim to original U.S. Government Works.                                            3
Health Care Unlimited, Inc. v. Villarreal, Not Reported in S.W.3d (2010)
2010 WL 468061

            conditions similar to Mr. Servando
            Villarreal.... In addition, I interact with             7) my knowledge and experience giving lectures and in-
            nursing and other staff at hospitals,                     service conferences to nurses and staff;
            clinics, emergency rooms, wound
                                                                    8) my experience serving on numerous hospital
            care centers, and home health care
                                                                      committees;
            agencies, on a daily basis, and I am
            familiar with the standard procedures                   9) my observation of nurses and nurse conduct, supervising
            for physicians and nurses taking                           residents, and instructing nurses and residents in the
            care of patients like Mr. Servando                         evaluation, diagnosis, care and treatment of patients the
            Villarreal. I am familiar with these                       same as, or similar to, Mr. Servando Villarreal and
            standard procedures ... because I                          wound infections; and
            have treated many patients with these
            conditions.                                             10) my past use of wound VAC sponge devices on patients
                                                                      similar to Mr. Servando Villarreal....
*4 After summarizing the facts of Villarreal's treatment, Dr.
Miller further described his qualifications as follows:             ....

  I am familiar with the accepted medical standards of care         I have had training and experience concerning providing
  applicable to the assessment, diagnosis, and treatment of         home health care for patients receiving wound treatment,
  patients with wound infections, and their causes, as well         generally, and wound VAC therapy specifically, to patients
  as their complications.... I know this on the basis of my         such as Mr. Villarreal....
  education, knowledge, training, and direct experience.
                                                                  HCU argues that Dr. Miller's statements regarding his
  I acquired this education, knowledge, training, and direct      qualifications are conclusory and unsupported by the facts.
  experience through:                                             We disagree. The information provided in Dr. Miller's report
                                                                  shows that he has been continuously practicing in a “field of
  1) my attending, and successfully completing, medical
                                                                  practice that involves the same type of care or treatment as
    school classes, and residency, that teach the evaluation,
                                                                  that delivered” by HCU, wound treatment and maintenance.
    diagnosis, care and treatment of patients with ... wound
                                                                  SeeTEX. CIV. PRAC. & REM.CODE ANN. § 74.402(b)(1);
    infections;
                                                                  Roberts, 111 S.W.3d at 121 (holding that an expert need not
  2) practical experience of diagnosing and treating patients     be a specialist in the exact field so long as he has knowledge,
     with ... wound infections;                                   skills, expertise, and training regarding the specific issue in
                                                                  the case); see also Polone, 287 S.W.3d at 238-39 (holding
  3) discussions with colleagues at yearly conferences,           that a doctor is qualified where report states that he has
    seminars and meetings;                                        experience treating other patients with conditions similar to
                                                                  those of the plaintiff). Furthermore, Dr. Miller states in his
  4) study of technical works routinely published in              report that, through his education and direct experience, he
    textbooks, journals and literature concerning the             has knowledge of the standards of care applicable to HCU
    evaluation, diagnosis, care and treatment of patients         in their treatment of patients with wounds like Villarreal.
    with ... wound infections;                                    SeeTEX. CIV. PRAC. & REM.CODE ANN. § 74.402(b)(2);
                                                                  see also Bennett, 256 S.W.3d at 814 (affirming the denial of
  5) my routine discussions and consultations with other
                                                                  a health care provider's motion to dismiss because, in part,
    physicians who also treat patients with the same or
                                                                  the doctor was qualified to author the report based on his
    similar conditions as Mr. Servando Villarreal and wound
                                                                  experience working with and instructing nurses and other
    infections;
                                                                  staff who care for patients with bed sores). Finally, Dr. Miller
  6) my routine and regular contact with hospital nurses, staff   is licensed to practice in the state of Texas and has been
     and residents who take care of patients with the same or     actively practicing medicine that is relevant to Villarreal's
     similar conditions as Mr. Servando Villarreal and wound      claim, which demonstrates that he is “qualified on the basis of
     infections;                                                  training or experience to offer an expert opinion regarding”
                                                                  the standard of care applicable to this case. SeeTEX. CIV.



               © 2015 Thomson Reuters. No claim to original U.S. Government Works.                                             4
Health Care Unlimited, Inc. v. Villarreal, Not Reported in S.W.3d (2010)
2010 WL 468061

PRAC. & REM.CODE ANN. § 74.402(b)(3), (c)(1)-(2). We
therefore conclude that Dr. Miller is qualified to provide an         4) The standard of care required that during the time
expert report in Villarreal's case.                                   they were caring for Mr. Servando Villarreal in 2006 and
                                                                      2007 ... [HCU] ... should have properly cleaned the wound
                                                                      in Mr. Villarreal's left flank and properly removed and/
                                                                      or replaced the wound VAC sponge device at least every
              B. Standard of Care and Breach                          two days. Proper technique in removing and/or replacing
                                                                      the wound VAC sponge device, [sic] would have involved
 *5 Second, HCU complains that Dr. Miller's amended report
                                                                      thoroughly exploring the full extent of the wound at each
fails to set forth the applicable standard of care. Specifically,
                                                                      removal and/or replacement. This would ensure that any
HCU contends that “Dr. Miller wholly fails to provide a fair
                                                                      old sponge devices or portions of the same would always
summary of the care which was expected or specify what
                                                                      be found and removed and no foreign bodies would be left
[HCU] should have done or indicate what actions taken by
                                                                      in this patient's wound. The nurses and staffs of ... [HCU]
[HCU] deviated from the applicable standard of care.”See id.§
                                                                      should have documented in the medical record that this
74.351(r)(6).
                                                                      wound had indeed been thoroughly explored, cleaned, and
                                                                      any old sponge device of [sic] parts thereof, [sic] had been
In his amended report, Dr. Miller opines that the applicable
                                                                      completely removed prior to replacing any new sponge
standard of care requires that HCU “do what a reasonable
                                                                      devices into the wound.
home health care agency would have done under the same
or similar circumstances, or not do what a reasonable home            ....
health care agency would not have done under the same or
similar circumstances.”Dr. Miller emphasizes that the staff           The breaches and violations of the standards of care are as
of HCU “were responsible for assessing, removing, and/                follows:
or changing this patient's wound VAC sponge device.”The
amended expert report then sets forth the standard of care as          *6 ....
follows:
                                                                      2) [HCU] ... failed the standard of care which required
  The accepted standards of medical care applicable to ...            that ... [HCU] should have discovered the presence of a
  [HCU] in [its] care of Mr. Servando Villarreal ... include,         foreign body in the left flank wound of this patient and
  but are not limited to, the following standards:                    alerted his physicians for appropriate treatment. The staff ...
                                                                      failed to assess Mr. Villarreal on a daily basis and make
  1) This is a device which is placed routinely and as a matter       sure that no wound VAC device remained in this patient's
  of course by the nurses and staff of facilities such as ...         hip for more than two days....
  [HCU], and this same device should have been removed
  and/or changed by ... the nurses and staffs.                      A “fair summary” of the applicable standard of care and
                                                                    breach identifies the type of care expected but not rendered
  ....                                                              and that is precisely the information that Dr. Miller's
                                                                    amended report provides. See Palacios, 46 S.W.3d at 880.
  3) The standard of care required that, during the time they
                                                                    He explains the specific tasks and responsibilities required
  were caring for Mr. Servando Villarreal in 2006 and 2007,
                                                                    of HCU and notes that HCU failed to perform those tasks
  [HCU] ... should have discovered the presence of a foreign
                                                                    and responsibilities. We conclude that Dr. Miller's report
  body in the left flank wound of this patient and alerted
                                                                    sufficiently sets forth the standard of care and breach elements
  physicians for appropriate treatment. The staff of [HCU] ...
                                                                    required of expert reports under section 74.351. SeeTEX.
  should have assessed Mr. Villarreal on a daily basis and
                                                                    CIV. PRAC. & REM.CODE ANN. § 74.351(r)(6).
  make [sic] sure that no wound VAC device remain [sic] in
  this patient's hip for more than two days. Since it was the
  staff of this facility that was treating Mr. Villarreal for his
  wound, it was their obligation to assess the wound at least                               C. Causation
  every two days.
                                                                    Third, HCU complains that Dr. Miller's amended report did
                                                                    not adequately identify the causal connection between HCU's



                © 2015 Thomson Reuters. No claim to original U.S. Government Works.                                               5
Health Care Unlimited, Inc. v. Villarreal, Not Reported in S.W.3d (2010)
2010 WL 468061

alleged breach and Villarreal's injuries. HCU notes that                        bones and spine, resulting in a
Villarreal was hospitalized four times in 2006 for treatment of                 severe bone infection or osteomyelitis,
the abscess prior to the time HCU began caring for Villarreal                   neither of which would have occurred
in August 2006. Emphasizing this fact, HCU argues that                          had the wound VAC device been
Dr. Miller's statements regarding causation are conclusory,                     timely discovered and removed. Had
fail to rule out conditions existing before HCU's treatment                     [HCU] ... cared for Mr. Servando
of Villarreal, and fail to differentiate between the alleged                    Villarreal according to the acceptable
negligence of HCU and the potentially negligent acts of other                   standards of care, then more likely
health care providers who treated Villarreal before August                      than not and to a reasonable degree
2006. Our review of Dr. Miller's report indicates otherwise.                    of medical certainty, the foreign body
                                                                                in this patient's flank would have
In his report, Dr. Miller describes Villarreal's injuries as they               been found and removed in a timely
appeared in June 2007:                                                          manner and Mr. Villarreal would not
                                                                                have undergone prolonged pain and
  Mr. Villarreal was admitted .... from 6-18-07 through                         suffering, multiple hospitalizations
  6-26-07 for continued drainage from the same wound                            and surgical procedures, as well as
  from his left flank from which he had experienced                             overall worsening of his condition,
  trouble.... Upon admission, this patient was diagnosed                        pain mental anguish, and loss of
  with osteomyelitis of his lumbar spine with infection from                    dignity.
  multiple organisms. Mr. Villarreal was taken to surgery for
  incision and drainage of the this wound.... [The surgeon]
                                                                    To comply with section 74.351's requirements, an expert
  immediately discovered a foreign body in this wound
                                                                    report must include an explanation of the causal connection
  which was determined to be an old wound VAC sponge left
                                                                    between a defendant health care provider's departure from the
  in place. [The surgeon] noted that the sponge had been in
                                                                    standard of care and the injury, harm, and/or damages claimed
  place for so long that it “... appeared to have tissue grown
                                                                    by the plaintiff. TEX. CIV. PRAC. & REM.CODE ANN. §
  into it”.
                                                                    74.351(r)(6). This requirement is met if the report explains
  [The surgeon] sent the removed sponge to pathology for            the basis of the expert's statements and links his conclusions
  analysis which confirmed that the object was a “... wound         to the facts. See Bowie Mem'l Hosp. v. Wright, 79 S.W.3d
  vac sponge showing reactive fibrosis and granulation              48, 52 (Tex.2002). By explaining how the sponge negligently
  tissue with foreign body giant cell reaction... negative for      left in Villarreal's wound by HCU caused a severe infection
  significant acute inflammation”.                                  that spread all the way to his bones and spine necessitating
                                                                    multiple painful surgeries, Dr. Miller has done just that.
  On 9-25-07, Mr. Villarreal was admitted ... with continued        In other words, the expert report demonstrated the basis of
  drainage from his left flank wound. At this admission, he         Dr. Miller's statement linking HCU's breach to Villarreal's
  was taken to surgery ... [which uncovered] more sponge            infected abscess, resulting 2007 hospitalizations, and painful
  material in the wound....                                         recovery. See id.

Dr. Miller opines that during the time it was caring for            Based on the foregoing, we cannot conclude that the trial
Villarreal in 2006 and 2007, HCU “should have discovered            court abused its discretion in denying HCU's motion to
the presence of a foreign body” in Villarreal's wound and           dismiss. See Jernigan, 195 S.W.3d at 93; Palacios, 46 S.W.3d
alerted his doctors for treatment. Dr. Miller further notes that    at 878. Looking only within the four corners of Dr. Miller's
it was HCU's obligation to “assess the wound on a daily basis”      amended report, we hold that the report adequately identified
and “change or remove any wound VAC device at least every           Dr. Miller's qualifications and the applicable standard of
two days.”He then states that HCU staff failed to perform           care and HCU's breach and explained how, in Dr. Miller's
these obligations and specifically concludes that:                  opinion, the breach caused Villarreal's injuries. See Palacios,
                                                                    46 S.W.3d at 878. The report was a good faith effort to comply
              *7 Because this foreign body was
                                                                    with the statute because it put HCU on notice of the specific
             left in Mr. Villarreal's hip too long,
                                                                    conduct complained of and provided the trial court a basis on
             it caused severe infection which
                                                                    which to conclude the claims have merit. See id. at 879; TEX.
             spread all the way into this patient's


                © 2015 Thomson Reuters. No claim to original U.S. Government Works.                                             6
Health Care Unlimited, Inc. v. Villarreal, Not Reported in S.W.3d (2010)
2010 WL 468061

                                                               The order of the trial court is affirmed.
CIV. PRAC. & REM.CODE ANN. § 74.351(l ). HCU's sole
issue is overruled.
                                                               All Citations

                                                               Not Reported in S.W.3d, 2010 WL 468061
                   IV. CONCLUSION


End of Document                                            © 2015 Thomson Reuters. No claim to original U.S. Government Works.




              © 2015 Thomson Reuters. No claim to original U.S. Government Works.                                           7
Mack Trucks, Inc. v. Tamez, 206 S.W.3d 572 (2006)
50 Tex. Sup. Ct. J. 80

                                                                       causation opinions. Rules App.Proc., Rule 33.2;
                                                                       Rules of Evid., Rule 103(a)(2).
                     206 S.W.3d 572
                 Supreme Court of Texas.                               9 Cases that cite this headnote
           MACK TRUCKS, INC., Petitioner,
                        v.                                       [2]   Appeal and Error
         Elizabeth TAMEZ et. al., Respondent.                             Necessity of presentation in general
                                                                       Except for fundamental error, appellate courts
          No. 03–0526. | Argued Oct. 20,                               are not authorized to consider issues not properly
         2004. | Decided Oct. 27, 2006.                                raised by the parties.
         | Rehearing Denied Dec. 22, 2006.
                                                                       26 Cases that cite this headnote
Synopsis
Background: Survivors of petroleum tanker driver who died
                                                                 [3]   Evidence
when his truck burst into flames brought action against the
                                                                           Necessity and sufficiency
tanker manufacturer, asserting claims for negligence, strict
liability, breach of implied warranty, and misrepresentation.          In determining whether expert testimony is
The 105th District Court, Nueces County, J. Manuel                     reliable, a court should examine the principles,
Banales, J., granted summary judgment for the defendant                research, and methodology underlying an
manufacturer. The survivors appealed. The Corpus Christi–              expert's conclusions. Rules of Evid., Rule 702.
Edinburg Court of Appeals, Thirteenth District, 100 S.W.3d
                                                                       10 Cases that cite this headnote
549, reversed and remanded. Tanker manufacturer appealed.

                                                                 [4]   Evidence
                                                                           Necessity and sufficiency
Holdings: The Supreme Court, Phil Johnson, J., held that:
                                                                       When the testimony involves scientific
[1] the Court of Appeals could not consider expert's causation         knowledge, the expert's conclusions must be
testimony from bill of exceptions, and                                 grounded in the methods and procedures of
                                                                       science. Rules of Evid., Rule 702.
[2] testimony on causation from post-collision fuel-fed fire
                                                                       Cases that cite this headnote
expert was not admissible.

                                                                 [5]   Evidence
Reversed and rendered.                                                     Necessity and sufficiency
                                                                       Trial court should consider the following factors
                                                                       when determining the reliability of expert
 West Headnotes (19)                                                   testimony involving scientific knowledge; (1)
                                                                       the extent to which the theory has been or can be
                                                                       tested; (2) the extent to which the technique relies
 [1]    Appeal and Error                                               upon the subjective interpretation of the expert;
           Consideration of evidence excluded                          (3) whether the theory has been subjected to peer
        The Court of Appeals could not consider expert's               review and/or publication; (4) the technique's
        causation testimony from bill of exceptions, in                potential rate of error; (5) whether the underlying
        strict liability and negligence action arising from            theory or technique has been generally accepted
        petroleum tanker fire that allegedly resulted from             as valid by the relevant scientific community;
        defective fuel line, where the Court of Appeals                and (6) the non-judicial uses that have been made
        did not first determine that the trial court erred             of the theory or technique. Rules of Evid., Rule
        when it refused to admit expert's testimony                    702.
        and reconsider its decision to exclude expert's


               © 2015 Thomson Reuters. No claim to original U.S. Government Works.                                            1
Mack Trucks, Inc. v. Tamez, 206 S.W.3d 572 (2006)
50 Tex. Sup. Ct. J. 80

                                                                    of an expert's testimony when doing so will be
        12 Cases that cite this headnote                            helpful in determining reliability of an expert's
                                                                    testimony, regardless of whether the testimony is
 [6]    Evidence                                                    scientific in nature or experience-based. Rules of
            Determination of question of competency                 Evid., Rule 702.
        A trial court has broad discretion in determining           17 Cases that cite this headnote
        whether expert testimony is admissible. Rules of
        Evid., Rule 702.
                                                             [11]   Evidence
        10 Cases that cite this headnote                                Necessity and sufficiency
                                                                    In determining the reliability of an expert's
 [7]    Appeal and Error                                            testimony, the trial court should undertake a
           Competency of witness                                    rigorous examination of the facts on which the
                                                                    expert relies, the method by which the expert
        The trial court's ruling concerning the
                                                                    draws an opinion from those facts, and how the
        admissibility of expert testimony will be
                                                                    expert applies the facts and methods to the case
        reversed only if that discretion is abused.
                                                                    at hand. Rules of Evid., Rule 702.
        5 Cases that cite this headnote
                                                                    9 Cases that cite this headnote

 [8]    Evidence
                                                             [12]   Evidence
            Preliminary evidence as to competency
                                                                        Automobile Cases
        Because the party sponsoring the expert bears
                                                                    Testimony on causation from post-collision fuel-
        the burden of showing that the expert's
                                                                    fed fire expert was not admissible, in strict
        testimony is admissible, the burden of presenting
                                                                    liability and negligence action arising from
        understandable evidence that will persuade the
                                                                    petroleum tanker fire that allegedly resulted from
        trial court to admit the expert's testimony is on
                                                                    defective fuel line; at the hearing to determine
        the presenting party. Rules of Evid., Rule 702.
                                                                    the admissibility of expert's testimony expert
        6 Cases that cite this headnote                             opined that the fire began in the fuel and battery
                                                                    systems of the tractor, he did not identify an
                                                                    alleged defect in the tractor's fuel system that was
 [9]    Evidence
                                                                    the source of the fire, he did not specify which
            Necessity and sufficiency
                                                                    studies supported his conclusions, he did not
        When an expert's processes or methodologies                 testify that he analyzed or tested characteristics
        are obscured or concealed by testimony that                 of batteries like the battery in the wrecked
        is excessively internally contradictory, non-               tractor, and he did not describe the process in
        responsive or evasive, a trial court will not have          which he excluded other sources of ignition.
        abused its discretion in determining that the               Rules of Evid., Rule 702.
        expert's testimony is not admissible. Rules of
        Evid., Rule 702.                                            4 Cases that cite this headnote

        3 Cases that cite this headnote
                                                             [13]   Products Liability
                                                                        Proximate Cause
 [10]   Evidence
                                                                    Products Liability
            Necessity and sufficiency
                                                                        Design
        A trial court should consider the factors
                                                                    Products Liability
        mentioned in E.I. du Pont de Nemours and Co.
                                                                        Miscellaneous products
        v. Robinson for determining the admissibility
                                                                    Sales


               © 2015 Thomson Reuters. No claim to original U.S. Government Works.                                         2
Mack Trucks, Inc. v. Tamez, 206 S.W.3d 572 (2006)
50 Tex. Sup. Ct. J. 80

             Damages from breach                                    that alleged defects caused diesel fuel leak in
        There was no evidence that alleged defects in               tanker and that leak caused by the defect was
        petroleum tanker's fuel system, which allegedly             ignition point for fire that occurred in connection
        caused diesel fuel leak, caused fire that                   with accident; such causation issues presented
        occurred in connection with tanker accident, as             matters beyond the general understanding and
        required to support claims asserted against tanker          common knowledge of lay jurors.
        manufacturer by survivors of tanker driver,
                                                                    16 Cases that cite this headnote
        alleging negligence, misrepresentation, breach
        of warranty, and design, manufacturing, and
        marketing defects.                                   [18]   Judgment
                                                                        Torts
        4 Cases that cite this headnote
                                                                    Expert testimony that an arced battery cable
                                                                    found in tractor of petroleum tanker could
 [14]   Evidence                                                    possibly have ignited fire that occurred in
            Particular Facts or Issues                              connection with tanker accident, offered in
        Proof other than expert testimony will constitute           opposition to tanker manufacturer's motion
        some evidence of causation only when a                      for summary judgment in strict liability and
        layperson's general experience and common                   negligence action by driver's survivors alleging
        understanding would enable the layperson to                 design defects, was speculative, and thus
        determine from the evidence, with reasonable                insufficient to prevent summary judgment, since
        probability, the causal relationship between the            expert did not testify that battery or its cable
        event and the condition.                                    probably ignited the fire, and expert could not
                                                                    determine whether cable arced before the fire
        24 Cases that cite this headnote                            was ignited or as it was being burned by an
                                                                    otherwise-ignited fire.
 [15]   Evidence                                                    24 Cases that cite this headnote
            Weight and Conclusiveness in General
        Expert testimony is required when an issue
                                                             [19]   Judgment
        involves matters beyond jurors' common
                                                                        Torts
        understanding.
                                                                    Circumstantial summary judgment evidence
        12 Cases that cite this headnote                            suggesting that fire that occurred in connection
                                                                    with petroleum tanker accident quickly reached
                                                                    tanker driver, though consistent with theory
 [16]   Trial
                                                                    asserted by driver's survivors, in strict
             Province of Court and Jury
                                                                    liability and negligence action against tanker
        Whether expert testimony is necessary to prove
                                                                    manufacturer, that fire originated with fuel
        a matter or theory is a question of law.
                                                                    from tractor's allegedly defective diesel fuel
        3 Cases that cite this headnote                             system, did not make it more likely than
                                                                    not that the battery or some other allegedly
                                                                    improperly located ignition source ignited
 [17]   Products Liability                                          diesel from the tractor, as opposed to
            Trailers                                                other possible sources of ignition such as
        Products Liability                                          the cargo of crude oil, and thus such
            Design defect                                           evidence was insufficient to preclude summary
        Expert testimony was required, in design defect             judgment for manufacturer in survivors' action
        action brought by survivors of petroleum tanker             alleging negligence, misrepresentation, breach
        driver against tanker manufacturer, to establish



               © 2015 Thomson Reuters. No claim to original U.S. Government Works.                                        3
Mack Trucks, Inc. v. Tamez, 206 S.W.3d 572 (2006)
50 Tex. Sup. Ct. J. 80

         of warranty, and design, manufacturing, and                Abram Tamez. Specifically, the Tamezes alleged that the
         marketing defects.                                         tractor had design and manufacturing defects because (1)
                                                                    the fuel system was unreasonably prone to fail and release
         209 Cases that cite this headnote                          diesel fuel in an environment conducive to ignition and fire;
                                                                    and (2) the tractor had ignition sources *576 such as hot
                                                                    manifolds and electric batteries in areas likely to contain
                                                                    released flammable fluids. The Tamezes also alleged that
Attorneys and Law Firms                                             Mack failed to provide warnings about the defects.

*575 Sean E. Breen, Randy Howry, Herman Howry &                     1      Elizabeth Tamez filed suit. Elsa Guerrero, Rosendo
Breen, L.L.P., Austin, Robert Lee Galloway, Kellye Ruth
                                                                           Tamez, Sr., Dora Tamez, Rosa Elvia Gonzales, Donna
Koehn, Thompson & Knight LLP, Houston, for petitioner.
                                                                           Kim Cantu, and Terrie L. Zay intervened. Rosa
John Blaise Gsanger, William R. Edwards, William R.                        subsequently nonsuited. For ease of reference all the
                                                                           claimants will be referred to collectively as “the
Edwards III, The Edwards Law Firm, L.L.P., Corpus Christi,
                                                                           Tamezes” or “the plaintiffs.”
John Gonzales, John Gonzales & Associates, San Antonio,
David O. Gonzalez, Law Offices of Baldemar Gutierrez,               2      Other defendants were Fruehauf Trailer Corporation,
Alice, Glenn M. Boudreaux, Maryellen Hester, Boudreaux                     Norco Crude Gathering, Inc., Glitsch Canada, Ltd., and
Leonard & Hammond, P.C., Houston, for for respondent.                      Snyder Tank Corp. The claims against those defendants
                                                                           were either nonsuited or settled and were severed from
Opinion                                                                    the claims against Mack.

Justice JOHNSON delivered the opinion of the Court.                 In connection with its claims against Mack, the Tamezes
                                                                    identified Ronald Elwell as an expert on post-collision, fuel-
In this truck accident case the trial court excluded expert         fed fires. Mack moved to exclude his testimony as unreliable
testimony as to what caused a post-accident fire that burned        and moved for summary judgment. Mack asserted multiple
the truck and the driver. After excluding the expert testimony      grounds for seeking summary judgment. Some grounds for
because it was not reliable, the trial court granted summary        its motion were directed at particular plaintiffs, while some
judgment. The court of appeals reversed. We hold that the           grounds were directed at all the Tamezes. One part of Mack's
trial court did not err, reverse the court of appeals' judgment,    motion directed at all the Tamezes was a Rule 166a(i) motion
and render judgment that the plaintiffs take nothing.               urging that the Tamezes could present no evidence that any
                                                                    alleged defects caused the fire. The Tamezes responded to the
                                                                    no-evidence part of Mack's motion, in part, by filing Elwell's
                                                                    deposition and his expert report. They also later submitted
                         I. Background
                                                                    Elwell's testimony from a bill of exceptions.
On October 19, 1996, Abram Tamez was operating a Mack
Truck tractor hauling a trailer of crude oil. Tamez was             Pretrial matters, including a Robinson 3 hearing pursuant to
rounding a curve in the road when the tractor and trailer           Mack's motion to exclude Elwell's testimony, were scheduled
overturned. A fire erupted and burned the trailer, its cargo,       and heard. During the Robinson hearing Elwell testified. He
and the tractor. Tamez was able to climb out of the tractor,        expressed the opinion that the fire was started by the tractor's
but he was badly burned and died as a result of his injuries.       battery, which was located too near the fuel tanks, igniting the
                                                                    tractor's diesel fuel, which in turn ignited the trailer's cargo
As a result of Tamez's death, suit was filed 1 against the          of crude oil.

tractor's manufacturer, Mack Trucks, Inc., and others. 2
                                                                    3      E.I. du Pont de Nemours & Co. v. Robinson, 923 S.W.2d
The Tamezes alleged that Mack defectively designed,
manufactured and marketed the tractor. They claimed that                   549 (Tex.1995).
Mack was liable for negligence, gross negligence, strict            The trial court granted Mack's motion to exclude Elwell's
products liability, breach of warranty, and misrepresentation.      testimony as to causation. The Tamezes later moved the
All five theories were based on the same complaint: diesel          trial court to reconsider its decision. The court denied the
fuel from the truck's fuel system originated the fire that burned   motion but allowed the Tamezes to have Elwell testify again



                © 2015 Thomson Reuters. No claim to original U.S. Government Works.                                                 4
Mack Trucks, Inc. v. Tamez, 206 S.W.3d 572 (2006)
50 Tex. Sup. Ct. J. 80

to create a bill of exceptions. 4 The court signed an order
excluding the causation portion of Elwell's testimony from                    II. Elwell's Bill of Exceptions Testimony
being considered as evidence at any trial or hearing because
it was not sufficiently reliable. Mack's motion for summary           [1] Mack argues that the court of appeals erred by
judgment was granted.                                                considering testimony admitted only for the bill when it
                                                                     reviewed the trial court's exclusion of Elwell's causation
4      An offer of proof is sometimes referred to as a bill of
                                                                     testimony. The Tamezes claim that whether Elwell's bill of
       exceptions. See TEX.R. EVID. 103(a)(2); TEX.R.APP.            exceptions testimony is considered is not relevant because
       P. 33 (comment to 1997 change). As the court of appeals       his bill testimony added nothing to his Robinson hearing
       and the parties refer to the offer of proof in this case as   testimony. Further, in their brief and at oral argument the
       a bill of exceptions, we will, also.                          Tamezes disclaim having urged in the court of appeals that
The court of appeals reversed the summary judgment,                  the trial court erred in (1) holding a Robinson hearing, (2) the
concluding that the trial court abused its discretion                manner in which the hearing was conducted, (3) the timing of
                                                                     the hearing, or (4) denying their motion for reconsideration.
in excluding Elwell's causation testimony, 5 and also
                                                                     Our review of their briefs in the court of appeals confirms the
concluding that Elwell's testimony provided some evidence
                                                                     Tamezes' position. They do not contend here either that the
of causation. The court of appeals' opinion indicates that in
                                                                     bill of exceptions testimony was improperly excluded or that
reaching its decision it considered Elwell's testimony from
                                                                     the trial court erred in denying their motion to reconsider.
both the Robinson hearing and the bill of exceptions. See 100
S.W.3d 549, 556, 559, 561.
                                                                     The purpose of a bill of exceptions is to allow a party to make
                                                                     a record for appellate review of matters that do not otherwise
5      After Elwell's expert testimony was excluded by the           appear in the record, such as evidence that was excluded.
       trial court, the Tamezes obtained testimony from another      TEX. R. APP. P. 33.2; TEX. R. EVID. 103(a)(2); see also
       expert witness, Douglas Holmes. Mack moved to                 In re Ford Motor Co., 988 S.W.2d 714, 721 (Tex.1998). The
       exclude Holmes's testimony, and the trial court orally
                                                                     court of appeals' opinion indicates that it considered Elwell's
       granted the motion. The court of appeals upheld the
                                                                     bill of exceptions testimony in evaluating the admissibility
       exclusion of Holmes's testimony. 100 S.W.3d 549, 559.
                                                                     of his opinions even though the trial court did not. See 100
       The Tamezes do not challenge the court of appeals' ruling
       as to Holmes.
                                                                     S.W.3d at 556, 559. As one example, the court of appeals
                                                                     referenced Elwell's opinion that at least one of the tractor's
Mack urges that the trial court correctly excluded Elwell's          side fuel tanks became displaced during the rollover and
testimony on causation, did not abuse its discretion in              separated the balance line connecting the two fuel tanks. Id.
refusing to reconsider that ruling, and properly granted             at 557. The court pointed to Elwell's testimony interpreting
summary judgment because the Tamezes presented no                    photographic evidence of steel straps which held the tanks as
evidence of causation. Mack asserts, among other matters,            support for his opinion. Id. The referenced testimony as to
that the court of appeals erred by (1) considering Elwell's          Elwell's opinion and interpretation of photographic evidence
causation testimony from both the Robinson hearing and               was given as part of his bill of exceptions testimony, but he
the bill of exceptions; (2) reversing the trial court's ruling       did not give similar testimony during the Robinson hearing.
as to admissibility of Elwell's causation testimony; and (3)
reversing the summary judgment.                                       [2] Except for fundamental error, appellate courts are not
                                                                     authorized to consider issues not properly raised by the
We conclude that the trial court did not abuse its discretion        parties. See In the Interest of B.L.D., 113 S.W.3d 340,
in excluding Elwell's testimony on causation and that the            350–52 (Tex.2003). We have described fundamental error
court *577 of appeals erred in considering testimony from            as those instances in which error directly and adversely
the bill of exceptions in evaluating the trial court's exclusion     affects the interest of the public generally, as that interest
of Elwell's causation testimony. We further conclude that            is declared by the statutes or Constitution of our State, or
the Tamezes presented no summary judgment evidence of                instances in which the record affirmatively and conclusively
causation and summary judgment was properly granted.                 shows that the court rendering the judgment was without
                                                                     jurisdiction of the subject matter. See McCauley v. Consol.
                                                                     Underwriters, 157 Tex. 475, 304 S.W.2d 265, 266 (1957).



