                                      In The

                               Court of Appeals
                    Ninth District of Texas at Beaumont
                           ____________________
                              NO. 09-13-00486-CV
                           ____________________

                 HEB GROCERY COMPANY, LP, Appellant

                                        V.

                         JOAN GALLOWAY, Appellee
_______________________________________________________            ______________

                On Appeal from the County Court at Law No. 1
                           Jefferson County, Texas
                           Trial Cause No. 122605
________________________________________________________            _____________

                          MEMORANDUM OPINION

      This is an accelerated appeal from the trial court’s order denying a motion to

dismiss a health care liability claim pursuant to section 74.351 of the Texas Civil

Practice and Remedies Code.1 We reverse and remand.


      1
        Section 74.351 was amended after Galloway’s cause of action accrued, and
the prior law is applicable to her claim. See Act of June 2003, 78th Leg., R.S., ch.
204, § 10.01, 2003 Tex. Gen. Laws 847, 875, amended by May 18, 2005, 79th
Leg., R.S., ch. 635, 2005 Tex. Gen. Laws 1590 (current version at Tex. Civ. Prac.
& Rem. Code Ann. § 74.351 (West Supp. 2013)). Because the amendment does
not affect our analysis, we cite to the current version of the statute.
                                         1
                                  BACKGROUND

      In 2013, Joan Galloway (Galloway) asserted a health care liability claim

against HEB Grocery Company, LP (HEB). Galloway contends that HEB

mistakenly mixed the wrong medication (Ketoconazole, an anti-fungal medicine)

in with her blood pressure medication (Coreg) when HEB filled the prescription,

thereby causing her to suffer injuries and damages. She alleges that as a proximate

result of HEB’s negligence and gross negligence in mis-filling the prescription, she

suffered and will suffer from “uncontrolled blood pressure, neurologic symptoms,

pain, great physical and mental anguish and considerable consequential damages.”

Galloway seeks actual and punitive damages. HEB filed an answer in which it

denies Galloway’s allegations.

      Galloway served HEB with an expert report from Jerry Keepers, M.D. Dr.

Keepers attached his curriculum vitae, as well as other exhibits, to the report. HEB

filed objections to Dr. Keepers’ report, along with a motion to dismiss pursuant to

section 74.351. The trial court held a hearing on the “Defendant’s Objections to

Plaintiff’s Expert’s Report and Qualifications” and issued an order denying the

objections and the motion to dismiss. HEB appealed.




                                         2
                           JURISDICTION OF THIS COURT

      As a preliminary matter, Galloway challenges the jurisdiction of this Court

to hear the appeal, citing section 51.014(9) of the Texas Civil Practice & Remedies

Code. She argues that HEB sought relief “under section 74.351(b) and an

extension was not granted under [section] 74.351.” Galloway further contends that

this Court “is without jurisdiction because the order complained of denied relief

sought by a motion under § 74.351(l); relief was not granted under § 74.351(l).”

Neither argument is correct.

      HEB’s motion to dismiss expressly sought relief under section 74.351(b).

Section 74.351(b) provides that upon motion, the trial court must dismiss the claim

if an expert report is not served within the time required by section 74.351(a). The

trial court stated in its order that “Defendant’s Motion to Dismiss is hereby, in all

things, DENIED.” See Tex. Civ. Prac. & Rem. Code Ann. § 51.014(a)(9) (West

Supp. 2013). Section 51.014(a)(9) authorizes an interlocutory appeal from an order

denying relief under section 74.351(b), and this Court therefore has jurisdiction of

this interlocutory appeal. See id.; Lewis v. Funderburk, 253 S.W.3d 204, 207-08

(Tex. 2008) (authorizing appeal from trial court order determining that expert

report was adequate and denying motion to dismiss).




