              In the
         Court of Appeals
 Second Appellate District of Texas
          at Fort Worth
        ___________________________
             No. 02-18-00373-CV
        ___________________________

CAREFLITE AND NATHAN TATON, Appellants

                       V.

         JEROLD TAYLOR, Appellee



    On Appeal from the 236th District Court
            Tarrant County, Texas
        Trial Court No. 236-296553-17


  Before Sudderth, C.J.; Gabriel and Womack, JJ.
   Memorandum Opinion by Justice Womack
                           MEMORANDUM OPINION

                                   I. Introduction

      Appellants, Careflite and Nathan Taton, bring this interlocutory appeal from

the trial court’s order denying their motion to dismiss the claim Appellee Jerold

Taylor has asserted against them. In a single issue, Careflite and Taton contend that

Taylor’s claims against them are health care liability claims governed by Texas Civil

Practice and Remedies Code chapter 74 and that Taylor failed to comply with

chapter 74’s expert report requirements. We agree with Careflite and Taton and

reverse the trial court’s order denying their motion to dismiss and remand this case to

the trial court for further proceedings in accordance with this opinion.

                                  II. BACKGROUND

A.    Pleadings

      On November 28, 2017, Taylor filed his original petition against Careflite and

Taton as well as Baylor Scott & White Health d/b/a The Heart Hospital Baylor

Denton (Baylor).1 In the petition, Taylor alleges that he underwent a coronary artery

bypass graft at Baylor on December 1, 2015. Baylor arranged for Taylor to be

transferred to Select Rehab on December 5, 2015, for additional physical therapy and

recovery. Careflite was hired to transport Taylor, and Taton,2 who was alleged to be


      1
       The allegations against Baylor are not at issue in this appeal.
      2
       The petition erroneously states that “Defendant, Nathan Taylor[,] was
scheduled to pick up Plaintiff[.]” (emphasis added).
                                            2
an employee or agent of Careflite, was scheduled to pick up Taylor at Baylor on

December 5, 2015.

      According to the petition, Taylor was discharged from Baylor in a wheelchair,

with his personal belongings placed in a plastic bag and hung on the back of the

wheelchair. Careflite dispatched Taton to transport Taylor with a handicap accessible

van. After accepting him into his care, Taton placed Taylor in his wheelchair in the

vehicle. Taylor asserts that Taton failed to remove the bag of personal possessions

from the back of the wheelchair and failed to use straps to secure the wheelchair in

place or to secure Taylor in the wheelchair prior to transport. When Taton drove

onto the highway, Taylor’s wheelchair tipped over backward. Taylor allegedly struck

his head and slid backward on the floor of the van.

      In his petition, Taylor alleges that Taton:

      negligently, carelessly, and recklessly disregarded and breached his legal
      duty to exercise ordinary care in one or more of the following ways:
      (1) Failing to properly secure [Taylor’s] wheelchair in the vehicle;
      (2) Failing to properly secure [Taylor] in the wheelchair for transport;
      (3) Failing to remove the bag of personal possession[s] hung on the back
      of the chair to ensure that the [wheelchair] was properly balanced for
      transport; (4) Failing to use a vehicle adequate to the needs of [Taylor]
      given his current health condition; and (5) Failing to operate the vehicle
      at a reasonably safe speed to ensure the safety of [Taylor] as his
      passenger.

      With regard to Careflite, Taylor asserts that it “had a duty to hire, supervise,

train, and retain competent employees[,]. . . [and] a duty to ensure that [Taton] was

instructed in how to secure a wheelchair for transport, and how to drive a vehicle with

                                           3
a wheelchair in it without the wheelchair tipping over backwards.” In addition, Taylor

alleged that Careflite “had a duty to ensure that [Taton] was securing wheelchairs and

passengers appropriately for transport and following proper safety guidelines for the

transport of patients in wheelchairs.”     In addition to stating that Careflite was

vicariously liable for the actions of Taton “under the doctrine of Respondeat Superior,”

Taylor contended that the negligence of Careflite, Taton and Baylor “separately

and/or collectively” constituted a direct and proximate cause of his injuries and

damages.

         Careflite and Taton responded with their answer on January 8, 2018, which

included a general denial and numerous affirmative defenses.          They specifically

“invoke[d] their right to rely on all defenses, protections, provisions, and limitations

authorized by Texas Civil Practice & Remedies Code, Chapter 74, Subchapter G, in

full.”