                © 2015 Thomson Reuters. No claim to original U.S. Government Works.                                              5
Mack Trucks, Inc. v. Tamez, 206 S.W.3d 572 (2006)
50 Tex. Sup. Ct. J. 80

The court of appeals did not classify the trial court's refusal      opinion proffered.’ ” Gammill, 972 S.W.2d at 726 (quoting
to allow the Tamezes to present further evidence and to then         Gen. Elec. Co. v. Joiner, 522 U.S. 136, 146, 118 S.Ct. 512,
reconsider its ruling to exclude Elwell's causation testimony        139 L.Ed.2d 508 (1997)).
as fundamental error, and neither do we. The court of appeals
erred in considering Elwell's causation testimony from the           6      Id. (identifying the following considerations regarding
bill of exceptions without having first determined, pursuant                reliability of scientific testimony: (1) the extent to
to properly assigned error, that the trial court erred in refusing          which the theory has been or can be tested; (2) the
to admit the testimony and reconsider its decision to exclude               extent to which the technique relies upon the subjective
Elwell's causation opinions. Under the record and issues                    interpretation of the expert; (3) whether the theory
presented to us, we may not consider Elwell's testimony                     has been subjected to peer review and/or publication;
from the bill of exceptions in determining whether the trial                (4) the technique's potential rate of error; (5) whether
court erred in excluding Elwell's causation *578 testimony.                 the underlying theory or technique has been generally
See Exito Elecs. Co. v. Trejo, 142 S.W.3d 302, 304 n. 1                     accepted as valid by the relevant scientific community;
                                                                            and (6) the non-judicial uses that have been made of the
(Tex.2004).
                                                                            theory or technique).
                                                                  [6]     [7]    [8]    [9] A trial court has broad discretion in
                                                                 determining whether expert testimony is admissible. Zwahr,
             III. Reliability of Elwell's Testimony
                                                                 88 S.W.3d at 629. Its ruling will be reversed only if that
                                                                 discretion is abused. K–Mart Corp. v. Honeycutt, 24 S.W.3d
                     A. Standard of Review                       357, 360 (Tex.2000). Because the party sponsoring the expert
                                                                 bears the burden of showing that the expert's testimony is
 [3]     [4]     [5] An expert witness may testify regarding admissible, the burden of presenting understandable evidence
“scientific, technical, or other specialized” matters if the     that will persuade the trial court is on the presenting party. See
expert is qualified and if the expert's opinion is relevant and  Robinson, 923 S.W.2d at 557. When an expert's “processes”
based on a reliable foundation. TEX. R. EVID. 702; Helena        or “methodologies” are obscured or concealed by testimony
Chem. Co. v. Wilkins, 47 S.W.3d 486, 499 (Tex.2001);             that is excessively internally contradictory, non-responsive or
Robinson, 923 S.W.2d at 556. In determining whether              evasive, a trial court will not have abused its discretion in
expert testimony is reliable, a court should examine “the        determining that the expert's testimony is not admissible. See
principles, research, and methodology underlying an expert's     GMC v. Iracheta, 161 S.W.3d 462, 470–72 (Tex.2005).
conclusions.” Exxon Pipeline Co. v. Zwahr, 88 S.W.3d 623,
629 (Tex.2002). When the testimony involves scientific
knowledge, the expert's conclusions must be “grounded
‘in the methods and procedures of science.’ ” Robinson,                               B. Reliability Factors
923 S.W.2d at 557 (quoting Daubert v. Merrell Dow
                                                                 The court of appeals noted that Elwell's testimony largely
Pharms., Inc., 509 U.S. 579, 590, 113 S.Ct. 2786, 125
                                                                 applied his knowledge, training, and experience to the
L.Ed.2d 469 (1993)). Otherwise, the testimony is “no more
                                                                 underlying data and that his methodology was not easily
than ‘subjective belief or unsupported speculation.’ ” Id.
                                                                 tested by objective criteria such as identifiable scientific
(quoting Daubert, 509 U.S. at 590, 113 S.Ct. 2786). We
                                                                 formulas. The court of appeals concluded that under such
have identified several non-exclusive factors that trial courts
                                                                 circumstances *579 the reliability of Elwell's opinion is not
should consider when determining the reliability of expert
                                                                 properly measured by a Robinson-factor analysis, but that the
testimony involving scientific knowledge. 6 We recognize         “analytical gap” test should be applied. 100 S.W.3d at 555–
that these factors may not apply when testimony is not           56.
scientific, but, rather, involves technical or other specialized
knowledge. Gammill v. Jack Williams Chevrolet, 972 S.W.2d        Mack argues that the court of appeals' analysis is flawed.
713, 726 (Tex.1998). Even then, however, there must be some      Mack urges that Elwell's inability to demonstrate at least one
basis for the opinion to show its reliability. Id. An expert's   of the Robinson factors, coupled with his inability to eliminate
bare opinion will not suffice. Merrell Dow Pharms., Inc. v.      the crude oil tanker as the source of the fire, rendered Elwell's
Havner, 953 S.W.2d 706, 711 (Tex.1997). And, there cannot        testimony unreliable. The Tamezes, on the other hand, argue
be “ ‘too great an analytical gap between the data and the       that because Elwell's testimony was based on his training and



                © 2015 Thomson Reuters. No claim to original U.S. Government Works.                                                    6
Mack Trucks, Inc. v. Tamez, 206 S.W.3d 572 (2006)
50 Tex. Sup. Ct. J. 80

experience, and not science, application of the analytical gap      and determine which factors and evaluation methodology
test, as opposed to use of Robinson factors, was appropriate.       are most appropriate to apply. For example, in the present
They contend that Elwell's opinion was reliable because there       case the trial court would have been within its discretion
were no analytical gaps in his testimony. See Gammill, 972          to measure the reliability of Elwell's testimony, at least in
S.W.2d at 726.                                                      part, by considering (1) the extent to which Elwell's theory
                                                                    had been or could be tested; (2) the extent to which his
In Gammill we clarified that the list of non-exclusive factors      methodology relied upon his subjective interpretation; (3)
listed in Robinson may not be applicable when assessing             the methodology's potential rate *580 of error; (4) whether
certain kinds of expert testimony. 972 S.W.2d at 720. We            the underlying theory or methodology has been generally
held that Robinson factors did not apply to the mechanical          accepted as valid by the accident reconstruction and post-
engineer expert under consideration in Gammill, even though         collision fire investigation community; and (5) the non-
his claimed expertise was scientific in nature. Id. at 727. In so   judicial uses that have been made of his methodology. These
holding, however, we did not mean to imply that a trial court       are similar to factors 1, 2, 4, 5 and 6 of those enumerated in
should never consider the Robinson factors when evaluating          Robinson. But, as we have said above, that is not to imply
the reliability of expert testimony that is based on knowledge,     that the trial court was precluded from measuring Elwell's
training or experience, or that the factors can only be applied     methodology by Gammill's analytical gap analysis.
when evaluating scientific expert testimony. We recognized
that the criteria for assessing reliability must vary depending
on the nature of the evidence. Id. at 726.
                                                                                  C. Elwell's Causation Testimony

 [10] The United States Supreme Court has noted that it              [12] At the Robinson hearing, Elwell testified that the fuel
is not possible to “rule out, nor rule in, for all cases and        and battery system on the tractor were designed improperly,
for all time the applicability of the factors mentioned in          and suggested safer designs. He criticized the placement of
Daubert.” Kumho Tire v. Carmichael, 526 U.S. 137, 150,
                                                                    the fuel tanks and also of the batteries' 7 proximity to the fuel
119 S.Ct. 1167, 143 L.Ed.2d 238 (1999). Nor can the Court
                                                                    tanks. He criticized certain parts of the fuel system such as the
“now do so for subsets of cases categorized by category
                                                                    crossover or “balance line” hose between the two fuel tanks
of expert or by kind of evidence,” as “[t]oo much depends
                                                                    and the spigots by which the hose was attached to each of
upon the particular circumstances of the particular case at
                                                                    the tanks. He referenced a particular report, which was not
issue.” Id. In Robinson we likewise explained that the factors
                                                                    introduced, which he asserted supported his design critiques
mentioned do not constitute an exclusive list and that the trial
                                                                    and his suggested safer designs.
court's gatekeeping inquiry will differ with each particular
case depending on the “[t]he factors a trial court will
                                                                    7       The record is not clear whether the tractor had one battery
find helpful in determining whether the underlying theories
                                                                            or two.
and techniques ... are scientifically reliable.” Robinson, 923
S.W.2d at 557. Thus, a trial court should consider the factors      Elwell's analysis and conclusion that the fire began with
mentioned in Robinson when doing so will be helpful in              the fuel system and the battery system were based on
determining reliability of an expert's testimony, regardless of     the “fire triangle” theory. He explained that under the fire
whether the testimony is scientific in nature or experience-        triangle theory, a post-collision fuel-fed fire such as the one
based. See Kumho Tire, 526 U.S. at 139, 119 S.Ct. 1167;             under consideration must be analyzed with an eye toward
Gammill, 972 S.W.2d at 726.                                         the ignition, fuel, and oxygen sources that were available.
                                                                    Because the air provided oxygen, his analysis centered on the
 [11] In determining reliability, the trial court “should           other parts required to complete the triangle, “the source of
undertake a rigorous examination of the facts on which the          fluids that could be ignited and what would it take to ignite
expert relies, the method by which the expert draws an              those fluids and fuel, of course, is the primary suspect, either
opinion from those facts, and how the expert applies the facts      fuel or crude oil in this particular case.”
and methods to the case at hand.” See Amorgianos v. Amtrak,
303 F.3d 256, 267 (2d Cir.2002). A significant part of the          He did not testify that he inspected the remnants of the
trial court's gatekeeper function is to evaluate the expert's       burned tractor and trailer or that he performed or reviewed
qualifications, listen to the testimony, view the evidence,         any accident reconstruction analysis as to how the rollover



                © 2015 Thomson Reuters. No claim to original U.S. Government Works.                                                       7
Mack Trucks, Inc. v. Tamez, 206 S.W.3d 572 (2006)
50 Tex. Sup. Ct. J. 80

occurred and how different parts of the vehicle would have          ignition or flash points of the crude and diesel fuel. He did not
been affected or harmed thereby. His Robinson hearing               address any analysis or process by which he concluded that
testimony did not identify a particular alleged defect of the       some part of a trailer of crude oil would continue to burn for
tractor's fuel system that he concluded was the source of a         several minutes only if it was ignited by, rather than being the
diesel fuel leak that initiated the fire.                           ignitor of, diesel fuel from the tractor's fuel system.

On cross-examination he testified that he had read and relied       In sum, Elwell did not testify at the Robinson hearing to
on “over 5,000” studies on the subject of the causes of post-       a methodology by which he reached the conclusions as
collision fuel-fed fires. He did not specify any studies that       to the fire having been caused by defects in the tractor's
supported his conclusion as to the specifics involved in the        fuel and battery systems. In order for Elwell's testimony on
accident, and none were offered as evidence for the trial court     causation to be reliable, he was required to present some
to consider in evaluating his testimony.                            methodology that reliably supported his opinions that the
                                                                    “fuel” and “ignition” parts of the fire triangle were supplied,
In coming to his conclusion that the fire began with the fuel       respectively, by the tractor's alleged fuel system defects and
system and battery system of the tractor, Elwell asserted that      battery system. He did not do so. The mere fact that the fuel
he relied on several specific factors and facts. Each of the        system had a design that could cause the hoses to separate is
factors and facts he enumerated supported conclusions that          not evidence that the hoses separated in this case.
Tamez was burned by diesel and that the diesel ignited so
quickly that Tamez could not escape.                                Elwell's testimony did no more than set out “factors”
                                                                    and “facts” which were consistent with his opinions, then
Even assuming that what Elwell relied on and classified as          conclude that the fire began with diesel fuel from the tractor.
“factors” and “facts” were true, however, which Mack denies,        The reliability inquiry as to expert testimony does not ask
the factors and facts are merely consistent with diesel fuel        whether the expert's conclusions appear to be correct; it asks
having been released during the rollover and Tamez having           whether the methodology and analysis used to reach those
been burned by part of the fire fed by the tractor's diesel fuel.   conclusions is reliable. Kerr–McGee Corp. v. Helton, 133
They are not probative evidence that diesel fuel was released       S.W.3d 245, 254 (Tex.2004). The trial court was not required
because of one of the asserted defects in the fuel system or        to accept his opinions at face value just because Elwell was
that it was ignited by the battery system. He did not testify       experienced in examining post-collision fuel-fed fires. See
to having analyzed, tested, or investigated the characteristics     Gammill, 972 S.W.2d at 726 (holding that a court should not
of batteries like the battery in the wrecked tractor to support     admit opinion evidence which is connected to existing data
his *581 opinion that the battery system was involved in            only by the ipse dixit of the expert).
causing the fire. He failed to set out any process by which
he excluded other sources for ignition of the diesel fuel such      We conclude that the trial court did not abuse its discretion
as mechanical sparks which could be generated when parts            when it excluded Elwell's testimony on causation. The court
of a truck make contact with the pavement, or ignition of the       of appeals erred when it determined otherwise.
cargo fuel which in turn could have ignited the diesel fuel. See
Gammill, 972 S.W.2d at 728; see also Robinson, 923 S.W.2d
at 559 (noting that an expert who is trying to find a cause
                                                                                    IV. The Summary Judgment
of something should carefully consider alternative causes).
For example, when Elwell was asked during the Robinson              Mack moved for summary judgment on multiple grounds,
hearing why he concluded that the fire originated with the          including the ground that there was no evidence Mack's fuel
fuel and battery systems instead of with the crude oil cargo,       system design was a producing or proximate cause of Tamez's
his response was that “if [crude oil] remains to be burned,         injuries. The Tamezes contend that even without Elwell's
that after five or ten or fifteen minutes, then that's not the      testimony as to causation, they presented sufficient evidence
fuel that started the fire.” He did not explain any investigation   to survive summary judgment.
or research that supported such a conclusion. He did not
elaborate on the amount of crude that was in the trailer when
the wreck occurred, calculate the amount of time it would take
the cargo to burn, or discuss or compare the relative ease of                          A. Standard of Review




                © 2015 Thomson Reuters. No claim to original U.S. Government Works.                                               8
Mack Trucks, Inc. v. Tamez, 206 S.W.3d 572 (2006)
50 Tex. Sup. Ct. J. 80

A summary judgment motion pursuant to TEX. R. CIV. P.                See Iracheta, 161 S.W.3d at 470 (holding that the possibility
166a(i) is essentially a motion for a pretrial directed verdict.     that the fire occurred in the manner the plaintiff suggested is
See *582 Merrell Dow Pharms., Inc. v. Havner, 953 S.W.2d             not enough to support the jury's findings); Nissan Motor Co.
706, 711 (Tex.1997). Once such a motion is filed, the burden         v. Armstrong, 145 S.W.3d 131, 137 (Tex.2004).
shifts to the nonmoving party to present evidence raising
an issue of material fact as to the elements specified in            The Tamezes point to several parts of their summary
the motion. Id.; W. Invs., Inc. v. Urena, 162 S.W.3d 547,            judgment evidence that they say are sufficient, individually
550 (Tex.2005). We review the evidence presented by the              or collectively, to defeat summary judgment: (1) an accident
motion and response in the light most favorable to the party         witness's “personal assumption,” based on his averred
against whom the summary judgment was rendered, crediting            experience with and ability to recognize the smell of diesel
evidence favorable to that party if reasonable jurors could,         fuel, that Tamez was burned by diesel fuel because Tamez
and disregarding contrary evidence unless reasonable jurors          was coated with a shiny, oily substance and did not smell like
could not. See City of Keller v. Wilson, 168 S.W.3d 802, 827         crude oil; (2) a notation by Mack's accident reconstruction
(Tex.2005); Johnson v. Brewer & Pritchard, P. C., 73 S.W.3d          expert noting a diesel fuel spill on the road; (3) a statement by
193, 208 (Tex.2002).                                                 Elwell that the design of the system was such that if there was
                                                                     any significant dislodgement of the fuel tanks, the fuel line
                                                                     would separate; 8 (4) a statement by Mack's expert witness
                         B. Causation                                that it was possible that a battery cable found in the tractor
                                                                     had arced and ignited the fire, although *583 the witness
Producing or proximate cause is an element of all                    ultimately concluded that the crude-oil cargo caused the fire;
of the Tamezes' claims, which included negligence,                   and (5) an eyewitness's statement implying that it took the fire
misrepresentation, breach of warranty, and design,                   a short period of time to reach Tamez, who exited and crawled
manufacturing, and marketing defects. Causation-in-fact is           away from the tractor after the accident.
common to both proximate and producing cause, including
the requirement that the defendant's conduct or product be a         8       Elwell's testimony on design defect, as opposed to his
substantial factor in bringing about the injuries in question.               testimony on causation, was not excluded.
See Union Pump Co. v. Allbritton, 898 S.W.2d 773, 775
                                                                      [14]     [15]      [16]     Proof other than expert testimony
(Tex.1995).
                                                                     will constitute some evidence of causation only when a
                                                                     layperson's general experience and common understanding
All the Tamezes' theories regarding the fire's cause
                                                                     would enable the layperson to determine from the evidence,
were based on allegations that the tractor's fuel system
                                                                     with reasonable probability, the causal relationship between
was defectively designed and manufactured so as to be
                                                                     the event and the condition. Expert testimony is required
unreasonably prone to fail and release flammable fluids in
                                                                     when an issue involves matters beyond jurors' common
an environment conducive to ignition and fire; that such
                                                                     understanding. See Alexander v. Turtur & Assocs., 146
defects caused the release of diesel fuel; and that a defectively
                                                                     S.W.3d 113, 119–20 (Tex.2004). Whether expert testimony
designed and placed ignition source then caused ignition of
                                                                     is necessary to prove a matter or theory is a question of law.
the released diesel.
                                                                     See FFE Transp. Servs., Inc. v. Fulgham, 154 S.W.3d 84,
                                                                     89 (Tex.2004). In Fulgham we held that expert testimony
 [13] To survive summary judgment on their theory that
                                                                     was necessary to establish the standard of care for connecting
a defect in the tractor's fuel system was the cause of
                                                                     refrigerated trailers to tractors and for the frequency and type
the fire, the Tamezes were required to present more than
                                                                     of inspection and maintenance of such connectors, because
evidence of a fuel leak. See Ford Motor Co. v. Ridgway,
                                                                     those matters were not within the general experience and
135 S.W.3d 598, 600–01 (Tex.2004) (affirming summary
                                                                     common understanding of laypersons. Id. at 91; See also
judgment because the plaintiffs' evidence “establishe[d] only
                                                                     Turbines, Inc. v. Dardis, 1 S.W.3d 726, 738 (Tex.App.-
that a fire occurred, and [the plaintiffs' expert] could say no
                                                                     Amarillo 1999, pet. denied) (holding that performance of
more than that he ‘suspects' the electrical system caused the
                                                                     mechanical work on turbine aircraft engines is not within the
fire”). They had to present evidence that (1) the diesel fuel
                                                                     experience of a layperson).
leaked because of one or more of the alleged defects, and (2)
the leak caused by the defect was the ignition point for the fire.



                © 2015 Thomson Reuters. No claim to original U.S. Government Works.                                                   9
Mack Trucks, Inc. v. Tamez, 206 S.W.3d 572 (2006)
50 Tex. Sup. Ct. J. 80

                                                                       cable could possibly have ignited the fire is not evidence that
 [17]    A lay juror's general experience and common
                                                                       it probably did so. The expert who provided this testimony
knowledge do not extend to whether design defects such as
                                                                       could not determine whether the cable arced before the fire
those alleged in this case caused releases of diesel fuel during
                                                                       was ignited or as it was being burned by an otherwise-ignited
a rollover accident. See Nissan Motor Co., 145 S.W.3d at
                                                                       fire. As proof of what caused the fire, such evidence is
137 (stating that we have consistently required competent
                                                                       speculative and is insufficient to prevent summary judgment.
expert testimony and objective proof that a defect caused the
                                                                       See Wal–Mart Stores, Inc. v. Gonzalez, 968 S.W.2d 934, 936
condition complained of). Nor would a lay juror's general
                                                                       (Tex.1998).
experience and common knowledge extend to determining
which of the fire triangle's fuel sources, diesel from the
                                                                        *584 [19] The plaintiffs also rely on circumstantial
tractor or crude from the tanker, would have first ignited,
                                                                       evidence suggesting that the fire quickly reached Tamez. That
or the source for the first ignition. That part of Elwell's
                                                                       evidence is consistent with the Tamezes' theory that the fire
testimony that was properly before the trial court and the
                                                                       originated with fuel from the tractor's diesel fuel system. But,
testimony of other experts as to the amount of time they
                                                                       such evidence does not make it more likely than not that the
spent in studying, investigating, and working in the field of
                                                                       battery or some other allegedly improperly located ignition
post-collision, fuel-fed fires demonstrated the intricacies of
                                                                       source ignited diesel from the tractor, as opposed to other
such subject matter. Issues such as those regarding the fire's
                                                                       possible sources of ignition such as the cargo of crude oil.
cause(s) present matters beyond the general understanding
                                                                       Accordingly, the circumstantial evidence is not sufficient to
and common knowledge of lay jurors. Proof of causation in
                                                                       prevent summary judgment. Id.
this case also required expert testimony.

The summary judgment evidence presented by the Tamezes
did not contain proof that any of the possible sources of diesel                               V. Conclusion
fuel was more likely than any other, or more likely than the
crude oil cargo, to have been the source of liquids that first         The plaintiffs produced no evidence that the alleged defects
caught fire. Accordingly, there is no evidence that the source         of the Mack tractor were a cause-in-fact of injuries to Abram
was one of the alleged fuel system defects. Kindred v. Con/            Tamez. Because causation is a required element of each of
Chem, Inc., 650 S.W.2d 61, 63 (Tex.1983).                              the Tamezes' claims, the trial court properly granted summary
                                                                       judgment. Accordingly, we reverse the court of appeals'
 [18] The Tamezes also alleged that several ignition sources           judgment and render judgment that the plaintiffs take nothing.
were located in areas likely to contain diesel that would be
released in a wreck. The Tamezes point to expert testimony
                                                                       All Citations
that an arced battery cable found in the tractor could possibly
have ignited the fire. But, testimony that the battery or its          206 S.W.3d 572, 50 Tex. Sup. Ct. J. 80

End of Document                                                    © 2015 Thomson Reuters. No claim to original U.S. Government Works.




                © 2015 Thomson Reuters. No claim to original U.S. Government Works.                                               10
Renaissance Healthcare Systems, Inc. v. Swan, 343 S.W.3d 571 (2011)


                                                                           a medical malpractice action under an abuse of
                                                                           discretion standard.
                      343 S.W.3d 571
                 Court of Appeals of Texas,                                Cases that cite this headnote
                        Beaumont.

     RENAISSANCE HEALTHCARE SYSTEMS,                                 [2]   Appeal and Error
         INC., Renaissance Hospital, Inc., and                                Abuse of discretion
        Houston Community Hospital, Inc. d/                                A trial court abuses its discretion if it acts in
         b/a Renaissance Hospital, Appellants,                             an arbitrary or unreasonable manner without
                           v.                                              reference to any guiding rules or principles.
  Dianne SWAN, individually and as Representative
                                                                           Cases that cite this headnote
     of the Estate of Jennifer Renee Abshire, and
       for and on behalf of any Wrongful Death
   Beneficiaries of Jennifer Renee Abshire, Jason                    [3]   Appeal and Error
                                                                              Abuse of discretion
   Holst, Individually, and David “Andrew” Maxey,
      as next Friend of Trista Maxey, Appellees.                           A trial court abuses its discretion if it fails to
                                                                           analyze or apply the law correctly.
         No. 09–10–00433–CV. | Submitted
                                                                           Cases that cite this headnote
       March 3, 2011. | Decided June 30, 2011.

Synopsis                                                             [4]   Health
Background: Deceased patient's mother, individually and as                     Affidavits of merit or meritorious defense;
representative of patient's estate, and other plaintiffs brought a         expert affidavits
medical malpractice action against hospital and several other
                                                                           When determining whether the expert report in
medical defendants. Defendants subsequently filed a motion
                                                                           a medical malpractice action represents a good-
to dismiss, challenging the sufficiency of the plaintiffs' expert
                                                                           faith effort to comply with the definition of an
reports. The 60th District Court, Jefferson County, Gary
                                                                           expert report in applicable statute, the trial court's
Sanderson, J., denied the motion, and defendants appealed.
                                                                           inquiry is limited to the four corners of the report.
                                                                           V.T.C.A., Civil Practice & Remedies Code §
                                                                           74.351(a), (r)(6).
[Holding:] The Court of Appeals, Steve McKeithen, C.J.,
held that plaintiffs' expert reports, considered together,                 Cases that cite this headnote
discussed the standards of care, breach, and causation with
sufficient specificity as to each of the defendants to inform        [5]   Health
them of the conduct plaintiffs called into question.                           Affidavits of merit or meritorious defense;
                                                                           expert affidavits
Affirmed.                                                                  To constitute a “good-faith effort,” the expert
                                                                           report in a medical malpractice action must
                                                                           discuss the standard of care, breach, and
                                                                           causation with sufficient specificity to inform the
 West Headnotes (14)                                                       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.
 [1]     Appeal and Error
                                                                           V.T.C.A., Civil Practice & Remedies Code §
            Rulings on Motions Relating to Pleadings
                                                                           74.351(a), (r)(6).
         Appellate court reviews a trial court's decision
         regarding the adequacy of an expert report in                     Cases that cite this headnote




                © 2015 Thomson Reuters. No claim to original U.S. Government Works.                                                 1
Renaissance Healthcare Systems, Inc. v. Swan, 343 S.W.3d 571 (2011)


                                                                   not be addressed by appellate court on appeal
 [6]   Health                                                      following trial court's denial of defendants'
           Affidavits of merit or meritorious defense;             motion to dismiss, challenging the sufficiency
       expert affidavits                                           of plaintiffs' expert reports. V.T.C.A., Civil
       When a plaintiff in a medical malpractice action            Practice & Remedies Code § 74.351(a), (r)(6).
       sues more than one defendant, the expert report
       or reports must set forth the standard of care              Cases that cite this headnote
       applicable to each defendant and explain the
       causal relationship between each defendant's         [10]   Joint Adventures
       individual acts and the injury. V.T.C.A., Civil                  Rights and Liabilities of Parties as to Third
       Practice & Remedies Code § 74.351(a), (r)(6).               Persons

       Cases that cite this headnote                               The theory of joint enterprise imputes liability to
                                                                   one who, although he did no wrong, is so closely
                                                                   connected to the wrongdoer that it justifies the
 [7]   Health                                                      imposition of vicarious liability.
           Affidavits of merit or meritorious defense;
       expert affidavits                                           Cases that cite this headnote
       An expert report in a medical malpractice
       action need not marshal all of the plaintiff's       [11]   Health
       proof; however, a report that omits any of the                  Hospitals or Clinics
       elements required by statute does not constitute
                                                                   Health
       a good-faith effort to comply with the statutory
                                                                       Affidavits of merit or meritorious defense;
       definition of an expert report. V.T.C.A., Civil
                                                                   expert affidavits
       Practice & Remedies Code § 74.351(a), (r)(6).
                                                                   When a medical malpractice petition asserts
       Cases that cite this headnote                               theories of liability that are purely vicarious, the
                                                                   conduct being called into question involves legal
                                                                   principles, and is not measured by a medical
 [8]   Health
                                                                   standard of care, since hospital entities cannot
           Affidavits of merit or meritorious defense;
                                                                   practice medicine; therefore, an expert report in
       expert affidavits
                                                                   such a case that adequately implicates the actions
       With regard to determining the adequacy of an               of the entity's agents or employees is sufficient.
       expert report in a medical malpractice action, the          V.T.C.A., Civil Practice & Remedies Code §
       expert must explain the basis of his statements to          74.351(a), (r)(6).
       link his conclusions to the facts. V.T.C.A., Civil
       Practice & Remedies Code § 74.351(a), (r)(6).               3 Cases that cite this headnote

       Cases that cite this headnote
                                                            [12]   Health
                                                                       Affidavits of merit or meritorious defense;
 [9]   Appeal and Error                                            expert affidavits
           On Separate Appeal from Interlocutory
                                                                   Although the expert report in a medical
       Judgment or Order
                                                                   malpractice action must discuss the standard
       Several of defendants' claims in medical                    of care, breach, and causation with sufficient
       malpractice action, including that the peer                 specificity to inform the defendant of the conduct
       review privilege immunized them from suit, that             the plaintiff has called into question and to
       respondeat superior did not apply, and that the             provide a basis for the trial court to conclude
       plaintiffs' expert reports stated an inappropriate          that the claims have merit, each specific factual
       standard of care for the nurses, were issues for            allegation of negligence does not need be
       either trial or summary judgment, and would



             © 2015 Thomson Reuters. No claim to original U.S. Government Works.                                          2
Renaissance Healthcare Systems, Inc. v. Swan, 343 S.W.3d 571 (2011)


        discussed in the expert report. V.T.C.A., Civil
        Practice & Remedies Code § 74.351(a), (r)(6).                  1 Cases that cite this headnote

        1 Cases that cite this headnote


 [13]   Evidence                                              Attorneys and Law Firms
            Due care and proper conduct in general
                                                               *573 Gordon M. Carver, III, Heather M. Morlang, Watt
        Health                                                Beckworth Thompson & Henneman, L.L.P., Houston, for
            Affidavits of merit or meritorious defense;       appellants.
        expert affidavits
        Physician's lack of involvement in hospital           Brian D. Sutton, Joseph N. Jannise, Jr., Stephanie H. Harris,
        quality assurance committees since 1997 did not       Sutton & Jacobs, L.L.P., Beaumont, for appellees.
        render him unable to qualify as an expert witness
                                                              Before McKEITHEN, C.J., KREGER and HORTON, JJ.
        and offer an expert report in medical malpractice
        action. V.T.C.A., Civil Practice & Remedies
        Code § 74.403(a).
                                                                                     *574 OPINION
        Cases that cite this headnote
                                                              STEVE McKEITHEN, Chief Justice.

 [14]   Health                                                This is an accelerated appeal from the trial court's order
            Affidavits of merit or meritorious defense;       denying a motion to dismiss filed pursuant to section 74.351
        expert affidavits                                     of the Texas Civil Practice and Remedies Code. See Tex.
        Plaintiffs' expert reports in medical malpractice     Civ. Prac. & Rem.Code Ann. § 74.351 (West 2011); see also
        action, considered together, discussed the            id. § 51.014(a)(9) (West 2008). We affirm the trial court's
        standards of care, breach, and causation with         judgment.
        sufficient specificity as to each of the defendants
        to inform them of the conduct plaintiffs called
        into question and to provide a basis for the trial                          BACKGROUND
        court to conclude that the claims had merit;
        physician, board certified in anesthesiology and      Dianne Swan, individually and as representative of the
        internal medicine, explained that the standard of     estate of Jennifer Renee Abshire, and for and on behalf
        care required physicians and nursing personnel        of any wrongful death beneficiaries of Abshire; Jason
        to recognize the signs of hemorrhage, and that        Holst, individually; and David “Andrew” Maxey, as
        if the nurses had promptly recognized deceased        next friend of Trista Maxey, (collectively “appellees”)
        patient's symptoms, summoned a physician to           brought a healthcare liability claim against Renaissance
        patient's bedside, and instituted the chain of        Healthcare Systems, Inc., Renaissance Hospital, Inc., and
        command, patient would “more likely than not          Houston Community Hospital, Inc. d/b/a Renaissance
        have been appropriately treated and her life          Hospital (collectively “appellants”), and other defendants. 1
        saved,” and second physician indicated that           According to appellees, Dr. John Q.A. Webb, who was
        defendants had a duty to follow applicable            treating Abshire for a herniated disc, referred Abshire to Dr.
        standards in credentialing physicians, and that if    Merrimon Baker, an orthopedic surgeon. Appellees contend
        they had denied or revoked orthopedic surgeon's       that Webb was “acting as an agent and/or employee of and/
        surgical credentials, in all reasonable medical       or on behalf of” one or more of the hospital defendants.
        probability, a competent surgeon would have           Appellees assert that Baker performed a bilateral lumbar
        operated on patient, patient's artery would not       laminectomy and diskectomy on Abshire at Renaissance
        have been severed, and she would not have died.       Hospital, and during the surgery, Baker transected Abshire's
        V.T.C.A., Civil Practice & Remedies Code §            “right internal iliac artery, failed to recognize that he had
        74.351(a), (r)(6).                                    done so, and thus failed to repair the artery prior to closing.”