                                         3
                               DR. KEEPERS’ REPORT

      According to Dr. Keepers’ report and curriculum vitae (CV) attached to his

report, he is a licensed medical doctor in active practice in Harris County and

Jefferson County, Texas. He states that he provides medical services to patients,

including writing prescriptions for medications for his patients, and he has “either

training as and/or served as a consultant, and/or observed healthcare providers in

the same fields as [HEB].” Further, he indicates that he gives “direct care to

patients requiring the prescription of medicines”[;] he and his patients “routinely

rely on pharmacists to accurately fill prescriptions”[;] he is “familiar with the

consequences of the improper filling of prescription medication”[;] and he is

familiar with the “standards of care for both pharmacists and pharmacies.” His CV

describes special expertise primarily in the field of anesthesiology.

      Dr. Keepers says that he reviewed medical records from health care

providers that treated Galloway for conditions after the alleged occurrence,

including records from Dr. Ron Gentry, Dr. Michael Campbell, and Methodist

Hospital. He also reviewed Galloway’s first amended original petition and the

“Patient Information” insert associated with Coreg. Dr. Keepers notes Galloway

has “lived with high blood pressure which [] is managed by medication.” Dr.

Keepers indicates that HEB filled Galloway’s prescription on or about January 8,

                                          4
2011, for Coreg, her blood pressure medication. She began experiencing “acute

weakness, dizziness and nausea for a period of 3 days, which prompted her to go to

her primary care physician[.]” Her primary care physician sent her to Methodist

Hospital for admission and treatment.

      Upon admission to Methodist Hospital, Galloway’s blood pressure was

202/105 and her heart rate was 97. She was experiencing atrial fibrillation. The

admitting physician ordered several tests, including but not limited to, an MRI and

MRA of the head and neck, and an “‘echocardiogram, cardiac enzymes, UA with

micro, and blood cultures.’” An IV was administered to provide Galloway with

fluids, and “‘strict blood pressure control’” was ordered. An angiogram confirmed

a “2-3 mm saccular aneurysm at the origin of the left posterior communicating

artery.” After four days in the hospital, Galloway was released. She was instructed

to double her Coreg medication at home and to make an appointment for follow-up

with Dr. Michael Campbell.

      The report indicates that after Galloway returned home from the hospital,

she “continued to experience” erratic blood pressure, and she noticed there were

two different-sized pills in her Coreg bottle. The report indicates she returned the

bottle to the HEB pharmacy, where she was informed by the HEB pharmacist that

“ketoconazole was accidentally mixed in with her Coreg[.]”

                                         5
      Dr. Keepers’ report references notes from one page of the records he

reviewed from Dr. Campbell. However, Dr. Campbell’s CV and qualifications are

not included in the record before us. According to Dr. Keepers, “Campbell noted it

was unclear if doubling the home medication regimen would have a positive effect

on Ms. Galloway’s blood pressure.” Furthermore, Dr. Keepers’ report also

references a letter from Dr. Ron Gentry. Dr. Gentry’s CV and qualifications also

are not included in the record before us. Dr. Gentry’s letter is attached to Keepers’

report and Dr. Gentry’s letter reads as follows:

             As a consequence of receiving the incorrect prescription
             from HEB pharmacy, it is my opinion that there is a
             reasonable medical probability that Mrs. Galloway’s
             blood pressure was subsequently uncontrolled beyond
             what would be otherwise expected. As a consequence of
             her uncontrolled pressure, Mrs. Galloway experienced
             neurologic symptoms and required hospitalization.

      Dr. Keepers also attached the “Patient Information” insert for Coreg to his

report. He references the following statement from the insert: “Do not stop taking

COREG and do not change the amount of COREG you take without telling your

doctor.” According to Dr. Keepers, “Coreg is indicated for the treatment of mild-

to-severe chronic heart failure of ischemic or cardiomyopathic origin, usually in

addition to diuretics, ACE inhibitors, and digitalis, to increase survival and, also, to

reduce hospitalization.”

                                           6
                       MOTION TO DISMISS AND OBJECTIONS

      HEB objected to Dr. Keepers’ report and sought a dismissal of Galloway’s

claims with prejudice. HEB argues that Galloway failed to serve a sufficient expert

report that satisfies the requirements of section 74.351. HEB contends that Dr.