B.       Expert Report

         On April 17, 2018, Taylor filed his “Plaintiff’s Amended Notice of Filing

Amended Expert Report Pursuant to Tex. Civ. Prac. & Rem. Code 74.351(a).”3

Attached to the filing were the report and credentials of Robert C. Krause, M.S.,

EMT-P. Krause is a licensed paramedic. Krause’s report is four pages, and his

credentials cover ten pages.


        Taylor had filed the original report on February 23, 2018. After objections
         3

were filed, Taylor amended the original report.
                                           4
      After setting out his credentials and some background facts in the report,

Krause states his “opinion” as follows:

              The care and transport of a patient safely and securely is a
      fundamental function of a medical transport company. A fundamental
      standard of care in healthcare is to do no harm. The phrase is
      sometimes recorded as primum nil nocere. Non-maleficence, which is
      derived from the maxim, is one of the principal precepts of bioethics of
      all healthcare providers and is a fundamental principle throughout the
      world. Failing to properly secure both the patient and the conveyance
      device, in this case a wheelchair, is below the standard of care of
      ensuring safe transportation. The expectation is a patient such as Mr.
      Taylor[] is transported safely, without falling or being toppled out of
      their [wheelchair] while in a moving vehicle. Falling backwards in a
      wheelchair[] while in the wheelchair van is unacceptable and falls below
      the standard of care of ensuring safe transportation. Section 37.173 of
      the DOT ADA regulations requires operators to train their personnel to
      properly assist and treat individuals with disabilities with sensitivity[] and
      to operate vehicles and equipment safely. Failing to properly secure
      both the wheelchair and Mr. Taylor with the use of a lap belt and
      shoulder belt is below the standard of care of ensuring safe
      transportation. Section 38.23(d) of the DOT ADA regulations requires
      all ADA-compliant buses and vans to have a two-part securement
      system, one to secure the wheelchair, and a seat belt and shoulder
      harness for the wheelchair user. The Careflite driver, Nathan Taton,
      failed to ensure Mr. Taylor was safely secured to the wheelchair and the
      wheelchair van, and as a result of his failures, Mr. Taylor flipped over
      backwards while being transported. This carelessness and inattention to
      detail for the safety and security of Mr. Taylor, on the part of Nathan
      Taton[,] resulted in an additional visit to an emergency department for
      Mr. Taylor. It is my opinion this fall was foreseeable[] (not securing a
      wheelchair could fall) and preventable (properly securing [wheelchair]
      would have prevented the flipping backwards).

C.    Objections and Motion to Dismiss

      In response, Careflite and Taton filed their objections to the amended report

on May 8, 2018, and their motion to dismiss on May 10, 2018. In the motion, they

                                            5
argue that Taylor “wholly ignored the critical statutory requirement to serve a report

that addressed the issue of causation.” Careflite and Taton contend that “a licensed

physician who is otherwise qualified under the rules of evidence must opine on the

issue of causation.” In addition, they urge that “[n]on-physician emergency medical

technicians, paramedics, and registered nurses are statutorily disqualified from

offering such opinions.”4

D.    Response to Objections and Motion to Dismiss

      In his response to the objections, Taylor makes two arguments. First, Taylor

contends that “this is a general negligence or safety standards based claim” and does

not fall within the purview of section 74.351. Tex. Civ. Prac. & Rem. Code Ann.

§ 74.351. He argues that he should not be held to a higher burden to provide an

expert report simply because Careflite and Taton are healthcare providers; the

standard should be no higher than it would be if “the transportation was on a city bus,

taxicab, or ride share operator, like Uber or Lyft.”

      Second, he argues that the medical records should be considered in addition to

the report by Krause. According to Taylor, his treating physician, Dr. James Guess,

states multiple times in his records that the “[m]echanism of injury is as he was sitting

in his wheelchair[,] it turned over.” Therefore, Taylor contends that, in determining


      4
       Careflite and Taton also note that they pointed out these same deficiencies in
response to the original report. And, at that time, Taylor still had time to provide an
additional report on causation that was authored by a licensed physician.

                                            6
whether he complied with the reporting requirements of section 74.351, the court can

also consider Taylor’s other medical records.

