                                                                             ACCEPTED
                                                                        03-14-00726-CV
                                                                               3887778
                                                              THIRD COURT OF APPEALS
                                                                         AUSTIN, TEXAS
                                                                   1/23/2015 6:20:41 PM
                                                                      JEFFREY D. KYLE
                                                                                 CLERK
               NO. 03-14-00726-CV

                                                   FILED IN
      IN THE COURT OF APPEALS FOR THE 3rd AUSTIN,
                                          COURT OF APPEALS
                                                  TEXAS
           THIRD DISTRICT OF TEXAS
                                             1/23/2015 6:20:41 PM
                                               JEFFREY D. KYLE
                                                     Clerk
TEXAS SAN MARCOS TREATMENT CENTER, L.P. d/b/a
       SAN MARCOS TREATMENT CENTER
                  Appellant

                        v.

              VERONICA PAYTON
                  Appellee


        On Appeal from Hays County, Texas,
            428th Judicial District Court
         Trial Court Case Number: 13-2658


            BRIEF FOR APPELLANT


                      Ryan L. Clement
                      Texas Bar No. 24036371
                      SERPE JONES ANDREWS
                      CALLENDER & BELL, PLLC
                      2929 Allen Parkway, Suite 1600
                      Houston, Texas 77019
                      Telephone: (713) 452-4400
                      Facsimile: (713) 452-4499
                      Email: rclement@serpejones.com

                      Attorneys for Appellant,
                      Texas San Marcos Treatment Center,
                      L.P. d/b/a San Marcos Treatment Center

ORAL ARGUMENT RESPECTFULLY REQUESTED
                   IDENTITY OF PARTIES AND COUNSEL

      In accordance with Rule 38.1(a) of the Texas Rules of Appellate Procedure,

Appellant provides the following complete list of all parties and counsel to the trial

court’s order that forms the basis of this appeal.

      Trial and Appellate Counsel for Appellant Texas San Marcos
      Treatment Center, L.P. d/b/a San Marcos Treatment Center:

      Ryan L. Clement
      Texas Bar No. 24036371
      SERPE JONES ANDREWS
      CALLENDER & BELL, PLLC
      2929 Allen Parkway, Suite 1600
      Houston, Texas 77019
      Telephone: (713) 452-4400
      Facsimile: (713) 452-4499
      Emails: rclement@serpejones.com


      Trial and Appellate Counsel for Appellee Veronica Payton:

      Adam S. Ward
      Texas Bar No. 00788615
      Aaron Allison
      Texas Bar No. 24055098
      Allison & Ward
      2001 N. Lamar Blvd.
      Austin, Texas 78705-4907
      Telephone: (512) 474-8153
      Facsimile: (512) 474-9703
      Email: allison-ward@sbcglobal.net
      Email: aaron@allisonwardllp.com




                                           ii
                                     TABLE OF CONTENTS
                                                                                                         Page

IDENTITY OF PARTIES AND COUNSEL ........................................................... ii

TABLE OF CONTENTS ......................................................................................... iii

TABLE OF AUTHORITIES .....................................................................................v

STATEMENT OF THE CASE ..................................................................................2

ISSUES PRESENTED...............................................................................................2

STATEMENT OF FACTS ........................................................................................3

SUMMARY OF THE ARGUMENT ........................................................................5

ARGUMENT & AUTHORITY ................................................................................6

        I.       STANDARD OF REVIEW ..........................................................................6

        II.      The Trial Court Abused Its Discretion When Finding Dr. Reid’s
                 Report Satisfied The Requirements Of Chapter 74 And Denying
                 Appellant’s Motion To Dismiss. ...........................................................7

                 A.      Legislative Intent Of Chapter 74.................................................7

                 B.      Chapter 74’s Expert Report Requirements. ................................8

                 C.      Dr. Reid’s Report Does Not Constitute A Good Faith Effort to
                         Comply With Section 74.351....................................................12

                         1.       Dr. Reid’s report provides no facts to support his
                                  conclusions and thus does not constitute an expert report
                                  under Chapter 74.............................................................12
                         2.       Dr. Reid fails to identify the standard of care applicable
                                  to San Marcos Treatment Center ....................................15



                                                      iii
                        3.       Dr. Reid fails to explain how San Marcos Treatment
                                 Center breached the applicable standard of care. ...........19
                        4.       Dr. Reid’s report fails to explain how an alleged breach
                                 in the standard of care by San Marcos Treatment Center
                                 caused Appellee’s injuries. .............................................23
                D.      By Serving A Report Like Dr. Reid’s, Appellee Effectively
                        Negates The Purpose Of Chapter 74’s Expert Report
                        Requirement. .............................................................................29

CONCLUSION & PRAYER ...................................................................................30

CERTIFICATE OF COMPLIANCE .......................................................................32

CERTIFICATE OF SERVICE ................................................................................32

APPENDIX
        TRIAL COURT ORDER ...............................................................................A

        CASES           .................................................................................................... B




                                                         iv
                                   TABLE OF AUTHORITIES
Cases
American Transitional Care Ctrs. of Tex., Inc. v. Palacios,
 46 S.W.3d 873 (Tex. 2001) ........................................................................... passim
Austin Heart, P.A. v. Webb,
 228 S.W.3d 276 (Tex. App.—Austin 2007, no pet.) ............................... 11, 20, 27
Baylor All Saints Medical Center v. Martin,
 340 S.W.3d 529 (Tex. App.-Fort Worth 2011, no pet.)........................... 17, 18, 28
Bogar v. Esparza,
 257 S.W.3d 354 (Tex. App.—Austin 2008, no pet.) ..............................................8
Bowie Mem'l Hosp. v. Wright,
 79 S.W.3d 48 (Tex. 2002) ............................................................................. passim
Earle v. Ratliff,
 998 S.W.2d 882 (Tex. 1999) .................................................................................10
Gray v. CHCA Bayshore L.P.,
 189 S.W.3d 855 (Tex. App.—Houston [1st Dist.] 2006, no pet.) ................. 11, 20
Hebert v. Hopkins,
 395 S.W.3d 884 (Tex. App.—Austin 2013, no pet.) .................................... passim
Jelinek v. Casas,
  328 S.W. 3d 526 (Tex. 2010) ........................................................................ passim
Jernigan v. Langley,
  195 S.W.3d 91 (Tex. 2006) .....................................................................................9
Kingwood Pines Hospital, LLC, v. Gomez,
 362 S.W.3d 740 (Tex. App.-Houston [14th Dist.] 2011, ............................... passim
Kocurek v. Colby,
 No. 03-13-00057-CV, 2014 WL 4179454 –5 (Tex. App.—
 Austin Aug. 22, 2014, no pet.) ..............................................................................24




                                                        v
Kuykendall v. Dragun,
 No. 11-05-00230-CV, 2006 WL 728068 (Tex. App.—
 Eastland Mar. 23, 2006, pet. denied) ....................................................................14
McKenna Memorial Hosp., Inc. v. Quinney,
 No. 03-06-00119-CV, 2006 WL 3246524 (Tex. App. –
 Austin, Nov. 10, 2006, no pet. h.) .................................................................. 10, 27
Psychiatric Solutions, Inc. v. Palit,
 414 S.W.3d 724 (Tex. 2013) ...................................................................................8
Regent Care Ctr. of San Antonio II, Ltd. P'ship v. Hargrave,
 300 S.W.3d 343 (Tex. App.—San Antonio 2009, pet. denied) ............................28
Russ v. Titus Hosp. Dist.,
 128 S.W.3d 332 (Tex. App. – Texarkana 2004, pet denied) ......................... 10, 11
Shenoy v. Jean,
 No. 01-10-01116-CV, 2011 WL 6938538(Tex. App.—
 Houston [1st Dist.] Dec. 29, 2011,................................................................. 14, 19
Smith v. Wilson,
 368 S.W.3d 574 (Tex. App.—Austin 2012, no pet.) .................................... passim
Strom v. Memorial Hermann Hosp. Sys.,
  110 S.W.3d 216 ........................................................................................ 10, 11, 15
Taylor v. Fossett,
 320 S.W.3d 570 (Tex. App.—Dallas 2010, no pet.)...................................... 13, 23
Texarkana Nursing & Healthcare Center, LLC v. Lyle,
 388 S.W.3d 314 (Tex. App. – Texarkana, 2012) ............................... 10, 17, 25, 28
Texas West Oaks Hosp., L.P. v. Williams,
 371 S.W.3d 171 (Tex. 2012) ...................................................................................8
W.B.M. Mgmt. Co. v. Flores,
 No. 07-14-00008-CV, 2014 WL 1691362 –6 (Tex. App.—
 Amarillo Apr. 25, 2014, no pet.) .................................................................... 13, 23
Wood v. Tice,
 988 S.W.2d 829 (Tex. App.—San Antonio 1999, pet. denied) ..............................7



                                                        vi
Statutes

TEX. CIV. PRAC. REM. CODE § 74.351(a)-(c) .............................................................8
TEX. CIV. PRAC. REM. CODE § 74.351(b) .......................................................... 1, 6, 8
TEX. CIV. PRAC. REM. CODE § 74.351(l) ................................................................7, 9
TEX. CIV. PRAC. REM. CODE § 74.351(r)(6) ...............................................................9
TEX. REV. CIV. STAT. ANN. art. 4590i ..................................................................7, 30




                                                    vii
                              NO. 03-14-00726-CV


                   IN THE COURT OF APPEALS FOR THE
                        THIRD DISTRICT OF TEXAS


           TEXAS SAN MARCOS TREATMENT CENTER, L.P. d/b/a
                  SAN MARCOS TREATMENT CENTER
                             Appellant

                                       v.

                            VERONICA PAYTON
                                Appellee


                      On Appeal from Hays County, Texas,
                          428th Judicial District Court
                       Trial Court Case Number: 13-2658


                          BRIEF FOR APPELLANT


TO THE HONORABLE JUSTICES OF THE THIRD COURT OF APPEALS:

      Appellant Texas San Marcos Treatment Center, L.P. d/b/a San Marcos

Treatment Center (“San Marcos Treatment Center” or “Appellant”) files this

appeal from an order denying its motion to dismiss pursuant to section 74.351(b)

of the Texas Civil Practices and Remedies Code in Trial Court Case Number 13-

2658; Veronica Payton v. Texas San Marcos Treatment Center, L.P. d/b/a San

Marcos Treatment Center, in the 428th Judicial District Court of Hays County,

Texas, before the Honorable R. Bruce Boyer.
                         STATEMENT OF THE CASE
        Appellee Veronica Payton (“Ms. Payton” or “Appellee”) filed a health care

liability claim against Appellant, following the physical assault she experienced

by a patient on January 2, 2012. In her petition, Appellee has alleged San Marcos

Treatment Center failed to meet the standards of care with regard to patient care

and safety and the safety of employees resulting in the assault and her injuries. (CR

4–14). On January 27, 2014, Appellee served a report authored by William H.

Reid, M.D., M.P.H. (“Dr. Reid”). (CR 32-39, 89). Appellant timely objected to Dr.

Reid’s report because it failed to satisfy any of the expert report requirements

under Chapter 74. (CR 22-39). Appellee never served any new, supplemental or

amended reports. Following the expiration of the statutory deadline to serve expert

reports under Chapter 74, Appellant moved to dismiss Appellee’s claims in

conjunction with the previously filed objections to Dr. Reid’s report. (CR 90-91).

After a hearing on the matter, the trial court entered an order finding that Dr.

Reid’s report was adequate and denying Appellant’s motion to dismiss. (CR 118).

Appellant subsequently filed this interlocutory appeal from that order. (CR 119-

126).

                              ISSUES PRESENTED
        1.    Whether the trial court abused its discretion by finding Dr. Reid’s

report was adequate under Chapter 74 despite the report’s lack of sufficient



                                         2
specificity, use of vague generalizations, and conclusory opinions that do not link

the relevant facts to the conclusions.

      2.     Whether the trial court abused its discretion in denying Appellant’s

motion to dismiss pursuant to section 74.351 of the Texas Civil Practices and

Remedies Code because Dr. Reid’s report does not represent a “good faith” effort.

                             STATEMENT OF FACTS
      San Marcos Treatment Center is a facility licensed in the State of Texas to

provide behavioral health care and treatment to adolescent patients. (CR 5). In

2011, Ms. Payton was an employee of San Marcos Treatment Center. (CR 5). On

December 7, 2011, a patient was admitted to San Marcos Treatment Center and

was placed on the unit on which Ms. Payton worked. (Id.). Since the date of his

admission, the patient had been quiet and cooperative. (CR 7). However, on

January 2, 2011, the patient assaulted Ms. Payton while she escorted him from the

laundry room alone. (Id.).

      In her petition, Ms. Payton alleges San Marcos Treatment Center failed to

adequately staff for patient care and staff and patient safety; failed to provide

adequate training to staff; failed to provide staff with adequate notification of the

patient’s assaultive propensity; failed to meet the applicable standards by admitting

the patient or housing the patient without adequate containment and/or supervision;




                                         3
and failed to ameliorate and/or eliminate the risk of danger and protect patients

and/or staff. (CR 9-11).

      On January 27, 2014, Appellee served San Marcos Treatment Center with a

curriculum vitae and report from William H. Reid, M.D., M.P.H. dated December

16, 2013 (“Dr. Reid’s report”). (CR 32-89). Dr. Reid’s report is the only report

served by Appellee.

      As addressed more fully below, Dr. Reid’s report fails to include relevant

facts, if any at all, concerning the staffing on January 2, 2011, the education and

training provided to Ms. Payton and other health care staff, the information shared

with health care staff concerning the patient’s condition and propensities, factual

information concerning the admission process at San Marcos Treatment Center and

the admission of the patient and placement on the unit, the supervision and

monitoring provided, and efforts to reduce the risk of danger and protect patients

and/or staff. (CR 32–39).

      San Marcos Treatment Center timely objected to Dr. Reid’s report. (CR 22-

89). In its objections, San Marcos Treatment Center specified that Dr. Reid’s report

failed to identify the applicable standard of care, failed to identify the alleged acts

or omissions by San Marcos Treatment Center that amounted to a breach in the

applicable standard of care, and failed to explain the causal relationship between

each alleged breach and the injuries alleged. (Id.). Despite having knowledge of


                                          4
these objections since February 18, 2014, Appellee has never amended or

supplemented Dr. Reid’s report at any time.

      After the deadline for serving expert reports expired, San Marcos Treatment

Center filed its motion to dismiss in conjunction with the previous objections. (CR

90-91). On July 29, 2014, Appellee filed her response to San Marcos Treatment

Center’s objections and motion to dismiss arguing that Dr. Reid’s report was

sufficient and also moved for sanctions. (CR 92-107). On September 19, 2014, San

Marcos Treatment Center filed its reply to the response and its response to the

motion for sanctions. (CR 108-117). On September 22, 2014, the trial court held a

hearing on San Marcos Treatment Center’s objections and motion to dismiss. (RR

1–26).

      On October 30, 2014, the Honorable Judge R. Bruce Boyer issued a letter

ruling stating “Having taken the Motion to Exclude medical report under

advisement the Court is of the opinion that the motion is denied (over-ruled).” (CR

118). On November 19, 2014, San Marcos Treatment Center timely filed its notice

of appeal of the court’s order denying the motion to dismiss and this interlocutory

appeal ensued. (CR 119-126).

                      SUMMARY OF THE ARGUMENT
      The trial court abused its discretion in holding that Dr. Reid’s report was

adequate under Chapter 74 and in denying San Marcos Treatment Center’s motion


                                        5
to dismiss under Chapter 74. In his report, Dr. Reid fails to provide sufficient

specificity and instead relies on vague generalizations concerning the required

statutory elements.   Further, Dr. Reid also fails to link relevant facts to his

conclusions on any of the required elements of a Chapter 74 expert report. The

Texas Supreme Court holds that, when a report lacks any explanation linking the

expert’s conclusion to the relevant facts, a trial court abuses its discretion if it

denies the defendant’s motion to dismiss. Because of these deficiencies, Dr. Reid’s

report fails to identify the standard of care applicable to San Marcos Treatment

Center, fails to explain how San Marcos Treatment Center breached the standard of

care, and fails to explain the causal link between San Marcos Treatment Center’s

alleged breach and the injuries alleged by Appellee. Accordingly, Dr. Reid’s report

does not constitute a good faith effort to comply with the requirements of section

74.351, and the trial court erred in overruling the objections and denying San

Marcos Treatment Center’s motion to dismiss.

                         ARGUMENT & AUTHORITY

I.    STANDARD OF REVIEW
      A trial court’s ruling on a motion to dismiss for failure to comply with

section 74.351(b) of the Texas Civil Practice and Remedies Code is subject to

review for abuse of discretion. American Transitional Care Ctrs. of Tex., Inc. v.

Palacios, 46 S.W.3d 873, 875 (Tex. 2001). Chapter 74 imposes a mandatory duty



                                         6
on a trial court to grant a motion challenging the adequacy of an expert report if it

appears to the court that the report does not meet the statutory requirements.

Hebert v. Hopkins, 395 S.W.3d 884, 890 (Tex. App.—Austin 2013, no pet.) (citing

to TEX. CIV. PRAC. REM. CODE § 74.351(l)). If an expert report contains only

conclusions about the statutory elements in section 74.351, the trial court has “no

discretion but to conclude ... that the report does not represent a good-faith effort”

to satisfy the statute. Smith v. Wilson, 368 S.W.3d 574, 577 (Tex. App.—Austin

2012, no pet.) (citing Palacios, 46 S.W.3d at 877, 880).


II.   The Trial Court Abused Its Discretion When Finding Dr. Reid’s Report
      Satisfied The Requirements Of Chapter 74 And Denying Appellant’s
      Motion To Dismiss.
      A.     Legislative Intent Of Chapter 74.
      The Legislature enacted Article 4590i (now codified in Chapter 74),

including its expert reporting requirement, for the purpose of deterring frivolous

lawsuits against health care providers. TEX. REV. CIV. STAT. ANN. art. 4590i;

Palacios, 46 S.W.3d at 879 (citing Wood v. Tice, 988 S.W.2d 829, 830 (Tex.

App.—San Antonio 1999, pet. denied)). “The Legislature has determined that

failing to timely file an expert report, or filing a report that does not evidence a

good-faith effort to comply with the definition of an expert report, means that the

claim is either frivolous, or at best has been brought prematurely. This is exactly




                                          7
the type of conduct for which sanctions are appropriate.” Bogar v. Esparza, 257

S.W.3d 354, 371 (Tex. App.—Austin 2008, no pet.).

      As evidenced by this case, the purpose of deterring frivolous lawsuits is

effectively negated when a claimant serves an expert report that omits relevant

facts, lacks sufficient specificity and relies on vague statements, and reaches

conclusory opinions on the required elements of a Chapter 74 expert report.

      B.     Chapter 74’s Expert Report Requirements.
      Given the nature of Appellee’s claims against San Marcos Treatment Center,

her claims are health care liability claims and, therefore, are subject to and

governed by the provisions of Chapter 74, including the expert report

requirements. Texas West Oaks Hosp., L.P. v. Williams, 371 S.W.3d 171 (Tex.

2012); Psychiatric Solutions, Inc. v. Palit, 414 S.W.3d 724 (Tex. 2013).

      Chapter 74 requires that, when a claimant asserts a health care liability

claim, she must serve each defendant physician or health care provider with one or

more expert reports and curriculum vitae of each expert no later than the 120th day

after each defendant’s original answer is filed. See TEX. CIV. PRAC. REM. CODE §

74.351(a)-(c). Chapter 74 further provides that a failure to serve a report within

120 days mandates that the trial court dismiss the case and award attorneys’ fees

and costs. Id at § 74.351(b).




                                         8
      In order to comply with Chapter 74, an expert report must represent an

objective good faith effort to comply with the definition of an expert report under

Chapter 74. See TEX. CIV. PRAC. REM. CODE § 74.351(l). The good faith effort

standard requires the report to provide an adequate analysis for each of the

following elements of a health care liability claim: (1) the applicable standard of

care; (2) the manner in which the care rendered by the physician or health care

provider failed to meet the standard; and (3) the causal relationship between that

failure and the injury, harm or damages claimed. Id. at § 74.351(r)(6); Palacios, 46

S.W.3d at 879. The Texas Supreme Court holds that a report will not constitute a

good faith effort if it omits any of these statutory requirements. Jernigan v.

Langley, 195 S.W.3d 91, 94 (Tex. 2006). Further, in order to constitute a good

faith effort, the report must, at a minimum: (1) inform the defendant of the specific

conduct called into question; and (2) provide a basis for the trial court to conclude

the claims have merit. Palacios, 46 S.W.3d at 879.

      The Texas Supreme Court also holds that, while a report need not marshal

all of the plaintiff’s proof, it must include the expert’s opinion on each of the

elements identified in section 74.351. Palacios, 46 S.W.3d at 878. A report cannot

merely state the expert’s conclusions about the statutory elements. Id. at 879.

“Rather, the expert must explain the basis for his statements to link his conclusions

to the facts” and not merely state conclusions. Bowie Mem’l Hosp. v. Wright, 79


                                         9
S.W.3d 48, 52 (Tex. 2002) (quoting Earle v. Ratliff, 998 S.W.2d 882, 890 (Tex.

1999)). It is not enough that the expert report provides “insight” about the

plaintiff’s claims. Id. “A report that merely states the expert’s conclusions about

the standard or care, breach, and causation does not fulfill the two purposes of a

good-faith effort.” Hebert v. Hopkins, 395 S.W.3d 884, 890 (Tex. App.—Austin

2013, no pet.) (quoting Jelinek v. Casas, 328 S.W. 3d 526, 539 (Tex. 2010)).

      Whether a defendant healthcare provider breached its duty cannot be

determined absent specific information about what the defendant should have done

differently. Russ v. Titus Hosp. Dist., 128 S.W.3d 332, 341-42 (Tex. App. –

Texarkana 2004, pet denied) (quoting Palacios, 46 S.W.3d at 880)). In other

words, one must be able to determine from the report what was required by the

standard of care, which requires “specific information about what the defendant

should have done differently”. Texarkana Nursing & Healthcare Center, LLC v.

Lyle, 388 S.W.3d 314 (Tex. App. – Texarkana, 2012) (quoting Palacios, 46

S.W.3d at 880)). Moreover, the standard of care is defined by what an ordinarily

prudent health-care provider would have done under the same or similar

circumstances. McKenna Memorial Hosp., Inc. v. Quinney, No. 03-06-00119-CV,

2006 WL 3246524, *4 (Tex. App. – Austin, Nov. 10, 2006, no pet. h.) (mem. op.)

(citing to Palacios, 46 S.W.3d at 880; Strom v. Memorial Hermann Hosp. Sys., 110

S.W.3d 216, 222 (Tex. App. – Houston [1st Dist.] 2003, pet. denied)). Identifying


                                        10
the standard of care is critical because whether a defendant breached its duty

cannot be determined absent specific information about what the defendant should

have done differently. See id. (citing to Bowie Mem’l Hosp. v. Wright, 79 S.W.3d

48, 53 (Tex. 2002) (per curium); Russ, 128 S.W.3d at 343).

      Additionally, an expert cannot simply opine that the breach caused the injury

because such a brief statement would fail to satisfy the second element of Palacios

and does not provide the trial court with any reasonable basis to conclude the

lawsuit has merit. Jelinek, 328 S.W. 3d at 539. Without any explanation tying the

conclusion to the facts, an expert’s conclusion that one event caused another differs

little from an ipse dixit, which the Supreme Court has consistently criticized. Id.

Rather, the report must explain how and why the breach caused the injury based on

the facts presented. Id. at 539-40. Further, the report must include sufficient detail

regarding how the breach caused the plaintiff’s injuries to allow the trial court to

determine if the claim has merit. Id. at 540.

      Importantly, the only information relevant to determining whether a report

complies with the statute is “within the four corners of the document.” Palacios, 46

S.W.3d at 878. “This requirement precludes a court from filling gaps in a report by

drawing inferences or guessing as to what the expert likely meant or intended.”

Austin Heart, P.A. v. Webb, 228 S.W.3d 276, 279 (Tex. App.—Austin 2007, no

pet.) (citing Bowie Mem’l, 79 S.W.3d at 53; Gray v. CHCA Bayshore L.P., 189


                                         11
S.W.3d 855, 859 (Tex. App.—Houston [1st Dist.] 2006, no pet.)). As this Court

recognized, “neither the trial court nor this Court may infer additional opinions or

underlying facts to fill in gaps that the report itself leaves open.” Hebert, 395

S.W.3d at 890.

      C.     Dr. Reid’s Report Does Not Constitute A Good Faith Effort to
             Comply With Section 74.351.
      In addition to Dr. Reid’s failure to provide any facts supporting his

conclusions as to each of the required statutory elements, Dr. Reid also failed to

make a good faith effort to comply with section 74.351’s requirements. For ease of

reference, San Marcos Treatment Center provides herein selected paragraphs from

Dr. Reid’s report that clearly evidence the lack of any factual foundation for his

conclusions, an absence of sufficient specificity in his opinions, and the

inadequacies of his report. As explained herein, the report fails to satisfy any of

the elements of a Chapter 74 expert report as to San Marcos Treatment Center and,

therefore, does not constitute an expert report under Chapter 74 and does not

represent a good faith effort.

             1.     Dr. Reid’s report provides no facts to support his
                    conclusions and thus does not constitute an expert report
                    under Chapter 74.

      Before addressing Dr. Reid’s specific failures to satisfy the statutory

elements of a Chapter 74 expert report, it is important to note that Dr. Reid’s report

provides no relevant factual information in support of his opinions as to each

                                         12
required element. (CR 32-39). While, Dr. Reid provides a list of items he

reviewed, he wholly fails to provide the details of any “factual” information he

gleaned from his review of the materials as they may relate to his opinions

concerning the required statutory elements. (Id.). It is well established that an

expert must link his conclusions to the facts in order satisfy Chapter 74’s expert

report requirement. Recently, the Texas Supreme Court held in Jelinek v. Casas

that, when the report in question lacked any explanation linking the expert’s

conclusion to the relevant facts, the trial court abused its discretion in denying the

defendant’s motion to dismiss and the court of appeals erred by affirming that

ruling. 328 S.W.3d at 540 (citing Bowie Mem’l, 79 S.W.3d at 52).

      Several Texas appellate courts have reached the same conclusion. The

appellate courts recognize that an expert’s failure to provide any facts in the report

to support his or her conclusions on standard of care, breach, and causation

prevents the trial court from concluding the plaintiff’s claims have merit. See

Taylor v. Fossett, 320 S.W.3d 570, 578 (Tex. App.—Dallas 2010, no pet.) (finding

trial court abused its discretion in denying physician’s motion to dismiss since

expert report provided only conclusory opinions without supporting facts); W.B.M.

Mgmt. Co. v. Flores, No. 07-14-00008-CV, 2014 WL 1691362, *5–6 (Tex. App.—

Amarillo Apr. 25, 2014, no pet.) (holding that expert report was not a good faith

effort to provide a fair summary of his opinions and warranted dismissal since


                                         13
expert failed to provide facts to support his conclusion); Shenoy v. Jean, No. 01-

10-01116-CV, 2011 WL 6938538, *6 (Tex. App.—Houston [1st Dist.] Dec. 29,

2011, pet. denied) (holding that “an expert report that merely asserts that a

defendant physician’s breach caused the plaintiff’s injury without providing a

factual basis does not provide the trial court with the information necessary to

evaluate the merits of the plaintiff’s claim.”).

      The failure to set forth facts supporting an expert’s opinions on the standard

of care, breach, and causation is not an argument based on “semantics.”

Kuykendall v. Dragun, No. 11-05-00230-CV, 2006 WL 728068, *3 (Tex. App.—

Eastland Mar. 23, 2006, pet. denied). Rather, the facts are “vital” in determining

whether the plaintiff’s claims have merit. Id.

      Dr. Reid’s report omits key facts supporting his conclusions. Instead, Dr.

Reid’s report simply offers conclusory opinions about the standard of care, breach,

and causation. For example, Dr. Reid plainly acknowledges from the outset of his

report that “not all the expected records have been available for review, and I have

not yet examined Ms. Payton.”          (CR 32).    Dr. Reid further acknowledges,

“Specific staffing data from SMTC is no yet available to me.”              (CR 33).

Nonetheless, Dr. Reid offers conclusory opinions relating to these very matters (i.e.

adequacy of staffing) while omitting key relevant factual information.




                                           14
       Because Dr. Reid failed to provide any relevant facts to support his

conclusions, his report does not constitute a good faith effort to comply with

section 74.351 of the Texas Civil Practices and Remedies Code. Given the lack of

facts to support Dr. Reid’s conclusion, the trial court abused its discretion in

finding the report was sufficient. See Smith, 368 S.W.3d at 577. 1 As a result, San

Marcos Treatment Center requests that the Court reverse the trial court’s order.

               2.      Dr. Reid fails to identify the standard of care applicable to
                       San Marcos Treatment Center

       In his report, Dr. Reid fails to identify the standard of care applicable to San

Marcos Treatment Center. The standard of care for a health care provider or a

physician is what an ordinarily prudent health care provider or physician would do

under the same or similar circumstances. See Strom, 110 S.W.3d at 222.

Identifying the standard of care is “critical” because “[w]hether a defendant

breached his or her duty to a patient cannot be determined absent specific

information about what the defendant should have done differently.” Palacios, 46

S.W.3d at 880. From Dr. Reid’s report, San Marcos Treatment Center cannot

determine what, specifically, was required or what it should have done differently.

       As explained above, a good faith report must, at a very minimum: (1) inform

the defendant of the specific conduct called into question; and (2) provide a basis

1
   Also, without the relevant facts, the trial court either misapplied the law regarding the
sufficiency of expert report or inferred additional underlying facts to fill in gaps that the report
itself left open. This amounts to an abuse of discretion. See Hebert, 395 S.W.3d at 890.

                                                15
for the trial court to conclude the claims have merit. Palacios, 46 S.W.3d at 879. A

report cannot merely state the expert’s conclusions about the statutory elements. Id.

at 879. “Rather, the expert must explain the basis of his statements to link his

conclusions to the facts.” Bowie, 79 S.W.3d at 52. As this Court recognizes, “[a]

report that merely states the expert’s conclusions about the standard or care,

breach, and causation does not fulfill the two purposes of a good-faith effort.”

Hebert, 395 S.W.3d at 890.

      In his report, Dr. Reid provides the following conclusory opinions

concerning the applicable standard of care.

      Ms. Payton was an employee of San Marcos Treatment Center
      (hereafter “SMTC”) at the time of the incident that gave rise to her
      alleged damages (January 2, 2012; see below)

      That employer (SMTC), by itself and through its various parts or
      assigns, had duties to its unit employee Ms. Payton, which included,
      but may not have been limited to, (a) adequate staffing and staff
      support in her work environment (sufficient to meet reasonable levels
      of staff safety, as well as patient safety and care), (b) adequate
      training with regard to recognizing and managing situations that
      might arise in which her safety could be compromised, (c) adequate
      notification of work situations or persons in her work environment
      that could reasonably present a danger to her or others, (d) adequate
      care in avoiding or declining admission of patients/clients who are
      inappropriate for the unit on which she worked, and (e) elimination or
      amelioration of reasonably known risks to her and other staff or
      patients created by patients/clients who are admitted to and housed on
      the unit on which she worked.

      (CR 32-33). However, Dr. Reid fails to set forth any facts in support of his

conclusory opinions concerning the applicable standards of care. Dr. Reid also

                                         16
fails to sufficiently specify the standard of care applicable to San Marcos

Treatment Center given the factual circumstances of this case.          Dr. Reid’s

conclusory opinions about the standards of care are nothing more than vague,

generalized statements that lack any factual basis and the required specificity. Dr.

Reid’s vague, generalized statements concerning the standards of care mirror those

found in other reports provided in assault cases, wherein those reports were found

to be deficient. E.g. Texarkana Nursing & Healthcare Center, LLC v. Lyle, 388

S.W.3d 314 (Tex. App. – Texarkana, 2012); Baylor All Saints Medical Center v.

Martin, 340 S.W.3d 529 (Tex. App.-Fort Worth 2011, no pet.); Kingwood Pines

Hospital, LLC, v. Gomez, 362 S.W.3d 740 (Tex. App.-Houston [14th Dist.] 2011,

no pet.).

      In Baylor All Saints Medical Center, the expert report contained similar

vague, generalized statements concerning the standard of care, which, according to

the report, required the hospital employ “a sufficient number of security personnel”

and to ensure the “training of staff” to prevent unauthorized persons from

committing assaults, and that such standards must be “adequately implemented.”

Baylor All Saints Medical Center, 340 S.W.3d at 534. The report was found to be

inadequate because such mere conclusions about the standard of care are

insufficient, because the standard of care is what an ordinary prudent hospital

would do under the same or similar circumstances, and that even a fair summary


                                        17
must set out what care was expected. See id. The report in Baylor All Saints

Medical Center failed to satisfy the statutory requirements because, among other

things, it did not identify the number of security personnel required or specify the

type of training staff should have received and, therefore, lacked sufficient

specificity. See id. (citing to Palacios, 46 S.W.3d at 880). Dr. Reid’s report

suffers from the same nature of deficiencies.

      Also, in Kingwood Pines Hosp., LLC, the two reports examined contained

similar conclusory statements regarding the provision of a secure environment, the

supervision of patients, and the prevention of harm. Those reports were also found

to be deficient because they failed to indicate what an ordinarily prudent health

care provider would do under the same of similar circumstances and, therefore, the

reports did not meet the requirements of Chapter 74. Kingwood Pines Hosp., LLC,

362 S.W.3d at 749. (citing to Palacios, 46 S.W.3d at 880). Dr. Reid’s report is

similarly deficient because the opinions expressed concerning the standard of care

are nothing more than the vague, generalized statements disapproved of in the

aforementioned cases.

      Because Dr. Reid’s report is no different than those provided in Baylor All

Saints Medical Center and Kingwood Pines Hosp., LLC it effectively provides no

standard of care opinion with regard to San Marcos Treatment Center, and




                                        18
therefore, the trial court abused its discretion in denying Appellant’s motion to

dismiss.

             3.       Dr. Reid fails to explain how San Marcos Treatment Center
                      breached the applicable standard of care.

      Dr. Reid’s report also fails to explain how San Marcos Treatment Center

allegedly breached the applicable standards of care.      The need for sufficient

specificity as to the applicable standard of care becomes more obvious when

considering the alleged breaches. In other words, without a sufficiently specific

standard of care identified any alleged breach simply cannot be determined.

      In what appears to be Dr. Reid’s opinions concerning the alleged breaches,

he states, “The information available to me indicates that evening shift was

inadequate on Ms. Payton’s unit on January 2, 2012.” (CR 33). However, this

statement is almost immediately followed by Dr. Reid’s admission, “Specific

staffing data from SMTC is not yet available to me.” (CR 33). The inconsistency

of these two statements reveals the lack of any connection between his conclusory

opinions and any facts. An expert report that merely asserts a breach without

providing a factual basis does not provide the trial court with the information

necessary to evaluate the merits of the plaintiff’s claim. Shenoy v. Jean, No. 01-

10-01116-CV, 2011 WL 6938538, *6 (Tex. App.—Houston [1st Dist.] Dec. 29,

2011, pet. denied).



                                        19
      The lack of any connection between Dr. Reid’s conclusions and relevant

facts, combined with vague, generalized statements concerning the standards of

care, renders all of Dr. Reid’s opinions regarding any alleged breach conclusory.

      Under the heading of “adequate training,” Dr. Reid’s states,

      Review of Ms. Payton’s SMTC personnel file and relevant portions of
      the SMTC Employee Handbook reveals no indication that Ms. Payton
      received any SMTC training regarding her safety in the workplace,
      and particularly none related to recognizing potentially dangerous
      patients, recognizing potentially assaultive patients, or protection
      herself from patient assault.