               © 2015 Thomson Reuters. No claim to original U.S. Government Works.                                         3
Renaissance Healthcare Systems, Inc. v. Swan, 343 S.W.3d 571 (2011)


Abshire suffered massive internal hemorrhaging, which led         appellants' objections and denied appellants' motions to
to cardiac arrest and her death.                                  dismiss. Appellants then filed this appeal, in which they
                                                                  present three issues for our review.
1      In an earlier appeal, we addressed the adequacy of the
       expert reports as to defendants Beaumont Spine & Sports    2        “FACHE” stands for “Fellow of the American College
       Medicine Clinic, Inc., individually and d/b/a Beaumont              of Healthcare Executives.”
       Spine Pain & Sports Medicine, Beaumont Spine &
       Sports Medicine, Dr. John Q.A. Webb, John Q.A. Webb,
       Jr., M.D., P.A., individually and d/b/a Beaumont Medical                     THE EXPERT REPORTS
       Clinic, and Beaumont Medical Clinic. Beaumont Spine
       Pain & Sports Medicine Clinic, Inc. v. Swan, No. 09–
       10–00347–CV, 2011 WL 379168 (Tex.App.-Beaumont                                  Dr. Emilio B. Lobato
       Feb. 3, 2011, pet. denied).
                                                                  In his initial report, Lobato, who is board certified in
Appellees asserted causes of action against appellants for        anesthesiology and internal medicine, explained that Abshire
malicious credentialing of Baker, negligence, and gross           was admitted to “Renaissance Hospital Houston” on August
negligence. According to appellees' petition, because Webb        11, 2006, to undergo a lumbar laminectomy and bilateral
was acting as the “agent, employee, member, officer[,] and/       diskectomy of L5–S1. Lobato noted that during surgery,
or director” of Beaumont Spine Pain & Sports Medicine             Abshire's blood pressure decreased to 80/50, and when
Clinic, Inc. (“Beaumont Spine”), and appellants allegedly         Abshire was moved to the PACU (post-anesthesia care unit)
owned and operated Beaumont Spine, appellees' allegations         after surgery, her blood pressure was 88/31, and her heart rate
of negligence against Webb also applied to appellants under       was 121. According to Lobato, “[t]he PACU record reveals
the doctrine of respondeat superior. According to appellees,      a pattern of persistent hypotension since her admission with
appellants failed to maintain an appropriate standard of          values as low as 50 mm Hg systolic. This was accompanied
care by permitting physicians whom appellants knew to be          by extreme tachycardia eventually followed by terminal
incompetent and unqualified to operate on Abshire.                bradycardia.” Lobato opined as follows:

Appellees also contended that, by permitting nurses and               In my professional opinion, and with a great degree
other staff members who lacked appropriate training and               of medical certainty, Ms. Abshire suffered from severe
experience to care for Abshire, appellants failed to carefully        hemorrhagic shock following a surgical transection caused
evaluate and select competent nurses and other staff members,         by Dr. Baker of her right iliac artery which occurred
adequately train nurses and other staff members, adequately           during her lumbar laminectomy. Ms. Abshire continued
supervise the treatment provided by nurses and other staff            to hemorrhage in the PACU causing hypovolemic shock
members, and maintain an appropriate standard of care. In             which went inappropriately treated, thus, leading to
addition, appellees alleged that the various defendants were          her demise. In other words, Ms. Abshire's death was
involved in a joint enterprise “for monetary profit via the           directly caused by Dr. Baker's trans[e]ction of the right
delivery of medical services” to Abshire.                             internal iliac artery combined with the failure of Dr.
                                                                      Baker, Dr. McHargue [Abshire's anesthesiologist] and the
Appellees filed expert reports authored by Dr. Emilio B.              PACU nursing staff to diagnose and [treat] the resulting
Lobato and Dr. J. Michael Simpson. Appellants objected to             hemorrhage and hypovolemic shock.
the reports and filed motions to dismiss. See *575 Tex.
Civ. Prac. & Rem.Code Ann. § 74.351(l ). Appellees filed              Ms. Abshire's death was a direct result of the negligent
a supplemental report by Lobato after appellants filed their          actions of the surgeon ..., the anesthesiologist ... and the
objections. The trial court sustained appellants' objections          PACU nurses from Renaissance Hospital in Houston[,]
and granted appellees a thirty-day extension to file additional       Texas. The untimely diagnosed and untreated severe
reports. Appellees subsequently filed additional reports from         hemorrhage suffered by Ms. Abshire was a direct and
                                                                      proximate cause of her death. The lack of timely
Dr. Keith E. Miller and Arthur S. Shorr, FACHE, 2 as
                                                                      identification and appropriate treatment by the above care
well as a supplemental report from Shorr. After appellants
                                                                      providers was directly responsible for her prolonged state
filed objections and motions to dismiss concerning the
                                                                      of shock, leading to her untimely death.
additional and supplemental reports, the trial court overruled



               © 2015 Thomson Reuters. No claim to original U.S. Government Works.                                              4
Renaissance Healthcare Systems, Inc. v. Swan, 343 S.W.3d 571 (2011)


According to Lobato, Abshire “was clearly manifesting           that the standard of care “requires that a qualified PACU
enough signs of hypovolemic shock that a medical student        nurse recognize signs and symptoms of hypovolemia such
should have diagnosed it.” Lobato stated that Abshire           as tachycardia and progressive hypotension (assessment
exhibited symptoms of “a class IV hemorrhagic shock             and nursing diagnosis).” Lobato explained that PACU
which is clinically associated with more than 40% blood         nurses should also know that treating hypovolemia requires
loss[,]” and that a class IV hemorrhage is “immediately life    “aggressive fluid resuscitation and frequent evaluation of
threatening.” Lobato explained that the symptoms of class IV    the response to treatment[.]” In addition, Lobato opined as
hemorrhage include “marked tachycardia, decreased systolic      follows:
blood pressure, narrowed pulse pressure (or immeasurable
diastolic pressure), markedly decreased (or no) urinary           The standard of care also demands that the nursing staff
output, depressed mental status (or loss of consciousness),       inform the surgeon and the anesthesiologist of severe
and cold, pale skin.”                                             hypotension particularly if it is recurring and demand
                                                                  their presence to personally assess. A qualified PACU
Lobato opined that “the standard of care requires that            nurse also has the obligation to act as the patient's
both physicians and nursing *576 personnel recognize the          advocate. In the presence of a clinically unstable patient[,]
signs and symptoms of progressive and severe hemorrhage.”         [a] PACU nurse should have insisted that either Dr. Baker
Lobato stated that severe tachycardia without concomitant         or Dr. McHargue come to and remain at the bedside.
elevation of blood pressure, followed shortly by hypotension,     In addition, should the anesthesiologist or neurosurgeon
pallor, and obtundation, are the classic signs of hypovolemic     fail to institute the right treatment[,] ... the nurse has
shock, and the injury must be timely recognized and treated       not only the right but the obligation to rapidly institute
in a timely fashion because failure to do so will result in a     the chain of command. This requires the involvement of
fatality. Lobato stated as follows:                               a qualified supervisor and involves the summoning of
                                                                  another qualified anesthesiologist and surgeon to provide
            Ms. Abshire exhibited florid signs                    the appropriate care of the patient.
            of hypovolemic shock including
            tachycardia, hypotension, pallor,                     PACU Nurses at the Hospital caring for Ms. Abshire
            decrease in mental status and                         were obligated to work on the patient's behalf, not
            progressive hypoxemia eventually                      the physician's. In this case, the blatant neglect by Dr.
            culminating into pulseless electrical                 Baker and the mismanagement by Dr. McHargue made
            activity. The fact that Ms. Abshire                   the PACU nurses the last resort to prevent her death.
            displayed flagrant hemorrhagic shock                  Instead of behaving as patients' advocates, PACU Nurses
            without appropriate therapy in the                    limited themselves to record the progression of Ms.
            eyes of anesthesiologists, orthopaedic                Abshire's hemorrhage towards her inexorable death and
            surgeon, and post anesthesia care                     to uncritically institute what was clearly suboptimal and
            unit nurses, is beyond belief. All of                 incomplete therapy.
            these health care team members share
            responsibility for the eventual demise              Lobato explained that the PACU nurses failed to recognize
            that Ms. Abshire suffered.                          severe and progressive hypovolemia, failed to demand
                                                                more aggressive fluid resuscitation, failed to demand that a
                                                                physician be continuously present at Abshire's bedside, and
With respect to appellants in particular, Lobato explained
                                                                failed “to *577 institute the chain of command to provide a
that he understood from reviewing the original petition that
                                                                qualified medical provider to institute the right therapy in a
“the Renaissance entities have common ownership, are all
                                                                timely fashion....” According to Lobato, if the PACU nursing
part of the same healthcare system, and/or are all involved
                                                                staff had taken appropriate measures, “more likely than not,
in a joint enterprise for the provision of healthcare to
                                                                at least one physician caring for Ms. Abshire would have
patients such as Ms. Abshire.” Lobato stated, “Therefore,
                                                                realized that they were dealing with a hemorrhage, ... and once
my criticisms of the nursing staff of Renaissance Hospital—
                                                                that connection had been made, Ms. Abshire more likely than
Houston are directed to the remaining Renaissance entities
                                                                not would have been appropriately treated and her life saved.”
as well since they all have related or common ownership
                                                                Lobato stated that the failure of Baker, McHargue, and the
and/or are all involved in a joint enterprise.” Lobato opined
                                                                PACU nursing staff to follow the standards of care “resulted


               © 2015 Thomson Reuters. No claim to original U.S. Government Works.                                          5
Renaissance Healthcare Systems, Inc. v. Swan, 343 S.W.3d 571 (2011)


in the irreversible shock suffered by Ms. Jennifer Abshire and                in the PACU, and as it expanded,
ultimately her death. Thus, their actions were[,] in reasonable               provided easily accessible evidence
medical probability[,] the proximate cause of Ms. Abshire's                   that there was a problem in the area
death. Had the standard of care been observed ..., it is my                   where the surgery was performed. The
opinion that her untimely death would have been prevented.”                   expanding abdomen, when coupled
                                                                              with the clinical picture of the falling
In his supplemental report, Lobato stated as follows:                         blood pressures, should have alerted
                                                                              the nurses of the strong possibility of
            I am not suggesting ... that nurses                               hemorrhage.”
            should be “practicing medicine” or
            prescribing treatments, but rather, that
                                                                  Lobato also explained in his supplemental report that a
            they should be performing adequate
                                                                  hospital must “properly train its PACU nursing staff to
            nursing assessments and nursing
                                                                  recognize hypovolemia in post-surgical patients, to know its
            diagnoses that they are not only
                                                                  potential causes, and to act quickly and decisively in the face
            qualified to make but are obligated to
                                                                  of such signs and symptoms....” Lobato also stated as follows:
            make. In this instance, it is the duty of
            a PACU nurse to recognize signs and                               Again, by this I do not mean that
            symptoms of hypovolemia because                                   the Hospital should have trained its
            of the likelihood that hypovolemia                                staff to make medical diagnoses or
            in a post-surgical patient indicates                              prescribe treatment, but rather to train
            hemorrhage, and because of the                                    them to be aware of the signs and
            possible fatal consequences of such a                             symptoms of major and potentially
            hemorrhage. This clearly falls within                             lethal post-operative complications....
            the category of “nursing diagnoses”                               If the Hospital in this case had
            and “nursing assessments.”                                        conducted any such training, it was
                                                                              clearly ineffective, as the PACU
Lobato further noted a nurse should pay close attention to
                                                                              nurses caring for Ms. Abshire *578
a patient's physical appearance, and Lobato explained that
                                                                              exhibited no signs of recognizing what
“the autopsy report notes that upon external examination,
                                                                              was happening to Ms. Abshire, nor did
Ms. Abshire's skin color was ‘strikingly pale’ and that
                                                                              they take any of the required actions ...
her abdomen was protuberant.” Lobato stated that upon
                                                                              which would have led to a diagnosis
reviewing the autopsy photographs of Abshire's abdomen, he
                                                                              of the hemorrhage and hypovolemia in
noted that Abshire's abdomen
                                                                              time to treat it and save Ms. Abshire's
            is so protuberant as to resemble that                             life.
            of a woman in late pregnancy. This
                                                                  Lobato explained that if the nurses had recognized Abshire's
            distension is visible to the naked
                                                                  hypovolemic shock and demanded “the immediate presence
            eye, even through her hospital gown,
                                                                  of the operating surgeon at the bedside for an immediate
            and would have been visible to the
                                                                  consultation with a general or vascular surgeon while
            PACU nurses and anyone else who
                                                                  read[y]ing an operating room for an emergency exploratory
            happened to glance in the area of
                                                                  laparotomy,” a surgeon would have recognized that Abshire
            her abdomen. Her abdomen would
                                                                  was suffering from an acute intra-abdominal hemorrhage and
            not have suddenly swelled to that
                                                                  “taken Ms. Abshire to the operating room immediately in
            size in the moments before her
                                                                  order to identify the bleeding, clamp and repair the lacerated
            death; rather, the abdomen protruded
                                                                  vessel, thus effectively stopping the hemorrhage.” Lobato
            because it was filling with the 4680
                                                                  opined that although Abshire would have required significant
            milliliters of blood hemorrhaged from
                                                                  blood transfusions, as well as post-operative care in the
            the severed artery. The expansion of
                                                                  intensive care unit, “had she been returned to the operating
            the belly would have occurred during
                                                                  room shortly after her arrival to the PACU, it is very likely
            the entire course of Ms. Abshire's time



               © 2015 Thomson Reuters. No claim to original U.S. Government Works.                                            6
Renaissance Healthcare Systems, Inc. v. Swan, 343 S.W.3d 571 (2011)


(in other words, more likely than not) that she would have                      have been the surgeon operating on
survived.”                                                                      Ms. Abshire. In all reasonable medical
                                                                                probability, had Dr. Baker, a physician
                                                                                with a well-known reputation for
                                                                                surgical incompetence, not been Ms.
                   Dr. J. Michael Simpson
                                                                                Abshire's surgeon, *579 her right
Simpson explained that he is a board-certified orthopedic                       internal iliac artery would not have
surgeon, and he has served in hospital administration,                          been transected and the transaction left
including his present position as medical director of St.                       undiscovered to cause exsanguination
Mary's Spine Center. Simpson stated that, as a result of his                    and death.
experience as a practicing orthopedic surgeon and in hospital
administration, he has “knowledge of the standards of care         Simpson also stated that based upon the documents he
applicable to the credentialing of physicians, and in particular   had reviewed, Webb's employer, Beaumont Spine Pain &
surgeons, to practice in hospitals[,]” as well as the standards    Sports Medicine Clinic, Inc. was owned and operated by
of care applicable to a physician who is referring a patient to    the various Renaissance Hospital entities, “thus making Dr.
another physician. Simpson explained that Webb's records do        Webb an employee” of the Renaissance entities. Accordingly,
not indicate how Webb arranged Abshire's referral to Baker         Simpson explicitly incorporated by reference his criticisms
or whether Webb investigated Baker's competence prior to           of Webb as to the Renaissance entities. Simpson also
making the referral. Simpson stated, “[A]ccording to public        explained that his “criticisms of the nursing staff and
documents attached to Plaintiff's Original Petition, which I       hospital administration responsible for credentialing Dr.
have reviewed, by the time Dr. Webb referred Ms. Abshire to        Baker at Renaissance Hospital—Houston, are directed to the
Dr. Baker, Dr. Baker had a well-known public history, both         remaining Renaissance entities as well since they all have
in the medical community and in the community at large, for        related or common ownership and/or are all involved in a joint
incompetence and drug use.”                                        enterprise.”

Simpson explained that two appellate court opinions, both of       According to Simpson, Renaissance Hospital had a duty
which were published before Webb referred Abshire to Baker,        to follow JCAH (Joint Commission on Accreditation of
set forth Baker's history, and that Simpson had served as an       Hospitals) 3 standards in credentialing physicians, and JCAH
expert witness in one of the cases. According to Simpson,          standards required Baker to disclose his record of malpractice
one of the appellate opinions involved a patient who suffered      records and settlements. Simpson also noted that because
an injury that was quite similar to Abshire's injury. Simpson      the appellate opinions and the state board complaints were
also noted that at the time of the referral, the Texas Board of    publicly accessible, “a reasonably prudent credentialing
Medical Examiners (“TBME”) had filed several complaints            committee should have limited, denied[,] or revoked Dr.
against Baker. Simpson stated that information contained in        Baker's privileges.” Simpson stated that Renaissance Hospital
the TBME complaints was publicly accessible.                       failed to follow the proper credentialing process because
                                                                   Baker's malpractice history “would have been well known
According to Simpson, the standard of care required Webb           in medical and hospital administration circles in the Houston
to “have a basic knowledge of the skills and professional          area. Had the Hospital done even a bare minimum of
reputation of the physician to whom the patient is being           investigation of Dr. Baker's malpractice history, it should
referred.” Simpson explained that the standard of care also        have never granted privileges to Dr. Baker.” According to
required a referring physician to “refrain from referring a        Simpson, appellants could have decided to deny or revoke
patient to a physician with a well-documented history of drug      Baker's credentials
use, malpractice, and repeated complaints by the board of
medical examiners.” Simpson opined that Webb's referral of         3       See Mitchell v. Amarillo Hosp. Dist., 855 S.W.2d 857,
Abshire to Baker
                                                                           867 (Tex.App.-Amarillo 1993, writ denied) (discussing
                                                                           the meaning of the acronym “JCAH”).
             was the direct cause of Dr. Baker's
             performing surgery on Ms. Abshire,
             absent which, Dr. Baker would not                         based solely on information that was in the public domain
                                                                       at the time, or at the very least, the sheer volume of


                © 2015 Thomson Reuters. No claim to original U.S. Government Works.                                                7
Renaissance Healthcare Systems, Inc. v. Swan, 343 S.W.3d 571 (2011)


  this information available to the public, and well-known       Abshire more likely than not would have been appropriately
  throughout the medical community, should have alerted          treated and her life saved.”
  the Hospital to do a thorough investigation of Dr. Baker
  and his malpractice history and state board status, which
  surely would have resulted in any reasonable credentialing
                                                                                      Dr. Keith E. Miller
  committee's denying such privileges.
  Simpson opined that if the hospital had denied or revoked      Miller, a family physician with experience serving on hospital
  Baker's surgical credentials, in all reasonable medical        committees, explained that he is familiar with the standards
  probability, a competent surgeon would have operated on        of care applicable to physicians, nurses, hospitals, and
  Abshire, Abshire's artery would not have been severed, and     emergency departments that treat patients such as Abshire. In
  Abshire would not have bled to death.                          addition, Miller explained that he had previously served as a
Simpson further explained that the standard of care              commissioner of the Texas Medical Board. Miller stated as
requires PACU nurses to recognize signs and symptoms of          follows:
hypovolemia as part of assessment and nursing diagnosis,
to insist upon rapid intravenous administration of fluids,                   According to public documents,
and to inform the surgeon and anesthesiologist of severe                     information available to the public
hypotension, “particularly if it is recurring and demand their               on the Texas Medical Board website,
presence to personally assess.” Simpson explained as follows:                and in a newsletter published by
                                                                             the Texas Medical Board which is
            A qualified PACU nurse also has                                  mailed to every physician in Texas,
            the obligation to act as the patient's                           including Dr. Webb, Dr. Baker had
            advocate. In the presence of a                                   a well-known public history, both in
            clinically unstable patient[,] [a] PACU                          the medical community and in the
            nurse should have insisted that either                           community at large, for incompetence
            Dr. Baker or Dr. McHargue come                                   and drug use at the time Dr. Webb
            to and remain at the bedside. In                                 made the referral of Ms. Abshire.
            addition, should the anesthesiologist
            or neurosurgeon fail to institute the                Miller noted that when Webb referred Abshire to Baker,
            right treatment ... the nurse has not                Baker was defending several complaints filed by the Texas
            only the right but the obligation                    Medical Board. In addition, Miller stated that Baker “had also
            to rapidly institute the chain of                    been the subject of a rather notorious court case [,] during
            command. This requires the *580                      which it was reported that Dr. Baker had ... drug problems,
            involvement of a qualified supervisor                mental health problems[,] and erratic behavior, and ... he had
            and involves the summoning of                        lost privileges at two hospitals.”
            another qualified anesthesiologist and
            surgeon to provide the appropriate care              According to Miller, the standard of care required Webb to
            of the patient.                                      use “reasonable medical judgment and effort in determining
                                                                 the need for a referral and in selecting a competent physician
Simpson opined that the hospital's nurses breached the           to which [Abshire] could appropriately be referred.” Miller
standard of care by failing to (1) recognize severe and          stated that all physicians in Texas receive the Texas Medical
progressive hypovolemia, (2) demand more aggressive fluid        Board newsletter and are expected to be familiar with its
resuscitation, (3) demand that a physician be continuously       contents, including information about disciplinary actions
present at Abshire's bedside, and (4) institute the chain of     taken by the board against physicians. Miller also indicated
command so that a qualified medical provider could have          that the standard of care required that Webb should not have
timely instituted the proper treatment. According to Simpson,    referred Abshire to Baker “for medical care due to his well-
if the PACU nurses had undertaken appropriate measures,          known history of drug use, erratic behavior[,] and most of all,
“more likely than not, at least one physician caring for Ms.     his history of serious adverse patient outcomes.”
Abshire would have realized that they were dealing with a
hemorrhage, ... and once that connection had been made, Ms.      Miller explained that Webb breached the standard of care
                                                                 by referring Abshire to Baker. Miller stated that “[a]


               © 2015 Thomson Reuters. No claim to original U.S. Government Works.                                           8
Renaissance Healthcare Systems, Inc. v. Swan, 343 S.W.3d 571 (2011)


reasonable physician practicing according to acceptable
standards of medical care would have used reasonable efforts           Before granting privileges, the organized medical staff
to ascertain the qualifications of physicians to which they            evaluates the following: Challenges to any licensure or
refer patients....” Miller opined that “[h]ad proper care ... been     registration; Voluntary and involuntary relinquishment of
given to Ms. Abshire[,] then more likely than not and to a             any license or registration; Voluntary and involuntary
reasonable degree of medical certainty and probability, Ms.            termination of medical staff membership; Voluntary and
Abshire would not have undergone surgery by Dr. Merrimon               involuntary limitation, reduction, or loss of clinical
Baker, would not have had her iliac artery mistakenly and              privileges; Any evidence of an unusual pattern or an
negligently severed during surgery, and would not have died.”          excessive number of professional liability actions resulting
Like Lobato and Simpson, Miller stated that because he                 in a final judgment against the applicant; Documentation
understood that appellants *581 owned Beaumont Spine,                  as to the applicant's health status; Relevant practitioner-
where Webb practiced medicine, Miller incorporated his                 specific data are compared to aggregate data, when
criticisms of Webb as to appellants.                                   available; Morbidity and mortality data, when available.

                                                                       Each reappraisal includes information concerning
                                                                       professional performance, including clinical and technical
                  Arthur S. Shorr, FACHE                               skills and information from hospital performance
                                                                       improvement activities, when such data are available.
Shorr stated that he is board certified in hospital and
healthcare administration, and is a Fellow of the American                ...
College of Healthcare Executives. Shorr also stated that he
has worked in senior executive management at acute care                The applicant's ability to perform privileges requested
hospitals for sixteen years, and he is also president of Arthur        must be evaluated. This evaluation is documented in the
S. Shorr & Associates, Inc., a management consulting firm              individual's credentials file....
that provides consulting services to hospitals and physicians.
                                                                       At the time of renewal of privileges, the organized medical
Shorr explained that his background, training, and experience
                                                                       staff evaluates individuals for their continued ability to
make him “an expert in the administrative community
                                                                       provide quality care, treatment, and services for the
standards applicable to all acute care hospitals in the United
                                                                       privileges requested as defined in the medical staff bylaws.
States, including Renaissance Hospital in Houston.”
                                                                          ...
Shorr explained that the administrative community standards
for hospitals in Texas are promulgated by the Center                   The process for renewal of privileges involves the same
for Medicare & Medicaid Services (CMS), the Texas                      steps ... and additionally requires the medical staff to
Department of Health, The Joint Commission, and the                    evaluate a practitioner's ability to perform the privileges
American Osteopathic Association (AOA), and he explained               requested based upon his or her performance during the
that the Joint Commission and AOA standards applied                    period of time he or she has been practicing at the
to Renaissance Hospital. According to Shorr, “It is the                organization.... Current competence is determined by the
fiduciary responsibility of the hospital's governing body              results of performance improvement activities and peer
and chief executive officer ... to ensure that all applicable          recommendations.
administrative community standards are met.”
                                                                        *582 Evidence of current ability to perform privileges
                                                                       requested is required of all applicants for renewal of
Shorr stated that the Joint Commission standards for hospital
                                                                       clinical privileges.... The process should identify quality of
accreditation provide that when granting, renewing, or
                                                                       care, treatment and services issues for groups of individuals
revising clinical privileges, the relevant criteria “include
                                                                       as well as individual practitioners.
evidence of current competence[,]” as well as “peer
recommendations when required.” Shorr quoted as follows
                                                                     Shorr further explained that hospital licensing regulations
from the Joint Commission 2006 Hospital Accreditation
                                                                     contained in the Texas Administrative Code require a hospital
Standards:
                                                                     to have a governing body that is responsible for appointing
                                                                     medical staff, among other things. The governing body must



                © 2015 Thomson Reuters. No claim to original U.S. Government Works.                                               9
Renaissance Healthcare Systems, Inc. v. Swan, 343 S.W.3d 571 (2011)


“[d]etermine, in accordance with state law and with the              In his supplemental report, Shorr stated that Baker's
advice of the medical staff, which categories of practitioners       “checkered history” included being the subject of two well-
are eligible candidates for appointment to the medical               publicized judicial opinions, in which it was noted that Baker
staff; ... [e]nsure that criteria for selection include individual   was addicted to Vicodin, exhibited mood swings, and had a
character, competence, training, experience, and judgment”;          “significant malpractice history, including two wrong-limb
and “[e]nsure that the medical staff is accountable to the           surgeries and a retained sponge surgery.” Shorr also noted
governing body for the quality of care provided to patients[.]”      that as of August 16, 2005, the state medical board had filed
                                                                     complaints concerning Baker's care of six patients. Shorr
According to Shorr, the federal regulations applicable               indicated that he had reviewed materials from the board of
to Medicare/Medicaid facilities require that the hospital            medical examiners concerning each of the six patients, and
must have an effective governing body to determine                   he opined that in all of the cases, “Dr. Baker's actions or
which categories of practitioners are eligible candidates            omissions *583 fell below the standard of care.” Shorr stated
for appointment to the medical staff; appoint members of             that the medical board documents indicate that Baker had a
the medical staff “after considering the recommendations             continuing pattern of poor surgical outcomes and numerous
of the existing members of the medical staff”; “[e]nsure             surgical and post-operative complications. Shorr explained
that the medical staff is accountable to the governing               as follows: “It is my understanding that at the time Dr.
body for the quality of care provided to patients”; and              Webb referred Ms. Abshire to Dr. Baker in 2006, all of the
“[e]nsure [that] the criteria for selection are individual           above information, including the judicial opinions and more
character, competence, training, experience, and judgment[.]”        importantly the information from the medical board, were all
Shorr also explained that the hospital's medical staff “must         available to the public and were easily accessible through the
periodically conduct appraisals of its members” and “examine         internet.” Shorr opined that
credentials of candidates for medical staff membership
and make recommendations to the governing body on the                            the    Hospital    negligently    and
appointment of the candidates.” The medical staff must also                      maliciously        breached        the
“be well organized and accountable to the governing body for                     administrative             community
the quality of the medical care provided to patients.”                           standards ... by credentialing Dr.
                                                                                 Baker in the face of his well-
Shorr opined that Renaissance Hospital–Houston breached                          documented history of malpractice
the administrative community standards as follows:                               and professional incompetence in
                                                                                 performing similar procedures in
  The governing body and chief executive officer failed                          recent years; his well-documented
  to carry out their fiduciary duties to the community by                        history of drug addiction and mental
  maliciously and negligently granting orthopedic surgery                        problems; and his well-documented
  privileges to Dr. Baker, in light of his “well-documented                      history of loss of privileges at other
  history of malpractice and professional incompetence                           hospitals.
  in performing similar procedures in recent years[,]”
  “well-documented history of drug addiction and mental              Shorr explained that typical procedures used by hospitals
  problems[,]” and “history of loss of privileges at other           to comply with the applicable standards for credentialing
  hospitals.”                                                        physicians include requiring an applicant for privileges to
                                                                     complete an extensive application that requests information
According to Shorr, a prudent governing body and chief
                                                                     concerning the applicant's malpractice history, whether
executive officer, “acting reasonably, would conclude based
                                                                     the applicant has had privileges at other hospitals
upon Dr. Baker's history that granting orthopedic surgery
                                                                     denied or suspended, and peer recommendations; verifying
privileges to Dr. Baker would put the hospital's patients in
                                                                     the information on the application by checking peer
harm's way, and would act to protect the hospital's patients
                                                                     recommendations, reviewing licenses in other states, and
by denying such privileges[,]” and Renaissance Hospital—
                                                                     contacting such agencies as the state board of medical
Houston's failure “to prevent Dr. Baker from obtaining or
                                                                     examiners, state law enforcement agencies, and the drug
maintaining orthopedic surgery privileges at Renaissance
                                                                     enforcement agency; and consulting the National Practitioner
Hospital—Houston is evidence of its malicious acts.”
                                                                     Database. Shorr opined that if appellants had employed such



                © 2015 Thomson Reuters. No claim to original U.S. Government Works.                                            10
Renaissance Healthcare Systems, Inc. v. Swan, 343 S.W.3d 571 (2011)


procedures, they would have discovered Baker's extensive         abuses its discretion if it acts in an arbitrary or unreasonable
malpractice history and the fact that other institutions had     manner without reference to any guiding rules or principles.”
taken adverse actions against his privileges.                    Bowie Mem'l Hosp. v. Wright, 79 S.W.3d 48, 52 (Tex.2002).
                                                                 A trial court also abuses its discretion if it fails to analyze or
According to Shorr, appellants                                   apply the law correctly. Walker v. Packer, 827 S.W.2d 833,
                                                                 840 (Tex.1992).
  either failed to engage in a proper credentialing process in
  granting and/or renewing Dr. Baker's privileges, or chose to   A healthcare liability claimant must provide each defendant
  ignore the information gathered in such a process because a    physician and healthcare provider with an expert report no
  prudent governing body and chief executive officer, acting     later than the 120th day after the date of the filing of
  reasonably, would conclude, based on Dr. Baker's history,      the original petition. Tex. Civ. Prac. & Rem.Code Ann. §
  that granting orthopedic surgery privileges to Dr. Baker       74.351(a). The statute defines “expert report” as
  would put the hospital's patients in harm[']s way, and
  would act to protect the hospital's patients by denying such                a written report by an expert that
  privileges. The failure of the governing body and chief                     provides a fair summary of the expert's
  executive officer to prevent Dr. Baker from obtaining or                    opinions as of the date of the report
  maintaining orthopedic surgery privileges at the Hospital                   regarding applicable standards of care,
  is evidence of it[s] grossly negligent and malicious acts in                the manner in which the care rendered
  that the Hospital either failed to follow any credentialing                 by the physician or health care
  procedure at all, or if it did do any investigation, it knew                provider failed to meet the standards,
  of the extreme degree of risk Dr. Baker posed to its                        and the causal relationship between
  patients and credentialed him anyway. Either way, the                       that failure and the injury, harm, or
  Hospital's conduct involved an extreme degree of risk,                      damages claimed.
  considering the magnitude of potential harm of which the
  Hospital knew but nonetheless proceeded with conscious         Id. § 74.351(r)(6). If a plaintiff furnishes the required report
  indifference to the safety and welfare of its patients.        within the time permitted, the defendant may file a motion
                                                                 challenging the adequacy of the report. Id. § 74.351(l ).
  In other words, the Hospital breached numerous specified       Section 74.351(i) provides that a claimant may satisfy the
  administrative community standards, and thus, the standard     requirements of section 74.351
  of care, in granting Dr. Baker privileges to practice
  medicine and orthopedic surgery at its facility.                            by serving reports of separate experts
                                                                              regarding different physicians or
Finally, Shorr explained that because he understood that                      health care providers or regarding
the Renaissance entities have common ownership, are part                      different issues arising from the
of the same healthcare system, or are “involved in a                          conduct of a physician or health care
joint enterprise for the provision of healthcare to patients                  provider, such as issues of liability and
such as Ms. Abshire[,]” his “criticisms of the Hospital                       causation. Nothing in this section shall
administration *584 responsible for credentialing Dr. Baker                   be construed to mean that a single
at Renaissance Hospital—Houston, are directed to the                          expert must address all liability and
remaining Renaissance entities as well since they all have                    causation issues with respect to all
related or common ownership and/or are all involved in a joint                physicians or health care providers
enterprise.”                                                                  or with respect to both liability and
                                                                              causation issues for a physician or
                                                                              health care provider.