E.    The Trial Court’s Ruling

      On September 7, 2018, the trial court held a hearing on the objections to

Krause’s report and motion to dismiss. At the conclusion of the hearing, the trial

court stated that the expert report was “sufficient against Careflite.” On November 2,

2018, the trial court signed an order denying the motion to dismiss and overruling the

objections to the expert report of Krause as to Careflite and Taton.5 Thereafter,

Careflite and Taton filed this interlocutory appeal.

                                   III. DISCUSSION

A.    Law Governing Medical-Expert Reports

      The Texas Medical Liability Act (Act) requires a claimant pursuing a “health

care liability claim” to timely serve an adequate expert report. See Id. § 74.351(a)

(requiring service of an adequate expert report within 120 days after the original

answer is filed, absent a statutorily permitted exception). Failure to do so requires

dismissal with prejudice. Id. § 74.351(b)(2); see also Scott and White v. Weems, No. 17-

0563, 2019 WL 1867916, at *1 (Tex. April 26, 2019). In the healthcare-liability




      5
       Prior to entering the order denying the motion to dismiss of Careflite and
Taton, the trial court entered an order granting the motion. Subsequently, the trial
court entered an order vacating the order of dismissal.

                                            7
context, an expert report is required to ensure that only claims with “potential merit”

proceed. Samlowski v. Wooten, 332 S.W.3d 404, 410. (Tex. 2011).

      The Act defines a health care liability claim as:

      a cause of action against a health care provider or physician for
      treatment, lack of treatment, or other claimed departure from accepted
      standards of medical care, or health care, or safety or professional or
      administrative services directly related to health care, which proximately
      results in injury to or death of a claimant, whether the claimant’s claim or
      cause of action sounds in tort or contract.
Tex. Civ. Prac. & Rem. Code Ann. § 74.001(a)(13). Health care liability claims must

satisfy the following three elements: (1) a physician or health care provider must be a

defendant; (2) the claim or claims at issue must concern treatment, lack of treatment,

or a departure from accepted standards of medical care, or health care, or safety or

professional or administrative services directly related to health care; and (3) the

defendant’s act or omission complained of must proximately cause the injury to the

claimant. Psychiatric Solutions, Inc. v. Palit, 414 S.W.3d 724, 725 (Tex. 2013) (quoting

Tex. W. Oaks Hosp., LP v. Williams, 371 S.W.3d 171, 179-80 (Tex. 2012)).

      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;

                                            8
      (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)(1)–(3).

      An expert who gives an opinion on causation must meet all of the following

qualifications: (1) the expert must be a licensed physician; and (2) the expert must be

otherwise qualified to give an opinion on the causal relationship under the Texas

Rules of Evidence. Id. § 74.403(a). A “physician” is a person who is licensed to

practice medicine in one or more states in the United States. Id. § 74.401(g)(1). An

expert witness may be qualified to opine on one issue but not another. Id. § 74.351(i);

In re Buster, 275 S.W.3d 475, 477 (Tex. 2008).

B.    Standard of Review

      A trial court’s decision whether to dismiss a health care liability claim based on

a plaintiff’s failure to comply with section 74.351’s expert report requirement is

reviewed for abuse of discretion. Tex. Civ. Prac. & Rem. Code Ann. § 74.351; see, e.g.,

Jernigan v. Langley, 195 S.W.3d 91, 93 (Tex. 2006) (per curiam); see also Van Ness v.

ETMC First Physicians, 461 S.W.3d 140, 142 (Tex. 2015). Under this standard, we

defer to the trial court’s factual determinations if supported by the evidence but

review its legal determinations de novo. See Van Ness, 461 S.W.3d at 142. An abuse

occurs if the trial court rules without reference to guiding rules or principles or


                                           9
renders a decision lacking support in the facts or circumstances of the case. See

Samlowski, 332 S.W.3d at 410.

      When the issue presented requires statutory interpretation or a determination

of whether chapter 74 applies to a claim, that is a question of law to which appellate

courts apply a de novo standard of review. See Stockton v. Offenbach, 336 S.W.3d 610,

615 (Tex. 2011). Whether a claim is a health care liability claim under the Act is a

question of law we review de novo. Christus Health Gulf Coast v. Carswell, 505 S.W.3d

528, 534 (Tex. 2016).