      (CR 33). However, because Dr. Reid’s report never provides sufficiently

specific information as to what “adequate training” is, nor does it describe how San

Marcos Treatment Center is to provide “adequate training” to its employees, any

alleged breach cannot be determined absent a conclusory opinion. Dr. Reid’s

statement regarding his review of Ms. Payton’s personnel file and the “relevant”

portions of the Employee Handbook also infers what materials should be present

within the files and handbook thereby requiring the court to fill in those gaps.

Because of the lack of sufficient specificity, Dr. Reid’s conclusory opinion as to

this alleged breach relies on inferences and requires the court to fill in the gaps (i.e.

what constitutes “adequate training” and how that is provided). However, a court

is precluded from filling gaps in a report by drawing inferences or guessing as to

what the expert likely meant or intended. Austin Heart, P.A. v. Webb, 228 S.W.3d

at 279 (citing Bowie Mem’l, 79 S.W.3d at 53; Gray v. CHCA Bayshore L.P., 189

                                           20
S.W.3d 855, 859 (Tex. App.—Houston [1st Dist.] 2006, no pet.)). As this Court

recognized, “neither the trial court nor this Court may infer additional opinions or

underlying facts to fill in gaps that the report itself leaves open. Hebert, 395

S.W.3d at 890.

       Notably, while he reviewed her personnel file, Dr. Reid omits many relevant

facts, such as the fact that Ms. Payton had been employed at San Marcos

Treatment Center for over five (5) years, since June of 2006, had worked with

many other patients like this patient, and had received throughout those years

annual education and training through the Crisis Prevention Institute (CPI) and

other programs on how to observe, identify and manage difficult and challenging

behavior, utilize verbal de-escalation skills, engage in a physical restraint when

necessary, and more. 2

       Again, in Kingwood Pines Hosp., LLC, the Court explained that whether a

defendant breached the standard of care cannot be determined without specific

information about what the defendant should have done differently. 362 S.W.3d at

750 (citing to Palacios, 46, S.W.3d at 880). Dr. Reid provides no information as to

what San Marcos Treatment Center should have done differently as to training.




2
 Appellant includes this information not for the purpose of determining the sufficiency of Dr.
Reid’s report but to illustrate why an expert is required to provide factual support so that the trial
court may assess whether the claims have merit.

                                                 21
      The same lack of sufficient specificity and a failure to connect his

conclusions to relevant facts renders his additional opinions as to the alleged

breaches concerning notification, the admission and placement of patients, and

patient supervision and monitoring conclusory as well. Dr. Reid never provides

sufficiently specific information as to what San Marcos Treatment Center’s

methods of informing its staff about patients’ behaviors were or should have been,

how/when the admission of a patient is determined to be appropriate, or even what

constitutes “adequate” containment, supervision, and/or monitoring.       Dr. Reid

relies on ipse dixit and his generalized statements alone to support his conclusory

opinions as to breach and, therefore, his report fails to satisfy the requirements

under Chapter 74.

      Dr. Reid’s opinions as to breach are not linked to relevant facts.        For

example, Dr. Reid’s conclusion that Mr. Simon “should have been physically

contained and/or supervised by more than one, female, staff person” (CR 34)

conflicts with his prior admission that “specific staffing data from SMTC is not yet

available to me” (CR 33) revealing a lack of factual foundation for his opinion.

Dr. Reid also states, “Many, perhaps all, other patients on the boys’ unit were

apparently much younger and smaller than Mr. Simon.” (CR 34). However, Dr.

Reid likewise has not had any access to the other boys’ medical records to reach

such a conclusion. Dr. Reid’s conclusions, combined with his deliberate omissions


                                        22
of relevant facts, should be precluded because they are evidence of the

insufficiencies of his report.   Dr. Reid’s conclusory statements are careful and

calculated attempts to mischaracterize the facts by excluding vital information. As

explained earlier, Dr. Reid’s failure to provide facts to support his opinion

mandates dismissal. Jelinek, 328 S.W.3d at 540; Taylor, 320 S.W.3d at 578;

Flores, 2014 WL 1691362, *5–6.

       Because Dr. Reid’s report lacks sufficiently specific information based on

relevant facts, the trial court could not have determined whether Appellee’s claims

have merit. Rather, in order to conclude the report was sufficient as to San Marcos

Treatment Center, the trial court needed to draw inferences and fill in gaps with

regard to both the standard of care and breach and, therefore, the trial court abused

its discretion in drawing inferences and filling in gaps to find the report was

sufficient.

              4.   Dr. Reid’s report fails to explain how an alleged breach in
                   the standard of care by San Marcos Treatment Center
                   caused Appellee’s injuries.

       Dr. Reid’s report completely fails to explain how an alleged breach in the

standard of care by San Marcos Treatment Center caused the assault and

Appellee’s injuries. As the Supreme Court has recognized, “[a]n expert cannot

simply opine that the breach caused the injury. … Instead, the expert must go

further and explain, to a reasonable degree, how and why the breach caused the


                                         23
injury based on the facts presented.” Jelinek, 328 S.W.3d at 539–40. (emphasis

added). Without this explanation, the trial court cannot conclude the claims have

merit. Id.; see also Smith, 368 S.W.3d at 578 (Austin Court reversing trial court’s

denial of motion to dismiss after finding report failed to provide facts explaining

the causal link between alleged breach and the occurrence or injury); Kocurek v.

Colby, No. 03-13-00057-CV, 2014 WL 4179454, *4–5 (Tex. App.—Austin Aug.

22, 2014, no pet.). Here, Dr. Reid’s report fails to establish a causal link between

an alleged breach in the standard of care by San Marcos Treatment Center and

Appellee’s alleged injuries.

      Dr. Reid’s opinions under his “Damage and Causation” heading commence

with identifying Ms. Payton’s injuries as a result of the assault. (CR 34-35). Dr.

Reid then offers, “My psychiatry specialty and that fact that I have not examined

Ms. Payton preclude detailed opinions about the extent of physical damage.” (CR

34). This statement is tantamount to an admission of a lack of qualification to

opine on her physical injuries. Nonetheless, Dr. Reid cannot resist opining (again

without any factual support) that “significant damage existed, and may still exist.”

(CR 34). Dr. Reid’s bald assertions without factual support, in the face of an

admission that he is not qualified to opine on her physical injuries, cannot

constitute a good faith effort under Chapter 74’s expert report requirements.




                                         24
      Further, as to causation, Dr. Reid states, “But for one or more of the

breaches by SMTC, summarized in items 2-6, it is more likely than not that the

January 2, 2012, assault would not have occurred, and thus the above damages to

Ms. Payton, would not have occurred.” (CR 035). However, Dr. Reid’s causation

opinion is purely conclusory because it fails to explain how and why the alleged

failures by San Marcos Treatment Center resulted in the assault. Kingwood Pines

Hosp., LLC, 362 S.W.3d at 750.

      In another assault case, it was held that “if the report is not sufficiently

detailed in its statement of the standard of care and breach, and thus, fails to advise

the defendant of what it should have done differently to provide a safe and secure

environment, then it logically follows that causation should be described in terms

of the specific shortcomings that created a situation in which assault could occur.”

Texarkana Nursing & Healthcare Center, LLC, 388 S.W.3d at 323. As explained

in Section II(C)(1)-(3), Dr. Reid’s report is not sufficiently detailed in its

statements of the standard of care and breach. Further, Dr. Reid’s opinions on

causation fail to describe the specific shortcomings, if any, of San Marcos

Treatment Center that created the situation in which this assault occurred. Rather,

Dr. Reid offers causation opinions focused on what Ms. Payton would have done

in a variety of scenarios. (CR 35-36).




                                          25
      Further, as this Court recently noted in Smith v. Wilson, an expert must

explain, with supporting facts, how the defendant’s alleged breach in the standard

of care caused the injury in question. 368 S.W.3d at 577–78. A conclusory

statement on causation is wholly insufficient. Id. Dr. Reid’s report offers no

explanation, with supporting facts, how San Marcos Treatment Center’s alleged

breach caused Ms. Payton’s injuries, or for that matter, caused her to decide to go

to the laundry room with the patient alone.

      Dr. Reid’s earlier admission that specific staffing data was unavailable to

him (CR 33) undermines his conclusory statement that “[i]f staffing had been

adequate (that is, at least one more capable staff person on the 17-patient unit), Ms.

Payton would not have believed it necessary to accompany Leroy Simon to the

laundry alone. (See her statement.) (CR 35) because it, like many other statements

in his report, lacks any factual support. Likewise, his opinion that “[i]f there had

been adequate male staffing on the boys’ unit, Ms. Payton would not have been in

the position of being a sole female vulnerable to attack by a physically stronger,

younger male” (CR 35) is similarly without factual support when contrasted with

his admission that he has no staffing data (CR 33) and, therefore, it too is entirely

conclusory. Furthermore, while he refers to a statement of Ms. Payton, nowhere in

his report does he provide any details of her statement. Consequently, Dr. Reid’s




                                         26
report relies on inference and forces the court to fill in the gaps as to her statement,

which is specifically precluded. Austin Heart, P.A., 228 S.W.3d at 279.

      Also, Dr. Reid opines Ms. Payton would not have escorted him to the

laundry room alone if she had received “adequate training” and been “adequately

informed” (CR 35). However, as explained in Section II(C)(1)-(3), neither of these

standards or breaches are sufficiently specific so as to apprise San Marcos

Treatment Center as to what an ordinarily prudent health-care provider would have

done under the same or similar circumstances nor do they provide specific

information about what it should have done differently.           McKenna Memorial

Hosp., Inc. v. Quinney, No. 03-06-00119-CV, 2006 WL 3246524, *4. Further, Dr.

Reid never describes how “adequate staffing”, “adequate training”, or “adequate

notification”, would have prevented the assault. An expert report must explain

how taking the suggested measures would have prevented the particular injuries

complained of. Smith, 368 S.W.3d at 577-578.

      Dr. Reid’s additional causation opinion that had the patient not been

admitted and housed on Ms. Payton’s boys’ unit she would not have been assaulted

(CR 35) not only suffers from the same lack of factual support but clearly does not

represent a good faith effort to comply with the requirements of an expert report

under Chapter 74. Dr. Reid’s report fails to describe in any detail why admission

of this patient to San Marcos Treatment Center was inappropriate and how the


                                          27
selection of where he was placed was a breach. Dr. Reid’s conclusory opinion that

the patient should not have been admitted simply demonstrates his willingness to

embrace the many “what if’s” (i.e. what if Ms. Payton had not worked that day)

and provides another example of how his report fails to rely on relevant factual

information or provide sufficient specificity to satisfy the requirements of an expert

report under Chapter 74.

      Dr. Reid’s final causation opinion that had the patient been placed on

“adequate safety precautions” Ms. Payton would not have escorted him to the

laundry alone is akin to those opinions offered in other reports in assault causes

where such bare assertions were made and found to be inadequate because they

failed to explain what “adequate safety precautions” are. Such bare assertions fail

to meet the requirements under Chapter 74. E.g. Texarkana Nursing & Healthcare

Center, LLC v. Lyle, 388 S.W.3d 314 (Tex. App. – Texarkana, 2012); Baylor All

Saints Medical Center v. Martin, 340 S.W.3d 529 (Tex. App.-Fort Worth 2011, no

pet.); Kingwood Pines Hospital, LLC, v. Gomez, 362 S.W.3d 740 (Tex. App.-

Houston [14th Dist.] 2011, no pet.). Conclusory statements on causation, like those

offered in Dr. Reid’s report, will not satisfy Chapter 74’s expert report

requirements. See Palacios, 46 S.W.3d at 875; Regent Care Ctr. of San Antonio II,

Ltd. P'ship v. Hargrave, 300 S.W.3d 343, 346 (Tex. App.—San Antonio 2009, pet.

denied).


                                         28
      Since Dr. Reid only offered conclusory opinions concerning the statutory

elements required of an expert report, the trial court had “no discretion but to

conclude ... that the report does not represent a good-faith effort” to satisfy the

statute. Smith, 368 S.W.3d at 577. Nonetheless, the trial court in this case, “Having

taken the Motion to Exclude medical report under advisement [was] of the opinion

that the motion [was] denied (over-ruled)”. (CR 118). The trial court’s ruling

amounted to an abuse of discretion. Smith, 368 S.W.3d at 577. San Marcos

Treatment Center requests that this Court reverse the trial court’s ruling and

remand with an order to grant Appellant’s motion to dismiss.

      D.     By Serving A Report Like Dr. Reid’s, Appellee Effectively
             Negates The Purpose Of Chapter 74’s Expert Report
             Requirement.


      As stated above, the purpose of section 74.351 is to prevent the filing of

frivolous lawsuits against physicians and health care providers in Texas. One of the

central purposes of the expert report is to provide a basis for the trial court to

conclude the claims have merit. Palacios, 46 S.W.3d at 879. Stated otherwise, the

report should let the trial court know the claims are not frivolous. When an expert

report omits relevant facts, or simply has no factual support, and instead provides

only conclusory opinions on the three elements of a health care liability claim, a

plaintiff effectively negates the purpose of the expert report requirement and

circumvents section 74.351.

                                         29
      This is precisely what Appellee has done in this case. Dr. Reid’s report fails

to provide any relevant facts in hopes that his vague, generalized statements and

conclusory opinions will be sufficient to circumvent the requirements of Chapter

74. If the trial court’s decision is upheld, the purposes behind Chapter 74 will

effectively be nullified and claimants would likely use this Court’s decision to file

frivolous claims against physicians and health care providers by simply ignoring or

omitting relevant facts in favor of vague, generalized statements and conclusory

opinions. This is certainly not what the Legislature intended when enacting

Chapter 74 (formerly article 4590i).

                           CONCLUSION & PRAYER
      In conclusion, Dr. Reid’s report suffers from a number of fatal flaws. Dr.

Reid provides absolutely no facts to support his conclusions on the applicable

standard of care, breach, and causation. Dr. Reid also fails to inform San Marcos

Treatment Center of the specific conduct called into question so as to notify the

trial court of what San Marcos Treatment Center should have done differently.

Moreover, Dr. Reid’s report fails to identify the applicable standard of care, fails to

describe any act or omission by San Marcos Treatment Center that amounted to a

breach in that standard of care, and fails to show how any alleged breaches by San

Marcos Treatment Center caused Appellee’s injuries. To the extent Dr. Reid does

offer opinions on any of these elements, he only offers baseless conclusions that do


                                          30
not provide sufficiently specific information as to the required statutory elements

in connection with any relevant facts. Accordingly, the trial court abused its

discretion when holding that Dr. Reid’s report was “adequate” under Chapter 74

and denying San Marcos Treatment Center’s motion to dismiss.

      WHEREFORE, PREMISES CONSIDERED, San Marcos Treatment Center

respectfully requests that this Court reverse the trial court’s order denying

Appellant’s Chapter 74 Motion to Dismiss and remand to the trial court with an

order that all claims and causes of action asserted by Appellee against San Marcos

Treatment Center be dismissed with prejudice and that San Marcos Treatment

Center be awarded its reasonably attorneys’ fees and costs as allowed by Chapter

74 of the Texas Civil Practices and Remedies Code. San Marcos Treatment Center

further prays for such other relief that it may be justly entitled.

                                         Respectfully submitted,

                                         SERPE, JONES, ANDREWS,
                                         CALLENDER & BELL, PLLC


                                         By:   /s/ Ryan L. Clement
                                               Ryan L. Clement
                                               Texas Bar No. 24036371
                                               rclement@serpejones.com
                                         America Tower
                                         2929 Allen Parkway, Suite 1600
                                         Houston, Texas 77019
                                         Telephone: (713) 452-4400
                                         Facsimile: (713) 452-4499


                                           31
                                      Attorneys for Appellant,
                                      Texas San Marcos Treatment Center,
                                      L.P. d/b/a San Marcos Treatment Center

                        CERTIFICATE OF COMPLIANCE


      I hereby certify that the foregoing Brief for Appellant is computer generated,
has been prepared in a conventional typeface no smaller than 14-point for text and
12-point for footnotes, contains 6,759 words according to word count function of
the computer program used to prepare this Brief, excluding any parts exempted by
TEX. R. APP. P. 9.4(i)(1), and otherwise complies with Texas Rule of Appellate
Procedure 9.4.



                                      /s/ Ryan L. Clement
                                      Ryan L. Clement


                           CERTIFICATE OF SERVICE
      I hereby certify that a true and correct copy of the above and foregoing
instrument has been forwarded to all known counsel of record in accordance with
the Texas Rules of Appellate Procedure on this the 23rd day of January, 2015.

           Adam S. Ward
           Aaron Allison
           Allison & Ward
           2001 N. Lamar Blvd.
           Austin, Texas 78705-4907




                                      /s/ Ryan L. Clement
                                      Ryan L. Clement



559152v1




                                        32
  APPENDIX A

TRIAL COURT ORDER




       A
APPENDIX B

  CASES




    B
American Transitional Care Centers of Texas, Inc. v. Palacios, 46 S.W.3d 873 (2001)
44 Tex. Sup. Ct. J. 720


                                                                 medical-malpractice claims against American Transitional
                    46 S.W.3d 873                                Care Centers, Inc., d/b/a American Transitional Hospital,
                Supreme Court of Texas.                          because it determined that the Palacioses’ expert report
                                                                 did not show a good-faith effort to provide a fair summary
  AMERICAN TRANSITIONAL CARE CENTERS                             of the expert’s opinions about the standard of care,
   OF TEXAS, INC. d/b/a American Transitional                    breach, and causation, as required by section 13.01. See
                Hospital, Petitioner,                            id. § 13.01(d), (e), (l), (r)(6). The court of appeals, after
                         v.                                      evaluating the trial court’s decision as it would a
      Teofilo PALACIOS and Maria Palacios,                       summary-judgment decision, reversed, holding that the
  individually and a/n/f of Gloria Janeth Palacios               report did meet the statutory requirements. 4 S.W.3d 857,
    and Rocio Daniela Palacios, minors, Maria                    860.
 Angelica Palacios, and Sentry Insurance, a mutual
              company, Respondents.                              We hold that a trial court’s decision to dismiss a case
                                                                 under section 13.01(e) is reviewed for abuse of discretion.
 No. 99–1311. | Argued Dec. 6, 2000. | Decided May               We further hold that to constitute a good-faith effort to
  10, 2001. | Rehearing Overruled June 28, 2001.                 provide a fair summary of an expert’s opinions under
                                                                 section 13.01(l ), an expert report must discuss the
Medical malpractice action was brought against hospital          standard of care, breach, and causation with sufficient
to recover for injuries patient allegedly suffered in fall at    specificity to inform the defendant of the conduct the
hospital. The 280th District Court, Harris County, Tony          plaintiff has called into question and to provide a basis for
Lindsay, J., dismissed case for failure to file expert report,   the trial court to conclude that the claims have merit. In
as required by Medical Liability and Insurance                   this case, the trial court did not abuse its discretion in
Improvement Act. Patient appealed. The Houston Court             concluding that the challenged report does not meet the
of Appeals, First District, reversed and remanded, 4             statutory requirements and in dismissing with prejudice
S.W.3d 857. On petition for review, the Supreme Court,           the claims against American Transitional. Accordingly,
Hankinson, J., held that: (1) trial court’s determination        we reverse the court of appeals’ judgment and dismiss
about adequacy of expert report under Act is reviewed            with prejudice the Palacioses’ claims.
under abuse-of-discretion standard, and (2) expert’s report
did not provide fair summary of standard of care and how         Teofilo Palacios suffered brain damage and other severe
it was breached.                                                 injuries following a two-story fall at work. After almost a
                                                                 year in an intensive rehabilitation program, he was
Court of Appeals’ judgment reversed.                             transferred to American Transitional Hospital for further
                                                                 rehabilitation. Although Palacios at that time was able to
                                                                 *876 communicate with others and respond to simple
Attorneys and Law Firms                                          commands, he required assistance with most daily tasks.
                                                                 In addition, due to the severity of his brain damage,
*875 Matthew T. McCracken, John C. Marshall, James C.            Palacios’ physicians prescribed bed restraints for him.
Marrow, Dee L. Dawson, Marshall & McCraken,                      Nevertheless, while a patient at American Transitional,
Houston, for Petitioner.                                         Palacios fell from his bed and required additional medical
                                                                 care for his injuries. His family claims that this fall caused
D. John Leger, Leger & Coplen, Levon G. Hovnatanian,
                                                                 him to sustain further brain injury, which impaired his
Martin Disiere & Jefferson, Houston, Mickey C. Shyrock,
                                                                 ability to communicate with others and to assist them in
Law Office of Mickey C. Shyrock, Athens, for
                                                                 his care.
Respondents.

Opinion                                                          Palacios and his family sued American Transitional and
                                                                 the treating doctors, respectively, for negligently failing to
Justice HANKINSON delivered the opinion of the Court.            prevent the fall and negligently treating him after the fall.
                                                                 After ninety days passed from the date the Palacioses
                                                                 filed suit, American Transitional, along with the other
In this medical-malpractice case we determine the                defendants, moved to require the Palacioses to file a
standards for reviewing an expert report under section           $7,500 cost bond, as required by section 13.01(b) of the
13.01 of the Medical Liability and Insurance                     Medical Liability and Insurance Improvement Act. See
Improvement Act. TEX.REV.CIV. STAT. ANN.. art.                   TEX.REV.CIV. STAT. ANN.. art. 4590i, § 13.01(b)
4590i, § 13.01. The trial court dismissed the Palacioses’        (authorizing a trial court to order a plaintiff to file a
                © 2015 Thomson Reuters. No claim to original U.S. Government Works.                                      1
American Transitional Care Centers of Texas, Inc. v. Palacios, 46 S.W.3d 873 (2001)
44 Tex. Sup. Ct. J. 720

$7,500 cost bond for each defendant physician or health-        opinions early in the litigation an obvious place to start in
care provider if the plaintiff has not complied with the        attempting to reduce frivolous lawsuits. See HOUSE
expert-report or $5,000 cost-bond requirement in section        COMM. ON CIV. PRAC., BILL ANALYSIS, Tex. H.B.
13.01(a)); id. § 13.01(a) (requiring the plaintiff to file      971, 74th Leg., R.S. (1995).
either an expert report or a $5,000 cost bond for each
defendant physician or health-care provider within ninety       Accordingly, in section 13.01, the Legislature requires
days of filing suit). The trial court granted the motion, and   medical-malpractice plaintiffs, within 180 days of filing
the Palacioses filed a cost bond for each defendant.            suit, either to provide each defendant physician and
                                                                health-care provider with an expert report and the expert’s
After 180 days passed from the date the Palacioses filed        curriculum vitae, or to nonsuit the claims. TEX.REV.CIV.
suit, American Transitional moved to dismiss the case           STAT. ANN.. art. 4590i, § 13.01(d). If the plaintiff fails
against it because the Palacioses did not file an expert        within the time allowed either to provide the expert
report and curriculum vitae, or nonsuit the claims against      reports and curriculum vitae, or to nonsuit the case, the
American Transitional, as section 13.01(d) of the Act           trial court must sanction the plaintiff by dismissing the
requires. Id. § 13.01(d), (e). The Palacioses moved for an      case with prejudice, awarding costs and attorney’s fees to
extension of time to file the report, which the trial court     the defendant, and ordering the forfeiture of any
granted. See id. § 13.01(f), (g). The Palacioses then filed a   applicable cost bond necessary to pay that award. Id. §
report prepared by Dr. Catherine F. Bontke, who treated         13.01(e). If the plaintiff does timely file a report, the
Palacios at the first rehabilitation hospital. American         defendant may move to challenge the adequacy of the
Transitional again moved to dismiss under section               report, and the trial court must grant the motion if “it
13.01(e), claiming that the report did not satisfy the          appears to the court ... that the report does not represent a
statutory requirements. See id. § 13.01(l), (r)(6). The trial   good faith effort to comply with the definition of an
court granted the motion, dismissed with prejudice the          expert report.” Id. § 13.01(l). The statute defines an expert
claims against American Transitional, and severed those         report as “a written report by an expert that provides a fair
claims to make the judgment against American                    summary of the expert’s opinions ... regarding applicable
Transitional final. See id. § 13.01(e).                         standards of care, the manner in which the care rendered
                                                                ... failed to meet the standards, and the causal relationship
The Palacioses appealed, and with one justice dissenting,       between that failure and the injury, harm, or damages
the court of appeals reversed and remanded after using          claimed.” Id. § 13.01(r)(6). If a trial court determines that
summary-judgment review standards to evaluate the               an expert report does not meet these statutory
sufficiency of the expert report. 4 S.W.3d at 860. After        requirements and the time for filing a report has passed, it
indulging every reasonable inference in the Palacioses’         must then dismiss with prejudice the claims against the
favor and eliminating any deference to the trial court’s        defendant who has challenged the report. Id. § 13.01(e).
decision, the court of appeals concluded that the trial
court erred in dismissing the case because the Palacioses       American Transitional contends that a trial court’s
made a good-faith effort to provide a report that met the       determination about the adequacy of an expert report
requirements of section 13.01(r)(6). Id. at 862–63.             should be reviewed under an abuse-of-discretion standard.
American Transitional petitioned for review challenging         The Palacioses respond that whether a report meets the
both the standard of review applied by the court of             requirements of subsections 13.01(l) and (r)(6) is a
appeals and the sufficiency of the Palacioses’ report.          question of law. They suggest that a trial court’s decision
                                                                on the adequacy of a report should be reviewed as a court
[1]
    Texas courts have long recognized the necessity of          would review a summary-judgment decision: that is, by
expert testimony in medical-malpractice cases. E.g., Hart       indulging every reasonable inference and resolving any
v. Van Zandt, 399 S.W.2d 791, 792 (Tex.1965); Bowles v.         doubts in the nonmovant’s favor, and eliminating any
Bourdon, 148 Tex. 1, 219 S.W.2d 779, 782 (1949).                deference to the trial court’s decision. We agree with
“There can be no other guide [than expert testimony], and       American Transitional.
where want of skill and attention is not thus shown by
                                                                [2] [3]
expert evidence applied to the facts, there is no evidence             The plain language of section 13.01 leads to the
of it proper to be submitted to the jury.” Hart, 399 S.W.2d     conclusion that abuse of discretion is the proper standard.
at 792. Because expert testimony is crucial to a medical-       First, the statute directs the trial court to grant a motion
malpractice case, *877 knowing what specific conduct the        challenging the adequacy of an expert report if it “appears
plaintiff’s experts have called into question is critical to    to the court” that the plaintiffs did not make a good-faith
both the defendant’s ability to prepare for trial and the       effort to meet the statutory requirements. Id. § 13.01(l).
trial court’s ability to evaluate the viability of the          This language plainly vests the trial court with discretion.
plaintiff’s claims. This makes eliciting an expert’s            See TEX. GOV’T CODE § 312.002. (“[W]ords shall be

               © 2015 Thomson Reuters. No claim to original U.S. Government Works.                                     2
American Transitional Care Centers of Texas, Inc. v. Palacios, 46 S.W.3d 873 (2001)
44 Tex. Sup. Ct. J. 720

given their ordinary meaning.”). Second, the statute states    then look outside the report at the plaintiff’s conduct to
that dismissal under section 13.01(e) is a sanction: If the    determine whether the plaintiff made a good-faith effort
requirements of section 13.01(d) are not met, the court        to meet the statutory requirements, id. § 13.01(l ). The
must “enter an order as sanctions” dismissing the case and     Palacioses, on the other hand, argue that the statute
granting the defendant its costs and attorneys’ fees.          requires only one inquiry—whether the report evidences a
TEX.REV.CIV. STAT. ANN .. art. 4590i, § 13.01(e).              good-faith effort to provide a fair summary of the expert’s
Sanctions are generally reviewed under an abuse-of-            opinions. According to the Palacioses, the trial court does
discretion standard. Koslow’s v. Mackie, 796 S.W.2d 700,       not have to make any factual determinations because the
704 (Tex.1990). And we presume the Legislature was             only relevant information is in the report itself. We agree
aware of the standard of review ordinarily applied in          with the Palacioses that a trial court should look no
sanctions cases when it explicitly identified a court’s        further than the report in conducting a section 13.01(l )
dismissal under section 13.01(e) as a sanction. *878 See       inquiry.
McBride v. Clayton, 140 Tex. 71, 166 S.W.2d 125, 128
(1943) ( “All statutes are presumed to be enacted by the       The issue for the trial court is whether “the report”
legislature with full knowledge of the existing condition      represents a good-faith effort to comply with the statutory
of the law and with reference to it.”).                        definition of an expert report. Id. § 13.01(l ). That
                                                               definition requires, as to each defendant, a fair summary
Nevertheless, the court of appeals concluded that the          of the expert’s opinions about the applicable standard of
usual standard of review for sanctions should not apply        care, the manner in which the care failed to meet that
here. The court reasoned that the provisions of article        standard, and the causal relationship between that failure
4590i at issue here were intended to discourage frivolous      and the claimed injury. Id. § 13.01(r)(6). Because the
lawsuits, while sanctions, in contrast, are a response to      statute focuses on what the report discusses, the only
litigation misconduct. We disagree with this distinction.      information relevant to the inquiry is within the four
                                                               corners of the document.
Filing a frivolous lawsuit can be litigation misconduct
                                                               [5] [6]
subject to sanction. See TEX.R. CIV. P. 13 (imposing                   Under subsections 13.01(l ) and (r)(6), the expert
sanctions for filing groundless motions, pleadings, or         report must represent only a good-faith effort to provide a
other papers in bad faith or for the purposes of               fair summary of the expert’s opinions. A report need not
harassment). And one purpose of the expert-report              marshal all the plaintiff’s proof, but it must include the
requirement is to deter frivolous claims. HOUSE COMM.          expert’s opinion on each of the elements identified in the
ON CIV. PRAC., BILL ANALYSIS, Tex. H.B. 971, 74th              statute. See *879 Hart v. Wright, 16 S.W.3d 872, 877
Leg., R.S. (1995). The Legislature has determined that         (Tex.App.—Fort Worth 2000, pet. denied). In setting out
failing to timely file an expert report, or filing a report    the expert’s opinions on each of those elements, the report
that does not evidence a good-faith effort to comply with      must provide enough information to fulfill two purposes if
the definition of an expert report, means that the claim is    it is to constitute a good-faith effort. First, the report must
either frivolous, or at best has been brought prematurely.     inform the defendant of the specific conduct the plaintiff
See id. This is exactly the type of conduct for which          has called into question. Second, and equally important,
sanctions are appropriate. See TransAmerican Natural           the report must provide a basis for the trial court to
Gas Corp. v. Powell, 811 S.W.2d 913, 918 (Tex.1991)            conclude that the claims have merit. See 4 S.W.3d at 865
(holding that “death-penalty” sanctions are appropriate        (Taft, J. dissenting); Wood v. Tice, 988 S.W.2d 829, 830
when a party’s discovery abuse justifies a presumption         (Tex.App.—San Antonio 1999, pet. denied) (noting that
that its claims lack merit). For these reasons, we hold that   one of the purposes of article 4590i is to deter frivolous
an abuse-of-discretion standard of review applies to a trial   claims).
court’s decision to dismiss a case under section 13.01(e).
                                                               [7] [8] [9] [10]
                                                                               A report that merely states the expert’s
[4]
    We next consider whether the trial court abused its        conclusions about the standard of care, breach, and
discretion in dismissing the Palacioses’ claims against        causation does not fulfill these two purposes. Nor can a
American Transitional. The parties disagree about how to       report meet these purposes and thus constitute a good-
determine a report’s adequacy under section 13.01(l ).         faith effort if it omits any of the statutory requirements.
American Transitional argues that the trial court must         See, e.g., Hart, 16 S.W.3d at 877 (holding that a report
engage in a two-step process: (1) the trial court must         was inadequate because it stated that the patient had a
determine whether the report constitutes a fair summary        heart attack and the doctor breached the standard of care,
of the expert’s opinions, TEX.REV.CIV. STAT. ANN..             without describing the standard of care); Wood, 988
art. 4590i, § 13.01(r)(6); and (2) if the trial court          S.W.2d at 831–32 (holding that an expert report did not
concludes that the report is not a fair summary, it must       meet the statutory requirements because it did not name

               © 2015 Thomson Reuters. No claim to original U.S. Government Works.                                      3
American Transitional Care Centers of Texas, Inc. v. Palacios, 46 S.W.3d 873 (2001)
44 Tex. Sup. Ct. J. 720

the defendants, state how the defendants breached the          minutes,” that Dr. Bontke believes American
standard of care, demonstrate causation and damages, or        Transitional’s staff should have tied the restraints to the
include a curriculum vitae). However, to avoid dismissal,      bed more securely.
a plaintiff need not present evidence in the report as if it
                                                               [12]
were actually litigating the merits. The report can be              The standard of care for a hospital is what an
informal in that the information in the report does not        ordinarily prudent hospital would do under the same or
have to meet the same requirements as the evidence             similar circumstances. See Birchfield v. Texarkana Mem’l
offered in a summary-judgment proceeding or at trial.          Hosp., 747 S.W.2d 361, 366 (Tex.1987). Identifying the
See, e.g., TEX.R. CIV. P. 166(f) (setting out the              standard of care is critical: Whether a defendant breached
requirements for the form and content of affidavits            his or her duty to a patient cannot be determined absent
offered as summary-judgment proof); TEX.R. EVID. 802           specific information about what the defendant should
(stating that most hearsay is inadmissible).                   have done differently. “While a ‘fair summary’ is
                                                               something less than a full statement of the applicable
[11]
    American Transitional contends that Dr. Bontke’s           standard of care and how it was breached, even a fair
report does not meet the statutory requirements because it     summary must set out what care was expected, but not
does not represent a good-faith effort to provide a fair       given.” 4 S.W.3d at 865 (Taft, J. dissenting). The
summary of her opinion on the standard of care and how         statement the Palacioses rely upon—that precautions to
American Transitional breached that standard. The              prevent Palacios’ fall were not properly used—is not a
Palacioses respond that the following parts of Dr.             statement of a standard of care. Neither the trial court nor
Bontke’s report establish these elements:                      American Transitional would be able to determine from
                                                               this conclusory statement if Dr. Bontke believes that the
   Based on the available documentation I was able to          standard of care required American Transitional to have
   conclude that: Mr. Palacios fell from his bed on 5/14/94    monitored Palacios more closely, restrained him more
   while trying to get out of it on his own. The nursing       securely, or done something else entirely. “It is not
   notes document that he was observed by nursing on the       sufficient for an expert to simply state that he or she
   hour for two hours prior to the fall. In addition, ten      knows the standard of care and concludes it was [or was
   minutes before the fall, the nursing notes documents        not] met.” See Chopra v. Hawryluk, 892 S.W.2d 229, 233
   [sic] the his wrist/vest restraints were on. Yet, at the    (Tex.App.—El Paso 1995, writ denied). Knowing only
   time of his fall he was found on the floor with his         that the expert believes that American Transitional did not
   vest/wrist restraints on but not tied to the bed. It is     take precautions to prevent the fall might be useful if
   unclear how he could untie all four of the restraints       American Transitional had an absolute duty to prevent
   from the bedframe in under ten minutes. Obviously,          falls from its hospital beds. But as a general rule, res ipsa
   Mr. Palacios had a habit of trying to undo his restraints   loquitur does not apply in medical-malpractice cases.
   and precautions to prevent his fall were not properly       TEX.REV.CIV. STAT. ANN.. art. 4590i, § 7.01 (limiting
   utilized.                                                   res ipsa loquitur in medical malpractice to the limited
                                                               classes of cases to which it applied as of August 29,
   ....                                                        1977); Haddock v. Arnspiger, 793 S.W.2d 948, 951
                                                               (Tex.1990).
   All in all, Mr. Palacios sustained a second brain injury
   with a left subdural hematoma while he was an               When the expert report’s conclusory statements do not put
   inpatient at [the Hospital].... [I]n my opinion, the        the defendant or the trial court on notice of the conduct
   medical care rendered to Mr. Palacios at the time of his    complained of, section 13.01(l ) affords the trial court no
   second brain injury was below the accepted and              discretion but to conclude, as the trial court did here, that
   expected standard of care which he could expect to          the report does not represent a good-faith effort to provide
   receive. Moreover, this [sic] below the accepted            a fair summary of the standard of care and how it was
   standard of care extends to both the cause of the second    breached, as section 13.01(r)(6) requires. And because the
   injury as well as the subsequent treatment....              statutory 180 day time period had passed when the trial
                                                               court here made that determination, section 13.01(e)
The Palacioses rely mostly on one sentence in the report
                                                               required the court to dismiss with prejudice the
to establish the standard of care: “Mr. Palacios had a habit
                                                               Palacioses’ claims against American Transitional. See
of *880 trying to undo his restraints and precautions to
                                                               TEX.REV.CIV. STAT. ANN.. art. 4590i, § 13.01(e).
prevent his fall were not properly utilized.” They argue
                                                               Accordingly, we reverse the court of appeals’ judgment
that the inference can be made from that sentence, along
                                                               and dismiss with prejudice the Palacioses’ claims.
with the statement that “[i]t is unclear how he could untie
all four of the restraints from the bed frame in under ten

                © 2015 Thomson Reuters. No claim to original U.S. Government Works.                                   4
American Transitional Care Centers of Texas, Inc. v. Palacios, 46 S.W.3d 873 (2001)
44 Tex. Sup. Ct. J. 720

Parallel Citations                                             44 Tex. Sup. Ct. J. 720

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.                                         5
Austin Heart, P.A. v. Webb, 228 S.W.3d 276 (2007)




                                                               Before Justices     PATTERSON,        PEMBERTON           and
                   228 S.W.3d 276                              WALDROP.
               Court of Appeals of Texas,
                        Austin.