 STANDARD OF REVIEW AND PERTINENT LAW                            Id. § 74.351(i).

 [1] [2] [3] We review a trial court's decision regarding
                                                               [4] [5] The statute provides that the trial court “shall grant
the adequacy of an expert report under an abuse of discretion
                                                              a motion challenging the adequacy of an expert report only
standard. Am. Transitional Care Ctrs. of Tex., Inc. v.
                                                              if it appears to the court, after hearing, that the report does
Palacios, 46 S.W.3d 873, 877 (Tex.2001). “A trial court



               © 2015 Thomson Reuters. No claim to original U.S. Government Works.                                            11
Renaissance Healthcare Systems, Inc. v. Swan, 343 S.W.3d 571 (2011)


not represent an objective good faith effort to comply with        Appellants make numerous arguments concerning the alleged
the definition of an expert report in Subsection (r)(6).” Id. §    inadequacy of the reports. With respect to the malicious
74.351(l ). When determining whether the report represents         credentialing claim, appellants contend that the peer review
a good-faith effort, the trial court's inquiry is limited to the   privilege immunizes them from suit. Appellants argue that the
four corners of the report. Wright, 79 S.W.3d at 53; Palacios,     reports fail to identify malice “or a specific intent to harm
46 S.W.3d at 878. To constitute a good-faith effort, the report    Ms. Abshire, her heirs, or patients in general.” Appellants
“must discuss the standard of care, breach, and causation          also assert that the reports fail to provide a report as to each
with sufficient specificity to inform the defendant of the         of the appellants due to “a lack of [a] direct relationship
conduct the plaintiff has called into question and to provide      between Ms. Abshire and two of the three [a]ppellants.” In
a basis for the trial court to conclude that the claims have       addition, appellants maintain that the experts' reliance upon
merit.” Palacios, 46 S.W.3d at 875. The expert report must         certain standards for healthcare entities is “misplaced[,]” and
set forth the applicable standard of care, how the standard        that the experts had not “read [a]ppellants' bylaws prior to
was breached, and explain the causal relationship between the      forming their opinion[s].” Appellants also assert that the
defendant's acts and the injury. Tex. Civ. Prac. & Rem.Code        experts' opinions are speculative and conclusory,
Ann. § 74.351(a), (r)(6); Doades v. Syed, 94 S.W.3d 664,
671–72 (Tex.App.-San Antonio 2002, no pet.); Rittmer v.                         particularly when the experts offer
Garza, 65 S.W.3d 718, 722–23 (Tex.App.-Houston [14th                            no detail about: (1) when Dr. Baker
Dist.] 2001, no pet.).                                                          was granted initial privileges at the
                                                                                Houston hospital; (2) when Dr. Baker
 *585 [6] [7] [8] When a plaintiff sues more than one                           applied for renewal of his privileges;
defendant, the expert report or reports must set forth the                      (3) what Dr. Baker told the Houston
standard of care applicable to each defendant and explain                       hospital in his applications[;] and (4)
the causal relationship between each defendant's individual                     what the Houston hospital knew about
acts and the injury. See Tex. Civ. Prac. & Rem.Code Ann.                        Dr. Baker from other sources and
§ 74.351(a), (r)(6). An expert report need not marshal all of                   when that information was discovered.
the plaintiff's proof; however, a report that omits any of the
                                                               Appellants also complain that the experts instead “focus on
elements required by the statute does not constitute a good-
                                                               public information to glean Dr. Baker's history[.]”
faith effort. Palacios, 46 S.W.3d at 878–79. An expert “must
explain the basis of his statements to link his conclusions to
                                                               With respect to the report authored by Simpson, appellants
the facts.” Wright, 79 S.W.3d at 52.
                                                               argue that because Simpson's involvement with hospital
                                                                   quality assurance committees ended in 1997, 5 the report does
                                                                   not establish that Simpson was qualified to offer an expert
                        THE ISSUES                                 report concerning a cause of action that arose in 2006. With
                                                                   respect to the negligence causes of action, appellants contend
In three issues, appellants assert that the trial court abused
                                                                   that the reports of Simpson and Lobato fail to adequately
its discretion by overruling their objections, denying their
                                                                   address the following: duty, breach, and proximate cause;
motions to dismiss, and failing to sign an order awarding
                                                                   each appellant; and each of appellees' “twenty-two counts of
them their reasonable attorney's fees and court costs because
                                                                   negligence[.]” Appellants also complain that Shorr “is not a
appellees' expert reports do not constitute an objective, good-
                                                                   physician and thus lacks the statutory qualifications *586 to
faith effort to comply with the requirements of section
                                                                   render opinion testimony on proximate causation....”
74.351(r)(6) and Palacios. 4 See Tex. Civ. Prac. & Rem.Code
Ann. § 74.351(r)(6); Palacios, 46 S.W.3d at 875. We address        5      The curriculum vitae attached to Simpson's report
appellants' issues together.
                                                                          indicates that Simpson last served on a hospital quality
                                                                          assurance committee in 1997.
4      Appellants' issues are identical, except that issue one
                                                                   According to appellants, contrary to the reports, nurses
       refers to Houston Community Hospital, Inc. d/b/a
                                                                   are not required to diagnose medical conditions, prescribe
       Renaissance Hospital, issue two involves Renaissance
       Hospital, Inc., and issue three pertains to Renaissance
                                                                   corrective measures, or second-guess physicians' diagnoses,
       Healthcare Systems, Inc.                                    and appellants argue that the reports do not provide a



                © 2015 Thomson Reuters. No claim to original U.S. Government Works.                                             12
Renaissance Healthcare Systems, Inc. v. Swan, 343 S.W.3d 571 (2011)


sufficient nexus between the nurses' alleged breaches and           supplemental report clarifies that nurses are not required
Abshire's cardiac arrest. Appellants maintain that the reports      to practice medicine or to prescribe treatments, but that
fail to address loss of chance, and that Texas law “does not        the standard of care for PACU nurses does require them
permit recovery of damages for lost chance of survival or cure      to recognize the signs and symptoms of hypovolemia, and
in medical negligence cases where the adverse result probably       Lobato explains that the expansion of Abshire's abdomen
would have occurred anyway.” In addition, appellants argue          would have been physically visible because of the volume of
that the reports are based on assumption and speculation,           blood that was present.
and are conclusory. Furthermore, appellants argue that they
“have denied being Dr. Webb's employer in their respective           [10]     [11] With respect to appellants' argument that the
original answers[,]” and that they “are not liable for the acts     reports are inadequate as to each of the appellants because
of an independent contractor physician and the doctrine of          of the lack of a direct relationship between Abshire and
respondeat superior does not apply.”                                two of the three appellants, we note that the expert reports
                                                                    provided by Lobato, Simpson, and Shorr clearly explain
 [9] Appellants' argument that the peer review privilege             *587 that their opinions concerning the entities other
immunizes them from suit should be addressed in a motion            than Renaissance Hospital—Houston are based upon the
for summary judgment or at trial, rather than in a motion to        understanding that those entities share common ownership
dismiss under chapter 74 of the Civil Practice and Remedies         and are involved in a joint enterprise for the provision of
Code. See Tex. Civ. Prac. & Rem.Code Ann. § 74.351(r)(6)            healthcare services. “The theory of joint enterprise imputes
(Statute requires that expert report provide a fair summary         liability to one who, although he did no wrong, is so closely
of the expert's opinions regarding the applicable standards         connected to the wrongdoer that it justifies the imposition
of care, how the care that was provided failed to meet the          of vicarious liability.” David L. Smith & Assocs., L.L.P. v.
standards, and the causal relationship between the failure and      Stealth Detection, Inc., 327 S.W.3d 873, 878 (Tex.App.-
the alleged injury.); Palacios, 46 S.W.3d at 875; see generally     Dallas 2010, no pet.); see also St. Joseph Hosp. v. Wolff,
Wissa v. Voosen, 243 S.W.3d 165, 169–70 (Tex.App.-San               94 S.W.3d 513, 517 (Tex.2002) (noting that joint enterprise
Antonio 2007, pet. denied) (Scope of physician's legal duty         is a theory of vicarious liability). When a petition asserts
to patient was proper inquiry for summary judgment or trial,        theories of liability that are purely vicarious, the conduct
but “is simply not a determination contemplated or required         being called into question involves legal principles, and is not
under the statutory language of Chapter 74.”).                      measured by a medical standard of care, since hospital entities
                                                                    cannot practice medicine. See Gardner v. U.S. Imaging, Inc.,
Likewise, appellants' argument that respondeat superior             274 S.W.3d 669, 671–72 (Tex.2008). Therefore, a report that
does not apply because their answer denied that they were           adequately implicates the actions of the entity's agents or
Webb's employer, as well as their argument that the experts         employees is sufficient. Id.; Univ. of Tex. Sw. Med. Ctr. v.
improperly relied upon certain standards for healthcare             Dale, 188 S.W.3d 877, 879 (Tex.App.-Dallas 2006, no pet.);
entities and did not read appellants' bylaws, should be             In re CHCA Conroe, L.P., No. 09–04–453 CV, 2004 WL
addressed at summary judgment or trial. See Tex. Civ. Prac. &       2671863, at *1 (Tex.App.-Beaumont Nov. 23, 2004) (orig.
Rem.Code Ann. § 74.351(r)(6); Palacios, 46 S.W.3d at 875;           proceeding) (mem. op.).
Methodist Hosp. v. Shepherd–Sherman, 296 S.W.3d 193, 199
n. 2 (Tex.App.-Houston [14th Dist.] 2009, no pet.) (Whether         Appellants cite no authorities supporting their contention
the experts' conclusions are correct is an issue for either trial   that the experts' reliance upon information about Baker
or summary judgment.); Wissa, 243 S.W.3d at 169–70.                 that was available in the public domain was improper. See
                                                                    Tex.R.App. P. 38.1(i) (An appellant's brief must contain
In addition, appellants' argument that the expert reports state     appropriate citations to authorities.). In addition, appellants
an inappropriate standard of care for the nurses (i.e., that        cite no authorities that hold that a report on a malicious
the nurses diagnose medical conditions, prescribe corrective        credentialing claim is insufficient if the expert does not state
measures, and second-guess physicians' diagnoses) should            that he has read the hospital's bylaws, and if the report
also be the subject of a motion for summary judgment or             does not discuss specifics concerning when the physician's
an issue at trial, not a motion to dismiss concerning the           privileges were granted and renewed, what the physician
sufficiency of the expert reports. See Shepherd–Sherman,            disclosed in his application, and when information from other
296 S.W.3d at 199 n. 2. Furthermore, we note that Lobato's          sources was discovered.



                © 2015 Thomson Reuters. No claim to original U.S. Government Works.                                             13
Renaissance Healthcare Systems, Inc. v. Swan, 343 S.W.3d 571 (2011)


                                                                  of survival when the adverse result would probably have
Furthermore, although appellants cite section 74.351(a) of        “occurred anyway.”). The reports by Lobato, Simpson, and
the Texas Civil Practice and Remedies Code, Palacios, and         Miller clearly explain that Baker caused Abshire's death
this Court's decision in Beaumont Bone & Joint Institute,         when he transected her right iliac artery while performing a
P.A. v. Slaughter, those authorities do not stand for the         laminectomy and diskectomy, and failed to realize that he
proposition for which appellants cite them. See Tex. Civ.         had done so; that is, the reports explain that if a competent
Prac. & Rem.Code Ann. § 74.351(a); Palacios, 46 S.W.3d            physician had performed Abshire's surgery, her right iliac
at 875; Beaumont Bone & Joint Institute, P.A. v. Slaughter,       artery would, in reasonable medical probability, not have
No. 09–09–00316–CV, 2010 WL 730152, at *4 (Tex.App.-              been transected, and she would not have died. The reports
Beaumont Mar. 4, 2010, pet. denied) (mem. op.).                   also clearly explain that if Webb had not referred Abshire to
                                                                  Baker, Baker would not have performed surgery on Abshire.
 [12] Section 74.351(a) requires that a claimant must serve
an expert report as to each healthcare provider against whom       [13] We now turn to appellants' arguments that Simpson
a “liability claim” is asserted. Tex. Civ. Prac. & Rem.Code       was not qualified to offer an expert report concerning a cause
Ann. § 74.351(a). Palacios holds that the expert report must      of action that arose in 2006 because his involvement with
discuss “the standard of care, breach, and causation with         hospital quality assurance committees ended in 1997, and
sufficient specificity to inform the defendant of the conduct     that Shorr was unqualified to render an opinion concerning
the plaintiff has called into question and to provide a basis     proximate causation because he is not a physician. Appellants
for the trial court to conclude that the claims have merit.”      cite the general statutory requirements for qualifications of
Palacios, 46 S.W.3d at 875. Neither section 74.351(a) nor         an expert witness. See Tex. Civ. Prac. & Rem.Code Ann. §§
Palacios stands for the proposition that each specific factual    74.402(b)(1), 74.403(a) (West 2011). Section 74.402(b)(1)
allegation of negligence must be discussed in an expert report.   provides as follows:
See id. In Slaughter, this Court discussed four particular
allegations in the plaintiff's petition, which we explained all     (b) In a suit involving a health care liability claim against
constituted direct negligence claims, and held that a report        a health care provider, a person may qualify as an expert
was insufficient because it failed to adequately address the        witness on the issue of whether the health care provider
direct negligence claims. Slaughter, 2010 WL 730152, at             departed from accepted standards of care only if the person:
*4. Slaughter does not stand for the proposition that an
                                                                       (1) is practicing health care in a field of practice that
expert report must discuss each factual allegation of an act
                                                                       involves the same type of care or treatment as that
of negligence enumerated in a plaintiff's petition. Rather,
                                                                       delivered by the defendant health care provider, if the
Slaughter holds that the report *588 must address each type
                                                                       defendant health care provider is an individual, at the
of negligence claim. See id. The twenty-two allegations in
                                                                       time the testimony is given or was practicing that type
appellees' petition pertain to each of their general categories
                                                                       of health care at the time the claim arose[.]
of claims: negligence, malicious credentialing, and gross
negligence on the part of appellants, as well as Dr. Webb         Tex. Civ. Prac. & Rem.Code Ann. § 74.402(b)(1) (emphasis
(for whose conduct appellees allege appellants are vicariously    added). By its express terms, section 74.402(b)(1) does not
liable). Appellants' argument is an overly broad reading of the   apply in this case, since appellants (the health care providers
term “claim,” and we decline to adopt that interpretation here.   in question) are not individuals.
The reports, when considered together, adequately address
each type of claim asserted by appellees.                         Section 74.403(a) states that a person may qualify as an
                                                                  expert witness regarding the causal relationship between the
With respect to appellants' argument concerning the reports'      alleged departure from the standard of care and the injury
failure to address “loss of chance,” we note that this is         only if the person is a physician and “is otherwise qualified
not a case in which the patient was already suffering from        to render opinions on that causal relationship under the Texas
the injury or illness which ultimately led to her death. See      Rules of Evidence.” Id. § 74.403(a). Simpson's report and
Kramer v. Lewisville Mem'l Hosp., 858 S.W.2d 397, 398, 400        curriculum vitae clearly establish that Simpson is a physician,
(Tex.1993) (In case involving failure to accurately diagnose      and appellants do not contend that Simpson does not qualify
a patient's cancer, the Supreme Court held that Texas law         as an expert under the Texas Rules of Evidence; therefore,
does not recognize a cause of action for loss of chance           we reject appellants' argument *589 that Simpson's lack of



               © 2015 Thomson Reuters. No claim to original U.S. Government Works.                                           14
Renaissance Healthcare Systems, Inc. v. Swan, 343 S.W.3d 571 (2011)


involvement in hospital quality assurance committees since        Simpson, the nurses breached the standard of care by failing
1997 renders him unable to qualify as an expert witness. Shorr    to (1) recognize hypovolemia, (2) demand more aggressive
is not a physician, and his report does not purport to offer      fluid resuscitation, (3) demand the continuous presence of a
an opinion concerning causation. Therefore, we also reject        physician at Abshire's bedside, and (4) institute the chain of
appellants' argument concerning Shorr's qualifications. See       command. Simpson's report also explained that if the PACU
id. § 74.403(a).                                                  nurses had followed the standard of care, a physician would
                                                                  have realized that Abshire was hemorrhaging, provided
 [14] We now turn to appellants' contentions that the expert      appropriate treatment, and saved Abshire's life.
reports are speculative and conclusory; fail to adequately
address the standard of care, breach, and proximate cause;        Miller explained in his report that the standard of care
and fail to identify malice. Lobato explained that the            required Webb to use reasonable medical judgment to refer
standard of care required physicians and nursing personnel        Abshire to a competent physician. According to Miller,
to recognize the signs of hemorrhage, and that if the nurses      Webb should have known of Baker's history through the
had promptly recognized Abshire's symptoms, summoned a            TBME newsletter, information on the TBME website about
physician to Abshire's bedside, and instituted the chain of       complaints concerning Baker, the published court cases
command, Abshire would “more likely than not ... have been        involving malpractice by Baker, and Baker's loss of privileges
appropriately treated and her life saved.” Lobato stated that     at two hospitals. Miller opined that Webb breached the
the nurses' actions were, “in reasonable medical probability[,]   standard of care by referring Abshire to Baker because
the proximate cause of Ms. Abshire's death[,]” and that           Webb failed to *590 ascertain Baker's qualifications, and
Abshire's death would have been prevented if the standard of      that if Webb had not referred Abshire to Baker, Abshire
care had been followed.                                           “would not have undergone surgery by ... Baker, would not
                                                                  have had her iliac artery mistakenly and negligently severed
In his report, Simpson explained that the complaints filed        during surgery, and would not have died.” Because Miller
by the TBME concerning Baker were publicly available,             understood that appellants owned Beaumont Spine, where
and Baker had a reputation for incompetence and drug use.         Webb practiced medicine, Miller incorporated his criticisms
Simpson explained that the standard of care required Webb         of Webb into those directed against appellants.
to have a basic knowledge of the skills and professional
reputation of the physician to whom he referred Abshire,          In his report, Shorr explained that the standards applicable to
and to refrain from sending Abshire to a physician with a         Renaissance Hospital require that before granting privileges,
documented history of drug use, malpractice, and repeated         the hospital must evaluate challenges to the applicant's
complaints by the TBME. Additionally, Simpson explained           licensure, any relinquishment of the license, termination
that Webb's referral of Abshire to Baker directly caused Baker    of medical staff membership, limitation, reduction, or loss
to perform surgery on Abshire, and that if Baker had not been     of clinical privileges, evidence of an excessive number of
Abshire's surgeon, her artery would not have been transected,     liability actions, and health status; must compare practitioner-
gone undiscovered, and led to Abshire's death. Moreover,          specific data to aggregate data; and must review morbidity
Simpson stated that because Webb's employer was owned and         and mortality data. Shorr also explained that when an
operated by the various Renaissance entities, Webb was an         applicant's privileges are renewed, his ability to perform the
employee of the Renaissance entities, and the Renaissance         requested privileges must be evaluated. Additionally, Shorr
entities were responsible for Webb's conduct.                     stated that a hospital must have a governing body that is
                                                                  responsible for appointing medical staff, and the governing
Simpson indicated that appellants had a duty to follow            body must examine an applicant's individual character,
JCAH standards in credentialing physicians, and that if they      competence, training, experience, and judgment. Shorr
had denied or revoked Baker's surgical credentials, in all        opined that appellants breached the applicable standards
reasonable medical probability, a competent surgeon would         by maliciously and negligently credentialing Baker despite
have operated on Abshire, Abshire's artery would not have         his well-documented history of malpractice, drug addiction,
been severed, and Abshire would not have died. Simpson also       mental problems, and loss of privileges at other hospitals.
opined that all of the Renaissance entities were responsible      Shorr explained that if appellants had employed the required
for credentialing Baker because the entities had common           procedures, they would have discovered Baker's malpractice
ownership or were involved in a joint enterprise. According to    history and his loss of privileges at other institutions. Shorr



               © 2015 Thomson Reuters. No claim to original U.S. Government Works.                                            15
Renaissance Healthcare Systems, Inc. v. Swan, 343 S.W.3d 571 (2011)


                                                                      Reviewing the expert reports together, we conclude that the
stated that appellants breached the standard of care because
                                                                      reports discuss the standards of care, breach, and causation
they either failed to engage in a proper credentialing process
                                                                      with sufficient specificity as to each of the appellants to
in granting or renewing Baker's privileges, or ignored the
                                                                      inform appellants of the conduct appellees have called into
information they gathered. Shorr opined that appellants'
                                                                      question and to provide a basis for the trial court to conclude
failure “to prevent Dr. Baker from obtaining or maintaining
                                                                      that the claims have merit. See Palacios, 46 S.W.3d at 875;
orthopedic surgery privileges at the Hospital is evidence of
                                                                      see also Doades, 94 S.W.3d at 671–72; Rittmer, 65 S.W.3d
it[s] grossly negligent and malicious acts in that the Hospital
                                                                      at 722–23; see also Tex. Civ. Prac. & Rem.Code Ann. §
either failed to follow any credentialing procedure at all, or
                                                                      74.351(i). Accordingly, we overrule appellants' issues and
if it did do any investigation, it knew of the extreme degree
                                                                      affirm the trial court's judgment.
of risk Dr. Baker posed to its patients and credentialed him
anyway.” Finally, like the other experts, Shorr explained
                                                                      AFFIRMED.
that his criticisms of the hospital were imputed to the other
appellants because they shared common ownership or were
involved in a joint enterprise.
                                                                      All Citations

                                                                      343 S.W.3d 571

End of Document                                                   © 2015 Thomson Reuters. No claim to original U.S. Government Works.




               © 2015 Thomson Reuters. No claim to original U.S. Government Works.                                               16
Salais v. Texas Dept. of Aging & Disability Services, 323 S.W.3d 527 (2010)




                    323 S.W.3d 527                                 West Headnotes (17)
                Court of Appeals of Texas,
                          Waco.
                                                                   [1]   Appeal and Error
       Ana Maria Gonzalez SALAIS, Individually                              Rulings on Motions Relating to Pleadings
         and as Representative of the Estate of                          A trial court's decision to dismiss a health-care
        Ruben Gonzalez, Deceased, Appellants,                            liability claim under the expert report statute
                          v.                                             is reviewed by the abuse-of-discretion standard.
          TEXAS DEPARTMENT OF AGING                                      V.T.C.A., Civil Practice & Remedies Code §
         & DISABILITY SERVICES, Appellee.                                74.351.

        No. 10–09–00155–CV.           |   Aug. 4, 2010.                  Cases that cite this headnote

Synopsis
                                                                   [2]   Appeal and Error
Background: Mother of patient who died at a Texas
                                                                            Competency of witness
Department of Aging and Disability Services (TDADS)
                                                                         A trial court's decision on whether a person is
facility brought a health-care liability action against TDADS.
                                                                         qualified to offer an expert opinion in a health-
The 77th District Court, Limestone County, Deborah Oakes
                                                                         care liability claim is reviewed under the abuse-
Evans, J., granted motion to dismiss by TDADS, and mother
                                                                         of-discretion standard. V.T.C.A., Civil Practice
appealed.
                                                                         & Remedies Code § 74.351.

                                                                         1 Cases that cite this headnote
Holdings: The Court of Appeals, Rex D. Davis, J., held that:
                                                                   [3]   Appeal and Error
[1] paramedic was qualified to provide an expert opinion on                 Nature and Extent of Discretionary Power
the accepted standard of care in restraining patients;
                                                                         A trial court has no discretion in determining
                                                                         what the law is or applying the law to the facts.
[2] paramedic's expert report represented a good-faith effort
to comply with the expert report statute;                                Cases that cite this headnote

[3] physician's expert report did not establish he was qualified
to provide an opinion on the cause of patient's death; but         [4]   Appeal and Error
                                                                            Abuse of discretion
[4] expert reports of paramedic and physician together                   A clear failure by the trial court to analyze or
constituted a good-faith effort to provide a fair summary of             apply the law correctly will constitute an abuse
the cause of patient's death; and                                        of discretion.

[5] case would be remanded so that trial court could exercise            Cases that cite this headnote
its discretion regarding mother's request for an extension to
cure technical deficiency in physician's report.                   [5]   Evidence
                                                                             Due care and proper conduct in general

Reversed.                                                                Paramedic, who provided opinion for mother of
                                                                         developmentally disabled patient who died after
Tom Gray, C.J., dissented and filed opinion.                             being physically retrained by healthcare staff
                                                                         at Texas Department of Aging and Disability
                                                                         Services (TDADS) facility, was qualified to
                                                                         offer an expert opinion on the accepted standards



                © 2015 Thomson Reuters. No claim to original U.S. Government Works.                                          1
Salais v. Texas Dept. of Aging & Disability Services, 323 S.W.3d 527 (2010)


        of care in mother's health-care liability action               the statute the report must address the standard
        against TDADS, where, based on mother's                        of care, breach, and causation with sufficient
        allegations, the type of care or treatment                     specificity to inform the defendant of the conduct
        and the condition involved was the use of                      the plaintiff calls into question and to provide a
        physical restraint and a restraint board on a                  basis for the trial court to conclude that the claims
        combative person, and paramedic was a certified                have merit. V.T.C.A., Civil Practice & Remedies
        practitioner familiar with the standard of care                Code § 74.351.
        in restraining combative persons and instructed
        others on such standard of care. V.T.C.A., Civil               2 Cases that cite this headnote
        Practice & Remedies Code § 74.351.
                                                                [9]    Health
        Cases that cite this headnote
                                                                           Affidavits of merit or meritorious defense;
                                                                       expert affidavits
 [6]    Health                                                         Paramedic's expert report, provided on behalf
            Affidavits of merit or meritorious defense;                of mother of developmentally disabled patient
        expert affidavits                                              in health-care liability action brought against
        When considering a motion to dismiss under                     Texas Department of Aging and Disability
        the expert report statute for health-care liability            Services (TDADS) after patient died while
        claims, the issue is whether the report represents             being physically restrained by TDADS facility,
        a good-faith effort to comply with the statutory               represented a good-faith effort to comply with
        definition of an expert report. V.T.C.A., Civil                the expert report statute for health-care liability
        Practice & Remedies Code § 74.351.                             claims, where report noted that paramedic had
                                                                       been qualified as an expert in restraint asphyxia,
        1 Cases that cite this headnote                                stated he was familiar with the standard of care
                                                                       for restraining combative persons, stated what
 [7]    Health                                                         steps should be taken to monitor for respiratory
            Affidavits of merit or meritorious defense;                distress, and stated that had any of the restrainers
        expert affidavits                                              prevented the application of the restraint board
                                                                       it was more likely than not that the patient
        In determining whether a report represents a
                                                                       would not have suffered from restraint asphyxia.
        good-faith effort to comply with the expert
                                                                       V.T.C.A., Civil Practice & Remedies Code §
        report statute for health-care liability claims, the
                                                                       74.351.
        inquiry is limited to the four corners of the report.
        V.T.C.A., Civil Practice & Remedies Code §                     Cases that cite this headnote
        74.351.

        1 Cases that cite this headnote                         [10]   Health
                                                                           Affidavits of merit or meritorious defense;
                                                                       expert affidavits
 [8]    Health
            Affidavits of merit or meritorious defense;                Expert reports can be considered together in
        expert affidavits                                              determining whether the plaintiff in a health
                                                                       care liability action has provided adequate
        An expert report need only represent a good-faith
                                                                       expert opinion regarding the standard of care,
        effort to provide a fair summary of the expert's
                                                                       breach, and causation. V.T.C.A., Civil Practice
        opinions, in order to comply with the expert
                                                                       & Remedies Code § 74.351.
        report statute for health-care liability claims;
        the report does not have to marshal all of the                 2 Cases that cite this headnote
        plaintiff's proof and the plaintiff need not present
        evidence in the report as if it were actually
        litigating the merits, and, instead, to comply with     [11]   Health



               © 2015 Thomson Reuters. No claim to original U.S. Government Works.                                             2
Salais v. Texas Dept. of Aging & Disability Services, 323 S.W.3d 527 (2010)


            Affidavits of merit or meritorious defense;               report statute for health-care liability claims.
        expert affidavits                                             V.T.C.A., Civil Practice & Remedies Code §
        A physician's report on causation should not be               74.351.
        read in isolation, for purposes of the expert report
                                                                      1 Cases that cite this headnote
        statute for health-care liability claims. V.T.C.A.,
        Civil Practice & Remedies Code § 74.351.
                                                               [15]   Health
        2 Cases that cite this headnote                                   Affidavits of merit or meritorious defense;
                                                                      expert affidavits
 [12]   Health                                                        Expert reports of paramedic and emergency
            Affidavits of merit or meritorious defense;               medicine physician, in health care liability action
        expert affidavits                                             mother of developmentally disabled patient
        The qualifications of an expert must appear                   brought against Texas Department of Aging and
        in the report itself and cannot be inferred, for              Disability Services (TDADS) after patient died
        purposes of the expert report statute for health-             while being physically restrained by TDADS
        care liability claims. V.T.C.A., Civil Practice &             employees, together constituted a good-faith
        Remedies Code § 74.351.                                       effort to provide a fair summary of the causal
                                                                      relationship between employees' conduct and
        3 Cases that cite this headnote                               patient's death by restraint asphyxia as required
                                                                      by the expert report statute for health-care
                                                                      liability claims, though physician's report did not
 [13]   Health
                                                                      show that he was qualified to give an expert
            Affidavits of merit or meritorious defense;
                                                                      opinion on causation, as the reports provided
        expert affidavits
                                                                      enough information linking the breach of the
        Expert report of physician did not establish
                                                                      standard of care to the death. V.T.C.A., Civil
        that he was qualified to opine on the causal
                                                                      Practice & Remedies Code § 74.351.
        relationship of employees' conduct and patient's
        death, as required in order for the report to                 1 Cases that cite this headnote
        satisfy the expert report statute for health-care
        liability claims in health care liability action
                                                               [16]   Judgment
        mother of developmentally disabled patient
                                                                          Necessity for entry
        brought against Texas Department of Aging and
        Disability Services (TDADS) after patient died                Motions
        while being restrained by health care workers at                  Entry or Filing of Orders
        TDADS facility, where physician's curriculum                  Any order or judgment, to be effective, must be
        vitae (CV) only disclosed that he was practicing              entered of record.
        in the field of emergency medicine, and in the
        past held positions as an emergency medicine                  1 Cases that cite this headnote
        physician and a general and trauma surgeon.
        V.T.C.A., Civil Practice & Remedies Code §             [17]   Appeal and Error
        74.351.                                                           Ordering New Trial, and Directing Further
                                                                      Proceedings in Lower Court
        3 Cases that cite this headnote
                                                                      Health care liability action, brought by mother
                                                                      of developmentally disabled patient against
 [14]   Health                                                        Texas Department of Aging and Disability
            Affidavits of merit or meritorious defense;               Services (TDADS) after patient died while being
        expert affidavits                                             physically restrained by TDADS employees,
        Merely being a physician is insufficient to                   would be remanded by Court of Appeals to the
        qualify as a medical expert under the expert                  trial court so that the trial court could exercise


               © 2015 Thomson Reuters. No claim to original U.S. Government Works.                                          3
Salais v. Texas Dept. of Aging & Disability Services, 323 S.W.3d 527 (2010)


        its discretion under the expert report statute            Salais also pleads:
        regarding whether mother should be granted
        an extension to cure technical deficiency in                In the Prevention & Management of Aggressive Behavior
        physician's report, i.e., report did not set forth          Course Synopsis allegedly provided by Defendant Mexia
        his qualifications to give an expert opinion on             [State School] to its employees, employees are warned that
        causation, as only the docket sheet indicated that          “[e]xtreme care must be exercised during any horizontal
        mother's motion for an extension was denied,                restraint to insure that the person's ability to breathe
        but docket-sheet entries were not “of-record”               is not restricted.... [D]uring all horizontal restraints, the
        rulings. V.T.C.A., Civil Practice & Remedies                person must remain in a side-lying position and monitored
        Code § 74.351(c).                                           continuously. Failure to do so may risk serious injury
                                                                    and death from positional asphyxia, [which] occurs when
        Cases that cite this headnote                               there is insufficient intake of oxygen as a result of
                                                                    body positioning that interferes with one's ability to
                                                                    breathe.” [Ellipsis and brackets in original].