C.    Analysis

      1.     Whether This is a Health Care Liability Claim

      Taylor does not dispute that Careflite and Taton qualify as “health care

providers.” In addition, he “agrees that there is a causal relationship between the

alleged act or omission and the complained of injury which satisfies the third

element.” Rather, he disputes whether section 74.351’s second element—whether the

claim concerns treatment, lack of treatment, or a departure from accepted standards

of medical care, or health care, or safety or professional or administrative services

directly related to health care—is met.

      Careflite and Taton contend that “Taylor’s claim involves an alleged departure

from accepted standards of health care because Taylor was a patient in and under the

care of Careflite and Taton at the time of the alleged incident.” Alternatively, they

argue that “Taylor’s claim involves an alleged departure from accepted standards of
                                          10
safety because the underlying facts and Taylor’s allegations demonstrate that a

substantive nexus exists between the allegedly violated safety standards and the

provision of health care.”

       The determination of whether a cause of action is a health care liability claim is

based on an evaluation of the facts alleged and the underlying nature of the claim.

Diversicare Gen. Partner, Inc. v. Rubio, 185 S.W.3d 842, 847, 851 (Tex. 2005). “A cause of

action alleges a departure from accepted standards of medical care or health care if the

act or omission complained of is an inseparable part of the rendition of medical

services.” Id. at 848. If the essence of the suit is a health care liability claim, a party

cannot avoid the requirements of section 74.351 through artful pleading. Id. at 851.

       At issue here is the nature of Taylor’s cause of action, a phrase that refers to

the “fact or facts entitling one to institute and maintain an action, which must be

alleged and proved in order to obtain relief.” Scott and White, 2019 WL 1867916, at *4

(citing In re Jorden, 249 S.W.3d 416, 421 (Tex. 2008) (quoting A.H. Belo Corp. v. Blanton,

133 Tex. 391, 129 S.W.2d 619, 621 (1939))). We focus on whether or not the

gravamen of Taylor’s complaint is a “claimed departure from accepted standards of

medical care, or health care, or safety or professional or administrative services

directly related to health care.”     Id. (citing Tex. Civ. Prac. & Rem. Code Ann.

§ 74.001(a)(13) and Christus Health, 505 S.W.3d at 534).

       Careflite and Taton argue that the underlying factual background of Taylor’s

December 5, 2015, medical transport, as set out in his original petition, states a claim
                                            11
premised upon departures from accepted standards of health care and departures

from accepted standards of safety. In his petition, Taylor alleges that Careflite “failed

to dispatch an appropriate vehicle to transport [him] commensurate with his health

status three days after having open heart surgery.” In addition, Taylor states that

Taton “accepted [Taylor] into his care, although he should have recognized that

[Taylor’s] health condition required a higher degree of care than he and his vehicle

were equipped to provide.” And, after accepting Taylor into his care, Taton “failed to

remove the bag of personal possessions from the back of the wheelchair and failed to

use straps to secure the wheelchair in place or to secure [Taylor] in the wheelchair

prior to transport.”

       At least one of our sister courts has addressed claims similar to those here and

found that they met the definition of a health care liability claim.           Sherman v.

Healthsouth Specialty Hosp., Inc., 397 S.W.3d 869 (Tex. App.—Dallas 2013, pet. denied).

In Sherman, the plaintiff claimed injuries after a medical clinic employee allegedly failed

to properly secure her and her wheelchair in a van to her home. The plaintiff argued

that her “medical dealings” with the rehabilitation hospital had been completed, and

the tangential relationship “does not somehow transform a mere van ride into an

integral part of health care services.” Id. at 874. In determining the claim to be a

health care liability claim, the court pointed out that a direct connection between the

act or omission causing injury and the provision of health care is not necessary for

purposes of determining whether a claim is a health care liability claim. Id. While the
                                            12
health care provider was not providing the plaintiff medical care or treatment at the

time its driver suddenly applied his brakes, the health care provider was still

responsible for the plaintiff’s safety during transport from the clinic to her home. Id.;

see Bain v. Capital Senior Living Corp., No. 05-14-00255-CV, 2015 WL 3958714, *4 (Tex.

App.—Dallas June 30, 2015, pet. denied) (mem. op.) (holding that claims alleging

failure to secure a claimant into her wheelchair and applying the brakes with excessive

force causing the claimant to fall from her wheelchair were health care liability claims);

see Omaha Healthcare Ctr., LLC v. Johnson, 344 S.W.3d 392, 395 (Tex. 2011) (holding

that the term “health care” encompasses any act or treatment performed or furnished

by a health care provider).