  AUSTIN HEART, P.A. and David J. Kessler, M.D.,
                   Appellants,
                        v.                                                             OPINION
  Christian L. WEBB and Marilou Webb, Appellees.
                                                               G. ALAN WALDROP, Justice.
        No. 03–06–00607–CV. | May 9, 2007.
                                                               Austin Heart, P.A. and David J. Kessler, M.D. appeal the
                                                               district court’s order denying their motion to dismiss
Synopsis                                                       Christian and Marilou Webb’s medical malpractice
Background: Patient brought medical malpractice action         claims. Austin Heart and Dr. Kessler contend that the
against physician and physician’s professional association     expert report served on them pursuant to civil practice and
alleging that physician failed to diagnose and treat the       remedies code section 74.351 did not comply with the
medical condition which caused patient’s severe heart          statute because it did not sufficiently identify either
palpitations and other health conditions. Physician and        Austin Heart or Dr. Kessler as the parties responsible for
professional association moved to dismiss on the basis         the alleged breach of the standard of care or the cause of
that patient’s expert report did not identify them as the      the alleged injury to Mr. Webb. See Tex. Civ. Prac. &
parties responsible for breaching the standard of care or      Rem.Code Ann. § 74.351 (West 2005 & Supp.2006). We
causing injury to patient. The District Court, 98th Judicial   agree that the plaintiffs’ expert report was deficient and
District, Travis County, Paul Davis, P.J., initially granted   that the district court erred in denying the motion to
the motion to dismiss, but, on patient’s motion for a          dismiss. However, we are of the view that the cure
rehearing, reversed its ruling to deny the motion to           provisions of section 74.351(c) are designed to allow the
dismiss. Physician and professional association appealed.      plaintiffs an opportunity to address and correct the defect.
                                                               Consequently, we reverse the district court’s order
                                                               denying the motion to dismiss and remand this cause to
Holdings: The Court of Appeals, G. Alan Waldrop, J.,           the district court to consider whether a 30–day extension
held that:                                                     of the deadline for serving the report to allow the
                                                               plaintiffs to address the deficiency is appropriate.
[1]
   patient’s expert report was deficient as it did not
specifically state that the defendant physician was the        The Webbs sued Austin Heart and Dr. Kessler in January
physician that breached the relevant standard of care and      of 2006 alleging that Dr. Kessler failed to “diagnose and
caused alleged injury to patient, but                          treat the medical condition which caused [Mr. Webb’s]
                                                               severe palpitations and resulting associated health
[2]
  patient was entitled to a 30-day extension to cure such      conditions.” The palpitations and other symptoms
deficiencies.                                                  described by the Webbs were related to Mr. Webb’s
                                                               pacemaker. On May 31, 2006, the Webbs filed and served
                                                               the expert report and curriculum vitae of Dr. Alan E.
Reversed and remanded.                                         Cororve pursuant to the requirements of section 74.351 of
                                                               the civil practice and remedies code setting forth Dr.
Jan J. Patterson, J., filed a dissenting opinion.              Cororve’s opinions regarding Mr. Webb’s treatment for
                                                               his problems with his pacemaker. Austin Heart and Dr.
                                                               Kessler filed a motion to dismiss on June 21, 2006,
Attorneys and Law Firms                                        claiming that Dr. Cororve’s report did not identify either
                                                               Dr. Kessler or Austin Heart as the parties responsible for
*278 Robert L. Hargett, Emily J. Davenport, Davis &            breaching the standard of care or causing Mr. Webb
Wilkerson, P.C., Austin, for appellant.                        injury and, therefore, the report was not a timely report as
                                                               to them. In response, the Webbs claimed that the report
James L. Wright, Watts Law Firm, L.L.P., Austin, for           was sufficient as written and, in the alternative, filed a
appellee.                                                      motion for a 30–day *279 extension to cure in the event
                                                               the court found the report deficient.
                © 2015 Thomson Reuters. No claim to original U.S. Government Works.                                  1
Austin Heart, P.A. v. Webb, 228 S.W.3d 276 (2007)



                                                                  required information within its four corners.”); see also
The district court initially granted the motion to dismiss        Gray v. CHCA Bayshore L.P., 189 S.W.3d 855, 859
on August 22, 2006, and did not grant a 30–day extension          (Tex.App.-Houston [1st Dist.] 2006, no pet.).
to allow the plaintiffs to attempt to cure the deficiency.
                                                                  [4]
The Webbs filed a motion for rehearing and a motion for              We review a district court’s ruling on a motion to
new trial on September 15, 2006, arguing that the court           dismiss under section 74.351 for an abuse of discretion.
had misinterpreted case law relating to what constitutes a        Palacios, 46 S.W.3d at 877–78. A trial court abuses its
sufficient report under section 74.351 and that Dr.               discretion when it acts in an arbitrary or unreasonable
Cororve’s report was sufficient. They also re-urged their         manner or without reference to any guiding rules or
request for a 30–day extension to cure in the event the           principles. Downer v. Aquamarine Operators, Inc., 701
court denied their motion for rehearing. The district court       S.W.2d 238, 241–42 (Tex.1985). A trial court does not
then reversed its original ruling, granted the motion for         abuse its discretion simply because it may decide a matter
rehearing, and entered an order denying the motion to             within its discretion differently than an appellate court. Id.
dismiss. This appeal followed.                                    at 242. However, a trial court has no discretion in
                                                                  determining *280 what the law is or applying the law to
[1]
   Section 74.351 requires a claimant pursuing a health           the facts. Walker v. Packer, 827 S.W.2d 833, 840
care liability claim to serve one or more expert reports on       (Tex.1992). A clear failure by the trial court to analyze or
each party no later than the 120th day after the filing of        apply the law correctly will constitute an abuse of
the original petition. Id. § 74.351(a). The expert report         discretion. Id.
must provide “a fair summary of the expert’s opinions as
of the date of the report regarding applicable standards of       In a single issue, Austin Heart and Dr. Kessler argue that
care, the manner in which the care rendered by the                section 74.351(b) mandates dismissal of the Webbs’
physician or health care provider failed to meet the              lawsuit. Their argument is straightforward: Read literally,
standards, and the causal relationship between that failure       without any inferences or reliance on information outside
and the injury, harm, or damages claimed.” Id. §                  of its four corners, Dr. Cororve’s report does not identify
74.351(r)(6). A court shall grant a motion challenging the        either Dr. Kessler or Austin Heart as having breached the
adequacy of a report only if the report “does not represent       standard of care or having caused Mr. Webb injury. The
an objective good faith effort to comply” with the                Webbs respond that, while the sections of Dr. Cororve’s
definition of “expert report” in the statute. Id. § 74.351(l ).   report relating to the breach of the standard of care and
To constitute a good faith effort, the report must provide        causation do not identify any specific physicians, the
enough information to fulfill two purposes: (1) it must           meaning of the report read as a whole is apparent and
inform the defendant of the specific conduct the plaintiff        reveals that Dr. Cororve is referring to Mr. Webb’s
has called into question, and (2) it must provide a basis         treatment by Dr. Kessler.
for the trial court to conclude that the claims have merit.
Bowie Memorial Hosp. v. Wright, 79 S.W.3d 48, 52                  Dr. Cororve’s two and one-half page report is divided into
(Tex.2002) (citing American Transitional Care Ctrs., Inc.         five sections—“Qualifications,” “Materials Reviewed and
v. Palacios, 46 S.W.3d 873, 879 (Tex.2001)).                      Background,” “Standard of Care,” “Standard of care not
                                                                  met,” and “Causation.” In the section titled Materials
[2] [3]
       The Texas Supreme Court has also stated that a             Reviewed and Background, Dr. Cororve lists the various
report need not marshal all of the plaintiff’s proof, but it      medical records he reviewed.1 He then sets out selected
must include the expert’s opinion on each of the elements         portions of these records detailing the relevant aspects of
identified in section 74.351. Palacios, 46 S.W.3d at 878.         Mr. Webb’s history of treatment for a trial fibrillation and
A report cannot merely state the expert’s conclusions             palpitations over a period of nearly four years beginning
about the statutory elements. Id. at 879. “Rather, the            with the placement of his pacemaker in November 2001.
expert must explain the basis of his statements to link his       This review of Mr. Webb’s treatment history includes a
conclusions to the facts.” Bowie Memorial, 79 S.W.3d at           number of references to Dr. Kessler’s office notes,
52 (quoting Earle v. Ratliff, 998 S.W.2d 882, 890                 comments by Dr. Kessler in those notes, complaints by
(Tex.1999)). In addition, since the statute focuses on what       Mr. Webb contained in the notes, a reference to the office
is required in the report, the only information relevant to       notes of a Dr. George Rodgers, an email from Mr. Webb
determining whether a report complies with the statute is         to Dr. Kessler, a response email from Dr. Rodgers,2 and a
“within the four corners of the document.” Palacios, 46           general statement that “[Mr. Webb] was seen by various
S.W.3d at 878. This requirement precludes a court from            physicians, including several electrophysiological
filling gaps in a report by drawing inferences or guessing        consultations.” The background section concludes with
as to what the expert likely meant or intended. See Bowie         the observation that “[f]urther evaluation eventually
Memorial, 79 S.W.3d at 53 (“The report must include the           documented diaphragmatic stimulation and a new right

                © 2015 Thomson Reuters. No claim to original U.S. Government Works.                                       2
Austin Heart, P.A. v. Webb, 228 S.W.3d 276 (2007)



ventricular lead was placed on September 7, 2005. The            Cororve is identifying Dr. Kessler as the physician who
patient was subsequently discharged in excellent                 breached the standard of care and caused injury. Had Dr.
condition.”3 The background section of the report offers         Cororve referenced only actions by Dr. Kessler in the
no opinions regarding the appropriateness of the treatment       background section of his report, the link between Dr.
or the responses of the physicians to Mr. Webb’s                 Cororve’s opinions and the responsible physician might
complaints. It is strictly a recitation of historical material   be more apparent. However, Dr. Cororve also refers to
contained in the medical records reviewed by Dr.                 actions taken by Dr. Rodgers and makes a vague
Cororve.                                                         reference to Mr. Webb having been “seen by various
                                                                 physicians, including several electrophysiological
The report then concludes with the following three               consultations” after he was treated by Dr. Kessler but
sections:                                                        before his condition improved.6 There is nothing in the
                                                                 report that links Dr. Kessler to Dr. Cororve’s opinions
                                                                 regarding the breach of the standard of care and causation
                                                                 any more than Dr. Rodgers or the other “various
Standard of Care                                                 physicians” referenced.

  The standard of care in a patient such as this requires        The Webbs point out that (1) Dr. Kessler is the only
  more intensive investigation as to the source of a             defendant physician and (2) the essence of Dr. Cororve’s
  patient’s symptoms and subsequent corrective actions           opinions is that the breach of the standard of care was the
  to ameliorate the problem. Attempts at adjusting the           failure of the treating physicians, implicitly including Dr.
  ventricular pacing outputs should routinely be                 Kessler, to properly adjust the ventricular pacing outputs.
  attempted and would most likely have pinpointed the            *282 However, that Dr. Kessler is the only defendant
  problem much earlier. This standard of care was not            physician is not relevant to an analysis of whether an
  met.                                                           expert report complies with section 74.351. The fact that
                                                                 he is the only defendant physician and, therefore, very
                                                                 likely to be the subject of the report is outside the four
Standard of care not met                                         corners of the report. See Palacios, 46 S.W.3d at 878. It
                                                                 also does nothing to clarify to whom the opinions of the
  The diagnostic and corrective action eventually taken,
                                                                 expert supplying the report apply. The expert’s opinions
  specifically the increase *281 in the ventricular pacing
                                                                 are, of course, confined to the report and must tell the
  output, should have been implemented much sooner.
                                                                 reader not only what conduct breached the standard of
                                                                 care, but whose conduct breached the standard of care.
Causation                                                        The plaintiffs’ allegation that a particular physician was at
                                                                 fault does not substitute for the requirement that they
    Had the corrective action described occurred, Mr.            supply an expert report demonstrating that the expert is of
    Webb would not have undergone the physical and               the same opinion.
    mental problem(s) he had and could have continued his
    normal lifestyle much earlier than he did.                   We also do not agree that the substance of Dr. Cororve’s
[5]
    Dr. Kessler and Austin Heart point to these sections         opinions could only be associated with the conduct of Dr.
and argue that, while they may articulate an opinion on          Kessler. The essence of Dr. Cororve’s opinion is that the
the breach of the standard of care and on causation, the         physicians who treated Mr. Webb should have adjusted
sections do not identify Dr. Kessler as breaching the            his ventricular pacing outputs sooner and the failure to do
standard of care or causing injury.4 The Webbs concede           so was a breach of the standard of care. This opinion
that these sections do not expressly mention Dr. Kessler.        could apply or not apply equally to Dr. Kessler, Dr.
They argue, however, that the background section of the          Rodgers, or the various unnamed physicians. The report
report makes it clear Dr. Cororve’s opinions relate to Dr.       must state, in some manner, who breached the standard of
Kessler because it is primarily Dr. Kessler’s actions that       care and who caused the alleged injury, and whether that
are noted in the relevant history.5 Thus, they argue the         includes Dr. Kessler. In the words of the supreme court in
report should be read to mean that the opinions in the           Palacios, “the report must inform the defendant of the
standard of care and causation sections refer to the actions     specific conduct the plaintiff has called into question.”
and conduct of Dr. Kessler set out in the background             Palacios, 46 S.W.3d at 879. This includes informing the
section of the report.                                           defendant of the specific conduct in question of that
                                                                 defendant. See Palacios, 46 S.W.3d at 878 (The statute
The problem with this argument is that it requires the           requires, as to each defendant, a fair summary of the
reader to infer or make an educated guess that Dr.               expert’s opinions about the applicable standard of care,
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Austin Heart, P.A. v. Webb, 228 S.W.3d 276 (2007)



the manner in which the care failed to meet that standard,      Kessler, the court has no discretion but to dismiss the
and the causal relationship between the failure and the         plaintiffs’ claims with prejudice. See Jernigan v. Langley,
claimed injury).                                                195 S.W.3d 91, 94 (Tex.2006); Marichalar, 185 S.W.3d
                                                                at 73–74. This overstates the holding in Garcia. The
We are mindful that a report’s adequacy under section           physician in Garcia was not mentioned in the report at all.
74.351 does not depend on whether the expert uses any           There was literally nothing in the report that related to the
particular magic words such as “the standard of care was        physician in any way. Thus, the report was no report as to
breached by Dr. Kessler.” See Bowie Memorial, 79                him. The Garcia court then held that this was a situation
S.W.3d at 53. However, the report must communicate in           where no expert report was timely filed with respect to the
some fashion—within its four corners—how the care               physician in question, precluding the trial court from
rendered by the physician failed to meet the applicable         considering an extension to cure because there was no
standard of care and the causal relationship between that       timely report to cure. 185 S.W.3d at 74 (trial court had no
failure and the injury suffered by the claimant. Tex. Civ.      authority to allow a cure period for a nonexistent report).
Prac. & Rem.Code Ann. § 74.351(r)(6). We recognize
that this information could be communicated in a number         A closer case is Jernigan v. Langley, 195 S.W.3d 91
of ways and it could be communicated in sections of a           (Tex.2006). In Jernigan, the supreme court noted that a
report other than sections titled “Standard of Care” or         mere “passing reference” to a physician in a report,
“Causation.” The form of the report and the location of         without explanation of how the physician breached the
the information in the report are not dispositive. However,     standard of care or caused the injury, would not constitute
in this case, Dr. Cororve’s report is silent as to whether a    a sufficient report. 195 S.W.3d at 94. The only reference
single physician, multiple physicians, or all physicians        to Dr. Jernigan in the report was “[a]t 4:30 p.m. [John
mentioned in the report failed to meet the standard of care     Langley’s] case was discussed with Dr. Jernigan and at
and caused injury to Mr. Webb. It simply does not state         4:50 p.m. a lactulose enema was ordered.” The expert’s
that the care rendered by Dr. Kessler failed to meet            opinion on breach of the standard of care had to do with
applicable standards and caused injury.                         the failure to examine certain x-rays. The report did not
                                                                link Dr. Jernigan or the referenced discussion with Dr.
[6]
   While we are of the view that Dr. Cororve’s report is        Jernigan to a breach of the standard of care or to the
deficient under section 74.351 because it requires the          failure to examine x-rays in any way. It made no other
reader to make an educated guess regarding an essential         mention of him or what he did at all. The supreme court
element, we are also aware that the defect might well be        noted that the single reference to Dr. Jernigan in the
curable. The tenor of Dr. Cororve’s report, coupled with        report was so oblique that there was no connection at all
the fact that there is only one physician defendant, makes      between the reference to him and the expert’s opinions
it quite likely that Dr. Cororve intended to opine that Dr.     regarding the standard of care and causation. It affirmed
Kessler breached the standard of care and caused injury         the trial court’s dismissal of the lawsuit based on the
even though the report did not contain that opinion. The        insufficiency of the report, stating that “the trial court had
report’s failure on this point is the kind of defect that the   no discretion but to conclude, as it did here, that
cure provisions of section 74.351(c) were designed *283         Langley’s claims against Dr. Jernigan must be
to address. Since the district court ultimately found the       dismissed.” Id.
report to be sufficient, the court did not consider whether
a 30–day extension of the report deadline to allow the          The report in Jernigan, as in Garcia, amounted to no
Webbs to attempt to cure a defect would be appropriate.         report at all as to Dr. Jernigan and warranted dismissal for
In light of our ruling that the report does contain a defect,   failure to serve a timely report. There was no discretion
we believe consideration by the trial court of the Webbs’       for the court to grant an extension to cure because there
request for an extension to attempt to cure the defect is       was no timely report—with respect to Dr. Jernigan—to
warranted.                                                      cure.7 Any attempt by the plaintiffs *284 to “cure” the
                                                                reports in Jernigan and Garcia would, in effect, have
Austin Heart and Dr. Kessler argue that Garcia v.               been to create and serve new reports—that did not exist at
Marichalar, 185 S.W.3d 70 (Tex.App.-San Antonio 2005,           all within the time period for serving reports—with
no pet.), supports the proposition that an expert report that   respect to the physicians in question in each case. This is
references multiple health care providers but fails to          conceptually no different from the situation where a
delineate the standard of care, breach and causal               plaintiff simply missed the deadline for serving a report.
connection as to specific, individual defendants is
tantamount to no report at all with respect to those            Jernigan and Garcia differ from this case in crucial
defendants. They then posit that since Dr. Cororve’s            respects. Here, a timely report plainly discusses the
report should be considered no report at all as to Dr.          conduct of the physician in question and the report

               © 2015 Thomson Reuters. No claim to original U.S. Government Works.                                      4
Austin Heart, P.A. v. Webb, 228 S.W.3d 276 (2007)



discusses opinions on the standard of care and causation         JAN P. PATTERSON, Justice, dissenting.
that could be linked to the conduct of the physician set out
in the report, but simply are not. The report is not             While the expert report requirement in medical
deficient because it does not relate to Dr. Kessler at all. It   malpractice cases is designed to weed out frivolous
is deficient because the link between Dr. Kessler’s              claims, it is not meant to be an insurmountable hurdle.
conduct and the expert’s conclusions is not expressly            The majority *286 raises the bar, however, by requiring a
stated. The report in this case is, therefore, some report as    fastidious reading of the report. The expert report
to Dr. Kessler (among others), but it is not sufficient to       proffered by the Webbs may not be a perfect report, but it
meet all of the requirements of section 74.531. It is an         is clear when viewed as a whole whose conduct is at
example of what section 74.351(c) refers to as a report          issue—Dr. Kessler’s. I therefore cannot agree that the trial
that “has not been served within the [120–day period for         court abused its discretion in finding the report adequate. I
serving reports] because elements of the report are found        would affirm the order of the trial court.
deficient.” Tex. Civ. Prac. & Rem.Code Ann. § 74.351(c).
In such a circumstance, section 74.351(c) grants the trial       Even assuming the report is merely “some report as to Dr.
court discretion to allow a 30–day extension of the              Kessler (among others),” the remand fashioned by the
deadline “in order to cure the deficiency.” Id. Jernigan         majority is not appropriate in this case and alters the
and Garcia cannot be read to mean that any deficiency in         statutory scheme crafted by the legislature. Austin Heart
a report requires dismissal without the possibility of an        and Dr. Kessler moved to dismiss the Webbs’ lawsuit
extension to cure because that would mean section                solely on the ground that the expert report was “no report”
74.351(c) has no possible application and is superfluous.        and, thus, the trial court had no discretion to consider an
Section 74.351(c) contemplates that there are                    extension to cure deficiencies. Having found that the
circumstances where a timely report will be deficient, but       report is indeed some report for which the trial court
the deficiency can be cured. To be consistent with the           could have granted an extension, the majority has rejected
statute, Jernigan and Garcia must be read to allow for at        Austin Heart’s and Dr. Kessler’s sole ground for
least some situations where a timely report is deficient,        dismissal. The appropriate remedy would be a remand to
but the trial court should consider whether the deficiency       the trial court for the cause to proceed without the need
is such that it warrants allowing a cure period.8 Id.            for an extension. For these reasons, I respectfully dissent.

*285 We are of the opinion that the report in this case
falls into that category. It was served timely, it makes
more than a passing reference to Dr. Kessler, and it notes
conduct by Dr. Kessler that could be linked to the expert’s       FACTUAL AND PROCEDURAL BACKGROUND
conclusions regarding the breach of the standard of care
and causation. It is deficient only because it does not          On January 31, 2006, the Webbs filed suit against Austin
expressly make the link between the expert’s conclusions         Heart and Dr. Kessler, alleging that Dr. Kessler,
and the referenced conduct by Dr. Kessler. If the expert is      individually, and Austin Heart, through the actions of Dr.
of the opinion that Dr. Kessler’s conduct breached the           Kessler, negligently failed to diagnose and treat Christian
standard of care and caused injury, he will not have to          Webb for a medical condition related to his pacemaker
generate a new, previously nonexistent report. He will           that caused him to experience “severe palpitations” and
simply have to add the link between his already stated           other associated health conditions. On May 31, 2006, the
conclusions and the already referenced conduct of Dr.            Webbs filed the expert report and curriculum vitae of Dr.
Kessler. Therefore, the circumstances here are not similar       Alan Cororve pursuant to section 74.351 of the civil
to the situation where a plaintiff simply has missed the         practice and remedies code. See Tex. Civ. Prac. &
deadline for serving a report with respect to the conduct        Rem.Code Ann. § 74.351(a) (West Supp.2006). Austin
of a physician.                                                  Heart and Dr. Kessler filed a motion to dismiss under
                                                                 section 74.351(b), asserting that the Webbs had failed to
We reverse the district court’s order denying the motion         file an expert report specifically addressing the standard
to dismiss filed by Austin Heart, P.A. and Dr. Kessler and       of care, breach of the standard of care, or causation as to
remand this cause for further proceedings.                       either Austin Heart or Dr. Kessler. See id. § 74.351(b).
                                                                 The district court initially granted the motion to dismiss.
                                                                 The Webbs filed a motion for rehearing and motion for
                                                                 new trial, and the district court granted the motions. The
                                                                 district court then denied Austin Heart’s and Dr. Kessler’s
Dissenting Opinion by Justice PATTERSON.                         motion to dismiss, and this interlocutory appeal followed.


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Austin Heart, P.A. v. Webb, 228 S.W.3d 276 (2007)



                                                               question and provide a basis for the trial court to
                                                               determine that the claims have merit. Id. at 879.

                       ANALYSIS                                The supreme court has stated that “to avoid dismissal, a
                                                               plaintiff need not present evidence in the report as if it
In their single issue on appeal, Austin Heart and Dr.          were actually litigating the merits. The report can be
Kessler argue that dismissal was mandated by section           informal in that the information in the report does not
74.351(b).                                                     have to meet the same requirements as the evidence
                                                               offered in a summary-judgment proceeding or at trial.” Id.
                                                               Because the statute focuses on what the report should
                                                               discuss, the only information relevant to the inquiry is that
Abuse of discretion standard
                                                               which appears within the four corners of the document.
We review a trial court’s ruling on a motion to dismiss        Id. at 878. When examined in its entirety, an expert report
under section 74.351(b) for an abuse of discretion.            may be so deficient as to a particular defendant that it
American Transitional Care Ctrs. of Tex., Inc. v.              constitutes no report as to that defendant. See, e.g., Garcia
Palacios, 46 S.W.3d 873, 877–78 (Tex.2001). A trial            v. Marichalar, 198 S.W.3d 250, 255 (Tex.App.-San
court abuses its discretion if it acts in an arbitrary or      Antonio 2006, no pet.) (Garcia II); Garcia v. Marichalar,
unreasonable manner or without reference to any guiding        185 S.W.3d 70, 74 (Tex.App.-San Antonio 2005, no pet.)
rules and principles. Downer v. Aquamarine Operators,          (Garcia I ).
Inc., 701 S.W.2d 238, 241–42 (Tex.1985). When
reviewing matters committed to the trial court’s
discretion, we may not substitute our own judgment for
                                                               Dr. Cororve’s report
that of the trial court. Walker v. Gutierrez, 111 S.W.3d 56,
63 (Tex.2003).                                                 To satisfy the expert report requirement, the Webbs
                                                               served Austin Heart and Dr. Kessler with a two-and-one-
                                                               half-page report from Dr. Cororve. The report begins by
                                                               stating that “[a]ny reference in this report to Dr. David J.
The expert report requirement
                                                               Kessler, M.D. refers to Dr. Kessler individually, and his
In a health-care liability claim, the claimant must provide    employer, Austin Heart, P.A.”1 In a section titled
each defendant with one or more expert reports, including      “Materials Reviewed and Background,” the first
a curriculum vitae for each expert, within 120 days of         paragraph begins, “My opinions are based upon my
filing the original petition. Tex. Civ. Prac. & Rem.Code       review of ...,” then lists specific medical records and
Ann. § 74.351(a). An “expert report” is:                       office notes from four medical facilities and five doctors,
                                                               and states that “[i]n addition, my opinions are based upon
                                                               my experience, training, knowledge, and qualifications as
            a written report by an expert that
                                                               a physician.” The report next discusses Mr. Webb’s
            provides a fair summary of the
                                                               treatment history following the implantation of his
            expert’s *287 opinions as of the
                                                               pacemaker on November 30, 2001:
            date of the report regarding
            applicable standards of care, the
            manner in which the care rendered                    Subsequent to that procedure, Mr. Webb complained
            by the physician or health care                      on various occasions concerning his sensing the
            provider failed to meet the                          pacemaker pacing or being aware of forceful
            standards,     and    the     causal                 heartbeats. To that extent, Dr. Kessler noted on
            relationship between the failure and                 01/18/02      “possibly   diaphragmatic     stimulation
            the injury, harm, or damages                         intermittently.” With the office visit of 03/19/03, Dr.
            claimed.                                             Kessler notes this was the second complaint of
                                                                 abdominal twitching. The pacemaker was reduced to
Id. § 74.351(r)(6). Failure to serve an adequate expert
                                                                 see if abdominal symptoms could be relieved with less
report mandates dismissal with prejudice. Id. § 74.351(b).
                                                                 frequent pacing. On 04/25/03, Dr. Kessler states the
A report need not marshal all of the plaintiff’s proof, but
                                                                 patient was aware of pacing intermittently and was
it must include the expert’s opinion on each of the
                                                                 suspicious of diaphragmatic stimulation.
elements identified in the statute. Palacios, 46 S.W.3d at
878. To constitute a good faith effort, the report must
inform the defendant of the specific conduct called into
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Austin Heart, P.A. v. Webb, 228 S.W.3d 276 (2007)



    *288 Dr. Kessler states he had previously assessed           The diagnostic and corrective action eventually taken,
    this and had not found it to be present. On that day,        specifically the increase in the ventricular pacing
    he tested the pacemaker with various outputs, the            output, should have been implemented much sooner.
    patient was aware of pacing at higher outputs, but the
    doctor did not believe the patient had true
    diaphragmatic stimulation.                                 Causation

    During a pacemaker check performed on 06/08/03,               Had the corrective action described occurred, Mr.
    the patient stated he still had “hiccup” feelings in his      Webb would not have undergone the physical and
    abdomen, and Dr. Rodgers’ office note of 05/06/04             mental problem(s) he had and could have continued his
    stated the patient had some feelings of hiccup-like           normal lifestyle much earlier than he did.
    discomfort.                                                   Austin Heart and Dr. Kessler do not challenge the
                                                                  adequacy of the report’s description of these three
    On 12/16/04, Dr. Kessler references the patient’s             elements; rather, they assert that it is not clear to which
    ongoing anxiety, use of Xanax and his request for the         doctor they apply because the report mentions five
    PCP’s assistance managing the anxiety. Mr. Webb’s             doctors and four health care institutions, but fails to
    email to Dr. Kessler on 04/27/05 states how the               reference any of the providers in the analysis of
    patient’s “been suffering two years.” The patient’s           standard of care, breach and causation. They urge, *289
    email of 05/04/05 asks if the pacemaker lead might            therefore, that Dr. Cororve’s report is essentially “no
    be in the wrong place, and Dr. Rodgers responded              report” as to Austin Heart and Dr. Kessler.
    “no.”2 Dr. Kessler’s note of 05/27/05 states the           Because Austin Heart and Dr. Kessler do not contest the
    patient was complaining of palpitations but “I am          adequacy of the report’s descriptions of the statutorily
    reluctant to place a new lead at this time.”               required elements, the only question before this Court is
                                                               whether the trial court abused its discretion in determining
  Subsequent to these events, Mr. Webb continued to            that the report sufficiently ties Dr. Kessler to the analysis
  have palpitations and problems with diaphragmatic            of the statutory elements. From the context and structure
  stimulations. He was seen by various physicians,             of the report, it is clear that Dr. Cororve’s listing of the
  including several electrophysiological consultations.        notes and records of the doctors and health care
  The persistence of his symptoms significantly impaired       institutions in the “Materials Reviewed” paragraph of the
  his quality of life and ability to concentrate at work.      report was not intended to make the doctors or health care
  Because of this, he was presecribed an anti-depressant       institutions themselves the focus of Dr. Cororve’s
  and anti-anxiety medication. Further evaluation              analysis. Thus, the focus is on the section of the report
  eventually documented diaphragmatic stimulation and          discussing Mr. Webb’s medical treatment and the sections
  a new right ventricular lead was placed on September         setting out the statutorily required elements. In the
  7, 2005. The patient was subsequently discharged in          medical-treatment discussion, only two doctors are
  excellent condition.                                         named—Dr. Kessler and Dr. Rodgers—and there is one
  The report has three final sections setting out the three    reference to unnamed “various physicians.” No doctor is
  statutorily required elements:                               expressly mentioned in the sections addressing the
                                                               statutorily required elements.