Attorneys and Law Firms                                           She further pleads that the “Mexia State School Annual
                                                                  Retraining Course Synopsis,” allegedly provided to every
 *530 R. Keith Weber, Woodfill & Pressler LLP, Houston,           participant, gives the same warning and also provides
for Appellants.                                                   “that the person who is restraining the lower body has
                                                                  an important role in monitoring breathing, circulation, and
John P. Giberson, Atty. General's Office, Tort Litigation         general condition of the restrained individual, and in assisting
Division, Austin, Neal E. Pirkle, Naman, Howell, Smith &          in maintaining the restrained individual in a side-lying
Lee LLP, Waco, for Appellee.                                      position.”
Before Chief Justice GRAY, Justice REYNA, and Justice
                                                                   *531 In her health-care liability cause of action, Salais
DAVIS.
                                                                  alleges that TDADS [Mexia State School] and TDADS
                                                                  employees Korn, Thornton, and Thomas were negligent in the
                                                                  care and treatment of Ruben in each of the following ways:
                         OPINION
                                                                    1. Failure to recognize and/or appreciate the risk factors
REX D. DAVIS, Justice.
                                                                       for the potential occurrence of death when performing a
Ana Maria Gonzalez Salais appeals the trial court's order              physical restraint;
dismissing her health-care liability claim against the Texas
                                                                    2. Misuse of the restraints and restraint board when
Department of Aging and Disability Services (TDADS).
                                                                      performing a physical restraint;

Salais's live petition alleges that her son Ruben Gonzalez          3. Failure to anticipate the risk of traumatic asphyxia when
was a patient at the Mexia State School, a TDADS facility,             performing a physical restraint;
because of his developmental disability. Late one evening
(after midnight), Ruben had refused to go to bed and was            4. Failure to plan the physical restraint according to the
then physically restrained by Sheri Thornton and Charles               increased risk for serious injury to Decedent;
Korn, two TDADS employees. After Joel Thomas, a third
                                                                    5. Inappropriate management of the complication of
employee, arrived, they placed Ruben on a restraint board.
                                                                      performing a physical restraint;
Sue Sanderson, a TDADS nurse, was called to the scene and
found Ruben pale with no pulse or blood pressure. Sanderson         6. Failure to have the requisite knowledge regarding
was unable to resuscitate Ruben. An automated external                appropriate responses to a combative physical restraint;
defibrillator (AED) was employed, but it was not used to
shock Ruben. Paramedics arrived and their monitor showed a          7. Failure to perform the appropriate interventions
flat line and no cardiac rhythm. Ruben was taken to a hospital,       during the physical restraint of Decedent once health
where he was pronounced dead.                                         complications were encountered;



               © 2015 Thomson Reuters. No claim to original U.S. Government Works.                                             4
Salais v. Texas Dept. of Aging & Disability Services, 323 S.W.3d 527 (2010)


                                                                  TDADS's motion to dismiss and brief assert that Wohlers's
  8. Failure to provide proper education and training to          report and CV do *532 not establish his qualifications
    employees who were called upon to assist in the restraint     to testify about the standards of care applicable to the
    of Decedent.                                                  Mexia State School healthcare staff or to the treatment
                                                                  for individuals with behavioral, mental, and developmental
Section 74.351 of the Civil Practices and Remedies Code           disabilities. Its brief also asserts that Wohlers's report does
provides that within 120 days of filing suit, a claimant must     not show that the “management and care” of Ruben on the
serve a curriculum vitae (CV) and one or more expert reports      occasion in question is “something universally done.”
regarding every defendant against whom a health care claim
is asserted. TEX. CIV. PRAC. & REM.CODE ANN. § 74.351             Regarding his qualifications, Wohlers's report states:
(Vernon Supp. 2009). Salais provided two expert reports. One
report was by James Wohlers, a paramedic, which addresses                     I received my paramedic education
the standard of care and breach elements relating to the use of               from Creighton University in 1992.
the restraint board and the AED. The other report, of Donald                  Initially I was a paramedic in
Winston, M.D., addresses the causation element.                               Omaha, Nebraska from 1992 to
                                                                              1996, then a paramedic for the
TDADS objected to the reports and moved to dismiss Salais's                   City and County of Denver from
health-care liability claim under section 74.351. See id. The                 1996 until 2000. Since 2000, I
motion asserted that Salais's experts were not qualified and                  have been with the Grand Island
that their reports were inadequate. The trial court granted                   Fire Department in Grand Island,
TDADS's motion to dismiss without stating any grounds.                        Nebraska as a paramedic/firefighter. I
In her first issue, Salais argues that the trial court erred in               have also been involved in restraint
granting TDADS's motion to dismiss.                                           asphyxia education since 2006. I
                                                                              teach to EMS, Law Enforcement and
 [1]     [2]    [3]    [4] We review the trial court's decision               persons involved in the restraining
to dismiss a health-care liability claim by the abuse-of-                     of combative persons. I have been
discretion standard. American Transitional Care Ctrs. of Tex.,                qualified as an expert in the field of
Inc. v. Palacios, 46 S.W.3d 873, 877 (Tex.2001). Also, a                      restraint asphyxia.
trial court's decision on whether a person is qualified to offer
an expert opinion in a health-care liability claim is reviewed   Wohlers's CV restates the above history and notes his
under the abuse-of-discretion standard. Moore v. Gatica, 269     certification as an EMS instructor and that he specializes
S.W.3d 134, 139 (Tex.App.-Fort Worth 2008, pet. denied).         in “restraint-related issues” and instructs on Advanced Life
“However, a trial court has no discretion in determining what    Support and Basic Life Support topics. His report further
the law is or applying the law to the facts. Walker v. Packer,   states:
827 S.W.2d 833, 840 (Tex.1992). A clear failure by the trial
court to analyze or apply the law correctly will constitute                   I am familiar with the standard of care
an abuse of discretion. Id.” Austin Heart, P.A. v. Webb, 228                  for restraining a combative person and
S.W.3d 276, 279–80 (Tex.App.-Austin 2007, no pet.); see                       understand what steps should be taken
also Methodist Hosp. v. Shepherd–Sherman, 296 S.W.3d 193,                     to monitor for respiratory distress.
197 (Tex.App.-Houston [14th Dist.] 2009, no pet.) (“Though                    Through my education, background
we may not substitute our judgment for that of the trial court,               and experience, I am knowledgeable
the trial court has no discretion in determining what the law                 in the standard of care that the staff
is or applying the law to the facts.”).                                       of Mexia State School should have
                                                                              provided to Mr. Gonzales on the night
                                                                              he died.

                      Wohlers Report
                                                                  On the issue of Wohlers's qualifications, we turn to the
Qualifications                                                    applicable statute, section 74.402, which provides in pertinent
                                                                  part:



                 © 2015 Thomson Reuters. No claim to original U.S. Government Works.                                          5
Salais v. Texas Dept. of Aging & Disability Services, 323 S.W.3d 527 (2010)


                                                                  in Wohlers's report, the type of care or treatment and the
  (b) In a suit involving a health care liability claim against   condition involved is the use of physical restraint and a
  a health care provider, a person may qualify as an expert       restraint board on a combative person. Wohlers's report and
  witness on the issue of whether the health care provider        CV show that he is a certified practitioner and instructor
  departed from accepted standards of care only if the person:    in health care services relevant to the health-care liability
                                                                  claim in this case; he has been a paramedic since 1992
  (1) is practicing health care in a field of practice that
                                                                  and has been instructing on restraint asphyxia since 2006,
  involves the same type of care or treatment as that delivered
                                                                  including teaching persons involved in the restraining of
  by the defendant health care provider, if the defendant
                                                                  combative persons. His report states that he is familiar with
  health care provider is an individual, at the time the
                                                                  the standard of care for restraining a combative person and is
  testimony is given or was practicing that type of health care
                                                                  knowledgeable of the standard of care that the staff of Mexia
  at the time the claim arose;
                                                                  State School should have provided to Ruben on the night he
  (2) has knowledge of accepted standards of care for health      died with respect to the use of physical restraint and a restraint
  care providers for the diagnosis, care, or treatment of the     board.
  illness, injury, or condition involved in the claim; and
                                                                  Under the applicable criteria in section 74.402(b), Wohlers's
  (3) is qualified on the basis of training or experience to      report and CV demonstrate that he is qualified to offer an
  offer an expert opinion regarding those accepted standards      expert opinion on the accepted standards of care for this type
  of health care.                                                 of care or treatment by TDADS healthcare staff of combative
                                                                  persons. To the extent the trial court concluded otherwise, the
  (c) In determining whether a witness is qualified on the        trial court abused its discretion.
  basis of training or experience, the court shall consider
  whether, at the time the claim arose or at the time the
  testimony is given, the witness:                                Adequacy
                                                                  TDADS's motion to dismiss asserted that Wohlers's report is
  (1) is certified by a licensing agency of one or more states
                                                                  inadequate because it does not articulate the relevant standard
  of the United States or a national professional certifying
                                                                  of care and/or the bases for the relevant standards of care
  agency, or has other substantial training or experience, in
                                                                  applicable to TDADS and it does not specifically state the
  the area of health care relevant to the claim; and
                                                                  manner in which TDADS breached the applicable standard
  (2) is actively practicing health care in rendering health      of care.
  care services relevant to the claim.
                                                                   [6] When considering a motion to dismiss under subsection
TEX. CIV. PRAC. & REM.CODE ANN. § 74.402(b, c)                    74.351(b), the issue is whether the report represents a good-
(Vernon 2005).                                                    faith effort to comply with the statutory definition of an expert
                                                                  report. See Bowie Mem. Hosp. v. Wright, 79 S.W.3d 48, 52
 [5] We disagree that Wohlers was required to be qualified        (Tex.2002); Palacios, 46 S.W.3d at 878. An “expert report”
in general as an expert about the standards of care applicable    is “a written report by an expert that provides a fair summary
to the Mexia State School healthcare staff for the care and       of the expert's opinions as of the date of the report regarding
treatment for individuals *533 with behavioral, mental, and       applicable standards of care, the manner in which the care
developmental disabilities. Rather, under the literal language    rendered by the physician or health care provider failed to
of subsections 74.402(b)(1, 2), Wohlers is only required to       meet the standards, and the causal relationship between that
be practicing health care in a field of practice that involves    failure and the injury, harm, or damages claimed.” TEX. CIV.
the same type of care or treatment as that delivered by the       PRAC. & REM.CODE ANN. § 74.351(r)(6).
defendant health care provider and have knowledge of the
accepted standards of care for health care providers for the       [7]     [8] In determining whether the report represents a
care or treatment of the condition involved in the claim.         good-faith effort, the inquiry is limited to the four corners
See id. § 74.402(b)(1, 2); see, e.g., Group v. Vicento, 164       of the report. Palacios, 46 S.W.3d at 878. The report need
S.W.3d 724, 730–31 (Tex.App.-Houston [14th Dist.] 2005,           only represent a good-faith effort to provide a fair summary of
pet. denied). Based on Salais's allegations and the information   the expert's opinions. Id. The report does not have to marshal
                                                                  all of the plaintiff's proof and the plaintiff need not present


               © 2015 Thomson Reuters. No claim to original U.S. Government Works.                                               6
Salais v. Texas Dept. of Aging & Disability Services, 323 S.W.3d 527 (2010)


evidence in the report as if it were actually litigating the        conduct that Salais calls into question and provides a basis
merits. Id. at 879. Rather, to constitute a good-faith effort,      for the trial court to conclude that the claims have merit.
the report must address the standard of care, breach, and           See Palacios, 46 S.W.3d at 875. It informs TDADS “what
causation with sufficient specificity to inform the defendant       care was expected but not given.” Fagadau v. Wenkstern, 311
of the conduct the plaintiff calls into question and to provide a   S.W.3d 132, 138 (Tex.App.-Dallas 2010, no pet. h.) (citing
basis for the trial court to conclude that the claims have merit.   Palacios, 46 S.W.3d at 880). To the extent the trial court
Id. at 875.                                                         concluded otherwise, the trial court abused its discretion.

 [9] The Wohlers report notes that he has been qualified as
an expert in restraint *534 asphyxia. It cites an investigative
                                                                                        Dr. Winston Report
report that he reviewed and details the course of events and the
conduct of three employees (Thomas, Korn, and Thornton) in           [10] [11] Section 74.351(i) permits a claimant to satisfy
placing Ruben on a restraint board and, according to Thomas,        any requirement of section 74.351 for serving an expert report
using a restraint strap across his diaphragm, after which           by serving reports of separate experts. TEX. CIV. PRAC.
Ruben “was breathing hard, in gasps, and making gurgling            & REM.CODE ANN. § 74.351(i); see Packard v. Guerra,
sounds.” According to Korn, a restraint strap was across            252 S.W.3d 511, 527 (Tex.App.-Houston [14th Dist.] 2008,
Ruben's chest, and Korn observed only a “slight rise” in his        pet. denied). Expert reports can be considered together in
chest; Ruben had a weak pulse. Thornton observed Ruben on           determining whether the plaintiff in a health–care liability
the restraint board and thought he was asleep, but he looked        action has provided adequate expert opinion regarding the
“funny” and was breathing shallow. Nurse Sanderson arrived,         standard of care, breach, and causation. See Walgreen Co.
and after finding Ruben's color to be abnormally pale, no           v. Hieger, 243 S.W.3d 183, 186 n. 2 (Tex.App.-Houston
blood pressure, and no pulse, she initiated CPR and attempted       [14th Dist.] 2007, pet. denied); Martin v. Abilene Regional
to use an AED. Mexia Fire/EMS then arrived, took over CPR,          Med. Center, No. 11–04–00303–CV, 2006 WL 241509, at
and did an endotracheal intubation before transferring Ruben        *4–5 (Tex.App.-Eastland Feb. 2, 2006, no pet.) (mem. op.).
to Parkview Regional Hospital, where he was pronounced              A physician's report on causation should not be read in
dead. Wohlers states:                                               isolation. See Martin, 2006 WL 241509, at *4; see also
                                                                    TEX. CIV. PRAC. & REM.CODE ANN. § 74.351(r)(5)(C)
  I am familiar with the standard of care for restraining
                                                                    (providing that only a physician can be an expert giving
  a combative person and understand what steps should
                                                                    opinion testimony on causal relationship).
  be taken to monitor for respiratory distress. Through
  my education, background and experience, I am
  knowledgeable in the standard of care that the staff of            *535 Qualifications
  Mexia State School should have provided to Mr. Gonzalez           TDADS's motion to dismiss and brief assert that Dr.
  on the night he died.                                             Winston's report and CV do not establish his qualifications
                                                                    to testify about causation. Its brief first asserts that there
  The standard of care requires that if any one of the persons
                                                                    is no showing that Dr. Winston is a licensed physician.
  involved in the restraining of Mr. Gonzalez had recognized
                                                                    “Expert” means, “with respect to a person giving opinion
  that he was in respiratory distress, he should not have
                                                                    testimony about the causal relationship between the injury,
  been placed on a restraint board and had straps placed
                                                                    harm, or damages claimed and the alleged departure from the
  across his chest. Had anyone of the restrainers prevented
                                                                    applicable standard of care in any health care liability claim,
  the application of the restraint board, it is more likely than
                                                                    a physician who is otherwise qualified to render opinions on
  not that Mr. Gonzalez would not have suffered restraint
                                                                    such causal relationship under the Texas Rules of Evidence.”
  asphyxia. No one intervened in the application of the
                                                                    TEX. CIV. PRAC. & REM.CODE ANN. § 74.351(r)(5)
  restraint board.
                                                                    (C) (Vernon Supp. 2009); see also TEX. CIV. PRAC. &
                                                                    REM.CODE ANN. § 74.403(a) (Vernon 2005).
Wohlers's report sets forth his familiarity with the standard
of care and the basis therefor, what the standard of care
                                                                    Dr. Winston's report is in a letter format, and his
is, and how the TDADS staff breached it on the occasion
                                                                    letterhead and typed signature block identify him as “Donald
in question. The report addresses the standard of care and
                                                                    Winston, MD.” His letterhead also reveals his website
breach with sufficient specificity to inform TDADS of the


                © 2015 Thomson Reuters. No claim to original U.S. Government Works.                                             7
Salais v. Texas Dept. of Aging & Disability Services, 323 S.W.3d 527 (2010)


(www.urbansurgeon.com) and his email address at that
website. Furthermore, his December 2008 CV reflects that           1      To the extent that Salais has asserted a health-care
he is a licensed Texas physician (No. F0832, licensed                     liability claim based on alleged misuse of the AED (it
in February 1978 and expiring May 31, 2010). TDADS's                      is in the Wohlers report, but it is not pleaded by Salais),
assertion that there is no showing that Dr. Winston is a                  there is “no report” at all as to causation, and the trial
licensed physician is incorrect.                                          court properly dismissed that part of the health-care
                                                                          liability claim. See Benson v. Vernon, 303 S.W.3d 755,
Dr. Winston's report is a letter to Salais's attorney and states          760–61 (Tex.App.-Waco 2009, no pet.).
in its entirety:                                                    [12]    [13]     [14] TDADS is correct that Dr. Winston's
                                                                   report fails to show how he is qualified to render an expert
  At your request, I have reviewed an autopsy report and
                                                                   opinion on causation in this case. Rule 702 of the Texas
  death certificate of Ruben Gonzales, a 15 year old Hispanic
                                                                   Rules of Evidence requires that an *536 expert be qualified
  male who apparently was a student at the Mexia State
                                                                   by “knowledge, skill, experience, training, or education.”
  School.
                                                                   TEX.R. EVID. 702. The qualifications of an expert must
  I have no way of knowing exactly what took place on              appear in the report itself and cannot be inferred. See Benson
  or about January 15, 2007, but I have reviewed a Third           v. Hall, No. 10–09–00284–CV, 2010 WL 376957, at *1
  Amended Petition in Cause 28901A which states that three         (Tex.App.-Waco Feb. 3, 2010, no pet. h.); Estorque v.
  employees of Mexia State School physically restrained Mr.        Schafer, 302 S.W.3d 19, 26 (Tex.App.-Fort Worth 2009, no
  Gonzales. After a period of time, a nurse at the hospital        pet.); Philipp v. McCreedy, 298 S.W.3d 682, 686 (Tex.App.-
  found Mr. Gonzales dead. Resuscitation failed, and after         San Antonio 2009, no pet.); Baylor College of Medicine
  endotrachial [sic] intubation by Mexia Fire Department           v. Pokluda, 283 S.W.3d 110, 117 (Tex.App.-Houston [14th
  EMS, he was taken to Parkview Regional Hospital where            Dist.] 2009, no pet.); Hansen v. Starr, 123 S.W.3d 13, 19
  he was pronounced dead.                                          (Tex.App.-Dallas 2003, pet. denied). Dr. Winston's report
                                                                   does not set forth his qualifications at all. His CV reflects
  My focus is on the Autopsy report in Case No. JP0187–07–         that he is currently practicing in the field of emergency
  0120ACG done January 16th 2007.                                  medicine in Houston and has held several positions as an
                                                                   emergency medicine physician and a general and trauma
  I agree with the physical findings of:                           surgeon. Aside from their not being in the report itself, these
                                                                   position descriptions alone are inadequate to show how Dr.
     1. Petechiae in the right and left conjunctivae
                                                                   Winston is qualified to opine on the causal relationship of
     2. Contusions to the right arm and left leg                   Ruben's death. Merely being a physician is insufficient to
                                                                   qualify as a medical expert. See Broders v. Heise, 924 S.W.2d
     3. Subcutaneous hemorrhage on the upper back and              148, 152 (Tex.1996); Hagedorn v. Tisdale, 73 S.W.3d 341,
     lower back                                                    350 (Tex.App.-Amarillo 2002, no pet.).

     4. Two subgaleal hemorrhages                                  Because there is no showing in Dr. Winston's report that he is
                                                                   qualified to give an expert opinion on causation, to the extent
     5. Abrasions and contusions on face and arms
                                                                   the trial court granted the motion to dismiss on this basis, it
     6. Mechanical asphyxia                                        did not abuse its discretion. We overrule Salais's first issue.

  I disagree with the final opinion of the nine pathologists
  to the extent that there is evidence that Mr. Gonzales in        Adequacy
  any way contributed to his own death, but I agree that his        [15] Because of our disposition of the second issue, we
  death was a homicide caused by restraint and mechanical          must address TDADS's challenge to the adequacy of Dr.
  asphyxia imposed on him by the three Mexia State School          Winston's report in its motion to dismiss. On the adequacy of
  employees.                                                       Dr. Winston's report, we are precluded “from filling gaps in a
                                                                   report by drawing inferences or guessing as to what the expert
  If you have any other questions, please feel free to contact     likely meant or intended.” Austin Heart, 228 S.W.3d at 279.
  me. 1                                                            But here, there is no gap, and there is no guessing, that Dr.



                © 2015 Thomson Reuters. No claim to original U.S. Government Works.                                                     8
Salais v. Texas Dept. of Aging & Disability Services, 323 S.W.3d 527 (2010)


Winston's opinion on the cause of Ruben's death—“restraint
and mechanical asphyxia imposed on him by the three Mexia            [17] Dr. Winston's report is technically deficient—as
State School employees”—is the same conduct referred to             opposed to being “no report”—because the report lacks his
in the Wohlers report as being the three Mexia State School         qualifications to give an expert opinion on causation. It is thus
employees' breach of the standard of care in restraining a          appropriate to remand this case to the trial court so it can
person in respiratory distress.                                     exercise its discretion whether to grant a thirty-day extension
                                                                    so that Salais can attempt to cure this deficiency. See Austin
When the reports are read together, as they must be in this         Heart, 228 S.W.3d at 284–85; see also In re Buster, 275
case, they satisfy the causal-relationship requirement because      S.W.3d 475, 477 (Tex.2008) (“A report by an unqualified
they constitute a good-faith effort to provide a fair summary       expert will sometimes (though not always) reflect a good-
of the causal relationship between the employees' conduct           faith effort sufficient to justify a 30–day extension.”).
and Ruben's death by restraint asphyxia. See Martin, 2006
WL 241509, at *5. Read together, they provide “enough               Accordingly, we sustain the second issue and remand this
information linking the defendant's breach of the standard of       cause to the trial court with the instruction to consider and
care to the plaintiff's injury.” Baker v. Gomez, 276 S.W.3d         rule on Salais's motion for a thirty-day extension to attempt
1, 8 (Tex.App.-El Paso 2008, pet. denied). And because              to cure the deficiency in Dr. Winston's report.
Dr. Winston's report does link the employees' conduct with
Gonzalez's death, TDADS's reliance on Bogar v. Esparza
and Shaw v. BMW Healthcare, Inc. is misplaced, as those
                                                                    Chief Justice GRAY dissenting.
cases are distinguishable on that basis. Cf. Bogar v. Esparza,
257 S.W.3d 354, 364 (Tex.App.-Austin 2008, no pet.) (“In
essence, Dr. Adame's report is a second autopsy report,             TOM GRAY, Chief Justice, dissenting.
opining about the cause of Ms. Guerrero's death without             Ana Maria Gonzalez Salais appeals the trial court's judgment
explaining who caused it or how.”) (emphasis added); Shaw           dismissing her health care liability claim against the Texas
v. BMW Healthcare, Inc., 100 S.W.3d 8, 12–13 (Tex.App.-             Department of Aging and Disability Services. Because the
Tyler 2002, pet. denied) (op. on reh'g) (“An opinion solely         trial court did not abuse its discretion in granting TDADS's
addressing the cause of death does not satisfy the statutory        motion to dismiss or in denying Salais's request for a 30–
requirements.”).                                                    day extension, we should affirm the trial court's judgment.
                                                                    Because the Court does not, I respectfully dissent.


                          Extension
                                                                                          BACKGROUND
Subsection 74.351(c) provides: “If an expert report has not
been served within the *537 period specified by Subsection          Salais's son, Ruben Gonzalez, was a patient at a TDADS
(a) because elements of the report are found deficient, the         facility, the Mexia State School. After an altercation with the
court may grant one 30–day extension to the claimant in order       State School staff, Gonzalez was placed on a restraint board.
to cure the deficiency.” TEX. CIV. PRAC. & REM.CODE                 He then died. Salais sued both TDADS and the Mexia State
ANN. § 74.351(c). In her second issue, Salais asserts that the      School. The trial court granted TDADS's motion to dismiss.
trial court abused its discretion in not granting her alternative
motion for a thirty-day extension to cure her expert report's       In two issues on appeal, Salais argues that the trial court
deficiency.                                                         erred in granting TDADS's motion to dismiss pursuant to
                                                                    section 74.351 of the Texas Civil Practice and Remedies Code
 [16] The docket sheet appears to reflect the trial court's         and erred in denying Salais's request for a 30–day extension
denial of that motion, but docket-sheet entries are not “of-        pursuant to section 74.351(c) of the Texas Civil Practice and
record” rulings. Any order or judgment, to be effective, must       Remedies Code.
be entered of record. Kocman v. Kocman, 581 S.W.2d 516,
518 (Tex.Civ.App.-Waco 1979, no writ); see also Willis v.
Nucor Corp., 282 S.W.3d 536, 543 (Tex.App.-Waco 2008,
                                                                                            DISMISSAL
no pet.).



                © 2015 Thomson Reuters. No claim to original U.S. Government Works.                                              9
Salais v. Texas Dept. of Aging & Disability Services, 323 S.W.3d 527 (2010)


Section 74.351 of the Civil Practices and Remedies Code              The report must include the expert's opinion on each of the
provides that within 120 days of filing, a claimant must             three elements that the statute identifies: standard of care,
serve a curriculum vitae and one or more expert reports              breach, and causal relationship. Bowie, 79 S.W.3d at 52;
regarding every defendant against whom a health care                 Palacios, 46 S.W.3d at 878. A report cannot merely state the
claim is asserted. TEX. CIV. PRAC. & REM.CODE ANN.                   expert's conclusions about these elements. Bowie, 79 S.W.3d
§ 74.351(a) (Vernon Supp. 2009). “Section 74.351 has                 at 52; Palacios, 46 S.W.3d at 879. “Rather, the expert must
numerous subparts, including:                                        explain the basis of his statements to link his conclusions to
                                                                     the facts.” Earle v. Ratliff, 998 S.W.2d 882, 890 (Tex.1999).
• subpart (b) requiring trial courts to dismiss a claim with
prejudice and award fees if “an expert report has not been           We review a trial court's order dismissing a claim for failure
served” by the statutory deadline;                                   to comply with the expert report requirements under an abuse-
                                                                     of-discretion standard. Bowie, 79 S.W.3d at 52; Palacios,
• subpart (c) allowing a 30–day extension of the deadline if a       46 S.W.3d at 878. Expert reports that omit at least one of
report is found inadequate; and                                      the three specifically enumerated requirements of an expert
                                                                     report cannot constitute a good faith effort to meet the
 *538 • subpart (l ) providing that a motion challenging a           statutory requirements. See Jernigan v. Langley, 195 S.W.3d
report's adequacy should be granted only if the report does          91, 94 (Tex.2006); Palacios, 46 S.W.3d at 879.
not represent a good-faith effort to comply with the statute.”
Lewis v. Funderburk, 253 S.W.3d 204, 207 (Tex.2008)                  Salais provided two reports to serve as her expert report.
(footnotes omitted); TEX. CIV. PRAC. & REM.CODE ANN.                 One report was prepared by James Wohlers, a paramedic
§ 74.351(b), (c), (l ) (Vernon Supp. 2009).                          from Nebraska, which Salais alleged addressed the expert
                                                                     report elements of the standard of care and the breach of that
When considering a motion to dismiss under section 74.351,           standard. The other report was prepared by Donald Winston,
the issue for the trial court is whether the report represents a     a physician from Houston. Salais alleged Dr. Winston's report
good-faith effort to comply with the statutory definition of an      addressed the causation element. TDADS complains, and I
expert report. See Bowie Mem'l Hosp. v. Wright, 79 S.W.3d            agree, that Dr. Winston's report wholly fails to address the
48, 52 (Tex.2002); American Transitional Care Ctrs. of Tex.,         causation element.
Inc. v. Palacios, 46 S.W.3d 873, 878 (Tex.2001). An “expert
report” means:                                                       Assuming without deciding that Dr. Winston is otherwise
                                                                     qualified to render an opinion on causation, he does not. Dr.
             A written report by an expert that                      Winston states in his report that he reviewed the autopsy
             provides a fair summary of the expert's                 report of Ruben Gonzalez and the death certificate. Then,
             opinions as of the date of the report                   he simply states that, although he disagrees with the nine
             regarding the applicable standards of                   pathologists on whether Gonzalez was in part responsible
             care, the manner in which the care                      for his own death, he agrees with them in their conclusion
             rendered by the physician or health                     that it was homicide caused by restraint and mechanical
             care provider failed to meet the                        asphyxiation “imposed on him by the three Mexia State
             standards and the causal relationship                   School employees.”
             between that failure and the injury,
             harm, or damages claimed.                                *539 What Dr. Winston fails to do is draw the connection
                                                                     or explain the causal link between the negligent actions of
TEX. CIV. PRAC. & REM.CODE ANN. § 74.351(r)(6)
                                                                     a specific health care provider (the elements of standard of
(Vernon Supp. 2009). To constitute a “good-faith effort,” the
                                                                     care and breach as described by Wohlers, the other purported
report must discuss the standard of care, breach, and causation
                                                                     expert) and the damages/injury (Gonzalez's death). In other
with sufficient specificity to fulfill two purposes: (1) to inform
                                                                     words, his report on causation must make the connection
the defendant of the specific conduct the plaintiff has called
                                                                     that the death by mechanical asphyxiation was caused by the
into question; and (2) to provide a basis for the trial court to
                                                                     conduct described by Wohlers, assuming that was adequately
conclude that the claims have merit. Bowie, 79 S.W.3d at 52;
                                                                     presented in the other expert report. See Bowie, 79 S.W.3d
Palacios, 46 S.W.3d at 879.
                                                                     at 53. Because Dr. Winston did not indicate he had reviewed



                © 2015 Thomson Reuters. No claim to original U.S. Government Works.                                            10
Salais v. Texas Dept. of Aging & Disability Services, 323 S.W.3d 527 (2010)


                                                                   parties agree and the trial court's docket sheet indicates that a
the other purported expert's report, this required connection
                                                                   request for a 30–day extension was denied. Section 74.351(c)
is simply missing. Further, it is impermissible to infer that
                                                                   provides in part that the trial court may grant one 30–day
the conduct referenced in one report is the basis for the
                                                                   extension to the claimant to cure a deficiency in an expert
conclusions in the other report. See Austin Heart, P.A. v.
                                                                   report. Id. The term “may” as used in subsection (c) vests the
Webb, 228 S.W.3d 276, 279 (Tex.App.-Austin 2007, no pet.).
                                                                   trial court with discretion to grant a 30–day extension. Bosch
                                                                   v. Wilbarger Gen. Hosp., 223 S.W.3d 460, 465 (Tex.App.-
Dr. Winston's report is similar to an expert report discussed in
                                                                   Amarillo 2006, pet. denied); Hardy v. Marsh, 170 S.W.3d
Shaw v. B.M.W. Healthcare, Inc., 100 S.W.3d 8 (Tex.App.-
                                                                   865, 870–71 (Tex.App.-Texarkana 2005, no pet.).
Tyler 2002, pet. denied). In Shaw, the Shaws filed two expert
reports to address the three elements, one from a physician
                                                                   I assume without deciding that once the trial court determines
and one from a registered nurse. The Shaws agreed that the
                                                                   that the report furnished *540 did not constitute a good faith
physician's report did not set out the applicable standards of
                                                                   effort to meet the requirements of an expert report, the trial
care or address how the defendants breached any standards.
                                                                   court can, nevertheless, grant a 30–day extension to cure the
They argued, however, that those omissions were irrelevant
                                                                   deficiency. To grant such an extension, the trial court would
because the physician only rendered an opinion on the cause
                                                                   have to consider the totality of the circumstances surrounding
of death. Citing to Palacios, the Tyler Court of Appeals
                                                                   the preparation of the report, such as the difficulty, if any,
held that because there was no discussion in the report as
                                                                   encountered by the plaintiff in obtaining the necessary experts
to the applicable standard of care and any breaches of that
                                                                   or in getting the medical records necessary for the expert to
standard, an opinion solely addressing the cause of death did
                                                                   review, the diligence of the plaintiff in securing an expert on
not satisfy the statutory requirements of an expert report.
                                                                   the specific type of healthcare liability claim, whether a 30–
Shaw, 100 S.W.3d at 13 (citing Palacios, 46 S.W.3d at
                                                                   day extension would have allowed the plaintiff to cure the
879). Like the report in Shaw, Dr. Winston's report only
                                                                   defect, and the extent of the deficiency in the proffered report.
addressed Gonzalez's cause of death without a link between
                                                                   This list of considerations is by no means exhaustive.
the alleged breach and the injury. Accordingly, I would hold
that Dr. Winston's report does not meet the requirement of
                                                                   But in this case, we have not been provided any record
an expert report because there is nothing in the report that
                                                                   from which we could review the trial court's determination.
addresses the causal connection between the breach by the
                                                                   Because we have no record to review, Salais is unable to
Mexia State School employees of the standard of care as
                                                                   support the complaint that the trial court abused its discretion
allegedly contained in Wohlers's report and the injury, the
                                                                   in failing to grant a 30–day extension. See In the Interest
death of Gonzalez, claimed. The causation element has been
                                                                   of D.W., 249 S.W.3d 625, 648 (Tex.App.-Fort Worth 2008,
omitted from the report.
                                                                   no pet.) (because no record of hearing on motion to extend
                                                                   dismissal deadline, court presumes evidence supported trial
Because Salais's expert reports omit at least one of the three
                                                                   court's ruling and no abuse of discretion shown).
specifically enumerated requirements of subsection (r)(6),
they cannot constitute a good faith effort to meet those
                                                                   Salais's second issue should be overruled.
requirements. I need not decide TDADS's objections to
Wohlers's report. Accordingly, because the trial court did not
abuse its discretion in granting TDADS's motion to dismiss
Salais's suit against TDADS, Salais's first issue should be                               CONCLUSION
overruled.
                                                                   Having overruled each issue, I would affirm the interlocutory
                                                                   order of dismissal of the trial court. Because the Court does
                                                                   not, I respectfully dissent.
                      CONTINUANCE

Salais further argues that should we determine the reports
                                                                   All Citations
were deficient, we should remand the matter back to the
trial court for a 30–day extension. See TEX. CIV. PRAC. &          323 S.W.3d 527
REM.CODE ANN. § 74.351(c) (Vernon Supp. 2009). The




                © 2015 Thomson Reuters. No claim to original U.S. Government Works.                                            11
Salais v. Texas Dept. of Aging & Disability Services, 323 S.W.3d 527 (2010)




End of Document                                          © 2015 Thomson Reuters. No claim to original U.S. Government Works.