      Similarly, we conclude that Taylor’s claims involve allegations of departures

from accepted standards of care because Taylor was a patient in and under the care of

Careflite and Taton at the time of the alleged incident. In addition, Taylor’s pleadings

allege that Careflite and Taton failed to recognize that a patient in Taylor’s medical

condition was not medically qualified to undergo a wheelchair transport and should

have instead been transported via a stretcher in a supine position.          Taylor also

contends that the transport should have been completed by an ambulance unit with

the necessary medical equipment to care for a patient in Taylor’s condition. All of the

allegations involve an alleged departure from accepted standards of health care.

      Taylor also relies upon Nexus Recovery Ctr. v. Mathis, 336 S.W.3d 360 (Tex.

App.—Dallas 2011, no pet.) for the proposition that his claim does not concern
                                           13
treatment or lack of treatment as defined by the Act. However, Nexus involved

allegations of an inappropriate intimate, sexual and financial relationship between a

patient of a residential drug and alcohol treatment facility and an employee counselor

of the facility which began after the patient left the care of the treatment program. Id.

at 363. In Nexus, unlike here, the plaintiff never raised complaints related to her care

as a patient. Id. Rather, the only relationship to health care was in the sense that the

plaintiff and former employee counselor first met when the plaintiff was a patient at

Nexus. Id.

      In addition, Taylor’s claims implicate duties to provide for patient safety

because a substantive nexus exists between the allegedly violated safety standards and

the provision of health care. In Ross v. St. Luke’s Episcopal Hospital, 462 S.W.3d 496,

502 (Tex. 2015), the supreme court set forth a list of non-exclusive considerations to

help courts determine whether there is a substantive nexus between the safety

standards allegedly violated and the provision of health care:

      (1)    Did the alleged negligence of the defendant occur in the course of
             the defendant’s performing tasks with the purpose of protecting
             patients from harm;

      (2)    Did the injuries occur in a place where patients might be during
             the time they were receiving care, so that the obligation of the
             provider to protect persons who require special, medical care was
             implicated;

      (3)    At the time of the injury was the claimant in the process of
             seeking or receiving health care;


                                           14
       (4)     At the time of the injury was the claimant providing or assisting in
               providing health care;

       (5)     Is the alleged negligence based on safety standards arising from
               professional duties owed by the health care provider;

       (6)     If an instrumentality was involved in the defendant’s alleged
               negligence, was it a type used in providing health care; or

       (7)     Did the alleged negligence occur in the course of the defendant’s
               taking action or failing to take action necessary to comply with
               safety-related requirements set for health care providers by
               governmental or accrediting agencies?

Id. at 505.

       Several of these factors further support our conclusion that Taylor’s claim is a

health care liability claim. For example, and similar to the facts in Bain, Taton’s

alleged misuse of the straps to secure the wheelchair in place or to secure Taylor in

the wheelchair prior to transport was a task performed with the purpose of protecting

a patient from harm. Bain, 2015 WL 3958714, at *4.              And the instrumentality

involved—Taylor’s wheelchair—is the type of instrumentality used in providing

health care.    Taylor’s argument that his transport by Careflite and Taton is no

different than the services provided by a taxi company or Uber or Lyft ignores his

status as a post-heart-surgery patient and disregards the status of Careflite and Taton

as licensed health care providers.

       Therefore, we conclude that Taylor’s allegations not only involve departures

from accepted standards of care but also implicate duties to provide for patient safety.


                                            15
Therefore, they are health care liability claims and are governed by the provisions of

chapter 74. Tex. Civ. Prac. & Rem. Code Ann. § 74.001 et seq.

      2.     Whether Medical Records Suffice for an Opinion on Causation

      Taylor’s only expert report was provided by Krause. It is undisputed that he is

not a physician, but rather, as described by Taylor, “an expert in the field of EMT –

Paramedics qualified to give expert opinions on patient transport and handling.” If

Krause’s report is insufficient, Taylor argues that he has “complied with the

requirements [of chapter 74] by proffering the report of a qualified expert in

conjunction with the medical records provided in response to Requests for

Disclosures.”6 Indeed, in his response to the motion to dismiss, Taylor attached as

exhibits over one hundred pages of medical records from healthcare providers seen

on or after December 5, 2015.

      However, medical records have consistently been rejected as constituting an

adequate chapter 74 expert report. See Maxwell v. Seifert, 237 S.W.3d 423, 427 (Tex.