Standard of Care                                               Austin Heart and Dr. Kessler contend that Dr. Cororve’s
                                                               report did not adequately tie Dr. Kessler to the statutory
  The standard of care in a patient such as this requires      elements, citing this Court to Jernigan, 195 S.W.3d 91,
  more intensive investigation as to the source of a           Garcia II, 198 S.W.3d 250, Garcia I, 185 S.W.3d 70, and
  patient’s symptoms and subsequent corrective actions         Longino v. Crosswhite ex rel. Crosswhite, 183 S.W.3d
  to ameliorate the problem. Attempts at adjusting the         913 (Tex.App.-Texarkana 2006, no pet.). These cases are
  ventricular pacing outputs should routinely be               distinguishable.
  attempted and would most likely have pinpointed the
  problem much earlier. This standard of care was not          In Jernigan, the plaintiff filed suit against a hospital and
  met.                                                         several physicians including Dr. Jernigan. 195 S.W.3d at
                                                               92. The plaintiff served two expert reports; however, the
                                                               first failed to mention Dr. Jernigan at all, and the second
Standard of care not met
                                                               mentioned him in only one sentence: “At 4:30 p.m. [the
                                                               plaintiff’s] case was discussed with Dr. Jernigan....” Id. at
                                                               93. The supreme court concluded that the report was

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Austin Heart, P.A. v. Webb, 228 S.W.3d 276 (2007)



inadequate as to Dr. Jernigan, stating that “[t]his passing     concluded that Dr. Garcia had not been served with a
reference does not identify with specificity any action or      report and, thus, the trial court did not have authority to
inaction by Dr. Jernigan that breached the applicable           grant the extension. Id. at 74. In Garcia II, the appellate
standard of care. This perfunctory mention alleges no           court addressed Dr. Garcia’s motion to dismiss. 198
misconduct whatsoever, much less discusses the required         S.W.3d 250. The court concluded that “neither report
elements with ‘sufficient specificity’ to inform Dr.            informed Dr. Garcia of the specific conduct he allegedly
Jernigan of ‘the conduct the plaintiff has called into          performed that [the plaintiff] had called into question,”
question.’ ” Id. (quoting Palacios, 46 S.W.3d at 875).          and, thus, the expert reports did not constitute a good-
                                                                faith effort to comply with the statutory requirements. Id.
In Longino, the plaintiffs sued two doctors and a hospital      at 255. The court therefore held that the trial court abused
for failing to diagnose their child’s bacterial meningitis      its discretion in denying Dr. Garcia’s motion to dismiss,
sooner. 183 S.W.3d at 915. The plaintiffs served a single       and the cause was remanded with instructions to the trial
expert report that did not distinguish between the actions      court to render judgment dismissing the claims against
of the two doctors. Id. at 917. The report stated that, “[i]n   Dr. Garcia with prejudice and to award him his reasonable
consultation with Dr. James Longino,” Dr. Cameron               attorney’s fees and costs of court. Id. at 256 (citing Tex.
ordered tests and admitted the plaintiffs’ child to the         Civ. Prac. & Rem.Code Ann. § 74.351(b)).
hospital, and in the discussion of the standard of care, the
report stated that                                              Unlike Jernigan, Longino, and Garcia, in this case, the
                                                                Webbs have filed a lawsuit complaining of the actions of
             Dr. Cameron[’s] and Dr. Longino’s                  only one doctor, Dr. Kessler, and their expert report is not
             care of [the plaintiffs’ child] fell               one in which they mentioned him only in passing, in
             below the standard of care.... Their               connection only with another doctor, or not at all. Instead,
             failure to either recognize or                     he is the subject of the majority of the report and is named
             acknowledge        the      obvious                eleven times.3 The first paragraph, which states that any
             symptoms of fever, altered mental                  reference to Dr. Kessler refers to him individually and to
             status, and neck pain; to perform a                his employer, Austin Heart, may be fairly read as
             timely diagnostic lumbar puncture;                 signaling that the report is about Dr. Kessler. In addition,
             and to aggressively treat [the                     Dr. Cororve’s description of Mr. Webb’s medical history
             child’s] bacterial meningitis with                 covers five visits with and one e-mail to Dr. Kessler
             an appropriate combination of                      spanning two and one half years in which Dr. Kessler
             antibiotics led to an unnecessary                  noted the following: “possibly diaphragmatic stimulation
             exacerbation of his symptoms.                      intermittently,” a second complaint about abdominal
                                                                twitching, Mr. Webb’s awareness of pacing intermittently
Id. The court concluded that the report contained “no           and suspicion of diaphragmatic stimulation, Mr. Webb’s
specific information concerning how Longino breached            awareness of pacing at higher outputs, disbelief that the
the standard of care apart from Cameron’s conduct,” and         patient had true diaphragmatic stimulation, Mr. Webb’s
therefore did not demonstrate a good-faith effort as to         ongoing anxiety and request for assistance managing the
Longino. Id.                                                    anxiety, and Mr. Webb’s complaining of palpitations, but
                                                                “I am reluctant to place a new lead at this time.” The
In the Garcia cases, the plaintiff filed suit against three     report’s two references to comments from Dr. Rodgers—a
doctors, two nurses, and a hospital. Garcia II, 198 S.W.3d      notation that the patient had some feelings of hiccup-like
at 252. The plaintiff served two expert reports, but neither    discomfort and a response of “no” to Mr. Webb’s e-mail
report mentioned Dr. Garcia at *290 all. Id. Dr. Garcia         asking if the lead might be in the wrong place—as well as
filed a motion to dismiss the claims against him asserting      the single reference to unnamed “various physicians,” do
that he had not been “served” with a report. Id. The trial      not obscure the report’s focus on the actions of Dr.
court initially granted the motion, but later dissolved its     Kessler. In addition, unlike Longino, the actions of the
order and granted the plaintiff a 30–day extension to cure      two doctors named are distinguishable.
any deficiencies in the report. Id. In Garcia I, the
appellate court addressed the extension, distinguishing         Dr. Cororve’s analysis of the statutory elements states that
situations in which a deficient report is filed from those in   the standard of care required “more intensive
which no report is filed—a trial court has discretion to        investigation,” “[a]ttempts at adjusting the ventricular
grant a 30–day extension in the former situation, but not       pacing outputs should routinely be attempted,” and “[t]he
the latter. 185 S.W.3d at 73. Because the reports served        diagnostic and corrective *291 action eventually taken,
by the plaintiff focused on the acts of other defendants        specifically the increase in the ventricular pacing output,
and failed to mention Dr. Garcia at all, the court              should have been implemented much sooner.” In the

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Austin Heart, P.A. v. Webb, 228 S.W.3d 276 (2007)



discussion of Mr. Webb’s medical history earlier in the                     prejudice and has no discretion to grant a 30–day
report, it appears that both Dr. Kessler and Dr. Rodgers                    extension. Tex. Civ. Prac. & Rem.Code Ann. § 74.351(b)-
investigated Mr. Webb’s symptoms; however, only Dr.                         (c); Garcia I, 185 S.W.3d at 73. Yet, if the report is
Kessler is named in connection with testing and making                      merely “deficient” (and timely filed, as here), the trial
adjustments to the pacemaker. In addition, Dr. Kessler’s                    court is not required to immediately dismiss and has
notations contradict what Dr. Cororve states is the                         discretion to grant a 30–day extension to cure the
standard of care. According to Dr. Cororve’s report, Dr.                    deficiencies. Tex. Civ. Prac. & Rem.Code Ann. §
Kessler “did not believe the patient had true                               74.351(c).
diaphragmatic stimulation” however, “[f]urther evaluation
eventually documented diaphragmatic stimulation and a                       Austin Heart and Dr. Kessler elected to move for
new right ventricular lead was placed.” Under “Standard                     dismissal solely on the ground that the report was “no
of Care,” Dr. Cororve states that “[a]ttempts at adjusting                  report.”5 Having concluded that the report is “some report
the ventricular pacing outputs should routinely be                          as to Dr. Kessler (among others),” the majority has
attempted and would most likely have pinpointed the                         rejected the sole ground for dismissal. As such, the
problem much earlier.” After reviewing the report in its                    appropriate remedy would be a remand to the trial court
entirety, I cannot conclude that the trial court abused its                 for the cause to proceed without the need for an
discretion in determining that the report represents a                      extension.
good-faith effort to address the actions of Dr. Kessler.



The Remand                                                                                         CONCLUSION

The majority concludes that Dr. Cororve’s report is                         In summary, I disagree with the majority’s holding that
deficient and remands this cause to the district court to                   the trial court abused its *292 discretion in finding that
consider whether a 30–day extension is appropriate to                       the expert report proffered by the Webbs adequately links
address the deficiency. This remedy is inappropriate                        Dr. Kessler to the elements of standard of care, breach of
because it provides relief to Austin Heart and Dr. Kessler                  the standard, and causation. I would affirm the order of
on a ground not raised in the trial court or on appeal. See                 the trial court. I further disagree with the remedy
Tex.R.App. P. 33.1.                                                         fashioned by the majority because it grants relief to
                                                                            Austin Heart and Dr. Kessler on a ground that they did
Austin Heart and Dr. Kessler challenged Dr. Cororve’s                       not raise in the trial court or on appeal. For these reasons,
report solely on the ground that it was “no report,” not                    I respectfully dissent.
that it was a “deficient report.”4 The difference between
the two is strategically significant. If the report is “no
report,” then the trial court must dismiss the case with

Footnotes
1      These included records of five physicians, three hospitals, and a clinic.

2      In their brief, the Webbs state that the email response was actually by Dr. Kessler rather than Dr. Rodgers and the reference in
       the report is a typographical error. However, there is no evidence in the record on this point other than Dr. Cororve’s report.
3      The report does not mention who was responsible for the diagnosis of diaphragmatic stimulation or placing a new right
       ventricular lead.
4      Austin Heart, P.A. is alleged to be vicariously liable for the conduct of Dr. Kessler. Dr. Cororve’s report notes at the outset that
       “[a]ny reference in this report to David J. Kessler, M.D. refers to Dr. Kessler individually, and his employer, Austin Heart,
       P.A.” Consequently, for the purposes of this appeal, the report must link Dr. Cororve’s opinions to the actions of Dr. Kessler.
5      The Webbs suggest that a tally of the number of times a physician is mentioned in a report is significant. They note that Dr.
       Kessler’s name appears eleven times in Dr. Cororve’s report (as opposed to three times for Dr. Rodgers and once for “various
       physicians”). They argue that this could lead to a reasonable conclusion that the report must be about Dr. Kessler and his
       actions. However, we are not persuaded that such a tally is relevant to the analysis. A physician may be named in a report any
       number of times simply because he was intimately involved in the treatment of a patient, yet the complaint may be with the
       conduct of a physician who saw the patient only once and is mentioned in the report only once. The number of times a physician
               © 2015 Thomson Reuters. No claim to original U.S. Government Works.                                                       9
Austin Heart, P.A. v. Webb, 228 S.W.3d 276 (2007)



      is mentioned in a report, by itself, has little bearing on whether the opinions expressed in the report concern that physician.
      What matters, of course, is how the physician is mentioned and what the report communicates about that physician.
6     It is not clear what the reference to “various physicians” and “electrophysiological consultations” in the report means or is
      intended to communicate.
7     Jernigan interpreted a prior version of the statute that had a different standard for granting an extension to cure. Under the
      previous iteration of the statute, the trial court could grant an extension only if it found that the failure to comply with the statute
      was “not intentional or the result of conscious indifference but was the result of an accident or mistake.” See former
      Tex.Rev.Civ. Stat. Ann. art. 4590i, § 13.01(g) repealed by Acts 2003, 78th Leg., ch. 204, § 10.09, eff. Sept. 1, 2003. The
      Jernigan opinion does not discuss the application of this standard, the trial court’s failure to grant an extension under this
      standard, or whether the trial court could have considered such an extension if it had made such findings. Thus, the Jernigan
      opinion is distinguishable from this case on this basis alone. However, even if the trial court’s discretion to dismiss claims under
      either version of the statute is viewed as the same, the expert report in Jernigan would still constitute “no report” for the
      purposes of dismissal under either version of the statute.
8     The dissent argues that by remanding to allow the trial court to consider whether a section 74.351(c) extension is appropriate we
      are granting Dr. Kessler and Austin Heart more relief than they requested or are entitled to. The dissent’s theory is that there is a
      distinction under section 74.351 between (1) seeking dismissal on the basis that no report was served and (2) seeking dismissal
      on the basis that a report was served, but it does not meet the requirements of the statute and is deficient. According to the
      dissent, if a defendant seeks dismissal only on the basis that no report was served, then dismissal is not appropriate if the court
      finds that a report, no matter how deficient, was served. There are two problems with this theory.
         First, the dismissal mechanism of section 74.351 does not work the way the dissent suggests. Under section 74.351, a
         claimant must serve an “expert report,” as defined in the statute, or be subject to dismissal. If a claimant does not serve a
         report that complies with the statutory requirements, then the claimant has not served an “expert report” as defined in the
         statute. Whether a claimant actually fails to serve a report at all or serves a deficient report the effect under section 74.351(b)
         is the same—the claimant has failed to serve the required “expert report” and dismissal is the remedy. However, section
         74.351(c) provides a potential cure period for situations where the claimant has served a report, but the report does not
         constitute the required “expert report” because “elements of the report are found deficient.” The claimant then has an
         opportunity to fix the defect in the report that was served. If there is a failure to cure the defect by the extended deadline, then
         dismissal is mandatory because the claimant has failed to serve an “expert report” as defined in the statute.
         While section 74.351(b) does not distinguish between a complete failure to serve a report and the failure to serve a complying
         report, there is a distinction between the two for the purposes of 74.351(c). When a claimant fails to serve a report at all,
         section 74.351(c) does not provide a basis for the trial court to grant any extension of the deadline for serving a report.
         Consequently, dismissal is mandatory without any cure period. When a claimant serves a report, but it is deficient, section
         74.351(c) gives the trial court the discretion to grant an extension to cure. Regardless of whether a claimant has failed to serve
         a report at all or has served a deficient report, the statutory basis of the motion to dismiss by a defendant is the same—the
         claimant has failed to serve an “expert report” as required by section 74.351(b). The fact that the claimant who files a
         deficient report may request and receive an extension of time to cure the deficiencies does not alter the nature of the
         defendant’s motion to dismiss. The motion to dismiss is on the ground that the plaintiff has failed to serve an “expert report.”
         Second, the defendants in this case did request dismissal on the basis that, while the Webbs had served a report that
         mentioned Dr. Kessler, the report “fails to address the standard of care applicable to Dr. Kessler, the breach of the standard or
         any alleged causal link.” This is an allegation that the report served was deficient. The defendants acknowledge that a report
         was served and that the report addresses conduct of Dr. Kessler, but they claim it is deficient in failing to address the
         statutorily required elements. They are aware that section 74.351(c) grants the trial court some discretion in allowing an
         extension to cure certain deficient reports. But, they argue that the report in this case is so deficient that it should be viewed as
         “no report,” requiring dismissal rather than remand for consideration of an extension period. By alleging that the deficiency is
         severe enough to constitute “no report” the defendants are trying to avoid the possibility of a cure period. They are not
         altering their claim that the report they received is deficient and will require dismissal if not corrected.
         We have concluded that the report is deficient, but not so deficient as to constitute “no report.” Therefore, our options are (1)
         reverse the trial court order denying the motion to dismiss and render judgment of dismissal or (2) reverse the trial court order
         and remand for consideration of whether an extension should be granted to give the plaintiffs an opportunity to attempt to
         cure. Remanding for the case to proceed on its merits, even though we agree with the appellants that the report is deficient, is
         not an option.
1     While Dr. Cororve’s report explicitly mentions Austin Heart, the Dallas court of appeals has held that when a defendant is only
      alleged to be vicariously liable for the negligence of another defendant, the expert report need not specifically name or address
      the negligence of the defendant to whom liability will be imputed. University of Tex. Southwestern Med. Ctr. v. Dale, 188
      S.W.3d 877, 879 (Tex.App.-Dallas 2006, no pet.). What is relevant is that the report specifically identify the person whose
      conduct the plaintiff is calling into question and show how that person’s conduct constituted negligence. Id.


               © 2015 Thomson Reuters. No claim to original U.S. Government Works.                                                       10
Austin Heart, P.A. v. Webb, 228 S.W.3d 276 (2007)


2     Earlier in the report, under the materials reviewed section, Dr. Cororve refers to an e-mail from Mr. Webb to Dr. Kessler dated
      05/04/05. In their brief on appeal, the Webbs assert that the report erroneously attributes the response to that e-mail as being
      from Dr. Rodgers when it was actually from Dr. Kessler. There is, however, no evidence in the record indicating who sent the e-
      mail.
3     While it is true that the number of times a physician is named, by itself, does not indicate the report complains of that
      physician’s conduct, it is more likely that a report discussing mainly the conduct of one physician is about the conduct of that
      physician.
4     The motion to dismiss clearly distinguishes the two scenarios, stating:
          This is not an occasion in which a report was served on Austin Heart, P.A. or David J. Kessler, M.D. wherein the expert
          failed to address a requisite element, such as the standard of care, the alleged breach of the standard, or the alleged causal
          link, thus making the report deficient. Here, the report constitutes no report at all.
        Thus, Austin Heart and Dr. Kessler did not, as the majority contends, “argue that the report in this case is so deficient that it
        should be viewed as ‘no report.’ ”
5     The remand fashioned by the majority grants Austin Heart and Dr. Kessler relief not requested because the majority treats their
      motion to dismiss as if it were based on two grounds: (1) that the report was “no report” and (2) that even if the report was some
      report that it was deficient. Austin Heart’s and Dr. Kessler’s motion, however, was based solely on the first ground. Without a
      motion to dismiss based on deficiency, there is no basis for a finding of deficiency and no need for a 30–day extension “to cure
      the deficiency.” See Tex. Civ. Prac. & Rem.Code Ann. § 74.351(c).




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              © 2015 Thomson Reuters. No claim to original U.S. Government Works.                                                      11
Baylor All Saints Medical Center v. Martin, 340 S.W.3d 529 (2011)




                   340 S.W.3d 529                                                   I. Introduction
               Court of Appeals of Texas,
                      Fort Worth.                              In one issue, Appellant Baylor All Saints Medical Center
                                                               asserts that the trial court erred when it determined that
    BAYLOR ALL SAINTS MEDICAL CENTER,                          the expert report filed by the Appellees Pamela and John
                 Appellant,                                    Martin met the requirements of section 74.351 of the civil
                     v.                                        practice and remedies code. See Tex. Civ. Prac. &
   Pamela MARTIN and John Martin, Appellees.                   Rem.Code Ann. § 74.351 (Vernon 2011). We reverse and
                                                               remand.
       No. 02–10–00402–CV. | April 14, 2011.


Synopsis
Background: Patient sued hospital for negligence based
                                                                         II. Factual and Procedural History
on alleged sexual assault on patient in her hospital room.
Hospital objected to sufficiency of patient’s expert report,   The Martins sued Baylor for negligence, alleging that
moved to dismiss, and requested attorney fees. Following       Pamela was sexually assaulted in her hospital room as she
a hearing, the 17th District Court, Tarrant County,            recovered from surgery. In support of their claim, the
Melody Wilkinson, J., overruled hospital’s objections and      Martins served Baylor with Dr. John C. Shershow, M.D.’s
denied motion and request for attorney fees. Hospital          expert report and curriculum vitae. Baylor objected to the
appealed.                                                      report’s sufficiency, moved to dismiss the Martins’ claim,
                                                               and requested attorney’s fees. The trial court overruled
                                                               Baylor’s objections after a hearing and denied Baylor’s
[Holding:] The Court of Appeals, Bob McCoy, J., held           motion to dismiss and request for attorney’s fees. This
that patient’s expert report was deficient in establishing     appeal followed.
appropriate standard of care for the hospital and the
breach of that standard.

                                                                                  III. Expert Report
Reversed and remanded.
                                                               Baylor appeals the trial court’s order overruling its
                                                               objections that the Martins’ expert witness report does not
Attorneys and Law Firms
                                                               comply with section 74.351, arguing that the report failed
*531 Cantey Hanger LLP, Stephen L. Tatum, Carol J.             to adequately set forth the standard of care applicable to
Traylor and David Speed, Fort Worth, TX, for Appellant.        Baylor and how that standard was breached.

King Law Office, P.C. and Russell W. King, Stephenville,
TX, for Appellee.
                                                               A. Standard of Review
                                                               [1]
PANEL: LIVINGSTON, C.J.; McCOY and GABRIEL,                       We review a trial court’s denial of a motion to dismiss
JJ.                                                            for an abuse of discretion. Jernigan v. Langley, 195
                                                               S.W.3d 91, 93 (Tex.2006); *532 Maris v. Hendricks, 262
                                                               S.W.3d 379, 383 (Tex.App.-Fort Worth 2008, pet.
                                                               denied); Ctr. for Neurological Disorders, P.A. v. George,
                                                               261 S.W.3d 285, 290–91 (Tex.App.-Fort Worth 2008, pet.
                                                               denied). A trial court abuses its discretion when it acts in
                        OPINION                                an arbitrary or unreasonable manner or without reference
                                                               to any guiding rules or principles. Downer v. Aquamarine
BOB McCOY, Justice.                                            Operators, Inc., 701 S.W.2d 238, 241–42 (Tex.1985),
                                                               cert. denied, 476 U.S. 1159, 106 S.Ct. 2279, 90 L.Ed.2d
                                                               721 (1986). Merely because a trial court may decide a
                                                               matter within its discretion in a different manner than an

               © 2015 Thomson Reuters. No claim to original U.S. Government Works.                                   1
Baylor All Saints Medical Center v. Martin, 340 S.W.3d 529 (2011)



appellate court would in a similar circumstance does not            other documents or tangible things, related to the
demonstrate that an abuse of discretion has occurred. Id.           patient’s health care[.]
However, a trial court has no discretion in determining
what the law is, or in applying the law to the facts, and        Tex. Civ. Prac. & Rem.Code Ann. § 74.351.
thus “a clear failure by the trial court to analyze or apply
                                                                 [2] [3]
the law correctly will constitute an abuse of discretion.”             The purpose of the expert report requirement is to
Walker v. Packer, 827 S.W.2d 833, 840 (Tex.1992) (orig.          inform the defendant of the specific conduct the plaintiff
proceeding); Ehrlich v. Miles, 144 S.W.3d 620, 624               has called into question and to provide a basis for the trial
(Tex.App.-Fort Worth 2004, pet. denied).                         court to conclude that the claims have merit. Bowie Mem’l
                                                                 Hosp. v. Wright, 79 S.W.3d 48, 52 (Tex.2002) (citing Am.
                                                                 Transitional Care Ctrs. of Tex., Inc. v. Palacios, 46
                                                                 S.W.3d 873, 879 (Tex.2001)). When a defendant moves
B. Applicable Law                                                to dismiss a plaintiff’s claims for failure to provide the
Section 74.351 of the civil practice and remedies code,          required expert report,
entitled “Expert Report,” provides,
                                                                                    The issue for the trial court is
  (a) In a health care liability claim, a claimant shall, not                       whether “the report” represents a
  later than the 120th day after the date the original                              good-faith effort to comply with
  petition was filed, serve on each party or the party’s                            the statutory definition of an expert
  attorney one or more expert reports, ...                                          report. That definition *533
                                                                                    requires, as to each defendant, a
  ....                                                                              fair summary of the expert’s
                                                                                    opinions about the applicable
  (c) If an expert report has not been served within the
                                                                                    standard of care, the manner in
  period specified by Subsection (a) because elements of
                                                                                    which the care failed to meet that
  the report are found deficient, the court may grant one
                                                                                    standard,     and      the     causal
  30–day extension to the claimant in order to cure the
                                                                                    relationship between that failure
  deficiency....
                                                                                    and the claimed injury. Because the
  ....                                                                              statute focuses on what the report
                                                                                    discusses, the only information
  (l ) A court shall grant a motion challenging the                                 relevant to the inquiry is within the
  adequacy of an expert report only if it appears to the                            four corners of the document.
  court, after hearing, that the report does not represent
  an objective good faith effort to comply with the              Palacios, 46 S.W.3d at 878 (citations omitted).
  definition of an expert report in Subsection (r)(6).           [4] [5] [6] [7] [8] [9]
                                                                                  An expert report “need not marshal all the
  ....                                                           plaintiff’s proof.” Id. at 878–79. While the report must do
                                                                 more than simply state the expert’s conclusions about the
  (r) In this section:....                                       standard of care, breach, and causation, to avoid dismissal
                                                                 “a plaintiff need not present evidence in the report as if it
         (6) “Expert report” means a written report by an        were actually litigating the merits. The report can be
         expert that provides a fair summary of the expert’s     informal in that the information in the report does not
         opinions as of the date of the report regarding         have to meet the same requirements as the evidence
         applicable standards of care, the manner in which the   offered in a summary-judgment proceeding or at trial.” Id.
         care rendered by the physician or health care           at 879.
         provider failed to meet the standards, and the causal
         relationship between that failure and the injury,          [t]he standard of care for a hospital is what an
         harm, or damages claimed.                                  ordinarily prudent hospital would do under the same or
                                                                    similar circumstances. Identifying the standard of care
  (s) Until a claimant has served the expert report and             is critical: Whether a defendant breached his or her
  curriculum vitae as required by Subsection (a), all               duty to a patient cannot be determined absent specific
  discovery in a health care liability claim is stayed              information about what the defendant should have done
  except for the acquisition by the claimant of                     differently. “While a ‘fair summary’ is something less
  information, including medical or hospital records or             than a full statement of the applicable standard of care


                   © 2015 Thomson Reuters. No claim to original U.S. Government Works.                                      2
Baylor All Saints Medical Center v. Martin, 340 S.W.3d 529 (2011)



  and how it was breached, even a fair summary must set         information to establish the appropriate standard of care
  out what care was expected, but not given.”                   and breach thereof, and hence, further discovery should
                                                                be allowed.
Id. at 880 (citations omitted). Assaults of the type alleged
by the Martins are covered by section 74.351. See, e.g.,        We observe that the Martins were well aware, as set out in
Diversicare Gen. Partner, Inc. v. Rubio, 185 S.W.3d 842,        their petition, of the alleged facts of the assault. Hence, it
853, 855 (Tex.2005) (holding that a patient’s claim             was incumbent upon their expert to articulate the standard
against a nursing home for negligence in failing to             of care applicable to the hospital to prevent such an
provide sufficient staff and supervision to prevent her         assault, which does not require a factual inquiry into the
sexual assault by another patient is a health care liability    measures taken by the hospital to meet this standard of
claim).                                                         care.

                                                                Dr. Shershow’s report opines (1) that Baylor is expected
                                                                to adhere to “specific standards of care” for its patients,
C. Analysis                                                     (2) that there must be policies in place to safeguard
[10]
     Baylor argues that Dr. Shershow’s report fails to          patients from assault, including employing “a sufficient
adequately identify the standard of care and that he does       number of security personal [sic] to insure that no
not include specific information about what Baylor should       unauthorized persons assault patients and training staff to
have done differently. Dr. Shershow’s report presents the       identify persons not authorized to enter patients[’] rooms
following as Baylor’s standard of care under the facts of       and prevent them from doing so,” and (3) that these
this case:                                                      standards must be adequately implemented. These
                                                                opinions do not establish what specific policies and
  Standard of Care                                              safeguards should have been in place. For example, the
                                                                “policies in place to safeguard patients” are not identified;
  A hospital such as Baylor All Saints Medical [C]enter
                                                                neither are the number of security personnel required nor
  is expected to adhere to specific standards of care in
                                                                the training the staff should have received regarding
  regard to all of its patients. A bedrock principal [sic] in
                                                                identifying unauthorized persons. See Wright, 79 S.W.3d
  providing care to its patients is the understanding that
                                                                at 52 (stating that the expert must explain the basis of his
  all of a hospital’s patients by nature of their disease or
                                                                statements to link his conclusions to the facts).
  injury are potentially vulnerable and necessarily need
  to receive treatment in a safe and secure environment.        [11]
                                                                    Keeping in mind that mere conclusions about the
  The Joint Commission on Accreditation of Health Care
                                                                standard of care are insufficient, that the standard is “what
  Organizations (JCAHO) has established in its Hospital
                                                                an ordinary prudent hospital would do under the same or
  Standards that all healthcare organizations must have in
                                                                similar circumstances,” and that “even a fair summary
  place policies which safeguard patients from assault by
                                                                must set out what care was expected,” see Palacios, 46
  hospital staff and by strangers that enter the hospital.
                                                                S.W.3d at 880, we cannot agree that Dr. Shershow’s
  The JCAHO requires that hospitals adequately
                                                                report fulfills the required specificity.
  implement these standards, and monitor this
  implementation. The JCAHO patient security and                [12]
                                                                    And although the Martins specifically complain that
  safety expectations would require at a minimum that
                                                                section 74.351(s) only allows discovery of medical
  hospitals should employ a sufficient number of security
                                                                records and billing records, which do not contain the
  personal [sic] to insure that no unauthorized persons
                                                                circumstances surrounding the assault and hence provide
  enter patients [’] rooms and physically assault their
                                                                no discovery as to whether security standards were met,
  patients. Additionally, the JCAHO standards would
                                                                this is a misreading of the discovery allowed under
  expect that all hospital staff should be trained to
                                                                section 74.351(s). Section 74.351(s) allows discovery “of
  identify persons that are not authorized to enter
                                                                information, including medical or hospital records or
  patients[’] rooms and should monitor and prevent
                                                                other documents or tangible things, related to the
  unauthorized persons from *534 having access to
                                                                patient’s health care.” See Tex. Civ. Prac. & Rem.Code
  patients receiving treatment at the hospital.
                                                                Ann. § 74.351(s) (emphasis added). Furthermore, as
                                                                assaults of the type here are covered by section 74.351,
The Martins reply that the trial court did not abuse its
                                                                see Rubio, 185 S.W.3d at 851, logically, discovery of the
discretion by denying Baylor’s motion to dismiss,
                                                                hospital’s policies and procedures regarding the
claiming that Dr. Shershow’s report was adequate. They
                                                                protection of patients from assault must be covered by
alternatively argue that the medical records that section
                                                                section 74.351(s). See Tex. Civ. Prac. & Rem.Code Ann.
74.351(s) allows them to discover do not contain adequate
                                                                § 74.351(s) (stating that all discovery is stayed except for

               © 2015 Thomson Reuters. No claim to original U.S. Government Works.                                      3
Baylor All Saints Medical Center v. Martin, 340 S.W.3d 529 (2011)



acquisition by the claimant of information related to the              deficient, and the trial court abused its discretion by
patient’s health care); see also Bogar v. Esparza, 257                 finding otherwise. We sustain Baylor’s sole issue.1
S.W.3d 354, 371–72 (Tex.App.-Austin 2008, no pet.) (op.
on reh’g) (noting that the plaintiff has the burden to
establish that section 74.351’s discovery limitations have
in fact prevented her from satisfying the statute’s expert
report requirements and pursuing her claim). But cf.                                            IV. Conclusion
Simmons v. Texoma Med. Ctr., 329 S.W.3d 163, 174
(Tex.App.-El Paso 2010, no pet. h.) (interpreting section              Having sustained Baylor’s sole issue, we reverse the trial
74.351(s) to preclude “[d]iscovery of issues such as                   court’s order and remand this case to the trial court to
financial information, insurance and indemnity                         consider whether to grant a thirty-day extension to cure
agreements, corporate organization, *535 and even                      the deficiency. See Tex. Civ. Prac. & Rem.Code Ann. §
bylaws, policies, and procedures” until an expert report is            74.351(c); Leland v. Brandal, 257 S.W.3d 204, 207
served).                                                               (Tex.2008); Foster v. Richardson, 303 S.W.3d 833, 845–
                                                                       46 (Tex.App.-Fort Worth 2009, no pet.).
Therefore, we hold that with respect to the establishment
of the appropriate standard of care for Baylor and the
breach of that standard, the Martins’ expert report was

Footnotes
1      Based on our resolution, we do not reach Baylor’s other arguments. See Tex.R.App. P. 47.1.




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.                                                  4
Bogar v. Esparza, 257 S.W.3d 354 (2008)




                                                               Diane Henson, J., filed dissenting opinion on denial of
                                                               motion for en banc reconsideration.
                   257 S.W.3d 354
               Court of Appeals of Texas,
                        Austin.
                                                               Attorneys and Law Firms
          Mark D. BOGAR, M.D., Appellant
                                                               *357 Carla Garcia Connolly, Connolly & Castagna,
                          v.
                                                               L.L.P., Austin, for Appellant.
      Dolores G. ESPARZA, Individually and as
     Administrator of the Estate of Katherine G.               Robert C. Alden, Don L. Davis, Byrd, Davis & Furman
  Guerrero; Deceased; Fernando Guerrero; Sofia G.              LLP, Austin, Stephen B. Pershing, Center for
   Butschy; Gilberto Guerrero; Antonio Guerrero;               Constitutional Litigation, P.C., Washington, DC, for
  Rosie G. Garza; Benito Guerrero; Josey G. Selvera;           Appellees.
            and Frances G. Faz, Appellees.
                                                               Before Justices     PATTERSON,        PEMBERTON            and
       No. 03–07–00037–CV. | May 16, 2008.                     WALDROP.

Synopsis
Background: Survivors of deceased patient brought
medical malpractice action against patient’s physician and
hospital after patient died from post-surgery                                          OPINION
pharmaceutical drug overdose. Physician and hospital
filed a joint motion for dismissal and attorney fees based     BOB PEMBERTON, Justice.
on survivors’ alleged failure to file an expert report that
complied with statutory requirements. The Probate Court        We withdraw our opinion, dissenting opinion and
No. 1, Travis County, Guy S. Herman, J., denied the            judgment dated June 28, 2007 and substitute the
motion for dismissal. Physician appealed.                      following in its stead. We overrule the Appellees’ Motion
                                                               for Rehearing.

                                                               We again address issues arising from the expert report
Holdings: On denial of rehearing, the Court of Appeals,        requirements of section 74.351 of the civil practice and
Bob Pemberton, J., held that:                                  remedies code. See Tex. Civ. Prac. & Rem.Code Ann. §
[1]                                                            74.351 (West Supp.2006). Appellant Mark D. Bogar,
   statute allowed physician to file an interlocutory appeal   M.D. appeals the probate court’s denial of his motion to
from trial court’s denial of the motion to dismiss;            dismiss appellees’ health care liability claims under
[2]                                                            section 74.351(b) for failure to serve an expert report.
   expert report failed to comply with the statutory           Their appeal requires us to consider (1) whether we have
requirements, entitling physician to sanction;                 subject-matter jurisdiction to consider it; (2) whether
[3]                                                            appellees served the required expert report; and, if not, (3)
    the expert report constituted “no report” as to            the appropriate appellate remedy. We conclude that we
physician, such that dismissal of the action against him       have jurisdiction over Dr. Bogar’s interlocutory appeal
was required without any opportunity to cure the report;       and that the controlling law and “four corners” of
and                                                            appellees’ report leave us no alternative but to reverse and
[4]                                                            render judgment dismissing appellees’ claim and
   discovery limitations set forth in expert-report statute    awarding attorney’s fees and costs. See id. § 74.351(b). In
did not deny survivors due process.                            their motion for rehearing and en banc *358
                                                               reconsideration, appellees have urged that our application
                                                               of section 74.351 violates due process and due course of
Reversed, rendered, and remanded in part.
                                                               law. We disagree, for reasons we will explain herein. We
                                                               will remand to the probate court to determine the amount
Jan P. Patterson, J., filed a dissenting opinion and
                                                               of attorney’s fees to which Dr. Bogar is entitled.
dissented from the denial of en banc reconsideration.