Keepers’ report fails to establish his qualifications in the areas of pharmacology,

cardiology, nephrology, and neurology and it fails to establish causation.

      HEB raises the following deficiencies: Keepers’ report fails to establish that

Keepers is qualified to address how the acts or omissions of HEB or its employees

were causally related to Galloway’s alleged medical conditions, complications, and

injuries; Dr. Keepers’ report does not identify any particular test result, diagnosis,

prognosis or relevant data, in determining the cause of Galloway’s alleged injuries;

Keepers’ opinions regarding causation are conclusory and speculative, and

therefore legally insufficient; Keepers’ report fails to rule out other causes, relies

on caregivers’ opinions without establishing that those opinions are reliable and

based on an adequate foundation; and the report relies on contrary opinions which

fail to equate to medical causation. HEB argues that the trial court abused its

discretion by refusing to dismiss Galloway’s claim under section 74.351 because

Dr. Keepers’ report fails to establish he is qualified to testify that Galloway’s

alleged injuries were caused by HEB’s alleged mixing of Ketoconazole with her

                                          7
prescription for Coreg, and that Dr. Keepers’ report fails to explain how HEB’s

alleged breach caused Galloway’s alleged injuries.

                THE STANDARD OF REVIEW AND APPLICABLE LAW

      We review the trial court’s decision regarding the adequacy of Dr. Keepers’

expert report under an abuse of discretion standard. Am. Transitional Care Ctrs. of

Tex., Inc. v. Palacios, 46 S.W.3d 873, 878 (Tex. 2001). In reviewing the trial

court’s decision, we may not substitute our judgment for that of the trial court in

reviewing factual matters or matters committed solely to the trial court’s

discretion. See Bowie Mem’l Hosp. v. Wright, 79 S.W.3d 48, 52 (Tex. 2002);

Walker v. Packer, 827 S.W.2d 833, 839-40 (Tex. 1992). “Merely because a trial

court may decide a matter within its discretion in a different manner than an

appellate court would in a similar circumstance does not demonstrate that an abuse

of discretion has occurred.” Palladian Bldg. Co. v. Nortex Found. Designs, Inc.,

165 S.W.3d 430, 433 (Tex. App.—Fort Worth 2005, no pet.). “A trial court abuses

its discretion if it acts in an arbitrary or unreasonable manner without reference to

any guiding rules or principles.” Bowie Mem’l Hosp., 79 S.W.3d at 52. A trial

court also abuses its discretion if it fails to analyze or apply the law correctly.

Walker, 827 S.W.2d at 839-40.




                                         8
      A health care liability claimant must provide each defendant physician and

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

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

inform the defendant of the specific conduct the plaintiff has called into question;

and (2) to provide a basis for the trial court to conclude the plaintiff’s claims have

merit. Palacios, 46 S.W.3d at 879; see also Bowie Mem’l Hosp., 79 S.W.3d at 52;

HEB Grocery Co. v. Farenik, 243 S.W.3d 171, 173 (Tex. App.—San Antonio

2007, no pet.).

      The statute defines “expert report” as follows:

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

Tex. Civ. Prac. & Rem. Code Ann. § 74.351(r)(6). The defendant may file a

motion challenging the adequacy of the report. Id. § 74.351(l).

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

motion challenging the adequacy of an expert report only if it appears to the court,

after hearing, that the report does not represent an objective good faith effort to

comply with the definition of an expert report in Subsection (r)(6).” Id. § 74.351(l).