              © 2015 Thomson Reuters. No claim to original U.S. Government Works.                                       12
Tenet Hospitals Ltd. v. Barajas, 451 S.W.3d 535 (2014)


                                                                         to file required expert report is reviewed for an
                                                                         abuse of discretion. V.T.C.A., Civil Practice &
                     451 S.W.3d 535
                                                                         Remedies Code § 74.351(a).
                Court of Appeals of Texas,
                         El Paso.                                        Cases that cite this headnote
            TENET HOSPITALS LIMITED, a
            Texas Limited Partnership, d/b/                        [2]   Appeal and Error
           a/ Sierra Medical Center, Appellant,                             Abuse of discretion
                            v.                                           A trial court only “abuses its discretion” when
              Mariva J. BARAJAS, Appellee.                               it acts in an unreasonable or arbitrary manner,
                                                                         without reference to any guiding rules or
       No. 08–14–00048–CV.             |   Nov. 21, 2014.                principles.

Synopsis                                                                 Cases that cite this headnote
Background: Patient sued hospital, alleging medical
negligence from allowing her “to drop to the floor” after
                                                                   [3]   Appeal and Error
knee surgery. Hospital filed motion to dismiss, challenging
                                                                            Abuse of discretion
sufficiency of the patient's expert reports. The County Court
at Law No. 5, El Paso County, Carlos Villa, J., denied motion,           A trial court acts arbitrarily and unreasonably
and hospital appealed.                                                   if it could have reached only one decision, but
                                                                         instead reached a different one.

                                                                         Cases that cite this headnote
Holdings: The Court of Appeals, Yvonne T. Rodriguez, J.,
held that:
                                                                   [4]   Appeal and Error
                                                                            Abuse of discretion
[1] registered nurse was not qualified to render an expert
opinion on applicable standard of care;                                  A trial court “abuses its discretion” when it fails
                                                                         to analyze or apply the law correctly.
[2] first orthopedic surgeon was not qualified to render expert
                                                                         Cases that cite this headnote
opinion on applicable standard of care;

[3] second orthopedic surgeon was qualified to offer an expert     [5]   Appeal and Error
opinion regarding accepted standards of health care; and                    Abuse of discretion
                                                                         A trial court does not abuse its discretion merely
[4] surgeons' reports represented an objective good faith effort         because it decides a matter within its discretion
to provide a fair summary of the causal relationship between             differently than a reviewing court.
hospital's actions and patient's injury.
                                                                         Cases that cite this headnote

Affirmed in part, reversed in part, and remanded.
                                                                   [6]   Health
                                                                             Affidavits of merit or meritorious defense;
                                                                         expert affidavits
 West Headnotes (24)                                                     If a plaintiff with a health care liability claim
                                                                         timely files an expert report and the defendant
                                                                         moves to dismiss because of the report's
 [1]     Appeal and Error
                                                                         inadequacy, a trial court must grant the motion
            Rulings on Motions Relating to Pleadings
                                                                         only if it appears to the court, after hearing,
         A trial court's decision to grant or deny a motion
                                                                         that the report does not represent an objective
         to dismiss a health care liability claim for failure


                © 2015 Thomson Reuters. No claim to original U.S. Government Works.                                            1
Tenet Hospitals Ltd. v. Barajas, 451 S.W.3d 535 (2014)


        good faith effort to comply with the definition                   Affidavits of merit or meritorious defense;
        of an expert report. V.T.C.A., Civil Practice &               expert affidavits
        Remedies Code § 74.351(a)(l ).                                To avoid dismissal due to inadequacy of an
                                                                      expert's report under the Medical Liability Act,
        Cases that cite this headnote
                                                                      a plaintiff need not present evidence in the
                                                                      report as if it were actually litigating the merits.
 [7]    Health                                                        V.T.C.A., Civil Practice & Remedies Code §
            Affidavits of merit or meritorious defense;               74.351(r)(6).
        expert affidavits
                                                                      Cases that cite this headnote
        In determining the adequacy of an expert
        report under the Medical Liability Act, the only
        information relevant to the inquiry is within the      [11]   Health
        four corners of the document. V.T.C.A., Civil                     Affidavits of merit or meritorious defense;
        Practice & Remedies Code § 74.001 et seq.                     expert affidavits
                                                                      The expert's report in a medical malpractice
        Cases that cite this headnote
                                                                      action can be informal, that is, the information
                                                                      in the report does not have to meet the
 [8]    Health                                                        same requirements as the evidence offered in
            Affidavits of merit or meritorious defense;               a summary-judgment proceeding or at trial.
        expert affidavits                                             V.T.C.A., Civil Practice & Remedies Code §
        For an expert's report to constitute a good-                  74.351(r)(6).
        faith effort under the Medical Liability Act, the
                                                                      Cases that cite this headnote
        report must provide enough information to fulfill
        two purposes: first, the report must inform the
        defendant of the specific conduct the plaintiff        [12]   Evidence
        has called into question; second, the report must                 Due care and proper conduct in general
        provide a basis for the trial court to conclude that          In determining whether a medical expert is
        the claims have merit. V.T.C.A., Civil Practice               qualified to testify on a medical question
        & Remedies Code §§ 74.351(l ), 74.351(r)(6).                  in a health care liability claim, the trial
                                                                      court focus should be on whether the expert
        Cases that cite this headnote
                                                                      has knowledge, skill, experience, training, or
                                                                      education regarding the specific issue before the
 [9]    Health                                                        court which would qualify the expert to give
            Affidavits of merit or meritorious defense;               an opinion on that particular subject. V.T.C.A.,
        expert affidavits                                             Civil Practice & Remedies Code § 74.402.
        An expert report that merely states the expert's
                                                                      Cases that cite this headnote
        conclusions about the standard of care, breach,
        and causation does not constitute a good-faith
        effort under the Medical Liability Act; rather, the    [13]   Evidence
        expert must explain the basis of his statements                   Due care and proper conduct in general
        to link his conclusions to the facts. V.T.C.A.,               A medical expert from one specialty may be
        Civil Practice & Remedies Code §§ 74.351(a),                  qualified to provide an opinion in a health care
        74.351(r)(6).                                                 liability claim if he has practical knowledge of
                                                                      what is commonly done by doctors of a different
        Cases that cite this headnote
                                                                      specialty, and if the subject matter is common
                                                                      to and equally recognized and developed in all
 [10]   Health                                                        fields of practice, any physician familiar with the
                                                                      subject may testify as to the standard of care.


               © 2015 Thomson Reuters. No claim to original U.S. Government Works.                                           2
Tenet Hospitals Ltd. v. Barajas, 451 S.W.3d 535 (2014)


        V.T.C.A., Civil Practice & Remedies Code §                     Liability Act; nurse had worked in various
        74.402(a).                                                     nursing positions at several acute care hospitals
                                                                       including defendant hospital, was senior director
        Cases that cite this headnote                                  of occupational health at ambulatory clinic, and
                                                                       opined that assessment of whether more help
 [14]   Health                                                         was needed should have been performed before
            Affidavits of merit or meritorious defense;                attempting to move patient. V.T.C.A., Civil
        expert affidavits                                              Practice & Remedies Code § 74.402(b)(2).
        For purposes of a health care liability claim, the             Cases that cite this headnote
        medical expert's qualifications must appear in the
        expert report and cannot be inferred. V.T.C.A.,
        Civil Practice & Remedies Code § 74.351.                [18]   Evidence
                                                                           Due care and proper conduct in general
        Cases that cite this headnote                                  Proposed nursing expert witness was not actively
                                                                       practicing health care in rendering health care
 [15]   Evidence                                                       services relevant to medical negligence claim
            Due care and proper conduct in general                     filed against hospital, after patient fell while
                                                                       being assisted by hospital floor nurse from chair
        Whether a witness is qualified to serve as an
                                                                       to walker, and thus, nurse was not qualified
        expert in a health care liability claim is within the
                                                                       to render an opinion on the standard of care;
        trial court's discretion.
                                                                       it was unclear whether nurse was licensed at
        Cases that cite this headnote                                  the time she gave her expert testimony, and
                                                                       although nurse was a licensed, registered nurse,
                                                                       who was serving as a consulting health care
 [16]   Health
                                                                       provider at time she gave her testimony, nothing
            Affidavits of merit or meritorious defense;
                                                                       in her curriculum vitae or report revealed that
        expert affidavits
                                                                       she served as a consulting health care provider
        An expert report by a person unqualified to                    at time the patient's claim arose. V.T.C.A., Civil
        testify does not constitute a good faith effort                Practice & Remedies Code § 74.402(c)(2).
        to comply with the statutory definition of an
        expert report, under the Medical Liability Act.                Cases that cite this headnote
        V.T.C.A., Civil Practice & Remedies Code §
        74.351.
                                                                [19]   Health
        Cases that cite this headnote                                      Affidavits of merit or meritorious defense;
                                                                       expert affidavits
                                                                       Orthopedic surgeon was not actively practicing
 [17]   Health
                                                                       health care at time patient's medical negligence
            Affidavits of merit or meritorious defense;
                                                                       claim arose against hospital, and therefore, he
        expert affidavits
                                                                       was not qualified to render expert opinion in
        Based upon her experience as a registered nurse                his report on applicable standard of care for
        and detailed description of applicable standard of             floor nurse furnishing post-surgical care to assist
        care for floor nurses contained in her report, trial           obese hospital patients to ambulate from chair
        court could have reasonably concluded that nurse               to walker; there was no indication surgeon was
        had “knowledge of accepted standards of care                   serving was a consultant health care provider
        for health care providers for the diagnosis, care,             or training health care providers in same field
        or treatment of the illness, injury, or condition”             at accredited educational institution at time
        involved in hospital patient's health care claim,              patient's claim arose or at time he gave his
        as required to support finding that her report was             testimony concerning the applicable standard of
        adequate as an expert report pursuant to Medical


               © 2015 Thomson Reuters. No claim to original U.S. Government Works.                                           3
Tenet Hospitals Ltd. v. Barajas, 451 S.W.3d 535 (2014)


        care. V.T.C.A., Civil Practice & Remedies Code               nurses or aides to assist patient to ambulate;
        § 74.402(c)(2).                                              doctors stated in their opinion, that patient's
                                                                     fall, as result of breach of care, “was the
        Cases that cite this headnote                                proximate cause of the right patellar dislocation”
                                                                     and tearing that her doctor found in surgery.
 [20]   Evidence                                                     V.T.C.A., Civil Practice & Remedies Code §
            Due care and proper conduct in general                   74.351(r)(5)(C).
        Orthopedic surgeon was qualified on basis of                 Cases that cite this headnote
        training or experience to offer an expert opinion
        regarding accepted standards of health care of
        hospital floor nurses assisting hospital patients     [23]   Health
        post-surgery in patient's negligence action                      Proximate Cause
        stemming from her fall while being assisted                  For purposes of a health care liability claim, a
        from a chair to a walker; curriculum vitae and               causal relationship is established by proof that
        report showed that surgeon was certified by                  the negligent act or omission was a substantial
        licensing agency, possessed substantial training             factor in bringing about the harm, and that,
        or experience relevant to the claim, and was                 absent this act or omission, the harm would
        actively practicing health care, as he expressly             not have occurred; the mere provision of some
        stated “I am an orthopedic surgeon,” and                     insight into the plaintiff's claims does not
        surgeon's statement that he reviewed patient's               adequately address causation.
        case and was submitting his preliminary report
        established he was serving as consultant at time             Cases that cite this headnote
        he gave his expert testimony. V.T.C.A., Civil
        Practice & Remedies Code § 74.402(b)(3).              [24]   Health
                                                                         Affidavits of merit or meritorious defense;
        Cases that cite this headnote
                                                                     expert affidavits
                                                                     For purposes of a health care liability claim,
 [21]   Evidence                                                     the expert report must explain the basis for
            Cause and effect                                         the causation opinions by linking the expert's
        A nurse is unqualified to provide expert opinion             conclusions to the alleged breach.
        on causation in medical negligence action.
        V.T.C.A., Civil Practice & Remedies Code §                   1 Cases that cite this headnote
        74.351(r)(5)(C).

        Cases that cite this headnote
                                                             Attorneys and Law Firms
 [22]   Health
                                                             *538 Walter L. Boyaki, Miranda & Boyaki, El Paso, TX, for
            Affidavits of merit or meritorious defense;
                                                             Appellee.
        expert affidavits
        Physicians' expert reports were not conclusory,      Ken Slavin, Kemp Smith, El Paso, TX, for Appellant.
        but, as required by Medical Liability Act,
        represented an objective good faith effort to        Before McCLURE, C.J., RODRIGUEZ, J., and PARKS,
        provide a fair summary of causal relationship        Judge, sitting by assignment.
        between hospital floor nurse's actions and post-
        surgical patient's injury from fall attributed to
        nurse's breach of standard of care by not assuring                           OPINION
        chair was locked before patient attempted to
                                                             YVONNE T. RODRIGUEZ, Justice.
        stand and by not seeking assistance of other



              © 2015 Thomson Reuters. No claim to original U.S. Government Works.                                         4
Tenet Hospitals Ltd. v. Barajas, 451 S.W.3d 535 (2014)


Appellant, Tenet Hospitals Limited, d/b/a/ Sierra Medical
Center, appeals the trial court's denial of its motion to dismiss   Specifically, SMC argued that Drs. Allen and Arredondo
Appellee Mariva Barajas's health care liability claim. Sierra       were not qualified to offer opinions on the standard of care
Medical Center (SMC) raises a single issue for our review.          for registered nurses, and that their opinions as to causation
For the following reasons, we affirm in part and reverse in         were conclusory. SMC similarly contended Nurse Holguin
part.                                                               was unqualified to opine on the standard of care for registered
                                                                    nurses in an acute care hospital setting, and that her report
                                                                    failed to adequately address the standard of care applicable
                                                                    to SMC's nursing staff and any alleged breaches. After a
                      BACKGROUND
                                                                    hearing, the trial court overruled SMC's objections and denied
On March 17, 2011, Barajas underwent a total right knee             its motions to dismiss. This interlocutory appeal followed.
replacement operation at SMC. The following day, while still        SeeTEX. CIV. PRAC. & REM.CODE ANN. § 51.014(a)(9)
a patient at SMC, Barajas requested assistance to move from         (West 2008).
a recliner to the bedside commode. A nurse attempted to
help Barajas get up with a walker; however, the recliner was
not locked and Barajas “slid down” to the floor causing her                                DISCUSSION
newly-operated knee to bend. A Hoyer lift was used to get
Barajas, an obese patient, back into the hospital bed. After        In its sole issue on appeal, SMC challenges the expert reports
the nurse notified Dr. Alvaro Hernandez, the doctor who had         filed by Barajas. Specifically, SMC contends that the expert
performed Barajas's knee replacement, of the fall, no new           reports are not authored by qualified experts and that the
orders were given.                                                  reports are conclusory as to causation.

On March 21, 2011, Barajas was discharged from SMC and
sent to Las Palmas Rehab Hospital for therapy. On March 23,
                                                                                         Standard of Review
2011, Barajas experienced some popping of the right knee,
her therapy was stopped, and x-rays were taken. The x-ray            [1] [2] [3] [4] [5] A trial court's decision to grant or deny
report was normal.                                                  a motion to dismiss under Section 74.351 is reviewed for an
                                                                    abuse of discretion. See American Transitional Care Ctrs. of
In April and May 2011, Barajas followed-up her care with Dr.        Tex., Inc. v. Palacios, 46 S.W.3d 873, 875 (Tex.2001); Tenet
Hernandez. On May 2, 2011, Barajas reported she was having          Hospitals, Ltd. v. Boada, 304 S.W.3d 528, 533 (Tex.App.-El
pain and x-rays were taken. Barajas was diagnosed with              Paso 2009, pet. denied). A trial court only abuses its discretion
right patellar dislocation. On May 5, 2011, Dr. Hernandez           when it acts in an unreasonable or arbitrary manner, without
performed right knee patellar dislocation surgery on Barajas.       reference to any guiding rules or principles. See Walker v.
On March 29, 2012, Barajas saw Dr. Charles Zaltz, Dr.               Gutierrez, 111 S.W.3d 56, 62 (Tex.2003); Boada, 304 S.W.3d
Hernandez's partner, for a follow-up. In his medical note,          at 533. A trial court acts arbitrarily and unreasonably if it
Dr. Zaltz recorded that Barajas fell at SMC the day after           could have reached only one decision, but instead reached
her right total knee replacement surgery and stated that the        a different one. See Teixeira v. Hall, 107 S.W.3d 805, 807
right patellar dislocation and disruption of Barajas's patellar     (Tex.App.-Texarkana 2003, no pet.); Boada, 304 S.W.3d at
mechanism found on May 2, 2011, was the result of her fall          533. A trial court also abuses its discretion when it fails to
at SMC on March 18, 2011.                                           analyze or apply the law correctly. In re Sw. Bell Tel. Co.,
                                                                    226 S.W.3d 400, 403 (Tex.2007) (citing In re Kuntz, 124
In May 2013, Barajas sued SMC for medical negligence                S.W.3d 179, 181 (Tex.2003)); Boada, 304 S.W.3d at 533.
alleging that the hospital allowed Barajas “to drop to the floor    However, a trial court does not abuse its discretion merely
after the 3/17/11 surgery” and committed *539 “[o]ther acts         because it decides a matter within its discretion differently
and/or omissions of negligence.” Barajas timely served expert       than a reviewing court. Downer v. Aquamarine Operators,
reports and the curricula vitae of Registered Nurse Donna           Inc., 701 S.W.2d 238, 242 (Tex.1985), cert. denied,476 U.S.
Holguin, and Drs. Rene Arredondo and John Allen. SMC                1159, 106 S.Ct. 2279, 90 L.Ed.2d 721 (1986).
subsequently filed objections to the sufficiency of the three
expert reports and moved to dismiss Barajas's claim.



                © 2015 Thomson Reuters. No claim to original U.S. Government Works.                                             5
Tenet Hospitals Ltd. v. Barajas, 451 S.W.3d 535 (2014)




                      Applicable Law                                  THE PROFFERED EXPERTS' QUALIFICATIONS

 [6] [7] “[A] claimant shall, not later than the 120th day after    In Issue One, SMC argues that Nurse Holguin, and Drs. Allen
the date each defendant's original answer is filed, serve on that   and Arredondo lack the qualifications to provide opinions on
party or the party's attorney one or more expert reports, with      the standard of care for hospital floor nurses. SMC maintains
a curriculum vitae of each expert listed in the report for each     the curricula vitae and reports of the proffered experts fail to
physician or health care provider against whom a liability          satisfy the requirements of Section 74.402.
claim is asserted.” SeeTEX. CIV. PRAC. & REM.CODE
ANN. § 74.351(a) (West 2011). If a plaintiff timely files an        To be qualified as a medical expert on whether a hospital
expert report and the defendant moves to dismiss because of         departed from an accepted standard of health care, the
the report's inadequacy, a trial court must grant the motion        proffered expert must satisfy the requirements of Section
“only if it appears to the court, after hearing, that the report    74.402 of the Civil Practice and Remedies Code. SeeTEX.
does not represent an objective good faith effort to comply         CIV. PRAC. & REM.CODE ANN. § 74.351(r)(5)(B) (West
with the definition of an expert report in Subsection (r)(6).”      2011). Section 74.402 provides that:
Id. § 74.351(l ). The definition of an expert report requires
that the report contain a fair summary of the expert's opinions       (b) In a suit involving a health care liability claim against
as of the date of the report regarding applicable standards of        a health care provider, a person may qualify as an expert
care, the manner in which the *540 care rendered by the               witness on the issue of whether the health care provider
physician or health care provider failed to meet the standards,       departed from accepted standards of care only if the person:
and the causal relationship between that failure and the injury,
                                                                         (1) is practicing health care in a field of practice that
harm, or damages claimed. Id. § 74.351(r)(6) (West 2011).
                                                                         involves the same type of care or treatment as that
As the “statute focuses on what the report discusses, the only
                                                                         delivered by the defendant health care provider, if the
information relevant to the inquiry is within the four corners
                                                                         defendant health care provider is an individual, at the
of the document.” Palacios, 46 S.W.3d at 878.
                                                                         time the testimony is given or was practicing that type

 [8] [9] [10] [11] “In setting out the expert's opinions on              of health care at the time the claim arose; 1
each of those elements, the report must provide enough
information to fulfill two purposes if it is to constitute a     1         We agree with the parties that this subsection of section
good faith effort.”Id. at 879. The report must: (1) inform                 74.402 is inapplicable in this case because the health care
“the defendant of the specific conduct the plaintiff has called            provider here is SMC, a hospital, and not an individual.
into question;” and (2) “provide a basis for the trial court               See Renaissance Healthcare Sys., Inc. v. Swan, 343
                                                                           S.W.3d 571, 588 (Tex.App.-Beaumont 2011, no pet.);
to conclude that the claims have merit.” Id. If a report
                                                                           TTHR, L.P. v. Coffman, 338 S.W.3d 103, 112 (Tex.App.-
does not meet these purposes and omits any of the statutory
                                                                           Fort Worth 2011, no pet.).
requirements, it does not constitute a good faith effort. Id.
Nor does a report “that merely states the expert's conclusions
                                                                         (2) has knowledge of accepted standards of care for
about the standard of care, breach, and causation” fulfill these
                                                                         health care providers for the diagnosis, care, or treatment
purposes. Id. Rather, the expert must explain the basis of his
                                                                         of the illness, injury, or condition involved in the claim;
statements to link his conclusions to the facts. Bowie Mem'l
                                                                         and
Hosp. v. Wright, 79 S.W.3d 48, 52 (Tex.2002). However, “a
plaintiff need not present evidence in the report as if it were               (3) is qualified on the basis of training or experience
actually litigating the merits.” Palacios, 46 S.W.3d at 879.                  to offer an expert opinion regarding those accepted
“The report can be informal,” that is, “the information in the                standards of health care.
report does not have to meet the same requirements as the
evidence offered in a summary-judgment proceeding or at                     *541 (c) In determining whether a witness is
trial.” Id.                                                                qualified on the basis of training or experience, the
                                                                           court shall consider whether, at the time the claim
                                                                           arose or at the time the testimony is given, the witness:




               © 2015 Thomson Reuters. No claim to original U.S. Government Works.                                                       6
Tenet Hospitals Ltd. v. Barajas, 451 S.W.3d 535 (2014)


                                                                   Silvey, 247 S.W.3d 310, 314 (Tex.App.-El Paso 2007, no
          (1) is certified by a licensing agency of one or more    pet.). An expert report by a person unqualified to testify
          states of the United States or a national professional   does not constitute a good faith effort to comply with the
          certifying agency, or has other substantial training     statutory definition of an expert report. Foster v. Zavala,
          or experience, in the area of health care relevant to    214 S.W.3d 106, 116 (Tex.App.-Eastland 2006, pet. denied)
          the claim; and                                           (citing In re Windisch, 138 S.W.3d 507, 511 (Tex.App.-
                                                                   Amarillo 2004, orig. proceeding) (examining predecessor to
         (2) is actively practicing health care in rendering
                                                                   Section 74.351)).
         health care services relevant to the claim.
TEX. CIV. PRAC. & REM.CODE ANN. § 74.402(b)(c)
(West 2011). “Practicing health care” includes:
                                                                                    Nurse Holguin's Report
  (1) training health care providers in the same field as the
  defendant health care provider at an accredited educational    SMC contends Nurse Holguin is unqualified to testify
  institution; or                                                as an expert on the standard of care for hospital floor
                                                                 nurses providing post-surgical care to patients in March
   (2) serving as a consulting health care provider and being    2011 because “Nurse Holguin does not meet the knowledge
   licensed, certified, or registered in the same field as the   requirements of Section 74.402(b)(2).” SMC also asserts
   defendant health care provider.                               Nurse Holguin is not qualified to opine on the applicable
                                                                 standard of care based on her training and experience.
Id. § 74.402(a).
                                                                 In essence, SMC argues Nurse Holguin does not satisfy
                                                                  *542 Section 74.402(b)(3). SeeTEX. CIV. PRAC. &
 [12] [13] Not every licensed physician is automatically
                                                                 REM.CODE ANN. § 74.402(b)(3) (West 2011).
qualified to testify on every medical question. Tenet Hospitals
Ltd. v. Love, 347 S.W.3d 743, 749–50 (Tex.App.-El Paso
                                                                  [17] Pursuant to Section 74.402(b)(2), Nurse Holguin may
2011, no pet.) (citing Broders v. Heise, 924 S.W.2d 148, 152
                                                                 qualify as an expert witness on the issue of whether SMC
(Tex.1996)). In determining whether a witness is qualified to
                                                                 departed from accepted standards of care only if she has
testify as an expert, the trial court focus should be on whether
                                                                 “knowledge of accepted standards of care for health care
the expert has “knowledge, skill, experience, training, or
                                                                 providers for the diagnosis, care, or treatment of the illness,
education” regarding the specific issue before the court which
                                                                 injury, or condition involved in the claim[.]” Id. § 74.402(b)
would qualify the expert to give an opinion on that particular
                                                                 (2). This case involves the post-operative care of an obese
subject. Id. at 750. Accordingly, a medical expert from one
                                                                 hospital patient who had total right knee replacement surgery.
specialty may be qualified to provide an opinion if he has
                                                                 Barajas's alleged that due to the negligence of SMC and its
practical knowledge of what is commonly done by doctors of
                                                                 floor nurses she required additional knee surgery after SMC
a different specialty. Id. If the subject matter is common to
                                                                 and its floor nurses failed to prevent her from falling to
and equally recognized and developed in all fields of practice,
                                                                 the floor as she was assisted from a recliner to the bedside
any physician familiar with the subject may testify as to
                                                                 commode.
the standard of care. Caviglia v. Tate, 365 S.W.3d 804, 810
(Tex.App.-El Paso 2012, no pet.) (citing Keo v. Vu, 76 S.W.3d
                                                                 Nurse Holguin's curriculum vitae reflects that she has a
725, 732 (Tex.App.-Houston [1st Dist.] 2002, pet. denied)).
                                                                 B.S.N. and M.S.N., and that she has worked in various
                                                                 nursing positions at several acute care hospitals including
 [14] [15] [16] Nevertheless, the proffered medical expert's
                                                                 SMC. From 1991 to 1996, she held the title of Director of
expertise must be evident from the four corners of his report
                                                                 Quality Management at Providence Memorial Hospital where
and curriculum vitae. See generally Palacios, 46 S.W.3d
                                                                 she was in charge of quality management, risk management,
at 878; Christus Health Southeast Texas v. Broussard, 267
                                                                 safety, “ProvCare and Infection Control.” She also worked as
S.W.3d 531, 536 (Tex.App.-Beaumont 2008, no pet.). The
                                                                 the Director of Nursing Services at a long-term care facility
expert's qualifications must appear in the report and cannot
                                                                 where she oversaw all aspects of nursing client care. From
be inferred. See Salais v. Texas Dep't of Aging & Disability
                                                                 1999 to January 31, 2011, Nurse Holguin was the Senior
Servs., 323 S.W.3d 527, 536 (Tex.App.-Waco 2010, pet.
                                                                 Director of Quality Improvement and Occupational Health
denied). Whether a witness is qualified “to serve as an
                                                                 at an ambulatory clinic where she acted as the Director
expert is within the trial court's discretion.” Palafox v.


               © 2015 Thomson Reuters. No claim to original U.S. Government Works.                                          7
Tenet Hospitals Ltd. v. Barajas, 451 S.W.3d 535 (2014)


of Nursing, Infection Control Nurse, Safety Officer, and
Director of the facility Safety Program.                             Had proper assessment been done prior to the unidentified
                                                                     staff member attempting to assist Ms. Barajas this
In her expert report, we note Nurse Holguin does not                 unfortunate “fall” should not have occurred. The staff
expressly state she is familiar with the standard of care for        member failed to provide for this patient[']s safety. Ms.
nurses for the prevention of falls of obese patients in a            Barraza [sic] was provided with and signed a “Patient
hospital setting nor does she state that she has knowledge           Safety Tips” form on admission to the hospital. This form
of the applicable standard of care. However, she does detail         indicates that the patient is to: “Call for help before getting
knowledge of what SMC floor nurses should have done when             up from a chair or bed” and yet when Ms. Barajas did
assisting an obese patient, who had recently had a total knee        call for help she was not kept safe because the assisting
replacement, move from a recliner to the bedside commode.            person did not take into account all of the factors about
Specifically, Nurse Holguin's expert report provides:                her that would have indicated the need for the assistance
                                                                     of more than one person. A staff member skilled in the
  Next Nursing note is on 3–18–2011 1330 by April Hurtado            postoperative care of Total Knee Patients should have
  (no clinical designation noted). According to the patient          been called on to make a determination of what type of
  she had been “assisted up into a chair earlier by 6 or 7 staff     assistance was needed if the person at the bedside was
  members.” The Nursing Note at 1330 states “Patient called          unable to determine what would be safest for this patient.
  for assistance to bedside commode was sitting in recliner
  chair, attempted to help patient with walker and the chair         Nursing Care of this newly operated orthopedic patient was
  was not locked, patient slid down to floor knee did bend,          not appropriate/not adequate since the patient was not kept
  patient okay.”                                                     safe and ended up on the floor which was NOT the desired
                                                                     outcome of a transfer from a chair to a bedside commode.
  This event/fall occurred on 3–18–2011 the first day after
  the total knee replacement procedure. Any nursing staff          Because of her experience as a registered nurse as set forth
  member entering this patients' room should have taken            in her curriculum vitae and the detailed description of the
  note of the patient[']s size and could easily have asked         applicable standard of care for floor nurses contained in her
  the patient how much assistance had been provided earlier        report, the trial court could have reasonably concluded that
  to help her into the recliner chair. These two pieces of         Nurse Holguin has “knowledge of accepted standards of care
  information would have provided the basis for indicating         for health care providers for the diagnosis, care, or treatment
  whether more help was needed to safely assist this patient       of the illness, injury, or condition involved in [Barajas's]
  rather than receiving assistance from one female staff,          claim[.]” SeeTEX. CIV. PRAC. & REM.CODE ANN. §
  who was reportedly in a state of advanced pregnancy. The         74.402(b)(2). As such, we conclude Barajas satisfied Section
  patient reports that she asked whether more help should be       74.402(b)(2).
  summoned but was told by the person in the room that more
  help was not necessary.                                           [18] To determine whether a witness is qualified “on the
                                                                   basis of training or experience,” the court shall consider
  The nurses note indicates that the “chair was not locked”—       “whether, at the time the claim arose or at the time the
  another failure on the part of the staff member who              testimony is given, the witness: (1) is certified by a licensing
  undertook this assist—not assuring that the chair would not      agency ... or has other substantial training or experience, in
  move as the patient attempted to stand up from the sitting       the area of health care relevant to the claim; and (2) is actively
  position to a standing position to use the walker to then        practicing health care in rendering health care services
  move to the bedside commode.                                     relevant to the claim.” TEX. CIV. PRAC. & REM.CODE
                                                                   ANN. § 74.402(c) (West 2011). SMC argues Nurse Holguin
   *543 Instead of being safely moved from the chair to            in not a qualified expert because “[she] is not a licensed nurse
  the bedside commode the patient went down to the floor           and it is unclear whether she was a licensed nurse when she
  and the newly operated knee “bent”, according to the             gave her opinions as her [curriculum vitae] does not show
  documentation. The staff member who had undertaken the           when she was licensed.” SMC maintains Nurse Holguin's
  transfer did not keep the patient safe from going to the floor   curriculum vitae shows she did not have substantial training
  and while going to the floor the knee bent.                      or experience as a hospital floor nurse at the time Barajas's
                                                                   claim arose on March 18, 2011, or on September 9, 2013, at
                                ...