               © 2015 Thomson Reuters. No claim to original U.S. Government Works.                                    1
Bogar v. Esparza, 257 S.W.3d 354 (2008)



                    BACKGROUND
                                                                Both Dr. Bogar and Healthsouth timely filed notices of
Appellees sued Dr. Bogar and Healthsouth on May 1,              interlocutory appeal. In the interim, Healthsouth settled
2006, alleging negligence in connection with medical care       with appellees. We accordingly address only the appellate
provided to Katherine R. Guerrero by Dr. Bogar and the          issues presented by Dr. Bogar.
“agents, servants, employees, representatives, and staff”
of Healthsouth Rehabilitation Hospital of Austin between
December 28, 2004, and January 12, 2005, when Ms.
Guerrero died. Appellees alleged that following surgery,
Ms. Guerrero was placed under the care of Dr. Bogar and                                ANALYSIS
Healthsouth and, in the course of her rehabilitative
treatment, was given a fatal overdose of pharmaceutical         In a single issue, Dr. Bogar argues that the probate court
products. Appellees pleaded that an autopsy report from         abused its discretion in denying his motion to dismiss and
the Travis County Medical Examiner concluded that Ms.           request for attorney’s fees and costs. In addition to
Guerrero “died as a result of an overdose of oxycodone          disputing the merits of this contention, appellees have
and propoxyphene.”                                              filed a motion to dismiss *359 Dr. Bogar’s interlocutory
                                                                appeal for want of jurisdiction, contending that no statute
On or around June 6, 2006, Appellees served on Dr.              authorizes him to appeal the order he seeks to challenge.
Bogar and Healthsouth an expert report prepared by Dr.
Jesse Adame that purported to comply with the
requirement of subsection 74.351(a). See Tex. Civ. Prac.
& Rem.Code Ann. § 74.351(a) (“In a health care liability        Jurisdiction
                                                                [1]
claim, a claimant shall, not later than the 120th day after          Appellate courts generally have subject-matter
the date the claim was filed, serve on each party or the        jurisdiction only over appeals from final judgments and
party’s attorney one or more expert reports ... for each        have jurisdiction over appeals of interlocutory orders only
physician or health care provider against whom a liability      when that authority is explicitly granted by statute.
claim is asserted.”). Both defendants timely filed              Academy of Oriental Med., L.L.C. v. Andra, 173 S.W.3d
objections to the sufficiency of Dr. Adame’s report. See        184, 185 (Tex.App.-Austin 2005, no pet) (citing Stary v.
id. (“Each defendant physician or health care provider          DeBord, 967 S.W.2d 352, 352–53 (Tex.1998)). Section
whose conduct is implicated in a report must file and           51.014(a) of the civil practice and remedies code
serve any objection to the sufficiency of the report not        authorizes an interlocutory appeal from two types of
later than the 21st day after the date it was served, failing   orders regarding expert reports under chapter 74. First, an
which all objections are waived.”). Each defendant              interlocutory appeal may be taken from an order that
contended that Dr. Adame’s report failed to satisfy the         “denies all or part of the relief sought by a motion under
statutory definition of an “expert report” by failing to        Section 74.351(b), except that an appeal may not be taken
provide a fair summary of the expert’s opinions regarding       from an order granting an extension under Section
applicable standards of care, the manner in which the care      74.351(c).” Tex. Civ. Prac. & Rem.Code Ann. §
rendered by each defendant failed to meet the standards,        51.014(a)(9) (West Supp.2006). Second, an interlocutory
and the causal relationship between such failure and Ms.        appeal may be taken from an order that “grants relief
Guerrero’s death. See id. § 74.351(a), (l ), (r)(6). Further,   sought by a motion under Section 74.351(l ).” Id. §
Dr. Bogar urged that Dr. Adame, a pathologist, had failed       51.014(a)(10).
to demonstrate that he was an “expert” qualified to render      [2]
opinions concerning the standards of care applicable to            Appellees assert that the order from which Dr. Bogar
Dr. Bogar, a physical medicine rehabilitation physician.        seeks to appeal is neither of these. They suggest that “the
See id. § 74.351(r)(5), § 74.401 (West 2005).                   relief sought by a motion under Section 74.351(b)” is
                                                                available only where a claimant has failed to timely file
Subsequently, after appellees’ 120–day deadline for             an instrument purporting to be an “expert report” by the
serving their expert reports expired, see id. § 74.351(a),      120–day deadline of subsection (a), not when a purported
Dr. Bogar and Healthsouth filed a joint motion seeking          “expert report” is timely filed but is found to be
dismissal with prejudice, attorney’s fees and costs for         inadequate. See id. § 74.351(b) (“If ... an expert report has
failure to file an expert report complying with section         not been served within the period specified by Subsection
74.351. See id. § 74.351(b). Dr. Bogar later filed an           (a)....”). Here, appellees maintain, there is no dispute that
amended motion to dismiss adding his earlier challenge to       “the expert report of Dr. Adame was served within the
Dr. Adame’s qualifications. On January 10, 2007, the            required period of time.” Appellees further assert that
probate court denied the dismissal motions.                     challenges to the adequacy or sufficiency of expert

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Bogar v. Esparza, 257 S.W.3d 354 (2008)



reports, as contrasted with their absence or timeliness, are       provider failed to meet the standards, and the causal
governed exclusively by section 74.351(l ). Section                relationship between that failure and the injury, harm, or
74.351(l ) states that “[a] court shall grant a motion             damages claimed.” Tex. Civ. Prac. & Rem.Code Ann. §
challenging the adequacy of an expert report only if it            74.351(r)(6); see id. § 74.351(r)(5) (definition of
appears to the court, after hearing, that the report does not      “expert”). Thus, if the report does not comply with
represent an objective good faith effort to comply with the        subsection (r)’s “expert report” definition, it does not
definition of an expert report in Subsection (r)(6).” Id. §        satisfy the claimant’s requirement under subsection (a)
74.351(l ). Because Dr. Bogar’s motion, in appellees’              and exposes the claimant to potential sanctions under (b),
view, is “a motion under section 74.351(l ),” they assert          including dismissal.
that his right of interlocutory appeal is controlled by
section 51.014(a)(10) rather than (a)(9), and no appeal is         Subsection (c), however, provides that “[i]f an expert
available from the probate court’s order denying him               report has not been served within the period specified by
relief. See id. § 51.014(a)(10) (permitting appeal from an         Subsection (a) because elements of the report are found
order that “grants relief sought by a motion under Section         deficient,” the trial court is afforded discretion to grant a
74.351(l )”) (emphasis added). They equate this case to            single 30–day extension “in order to cure the deficiency.”
Academy of Oriental Medicine, L.L.C. v. Andra, where we            Tex. Civ. Prac. & Rem.Code Ann. § 74.351(c) (emphases
held that an order denying a motion challenging the                added); See Ogletree, 262S.W.3d at ––––, 2007 WL
sufficiency of an expert report was governed by section            4216606, at *2–3, 2007 Tex. LEXIS 1028, at *7–8 (“the
74.351(l ) rather than section 74.351(b) and that                  Legislature recognized that not all initial timely served
“[b]ecause this appeal challenges an order that is neither         reports would satisfy each of the statutory criteria. As a
an order denying the relief sought by a motion under §             result, the [2003] amendments explicitly give trial courts
74.351(b) nor one granting relief sought by a motion               discretion [in subsection (c) ] to grant a thirty-day
under § 74.351(l ), we lack jurisdiction to hear it.” 173          extension so that parties may, where possible, cure
S.W.3d at 186–89. We disagree with appellees’ views of             deficient reports.... In this important respect, a deficient
section 74.351 and Andra.                                          report differs from an absent report.”). Conversely, “[i]f
                                                                   no report is served within the 120–day deadline provided
[3]
    Under section 74.351(b), as the supreme court has              by 74.351(a)—i.e., an ‘absent report’—the Legislature
recently explained, a plaintiff may fail to “serve” an             denied trial courts the discretion to deny motions to
“expert report” within the period specified by Subsection          dismiss or grant extensions.” Ogletree, 262S.W.3d at –––
(a) not only by failing to serve any expert report within          –, 2007 WL 4216606, at *2, 2007 Tex. LEXIS 1028, at
that deadline (an “absent report”), but also by failing to         *6; see also id. at –––– & n. 2, 2007 WL 4216606, at *2
provide a report within the deadline that satisfies the            & n. 2, at *7 & n. 2 (“section 74.351’s language is
statutory requirements for “expert reports” (a “deficient          somewhat confusing, as the statute uses the phrase “has
report”). See Ogletree *360 v. Matthews, No. 05–0502, ––           not been served” to refer both to deficient and absent
– S.W.3d ––––, –––– & n. 2, 2007 WL 4216606, at *2–3               reports.”).
& n. 2, 2007 Tex. LEXIS 1028, at *6–8 & n. 2, (Tex.
Nov. 30, 2007); Austin Heart P.A. v. Webb, 228 S.W.3d              The supreme court also reiterated the concept that a report
276, 284 (Tex.App.-Austin 2007, no pet.); Apodaca v.               served within the 120–day deadline that fails entirely to
Russo, 228 S.W.3d 252, 257–58, (Tex.App.-Austin 2007,              implicate the conduct of a defendant is not merely
no pet.); cf. Walker v. Gutierrez, 111 S.W.3d 56, 61               deficient, but is in effect an absent report or no report as
(Tex.2003) (dismissal under former article 4590i                   to that defendant. See id. at –––– – ––––, 2007 WL
warranted for “failure to comply” with report deadline by          4216606, at *2–3, at *6–8 (citing with approval Garcia v.
either failure to file or failure to file adequate report). This   Marichalar, 185 S.W.3d 70, 73 (Tex.App.-San Antonio
conclusion is apparent from the text and structure of              2005, no pet.) for the principle that an “expert report” that
section 74.351. Subsection (a) requires the claimant to file       mentioned other providers but not Garcia was in effect no
one or more “expert reports” not later than the 120th day          report as to Garcia and concluding that an extension was,
after the date the original petition was filed, and                therefore, improper); cf. Austin Heart, 228 S.W.3d at 284
subsection (b) mandates sanctions “[i]f, as to a defendant         (holding that timely report that “plainly discusses the
physician or health care provider, an expert report has not        conduct of the physician in question” but was deficient in
been served within the period specified by Subsection              failing to explicitly link the physician to the *361 report’s
(a).” “Expert report” is defined within section 74.351 as:         stated opinions regarding standard of care and causation
“a written report by an expert that provides a fair                was potentially curable and should be remanded for
summary of the expert’s opinions as of the date of the             consideration of whether a subsection (c) extension
report regarding applicable standards of care, the manner          should be granted).
in which the care rendered by the physician or health care

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Bogar v. Esparza, 257 S.W.3d 354 (2008)



Recently, the Texas Supreme Court has laid to rest any
question as to whether the availability of interlocutory
review of an order denying relief under section 74.351(b)
differs depending on whether the motion’s grounds relate         Dr. Adame’s report
to (1) the absence of any timely-served expert report, (2) a     We turn now to Dr. Bogar’s issue. Dr. Bogar asserts that
timely expert report that is nonetheless not “served” on a       the probate court abused its discretion in denying his
defendant because it is deficient as to one or more              section 74.351(b) motion because appellees failed to
statutory criteria, or (3) a timely expert report that is        “serve” him with an expert report. Specifically, Dr. Bogar
effectively “no report” as to a defendant because it fails to    urges that (1) Dr. Adame’s report did not represent a good
implicate that defendant’s conduct. The supreme court            faith effort to comply with the statutory requirements for
concluded, as we did on original submission, that it does        “expert reports” and, in fact, constituted no report as to
not. See Lewis v. Funderburk, 253 S.W.3d 204, 207–08             him; and (2) Dr. Adame, as a pathologist, was not
(Tex.2008). A potential limitation on this right to appeal       qualified as an “expert” to evaluate Dr. Bogar’s
exists, however, where a timely expert report implicates a       performance as a rehabilitative *362 medicine specialist.
defendant’s conduct: the trial court, in its discretion, may     We need not reach the latter contention because we agree
grant an extension under section 74.351(c), in which case        that Dr. Adame’s report was deficient with regard to the
the order denying the motion under section 74.351(b) is          statutory requirements for expert reports.
not appealable. Tex. Civ. Prac. & Rem.Code Ann. §§
                                                                 [4] [5] [6]
51.014(a)(9), 74.351(b)-(c); see Ogletree, 262 S.W.3d at                 As noted above, the “expert report” or reports that
––––, 2007 WL 4216606, at * 3–4, 2007 Tex. LEXIS                 a health care liability claimant must serve under section
1028, at *6–8 (“If no report is served within the 120 day        74.351(a) must provide “a fair summary of the expert’s
deadline provided by 74.351(a), the Legislature denied           opinion as of the date of the report regarding the
trial courts the discretion to dismiss or grant extensions,      applicable standards of care, the manner in which the care
and a trial court’s refusal to dismiss may be immediately        rendered by the physician or health care provider failed to
appealed.... [But] even when a report is deemed not              meet the standards, and the causal relationship between
served because it is deficient, the trial court retains          that failure and the injury, harm, or damages claimed.”
discretion to grant a thirty-day extension, and the              Tex. Civ. Prac. & Rem.Code Ann. § 74.351(r)(6). A trial
Legislature explicitly stated that such orders are not           court, again, must grant a motion challenging the
appealable.... [I]f a deficient report is served and the trial   adequacy of a report only if the report “does not represent
court grants a thirty-day extension, that decision—even if       an objective good faith effort to comply” with this
coupled with a denial of a motion to dismiss—is not              definition of “expert report.” Id. § 74.351(l ). To
subject to appellate review.”). In other words, an order         constitute a “good faith effort,” the report must provide
denying relief under subsection (b) is immediately               enough information to fulfill two purposes: (1) it must
appealable unless the trial court has discretion under           inform the defendant of the specific conduct the plaintiff
subsection (c) to grant a 30–day extension and actually          has called into question; and (2) it must provide a basis
does so.                                                         for the trial court to conclude that the claims have merit.
                                                                 Austin Heart, 228 S.W.3d at 279 (citing Bowie Mem’l
Here, Dr. Bogar filed objections to Dr. Adame’s expert           Hosp. v. Wright, 79 S.W.3d 48, 52 (Tex.2002); American
report within 21 days of service, see Tex. Civ. Prac. &          Transitional Care Ctrs. of Tex., Inc. v. Palacios, 46
Rem.Code Ann. § 74.351(a), and a motion, after the 120–          S.W.3d 873, 879 (Tex.2001)). Although a report need not
day deadline had expired, explicitly invoking subsection         marshal all of a claimant’s proof, it must include the
(b) and asserting that the probate court should dismiss          expert’s opinion on each of the elements identified in
appellees’ claim against him with prejudice and award            section 74.351. Id. (citing Palacios, 46 S.W.3d at 878). It
attorney’s fees and costs for failure to file “a statutorily     is not enough for the report merely to state the expert’s
defined expert report” by the deadline. See id. §                conclusions about the statutory elements. Id. (citing
74.351(b). The probate court denied that motion without          Palacios, 46 S.W.3d at 879). “Rather, the expert must
granting an 30–day extension. Id. § 74.351(b), (c). That         explain the basis of his statements to link his conclusions
order “denies all or part of the relief sought by a motion       to the facts.” Id. (quoting Bowie Mem’l, 79 S.W.3d at 52)
under Section 74.351(b),” and we have subject-matter             (quoting Earle v. Ratliff, 998 S.W.2d 882, 890
jurisdiction to adjudicate Dr. Bogar’s appeal from that          (Tex.1999)).
order. Id. § 51.014(a)(9); see Lewis, 253 S.W.3d at 207;
                                                                 [7]
Ogletree, 262 S.W.3d at ––––, 2007 WL 4216606, at *2–                Importantly, because the statute dictates what is
3, 2007 Tex. LEXIS 1028, at *6–8; Andra, 173 S.W.3d at           required in the report, the only information relevant to
186–87. We accordingly deny appellees’ motion to                 determining whether a report complies with the statute is
dismiss Dr. Bogar’s appeal.                                      that within “the four corners” of the report. Id. (citing

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Bogar v. Esparza, 257 S.W.3d 354 (2008)



Palacios, 46 S.W.3d at 878). This requirement “precludes                  with the Duragesic patch, her dose
a court from filling gaps in a report by drawing inferences               was reduced back to 25 mcg. She
or guessing as to what the expert likely meant or                         was also given Protonix for
intended.” Id. (citing Bowie Mem’l, 79 S.W.3d at 53).                     gastrointestinal         prophylaxis.
                                                                          Despite a fairly stable hospital
[8]
   We review a trial court’s ruling on a section 74.351(b)                course, her pain increased. On
motion under an abuse of discretion standard. Palacios,                   January 7, 2005, after her records
46 S.W.3d at 877–78. A trial court abuses its discretion                  were reviewed and she was cleared
when it acts in an arbitrary or unreasonable manner or                    for surgery, she was taken to the
acts without reference to any guiding rules or principles.                operating            room          at
Downer v. Aquamarine Operators, Inc., 701 S.W.2d 238,                     Seton/Brackenridge Hospital for
241 (Tex.1985). A clear failure by the trial court to                     open reduction and internal fixation
analyze or apply the law correctly also constitutes an                    of her left femur. Her surgery went
abuse of discretion. Walker v. Packer, 827 S.W.2d 833,                    well and she was transferred back
840 (Tex.1992).                                                           to HealthSouth Rehabilitation
                                                                          Hospital of Austin on January 8,
The document prepared by Dr. Adame recites his                            2005. She resumed her medical
qualifications and concludes that “I am qualified based on                regimen along with physical and
my education, training and experience to offer an expert                  occupational therapy. Her pain
opinion regarding the cause and mechanism of death of                     persisted and she was taken off of
Mrs. Katherine Ramirez Guerrero. As a pathologist, I am                   Duragesic patch post surgery.
familiar with the standard of care required of physicians                 OxyContin was added to her
not to prescribe drugs either alone or in combination that                therapy, initially at 10 mg and later
will cause a fatal overdose.” “Such conduct,” Dr. Adame                   increased to 20 mg. She had bouts
adds, “falls below the standard of care required of                       of constipation and loose stool
physicians.”                                                              which was medically managed. On
                                                                          January 12, 2005 at 9:34 p.m. she
Dr. Adame then lists the medical records and other                        experienced          cardiopulmonary
materials he had reviewed, and summarizes Ms.                             arrest. Despite cardiopulmonary
Guerrero’s medical history. Dr. Adame notes that Ms.                      resuscitation until 10:13 p.m., she
Guerrero was 76 years of age, and had a “past medical                     was pronounced dead.
history of hyperlipidemia, *363 osteoarthritis, poorly
controlled hypertension, and chronic dizziness.” He           Dr. Adame then summarizes the “significant findings” of
recounts that Ms. Guerrero had complained of left hip         the autopsy report from the Travis County Medical
pain following a December 25, 2004 fall and had been          Examiner’s Office, including “the conclusions ... that
“admitted to Seton/Brackenridge Hospital after is was         Mrs. Guerrero died as a result of an overdose of
determined that she had a nondisplaced fracture of the left   oxycodone and propoxyphene.”
femur,” but “[i]t was also determined at that time, that no
surgical intervention was needed.” Adame then states:         Adame then states his “opinions and conclusions.” He
                                                              begins: “I concur with the autopsy conclusions.” He
            Her     medical     problems     and              observes that the medical examiners “performed a
            rehabilitation were managed by                    complete autopsy with toxocological analysis of blood,
            HealthSouth           Rehabilitation              vitreous humor, and urine,” and references certain
            Hospital of Austin. She was                       autopsy findings. Dr. Adame describes the composition
            transferred to that facility on                   and effect of oxycodone and propoxyphene as various
            December 28, 2004. She was                        dosing levels, including the levels indicative of toxicity
            placed on a Duragesic patch at 25                 and death. Drawing on these observations, he states the
            mcg on December 29, 2004. It was                  following:
            increased to 50 mcg on December
            30, 2004 because of continued                       Mrs. Guerrero had postmortem blood oxycodone
            significant pain. She was also given                concentration of 0.25 mg/L. This level and the clinical
            her usual home medications                          findings of nausea and labored breathing (noted in
            including     Doxepin,     Norvasc,                 nursing notes shortly before her death) indicates that
            Zescril, Tenormin, and Imdur.                       the oxycodone was inducing respiratory depression.
            Because of significant drowsiness
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Bogar v. Esparza, 257 S.W.3d 354 (2008)



      .....                                                       [the patient] more closely, restrained him more securely,
                                                                  or done something else entirely”). In essence, Dr.
      Mrs. Guerrero had postmortem blood propoxyphene             Adame’s report is a second autopsy report, opining about
      levels of 1.0 mg/L. This concentration of propoxyphene      the cause of Ms. Guerrero’s death without explaining who
      and the clinical findings of nausea, labored breathing,     caused it or how. See Sherman v. Austin State Hosp., No.
      and cardiac arrest (noted in nursing notes shortly before   03–05–00296–CV, 2006 WL 305300, at *1, 2006
      her death) indicates that the propoxyphene was              Tex.App. LEXIS 1115, at *30–4 (Tex.App.-Austin 2006,
      inducing respiratory depression, cardiac arrhythmia,        pet. denied) (mem.op.)(“A report finding only the cause
      and circulatory collapse and subsequent death. In           of death does not satisfy the statutory requirements.”),
      addition, the respiratory depression was exacerbated by     cert. denied, 549 U.S. 1133, 127 S.Ct. 976, 166 L.Ed.2d
      the high concentrations of oxycodone (see above).           740 (2007). We hold that the probate court abused its
                                                                  discretion in denying Dr. Bogar’s motion for sanctions
Dr. Adame then concludes:                                         under section 74.351(b). We sustain Dr. Bogar’s issue.
      In summary, Mrs. Guerrero had toxic levels of
      oxycodone along with lethal levels of propoxyphene
      which caused her *364 demise. The mechanism of              Remedy
      death was respiratory depression, cardiac arrhythmia,       [10]
                                                                       In the probate court, appellees requested that, in the
      and circulatory collapse. Additionally, autopsy             event Dr. Adame’s report was found deficient, the court
      examination failed to demonstrate an anatomic cause of      grant them a discretionary 30–day extension under section
      death.                                                      74.351(c) to enable them to cure any deficiencies in the
                                                                  report. See Tex. Civ. Prac. & Rem.Code Ann. §
      All of my opinions above are predicated upon a              74.351(c). Because the probate court held that Dr.
      reasonable medical probability.                             Adame’s report “is sufficient in meeting the requirements
[9]                                                               of ... Ch. *365 74,” it did not reach the extension issue. As
     Dr. Adame’s report fails to comply with the                  earlier noted, trial courts have discretion to grant
requirements of section 74.351. Most notably, it does not         extensions under subsection (c) where “an expert report
identify in any way the person or persons whose conduct           has not been served within the period specified by
is the subject of any of his opinions regarding standard of       Subsection (a) because elements of the report are found
care, causation, and death. We have held that where a             deficient.” See id. § 74.351(c). Conversely, where an
defendant is not identified at least in some manner within        expert report has not been “served” as to a defendant
the “four corners” of the report, the report is, for that         within the 120–day period because no report is timely
reason alone, deficient as to that defendant because it           served or a report fails to implicate the defendant’s
would require the reader to infer or make an educated             conduct, the trial court has no discretion but to dismiss
guess as to whose actions the expert is complaining.              upon a section 74.351(b) motion. Ogletree, 262 S.W.3d at
Austin Heart, 228 S.W.3d at 281; Apodaca, 228 S.W.3d              ––––, 2007 WL 4216606, at *2, 2007 Tex. LEXIS 1028,
at 257–58; see Marichalar, 198 S.W.3d at 255.1 The                at *6 (citing Marichalar, 185 S.W.3d at 73). In Austin
report likewise fails to describe the standard of care            Heart, we discerned from this statutory scheme legislative
potentially applicable to Dr. Bogar, other than a broad           intent that in “at least some situations where a timely
reference to “the standard of care required of physicians         report is deficient [but not entirely absent or no report] ...
not to prescribe drugs either alone or in combination that        the trial court should consider whether the deficiency is
will cause a fatal overdose,” which he never applies or           such that it warrants allowing a cure period.” 228 S.W.3d
analyzes in light of specific facts and circumstances.            at 284. Because we concluded that the report at issue in
Further, Dr. Adame never describes how Dr. Bogar might            the case was deficient as opposed to no report regarding
have breached a standard of care or link such a breach to         the physician defendant, we deduced that subsection (c)
Ms. Guerrero’s death. See Jernigan v. Langley, 195                required us to remand to the trial court, in lieu of
S.W.3d 91, 93–94 (Tex.2006) (affirming dismissal under            rendering a judgment of dismissal and sanctions, to afford
former article 4590i where report made only “passing              the court the opportunity to exercise its discretion whether
mention” of defendant physician and failed to state how           to grant a 30–day extension. Id. Appellees urge that the
he breached the standard of care or how his alleged               same appellate relief is appropriate here if we reverse the
breach caused injury); see also Palacios, 46 S.W.3d at            probate court’s order denying Dr. Bogar’s section
879–80 (conclusory statement that “precautions to prevent         74.351(b) motion.
[patient’s] fall were not properly utilized” did not
sufficiently apprise physician whether the expert believed        Our disposition of this question turns on whether the
that the standard of care required him “to have monitored         flaws in Dr. Adame’s report render it merely deficient

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Bogar v. Esparza, 257 S.W.3d 354 (2008)



with respect to the statutory criteria or, as Dr. Bogar        report that links Dr. Kessler to Dr. Cororve’s opinions
argues, render the report no report as to him. If we hold      regarding the breach of the standard of care and causation
the former, we would, under Austin Heart, remand to            any more than Dr. Rodgers or the other ‘various
afford the trial court the opportunity to exercise its         physicians’ references.” Id. at 281. Although we
discretion whether to grant a 30–day extension under           emphasized that “a report’s adequacy under section
section 74.351(c) to cure the deficiency. If we conclude       74.351 does not depend on whether the expert uses any
that Dr. Adame provided no report as to Dr. Bogar, we          particular magic words such as ‘the standard or care was
would instead render the judgment the trial court should       breached by Dr. Kessler,’ ” we observed that “Dr.
have rendered—dismissal. Austin Heart, 228 S.W.3d at           Cororve’s report is silent as to whether a single physician,
284; see Ogletree, 262 S.W.3d at ––––, 2007 WL                 multiple physicians, or all physicians mentioned in the
4216606 at *3, 2007 Tex. LEXIS 1028, at *8–9 (“If no           report failed to meet the standard of care and caused
report is served within the 120 day deadline provided by       injury to Mr. Webb.” Id. at 281–82. Nonetheless, we
74.351(a), the Legislature denied trial courts the             distinguished Dr. Cororve’s deficient report from the “no
discretion to dismiss or grant extensions....”). We            report” found in Marichalar:
accordingly compare Dr. Adame’s report to those in other
cases under section 74.351 in which the distinction              Here, a timely report plainly discusses the conduct of
between a timely report constituting no report versus a          the physician in question and the report discusses
merely deficient report has been addressed.                      opinions on the standard of care and causation that
                                                                 could be linked to the conduct of the physician set out
In Marichalar, the plaintiff asserted claims for medical         in the report, but simply are not. The report is not
negligence relating to a sponge that was left in her body        deficient because it does not relate to Dr. Kessler at all.
during abdominal surgery. She named as defendants three          It is deficient because the link between Dr. Kessler’s
physicians—Prieto, Garcia–Arecha, and Garcia—two                 conduct and the expert’s conclusions is not expressly
nurses, and the hospital. Marichalar timely served an            stated. The report in this case is, therefore, some report
expert report prepared by an obstetrician-gynecologist,          as to Dr. Kessler (among others), but it is not sufficient
Dr. Miller, in which he stated that Prieto, the surgeon, and     to meet all of the requirements of section 74.351. It is
Garcia–Arecha, the assistant surgeon, deviated from the          an example of what section 74.351(c) refers to as a
standard of care because they allowed “the lap sponges           report that “has not been served within the [120–day
not to be counted correctly and then noted in the chart that     period for serving reports] because elements of the
they were correct” and then “failing to diagnose and             report are found deficient.”
remove the laparotomy sponge in a timely manner.”
However, neither Dr. Miller nor a nurse expert implicated      Id. at 284; see also id. at 285 (suggesting that “[i]f the
Dr. Garcia, as opposed to the other providers, in their        expert is of the opinion that Dr. Kessler’s conduct
respective reports. See Garcia v. Marichalar, 198 S.W.3d       breached the standard of care and caused injury, he will
250, 253 (Tex.App.-San Antonio 2006, no pet.). The San         not have to generate a new, previously nonexistent report.
Antonio Court of Appeals concluded that “with regard to        He will simply have to add the link between his already
Garcia, there was no timely served expert report,”             stated conclusions and the already referenced conduct of
requiring the trial court to dismiss Marichalar’s claims       Dr. Kessler. Therefore, the circumstances here are not
against Garcia and depriving it of any discretion to grant a   similar to the situation where a plaintiff simply has
30–day extension. Marichalar, *366 185 S.W.3d at 73;           missed the deadline for serving a report with respect to
Marichalar, 198 S.W.3d at 252.                                 the conduct of a physician.”).

In Austin Heart, the expert, Dr. Cororve, repeatedly           More recently, the supreme court in Ogletree, although
referred in the report’s background section to defendant       apparently endorsing the “no report” concept of
physician Dr. Kessler by name and discussed various acts       Marichalar, see Ogletree, 262 S.W.3d at ––––, 2007 WL
by him and other identified and unidentified caregivers.       4216606, at *2, 2007 Tex. LEXIS 1028, at *6 (citing
However, Dr. Cororve did not explicitly link Dr.               Marichalar with approval), also indicated that the
Kessler’s acts to Cororve’s subsequent opinions regarding      omission of a defendant’s name would not categorically
the applicable standard of care, how it was breached, and      render a report “no report” as to that defendant. The
how the breach caused injury. Austin Heart, 228 S.W.3d         plaintiffs alleged negligence by Dr. Jan Ogletree, a
at 280–81. We concluded that the report was deficient          urologist, in performing a urinary catheterization
because “it requires the reader to infer or make an            procedure on John Burke Matthews in a manner causing
educated guess that Dr. Cororve [the expert] is identifying    him injuries and ultimate death. The plaintiff timely
Dr. Kessler as the physician who breached the standard of      served the one-page expert report of Dr. Richard Karsh,
care and caused injury” and that “[t]here is nothing in the    which stated, in relevant part:

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  In my opinion (but I would have to defer to a urologist       “where there is an absence of a report, rather than a report
  on this) given the inability of the nursing staff to pass     that implicated a provider’s conduct but was somehow
  the Foley catheter into the bladder and the necessity         deficient.” Ogletree, 262S.W.3d at –––– n. 2, 2007 WL
  *367 for the urologist to utilize a stiff metallic “wire”     4216606, at *7 n. 2, 2007 Tex. LEXIS 1028, at *7 n. 2.
  to transverse the urethra, such manipulation and              These statements imply that a defendant provider’s
  catherization should have been performed under                conduct can be “implicated” by a report even if the
  fluoroscopic guidance. Had that been done the                 provider is not explicitly mentioned by name and that
  perforation might well have been avoided but certainly        although such an omission might render the report
  could have been diagnosed at the outset, with the             deficient, it would not for that reason alone render the
  likelihood of a smaller tear having resulted.                 report “no report” as to the provider.2

  If not recognized in a timely manner, such a tear could       *368 [11] Turning to Dr. Adame’s report, it is, as noted,
  lead to long-term problems, including bladder (or, if a       essentially a second autopsy report, opining about the
  urethral tear, urethral) dysfunction, infection, etc. It is   cause of Ms. Guerrero’s death without explaining who
  apparent that a cystogram was performed shortly after         caused it or how. There are only cursory references to the
  the catherization, although the exact timetable is            conduct of anyone connected to Ms. Guerrero’s care. In
  unclear; nor do I have records to determine whether or        the “History” section of his report, Dr. Adame notes that
  not the response of the physician to the tear was             after her fall, Ms. Guerrero’s “medical problems and
  appropriate. (Of course, those might be best reviewed         rehabilitation   were     managed      by    HealthSouth
  by a urologist).                                              Rehabilitation Hospital of Austin,” where she was later
                                                                “transferred back ... on January 8, 2005” following her
Ogletree, 262 S.W.3d at ––––, 2007 WL 4216606, at *1,           hip surgery at Brackenridge. Adame then recounts:
2007 Tex. LEXIS 1028, at *2–3. Dr. Ogletree complained
that Dr. Karsh, as a radiologist, was not qualified to                      She resumed on her medical
render opinions on a urologist’s standard of care. Because                  regimen along with physical and
of this defect, Ogletree asserted, no “expert report” was                   occupational therapy. Her pain
“served” within the 120–day deadline, the trial court had                   persisted and she was taken off of
no discretion to grant a 30–day extension and its denial of                 Duragesic patch post surgery.
his section 74.351(b) motion should therefore be                            OxyContin was added to her
immediately appealable. The supreme court, however,                         therapy, initially at 10 mg and later
characterized this type of complaint as a report being                      increased to 20 mg. She had bouts
“deemed not served because it is deficient,” and subject to                 of constipation and loose stools
a discretionary 30–day extension under section 74.351(c).                   which were medically managed.
Id. at ––––, 2007 WL 4216606, at *3, at *7–8. It held that                  On January 12, 2005, at 9:34 p.m.,
“[b]ecause a report that implicated Dr. Ogletree’s conduct                  she experienced cardiopulmonary
was served and the trial court granted an extension, the                    arrest. Despite cardiopulmonary
court of appeals could not reach the merits of its motion                   resuscitation until 10:13 p.m., she
to dismiss.” Id. at ––––, 2007 WL 4216606, at *4, at *9                     was pronounced dead.
(emphasis added).
                                                                In his “opinions and conclusions” regarding the cause of
Although the supreme court did not squarely address the         death, Dr. Adame does not elaborate on the specific
significance of Dr. Karsh’s omission of Dr. Ogletree’s          conduct or persons to whom he attributes the overdose
name from his report, it characterized the report as            other than vaguely alluding to “clinical findings” of
“directed solely to Dr. Ogletree’s care (although it did not    “nausea, labored breathing, and cardiac arrest” that, to
mention him by name),” id. at ––––, 2007 WL 4216606,            him, confirmed that the amounts and combination of
at *1, at *2, and “implicating” Dr. Ogletree’s conduct. Id.     oxycodone and propoxyphene were inducing respiratory
at ––––, 2007 WL 4216606, at *4, at *9 (“a report that          depression, cardiac arrhythmia, circulatory collapse, and
implicated Dr. Ogletree’s conduct”). The supreme court’s        subsequent death.
references to a report “implicating” a provider’s conduct
appears to allude to section 74.351(a)’s 21–day deadline        Although the distinction between “no report” and a
by which “[e]ach defendant physician or health care             deficient-but-potentially curable report can be elusive, we
provider whose conduct is implicated in a report must file      conclude that Dr. Adame’s report is no report as to Dr.
and serve any objection to the sufficiency of the report.”      Bogar. Dr. Adame, again, never mentions Dr. Bogar in his
Tex. Civ. Prac. & Rem.Code Ann. § 74.351(a) (emphasis           report. Although that omission alone may not alone
added). Elsewhere the court distinguishes between cases         render the report “no report,” the report entirely fails to

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implicate Dr. Bogar’s conduct—if any person’s conduct.                       recovery. It may be that once
The report is simply silent regarding how the overdose                       discovery is complete and the case
occurred and who, if anyone, was responsible for it. Dr.                     is tried, there is no need for expert
Adame does not identify any acts or omissions, by                            testimony.... But the Legislature
persons identified or unidentified, to which he attributes                   envisioned that discovery and the
the overdose. Cf. Ogletree, 262 S.W.3d at ––––, 2007 WL                      ultimate determination of what
4216606, at *1, 2007 Tex. LEXIS 1028, at *2–4 (report                        issues are submitted to the
opining that “the urologist” should have performed                           factfinder should not go forward
manipulation and catheterization under fluoroscopic                          unless at least one expert has
guidance and attributing patient’s injuries to same). Nor,                   examined the case and opined as to
even assuming Adame’s passing references to Ms.                              the applicable standard of care, that
Guerrero’s “medical regimen” and receipt of oxycodone                        it was breached, and that there is a
could implicate the conduct of any person, would his                         causal relationship between that
report implicate Dr. Bogar’s conduct as opposed to                           failure to meet the standard of care
unidentified agents of Healthsouth. See Marichalar, 185                      and the injury, harm, or damages
S.W.3d at 73; Marichalar, 198 S.W.3d at 252. Dr. Adame                       claimed. Thus, because res ipsa
cannot cure these omissions simply by “add[ing] the link                     loquitur is an evidentiary rule while
between his already stated conclusions and *369 the                          the expert report is a threshold
already referenced conduct” of Dr. Bogar. See Austin                         requirement for bringing a lawsuit,
Heart, 228 S.W.3d at 285. There is nothing in the report                     we do not believe that the
regarding Dr. Bogar that could be linked to anything.                        Legislature intended for section
Consequently, Dr. Adame could “cure” the deficiencies in                     74.201 to eliminate the procedural
his report only by “generat[ing] a new, previously                           requirement of an expert report at
nonexistent report” as to Dr. Bogar. See id. Such a                          the commencement of litigation.
remedy, as we have explained, is proscribed by section
74.351.3                                                       See Marichalar, 198 S.W.3d at 255–56. (internal citations
                                                               and quotes omitted). We find this analysis persuasive.
[12]                                                           Consequently, even if res ipsa loquitur applied to
    In their motion for rehearing and reconsideration en
banc, appellees acknowledge that “[t]he report did not         appellees’ claims against Dr. Bogar, it would not excuse
assign blame for the victim’s harm to a specific physician     their failure to serve him with an expert report.
or hospital employee by name” and is silent regarding
“who exactly did what.” They suggest that “Dr. Adame’s
report shows a fatal overdose of medications given to an
inpatient in the hospital, a lapse with all the hallmarks of   Constitutional issues
                                                               [13]
res ipsa loquitur ” that “create[s] a powerful presumption         In their motion for rehearing and for reconsideration
that the overdoses were the result specifically of             en banc, appellees attribute their noncompliance to
negligence by the treating physician of record.” Even          chapter 74’s *370 limitations on discovery, urging that
assuming res ipsa loquitur applied in this case, this          “the report could not have [complied] without compulsory
evidentiary presumption would not create an exception to       process, as the precise facts regarding which named
section 74.351’s expert report requirement. The                individuals administered each dose, failed to comprehend
Marichalar court rejected a similar contention in a            the danger or catch the error, or failed to remedy its
“sponge case”—surgeons left surgical sponges inside the        effects, were then and remain today in the sole possession
plaintiff during abdominal surgery. The court explained:       of the defendants.” Section 74.351(s) provides:

                                                                  Until a claimant has served the expert report and
            While section 74.201 allows for the
                                                                  curriculum vitae as required by Subsection (a), all
            application of res ipsa loquitur, we
                                                                  discovery in a health care liability claim is stayed
            do not interpret it as an exception
                                                                  except for acquisition by the claimant of information,
            to section 74.351’s expert report
                                                                  including medical or hospital records or other
            requirement. Res ipsa loquitur is an
                                                                  documents or tangible things, related to the patient’s
            evidentiary rule. In contrast, section
                                                                  health care through:
            74.351’s expert report requirement
            establishes a threshold over which                        (1) written discovery as defined in Rule 192.7, Texas
            a claimant must proceed to                                Rules of Civil Procedure;
            continue a lawsuit; it does not
            establish a requirement            for
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Bogar v. Esparza, 257 S.W.3d 354 (2008)