When determining whether the report represents a good-faith effort to comply with
                                          9
the statute, the trial court’s inquiry is limited to the four corners of the report. See

Wright, 79 S.W.3d at 53; Palacios, 46 S.W.3d at 878. To constitute a “good-faith

effort,” the report “must discuss the standard of care, breach, and causation with

sufficient specificity to inform the defendant of the conduct the plaintiff has called

into question and to provide a basis for the trial court to conclude that the claims

have merit.” Palacios, 46 S.W.3d at 875. While the expert report “need not

marshal all the plaintiff’s proof,” it must provide a fair summary of the expert’s

opinions as to the applicable standards of care, the manner in which the care

rendered by the physician or health care provider failed to meet the standards, and

the causal relationship between that failure and the injury, harm, or damages

claimed. Tex. Civ. Prac. & Rem. Code Ann. § 74.351(r)(6); Palacios, 46 S.W.3d at

875, 878. In determining the adequacy of an expert report, the trial court reviews

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

those claims. See Windsor v. Maxwell, 121 S.W.3d 42, 51 (Tex. App.—Fort Worth

2003, pet. denied).

      An expert report concerning the standard of care of a health care provider

regarding causation “authored by a person who is not qualified to testify . . . cannot

constitute an adequate report.” In re Windisch, 138 S.W.3d 507, 511 (Tex. App.—

Amarillo 2004, orig. proceeding); see Ehrlich v. Miles, 144 S.W.3d 620, 624-26

                                          10
(Tex. App.—Fort Worth 2004, pet. denied) (applying former version of section

74.351(a)). A physician is qualified to submit an expert report on the causal

relationship between a departure from the standard of care and an injury when he

would otherwise be qualified to address causation under the Texas Rules of

Evidence. Tex. Civ. Prac. & Rem. Code Ann. § 74.351(r)(5)(C). A person may

qualify as an “expert” on the question of whether the health care provider departed

from the accepted standard of care 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; (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. Tex. Civ. Prac. & Rem. Code Ann. § 74.402(b) (West

2011). To be qualified on the basis of training or experience, the person must be

certified or have other substantial training or experience in an area of health care

practice relevant to the claim and must be actively practicing health care in

rendering health care services relevant to the claim. Id. § 74.402(c) (West 2011).

      Every licensed medical doctor is not automatically qualified to testify as an

expert on every medical question, and the proponent of that testimony must show

                                         11
that the expert possesses special knowledge regarding the matter on which he

proposes to give an opinion. Ehrlich, 144 S.W.3d at 625. Accordingly, the offered

report must demonstrate that the expert has “‘knowledge, skill, experience,

training, or education regarding the specific issue before the court which would

qualify the expert to give an opinion on that particular subject.’” Id. (quoting

Roberts v. Williamson, 111 S.W.3d 113, 121 (Tex. 2003)). The expert report must

do more than merely allege that the expert is a medical doctor in order to render

opinions about the standard of care and causation, and the reviewing court cannot

fill in gaps in a report by drawing inferences. See, e.g., Collini v. Pustejovsky, 280

S.W.3d 456, 465-67 (Tex. App.—Fort Worth 2009, no pet.) (Trial court erred in

denying the physician’s motion to dismiss because the report did not demonstrate

that the expert was qualified to testify with regard to causation.).

      It is unnecessary for the expert in his report to rule out all other possible

causes or meet the summary judgment or trial standard of proof required when

litigating the merits. Palacios, 46 S.W.3d at 879; Baylor Med. Ctr. v. Wallace, 278

S.W.3d 552, 562 (Tex. App.—Dallas 2009, no pet.). “To constitute a good-faith

effort to establish the causal-relationship element, the expert report must fulfill

Palacios’s two-part test.” Bowie Mem’l Hosp., 79 S.W.3d at 52. The expert report

must explain the basis of the expert’s opinions and link them to the facts. Id.

                                          12
         When determining whether a report adequately explains how the defendant

health care provider caused a patient’s injury, we evaluate whether the report

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

Rosemond v. Al-Lahiq, 362 S.W.3d 830, 836 (Tex. App.—Houston [14th Dist.]