               © 2015 Thomson Reuters. No claim to original U.S. Government Works.                                               8
Tenet Hospitals Ltd. v. Barajas, 451 S.W.3d 535 (2014)


the time she gave her expert opinion. SMC also advances that         objected to a nurse's qualifications to render an expert opinion
Nurse Holguin's report and curriculum vitae do not reflect she       because she failed to state that she actively practiced in a field
was actively practicing health care at the time the claim arose      requiring her to provide nursing care in a hospital setting.
or at the time she gave her report.                                  Id. at 690. After looking at the nurse's curriculum vitae and
                                                                     report, the appellate court found the trial court did not abuse
Despite SMC's argument to the contrary, Nurse Holguin's              its discretion in determining that a nurse was qualified to offer
curriculum vitae clearly indicates she was certified by a            an expert report. Id. The facts in Potts are distinguishable
licensing agency on March 18, 2011, at the time Barajas's            from the facts in this case.
claim arose as it shows that she is licensed by the Texas
Board of Nursing and that her license would expire on August         In Potts, the trial court found no abuse of discretion because
31, 2013. Accordingly, Nurse *544 Holguin meets the first            the nurse's curriculum vitae stated that “she is a ‘Nurse
prong of section 74.402(c).                                          Consultant/Expert Witness' and a ‘Quality Review Nurse’
                                                                     for the Texas Department of Aging and Disability Services,”
Under the second prong of Section 74.402(c), Nurse Holguin           and both the curriculum vitae and report showed that “she
must be “actively practicing health care in rendering health         is licensed as a nurse and holds a number of nursing
care services relevant to the claim.” Id. § 74.402(c)(2).            certifications.” Id. Here, it is unclear whether Nurse Holguin
SMC contends Nurse Holguin cannot meet the second prong              was licensed at the time she gave her expert testimony
because she was not actively practicing health care at any           (September 9, 2013), as her curriculum vitae reflects that
relevant time.                                                       the expiration date of her nursing license was August 31,
                                                                     2013. Additionally, nothing in Nurse Holguin's curriculum
Section 74.402(a) defines “practicing health care” as                vitae or report reveal that she served as a consulting health
including “(1) training health care providers in the same            care provider at the time Barajas's claim arose. As such, we
field as the defendant health care provider at an accredited         conclude Nurse Holguin failed to satisfy the second prong
educational institution; or (2) serving as a consulting health       of section 74.402(c) and therefore, the trial court abused
care provider and being licensed, certified, or registered           its discretion in determining Nurse Holguin was qualified
in the same field as the defendant health care provider.”            to offer an expert report pursuant to Section 74.402(b)(3).
Id. § 74.402(a)(1)-(2). While nothing in Nurse Holguin's             SeeTEX. CIV. PRAC. & REM.CODE ANN. § 74.402(b)(3).
curriculum vitae or report indicate that she has experience
training health care providers at an accredited education
institution, they do show that she is a licensed, registered
                                                                                           Dr. Allen's Report
nurse, who is serving as a consulting health care provider.
In her expert report, Nurse Holguin states, “I have reviewed         Dr. Allen's curriculum vitae shows that he is a British trained
the Nurses Notes and other portions of the Medical Record            orthopaedic surgeon *545 and is actively licensed in New
of ... Barajas.... In order to determine whether the Nursing         Mexico. As part of his medical practice in the United States,
Care provided to ... Barajas was appropriate on 3–18–2011            Dr. Allen has, in part, worked as an Orthopaedic Fellow
when she was being assisted up out of a chair.” Thus, it is          at Children's Hospital Medical Center and an Associate in
clear Nurse Holguin was serving as a consulting health care          Orthopaedics at Massachusetts General Hospital in Boston.
provider at the time she gave her testimony in September             He has served as an Instructor in Orthopaedics at Harvard
2013. 2                                                              University. He has acted as a consultant for Liberty Mutual
                                                                     Rehabilitation Center and Eunice Kennedy Shriver Center
2         We note SMC does not dispute Barajas's statement that
                                                                     for Mental Retardation in Boston. He has worked as an
          Nurse Holguin served as nurse consultant expert witness.   orthopaedic surgeon in various capacities in both the United
                                                                     States and United Kingdom. His current office is located in
Relying on Certified EMS Inc. v. Potts, 355 S.W.3d 683,
                                                                     Albuquerque.
690 (Tex.App.-Houston [1st Dist.] 2011), aff'd,392 S.W.3d
625 (Tex.2013), Barajas argues that because Nurse Holguin
                                                                     In his report, Dr. Allen provided the following standard of
was a licensed nurse at the time the claim arose and is a
                                                                     care:
nurse consultant witness, she is sufficiently qualified to be
an expert under Section 74.402(a)-(c). In Potts, the appellant



                  © 2015 Thomson Reuters. No claim to original U.S. Government Works.                                               9
Tenet Hospitals Ltd. v. Barajas, 451 S.W.3d 535 (2014)


                                                                    and procedures, requiring hospitals to staff certain specialists,
  The standard of care for the floor nurse at Sierra Medical        or running a hospital. Id. at 751.
  Center is to use assistance (other personnel) to assist an
  obese patient back from an unlocked recliner chair to bed         Here, the four corners of Dr. Allen's curriculum vitae and
  and to lock that chair before the patient attempts to stand       report indicate he is an orthopaedic surgeon actively licensed
  up.                                                               in New Mexico, that he has an office in Albuquerque, and
                                                                    that he has worked as an orthopaedic surgeon in various
  The nurse at Sierra Medical Center breached the standard
                                                                    capacities. Moreover, Dr. Allen states that during his practice
  of care by not assuring the recliner chair was locked
                                                                    as an orthopaedic surgeon, he has evaluated patients who have
  before Ms. Barajas attempted to stand at around 1330 on
                                                                    fallen after surgery and that he has interacted with hospital
  03/18/2011. The nurse also breached the standard of care
                                                                    nursing staff on pre- and post-operative fall prevention of
  by not seeking assistance of other nurses or aides to assist
                                                                    patients, which *546 included obese patients. Thus, unlike
  Ms. Barajas to ambulate from the chair to the bedside
                                                                    the experts in Love, Dr. Allen's curriculum vitae and report
  commode as she was an obese, newly postoperative knee
                                                                    explain why and how he is qualified to render an opinion on
  patient.
                                                                    the applicable standard of care.
Dr. Allen states his education and experience are relevant to
the review of the medical care Barajas received by nurses at        SMC also argues Dr. Allen is unqualified to give expert
SMC. He further states that:                                        testimony because he is not actively practicing health care in
                                                                    rendering health care services related to the claim. SeeTEX.
             During the many years of [his]                         CIV. PRAC. & REM.CODE ANN. § 74.402(c)(2) (West
             orthopedic surgery practice [he has]                   2011). As already discussed above, “practicing health care”
             evaluated patients who have fallen                     includes “(1) training health care providers in the same
             after surgery and ha[s] interacted with                field as the defendant health care provider at an accredited
             hospital nursing staff on prevention                   educational institution; or (2) serving as a consulting health
             of falls by patients before and after                  care provider and being licensed, certified or registered in
             surgery, including patients who are                    the same field as the defendant health care provider.” Id.
             obese.                                                 § 74.402(a)(1)-(2). It is clear Dr. Allen's curriculum vitae
                                                                    reflects he is a licensed orthopaedic surgeon who, in the past,
 [19] SMC contends Dr. Allen “fails to meet the requirements        has acted as a consultant health care provider and trained
to qualify as an expert in this case” because the four corners      orthopaedic students at Harvard. However, we do not find
of his curriculum vitae and report fail to demonstrate that         any indication he was serving as a consultant health care
he is qualified to opine on the standard of care for hospital       provider or training health care providers in the same field
floor nurses furnishing post-surgical care to hospital patients     at an accredited educational institution at the time Barajas's
or that he was actively rendering medical care services when        claim arose or at the time Dr. Allen gave his testimony.
the claim arose in March 2011, or when he offered his opinion       See Select Specialty Hospital–Houston Ltd. Partnership v.
in September 2013. Although SMC relies on this Court's              Simmons, No. 01–12–00658–CV, 2013 WL 3877696, at *5 n.
decision in Love to support their argument, we find Love            2 (Tex.App.-Houston [1st Dist.] Jul 25, 2013, no pet.) (expert
is distinguishable. In Love, we held the curricula vitae and        nurse was qualified as her curriculum vitae demonstrated she
reports of two physicians failed to show they were qualified        was currently working as a nurse consultant).
to opine on hospital administration procedures regarding
staffing specialists and transferring patients because the          Accordingly, we find the trial court abused its discretion in
curricula vitae and reports contained only one sentence stating     determining that Dr. Allen was qualified to opine on the
that the experts were familiar with the responsibilities, duties,   applicable standard of care and that he was actively practicing
and expectations a hospital provides to its patients. Love,         health care at the time the claim arose or his testimony was
347 S.W.3d at 750–51. We also noted the curricula vitae             given as set out in sections 74.402(a) and (c).
and reports merely recited that the doctors were specialists
who served on various committees, but failed to demonstrate
whether their experience involved setting hospital policies
                                                                                      Dr. Arredondo's Report




                © 2015 Thomson Reuters. No claim to original U.S. Government Works.                                             10
Tenet Hospitals Ltd. v. Barajas, 451 S.W.3d 535 (2014)


 [20] SMC challenges Dr. Arredondo's report on the                   discretion as the trial court could have reasonably concluded
same grounds as Dr. Allen's report. SMC contends Dr.                 that Dr. Arredondo satisfied both prongs of Section 74.402(c)
Arredondo's curriculum vitae “fails to provide information           and determined that he was qualified as an expert under
on his education, experience and training that qualifies him         Section 74.402(b)(3). SeeTEX. CIV. PRAC. & REM.CODE
to opine on hospital floor nurses assisting hospital patients        ANN. § 74.402(c); Potts, 355 S.W.3d at 690 (finding no
post-surgery.” SMC argues Dr. Arredondo is precluded from            abuse of discretion in trial court's determination that nurse
qualifying as an expert because he is not actively practicing        was qualified to offer an expert report because her curriculum
health care.                                                         vitae stated that “she is a ‘Nurse Consultant/Expert Witness'
                                                                     and a ‘Quality Review Nurse’ for the Texas Department of
In determining whether Dr. Arredondo meets the                       Aging and Disability Services,” and both the curriculum vitae
requirements of Section 74.402(b)(3), we look at whether he          and report showed that “she is licensed as a nurse and holds
is (1) certified by a licensing agency or has substantial training   a number of nursing certifications”).
or experience relevant to the claim, and (2) whether he is
actively practicing health care relevant to the claim. SeeTEX.
CIV. PRAC. & REM.CODE ANN. § 74.402(c). According
                                                                                            CAUSATION
to his curriculum vitae, Dr. Arredondo is licensed by the
Texas State Board of Medical Examiners. From 1975 to 2009,            [21] SMC contends the trial court abused its discretion
Dr. Arredondo's private practice was limited to orthopaedic          because the proffered expert reports are conclusory on the
surgery and physical rehabilitation. In his expert report dated      issue of causation. SMC also maintains Nurse Holguin's
August 23, 2013, Dr. Arredondo states that he reviewed               report is improper because she, as a non-physician, is not
Barajas's case and was submitting his preliminary report. He         legally qualified to opine on medical causation. We agree
goes on to state that he is an orthopaedic surgeon, that he has      that a nurse is not qualified to opine on medical causation.
been an orthopaedic surgeon since 1975, and that he is board         SeeTEX. CIV. PRAC. & REM.CODE ANN. § 74.351(r)(5)
certified by the American Board of Orthopaedic Surgery. He           (C) (West 2011); Boada, 304 S.W.3d at 543 (finding nurse
also states that his education and experience are relevant to the    unqualified to provide expert opinion on causation).
review of medical care rendered by nurses at SMC to Barajas.
                                                                     In response, Barajas maintains Nurse Holguin's opinion is
Like Dr. Allen, Dr. Arredondo explains that: “During the             not on causation, but on the standard of care and breach
many years of [his] orthopedic surgery practice, [he has]            of that standard. We agree with Barajas. Nothing in Nurse
evaluated patients who had falls after surgery. Over the many        Holguin's report summarizes the causal relationship between
years of [his] orthopedic surgery practice, [he has] interacted      the breaches of the applicable standards of care and the
with hospital floor nurses about prevention of *547 falls            alleged injuries, harms, and damages suffered by Barajas.
in obese, post-operative patients.” Dr. Arredondo also sets          SeeTEX. CIV. PRAC. & REM.CODE ANN. §§ 74.351(r)
forth the identical standard of care and explanation of how the      (6), 74.403(a). Accordingly, SMC's contention is without
standard of care was breached as provided by Dr. Allen in his        merit. We now address the reports of Drs. Allen and
expert report.                                                       Arredondo to determine whether their opinions on causation
                                                                     are conclusory.
Dr. Arredondo's curriculum vitae and report show that he
is certified by a licensing agency, and possesses substantial         [22] SMC argues the reports of Drs. Allen and Arredondo do
training or experience relevant to Barajas's claim. The              not represent a good faith effort to comply with the statutory
curriculum vitae and report also demonstrate Dr. Arredondo           requirements. According to SMC, the opinions of Drs. Allen
is actively practicing health care as he expressly states “I am      and Arredondo are conclusory because “they wholly fail
an orthopedic surgeon. I have been an orthopedic surgeon             to provide any causal link between the bending of a knee
since 1975. I am board certified by the American Board of            from sliding down a chair and a right patellar dislocation of
Orthopaedic Surgery.” Moreover, Dr. Arredondo's statement            the knee diagnosed almost two months later.” SMC further
that he has reviewed Barajas's case and was submitting his           argues “[t]he reports ... are completely devoid of any factual
preliminary report establishes he was serving as a consultant        statements explaining how bending the knee caused the right
at the time he gave his expert testimony. Based on the four          patellar dislocation ... other than the conclusion that it did.”
corners of the curriculum vitae and report, we find no abuse of



                © 2015 Thomson Reuters. No claim to original U.S. Government Works.                                            11
Tenet Hospitals Ltd. v. Barajas, 451 S.W.3d 535 (2014)


 [23] [24] A causal relationship is established by proof          chair to the bedside commode as she was an obese, newly
that the negligent act or omission was a substantial factor       post-operative knee patient.” Drs. Allen and Arredondo then
in bringing about the harm, and that, absent this act or          reference a note from Dr. Zaltz dated March 29, 2012, in
omission, the harm would not have occurred. *548 Costello         which Dr. Zaltz stated that Barajas fell down at SMC the
v. Christus Santa Rosa Health Care Corp., 141 S.W.3d              day after her right total knee surgery, and noted that the right
245, 249 (Tex.App.-San Antonio 2004, no pet.). The mere           patellar dislocation and disruption of the patellar mechanism
provision of some insight into the plaintiff's claims does not    that was found on May 2, 2011, was the result of the March 18
adequately address causation. Wright, 79 S.W.3d at 53. Under      fall. Drs. Allen and Arredondo expressly state that they agree
Palacios, an expert report does not need to conclusively prove    with Dr. Zaltz's opinion of the cause of Barajas's right patellar
the case, however, we cannot infer causation. The report          dislocation and that they agree with the statements made in
cannot “merely state conclusions about any of the elements.”      Nurse Holguin's report.
Castillo v. August, 248 S.W.3d 874, 883 (Tex.App.-El Paso
2008, no pet.). There are no magic words required to establish    We conclude that the reports of Drs. Allen and Arredondo
causation. Wright, 79 S.W.3d at 53. However, the expert           adequately discuss causation so as to inform SMC of the
report must explain the basis for the causation opinions by       conduct Barajas has called into question and to provide a basis
linking the expert's conclusions to the alleged breach. Id.       for the trial court to conclude that Barajas's claim has merit.
                                                                  See Palacios, 46 S.W.3d at 879. Drs. Allen and Arredondo's
Drs. Allen and Arredondo's reports indicate the doctors           reports on causation are not conclusory. The expert reports
reviewed Barajas's medical records from SMC, Las Palmas           state what should have been done by SMC and what happened
Rehab Hospital, Las Palmas Medical Center, Orthopaedic            as a result of their failure to adhere to the applicable
Surgeons Associates, and Nurse Holguin's report. The doctors      standard of care. Accordingly, we conclude Drs. Allen and
state that in their opinion as orthopedic surgeons, “the fall     Arredondo's reports represented an objective good faith effort
that Ms. Barajas suffered” on March 18, 2011 at SMC “was          to provide a fair summary of the causal relationship between
the proximate cause of the right patellar dislocation” and        SMC's actions and Barajas's injury. *549 SeeTEX. CIV.
tearing “that Dr. Hernandez found” in surgery on May 5,           PRAC. & REM.CODE ANN. § 74.351(l ); Palacios, 46
2011. According to both physicians, the March 18, 2011 fall       S.W.3d at 878–79.
“resulted in pain to Ms. Barajas,” the need for right knee
repair surgery on May 5, 2011, and “rehabilitation, with          Lastly, SMC contends Drs. Allen and Arredondo's reports are
associated medical costs.”                                        also conclusory because they fail to rule out other potential
                                                                  causes of Barajas's injury. SMC points to Drs. Allen and
In their reports, Drs. Allen and Arredondo provide an             Arredondo's reference to a note in Barajas's medical record
“Overview of Medical Care of [Barajas]” which contains            indicating that during rehab therapy she experienced popping
excerpts from Barajas's medical records, including SMC's          of her right knee. However, as correctly noted by Barajas,
nursing notes. Both reports note that after having had right      nothing in Section 74.351 requires a preliminary expert report
total knee replacement surgery, Barajas fell and bent her         to rule out every possible cause of injury, harm, or damages.
newly-operated knee when she was assisted out of an               See Baylor Med. Ctr. at Waxahachie, Baylor Health Care Sys.
unlocked recliner chair on March 18, 2011. At that time,          v. Wallace, 278 S.W.3d 552, 562–63 (Tex.App.-Dallas 2009,
it was noted that Barajas was crying. On March 20, 2011,          no pet.); TEX. CIV. PRAC. & REM.CODE ANN. § 74.35l(s)
Barajas was reported to be aching and unsteady. Both expert       (West 2011) (limiting discovery before an expert report and
reports also note that Dr. Hernandez's discharge summary          curriculum vitae are filed). Moreover, a plaintiff need not
dated March 25, 2011, does not state he was informed Barajas      present evidence in the report as if it were actually litigating
had fallen and bent her newly-operated knee.                      the merits. Wright, 79 S.W.3d at 52. As the Palacios court
                                                                  stated, “the information in the report does not have to meet
In the “Opinions” section of their reports, after setting forth   the same requirements as the evidence offered in a summary-
the applicable standard of care, Drs. Allen and Arredondo         judgment proceeding or at trial.” Palacios, 46 S.W.3d at 879.
state that the SMC nurse breached the standard of care by
“not assuring the recliner chair was locked before Ms. Barajas    The trial court therefore did not abuse its discretion in
attempted to stand” and “by not seeking assistance of other       overruling SMC's objections regarding causation and denying
nurses or aides to assist Ms. Barajas to ambulate from the



               © 2015 Thomson Reuters. No claim to original U.S. Government Works.                                            12
Tenet Hospitals Ltd. v. Barajas, 451 S.W.3d 535 (2014)


                                                                     hospital's motion to dismiss, the appellate court determined
its motions to dismiss.Palacios, 46 S.W.3d at 875; Boada,
                                                                     the appropriate relief was to remand case to trial court for
304 S.W.3d at 533.
                                                                     consideration of whether deficiencies were curable and to
                                                                     determine whether to grant extension of time).
Issue One is sustained in part and overruled in part.



                                                                                            CONCLUSION
                         REMEDY
                                                                     We reverse the trial court's judgment as to Nurse Holguin's
Because we have concluded that the trial court abused its
                                                                     and Dr. Allen's expert reports and remand for proceedings
discretion in overruling the objections to Nurse Holguin's
                                                                     consistent with this opinion. We affirm the trial court's
and Dr. Allen's reports on the basis of their respective
                                                                     judgment as it pertains to the expert report of Dr. Arredondo.
qualifications, and thereby, in denying SMC's motion to
dismiss, we remand the case to the trial court to consider
granting the thirty-day extension request by Barajas to cure
the deficiencies in Nurse Holguin's and Dr. Allen's reports.         All Citations
See Love, 347 S.W.3d at 757 (after concluding trial court
erred in overruling objections to expert report and in denying       451 S.W.3d 535


End of Document                                                  © 2015 Thomson Reuters. No claim to original U.S. Government Works.




               © 2015 Thomson Reuters. No claim to original U.S. Government Works.                                              13
TTHR, L.P. v. Coffman, 338 S.W.3d 103 (2011)
267 Ed. Law Rep. 913

                                                                         Appellate court would review de novo the
                                                                         applicability of Texas Medical Liability Act
                    338 S.W.3d 103
                                                                         (TMLA) to patient's claim for wrongful release
                Court of Appeals of Texas,
                                                                         of medical information against hospital, which
                       Fort Worth.
                                                                         released laboratory report on patient's urine
             TTHR, L.P. d/b/a Presbyterian                               sample to university's police department, thereby
             Hospital of Denton, Appellant,                              causing patient to be suspended because
                           v.                                            laboratory report indicated a violation of the
                                                                         school's code of student conduct. V.T.C.A., Civil
             Amanda COFFMAN, Appellee.
                                                                         Practice & Remedies Code § 74.351.
       No. 02–10–00162–CV.             |   March 17, 2011.
                                                                         Cases that cite this headnote
Synopsis
Background: Patient, who submitted a urine sample as part          [2]   Health
of her treatment at hospital, filed suit against hospital, who               Actions and Proceedings
released laboratory report on the sample to university's police
                                                                         Whether a claim is a health care liability claim
department, and against university, which suspended patient
                                                                         under Texas Medical Liability Act (TMLA)
and removed her from student housing because laboratory
                                                                         depends on the underlying nature of the claim
report indicated a violation of the school's code of student
                                                                         being made, and party may not avoid the
conduct. The 211th District Court, Denton County, L. Dee
                                                                         requirements of the TMLA through artful
Shipman, J., denied hospital's motion to dismiss, and hospital
                                                                         pleading. V.T.C.A., Civil Practice & Remedies
appealed.
                                                                         Code § 74.351.

                                                                         2 Cases that cite this headnote
Holdings: The Court of Appeals, Lee Gabriel, J., held that:
                                                                   [3]   Health
[1] violation of a patient's confidentiality is actionable as a              Actions and Proceedings
health care liability claim, and subject to requirements of
                                                                         When determining if claim is health care liability
Texas Medical Liability Act (TMLA);
                                                                         claim subject to requirements under Texas
                                                                         Medical Liability Act (TMLA), courts must look
[2] wrongful release of medical information is departure from
                                                                         to the act or omission that forms the basis
accepted standards of professional or administrative services
                                                                         of the complaint to determine whether it is
directly related to health care under TMLA; and
                                                                         either an inseparable part of the rendition of
                                                                         health care services or based on a breach of
[3] an expert report was required notwithstanding patient's
                                                                         the standard of care applicable to health care
claim that it would require physician to render a legal opinion.
                                                                         providers. V.T.C.A., Civil Practice & Remedies
                                                                         Code § 74.351.
Reversed and remanded.
                                                                         6 Cases that cite this headnote

Meier, J., filed dissenting opinion.
                                                                   [4]   Health
                                                                             Actions and Proceedings
                                                                         If the factual allegations are related to medical
 West Headnotes (16)
                                                                         treatment provided by the defendant and
                                                                         constitute an inseparable part of the defendant's
 [1]     Appeal and Error                                                rendition of medical services, then the plaintiff's
            Cases Triable in Appellate Court                             claim is a health care liability claim subject to the
                                                                         requirements of the Texas Medical Liability Act



                © 2015 Thomson Reuters. No claim to original U.S. Government Works.                                              1
TTHR, L.P. v. Coffman, 338 S.W.3d 103 (2011)
267 Ed. Law Rep. 913

       (TMLA). V.T.C.A., Civil Practice & Remedies                    and maintain the confidentiality of medical
       Code § 74.351.                                                 records is directly related to the patient's health
                                                                      care. V.T.C.A., Occupations Code § 159.002(d);
       2 Cases that cite this headnote                                V.T.C.A., Civil Practice & Remedies Code §
                                                                      74.001.
 [5]   Health
                                                                      2 Cases that cite this headnote
           Actions and Proceedings
       Texas Medical Liability Act (TMLA) does not
       mandate that the injury itself occur during the         [9]    Health
       patient's medical care, just that it be directly                   Actions and Proceedings
       related to acts that occurred during the patient's             The wrongful release of medical information
       health care. V.T.C.A., Civil Practice & Remedies               is a departure from accepted standards of
       Code § 74.001(a)(10, 13).                                      professional or administrative services directly
                                                                      related to health care under the Texas Medical
       1 Cases that cite this headnote                                Liability Act (TMLA). V.T.C.A., Civil Practice
                                                                      & Remedies Code §§ 74.001(a)(1, 10), 74.351.
 [6]   Health
                                                                      2 Cases that cite this headnote
           Confidentiality; patient records
       Duty of confidentiality arises during the patient's
       medical care and must be maintained as long             [10]   Health
       as the provider possesses the medical records.                     Necessity and existence of injury
       V.T.C.A., Occupations Code § 159.002(d); 22                    Term “injury,” as used in Texas Medical
       TAC § 165.1(b).                                                Liability Act (TMLA), did not mean just
                                                                      physical injury. V.T.C.A., Civil Practice &
       Cases that cite this headnote                                  Remedies Code § 74.001(a)(13).

                                                                      Cases that cite this headnote
 [7]   Health
           Confidentiality; patient records
       Health care providers owe the duty of                   [11]   Health
       confidentiality to their patients as part of the care              Affidavits of merit or meritorious defense;
       they provide.                                                  expert affidavits
                                                                      Texas Medical Liability Act (TMLA) required
       Cases that cite this headnote                                  patient to submit, within 120 days of filing
                                                                      her petition, an expert report supporting her
 [8]   Health                                                         health care liability claim against hospital for
           Actions and Proceedings                                    wrongful release of medical information, despite
                                                                      patient's claim that such a report was not possible
       Violation of a patient's confidentiality is
                                                                      because it required a physician to render a
       actionable as a health care liability claim,
                                                                      legal opinion; the standard of care regarding
       and subject to requirements of Texas Medical
                                                                      confidentiality of medical information was a
       Liability Act (TMLA), regardless of whether it
                                                                      standard that applied to all health care providers,
       occurred while the patient was in the treatment
                                                                      and health care providers were expected to know
       room or after she had left the facility; provider's
                                                                      the laws applicable to their profession, such that
       duty to create records is directly related to the
                                                                      any otherwise qualified expert could offer an
       acts performed by the health care provider or
                                                                      opinion on the standard of care owed to patient.
       treatments received by the patient, the duty to
                                                                      V.T.C.A., Civil Practice & Remedies Code §§
       maintain the confidentiality of those records is
                                                                      74.351, 74.402, 74.403(a).
       inseparable from the duty to maintain the records
       themselves, and therefore, the duty to create


              © 2015 Thomson Reuters. No claim to original U.S. Government Works.                                           2
TTHR, L.P. v. Coffman, 338 S.W.3d 103 (2011)
267 Ed. Law Rep. 913

                                                                      physician to opine as to causation of patient's
        2 Cases that cite this headnote                               damages. V.T.C.A., Civil Practice & Remedies
                                                                      Code § 74.351(r)(5)(C).
 [12]   Health
                                                                      Cases that cite this headnote
            Affidavits of merit or meritorious defense;
        expert affidavits
        Because patient did not sue any individual             [15]   Health
        providers, but only the hospital, which released                  Actions and Proceedings
        laboratory report on patient's urine sample to                Recasting a claim as something other than a
        university's police department, thereby causing               health care liability claim does not excuse the
        patient to be suspended because report indicated              plaintiff from meeting the requirements of the
        violation of school's code of student conduct, a              Texas Medical Liability Act (TMLA). V.T.C.A.,
        qualified expert, for purposes of expert report               Civil Practice & Remedies Code § 74.001.
        requirement under Texas Medical Liability Act
        (TMLA), would be an individual who had                        Cases that cite this headnote
        knowledge of the accepted standards of care
        for providers regarding the confidentiality of         [16]   Evidence
        medical records and the necessary training or                     Due care and proper conduct in general
        experience to offer an expert opinion. V.T.C.A.,
                                                                      If the subject matter is common and equally
        Civil Practice & Remedies Code §§ 74.001,
                                                                      recognized and developed in all fields of
        74.402(b).
                                                                      practice, any physician familiar with the subject
        Cases that cite this headnote                                 may testify as to the standard of care.

                                                                      Cases that cite this headnote
 [13]   Health
            Affidavits of merit or meritorious defense;
        expert affidavits
        Expert report requirement of Texas Medical            Attorneys and Law Firms
        Liability Act (TMLA) is a procedural
                                                              *106 Jeffrey F. Wood, Jones Carr McGoldrick, L.L.P.,
        requirement that all claimants must complete in
                                                              Dallas, TX, for Appellant.
        order to continue with their claims. V.T.C.A.,
        Civil Practice & Remedies Code §§ 74.402,             Johannes B. Massar, Massar & Massar, L.L.P., Dallas, TX,
        74.403(a).                                            for Appellee.
        Cases that cite this headnote                         PANEL: GARDNER, MEIER, and GABRIEL, JJ.