       (2) depositions on written questions under Rule 200,      in particular, we are mindful of two general principles.
       Texas Rules of Civil Procedure; and                       First, “there are constitutional limitations upon the power
                                                                 of courts ... to dismiss an action without affording a party
       (3) discovery from nonparties under Rule 205, Texas       the opportunity for a hearing on the merits of his [or her]
       Rules of Civil Procedure.                                 cause.” Thoyakulathu v. Brennan, 192 S.W.3d 849, 855
                                                                 (Tex.App.-Texarkana 2006, no pet.) (quoting Walker, 111
Tex. Civ. Prac. & Rem.Code Ann. § 74.351(s).                     S.W.3d at 66 (quoting TransAmerican Nat. Gas Corp. v.
“Notwithstanding any other provision of this section, after      Powell, 811 S.W.2d 913, 917–18 (Tex.1991))). Second,
a claim is filed all claimants, collectively, may take not       the filing of a frivolous lawsuit can be misconduct subject
more than two depositions before the expert report is            to sanction. Id. (citing Palacios, 46 S.W.3d at 878).
served as required by Subsection (a).” Id. § 74.351(u).          “[O]ne purpose of the expert-report requirement is to
These provisions thus bar oral depositions of parties and        deter frivolous claims.” Walker, 111 S.W.3d at 66. “The
allow only two oral depositions of non-parties before the        Legislature has determined that failing to timely file an
expert report is served. They also bar pre-suit depositions      expert report, or filing a report that does not evidence a
to investigate potential claims under rule 202. In re            good-faith effort to comply with the definition of an
Jorden, 249 S.W.3d 416, 420 (Tex.2008).                          expert report, means that the claim is either frivolous, or
[14] [15]
                                                                 at best has been brought prematurely. This is exactly the
        Appellees urge that their inability to orally depose     type of conduct for which sanctions are appropriate.”
Dr. Bogar before serving their expert report creates “an         Palacios, 46 S.W.3d at 878. Consequently, the supreme
intolerable procedural conundrum” or “catch–22” by               court rejected a due-process challenge to former article
preventing them from obtaining the very information they         4590i’s mandatory dismissal of health care liability
need to prepare a sufficient expert report.4 This                claims for failure to comply with statutory requirements.
“conundrum,” appellees assert, imposes an “impossible            Walker, 111 S.W.3d at 66 (“The Gutierrezes’ failure to
condition” on medical malpractice claimants’ property            file an adequate report thus raised the presumption that
rights in their causes of action that violates the due           their claims were frivolous, or at best, premature.... We do
process clause of the fourteenth amendment to the United         not believe the Constitution requires prior notice that the
States Constitution and due course of law under article I,       law is serious about a clearly stated consequence for
section 19 of the Texas Constitution. See U.S. Const.            failing to comply with its terms. The sanction imposed ...
amend. XIV; Tex. Const. art. I, § 19.5 Appellees                 was a direct result of their failure to file an expert report
acknowledge that “Texas courts construe Article I,               that complied with the statutory requirements.
Section 19, in line with the federal due process                 Consequently, dismissal was appropriate and did not
guarantees” and that “[s]tandards for Texas constitutional       violate the due process clause, even in the absence of a
claims regarding access to the courts are the same under         notice of noncompliance prior to the motion to dismiss.”);
due process and open courts.” See University of Tex. Med.        see Brennan, 192 S.W.3d at 855–56 (applying Walker to
Sch. v. Than, 901 S.W.2d 926, 929 (Tex.1995); Sax v.             section 74.351).
Votteler, 648 S.W.2d 661, 664 (Tex.1983).6 Appellees
stop short of “contend[ing] that the expert report               Turning to appellees’ specific challenge, they have the
requirement must be invalidated for all cases,” but instead      burden of establishing that section 74.351’s discovery
urge us to “construe Section 74.351 to avoid a                   limitations have in fact prevented them from satisfying
constitutional problem” by either “declar[ing], for cases        the statute’s expert-report requirements and pursuing their
where medical negligence by one or more defendants               claim. See McGlothlin v. Cullington, 989 S.W.2d 449,
*371 is clear but where the plaintiff cannot allocate fault      453 (Tex.App.-Austin 1999, pet. denied) (burden on
among them without discovery, that Section 74.351(s)             claimant asserting open-courts violation is to provide
does not stay the discovery necessary to obtain the fault        sufficient evidence that the expert report requirement, and
allocation facts that would perfect the required expert          not her own inaction, actually functioned to keep her from
report; or declar[ing] the expert report in such a case          pursuing her claim). Appellees suggest in their motion
sufficient without those facts, since they are unnecessary       that they were forced to “prepare their report[ ] on
to demonstrate at the threshold that the case has merit.”7       medical records alone” and that these records were
[16] [17] [18] [19]
                                                                 inadequate, but do not suggest they ever actually pursued
              We begin with the presumption that section         the discovery permitted under section 74.351(s) beyond
74.351 is constitutional. Walker, 111 S.W.3d at 66.              serving requests for disclosures at some unspecified point
Additionally, the party challenging the constitutionality of     in *372 time.8 Nor is there any evidence in the record to
a statute bears the burden of establishing that the              support such an assertion. We observe that section
enactment fails to meet constitutional requirements. Id.         74.351(s) and (u) authorize claimants to obtain discovery
With regard to restrictions on health care liability claims      via not only requests for disclosure, but interrogatories,

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Bogar v. Esparza, 257 S.W.3d 354 (2008)



requests for production, requests for admissions, and          specifically of *373 negligence by the treating physician
depositions on written questions to parties (i.e., forms of    of record,” whom they assert was Dr. Bogar. We disagree
discovery that could have been directed to Dr. Bogar);         that it is irrational, in light of the legislature’s goal of
and rule 205 requests for production, depositions on           curtailing frivolous health care liability claims, for it to
written questions, and up to two oral depositions of non-      require that appellees serve an expert report explaining
parties.9 The rules further provide mechanisms for             why or how this outcome was actually caused by the
enforcing compliance with discovery requests.10 Appellees      conduct of Dr. Bogar, as opposed to some other person or
dismiss the significance of “[t]he limited written             health care provider. See Walker, 111 S.W.3d at 66
discovery that Section 74.351(a) nominally permits before      (explaining that the plaintiffs’ failure to comply with the
service of the expert report,” asserting that it is “widely    expert-report requirements “raised the presumption that
understood not to extend beyond the medical records            their claims were frivolous, or at best, premature” and
specifically mentioned in that subsection, and defense         dismissal did not violate due process); Marichalar, 198
counsel in health care liability actions uniformly refuse      S.W.3d at 254–55 (“Section 74.351(r)(6) requires that an
any other written discovery.” If that could be so, it is not   expert report explain how the care rendered by the
because of anything the legislature actually provided in       physician failed to meet the applicable standard of care
section 74.351, nor do appellees present evidence that any     and the causal relationship between that failure and the
such application of section 74.351(s) in fact prevented        injury suffered by the claimant.”); see also Brennan, 192
them from obtaining any necessary discovery they had           S.W.3d at 855–56 (applying Walker to reject as-applied
actually sought. See Brennan, 192 S.W.3d at 854 n. 5           challenge to expert-report requirement where claimant
(rejecting similar due-process argument “premised on           had attempted to serve report timely, but fax machine
[claimant’s] failure to receive discovery from another         failed; “Section 74.351 need not provide an exception
party” as “ignor[ing] the remedies available to him to         geared toward such misfortune in order to provide
enforce lawful discovery requests”); see also Marichalar,      constitutionally adequate safeguards.”).
198 S.W.3d at 254 n. 1 (observing that “if the medical
records are indeed conflicting” as to assistant surgeon’s      We accordingly reject appellees contentions that our
identity, as counsel had orally contended, “Marichalar         application of section 74.351 on the present record
could have propounded discovery to Dr. Garcia to               violates due process or due course of law.
discovery whether he was the assistant surgeon ... [a]nd if
Dr. Garcia failed to timely answer the discovery requests,
Marichalar could have moved to compel his answers.”).
Like the Brennan court, “we can certainly imagine a due
process deprivation to a health care liability claimant                             CONCLUSION
pinned between a firm expert report deadline and a
hypothetical absence of discovery tools,” but must             As the Texas Supreme Court recently acknowledged, the
similarly conclude that appellees have not carried their       requirements of section 74.351(b) “can lead to seemingly
burden of demonstrating that they were denied due              harsh results.” Ogletree, 262S.W.3d at ––––, 2007 WL
process by such a situation here. Brennan, 192 S.W.3d at       4216606, at *3, 2007 Tex. LEXIS 1028, at *3. Here, they
856 n. 8; see McGlothlin, 989 S.W.2d at 453 (claimant’s        require us to render judgment dismissing appellees’
affidavit made “no mention of any actual attempt to            claims against Dr. Bogar with prejudice and awarding Dr.
obtain an expert report,” in lieu of article 4590i bond        Bogar attorney’s fees and costs. See Tex. Civ. Prac. &
requirement, “only some perceived financial barrier”).         Rem.Code Ann. § 74.351(b). Further, our performance of
                                                               our duty to effectuate these legislative mandates does not,
[20]
    Appellees also question whether there is a rational        on this record, exceed constitutional limitations. We
relationship between chapter 74’s expert-report                accordingly reverse and render a judgment of dismissal
requirement as applied here and the legislature’s goal of      and remand to the probate court for a determination of the
discouraging frivolous lawsuits. See Lucas v. United           amount of the attorney’s fee award.
States, 757 S.W.2d 687, 691 (Tex.1988) (holding that it
was “unreasonable and arbitrary for the legislature to
conclude that arbitrary damage caps, applicable to all
claimants no matter how seriously injured, will help           Dissenting Opinion by Justice PATTERSON.
assure a rational relationship between actual damages and
the amounts awarded.”). This argument is predicated
upon appellees’ view that the bare fact Ms. Guerrero died      JAN P. PATTERSON, J., dissenting.
of a drug overdose while in the hospital “create[s] a
powerful presumption that the overdoses were the result

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Given the length of time this accelerated interlocutory         care; he was the only doctor named in the lawsuit. An
appeal has been pending, I will adopt my prior dissent          autopsy established that Ms. Esparza, who was admitted
with an additional observation, substituting this opinion       for post-operative hip surgery rehabilitation, died of an
and dissenting to the denial of appellees’ motion for           overdose of Oxycodone and Vicodin. After a hearing, the
rehearing. In Palacios, the supreme court held that (i) a       trial court expressly found the report to be sufficient and
trial court’s decision whether to dismiss a case under this     denied the motion to dismiss.1
statute is reviewed for abuse of discretion, and (ii) to
constitute a good-faith effort to provide a fair summary of     The supreme court has recently held that an expert report
an expert’s opinions, “an expert report must discuss the        that implicates the doctor’s conduct, but fails to mention
standard of care, breach, and causation with sufficient         the doctor by name, is merely deficient and subject to the
specificity to inform the defendant of the conduct the          trial court’s discretionary power to grant a 30–day
plaintiff has called into question and to provide a basis for   extension as allowed under section 74.351(c). See
the trial court to conclude that the claims have merit.”        Ogletree v. Matthews, No. 05–0502, ––– S.W.3d ––––, ––
American Transitional Care Ctrs. v. Palacios, 46 S.W.3d         ––, ––––, 2007 WL 4216606, at *1, 4, 2007 Tex. LEXIS
873, 875 (Tex.2001) (predecessor statute). In that case,        1028, at *2, 14 (Tex. Nov. 30, 2007). While the majority
the court found that the trial court did not abuse its          recognizes this recent supreme court holding, it fails to
discretion in its ruling and reversed the court of appeals.     apply it to an expert report that plainly implicates
Based upon Palacios, I would hold that the trial court did      appellant’s conduct in prescribing a lethal dose of
not abuse its discretion here. For these reasons, I             Oxycodone and Vicodin—choosing instead to ignore the
respectfully dissent.                                           statutory discretion imparted to the trial court by the
                                                                legislature. See id.
The majority has stepped into both shoes of the trial court:
(i) overruling its determination that the expert report is      Although the trial court’s determination is not shielded
sufficient and the litigation should go forward, and (ii)       from review, we may not substitute our judgment for that
finding the report to be not just deficient, but “no report,”   of the trial court charged with a gatekeeping function in
thus foreclosing *374 an opportunity to cure any asserted       the first instance under this statute. Indeed, the trial court
deficiency. As the reviewing court, we are admonished           is charged not only with exercising its discretion in
that a trial court abuses its discretion if it acts in an       affirming or denying the motion to dismiss, but the trial
arbitrary or unreasonable manner without reference to           court may—in its discretion—grant a 30–day extension to
guiding rules or principles. See Garcia v. Martinez, 988        cure any deficiency. Tex. Civ. Prac. & Rem.Code Ann. §
S.W.2d 219, 222 (Tex.1999). When reviewing a trial              74.351(c) (West Supp.2007). Because the trial court here
court’s decision for an abuse of discretion, we recognize       found the report to be sufficient—and not deficient or “no
that such discretionary choices are left to a court’s           report”—it did not consider whether to grant a
judgment, and its judgment is to be guided by sound legal       discretionary extension to amend the report.
principles. Albemarle Paper Co. v. Moody, 422 U.S. 405,
416, 95 S.Ct. 2362, 45 L.Ed.2d 280 (1975) (quoting              I believe the trial court did not abuse its discretion in
United States v. Burr, 25 F. Cas. 30, 35 (CC Va. 1807)          concluding that the report was sufficient. Because (i) the
(Marshall, C.J.)). We may not substitute our own                standard of review recognizes that there is a range of
judgment for that of the trial court. Bowie Mem’l Hosp. v.      decisions that are appropriate as long as the trial court
Wright, 79 S.W.3d 48, 52 (Tex.2002). While a trial              does not act in an arbitrary or unreasonable manner or
court’s failure to analyze and apply the law correctly          without reference *375 to guiding rules and principles,
would constitute an abuse of discretion, Walker v. Packer,      and (ii) the trial court acted in accord with the supreme
827 S.W.2d 833, 840 (Tex.1992), “[t]he test for abuse of        court’s holdings in Palacios,2 I would conclude that the
discretion is not whether, in the opinion of the reviewing      trial court was guided by and employed sound legal
court, the facts present an appropriate case for the trial      principles and properly denied the motion to dismiss. I
court’s action.... [I]t is a question of whether the court      would affirm the trial court’s order.
acted without reference to any guiding rules and
principles.” Downer v. Aquamarine Operators, Inc., 701          Alternatively, because the trial court found the report to
S.W.2d 238, 241–42 (Tex.1985). A trial court does not           be sufficient and not deficient or “no report,” I would
abuse its discretion merely because it decides a                follow this Court’s precedent in Austin Heart, P.A. v.
discretionary matter differently than an appellate court        Webb, 228 S.W.3d 276 (Tex.App.-Austin 2007, no pet.),
would in a similar circumstance. Id. at 242.                    and remand this cause for further proceedings to allow the
                                                                trial court to exercise its discretion and determine whether
The parties agree that Dr. Bogar was the physical               a 30–day extension should be granted.3
medicine rehabilitation doctor in charge of Ms. Esparza’s
                © 2015 Thomson Reuters. No claim to original U.S. Government Works.                                    12
Bogar v. Esparza, 257 S.W.3d 354 (2008)



By cherry-picking language from the supreme court’s            trial court under section 74.351(c), the appellees should
Ogletree opinion to support its admitted “elusive” line        be given a 30–day extension of time in order to cure any
between a deficient report and a “nonexistent” report, the     deficiencies in the expert report.1
majority overlooks the supreme court’s common sense
approach regarding expert reports that implicate a health      The majority reverses the trial court’s determination that
provider’s conduct: The supreme court reasoned that            Dr. Adame’s expert report is sufficient and renders
“while the 2003 amendments were intended to decrease           judgment of dismissal, holding that this report constitutes
claims, they do not mandate dismissal for deficient, but       “no report” as to Dr. Bogar and therefore that the trial
curable, reports.” Ogletree, 262 S.W.3d at ––––, 2007          court did not have discretion to allow a 30–day extension.
WL 4216606, at *3, 2007 Tex. LEXIS 1028, at *9. In             See id. § 74.351(b) (stating that trial court shall dismiss
finding this report “no report,” we are beyond cherry-         claim if expert report has not been served within 120
picking and into hair-splitting for which the aim is not to    days); Ogletree v. Matthews, No. 06–0502, –––S.W.3d ––
seek the statutory mandate nor substantial justice.            ––, ––––, 2007 WL 4216606, at * 3, 2007 Tex. LEXIS
                                                               1028, at *8 (Tex. Nov. 30, 2007) (“If no report is served
I would, therefore, grant the motion for rehearing.            within the 120 day deadline provided by 74.351(a), the
                                                               Legislature denied trial courts the discretion to deny
                                                               motions to dismiss or grant extensions.”). If an expert
                                                               report fails to implicate the conduct of a particular
JAN P. PATTERSON, Justice, dissenting.                         defendant, it is treated as “no report” as to that particular
                                                               defendant. See Apodaca v. Russo, 228 S.W.3d 252, 257
For the reasons expressed in my dissenting opinion to this     (Tex.App.-Austin 2007, no pet.) (report that described
Court’s disposition of this case on rehearing, I               conduct of other doctors and health-care providers but
respectfully dissent from the denial of appellee’s motion      failed to mention appellee at all constituted “no report” as
for en banc reconsideration. See Bogar v. Esparza, No.         to appellee); Garcia v. Marichalar, 185 S.W.3d 70, 72–73
03–07–00037–CV, 257 S.W.3d 354 (Tex.App.-Austin                (Tex.App.-San Antonio 2005, no pet.) (report that focused
May 16, 2008) (Patterson, J., dissenting).                     on conduct of other defendants and did not mention
                                                               appellant at all was considered “no report” as to
                                                               appellant). However, an expert report that does not fully
                                                               satisfy the statutory criteria but is not so inadequate as to
DIANE HENSON, Justice, dissenting.
                                                               be deemed “no report” is treated as a deficient report, and
                                                               trial courts have discretion to allow parties an extension
The expert reports required by section 74.351 of the civil
                                                               of time in order to cure the deficiencies. See Ogletree, 262
practice and remedies code “are simply a preliminary
                                                               S.W.3d at ––––, 2007 WL 4216606, at *3, 2007 Tex.
method to show a plaintiff has a viable cause of action
                                                               LEXIS 1028, at *10 (“[A] deficient report differs from an
that is not frivolous or without expert support.” Kelly v.
                                                               absent report. Thus, even when a report is deemed not
Rendon, 255 S.W.3d 665, 679 (Tex.App.-Houston [14th
                                                               served because it is deficient, the trial court retains
Dist.] 2008, no pet. h.). One of the benefits behind the
                                                               discretion to grant a thirty-day extension.”).
expert-report requirement is that the screening mechanism
frees up judicial resources to address non-frivolous
                                                               While Dr. Adame’s report does not mention Dr. Bogar by
claims. See House Comm. on Civil Practices, Bill
                                                               name, it unambiguously implicates Dr. Bogar’s conduct.
Analysis, Tex. H.B. 971, 74th Leg., R.S. (1995) (noting
                                                               Unlike the reports in Apodaca, see 228 S.W.3d at 257, or
that predecessor statute to section 74.351 “would help
                                                               Marichalar, see 185 S.W.3d at 72–73, the report in the
focus judicial resources on legitimate claims”). The
                                                               present case does not implicate, identify, or describe the
present case, which arose after a patient *376 suffered a
                                                               conduct of any physicians or medical professionals other
fatal overdose of oxycodone and propoxyphene while
                                                               than Dr. Bogar. Furthermore, Dr. Adame’s report
receiving post-operative care for hip-replacement surgery,
                                                               describes “the standard of care required of physicians not
does not appear to be the type of meritless claim that the
                                                               to prescribe drugs either alone or in combination that will
legislature intended to prevent by imposing the gate-
                                                               cause a fatal overdose.” (Emphasis *377 added). The
keeping measure of the expert report.
                                                               report states that “[s]uch conduct falls below the standard
                                                               of care required of physicians,” and details how the levels
I join Justice Patterson’s dissent in holding that the trial
                                                               of oxycodone and propoxyphene found in Guerrero’s
court acted within its discretion in finding the expert
                                                               blood exceeded the amounts known to cause death. In
report sufficient, but write separately to further address
                                                               light of this language, it is clear from the four corners of
the majority’s failure to remand this case for a
                                                               the report that Dr. Adame is implicating the conduct of
determination of whether, in the discretion afforded to the
                                                               the physician who prescribed oxycodone and
               © 2015 Thomson Reuters. No claim to original U.S. Government Works.                                   13
Bogar v. Esparza, 257 S.W.3d 354 (2008)



propoxyphene to Guerrero. See American Transitional                         opinion. The report’s failure on this
Care Ctrs. of Tex., Inc. v. Palacios, 46 S.W.3d 873, 878                    point is the kind of defect that the
(Tex.2001) (“[T]he only information relevant to the                         cure     provisions    of     section
inquiry is within the four corners of the document.”). See                  74.351(c) were designed to
also Ogletree, 262S.W.3d at ––––, 2007 WL 4216606at                         address.
*1, 2007 Tex. LEXIS 1028, at *2 (where expert report
implicated appellant’s conduct but did not mention              Id. at 282–83 (emphasis added).
appellant by name, report was merely deficient and
subject to extension allowed under section 74.351(c),           Significantly, the Austin Heart opinion also states, “Had
rather than “no report” as to appellant).                       Dr. Cororve referenced only actions by Dr. Kessler in the
                                                                background section of his report, the link between Dr.
An expert report does not have to meet the same                 Cororve’s opinions and the responsible physician might
requirements as evidence offered in a summary-judgment          be more apparent.” Id. at 281. The link between Dr.
proceeding or at trial, but is merely required to “discuss      Adame’s opinions and Dr. Bogar could not be more
the standard of care, breach, and causation with sufficient     apparent in the present case, where no other physicians or
specificity to inform the defendant of the conduct the          health-care professionals are named as defendants or
plaintiff has called into question.” Palacios, 46 S.W.3d at     mentioned in the expert report.
875, see also 879. The trial court, in its discretion, may
have reasonably concluded that Dr. Bogar was                    Furthermore, the Texas Supreme Court’s mandate that
sufficiently informed of the conduct that the plaintiff in      only information within the four corners of the expert
this case was calling into question—prescribing a               report *378 may be reviewed for sufficiency, see
combination of drugs in amounts that resulted in a fatal        Palacios, 46 S.W.3d at 878, does not necessarily preclude
overdose.                                                       the trial court from conducting an independent analysis of
                                                                the information contained in the report. In IHS
The majority’s holding in the present case conflicts with       Acquisition No. 140, Inc. v. Travis, No. 13–07–00481–
this Court’s holding in Austin Heart, P.A. v. Webb, 228         CV, 2008 WL 1822780, 2008 Tex.App. LEXIS 2950
S.W.3d 276 (Tex.App.-Austin 2007, no pet.), in which we         (Tex.App.-Corpus Christi Apr. 24, 2008, no pet. h.), the
held that an expert report’s failure to specifically identify   appellant argued that the trial court made an improper
a physician as having breached the standard of care or          inference about causation that extended outside of the
having caused the patient’s injury merely results in a          four corners of the expert report. The report failed to
deficient report, subject to the cure provisions of section     address a one-month gap between treatment of the
74.351(c), rather than “no report.” Id. at 282–83. The          patient’s eye abscess and her death, and the trial court
report in Austin Heart not only discussed the conduct of        commented that the gap was the time which “causes the
the appellant without identifying the appellant as having       abscess to grow in the system and proliferate.” Id. at * 3,
breached the standard of care or caused the injury, but         at *24. The court of appeals held that the trial court did
also discussed the conduct of various other physicians          not abuse its discretion in making such a comment, noting
without making it clear that the report related to the          that expert reports may contain some level of ambiguity
appellant physician. Id. at 280. Despite these omissions,       “that is subject to the independent analysis of the trial
this Court stated:                                              court.” Id. The court further stated:

             While we are of the view that Dr.                    [T]he trial court’s explanation was only beyond the
             Cororve’s report is deficient under                  ‘four corners’ of the report in the sense that the trial
             section 74.351 because it requires                   court explained medical concepts—such as abscess and
             the reader to make an educated                       cardiogenic shock—which Dr. Starer did not explain.
             guess regarding an essential                         The trial court, however, did not propose unique
             element, we are also aware that the                  causation theories that were not discussed in the expert
             defect might well be curable. The                    report.
             tenor of Dr. Cororve’s report,
                                                                  We believe that Dr. Starer’s report, which explained
             coupled with the fact that there is
                                                                  causation, but which did not explain certain medical
             only one physician defendant,
                                                                  concepts that would perhaps need to be explained at
             makes it quite likely that Dr.
                                                                  trial, was ‘less than all the evidence necessary to
             Cororve intended to opine that Dr.
                                                                  establish causation at trial,’ but still provided a ‘fair
             Kessler breached the standard of
                                                                  summary’ of causation.... The trial court’s comments
             care and caused injury even though
             the report did not contain that
                © 2015 Thomson Reuters. No claim to original U.S. Government Works.                                 14
Bogar v. Esparza, 257 S.W.3d 354 (2008)



    were not an improper ‘inference’ and do not constitute                     meet the statutory requirements, “consideration by the
    an abuse of discretion.                                                    trial court of [the appellees’] request for an extension to
                                                                               attempt to cure the defect is warranted.” See Austin Heart,
Id. at * 9, at *25 (quoting Tovar v. Methodist Healthcare                      228 S.W.3d at 283.
Sys. of San Antonio, Ltd., L.L.P., 185 S.W.3d 65, 68
(Tex.App.-San Antonio 2005, pet. denied)).                                     I agree with Justice Patterson’s dissent that the trial court
                                                                               acted within its discretion in determining that Dr.
Similarly, the trial court’s conclusion that the report                        Adame’s report was sufficient. However, assuming that
implicated the conduct of Dr. Bogar—the only physician                         the report was not sufficient, I would hold in the
named as a defendant—where no other physicians or                              alternative that Dr. Adame’s report is merely deficient,
healthcare providers were implicated in the report can                         rather than “no report” as to Dr. Bogar, and therefore that
best be characterized as an analysis of the information                        the proper remedy is a remand to allow the trial court to
included in the report, rather than an impermissible                           determine whether to grant a 30–day extension of time
venture outside the four corners of the expert report.                         under section 74.351(c), giving the appellees an
                                                                               opportunity to cure any deficiencies.2 As a result, I
Because the trial court found Dr. Adame’s report to be                         respectfully join the dissent.
sufficient, no 30–day extension was ever required,
although the appellees requested an extension in the event
that the report was found to be deficient. In light of the
majority’s ruling that Dr. Adame’s expert report fails to

Footnotes
1       As we emphasized in Austin Heart—and as suggested by the supreme court in Ogletree, as we discuss below—this is not a
        “magic words” test. There may be a number of ways that a defendant may be referenced within the four corners a report so as to
        comply with the legislature’s mandate that the report “provide[ ] a fair summary 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) (emphasis added).
2       In Apodaca v. Russo, 228 S.W.3d 252, 255–58 (Tex.App.-Austin 2007, no pet.), this Court affirmed a trial court order
        dismissing a health care liability suit under section 74.351(b) and refusing to grant a 30–day extension under section 74.351(c).
        The lone defendant was Dr. Russo, a general surgeon, who was alleged to have acted negligently in failing to implement
        precautions against pulmonary embolism or stroke. The report described various deviations from the standard of care, including
        failures to properly address deep venous thrombosis prevention or to insert an IVC filter, but did not identify Dr. Russo by name
        or otherwise. The panel observed that “[a]lthough appellant has sued only Dr. Russo, other doctors and health-care providers are
        implicated by the facts set forth in the report. The report references other providers as well as their conduct and refers to another
        doctor by name, but fails to mention Dr. Russo at all.” Id. at 257. The panel found the report deficient and no report, reasoning
        that it did not “specifically identify the defendant and apply the statutory elements to that defendant,” id. at 258, and “[i]f a
        report fails to address the defendant physician, it constitutes no report as to that defendant, and the trial court may not grant a
        30–day extension.” Id. at 257. We need not consider Ogletree’s implications for Apodaca’s analysis of the “no report” issue
        because it is dicta. See Ogletree, 262 S.W.3d at ––––, ––––, 2007 WL 4216606, at *2–3, 2007 Tex. LEXIS 1028, at *6–8
        (emphasizing discretionary nature of 30–day extension when trial court finds expert report deficient).
3       The dissent criticizes this holding, suggesting that we could remand to the probate court in the same manner as in Austin Heart,
        228 S.W.3d at 285 (Patterson, J., dissenting). As the dissent has acknowledged in Austin Heart and elsewhere, section 74.351
        does not permit such a remedy where, as here, the report constitutes no report. See Austin Heart, 228 S.W.3d at 291 (Patterson,
        J., dissenting) (“[t]he difference between the two is strategically significant. If the report is ‘no report,’ then the trial court must
        dismiss the case with prejudice and has no discretion to grant a 30–day extension.”) (emphasis in original); Apodaca, 228
        S.W.3d at 257 (“If a report fails to address the defendant physician, it constitutes no report as to that defendant, and the trial
        court may not grant a 30–day extension.”) (citing Garcia v. Marichalar, 185 S.W.3d 70, 74 (Tex.App.-San Antonio 2005, no
        pet.)).
4       Appellees similarly suggest that this regime incentivizes medical malpractice defendants to “maintain[ ] silence until the expert
        report deadline [to] entirely defeat a valid claim that in any other tort case they would each work affirmatively to defect onto a
        co-defendant as early as possible.”
5       Dr. Bogar does not dispute that appellees preserved their constitutional arguments in the trial court.


                 © 2015 Thomson Reuters. No claim to original U.S. Government Works.                                                        15
Bogar v. Esparza, 257 S.W.3d 354 (2008)



6     However, as appellees further recognize, the open courts guarantee, see Tex. Const. art. I, § 13, is not directly implicated in this
      case because it applies only to common-law causes of action, not their statutory wrongful-death or survival claims.
7     Appellees similarly urge us to “avoid a constitutional confrontation” by remanding the case to afford them the opportunity to
      amend their expert report.
8     In a footnote in their motion, appellees complain that “Texas courts have never implemented the regime of preliminary
      disclosures provided in principle in Section 74.352; the plaintiffs had to request disclosures from the defendants, who
      responded—after the expert report was served—with little or nothing of substance.”
9     See Tex. Civ. Prac. & Rem.Code Ann. § 74.351(s), (u); Tex.R. Civ. P. 192.7(a) (defining “written discovery”); see generally
      Tex.R. Civ. P. 194, 196–98, 200–01.
10    See Tex.R. Civ. P. 215.

1     The hospital settled and was dismissed from the lawsuit.

2     In Palacios, the court faulted the expert report for its conclusory statement that the standard of care required the hospital to have
      monitored Palacios more closely, restrain him more securely or done something else entirely. The court stated: “Knowing only
      that the expert believes that American Transitional did not take precautions to prevent the fall might be useful if American
      Transitional had an absolute duty to prevent falls from its hospital beds.” American Transitional Care Ctrs. v. Palacios, 46
      S.W.3d 873, 880 (Tex.2001). Here, the trial court may have concluded that the standard of care and duty were clear from the
      report detailing the “toxic levels of oxycodone along with lethal levels of propoxyphene” that caused the death.
3     The majority’s criticism of this approach relies on Apodaca v. Russo, 228 S.W.3d 252 (Tex.App.-Austin 2007, no pet.), and
      Garcia v. Marichalar, 185 S.W.3d 70 (Tex.App.-San Antonio 2005, no pet.), but those cases are distinguishable in that both
      involved multiple defendants, whereas here we have only one defendant—Dr. Bogar.
1     I do not take issue with the majority’s holding that the appellees, who failed to take full advantage of the discovery tools
      provided by section 74.351 of the civil practices and remedies code, cannot now argue that the statute imposes an
      unconstitutional burden by restricting discovery until after expert reports have been served. See Tex. Civ. Prac. & Rem.Code
      Ann. § 74.351(s), (u) (West Supp.2007). However, while the appellees may not have established that section 74.351’s discovery
      limitations prevented them from serving a sufficient expert report, they have also not been given any opportunity to cure
      deficiencies in Dr. Adame’s report, which, until this Court’s holding on appeal, had been deemed sufficient as to Dr. Bogar.
2     In addition to arguing that Dr. Adame’s report constituted “no report,” Dr. Bogar also argues that Dr. Adame, a pathologist, was
      not qualified to render opinions concerning the standard of care applicable to physical medicine rehabilitation physicians, such
      as Dr. Bogar. While the majority does not address this contention in light of their holding that the expert report constituted “no
      report” as to Dr. Bogar, I would hold that even if Dr. Adame is deemed unqualified to render an expert opinion in this case, the
      appellees should still be afforded the opportunity to request the 30–day extension provided by section 74.351(c).
         A similar argument regarding expert qualifications was made in Ogletree, in which the appellant asserted that a radiologist
         was incapable of opining on the standard of care applicable to urologists. Ogletree v. Matthews, No. 06–0502, ––– S.W.3d ––
         ––, ––––, 2007 WL 4216606, at *2, 2007 Tex. LEXIS 1028, at *4 (Tex. Nov. 30, 2007). In a concurring opinion, Justice
         Willett stated that the defect in the expert report consisted of “designating the wrong type of medical professionals to opine
         on standard of care,” and that using the wrong type of expert “is the type of defect for which a trial court may grant a
         discretionary section 74.351(c) extension.” Id. at *6, at *18 (Willett, J., concurring).




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
Bowie Memorial Hosp. v. Wright, 79 S.W.3d 48 (2002)
45 Tex. Sup. Ct. J. 833


                                                               Accordingly, we reverse the court of appeals’ judgment
                     79 S.W.3d 48                              and dismiss with prejudice the Wrights’ claims against
                Supreme Court of Texas.                        Bowie Memorial Hospital.