App.—Houston [14th Dist.] 2007, pet. denied); see also Milton v. Nguyen, No. 01-11-

00958-CV, 2012 WL 3228835, at *1 (Tex. App.—Houston [1st Dist.] August 9, 2012,

pet. denied) (mem. op.); Univ. of Tex. Med. Branch at Galveston v. Callas, 497 S.W.3d 58,

67 (Tex. App.—Houston [14th Dist.] 2016, pet. denied). In addition, even though


      6
       Specifically, Taylor contends that the medical records from OrthoTexas of
Dr. James Guess and Dr. Richard Burg “state that the mechanism of Taylor’s injuries
were the incident in which his wheelchair turned over.”

                                           16
required by section 74.351(a), no curriculum vitae of Guess or any other licensed

physician affiliated with the hundreds of pages of medical records was supplied. Tex.

Civ. Prac. & Rem. Code Ann. § 74.351(a).

      While Taylor cites to Kettle v. Baylor Medical Center, 232 S.W.3d 832 (Tex. App.—

Dallas 2007, pet. denied) for his proposition that medical records can be considered in

conjunction with a report, neither Kettle nor chapter 74 allow medical records to be

substituted in place of a section 74.351 expert report. Rather, both support the

conclusion here that only an expert report by a licensed physician can satisfy the

requirements of chapter 74.

      In Kettle, the plaintiffs brought a health care liability claim against a number of

health care providers. Id. at 836. To satisfy the expert report requirements of article

4590i, the predecessor statute to chapter 74, the plaintiffs served reports from an

internist/cardiologist and a registered nurse. Id. at 837–41. In addition to other

matters, both reports stated opinions on medical causation. In response to objections

to the adequacy of the reports, the Dallas court held that the registered nurse was not

qualified to testify on medical causation. Id. at 841. However the court did consider

the causation opinions included within the doctor’s report. Id. at 841–42.

      In this case, unlike in Kettle, Taylor submitted only a report from a non-

physician. He did not submit a report from any physician. Moreover, the Kettle

plaintiffs did not attempt to rely upon medical records to satisfy the mandatory

minimum requirements of an expert report.
                                           17
       In addition, in deciding whether a report is compliant with chapter 74, the trial

court is to examine only the four corners of the expert’s report and may not draw

inferences or otherwise supply links in the causal chain. See Bowie Mem’l Hosp. v.

Wright, 79 S.W.3d 48, 52 (Tex. 2002); Am. Transitional Care Ctrs. of Tex., Inc. v. Palacios,

46 S.W.3d 873, 878 (Tex. 2001). Examining medical records outside the report does

not comply with this four-corner requirement.

       Therefore, we conclude that Taylor’s allegations concern claimed departures

from accepted standards of health care and safety services directly related to health

care, and the trial court abused its discretion by denying Careflite and Taton’s motion

to dismiss. We sustain this portion of Appellants’ issue.

       3.    Whether Appellee is Entitled to a Thirty-Day Extension

       In his brief, Taylor requests that in the event we sustain Careflite and Taton’s

issue, he be granted a thirty-day extension to remedy any deficiencies “since he filed

his reports in good faith.” In response, Careflite and Taton argue that Taylor “elected

to wholly ignore and disregard causation, one of the three mandatory elements of a

section 74.351 report, by serving a non-compliant report from a non-physician who is

statutorily disqualified from offering medical causation opinions.” Therefore, they

contend that “Taylor’s report from Krause, EMT-P was not a good faith effort

because it omitted one of the three statutory requirements,” and therefore, he is not

entitled to any extension of the section 74.351 expert report deadline. In addition, in


                                            18
their motion to dismiss, Careflite and Taton urged that Taylor’s “purported expert

report” is “akin to no report at all.”

       Section 74.351 does distinguish between a report that is timely served but

deficient and when no report is served. If a report is timely served but deficient, the

trial court may grant an extension to cure the deficiency, and no appeal lies from the

extension order. Villarreal v. Fowler, 526 S.W.3d 633, 635 (Tex. App.—Fort Worth

2017, no pet.); see Tex. Civ. Prac. & Rem. Code Ann. § 74.351(c) (“If an expert report

has not been served within the period specified by Subsection (a) because elements of

the report are found deficient, the court may grant one 30-day extension to the

claimant in order to cure the deficiency.”).