 [14]   Health
            Affidavits of merit or meritorious defense;                               OPINION
        expert affidavits
                                                              LEE GABRIEL, Justice.
        Alleged absurdity of requiring a physician to
        opine as to the civil damages that patient suffered   TTHR, L.P. d/b/a Presbyterian Hospital of Denton
        as result of hospital's disclosure of her medical     (Presbyterian) appeals the denial of its motion to dismiss
        information did not transform patient's health        filed pursuant to Texas Civil Practice and Remedies Code
        care liability claim against the hospital, alleging   section 74.351(b). See Tex. Civ. Prac. & Rem.Code Ann.
        wrongful release of medical information, into         § 74.351 (Vernon 2011). Presbyterian asserts that the suit
        another category of claim that did not require        filed against it by Appellee Amanda Coffman was a health
        an expert report under Texas Medical Liability        care liability claim, subject to the requirements of chapter
        Act (TMLA); TMLA nonetheless required a               74 of the civil practice and remedies code. Because we


               © 2015 Thomson Reuters. No claim to original U.S. Government Works.                                        3
TTHR, L.P. v. Coffman, 338 S.W.3d 103 (2011)
267 Ed. Law Rep. 913

agree with Presbyterian that Coffman's claim is a health           St. Luke's Episcopal Hosp., 319 S.W.3d 658, 663 (Tex.2010);
care liability claim, we reverse the trial court's order, render   Fudge v. Wall, 308 S.W.3d 458, 460 (Tex.App.-Dallas 2010,
judgment dismissing Coffman's claims against Presbyterian,         no pet.).
and remand the case for a determination by the trial court of
costs and attorney's fees to be awarded to Presbyterian.            [2]    [3]    [4] Whether a claim is a health care liability
                                                                   claim depends on the underlying nature of the claim being
                                                                   made. Garland Cmty. Hosp. v. Rose, 156 S.W.3d 541, 543
                                                                   (Tex.2004). A party may not avoid the requirements of the
                         Background
                                                                   TMLA through artful pleading. Diversicare Gen. Partner,
Coffman sought treatment at Presbyterian on November 5,            Inc. v. Rubio, 185 S.W.3d 842, 854 (Tex.2005); Garland
2007. As part of her treatment, she submitted a urine sample       Cmty. Hosp., 156 S.W.3d at 543. Courts must look to the act
for testing. Presbyterian staff released the laboratory report     or omission that forms the basis of the complaint to determine
on the sample to the University of North Texas Police              whether it is either an inseparable part of the rendition of
Department, who then released it to the University of North        health care services or based on a breach of the standard
Texas, where Coffman was a student. The laboratory report          of care applicable to health care providers. Garland Cmty.
indicated a violation of the school's code of student conduct,     Hosp., 156 S.W.3d at 544. If the factual allegations are related
and Coffman was suspended and removed from student                 to medical treatment provided by the defendant and constitute
housing.                                                           an inseparable part of the defendant's rendition of medical
                                                                   services, then the plaintiff's claim is a health care liability
Coffman claims the release of her test results was negligent       claim subject to the requirements of the TMLA. Marks, 319
and a violation of section 159.002 of the occupations              S.W.3d at 664.
code, which designates medical records as confidential and
privileged. See Tex. Occ.Code Ann. § 159.002 (Vernon
2004). Coffman filed suit against Presbyterian and the                                       Discussion
University of North Texas. The University is not a party to
this appeal.                                                       The sole issue before us is whether a claim for the wrongful
                                                                   release of medical information is a health care liability claim
Approximately five months after Coffman filed her petition,        under the TMLA. See Tex. Civ. Prac. & Rem.Code Ann.
Presbyterian moved for dismissal of Coffman's claims against       §§ 74.001–.507 (Vernon 2011). If it is a health care liability
it, arguing that Coffman failed to timely serve an expert          claim, Coffman was required to serve an expert report within
report as required by chapter 74 of the civil practice and         120 days of filing her original petition. See id. § 74.351. The
remedies code, also known as the Texas Medical Liability Act       TMLA requires the dismissal of the claim if a report is not
(TMLA). See Tex. Civ. Prac. & Rem.Code Ann. § 74.351.              served, and the statute does not grant the court the ability
Coffman argued that a report is unnecessary because the            to offer an extension for failing to serve a report within the
TMLA only applies to health care liability claims and her          statutory timeframe. See Maris v. Hendricks, 262 S.W.3d 379,
claims are not health care liability claims. The trial court       384 (Tex.App.-Fort Worth 2008, pet. denied) (noting that
denied Presbyterian's motion to dismiss. Presbyterian filed        statutory extension to cure a deficient report does not apply
this appeal.                                                       when no report is served). The parties agree that if it is not a
                                                                   health care liability claim, Coffman was not required to serve
                                                                   such a report.

                    Standard of Review
                                                                   Coffman argues that no report is necessary because she filed
 [1] Although appellate courts review a trial court's decision     a common law claim of negligence and a claim under the
to grant or deny a motion to dismiss for failure to timely serve   occupations code. As we stated above, we are required to look
a section 74.351(a) expert report for an abuse of discretion,      at the underlying act or omission forming the basis of the
see Jernigan v. Langley, 195 S.W.3d 91, 93 (Tex.2006),             complaint. See Garland Cmty. Hosp., 156 S.W.3d at 543–44.
the issue presented here requires a determination *107 of          If the claim falls under the definition of a health care liability
whether the TMLA applies to Coffman's claims. We therefore         claim, it is subject to the TMLA, regardless of how it was
review the applicability of the TMLA de novo. See Marks v.         pleaded. Id. at 544.



                © 2015 Thomson Reuters. No claim to original U.S. Government Works.                                               4
TTHR, L.P. v. Coffman, 338 S.W.3d 103 (2011)
267 Ed. Law Rep. 913

                                                                    241.053 (allowing for the denial, suspension, or revocation
TMLA defines “health care liability claim” as                       of a hospital's license for violating section 241.155); 25
                                                                    Tex. Admin. Code § 133.121 (2007) (Tex. Dep't of State
             a cause of action against a health care                Health Servs., Enforcement Action) (allowing for the denial,
             provider or physician for treatment,                   suspension, or revocation of a hospital's license for violating
             lack of treatment, or other claimed                    section 241.155); 42 C.F.R. §§ 482.13(d) (conditioning
             departure from accepted standards of                   participation in Medicare and Medicaid on the protection
             medical care, or health care, or safety                of patient's right to confidentiality); 482.24 (conditioning
             or professional or administrative                      participation in Medicare and Medicaid on maintaining
             services directly related to health care,              patient's medical records). Because confidentiality of records
             which proximately results in injury to                 is required “as a condition of maintaining the ... health
             or death of a claimant, whether the                    care provider's license, accreditation status, or certification
             claimant's claim or cause of action                    to participate in state or federal health care programs,” the
             sounds in tort or contract.                            duty to maintain the confidentiality of patient records is
                                                                    a professional or administrative service as defined by the
Tex. Civ. Prac. & Rem.Code Ann. § 74.001(a)(13). “Health
                                                                    TMLA. See Tex. Civ. Prac. & Rem.Code Ann. § 74.001(a)
care” is defined to mean “any act or treatment performed or
                                                                    (24) (defining professional or administrative services).
furnished, or that should have been performed or furnished,
by any health care provider for, to, or on behalf of a patient
                                                                    The duty of confidentiality is also directly related to health
during the patient's medical care, treatment, or confinement.”
                                                                    care based on its definition in the TMLA. See Tex. Civ.
Id. § 74.001(a)(10). “Professional or administrative services”
                                                                    Prac. & Rem.Code. Ann. § 74.001(a)(10) (defining “health
is defined as “those duties or services that a physician or
                                                                    care”). A patient's medical records are required to be
health care provider is required to provide as a condition of
                                                                    created during the patient's care. See 22 Tex. Admin. Code
maintaining the physician's or health care provider's license,
                                                                    § 165.1(a) (2010) (Tex. Med. Board, Medical Records).
accreditation status, or certification to participate in *108
                                                                    They must memorialize each patient encounter, including
state or federal health care programs.” Id. § 74.001(a)(24).
                                                                    all assessments, impressions, and diagnoses. Id. The duty
                                                                    to create records is directly related to the acts performed
A. Professional or Administrative Services Directly                 by the health care provider or treatments received by the
Related to Health Care                                              patient. The duty to maintain the confidentiality of those
Health care providers are required under a number of statutes       records is inseparable from the duty to maintain the records
to maintain the confidentiality of patient records. See, e.g.,      themselves. Therefore, the duty to create and maintain
Tex. Health & Safety Code Ann. §§ 181.152 (Vernon                   the confidentiality of medical records is directly related
2010) (disallowing disclosure of protected health information       to the patient's health care. Cf. Fudge, 308 S.W.3d at
for marketing purposes without patient's consent), 241.155          463–64 (holding that letter written by counselor to social
(Vernon 2010) (requiring a hospital to “adopt and implement         worker regarding counselor's “professional assessment and
reasonable safeguards for the security of all health care           evaluation” of child was “clearly” related to and “inseparable
information it maintains”); Tex. Occ.Code Ann. § 159.002(b)         from” treatment of child).
(requiring records of treatment to be “confidential and
privileged and may not be disclosed”); 42 C.F.R. § 482.13(d)         [5] [6] [7] [8] Coffman argues that the injury did not
(2004) (making confidentiality of records a condition of            occur during her medical care, as required by the TMLA. See
participation in Medicare and Medicaid); 42 C.F.R. § 482.24         Tex. Civ. Prac. & Rem.Code Ann. § 74.001(a)(1). However,
(2004) (same). Failure to do so can result in the loss of the       the statute does not mandate that the injury itself occur during
hospital's license, accreditation, and ability to participate in    the patient's medical care, just that it be directly related to
state or federal health care program. See, e.g., Tex. Health &      acts that occurred during the patient's *109 health care. Id. §
Safety Code Ann. §§ 181.202 (allowing for the revocation of         74.001(a)(10), (13) (defining “health care liability claim” as a
provider's license for a pattern or practice of violating section   “claimed departure from accepted standards of ... professional
181.152), 181.203 (allowing for the exclusion of a hospital         or administrative services directly related to [‘any act or
from participating in state-funded health care programs             treatment performed or furnished ... for, to, or on behalf
for a pattern or practice of violating section 181.152),            of a patient during the patient's medical care’]”). Coffman's



                © 2015 Thomson Reuters. No claim to original U.S. Government Works.                                             5
TTHR, L.P. v. Coffman, 338 S.W.3d 103 (2011)
267 Ed. Law Rep. 913

urine analysis occurred during, and as a part of, her care
at Presbyterian. The results of the analysis were recorded
in her medical records, as a professional or administrative          B. Injury or Death
service directly related to the care she received. The duty of        [10] Coffman argues that the TMLA does not apply because
confidentiality arises during the patient's medical care and         “injury” as used in the statute can only be understood as
must be maintained as long as the provider possesses the             meaning physical injury. Coffman relies on Thomas v. State,
medical records. See, e.g., Tex. Occ.Code. Ann. § 159.002(d)         923 S.W.2d 645 (Tex.App.-Houston [1st Dist.] 1995, no
(stating that confidentiality “continues to apply ... regardless     pet.), and Pallares v. Magic Valley Electric Co-op., Inc., 267
of when the patient receives the services of a physician”);          S.W.3d 67 (Tex.App.-Corpus Christi 2008, pet. denied).
22 Tex. Admin. Code § 165.1(b) (2010) (Tex. Med. Board,
Medical Records) (requiring physicians to maintain medical           Thomas involved a felony conviction for failure to stop and
records for seven years and destruction of such records “shall       render aid. 923 S.W.2d at 647. The statute required the “driver
be done in a manner that ensures continued confidentiality”);         *110 of a vehicle involved in an accident resulting in injury
42 C.F.R. § 482.24 (requiring medical records to be retained         to or death of any person” to return to the scene of the
for five years as a condition for participating in Medicare and      accident. 1 Act of 1947, 50th Leg., R.S., ch. 421, 1947 Tex.
Medicaid). Providers owe the duty of confidentiality to their        Gen. Laws 967, repealed by Act of April 21, 1995, 74th Leg.,
patients as part of the care they provide. See statutes requiring    R.S., ch. 165, § 24(a), 1995 Tex. Gen. Laws 1870, 1871. The
health care providers to keep patient's records confidential         court determined that “injury” in the statute meant “personal
cited supra Part A. We therefore conclude that a violation of a      injury.” Thomas, 923 S.W.2d at 647–48.
patient's confidentiality is actionable as a health care liability
claim regardless of whether it occurred while the patient was        1      The current version of the statute appears in the
in the treatment room or after she had left the facility.                   transportation code. See Tex. Transp. Code Ann. §
                                                                            550.021 (Vernon Supp.2010).
 [9] Coffman also argues that it is “inconceivable” that the
                                                                     The statute in Thomas is unanalogous to the TMLA for many
legislature intended to include breaches of confidentiality
                                                                     reasons. First, the section of the code in Thomas was entitled
under the TMLA when one considers the purpose of the
                                                                     “Accidents involving death or personal injuries.” Id. at 647.
statute. We agree with Coffman that the purpose of original
                                                                     Second, the section was replete with other references to
statute was to address medical malpractice claims. See
                                                                     “personal injury,” and it assumed that a person was physically
Marks, 319 S.W.3d at 663 (noting that article 4590i, the
                                                                     struck by a vehicle and required the driver to render aid to
predecessor to the current chapter 74 of the civil practice and
                                                                     the person, including taking the victim to a hospital or doctor.
remedies code, was enacted to “remedy a medical malpractice
                                                                     Id. And third, it further required the State, in prosecuting the
insurance crisis”). However, the statute has been expanded
                                                                     driver under the statute, to prove that the injury was to “any
by the legislature since its enactment, and we must give
                                                                     part of the human body” and that it “necessitate[d] treatment.”
effect to those amendments. See Horizon/CMS Healthcare
                                                                     Id.
Corp. v. Auld, 34 S.W.3d 887, 892 (Tex.2000) (“This Court's
ultimate goal in construing a statute is to give effect to
                                                                     None of the indications present in Thomas that led the court to
the Legislature's intent as expressed in the language of the
                                                                     conclude that “injury” meant “personal injury” are present in
statute.”); Spradlin v. Jim Walter Homes, Inc., 34 S.W.3d
                                                                     the TMLA. The statute in Thomas required an underlying tort.
578, 580 (Tex.2000) (noting that courts must “give effect
                                                                     Id. The TMLA allows for recovery regardless of “whether
to all the words of a statute”). The legislature added and
                                                                     the claimant's claim or cause of action sounds in tort or in
defined the phrase “professional or administrative services,”
                                                                     contract.” Tex. Civ. Prac. & Rem.Code Ann. § 74.001(a)
and we will not now read it out of the statute. There can be no
                                                                     (13). The statute in Thomas made repeated references to
“administrative service” more directly related to the rendition
                                                                     “personal injury.” 923 S.W.2d at 647. The only reference to
of health care than the memorialization of that care. And the
                                                                     physical injury to which Coffman points is in the definition
duty to maintain the confidentiality of those records cannot be
                                                                     of claimant, where it states, “All persons claiming to have
separated from the duty to maintain them. We therefore hold
                                                                     sustained damages as the result of the bodily injury or death
that the wrongful release of medical information is a departure
                                                                     of a single person are considered a single claimant.” Tex.
from accepted standards of professional or administrative
                                                                     Civ. Prac. & Rem.Code Ann. § 74.001(a)(2). However, the
services directly related to health care under the TMLA.
                                                                     sentence does not function to limit claimants to patients,


                © 2015 Thomson Reuters. No claim to original U.S. Government Works.                                               6
TTHR, L.P. v. Coffman, 338 S.W.3d 103 (2011)
267 Ed. Law Rep. 913

see, e.g., Fudge, 308 S.W.3d at 464 (holding that father's                  are not health care liability claims. Id. at 767 (Gray, C.J.,
and grandmother's claims for libel were health care liability               concurring and dissenting) (“There must be a standard
claims); Groomes v. USH of Timberlawn, Inc., 170 S.W.3d                     in the medical industry for the extent and nature of what
802, 804 (Tex.App.-Dallas 2005, no pet.) (holding that                      gets entered by the physician or health care provider
                                                                            in the medical records of a patient.”). Further, we are
patient's mother's claims for her own emotional distress were
                                                                            concerned that Benson runs afoul of the supreme court's
health care liability claims), much less to limit claimants
                                                                            holding in Yamada v. Friend, 335 S.W.3d 192, 197–98
to patients with physical injuries. We therefore do not find
                                                                            (Tex.2010) (holding that claims based on the same facts
Thomas instructive on the present issue.
                                                                            as health care liability claims cannot be split because
                                                                            “then the TMLA and its procedures and limitations
In Pallares, the Corpus Christi Court of Appeals held that a                will effectively be negated”). We therefore do not find
health care insurance provider was not a claimant under the                 Benson persuasive on this issue.
TMLA because “it did not undergo treatment by Pallares.”
                                                                     There have been many instances in which nonphysical
267 S.W.3d at 73. The court went on to state, without support,
                                                                     injuries have resulted in health care liability claims. See,
“Moreover, [the insurance provider] does not fit within the
                                                                     e.g., Murphy v. Russell, 167 S.W.3d 835, 837 (Tex.2005)
definition of a claimant as provided in the [TMLA] because
                                                                     (sedation contrary to instructions); Walden v. Jeffery, 907
the record does not demonstrate that any person directly
                                                                     S.W.2d 446, 448 (Tex.1995) (ill-fitting dentures); Armstrong
sustained bodily injury or death proximately caused by the
                                                                     v. Robinsons, No. 14–08–01077–CV, 2010 WL 4817100, at
health care treatment provided by Pallares.” Id. The court
                                                                     *2 (Tex.App.-Houston [14th Dist.] Nov. 23, 2010, no pet.)
then returned to its analysis regarding the insurance provider's
                                                                     (mem.op.) (ill-fitting dentures); Fudge, 308 S.W.3d at 460
status as a non-patient. The court mentions “bodily injury”
                                                                     (libel); Sloan v. Farmer, 217 S.W.3d 763, 768 (Tex.App.-
in response to the statute's language regarding, as stated
                                                                     Dallas 2007, pet. denied) (employment termination); Imad,
above, a non-patient's ability to seek redress when its injuries
                                                                     2006 WL 334013, at *2 (mental anguish); MacPete v.
result from someone else's “bodily injury or death.” See Tex.
                                                                     Bolomey, 185 S.W.3d 580, 582, (Tex.App.-Dallas 2006,
Civ. Prac. & Rem.Code Ann. § 74.001(a)(2). That is, the
                                                                     no pet.) (CPS investigations, criminal proceedings, and
court was addressing the insurance provider's standing absent
                                                                     a child custody case); Groomes, 170 S.W.3d 802, 804
any subrogation rights. See Pallares, 267 S.W.3d at 73 n.
                                                                     (false imprisonment); Smalling v. Gardner, 203 S.W.3d
5 (commenting, in reference to the above-quoted sentence,
                                                                     354, 365 (Tex.App.-Houston [14th Dist.] 2005, pet. denied)
on the *111 lack of evidence in the record regarding the
                                                                     (kidnapping, false imprisonment, child abduction, fraud,
insurance provider's subrogation rights with respect to the
                                                                     breach of contract, deceptive trade practices, and conspiracy).
patient). Further, the court did not distinguish its facts from
                                                                     We are not persuaded that all of these cases were incorrectly
the case the insurance provider relied upon on the basis that
                                                                     decided. We therefore refuse to add the word “physical” to
the other case involved nonphysical injuries. Id. at 73–74
                                                                     the injury requirement of the TMLA.
(distinguishing Inst. for Women's Health, P.L.L.C. v. Imad,
No. 04–05–00555–CV, 2006 WL 334013, at *2 (Tex.App.-
San Antonio Feb. 15, 2006, no pet.) (mem.op.) (noting that           C. Rendering an Opinion
the claimants sought damages for mental anguish, loss of              [11] Lastly, Coffman argues that an expert report here would
companionship and society, and medical bills)). 2                    require the expert to render a legal opinion and, because the
                                                                     statute requires a physician to render the expert opinion, it
2      Coffman also points to Benson v. Vernon, 303 S.W.3d
                                                                     cannot be created. See Tex. Civ. Prac. & Rem.Code Ann. §§
       755, 759 (Tex.App.-Waco 2009, no pet.), to support            74.402, 74.403(a).
       her suggested interpretation of Pallares. In Benson, the
       Waco Court of Appeals held that the plaintiff's allegation     [12] The TMLA requires a claimant, within 120 days
       of “alteration and fabrication of medical records” was        of filing her petition, to serve an expert report on each
       “not a health care liability claim required to be addressed   party. Id. § 74.351(a). The expert report must provide the
       in an expert report.” Id. The court offered no analysis       expert's opinion regarding “applicable standards of care, the
       to support its distinction of that claim from the other       manner in which the care rendered by the physician or health
       allegations made regarding the health care that the           care provider failed to meet the standards, and the causal
       plaintiff received. Chief Justice Gray, in his concurrence    relationship between the failure and the injury, harm, or
       and dissent, specifically disagreed with the majority's
       holding that alteration and fabrication of medical records


                © 2015 Thomson Reuters. No claim to original U.S. Government Works.                                                         7
TTHR, L.P. v. Coffman, 338 S.W.3d 103 (2011)
267 Ed. Law Rep. 913

damages claimed.” Id. § 74.351(r)(6). An expert may only                          in the final analysis, expert testimony
provide an opinion on the standard of care if he                                  may not be necessary to support a
                                                                                  verdict does not mean the claim is not
    (1) is practicing health care in a field of practice that                     a health care liability claim.
    involves the same type *112 of care or treatment as that
    delivered by the defendant health care provider, if the           Murphy, 167 S.W.3d at 838 (commenting on former revised
    defendant health care provider is an individual, at the time      civil statutes article 4590i, the predecessor to chapter 74).
    the testimony is given or was practicing that type of health      Coffman's claims are based on a violation of a standard of care
    care at the time the claim arose;                                 applicable to health care providers. These claims necessitate
                                                                      a threshold examination by an expert on that standard of care
    (2) has knowledge of accepted standards of care for health        and a determination by that expert that Presbyterian fell below
    care providers for the diagnosis, care, or treatment of the       that standard and proximately caused Coffman's injuries. The
    illness, injury, or condition involved in the claim; and          expert report required at the commencement of the litigation
                                                                      provides the validation necessary to justify proceeding with
    (3) is qualified on the basis of training or experience to
                                                                      the lawsuit.
    offer an expert opinion regarding those accepted standards
    of health care.
                                                                       [14] As to the issue of causation, Coffman points out that the
Id. § 74.402(b). The first requirement of subsection 74.402(b)        facts of this case would require a physician to opine on what
notably applies only “if the defendant health care provider           civil damages Coffman suffered because of the disclosure
is an individual.” Id. Coffman did not sue any individual             of her health care information. See Tex. Occ.Code Ann. §
providers, but only the hospital. Therefore, a qualified expert       159.009(b) (Vernon 2004) (“The aggrieved person may prove
in this case would be an individual who has knowledge of              a cause of action for civil damages.”). Because it seems
the accepted standards of care for providers regarding the            absurd to require a physician to testify as to civil damages,
confidentiality of medical records and the necessary training         Coffman argues that her claim cannot therefore be a health
or experience to offer an expert opinion. Id. § 74.402(b)(2)-         care liability claim.
(3). 3
                                                                       [15] The legislature has prescribed that it is necessary for
                                                                      a physician to opine as to causation of damages. Tex. Civ.
3        Section 74.351(r)(5)(C) requires a physician to testify      Prac. & Rem.Code Ann. § 74.351(r)(5)(C). For this court
         as to causation. See Tex. Civ. Prac. & Rem.Code
                                                                      to agree with Coffman's argument, made without citation
         Ann. § 74.351(r)(5)(C). However, the statute allows for
                                                                      to authority, that the requirement is “absurd,” and therefore
         a plaintiff to meet the statute's requirements through
                                                                      should transform a clear health care liability claim into
         serving separate reports by different experts on liability
         and causation. See id. § 74.351(i) (“Nothing in this
                                                                      another category *113 that does not require an expert report,
         section shall be construed to mean that a single expert      would violate legislative intent. See Marks, 319 S.W.3d
         must address ... both liability and causation issues for a   at 673 (Johnson, J., concurring) (“If policy considerations
         physician or health care provider.”).                        support limiting or excluding subcategories of claims when
                                                                      the unambiguous statutory language includes the overall
 [13] We first note that the expert report requirement of the
                                                                      category ..., then incorporating those exclusions into the
TMLA is a procedural requirement that all claimants must
                                                                      statute is a Legislative prerogative, not a judicial one.”). The
complete in order to continue with their claims. The supreme
                                                                      inclusion of “professional or administrative services” to the
court has said that the expert report
                                                                      definition of a health care liability claim may have created
              does not establish a requirement                        some arguably odd procedural demands for some claims.
              for recovery. It may be that once                       Nevertheless, this requirement does not make those claims
              discovery is complete and the case                      something other than health care liability claims. In Marks,
              is tried, there is no need for                          for instance, the plaintiff's expert physician opined on the
              expert testimony.... But the Legislature                proper maintenance and construction of a hospital bed. Id. at
              envisioned that discovery ... should not                671 (Johnson, J., concurring). It is unusual for a physician
              go forward unless at least one expert                   to render such an opinion, but in that case, it was required.
              has examined the case.... The fact that                 See id. at 664 (holding that plaintiff's claim was a health care
                                                                      liability claim and required an expert report). As we noted


                 © 2015 Thomson Reuters. No claim to original U.S. Government Works.                                              8
TTHR, L.P. v. Coffman, 338 S.W.3d 103 (2011)
267 Ed. Law Rep. 913

above, recasting a claim as something other than a health care             as well as the applicable federal and state laws.”);
liability claim does not excuse the plaintiff from meeting the             see also AMA CEJA, Access to Medical Records
requirements of the TMLA. See Diversicare, 185 S.W.3d at                   by Non–Treating Medical Staff 1–2 (1999), available
854; Garland Cmty. Hosp., 156 S.W.3d at 543. An expert                     at http://www.ama-assn.org/ama1/pub/upload/mm/369/
                                                                           ceja_6a 99.pdf (noting that the American Hospital
report on causation written by a physician is one of those
                                                                           Association guidelines state that “all individuals who
requirements, and Coffman failed to meet it.
                                                                           use or receive information from the medical record are
                                                                           responsible, in part, for ensuring the confidentiality of
 [16] Coffman further argues that an expert rendering an
                                                                           that information”).
opinion on the standard of care could only know “under
what circumstances confidential patient information can
be disclosed” by reading and interpreting the statute and                                     Conclusion
legal commentary, which would amount to a legal opinion.
Coffman fails to recognize in her argument that the duty of        Having sustained Presbyterian's sole issue, we reverse the
confidentiality is a requirement of a health care provider's       trial court's order and render judgment dismissing Coffman's
license and accreditation and therefore all providers are          claims against Presbyterian. The case is remanded to the trial
expected to know the rules and regulations regarding               court for further proceedings consistent with this opinion as
                                                                   to Presbyterian's claim for attorney's fees and costs.
dissemination of protected patient information. 4 See statutes
conditioning licenses, accreditation, or participation in state
or federal health care programs on the continued practice of
keeping medical information confidential cited supra Part A.       MEIER, J., filed a dissenting opinion.
This court has noted before that “ ‘there are certain standards
of medical care that apply to ... any medical doctor.’ If
                                                                   BILL MEIER, Justice, dissenting.
the subject matter is common and equally recognized and
                                                                   I dissent because I disagree with the majority's conclusion that
developed in all fields of practice, any physician familiar with
                                                                   Coffman's claim is a health care liability claim. The gravamen
the subject may testify as to the standard of care.” Menefee
                                                                   of the claim and the injury- or damage-causing event is
v. Ohman, 323 S.W.3d 509, 514 (Tex.App.-Fort Worth 2010,
                                                                   the release by Presbyterian of the confidential results of
no pet.) (citing Blan v. Ali, 7 S.W.3d 741, 746 (Tex.App.-
                                                                   Coffman's urine test to the University of North Texas Police
Houston [14th Dist.] 1999, no pet.)). The required expert
                                                                   Department, ultimately resulting in her dismissal from the
opinion in this case would be on a standard of care that is
                                                                   university. I do not believe that the unauthorized release of the
specialized and applicable to health care providers. When and
                                                                   confidential information meets the requirement articulated by
to whom to release medical information necessarily involves
                                                                   Justice Medina in Marks v. St. Luke's Episcopal Hospital,
professional judgment. Thus, we do not agree with Coffman
                                                                   stating
that to require an expert opinion on a standard of care imposed
on all health care providers would be a “tortured and absurd                    Whether the underlying claim involves
construction” of *114 the TMLA. Because the standard of                         a health care provider's negligent act or
care regarding confidentiality is a standard that applies to                    omission, or the patient's exposure to
all health care providers and because health care providers                     some other safety risk, the relationship
are expected to know the laws applicable to their profession,                   between the injury causing event and
any otherwise qualified expert could offer testimony on the                     the patient's care or treatment must be
standard of care owed to Coffman. Because the report is                         substantial and direct for the cause of
possible and necessary, we sustain Presbyterian's sole issue.                   action to be a health care liability claim
                                                                                under the MLIIA.
4      Professional medical associations like the American
       Medical Association require their members to uphold         319 S.W.3d 658, 664 (Tex.2010). Because the majority
       ethical codes, which include the pledge to keep             concludes otherwise, I respectfully dissent.
       medical records confidential. See AMA Council of
       Ethical & Judicial Affairs, Formal Op. 7.025 (1999)
       (“Physicians have a responsibility to be aware of the
       appropriate guidelines in their health care institution,



                © 2015 Thomson Reuters. No claim to original U.S. Government Works.                                                    9
TTHR, L.P. v. Coffman, 338 S.W.3d 103 (2011)
267 Ed. Law Rep. 913

All Citations

338 S.W.3d 103, 267 Ed. Law Rep. 913

End of Document                                       © 2015 Thomson Reuters. No claim to original U.S. Government Works.




                © 2015 Thomson Reuters. No claim to original U.S. Government Works.                                  10
§ 74.402. Qualifications of Expert Witness in Suit Against..., TX CIV PRAC & REM...




  Vernon's Texas Statutes and Codes Annotated
    Civil Practice and Remedies Code (Refs & Annos)
      Title 4. Liability in Tort
         Chapter 74. Medical Liability (Refs & Annos)
           Subchapter I. Expert Witnesses (Refs & Annos)

                                    V.T.C.A., Civil Practice & Remedies Code § 74.402

                    § 74.402. Qualifications of Expert Witness in Suit Against Health Care Provider

                                                Effective: September 1, 2003
                                                         Currentness


(a) For purposes of this section, “practicing health care” includes:


  (1) training health care providers in the same field as the defendant health care provider at an accredited educational
  institution; or


  (2) serving as a consulting health care provider and being licensed, certified, or registered in the same field as the defendant
  health care provider.


(b) In a suit involving a health care liability claim against a health care provider, a person may qualify as an expert witness on
the issue of whether the health care provider departed from accepted standards of care only if the person:


  (1) is practicing health care in a field of practice that involves the same type of care or treatment as that delivered by the
  defendant health care provider, if the defendant health care provider is an individual, at the time the testimony is given or
  was practicing that type of health care at the time the claim arose;


  (2) has knowledge of accepted standards of care for health care providers for the diagnosis, care, or treatment of the illness,
  injury, or condition involved in the claim; and


  (3) is qualified on the basis of training or experience to offer an expert opinion regarding those accepted standards of health
  care.


(c) In determining whether a witness is qualified on the basis of training or experience, the court shall consider whether, at the
time the claim arose or at the time the testimony is given, the witness:


  (1) is certified by a licensing agency of one or more states of the United States or a national professional certifying agency,
  or has other substantial training or experience, in the area of health care relevant to the claim; and


  (2) is actively practicing health care in rendering health care services relevant to the claim.



               © 2015 Thomson Reuters. No claim to original U.S. Government Works.                                             1
§ 74.402. Qualifications of Expert Witness in Suit Against..., TX CIV PRAC & REM...




(d) The court shall apply the criteria specified in Subsections (a), (b), and (c) in determining whether an expert is qualified to
offer expert testimony on the issue of whether the defendant health care provider departed from accepted standards of health
care but may depart from those criteria if, under the circumstances, the court determines that there is good reason to admit the
expert's testimony. The court shall state on the record the reason for admitting the testimony if the court departs from the criteria.


(e) This section does not prevent a health care provider who is a defendant, or an employee of the defendant health care provider,
from qualifying as an expert.


(f) A pretrial objection to the qualifications of a witness under this section must be made not later than the later of the 21st day
after the date the objecting party receives a copy of the witness's curriculum vitae or the 21st day after the date of the witness's
deposition. If circumstances arise after the date on which the objection must be made that could not have been reasonably
anticipated by a party before that date and that the party believes in good faith provide a basis for an objection to a witness's
qualifications, and if an objection was not made previously, this subsection does not prevent the party from making an objection
as soon as practicable under the circumstances. The court shall conduct a hearing to determine whether the witness is qualified
as soon as practicable after the filing of an objection and, if possible, before trial. If the objecting party is unable to object in time
for the hearing to be conducted before the trial, the hearing shall be conducted outside the presence of the jury. This subsection
does not prevent a party from examining or cross-examining a witness at trial about the witness's qualifications.


Credits
Added by Acts 2003, 78th Leg., ch. 204, § 10.01, eff. Sept. 1, 2003.



Notes of Decisions (82)

V. T. C. A., Civil Practice & Remedies Code § 74.402, TX CIV PRAC & REM § 74.402
Current through Chapters effective immediately through Chapter 46 of the 2015 Regular Session of the 84th Legislature

End of Document                                                         © 2015 Thomson Reuters. No claim to original U.S. Government Works.




                © 2015 Thomson Reuters. No claim to original U.S. Government Works.                                                      2