   BOWIE MEMORIAL HOSPITAL a/k/a Bowie                         Barbara Wright was admitted to Bowie after she sustained
   Hospital District d/b/a Bowie Hospital District             injuries in a car accident. While at Bowie, Michael Layne,
     Authority d/b/a Bowie Memorial Hospital,                  a physician’s assistant that Bowie employed, x-rayed
                      Petitioner,                              Barbara’s right knee and foot and diagnosed her with a
                           v.                                  fractured patella. However, Layne allegedly misplaced or
  Barbara WRIGHT and P.L. Wright, Respondents.                 misread the foot x-ray and, therefore, did not discover that
                                                               Barbara had also fractured her right foot in the accident.
            No. 01–0814. | June 13, 2002.                      Shortly after Barbara was admitted to Bowie, Dr. Hodde,
                                                               Layne’s supervisor, recommended that Bowie refer her to
Patient brought medical malpractice action against             an orthopedic surgeon. Barbara was immediately referred
hospital, physician, physician’s assistant, and others,        to an orthopedic surgeon and transferred to another
alleging that failure to timely discover that her foot was     hospital. Her accompanying medical report, which Layne
fractured led to necessity of two additional surgeries. The    prepared, only indicated that Barbara had a fractured
78th District Court, Wichita County, Keith Nelson, J.,         knee.
dismissed patient’s claims. Patient appealed. The Fort
Worth Court of Appeals, 48 S.W. 3d 443, affirmed in            Nearly a month after the accident, Barbara’s orthopedic
part, reversed in part, and remanded. Upon grant of            surgeon discovered Barbara’s fractured foot. By that time,
hospital’s petition for review, the Supreme Court held that    the surgeon had already operated on Barbara’s knee. The
expert report submitted by patient did not constitute a        Wrights claim that the surgeon could have operated on
good-faith effort to summarize causal relationship             Barbara’s foot at the same time if he had known about the
between hospital’s alleged failure to meet applicable          injury. Instead, Barbara had two additional surgeries over
standards of care and patient’s injury under Medical           the next ten months.
Liability and Insurance Improvement Act.
                                                               Barbara and her husband sued Bowie, Layne, and Dr.
Reversed.                                                      Hodde for medical malpractice. The Wrights also sued the
                                                               orthopedic surgeon, another treating doctor, and three
                                                               medical clinics not associated with Bowie. The Wrights’
Attorneys and Law Firms                                        allegations pertinent here are that Bowie personnel did
                                                               not: diagnose Barbara’s foot fracture; protect her foot;
*50 Gregory J. Lensing, Charles T. Frazier, Jr. Cowles &       review diagnostic tests ordered and administered at the
Thompson, Dallas, Susan Irene Nelson, Dallas, for              hospital; or properly supervise Layne.
Petitioner.
                                                               The Wrights filed an expert medical report about
Britta Jean Gordon, Michael Kevin Queenan, Queenan
                                                               Bowie’s, Dr. Hodde’s, and another doctor’s alleged
Law Firm, DeSoto, for Respondents.
                                                               negligence. See TEX.REV.CIV. STAT. art. 4590i, §
Opinion                                                        13.01(d). The expert report states, in part:

PER CURIAM.                                                      I have reviewed the material you sent me on the above
                                                                 case. I believe that the hospital fell below the
                                                                 appropriate standard of care in not having a defined
This case involves the Medical Liability and Insurance           mechanism in place whereby x-rays taken in the E.R.
Improvement       Act’s     (“the    Act”)    expert-report      are read by a physician specialized in interpreting the
requirements. See TEX.REV.CIV. STAT. art. 4590i, §               films in a timely manner (i.e., less than 24 hrs). X-rays
13.01. The trial court dismissed the plaintiffs’ medical         taken in the E.R. need to have re-reads performed
malpractice claims after it determined that their expert         within 24 hrs and if *51 there is a discrepency [sic] in
report did not satisfy the Act’s requirements. The court of      the x-ray readings a system should be in place to
appeals concluded that the trial court abused its discretion     inform the patient of this. There did not appear to be
when it dismissed the plaintiffs’ claims, because the            any procedure that the hospital has for tracking x-rays.
expert report represented a good-faith effort to comply          The hospital also doesn’t seem to have a system of
with the Act. 48 S.W.3d 443, 448. We disagree.                   orienting health care professionals working in the E.R.

               © 2015 Thomson Reuters. No claim to original U.S. Government Works.                                   1
Bowie Memorial Hosp. v. Wright, 79 S.W.3d 48 (2002)
45 Tex. Sup. Ct. J. 833

      nor any form of Q/A for P.A.’s staffing the E.R. There         art. 4590i, § 13.01(d); American Transitional Care Ctrs.
      didn’t appear to be any organized system or protocols          of Tex., Inc. v. Palacios, 46 S.W.3d 873, 877 (Tex.2001).
      for P.A. supervision in the E.R.                               The expert report must provide “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
      I do believe that it is reasonable to believe that if the x-   meet the standards, and the causal relationship between
      rays would have been correctly read and the                    that failure and the injury, harm, or damages claimed.”
      appropriate medical personnel acted upon those                 TEX.REV.CIV. STAT. art. 4590i, § 13.01(r)(6). If a
      findings then Wright would have had the possibility of         plaintiff timely files an expert report and the defendant
      a better outcome.                                              moves to dismiss because of the report’s inadequacy, the
                                                                     trial court must grant the motion “only if it appears to the
Bowie moved to dismiss the Wrights’ claims, alleging                 court, after hearing, that the report does not represent a
that the expert report “fails to establish how any act or            good faith effort to comply with the definition of an
omission of employees of Bowie Memorial Hospital                     expert report in Subsection (r)(6) of this *52 section.”
caused or contributed to Ms. Wright’s injuries.”                     TEX.REV.CIV. STAT. art. 4590i, § 13.01(l ) (emphasis
Therefore, Bowie argued, the report does not satisfy the             added).
Act’s requirements.
                                                                     [2]
                                                                          We recently discussed the Act’s expert-report
The trial court held two hearings to determine if the report         requirement for medical-malpractice cases. See Palacios,
represents a good-faith effort to meet the Act’s                     46 S.W.3d at 877–80. In Palacios, we explained that,
requirements. See TEX.REV.CIV. STAT. art. 4590i, §                   when considering a motion to dismiss under section
13.01(l ). At the first hearing, the trial court asked about         13.01(l ), “[t]he issue for the trial court is whether ‘the
the causal relationship between Bowie’s conduct and                  report’ represents a good-faith effort to comply with the
Barbara’s injury. The Wrights explained that if Bowie had            statutory definition of an expert report.” Palacios, 46
diagnosed Barbara’s fractured foot earlier, then she                 S.W.3d at 878. To constitute a “good-faith effort,” the
“probably would have had a better outcome.” They also                report must provide enough information to fulfill two
conceded that the orthopedic specialist Barbara saw                  purposes: (1) it must inform the defendant of the specific
immediately after leaving Bowie “had an independent                  conduct the plaintiff has called into question, and (2) it
duty to verify” Bowie’s medical report. Nevertheless, the            must provide a basis for the trial court to conclude that the
Wrights claimed that, if Bowie’s report had indicated that           claims have merit. Palacios, 46 S.W.3d at 879.
Barbara had a broken foot, it would have been “much
easier” for the orthopedic doctor to make a proper                   [3] [4] [5]
                                                                               The trial court should look no further than the
diagnosis. After the second hearing, the trial court granted         report itself, because all the information relevant to the
Bowie’s motion to dismiss. The record indicates that the             inquiry is contained within the document’s four corners.
trial court did not believe the Wrights’ claims against              Palacios, 46 S.W.3d at 878. The report need not marshal
Bowie, “the people who transferred [Barbara],” had merit,            all the plaintiff’s proof, but it must include the expert’s
given that the orthopedic surgeon “could have done his               opinion on each of the three elements that the Act
own work.”                                                           identifies: standard of care, breach, and causal
                                                                     relationship. Palacios, 46 S.W.3d at 878. A report cannot
The court of appeals reversed and remanded, holding that             merely state the expert’s conclusions about these
the trial court abused its discretion when it dismissed the          elements. Palacios, 46 S.W.3d at 879. “[R]ather, the
Wrights’ claims against Bowie. 48 S.W.3d at 448. The                 expert must explain the basis of his statements to link his
court concluded that the report inadequately summarizes              conclusions to the facts.” Earle v. Ratliff, 998 S.W.2d
the causal relationship between Bowie’s alleged                      882, 890 (Tex.1999).
negligence and Barbara’s injury. However, it determined
that the report represents a good-faith effort to comply             [6] [7] [8]
                                                                              We review a trial court’s order dismissing a claim
with the Act, because it raises the possibility that, but for        for failure to comply with section 13.01(d)’s expert-report
Bowie’s breach, Barbara “would have had a better                     requirements under an abuse-of-discretion standard.
outcome.” 48 S.W.3d at 447.                                          Palacios, 46 S.W.3d at 878. A trial court abuses its
[1]
                                                                     discretion if it acts in an arbitrary or unreasonable manner
    Medical-malpractice plaintiffs must provide each                 without reference to any guiding rules or principles.
defendant physician and health-care provider an expert               Downer v. Aquamarine Operators, Inc., 701 S.W.2d 238,
report with the expert’s curriculum vitae, or they must              241–42 (Tex.1985). When reviewing matters committed
voluntarily nonsuit the action. See TEX.REV.CIV. STAT.               to the trial court’s discretion, a court of appeals may not

                   © 2015 Thomson Reuters. No claim to original U.S. Government Works.                                      2
Bowie Memorial Hosp. v. Wright, 79 S.W.3d 48 (2002)
45 Tex. Sup. Ct. J. 833

substitute its own judgment for the trial court’s judgment.   rather than the “reasonable medical probability”—that
See Flores v. Fourth Ct. of Appeals, 777 S.W.2d 38, 41        Barbara might have had a better outcome, the court of
(Tex.1989).                                                   appeals concluded that the report’s adequacy should not
                                                              turn “solely upon the claimant’s failure to use magical
Here, the parties do not dispute that the expert report       words like ‘reasonable probability.’ ” 48 S.W.3d at 447.
fairly summarizes the alleged standard of care, because it    Accordingly, the court of appeals held that the report met
states that a hospital should have established procedures     the good-faith effort test, because it gave the trial court a
to read and interpret x-rays in a timely manner and to        basis to conclude that the Wrights’ claims against Bowie
inform patients about the results. See TEX.REV.CIV.           have merit. 48 S.W.3d at 448.
STAT. art. 4590i, § 13.01(r)(6). Also, the parties do not
dispute that the report fairly summarizes how Bowie           We agree with the court of appeals’ conclusion that a
allegedly breached the standard of care, because the          report’s adequacy does not depend on whether the expert
report states that Bowie did not have a procedure to track    uses any particular “magical words.” Nothing in the Act’s
x-rays. See TEX.REV.CIV. STAT. art. 4590i, §                  plain language, or in Palacios, suggests that, for these
13.01(r)(6). Consequently, the parties only contest           purposes, an expert report must express the causal
whether the report constitutes a “good-faith effort” to       relationship in terms of “reasonable medical probability.”
fairly summarize the causal relationship between Bowie’s      However, we disagree with the court of appeals’
alleged breach and Barbara’s injury. See TEX.REV.CIV.         conclusion that the trial court abused its discretion in
STAT. art. 4590i, § 13.01(r)(6); Palacios, 46 S.W.3d at       dismissing the Wrights’ claims against Bowie. We have
879.                                                          held that the only information relevant to whether a report
                                                              represents a good-faith effort to comply with the statutory
Contrary to the court of appeals’ conclusion, it is not       requirements is the report itself. Palacios, 46 S.W.3d at
enough that the expert report “provided insight” about the    878. And, we have held that we review a trial court’s
plaintiff’s claims. See 48 S.W.3d at 447. Rather, to          decision about whether a report constitutes a good-faith
constitute a good-faith effort to establish the causal-       effort to comply with the Act under an abuse-of-discretion
relationship element, the expert report must fulfill          standard. Palacios, 46 S.W.3d at 878.
Palacios ‘s two-part test. See Palacios, 46 S.W.3d at 879.
Thus, under the Palacios test, we must determine whether      After reviewing this report, we conclude that the trial
the trial court acted unreasonably and without reference to   court could have reasonably determined that the report
guiding principles when it dismissed the Wrights’ claims      does not represent a good-faith effort to summarize the
against Bowie. See Downer, 701 S.W.2d at 241–42.              causal relationship between Bowie’s failure to meet the
                                                              applicable standards of care and Barbara’s injury. See
The Wrights primarily rely on one statement in the report     TEX.REV.CIV. STAT. art. 4590i, § 13.01(r)(6);
to establish causation: “if the x-rays would have been        Palacios, 46 S.W.3d at 879. That is because the report
correctly read and the appropriate medical personnel *53      simply opines that Barbara might have had “the
acted upon those findings then Wright would have had the      possibility of a better outcome” without explaining how
possibility of a better outcome.” In their brief to this      Bowie’s conduct caused injury to Barbara. We cannot
Court, the Wrights contend that this statement “explains      infer from this statement, as the Wrights ask us to, that
why Petitioners’ damages were caused by Bowie                 Bowie’s alleged breach precluded Barbara from obtaining
Hospital’s breach: if the proper medical personnel at         a quicker diagnosis and treatment for her foot. Rather, the
Bowie had reviewed the x-rays, [Barbara] would have had       report must include the required information within its
a chance of diagnosis and treatment of her foot fracture.”    four corners. See TEX.REV.CIV. STAT. art. 4590i, §
                                                              13.01(r)(6); Palacios, 46 S.W.3d at 878. Because the
Bowie responds that the report’s statement about              report lacks information linking the expert’s conclusion
causation is conclusory, because it does not explain how      (that Barbara might have had a better outcome) to
Bowie’s failing to correctly read or act upon the x-rays      Bowie’s alleged breach (that it did not correctly read and
caused injury to Barbara. Moreover, Bowie asserts, the        act upon the x-rays), the trial court could have reasonably
statement does not even identify the specific injuries        determined that the report was conclusory. See Palacios,
Bowie’s conduct allegedly caused.                             46 S.W.3d at 880; Earle, 998 S.W.2d at 890. A
                                                              conclusory report does not meet the Act’s requirements,
In reviewing the report’s adequacy, the court of appeals      because it does not satisfy the Palacios test. Palacios, 46
focused on “whether the report provides a basis to            S.W.3d at 879.
conclude that the claims have merit.” 48 S.W.3d at 447
(citing Palacios, 46 S.W.3d at 878–79). Although the          *54 For these reasons, we hold that the trial court did not
causation statement recognizes only the “possibility”—        abuse its discretion when it concluded that the report did

               © 2015 Thomson Reuters. No claim to original U.S. Government Works.                                   3
Bowie Memorial Hosp. v. Wright, 79 S.W.3d 48 (2002)
45 Tex. Sup. Ct. J. 833

not represent a good-faith effort to meet the Act’s           appeals’ judgment and dismiss with prejudice the
requirements. Therefore, the trial court had no discretion    Wrights’ claims against Bowie. See TEX.R.APP. P. 59.1.
but to dismiss the plaintiffs’ claims against Bowie. See
TEX.REV.CIV. STAT. art. 4590i, § 13.01(l ); Palacios,
46 S.W.3d at 880. In reviewing the trial court’s order, the
court of appeals improperly substituted its own judgment      Parallel Citations
for the trial court’s judgment. See Flores, 777 S.W.2d at
41. Accordingly, we grant Bowie’s petition for review.        45 Tex. Sup. Ct. J. 833
Without hearing oral argument, we reverse the court of
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.                                         4
Earle v. Ratliff, 998 S.W.2d 882 (1999)
42 Tex. Sup. Ct. J. 919



                                                                Opinion
                   998 S.W.2d 882
                Supreme Court of Texas.                         *884 Justice HECHT delivered the opinion of the Court.
         Stephen EARLE, M.D., Petitioner,
                       v.                                       This medical malpractice case raises several issues, but
        Michael RATLIFF and Shirley Ratliff,                    our attention centers on whether the plaintiff’s claim that
                  Respondents.                                  the defendant negligently performed surgery on him is
                                                                barred by limitations. The plaintiff contends that
No. 98–0115. | Argued April 7, 1999. | Decided July
                                                                limitations did not begin to run on his claim until his post-
    1, 1999. | Rehearing Overruled Oct. 7, 1999.
                                                                surgical course of treatment by the defendant ended, and
Patient sued surgeon who performed two back surgeries           until he became aware that the defendant had fraudulently
involving metal bone plates and pedicle screws, asserting       concealed from him the truth about the surgery and the
medical malpractice and lack of informed consent. The           treatment that followed. Further, the plaintiff asserts, to
288th Judicial District Court, Bexar County, David              bar his claim would violate the Open Courts provision of
Peeples, J., granted summary judgment for surgeon on            the Texas Constitution.1 On each of these matters we
statute of limitations grounds. Patient appealed. The San       disagree with the plaintiff, but on other claims described
Antonio Court of Appeals, 961 S.W.2d 591, reversed and          below, we believe the plaintiff is correct. The district
remanded. Surgeon filed petition for review. The                court granted defendant summary judgment on all
Supreme Court, Hecht, J., held that: (1) any negligence by      plaintiff’s claims. The court of appeals reversed summary
surgeon concerning initial surgery occurred on or before        judgment on all claims.2 We partially affirm, and partially
date of that surgery, and limitations period thus began to      reverse, the judgment of the court of appeals and remand
run on that date rather than when surgeon quit treating         the case to the district court for further proceedings.
patient; (2) surgeon did not fraudulently conceal known
wrong, so as to toll limitations periods for medical
malpractice claim; (3) open courts provision of state
constitution did not preclude limitations bar of patients’                                   I
claims relating to initial back surgery; (4) genuine issue of
material fact existed, precluding summary judgment for          Michael Ratliff, a thirty-eight-year-old freight handler in
surgeon, on whether he was negligent concerning second          good health, sustained a work-related back injury in June
surgical implant of devices in patient’s back; (5) surgeon      1991, for which he was treated by Dr. Stephen Earle. On
could not be held negligent concerning disclosure of risks      November 21, 1991, Earle operated on Ratliff, fusing his
attendant to second spinal implant surgery, where surgeon       lumbar spine at three levels, decompressing nerves at four
disclosed all risks identified by Texas Medical Disclosure      levels, and inserting metal bone plates and screws
Panel and thus complied with Medical Liability Insurance        manufactured by AcroMed Corporation. Unfortunately,
Improvement Act; and (6) Medical Liability and                  Ratliff’s condition gradually worsened. Earle continued to
Insurance Improvement Act barred patient’s Deceptive            treat Ratliff, and on November 16, 1993, Earle operated
Trade Practices-Consumer Protection Act (DTPA) claims           again to remove and replace the instrumentation
that surgeon misrepresented and concealed truth                 implanted in the first surgery. Following this surgery,
concerning back surgeries.                                      Ratliff’s condition deteriorated even further, to the point
                                                                where he was in constant pain and unable to walk, talk, or
Judgment of the Court of Appeals affirmed in part and           care for himself. A month later, Ratliff saw a television
reversed in part, and case remanded.                            report on the risks associated with the AcroMed
                                                                instrumentation that had been surgically implanted in him
                                                                and removed. Ratliff contends that this was his first
Attorneys and Law Firms                                         inkling that Earle’s treatment had been improper. Ratliff
                                                                returned to Earle on January 4, 1994, for a final visit, and
*883 George H. Spencer, Sr., Phylis J. Speedlin, San
                                                                not quite two months later, on February 28, he and his
Antonio, for Petitioner.
                                                                wife (collectively, “Ratliff”) sued Earle and others. We
Donna J. Bowen, Michael L. Slack, Austin, James A.              are concerned only with Ratliff’s action against Earle.
Hall, San Antonio, for Respondents.
                                                                Ratliff sued Earle for negligence, fraudulent concealment,
                                                                strict liability, and violations of the Deceptive Trade
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Earle v. Ratliff, 998 S.W.2d 882 (1999)
42 Tex. Sup. Ct. J. 919

Practices–Consumer Protection Act.3 Ratliff alleged that            (Ratliff has dismissed his strict liability claim in
Earle was negligent in:                                             order to participate in a settlement reached in In re
                                                                    Orthopedic Bone Screw Products Liability Litigation
                                                                    (Fanning v. Acromed Corp.).4)
     · misdiagnosing his condition;                           Earle moved for summary judgment on several grounds,
                                                              including: that Ratliff’s claims relating to his 1991
         · performing unwarranted and unnecessary             surgery were barred by limitations; that with respect to
         surgeries on him;                                    the 1993 surgery, Earle did not breach the standard of
                                                              care owed Ratliff or cause him any injury; that Earle
         · implanting in his back pedicle devices not         obtained from Ratliff the consent to treatment and surgery
         approved by the Federal Food and Drug                required by statute;5 and that Earle did not knowingly
         Administration;                                      make any misrepresentation to Ratliff. In connection with
                                                              the last ground, Earle argued that Ratliff’s health care
         · failing to warn him of the risks of the surgery
                                                              liability claims could not be recast as DTPA violations.
         and the causes of his subsequent pain; and
                                                              Earle supported his motion with his own affidavit and
         · misrepresenting throughout the entire course       certain medical records. Ratliff responded, relying on his
         of treatment the risks of pedicle instrumentation    own affidavit and that of an expert witness, Dr. Vert
         and the problems experienced by other patients       Mooney, as well as other medical records. The district
         from such a procedure.                               court granted Earle’s motion “on all grounds”, and Ratliff
                                                              appealed.
     Ratliff further alleged that Earle had fraudulently
     concealed:                                               The court of appeals reversed, holding that Earle was not
                                                              entitled to summary judgment on any ground raised in his
         · that the surgeries were unwarranted and            motion.6 Concerning limitations, the court concluded “that
         unnecessary;                                         the allegations of this case [involving] elements of both
                                                              misdiagnosis and mistreatment mak[e] it difficult to
         · that objective reports did not support Earle’s     ascertain a specific date when the malpractice claim
         diagnosis and recommendation of surgery;             arose.”7 Under the circumstances, the court found that
                                                              limitations did not begin to run on Ratliff’s claims until
         · that statements Earle made to induce Ratliff to    the date of Earle’s last treatment,8 which, as we have said,
         have surgery were incorrect;                         was less than two months before Ratliff filed suit.
         · that assurances Earle gave Ratliff about his       We granted Earle’s petition for review.9 We first consider
         condition and the reasons *885 for his               whether Ratliff’s claims relating to the 1991 surgery are
         continuing pain were misleading, incomplete,         barred by limitations, and then whether Earle was entitled
         and inaccurate; and                                  to summary judgment on Ratliff’s other claims.
         · the risks of using spinal fixation devices, some
         of which were printed on an insert in the
         packaging of the instrumentation Earle
         implanted in Ratliff.                                                            II
     Finally, Ratliff alleged that Earle violated the DTPA    Ratliff’s negligence claims are “health care liability
     by telling him that:                                     claims” within the meaning of the Medical Liability and
                                                              Insurance Improvement Act.10 Section 10.01 of the Act
         · he needed surgery;                                 provides in pertinent part that
         · he would get “95% better” and would be able           no health care liability claim may be commenced
         to return to work;                                      unless the action is filed within two years from the
                                                                 occurrence of the breach or tort or from the date the
         · the devices implanted in Ratliff were safe,
                                                                 medical or health care treatment that is the subject of
         approved for such use, and permanent; and
                                                                 the claim or the hospitalization *886 for which the
         · the pain he endured was to be expected and            claim is made is completed....11
         would get better.                                    Thus, under this statute limitations is to run from one of
                                                              three dates: the date of the breach or tort, the completion

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Earle v. Ratliff, 998 S.W.2d 882 (1999)
42 Tex. Sup. Ct. J. 919

of treatment, or the completion of hospitalization. We            Gormley’s motion for summary judgment stated that
have repeatedly held that a plaintiff cannot choose the           the health care of which Stover complained occurred
most favorable of the three dates specified, and that “if         before or during surgery. None of the excerpts of
the date of the negligence can be ascertained, ...                Stover’s and her expert witness’ deposition testimony,
limitations must be measured from the date of the tort.”12        attached to Gormley’s motion, mentioned any
                                                                  negligence occurring after surgery. Gormley’s affidavit
Ratliff contends, and the court of appeals agreed, that           stated that if Stover was injured at all, it was during
limitations did not begin to run on his claims regarding          surgery. Stover’s affidavit did not assert that Gormley
the 1991 surgery until Earle quit treating him, shortly           was negligent following surgery. Her affidavit did
before he filed suit. Earle asserts that limitations began to     assert that Gormley represented to her after her surgery
run on those claims the date surgery was performed.               that her pain would shortly subside, but she does not
Ratliff also contends that the running of limitations was         claim that her continued pain was attributable to his
suspended by Earle’s fraudulent concealment of certain            post-surgical treatment of her. In short, Gormley’s
facts about the surgery and his prognosis. Earle responds         affidavit established as a matter of law that no
that Ratliff has failed to raise a genuine issue of material      actionable negligence occurred after surgical treatment
fact on the elements of fraudulent concealment. Finally,          was completed, and nothing else in the *887 summary
Ratliff argues that his claims cannot be barred by                judgment record raises a fact issue on the matter. The
limitations without violating the Open Courts provision of        trial court correctly granted summary judgment for
the Texas Constitution. Earle responds that Ratliff has           Gormley on Stover’s negligence claims in their
failed to raise a fact issue that he did not have a               entirety.14
reasonable opportunity to sue, and thus he is not entitled      As far as we have been able to determine, the only courts
to the protection of the Open Courts provision. We              of appeals to consider this issue have reached the same
address each of these issues—when limitations began to          conclusion.15
run, fraudulent concealment, and Open Courts—in turn.
                                                                The court of appeals in the present case was concerned
                                                                about the lingering effects of Earle’s alleged
                                                                misdiagnosis, leading to unnecessary surgery, continued
                                                                pain and complications, and finally another surgery. But if
                             A                                  the running of limitations on negligent surgery were
[1]                                                             deferred while the patient continued to experience the
   Ratliff neither complains nor offers evidence of any         effects of that surgery, then the first clause of section
negligence by Earle in the treatment following the 1991         10.01 pegging the date of the breach or tort as the
surgery. Ratliff does not contend, for example, that Earle      beginning of the limitations period would seldom apply to
should have done something after the surgery to relieve         surgery.
his pain or improve his back. Ratliff alleges that Earle did
not tell him the truth about the surgery, the reasons for his   Our conclusion does not suggest that limitations is not
continued pain afterward, or his prognosis, but he does         affected when a physician who can correct a misdiagnosis
not assert that Earle’s alleged post-surgical statements or     or lessen its consequences fails to do so. On the contrary,
concealments affected his treatment or his condition.           we suggested in Rowntree v. Hunsucker that a claim for
                                                                continued mistreatment is not barred simply because
Rather, Ratliff contends that Earle was negligent in            treatment was based on a much earlier misdiagnosis.16
misdiagnosing the need for surgery, in failing to disclose      Rowntree did not present such a situation,17 but Chambers
the attendant risks of surgery beforehand, and in               v. Conaway,18 the case on which the court of appeals
performing unwarranted surgery. Assuming Ratliff is             relied, did. Conaway claimed that Chambers, her family
correct, Earle’s negligence occurred on or before the date      physician, failed to diagnose cancer on two occasions
he performed surgery, and limitations on Ratliff’s claim        when she complained of a lump in her breast and on
began to run on that date. We reached the same                  several other visits to him for general health care. Based
conclusion in similar circumstances in Gormley v.               on evidence that Chambers had a duty to follow up on
Stover.13 There, Stover complained that Gormley was             Conaway’s complaints each time he saw her, we held that
negligent in performing skin graft surgery to improve her       the tort Conaway complained of did not occur, and
ability to wear dentures, but she argued that limitations       limitations did not begin to run, until the last time
did not begin to run until Gormley quit treating her. We        Chambers failed to diagnose her cancer, which was her
explained:                                                      last visit.19 We did not apply the course-of-treatment
                                                                limitations provisions of section 10.01 to allow Conaway
                                                                to complain of the initial misdiagnosis, but neither did we

                © 2015 Thomson Reuters. No claim to original U.S. Government Works.                                  3
Earle v. Ratliff, 998 S.W.2d 882 (1999)
42 Tex. Sup. Ct. J. 919

allow that first misdiagnosis to bar Conaway’s complaints         therefore fraudulent concealment is imputed to Dr.
about later visits.                                               Carrell because of his failure to inform the plaintiff that
                                                                  the gauze sponge had been left inside the plaintiff’s
Nor does our conclusion suggest that limitations on               body. The proposition is essentially unsound. In
claims of post-surgical negligence runs from the date of          conducting a surgical operation on his patient, and in
surgery. If treatment is negligent following surgery, then        respect to any treatment he may administer, a surgeon
section 10.01 provides that limitations begins to run from        is under the duty to exercise due care. His failure to
the date of the breach or tort or from the date that              discharge this duty constitutes negligence and therefore
treatment was completed. Thus, limitations on a claim             is wrongful—but the failure does not, of itself,
that a physician has improperly treated a patient’s               constitute fraud or expose the surgeon to the imputation
infection following surgery does not begin to run on the          of fraudulent concealment. Among other essential
date of surgery merely because the infection would not            ingredients, a fraudulent concealment in cases of this
have occurred but for the surgery.                                sort includes, first, actual knowledge of the fact that a
                                                                  wrong has occurred, and, second a fixed purpose to
Ratliff does not allege that Earle misdiagnosed or                conceal the wrong from the patient. Neither of these
mistreated his condition after surgery or that he failed to       ingredients appears from the allegations of the
do anything following surgery to rectify or ameliorate his        plaintiff’s petition. The trial court did not err in
earlier misdiagnosis that surgery was appropriate. Under          sustaining the special exception in question and in
these circumstances, limitations began to run on Ratliff’s        dismissing the suit.24
complaints concerning the 1991 surgery the date it was          In other words, proof of fraudulent concealment requires
performed.                                                      more than evidence that the physician failed to use
                                                                ordinary care; it also requires evidence that the defendant
                                                                actually knew the plaintiff was in fact wronged, and
                                                                concealed that fact to deceive the plaintiff.25

                               B                                [3] [4] [5]
                                                                         A person who asserts fraudulent concealment to
                                                                avoid summary judgment on limitations must raise a
Although section 10.01 prescribes the limitations period        genuine issue of material fact that would support his
for all health care liability claims “[n]otwithstanding any     assertion.26 Of course, fraudulent concealment may be
other *888 law,”20 we held in Borderlon v. Peck that the        shown by circumstantial evidence as well as direct
statute “does not abolish fraudulent concealment as an          evidence.27 We therefore must examine the evidence
equitable estoppel to the affirmative defense of                Ratliff offered to support his claim of fraudulent
limitations”.21 Proof of fraudulent concealment, we added,      concealment: Ratliff’s affidavit and that of his expert, Dr.
does not prohibit an assertion of limitations altogether,       Mooney.
but does suspend the running of limitations until such
time as the plaintiff learned of, or should have discovered,    Mooney’s affidavit focuses on whether Earle was
the deceitful conduct or the facts giving rise to the cause     negligent, not whether Earle deliberately concealed facts
of action.22 Ratliff contends that because Earle                from Ratliff to deceive him. Mooney states that Earle
fraudulently concealed that the 1991 surgery was                *889 must have known that his recommendation of
unnecessary and risky, limitations on claims concerning         surgery was negligent because it was contraindicated by
that surgery did not begin to run until he learned the truth    the objective test results set out in Ratliff’s medical
in a television broadcast more than two years later, a few      records and because information available to Earle
months before he filed suit.                                    concerning pedicle implementation showed that surgery
[2]                                                             should not have been attempted. While this evidence
   We considered the effect of fraudulent concealment in        certainly shows a difference of opinion between Mooney
the medical malpractice context in Carrell v. Denton.23         and Earle and raises a question whether Earle was
There the defendant physician had left a gauze sponge in        negligent, it falls short of showing Earle’s “actual
plaintiff’s body after surgery. To avoid having his             knowledge of the fact that a wrong ... occurred” necessary
negligence claim barred by limitations, plaintiff asserted      for fraudulent concealment. In addition, Mooney refers to
fraudulent concealment. We rejected plaintiff’s argument,       portions of Earle’s deposition testimony as evidence that
explaining:                                                     Earle knew about, but did not inform Ratliff of, certain
                                                                serious risks associated with spinal fixation surgery. This
      The proposition which lies at the bottom of this          testimony, too, reflects a difference of professional
      contention is to the effect that the relation between a   opinion and does not show that Earle intended to deceive
      surgeon and his patient involves trust and confidence,    Ratliff.