2012, pet. denied). A causal relationship is established by proof that the negligent

act or omission was a substantial factor in bringing about the harm and that absent

this act or omission, the harm would not have occurred. Costello v. Christus Santa

Rosa Health Care Corp., 141 S.W.3d 245, 249 (Tex. App.—San Antonio 2004, no

pet.).

  DEFICIENCY RELATING TO QUALIFICATION TO RENDER OPINION ON CAUSATION

         As we have noted, Dr. Keepers states in his report that he is a medical doctor

who treats patients on a regular basis and prescribes medications for them, and he

states: “I have either training as and/or served as a consultant, and/or observed

healthcare providers in the same fields as the defendant healthcare provider in this

case.” This declaration of general experience does not adequately establish why

Dr. Keepers would be qualified to render an opinion regarding the underlying facts

and causation in this case. Similarly, Dr. Keepers’ CV does not indicate board

certification or special expertise in matters unique to the subject matter at issue or

the conditions for which Galloway was being treated. Rather, Keepers has

                                           13
professional training in anesthesiology, surgery, and pathology. We find nothing in

his report or his CV demonstrates he has sufficient experience, knowledge, or

training that might qualify him to render the opinion that HEB’s alleged negligence

in filling Galloway’s Coreg prescription caused the injuries that led to her

hospitalization. His overly broad and general references to writing prescriptions for

patients and his statement regarding reliance upon pharmacists to accurately fill

prescriptions would not demonstrate that he would be qualified to testify as to

causation.

      We acknowledge that a medical doctor such as Dr. Keepers may indeed be

qualified to testify in a particular set of circumstances or facts about the standard of

care of a pharmacist or pharmacy, the causation of a particular medical condition,

or the interaction of certain medications. But, Dr. Keepers’ report and his CV lack

the specific detail necessary to establish that he is qualified to render an opinion

regarding causation in this matter. For example, the report fails to state that he has

treated patients with high blood pressure or similar conditions; that he has

prescribed blood pressure medication to patients or that he has actually prescribed

Coreg; that he is familiar with what happens generally to patients who fail to take

their blood pressure medications; that he has treated patients with, or read peer-

reviewed articles about, and has personal knowledge or experience or training

                                          14
regarding, the side effects and symptoms of failing to take Coreg as prescribed; or

that he is familiar with the pharmacology of Coreg and Ketoconazole. And, his CV

does not chronicle a particular training, expertise, or certification relating to

pharmacology, cardiology, or related fields. Rather, Dr. Keepers relies upon the

information insert for Coreg, which he notes warns a patient as follows: “Do not

stop taking COREG and do not change the amount of COREG you take without

telling your doctor.” And, he relies upon two documents from two of her treating

physicians whose qualifications are not provided.

      While we agree that it is not necessary for Dr. Keepers’ report to satisfy the

same standard as might be required for summary judgment or trial, the report must

meet the basic requirements under section 74.351. We conclude that the trial judge

abused his discretion in overruling HEB’s objections and motion to dismiss with

respect to the complaint about Dr. Keepers’ qualifications to testify. Keepers’

report fails to establish, either by knowledge, expertise, training, or experience,

that he is qualified to render an opinion that the alleged mistake in the filling of the

prescription caused the condition in question. See Collini, 280 S.W.3d at 465-66.

Issue one is sustained.




                                          15
                       DEFICIENCY RELATING TO CAUSATION

      In addition to the foregoing, we further find the report is deficient because

Dr. Keepers attributes causation to HEB, but he does so without providing the

basis for his conclusion. The report fails to describe, for example, the potential

physiological effects of taking Ketoconazole or of missing a dose of Coreg,

whether the effects would be gradual or sudden, and how the conditions might

manifest themselves in this particular patient. While Dr. Keepers does state that the

admixing caused Galloway’s blood pressure to spike, his report fails to provide any

statement or detail as to how Galloway’s assumed ingestion of an undetermined

amount of Ketoconazole and presumed concomitant missed doses of Coreg would

have contributed to any of her symptoms, and why such missed or admixed doses

contributed to her condition. See, e.g., Gingrich v. Scarborough, No. 09-09-00211-

CV, 2010 WL 1711067, at **2-3 (Tex. App.—Beaumont April 29, 2010, no pet.)