       In distinguishing between a deficient report and no report, we are guided by the

supreme court’s decision in Scoresby v. Santillan, 346 S.W.3d 546 (Tex. 2011). In

Scoresby, the court explained that when a trial court finds deficiencies within an expert

report, it should “err on the side of granting the additional time and must grant it if

the deficiencies are curable.”     Id. at 549.   Further, the court explained that an

individual’s “lack of relevant qualifications and an opinion’s inadequacies are

deficiencies the plaintiff should be given an opportunity to cure if it is possible to do

so.” Id.

       In describing when a claim should be dismissed instead of giving an

opportunity to cure, the court stated,


                                           19
      We conclude that a thirty-day extension to cure deficiencies in an expert
      report may be granted if [1] the report is served by the statutory
      deadline, if [2] it contains the opinion of an individual with expertise that
      the claim has merit, and if [3] the defendant’s conduct is implicated. We
      recognize that this is a minimal standard, but we think it is necessary if
      multiple interlocutory appeals are to be avoided, and appropriate to give
      a claimant the opportunity provided by the Act’s thirty-day extension to
      show that a claim has merit. All deficiencies, whether in the expert’s
      opinions or qualifications, are subject to being cured before an appeal
      may be taken from the trial court’s refusal to dismiss the case.

Id. at 556–57; compare Villarreal, 526 S.W.3d at 636 (holding that a “Clinical Review”

fails the minimal expert-report standard because instead of opining that a claim has

merit, its author opined that several ethical rules were violated and recommended

consultation with an attorney); Haskell v. Seven Acres Jewish Senior Care Servs., Inc.,

363 S.W.3d 754, 760 (Tex. App.—Houston [1st Dist.] 2012, no. pet.) (holding that

letters from cardiologist, neurologist and psychologist that failed to state that a claim

had merit did not constitute an expert report); Rivenes v. Holden, 257 S.W.3d 332, 339

(Tex. App.—Houston [14th Dist.] 2008, pet. denied) (holding that expert report that

did not refer to physician by name or position and that offered no opinions

concerning the physician’s conduct did not implicate that physician’s conduct);

Apodaca v. Russo, 228 S.W.3d 252, 257 (Tex. App.—Austin 2007, no pet.) (concluding

that if a report fails to address a defendant physician, it constitutes no report and an

extension may not be granted); Garcia v. Marichalar, 198 S.W.3d 250, 255 (Tex. App.—

San Antonio 2006, no pet.) (concluding that report that did not name doctor or



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discuss how the treatment did not meet standard of care did not constitute good-faith

effort).

       In urging that Taylor is not entitled to an extension, Careflite and Taton also

note that they put Taylor on notice of the “fatal omission of causation opinions from

a licensed physician during the prescribed 120 day period,” yet he still did not comply.

However, as this Court has previously noted, “[P]enalizing a plaintiff for declining to

fix a report’s alleged deficiencies before a trial court rules on objections to the report

would be unreasonable and contrary to the purpose of section 74.351(c), which is to

grant an opportunity to cure after ‘elements of the report are found deficient.’” Gower

v. Univ. Behavioral Health of Denton, No. 02-16-00245-CV, 2017 WL 3081153, at *12

(Tex. App.—Fort Worth July 20, 2017, no pet.) (mem. op.) (quoting Tex. Civ. Prac. &

Rem. Code Ann. § 74.351(c)).

       Applying Scoresby’s standards here, we conclude that the trial court is in the best

position to decide whether a cure for an inadequate expert report is feasible. Protzman

v. Gurrola, 510 S.W.3d 640, 654–55 (Tex. App.—El Paso 2016, no pet.). Therefore, it

is appropriate to remand the case to the trial court for consideration of whether the

deficiencies in the expert report can be cured, and therefore, whether to grant an

extension of time. Id. at 655.

                                   IV. CONCLUSION

       Having agreed with Appellants Careflite and Taton that the allegations of

Appellee Taylor are health care liability claims governed by section 74.351 and that
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Taylor failed to comply with chapter 74’s expert report requirements, we reverse the

trial court’s order denying their motion to dismiss and remand this case to the trial

court for further proceedings in accordance with this opinion. See Tex. R. App. P.

43.2(d).

                                                    /s/ Dana Womack

                                                    Dana Womack
                                                    Justice

Delivered: June 27, 2019




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