(mem. op.) (not designated for publication) (Report was insufficient on causation

where it stated that the cause of death was combined drug toxicity and pulmonary

edema, but it failed to explain why combined drug toxicity occurred, how the

combined drug toxicity related to pulmonary edema, or why it was fatal.).

      As noted in Collini, the expert report must do more than merely make a

conclusory statement that the defendant breached the standard of care and caused

                                         16
an injury. 280 S.W.3d at 465-67. In Collini, the plaintiff sued her family physician

for continuing to prescribe Reglan over an extended time, a practice that allegedly

caused the plaintiff to develop “tardive dyskinesia[,]” which is “a condition that

causes involuntary movement of the limbs, face, or tongue.” Id. at 459-60 & n.1.

The plaintiff produced an expert report from a board-certified physician who

opined that the defendant breached the standard of care by continuing to prescribe

the medication and by failing to closely monitor its use with the patient for known

side effects, which included movement disorders recognized in the prescription

information. Id. at 459-60. The court of appeals concluded that the expert report

did not adequately address the link between the alleged breach of the standard of

care and the injury that allegedly resulted to the patient because it did not provide

any detail as to how the breach contributed to the injury. Id. at 467-68. And, the

report did not indicate that the doctor had “any specific knowledge, experience,

education, or training in assessing the causal relationship between the prolonged

use of Reglan and tardive dyskinesia.” Id. at 465. Keepers’ report contains even

less detail than the report in Collini. At this time, Dr. Keepers’ report lacks a

sufficient basis for us to conclude that he has the knowledge, training, or

experience in treating patients with similar conditions and in prescribing Coreg or

similar medications for his patients, that he is familiar with the side effects of, or

                                         17
has knowledge of, the symptoms and conditions that would result from the

admixing of the two medications, that there is a link between the alleged breach

and the injury that allegedly resulted to Galloway, and how the admixing of the

two medications contributed to the alleged injury.

                                   CONCLUSION

      Considering the overall purpose of section 74.351, we conclude that the trial

court committed an abuse of discretion in denying the motion to dismiss. Dr.

Keepers’ report does not show how he would be qualified to address the

underlying medical conditions or how the alleged mis-filled prescription caused or

contributed to the conditions. Palacios, 46 S.W.3d at 879; Collini, 280 S.W.3d at

465-67; see also Bowie Mem’l Hosp., 79 S.W.3d at 52; Farenik, 243 S.W.3d at

173-77. Issue two is sustained.

      We further conclude that although the report is deficient, the trial court

should have the opportunity to grant a thirty-day extension. See In re Buster, 275

S.W.3d 475, 476-77 (Tex. 2008) (citing Leland v. Brandal, 257 S.W.3d 204, 208

(Tex. 2008)). Although we sustain HEB’s challenge to the adequacy of Keepers’

report as outlined above, we overrule HEB’s issue to the extent it asks us to

dismiss Galloway’s suit. We remand the case for the trial court to give

consideration to Galloway’s request for a thirty-day extension of time under

                                        18
section 74.351(c) to cure the deficiencies in Dr. Keepers’ report. See Tex. Civ.

Prac. & Rem. Code Ann. § 74.351(c); Scoresby v. Santillan, 346 S.W.3d 546, 553-

58 (Tex. 2011); St. Luke’s Sugar Land Hosp. v. Joseph, Nos. 14-11-00932-CV, 14-

11-00943-CV, 14-11-00997-CV, 2012 WL 2860687, at **7-8 (Tex. App.—

Houston [14th Dist.] July 12, 2012, no pet.) (mem. op.).

      REVERSED AND REMANDED.


                                                   _________________________
                                                      LEANNE JOHNSON
                                                             Justice


Submitted on January 21, 2014
Opinion Delivered May 22, 2014

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




                                        19