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Earle v. Ratliff, 998 S.W.2d 882 (1999)
42 Tex. Sup. Ct. J. 919

                                                               treatment by Dr. Earle was negligent and had caused the
Ratliff’s affidavit does not show that Earle fraudulently      problems he was experiencing until, at the earliest, in
concealed facts from him. Ratliff states that Earle            December 1993 when he saw the [television broadcast].”
“assur[ed] me that I would be ‘95 ≠tter’ and would return      The district court correctly struck this latter *890
back to work soon”, that Earle “did not inform me that my      statement as being conclusory. Even if the sentence had
surgery could make my condition even worse” and “never         not been struck, neither it nor Mooney’s broad statements
explained the permanency and severity of my condition”,        about justified reliance on a physician’s advice would
and that Earle “told me the [1993] surgery was necessary       support Ratliff’s constitutional claim. Mooney’s statement
because I had four broken screws” when in fact the             that he had seen no evidence that Ratliff could have
surgery was necessitated by loose, not broken, screws.         discovered Earle’s alleged negligence sooner is not
But Ratliff offers no evidence, direct or circumstantial,      conclusive of the record. Between the 1991 and 1993
that Earle actually knew these statements were in fact         surgeries, Ratliff made twenty-four visits to Earle’s
false when he made them, let alone that Earle’s purpose in     office. Medical records establish that he repeatedly
making them was deceit. Earle may have been negligent          complained of pain and a lack of improvement in his
in what he said to Ratliff, just as he may have been           condition. In his own affidavit, Ratliff reiterates that his
negligent in performing the 1991 surgery, but Ratliff has      pain persisted during that period and that there was little
offered no summary judgment evidence that Earle acted          improvement in his condition. Ratliff’s condition was not
fraudulently by concealing a known wrong.                      latent, nor does he assert that the risks associated with his
                                                               surgery were generally unknown to medical practitioners.
Because Ratliff has failed to raise an issue of fact
concerning fraudulent concealment, we conclude that he         The record establishes that Ratliff had an opportunity to
cannot thereby avoid the bar of limitations.                   learn of any negligence by Earle in performing the 1991
                                                               surgery, and the fact that he waited more than two years
                                                               to do so does not raise constitutional concerns.
                                                               Accordingly, we conclude that Ratliff’s claims
                                                               concerning the 1991 surgery are barred by limitations.
                             C
[6]   [7]
         The Open Courts provision of the Texas
Constitution28 does not permit a well-established
common-law cause of action to be restricted by statute in                                  III
a way that is unreasonable or arbitrary in view of the
statute’s purpose.29 In Jennings v. Burgess, we held that      We now turn to three additional claims Ratliff makes: that
the limitations provisions of section 10.01 do not violate     Earle was negligent in performing the 1993 surgery, that
the Open Courts guarantee if a plaintiff has had a             Earle failed to disclose the risks attendant to that surgery,
reasonable opportunity to discover the alleged wrong and       and that statements Earle made violated the DTPA.
bring suit before the limitations period expired.30 We
assumed in Jennings, without expressly explaining our
reasons, that the plaintiff must raise a fact issue
concerning the applicability of the provision to avoid a
summary judgment on limitations.31 We believe that the                                      A
same rule should apply for asserting the Open Courts           [8]
guarantee in response to a motion for summary judgment            Ratliff claims that Earle was negligent in performing
on limitations as is applied in asserting fraudulent           the 1993 surgery. In his affidavit supporting his motion
concealment.                                                   for summary judgment, Earle states that he did not breach
                                                               the applicable standard of care in performing the 1993
Ratliff’s affidavit establishes that he did not learn of the   surgery. “Both in 1991 and 1993,” Earle’s affidavit states,
risks of pedicle implantation until he saw a television        “use of Steffe pedicle screws and plates met the standard
broadcast about a month after his second surgery.              of care.” Mooney’s affidavit states with respect to the
However, the only evidence Ratliff has offered to show         1993 surgery: “Considering the degree of spinal
that he could not have learned of the risks sooner consists    instability created by Mr. Ratliff’s first surgery, and the
of statements in Mooney’s affidavit that he was justified      fact that Mr. Ratliff’s first set of AcroMed screws and
in trusting Earle and the following statement: “From the       plates resulted in hardware failure with loosening, the
information that I have reviewed, there is no evidence that    insertion of another device was medically unwarranted.”
Mr. Ratliff could have known that his care and continued       The district court struck this statement in Mooney’s
                                                               affidavit as being conclusory, but we do not regard it as
               © 2015 Thomson Reuters. No claim to original U.S. Government Works.                                    5
Earle v. Ratliff, 998 S.W.2d 882 (1999)
42 Tex. Sup. Ct. J. 919

any more conclusory than statements in Earle’s affidavit.        presumption Ratliff could and did rebut with Mooney’s
Mooney’s statement raises the question whether, given            affidavit stating that Earle should have disclosed certain
Ratliff’s failure to improve following the first surgical        risks beyond those enumerated by the Texas Medical
implantation and his increased spinal instability, a second      Disclosure Panel.41 The court relied on another court of
implant was warranted. Earle’s affidavit and other               appeals’ decision, Penick v. Christensen,42 which
summary judgment evidence do not address this issue.             concluded that a physician who makes disclosure for a
                                                                 List A procedure or treatment as prescribed by the Panel
[9]
   Summary judgment can be granted on the affidavit of           can nevertheless be negligent for failing to make
an interested expert witness, like Earle, but the affidavit      additional disclosures. Penick based its conclusion on
must not be conclusory.32 An expert’s simple ipse dixit is       section 6.07(a)(1) of the Act, which provides that
insufficient to establish a matter; rather, the expert must      disclosure made as prescribed for a List A procedure
explain the basis of his statements to link his conclusions      “shall create a rebuttable presumption that the
to the facts.33 Earle’s affidavit does not explain why           requirements of [the Act] have been complied with”.43
implantation of additional devices in the 1993 surgery
was medically warranted, given Ratliff’s history; the            We do not agree that the Act permits a finding that a
affidavit states only the conclusion that Earle met the          physician who made disclosures as prescribed by the
applicable standard of care.                                     Panel was negligent for not disclosing other risks and
                                                                 hazards associated with the recommended procedure.
Accordingly, the court of appeals did not err in reversing       Were it so, the Act would afford a physician who
summary judgment on this claim.                                  complied with Panel directives no protection from
                                                                 liability for nondisclosure if there were any evidence that
                                                                 additional disclosure was appropriate. The entire purpose
                                                                 of the Panel decisions would thus be thwarted. Section
                                                                 6.07(a)(1) is not entirely clear, but we agree with the
                              B                                  weight of scholarly authority that, read in the light of the
[10]                                                             other provisions of the Act, it permits the presumption of
    Ratliff contends that Earle was negligent in failing to      proper disclosure to be rebutted only by showing the *892
disclose the risks attendant to the 1993 surgery. This           invalidity of the consent form, such as by proof that the
claim *891 is governed by the Medical Liability and              patient’s signature was forged, or that the patient lacked
Insurance Improvement Act.34 The Act creates the Texas           capacity to sign.44
Medical Disclosure Panel and gives it the responsibility to
“identify and make a thorough examination of all medical         Ratliff produced no evidence that his written consent was
treatments and surgical procedures ... to determine which        ineffective due to incapacity or was otherwise invalid, and
... do and do not require disclosure of the risks and            thus he has raised no issue that Earle was negligent in
hazards to the patient”.35 The Panel prepares and publishes      disclosing the risks of surgery. Accordingly, we hold that
two lists, one (List A) of treatments and procedures for         the court of appeals erred in reversing summary judgment
which the risks must be disclosed, and the other (List B)        on this claim, and we disapprove Penick to the extent its
of treatments and procedures for which disclosure of risks       reasoning is contrary to ours.
is not required.36 For all List A procedures, the Panel must
also state what risks must be disclosed and the form in
which disclosure must be made.37 The Act then provides
that a physician who discloses to a patient the risks of a
List A procedure in the substance and form prescribed by                                      C
the Panel “shall be considered to have complied” with the
                                                                 [12]
Act,38 and that a patient’s consent to a List A procedure            Finally, Ratliff claims that Earle misrepresented and
obtained as prescribed “shall be considered effective”.39 It     concealed the truth concerning both the 1991 and the
is undisputed that both of Ratliff’s surgeries were List A       1993 surgeries in violation of the DTPA. Section 12.01(a)
procedures.40 Earle’s affidavit states in effect that he         of the Medical Liability and Insurance Improvement Act
disclosed all risks identified by the Texas Medical              precludes application of the DTPA to physicians “with
Disclosure Panel in the manner required, and Ratliff’s           respect to claims for damages for personal injury or death
signed consent form shows that Earle is correct.                 resulting, or alleged to have resulted, from negligence”.45
                                                                 Ratliff and Earle both argue whether Ratliff’s DTPA
[11]
     The court of appeals held, however, that Earle’s            claims are thus precluded.
affidavit only raised a rebuttable presumption that he was
not negligent in disclosing the risks of surgery to Ratliff, a

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Earle v. Ratliff, 998 S.W.2d 882 (1999)
42 Tex. Sup. Ct. J. 919

In Sorokolit v. Rhodes, we held that section 12.01(a) does               the DTPA when the plaintiff’s complaint was that her
not preclude a DTPA claim that is not based on a                         deceased husband had been negligently treated.52
physician’s breach of the accepted standard of medical
care.46 We added, however, that “[c]laims that a physician               The representations Ratliff alleges Earle made are all
or health care provider was negligent may not be recast as               related to Earle’s treatment of him and the surgeries
DTPA actions” to avoid the provisions of the Act.47 We                   performed, as in Gormley, Walden, and MacGregor, and
held that a physician’s promise that his patient’s                       do not resemble the representations that were possible
appearance following cosmetic surgery would be identical                 DTPA violations in Sorokolit. The gist of all of Ratliff’s
to a specific photograph was actionable under the                        claims, variously phrased and labeled, is that Earle did not
DTPA.48                                                                  hold to the applicable standard of care. Such a claim
                                                                         sounds only in negligence. Summary judgment on these
In Gormley v. Stover, however, we held that a dentist’s                  claims was therefore proper.
statements that he could perform surgery on the plaintiff
with no problems, that a skin graft would work as well as
a bone graft, that after surgery the plaintiff could wear
dentures with no problems, and that her pain and
numbness would subside following surgery were not                                                    *****
actionable under the DTPA.49 All these statements, we
concluded, related to whether the dentist’s choice of                    Accordingly, the court of appeals’ judgment is affirmed in
surgical procedure and his performance of it met the                     part and reversed in part, and the case is remanded to the
applicable standard of care.50 In Walden v. Jeffery, we                  district court for further proceedings.
held that a dentist’s failure to provide the plaintiff
dentures that fit was a negligence claim, not a DTPA
claim.51 More recently, we held in MacGregor Medical                     Parallel Citations
Ass’n v. Campbell *893 that a clinic’s statements in its
HMO literature that it provided qualified personnel and                  42 Tex. Sup. Ct. J. 919
resources, the best services possible, and emergency
service twenty-four hours a day were not actionable under

Footnotes
1      TEX. CONST. art. I, § 13 (“All courts shall be open, and every person for an injury done him, in his lands, goods, person or
       reputation, shall have remedy by due course of law.”).
2      961 S.W.2d 591.

3      TEX. BUS. & COM.CODE §§ 17.41–.63.

4      176 F.R.D. 158, 165–166 (E.D.Pa.1997).

5      TEX.REV.CIV. STAT. ANN. art. 4590i, §§ 6.05–.06 (Vernon Supp.1999).

6      961 S.W.2d 591.

7      Id. at 597.

8      Id.

9      42 TEX. SUP.CT. J. 335 (Feb. 4, 1999).

10     “ ‘Health care liability claim’ means 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 which proximately results
       in injury to or death of the patient, whether the patient’s claim or cause of action sounds in tort or contract.” TEX.REV.CIV.
       STAT. ANN. art. 4590i, § 1.03(4) (Vernon Supp.1999).

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Earle v. Ratliff, 998 S.W.2d 882 (1999)
42 Tex. Sup. Ct. J. 919


11     Id. § 10.01.

12     Husain v. Khatib, 964 S.W.2d 918, 919 (Tex.1998) (per curiam); accord Bala v. Maxwell, 909 S.W.2d 889, 891 (Tex.1995) (per
       curiam); Kimball v. Brothers, 741 S.W.2d 370, 372 (Tex.1987).
13     907 S.W.2d 448 (Tex.1995) (per curiam).

14     Id. at 449–450.

15     See Winkle v. Tullos, 917 S.W.2d 304, 310 (Tex.App.—Houston [14th Dist.] 1995, writ denied); Desiga v. Scheffey, 874 S.W.2d
       244, 248–249 (Tex.App.—Houston [14th Dist.] 1994, no writ); Shook v. Herman, 759 S.W.2d 743, 745–746 (Tex.App.—Dallas
       1988, writ denied). Cf. Jones v. Cross, 773 S.W.2d 41, 43 (Tex.App.—Houston [1st Dist.] 1989, writ denied) (holding that
       limitations began to run from the last date of treatment rather than the date of the last of two eye surgeries because plaintiff
       alleged negligence in the follow-up treatment).
16     833 S.W.2d 103, 105 (Tex.1992).

17     Id. at 108.

18     883 S.W.2d 156 (Tex.1993).

19     Id. at 158–159.

20     TEX.REV.CIV. STAT. ANN. art. 4590i, § 10.01 (Vernon Supp.1999).

21     661 S.W.2d 907, 909 (Tex.1983).

22     Id.; Nichols v. Smith, 507 S.W.2d 518, 519 (Tex.1974).

23     138 Tex. 145, 157 S.W.2d 878 (1942).

24     Id. at 879.

25     See Borderlon, 661 S.W.2d at 908 (holding that a physician has a duty to disclose a negligent act or the fact that an injury has
       occurred).
26     Ryland Group, Inc. v. Hood, 924 S.W.2d 120, 121 (Tex.1996) (per curiam); American Petrofina, Inc. v. Allen, 887 S.W.2d 829,
       830 (Tex.1994).
27     See Spoljaric v. Percival Tours, Inc., 708 S.W.2d 432, 435 (Tex.1986).

28     TEX. CONST. art. I, § 13.

29     See Diaz v. Westphal, 941 S.W.2d 96, 100 (Tex.1997).

30     917 S.W.2d 790, 794 (Tex.1996).

31     See id.

32     Anderson v. Snider, 808 S.W.2d 54, 55 (Tex.1991) (per curiam).

33     Gammill v. Jack Williams Chevrolet, Inc., 972 S.W.2d 713, 726–727 (Tex.1998) (quoting General Elec. Co. v. Joiner, 522 U.S.

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Earle v. Ratliff, 998 S.W.2d 882 (1999)
42 Tex. Sup. Ct. J. 919

       136, 146, 118 S.Ct. 512, 523, 139 L.Ed.2d 508 (1997); Merrell Dow Pharm., Inc. v. Havner, 953 S.W.2d 706, 711–712
       (Tex.1997); Schaefer v. Texas Employers’ Ins. Ass’n, 612 S.W.2d 199, 202–204 (Tex.1980)).
34     TEX REV. CIV. STAT. ANN. art. 4590i, §§ 6.01–.08 (Vernon Supp.1999).

35     Id. § 6.04(a).

36     Id. § 6.04(b), (c).

37     Id. § 6.04(b).

38     Id. § 6.05.

39     Id. § 6.06.

40     The Texas Medical Disclosure Panel lists “spine operation” as a procedure requiring written disclosure, and defines the
       procedure as including “laminectomy, decompression, fusion, internal fixation or procedures for nerve root or spinal cord
       compression”. 25 TEX. ADMIN. CODE § 601.2(m)(3) (1998). The Panel has identified six risks which must be disclosed prior
       to a spine operation: “pain, numbness or clumsiness”, “impaired muscle function”, “incontinence or impotence”, “unstable
       spine”, “recurrence or continuation of the condition that required the operation”, and “injury to major blood vessels”. Id.
41     961 S.W.2d at 597.

42     912 S.W.2d 276, 285–286 (Tex.App.—Houston [14th Dist.] 1995, writ denied).

43     TEX.REV.CIV. STAT. ANN. art. 4590i, § 6.07(a)(1) (Vernon Supp.1999).

44     See Jim M. Perdue, The Law of Texas Medical Malpractice, Chapter X: Informed Consent, 22 HOUS. L. REV. 399, 426 n. 190
       (1985) (observing “[t]here appears to be no avenue for disputing th[e] presumption” of sections 6.05 and 6.06, that written
       disclosure of the panel’s enumerated risks is sufficient for List A procedures); Frank W. Elliott, The Impact of the Texas
       Medical Liability and Insurance Improvement Act on Informed Consent Recovery in Medical Malpractice Litigation, 10 TEX.
       TECH L. REV . 381, 387 (1979)(“[I]t appears that evidence that could rebut the presumption of disclosure under Section
       6.07(a)(1) is evidence that would attack the validity of the consent.”); COMM. ON PATTERN JURY CHARGES, STATE
       BAR OF TEX., TEXAS PATTERN JURY CHARGES—MALPRACTICE, PREMISES & PRODUCTS PJC 51.15, cmt.
       (1997) (“If the physician has obtained the patient’s signature on a consent form ... containing the risks enumerated on list A, the
       only means by which the patient may recover for failure to obtain informed consent is to prove the invalidity of the form and
       that the risks had not otherwise been disclosed to him.”); see also Crundwell v. Becker, 981 S.W.2d 880 (Tex.App.—Houston [1
       st
          Dist.] 1998, pet. denied) (holding that the trial court’s directed verdict on an informed consent claim was not error when the
       patient who signed the consent form offered no evidence of incapacity).
45     TEX.REV.CIV. STAT. ANN. art. 4590i, § 12.01(a) (Vernon Supp.1999).

46     889 S.W.2d 239, 242 (Tex.1994).

47     Id.

48     Id. at 242–243.

49     907 S.W.2d 448, 449–450 (Tex.1995) (per curiam).

50     Id. at 450.

51     907 S.W.2d 446, 447–448 (Tex.1995) (per curiam).


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Earle v. Ratliff, 998 S.W.2d 882 (1999)
42 Tex. Sup. Ct. J. 919

52     985 S.W.2d 38, 40–41 (Tex.1998) (per curiam).




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
Gray v. CHCA Bayshore L.P., 189 S.W.3d 855 (2006)




                                                              CHCA Bayshore L.P. d/b/a Bayshore Medical Center
                  189 S.W.3d 855                              (Bayshore) and Ira H. Rapp, M.D. The trial court
              Court of Appeals of Texas,                      dismissed Gray’s suit with prejudice after concluding that
                Houston (1st Dist.).                          the expert report she filed failed to satisfy the
                                                              requirements set forth in section 74.351 of the Texas Civil
            Sylvia GRAY, Appellant,                           Practice and Remedies Code. See TEX. CIV. PRAC. &
                       v.                                     REM.CODE ANN. § 74.351 (Vernon Supp.2005). In her
  CHCA BAYSHORE L.P. d/b/a Bayshore Medical                   sole issue on appeal, Gray argues that the trial court erred
    Center and Ira H. Rapp, M.D., Appellees.                  in finding that her expert report did not comply with the
                                                              statute.
       No. 01–04–00918–CV. | Jan. 26, 2006.
                                                              We affirm.

Synopsis
Background: Patient brought medical malpractice action
against hospital and doctor, seeking to recover damages
resulting from the injury to her knee during surgical                             BACKGROUND
treatment of chronic sinusitis and nasal septal deformity.
The 281st District Court, Harris County, David Jorge          In 2001, Gray was admitted to Bayshore for surgical
Bernal, J., dismissed patient’s suit, and patient appealed.   treatment of chronic sinusitis and nasal septal deformity.
                                                              For the surgery, Gray was administered a general
                                                              anesthetic by Dr. Rapp. Upon regaining consciousness
                                                              after the operation, Gray became aware of severe pain in
[Holding:] The Court of Appeals, Evelyn V. Keyes, J.,         her left knee. Subsequent examination by an orthopedist
held that expert report did not satisfy statutory             and a neurologist revealed a dislocation of the knee’s
requirements of medical liability statute, and thus,          patella. Gray, age 39, had no prior history of knee
dismissal of patient’s medical malpractice action was         injuries.
warranted.
                                                              In November 2003, Gray brought suit against Bayshore,
                                                              Dr. Rapp, and Phillip A. Matorin, M.D., seeking to
Affirmed.                                                     recover damages resulting from the injury to her knee.1
                                                              Gray’s suit alleged that the injury was caused by the
                                                              flexing of her left leg during surgery and that the injury
Attorneys and Law Firms                                       could have *857 been prevented had Dr. Rapp and the
                                                              Bayshore’s nursing staff properly monitored Gray’s
*856 Michael D. Farmer, Plummer & Farmer, Houston,
                                                              extremities during the operation. In March 2004, Gray
TX, for Appellant.                                            filed the report of her medical expert, Dr. Richard F.
                                                              Toussaint, M.D., as required by section 74.351 of the
Larry D. Thompson and Robert G. Smith, Lorance &
                                                              Texas Civil Practice and Remedies Code. See id. Both
Thompson, P.C., Griffin Vincent and Solace Kirkland
                                                              Bayshore and Dr. Rapp moved to dismiss Gray’s suit,
Southwick, Andrews Kurth LLP, Houston, TX, for
                                                              arguing that Dr. Toussaint’s expert report failed to
Appellees.
                                                              comply with the requirements of section 74.351. See id.
Panel consists of Justices NUCHIA, KEYES, and                 The trial court then granted Gray a 30–day extension to
HANKS.                                                        cure any deficiencies in her expert report. See id. §
                                                              74.351(c).

                                                              Gray filed her amended expert report in June 2004. The
                                                              report, again by Dr. Toussaint, reads in pertinent part:

                       OPINION                                  Ms. Gray was administered a general anesthetic for the
                                                                sinus surgery by Ira H. Rapp, M.D. During the surgery,
EVELYN V. KEYES, Justice.                                       Ms. Gray’s knees and arms had become flexed, and
                                                                when she awoke from the anesthetic, she noted severe
This appeal arises from a medical malpractice claim             pain upon attempting to move from a bedpan. She was
brought by appellant, Sylvia Gray, against appellees,
               © 2015 Thomson Reuters. No claim to original U.S. Government Works.                                  1
Gray v. CHCA Bayshore L.P., 189 S.W.3d 855 (2006)



  noted to have a negative history of knee injury. Ms.           negligence is the failure to use ordinary care, *858
  Gray was seen by John H. Ownby, M.D., neurologist,             failure to do what a physician, or operating room nurse,
  and Ronald B. Heisey, M.D., orthopedist, who upon              of ordinary prudence would have done under the same
  subsequent workup of Ms. Gray’s knee pain                      or similar circumstances. I also understand that
  determined that her left patella had become dislocated.        proximate cause is a cause which in a natural and
                                                                 continuous sequence produces an event, and without
  Based on the forgoing and my education, training,              which, such an event would not have occurred. I also
  experience, and reasonable medical probability, it is my       understand that in order to be a proximate cause, an act
  opinion that Dr. Ira H. Rapp, M.D., Dr. Phillip A.             or omission complained of must be such that a person
  Matorin, M.D., and the nursing staff of Bayshore               using ordinary care would have foreseen that the event,
  Medical Center breached the standard of care for               or some similar event, might reasonably result
  failing to properly monitor, treat, and prevent the            therefrom.
  resultant left knee injury and dislocation of the left
  patella.                                                       Based on these definitions, and on a reasonable degree
                                                                 of medical probability, Dr. Ira H. Rapp, M.D., Dr.
  Based on the Texas definitions, Dr. Ira H. Rapp, M.D.,         Phillip A. Matorin, M.D., and the Bayshore Medical
  Dr. Phillip A. Matorin, M.D., and the Bayshore                 Center perioperative nursing staff failed to meet the
  Medical Center perioperative nursing staff were                standard of care when they neglected to monitor and
  negligent by failing to properly monitor, treat, and           detect a malpositioned left knee resulting in a
  prevent Ms. Gray’s left patella dislocation. The               dislocated left patella on December 5, 2001. The failure
  negligence was in the following:                               to monitor and detect the malpositioned left knee
                                                                 resulted in a dislocated left patella, severe pain and
  1. Dr. Ira H. Rapp, M.D. failed to monitor the                 suffering, and subsequent medical treatment.
  positioning of Ms. Gray’s left knee to prevent the
  subsequent dislocation of the patella while under a          After receiving Gray’s amended expert report, Bayshore
  general anesthetic. The standard of care in this             and Dr. Rapp again moved to dismiss the suit, arguing
  circumstance would be for a physician to monitor the         that the report still did not comply with section 74.351.
  positioning of the patient’s extremities to prevent injury   After a hearing, appellees’ supplemental motions to
  during surgery and post operatively.                         dismiss were granted, and Gray timely appealed.
  2. The Bayshore Medical Center perioperative nursing
  staff failed to monitor the positioning of Ms. Gray’s left
  knee to prevent the subsequent dislocation of the
  patella while in the operating room. The standard of                               DISCUSSION
  care in this circumstance would be for the perioperative
  nursing staff to monitor the positioning of the patient’s    In her sole issue on appeal, Gray contends that the trial
  extremities to prevent injury during surgery and post        court erred in its determination that Dr. Toussaint’s report
  operatively.                                                 did not comply with section 74.351 of the Civil Practice
                                                               and Remedies Code. Specifically, she argues that Dr.
  In the above instance, had Dr. Ira H. Rapp, M.D., Dr.        Toussaint’s report constituted an objective good faith
  Phillip A. Matorin, M.D., and the Bayshore Medical           effort to comply with the requirements of section 74.351,
  Center perioperative nursing staff monitored and             and thus contends that the trial court acted improperly in
  detected the flexing of Ms. Gray’s arms and legs during      dismissing her suit. See id. § 74.351(l ) (stating that a
  general anesthesia in a timely fashion, then in              court shall grant a challenge to an expert report “only if it
  reasonable medical probability, the pain and suffering       appears to the court, after hearing, that the report does not
  experienced by Ms. Gray from the dislocated left             represent an objective good faith effort” at compliance).
  patella would not have occurred along with the
  resultant necessary treatments. The failure to monitor,
  detect, diagnose, and timely treat a malpositioned left
  knee during a general anesthetic was negligence and          Standard of Review
                                                               [1] [2] [3] [4]
  proximately caused the dislocated left patella and                           We review all section 74.351 rulings under an
  subsequent pain and suffering experienced by Ms. Gray        abuse of discretion standard. Am. Transitional Care Ctrs.
  on December 5, 2001.                                         v. Palacios, 46 S.W.3d 873, 877 (Tex.2001). A trial court
                                                               abuses its discretion if it acts in an arbitrary or
  This opinion is based on the available medical records       unreasonable manner without reference to guiding rules
  that you have provided for my review. I understand that      or principles. See Garcia v. Martinez, 988 S.W.2d 219,
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Gray v. CHCA Bayshore L.P., 189 S.W.3d 855 (2006)



222 (Tex.1999). When reviewing matters committed to            Dr. Toussaint’s Report
the trial court’s discretion, we may not substitute our own    Dr. Toussaint’s amended report essentially states that, as
judgment for that of the trial court. Walker v. Packer, 827    to both Bayshore and Dr. Rapp: (1) the applicable
S.W.2d 833, 839 (Tex.1992). A trial court does not abuse       standard of care required monitoring the positioning of
its discretion merely because it decides a discretionary       Gray’s extremities; (2) appellees failed to monitor the
matter differently than an appellate court would in a          positioning of Gray’s left knee; and (3) had appellees
similar circumstance. See Downer v. Aquamarine                 monitored the knee’s position, Gray, within reasonable
Operators, Inc., 701 S.W.2d 238, 241–42 (Tex.1985).            medical probability, would not have suffered a dislocated
                                                               patella. Although the report, at first glance, thus appears
                                                               to articulate the three statutorily required elements of an
Section 74.351 of the Texas Civil Practice and Remedies        expert report, we are compelled, under an abuse of
Code                                                           discretion standard, to conclude that the trial court did not
                                                               act unreasonably in granting appellees’ motions to
Pursuant to section 74.351, medical malpractice plaintiffs     dismiss.
must provide each defendant physician and health care
provider with an expert report or voluntarily nonsuit the      [9] [10]
                                                                      The supreme court held in Palacios that medical
action. See TEX. CIV. PRAC. & REM.CODE ANN. §                  malpractice plaintiffs must provide an expert report
74.351. If a claimant timely furnishes an expert report, a     detailing standard of care, breach, and causation as to
defendant may file a motion challenging the report’s           each defendant. Id. Here, the report states, without
adequacy. See id. at § 74.351(a). The trial court shall        explanation, that a single standard of care applied to both
grant the motion only if it appears, after hearing, that the   Bayshore and Dr. Rapp. While it is possible that an
report does not represent a good faith effort to comply        identical standard of care regarding limb monitoring
with the statutory definition of an expert report. See id. §   during and after surgery attaches to an anesthesiologist
74.351(l ). The statute defines an expert report as a          (Dr. Rapp) and a perioperative nursing staff (Bayshore),
written report by an expert that provides, as to each          such generic statements, without more, can reasonably be
defendant, a fair summary of the *859 expert’s opinions        deemed conclusory. Conclusory statements regarding
as of the date of the report regarding: (1) applicable         standard of care, breach, or causation, do not constitute a
standards of care; (2) the manner in which the care            good faith effort to comply with section 74.351 in that
provided failed to meet the standards; and (3) the causal      they fail to adequately inform each defendant of the
relationship between that failure and the injury, harm, or     specific conduct called into question by the plaintiff’s
damages claimed. See id. § 74.351(r)(6); Palacios, 46          claims. See id.
S.W.3d at 878–79.
                                                               [11]
                                                                   Similar weaknesses undermine Dr. Toussaint’s report
[5] [6] [7] [8]
             Although the report need not marshal all the      in regard to how appellees breached the applicable
plaintiff’s proof, it must include the expert’s opinions on    standard of care. Whether a defendant breached the
the three statutory elements—standard of care, breach,         standard of care due a patient cannot be determined
and causation. See Palacios, 46 S.W.3d at 878–79. In           without “specific information about what the defendant
detailing these elements, the report must provide enough       should have done differently.” See id. at 880. Here, Dr.
information to fulfill two purposes if it is to constitute a   Toussaint’s report contains only a general statement that
good faith effort. First, the report must inform the           appellees failed to monitor Gray’s left knee properly. The
defendant of the specific conduct the plaintiff has called     report provides no specific information concerning what
into question. Id. at 879. Second, the report must provide     actions appellees should have taken in the event they
a basis for the trial court to conclude that the claims have   observed Gray’s knee flexing. Indeed, a literal reading of
merit. Id. A report that merely states the expert’s            the report’s most direct statements concerning breach
conclusions as to the standard of care, breach, and            leads to the conclusion that simply monitoring Gray’s
causation does not fulfill these two purposes. Id. The         extremities, *860 and taking no corrective action, would
expert must explain the basis for his statements and must      have prevented her injury. In view of such general and
link his conclusions to the facts. Bowie Mem’l Hosp. v.        conclusory statements concerning breach, we cannot
Wright, 79 S.W.3d 48, 52 (Tex.2002). Furthermore, in           conclude that the trial court abused its discretion in
assessing the report’s sufficiency, the trial court may not    dismissing Gray’s suit.2 See id. at 879.
draw any inferences, and must instead rely exclusively on
the information contained within the report’s four corners.    Conclusory statements also plague the report’s efforts to
See Palacios, 46 S.W.3d at 879.                                satisfy the statutory element of causation. Specifically,
                                                               Dr. Toussaint’s report does not state with any specificity
                                                               how appellees departure from the stated standard of care

                  © 2015 Thomson Reuters. No claim to original U.S. Government Works.                                 3
Gray v. CHCA Bayshore L.P., 189 S.W.3d 855 (2006)



caused Gray’s knee injury. Instead, the report provides                    person in that position, causing damage that would not
only the conclusory statement that the failure to monitor                  have happened had ordinary professional care been used.
caused Gray’s injury. By not fleshing out how appellees’                   Considering that the trial court is limited to the four
failure to monitor Gray’s extremities caused her injury,                   corners of the report in making its determination, one
the report does not convincingly tie the alleged departure                 could reasonably conclude that the conclusory language
from the standard of care to specific facts of the case.                   in the report, together with the inconsistency as to
Such a failure has been found to be a sufficient reason for                appellant’s complaint, convinced the trial court that the
concluding that an expert report is statutorily inadequate.                report failed to satisfactorily inform each appellee of the
See Bowie Mem’l Hosp., 79 S.W.3d at 53.                                    specific conduct being challenged. Palacios, 46 S.W.3d at
                                                                           878–79.
We further note that the report appears to be inconsistent
with respect to the relationship among the standard of                     In view of the conclusory, and at times inconsistent,
care, breach, and the cause of Gray’s injury. Specific                     statements within Dr. Toussaint’s expert report, we
language in the report indicates that the applicable                       cannot conclude that the trial court abused its discretion in
standard of care breached by the defendants was                            granting appellees’ motion for dismissal. We thus
“monitor[ing] the positioning of the patient’s                             overrule Gray’s sole issue on appeal.
extremities.” The report then appears to depart from this
limited standard of care and breach, stating, “The failure
to monitor, detect, diagnose, and timely treat a
malpositioned left knee during general anesthetic was
negligence, and proximately caused the dislocated left                                            CONCLUSION
patella.” (Emphasis added.) The report thus fails to put
the appellees on notice as to who had what responsibility                  We affirm the trial court’s order of dismissal.
and how that person or persons departed from the
standard of ordinary medical care of a patient under
anesthesia in failing to do some specific act required by a

Footnotes
1      Dr. Matorin was the admitting physician. He was non-suited in July 2004.

2      We note that in Strom v. Mem’l Hermann Hospt. Sys., this court upheld a trial court’s decision to dismiss a remarkably similar
       suit due to the filing of an inadequate expert report. 110 S.W.3d 216 (Tex.App.-Houston [1st Dist.] 2003, pet. denied). In Strom,
       the plaintiff similarly alleged that she sustained an injury to her left knee due to improper positioning of her extremities during
       surgery. Id. at 219. The expert report Strom provided contained considerably more detail than Dr. Toussaint’s report, referring
       specifically to the need to properly pad, strap, and place a patient’s extremities during surgery. Id. at 224.




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.                                                     4
Hebert v. Hopkins, 395 S.W.3d 884 (2013)




                                                                 William E. Zook, Jr., David W. Townend, Ted B. Lyon &
                   395 S.W.3d 884                                Associates, P.C., Mesquite, TX, for appellant.
               Court of Appeals of Texas,
                        Austin.                                  Before Chief Justice JONES, Justices PEMBERTON and
                                                                 ROSE.
   Richard HEBERT and Janet Hebert, Appellants
                      v.
  Timothy E. HOPKINS, M.D., and Shannon Clinic,
                  Appellees.

       No. 03–11–00419–CV. | March 1, 2013.                                              OPINION

                                                                 BOB PEMBERTON, Justice.
Synopsis
Background: Patient filed health care liability claim            Richard Hebert and his wife, Janet Hebert, appeal from a
(HCLC) against neurosurgeon and clinic in connection             district court judgment dismissing, for failure to serve the
with spinal-fracture surgery that purportedly rendered           expert report required by chapter 74 of the civil practice
patient a quadriparetic. The District Court, Tom Green           and remedies code, a health care liability claim they
County, 391st Judicial District, Thomas J. Gossett, J.,          asserted against Timothy Hopkins, M.D., and Shannon
dismissed claim after concluding patient had failed to           Clinic.1 The Heberts bring two issues, urging respectively
serve an expert report meeting statutory requirements.           that (1) the district court abused its discretion in
Patient appealed.                                                concluding that they failed to serve an expert report
                                                                 complying with chapter 74; and (2) chapter 74’s expert-
                                                                 report requirement violates various constitutional
                                                                 protections. We will overrule these contentions and affirm
Holdings: The Court of Appeals, Bob Pemberton, J., held
                                                                 the district court’s judgment.
that:
[1]
   trial court did not abuse its discretion in concluding that
patient’s expert report did not adequately describe
standard of care or alleged breach thereof;                                          BACKGROUND
[2]
   statutory requirements applicable to expert reports in        The Heberts filed the underlying suit alleging that Dr.
support of HCLCs were rationally related to legitimate           Hopkins, a neurosurgeon, committed professional
state purpose and therefore did not violate equal                negligence in performing spinal surgery on Richard
protection based on disparate treatment of health care           Hebert at Shannon in September 2008 after Richard broke
liability claimants and other litigants;                         his neck in a fall. Specifically, they pled that Richard had
                                                                 presented with a fracture of the cervical 6(C6) vertebra
[3]
   those requirements did not violate separation-of-powers       that was “very unstable” due to a preexisting condition
principles; and                                                  known as ankylosing spondylitis that had self-fused his
                                                                 spinal vertebrae on either side of the fracture; that the
[4]
  patient failed to demonstrate that those requirements, as      standard of care in such circumstances had required
applied to him, violated open-courts provision of Texas          Hopkins to perform “an anterior and posterior fusion
constitution.                                                    surgery” to ensure stability; that Hopkins had performed
                                                                 “an anterior fusion with plates and screws at C4–C7 but
                                                                 took no appropriate surgical measures to stabilize the
Affirmed.                                                        fusion posteriorly;” and that the anterior-only fusion had
                                                                 subsequently “failed as one or more of the screws had
J. Woodfin Jones, C.J., filed a dissenting opinion               pulled out causing the vertebral segments to move and
                                                                 compress the spinal cord at C4–C7,” rendering Richard a
                                                                 quadriparetic (i.e., paralyzed in all four limbs). The
Attorneys and Law Firms                                          Heberts asserted that Shannon was vicariously liable for
                                                                 Hopkins’s negligence by virtue of Hopkins’s status as a
*888 Dana D. Banks, Smith Rose Finley, P.C., San
                                                                 “partner or member” of the clinic.
Angelo, TX, for appellee.
                © 2015 Thomson Reuters. No claim to original U.S. Government Works.                                    1
Hebert v. Hopkins, 395 S.W.3d 884 (2013)



                                                                 provider failed to *890 meet the standards, and the causal
Within 120 days thereafter, in an attempt to comply with         relationship between that failure and the injury, harm, or
chapter 74’s expert-report requirement, the Heberts              damages claimed.”8 “A court shall grant a motion
served a report from P. Merrill White, M.D., along with          challenging the adequacy of an expert report only if it
Dr. White’s curriculum vitae.2 Hopkins *889 and Shannon          appears to the court, after hearing, that the report does not
timely objected to the sufficiency of Dr. White’s report,        represent an objective good faith effort to comply” with
asserting that the report had failed to adequately set forth,    this definition of “expert report.”9 To constitute a “good
and was “conclusory” with respect to the underlying              faith effort,” as the Texas Supreme Court has explained,
factual bases of, opinions regarding the applicable              the report must include the expert’s opinion on “each of
standard of care for Hebert in light of his underlying           the three main elements: standard of care, breach, and
medical conditions, the manner in which Hopkins’s care           causation,” and must provide enough information to fulfill
had failed to meet that standard, or a causal linkage to the     two purposes with respect to each element: (1) it must
fusion failure and Richard’s injuries.3 By now, the 120–         inform the defendant of the specific conduct the plaintiff
day period for serving an “expert report” had expired, so        has called into question; and (2) it must provide a basis
appellees also moved to dismiss the Heberts’ suit with           for the trial court to conclude that the claims have merit.
prejudice and sought a mandatory award of attorney’s             See Jelinek v. Casas, 328 S.W.3d 526, 538–40 & n. 9
fees.4 Both sides submitted briefing on the merits of            (Tex.2010); Bowie Mem’l Hosp. v. Wright, 79 S.W.3d 48,
appellees’ objections. Following a hearing at which the          52 (Tex.2002) (per curiam); American Transitional Care
parties presented argument, the district court sustained         Ctrs. of Tex., Inc. v. Palacios, 46 S.W.3d 873, 878–79
appellees’ objections but granted the Heberts a thirty-day       (Tex.2001). Although these requirements do not require a
extension to cure any deficiencies.5                             plaintiff to marshal all of his or her proof or to present
                                                                 expert testimony in a form that would be admissible at
Within the extension period, the Heberts served a                trial, see Jelinek, 328 S.W.3d at 539–40 & n. 9, they do
supplemental report from White. Contending that White’s          necessitate that “the expert must explain the basis for his
supplemental report had failed to cure the deficiencies in       statements to link his conclusions to the facts” and not
his original report, appellees again moved to dismiss the        merely state conclusions. Id. (quoting Wright, 79 S.W.3d
Heberts’ suit with prejudice.6 The Heberts filed a response      at 52 (quoting Earle v. Ratliff, 998 S.W.2d 882, 890
joining issue regarding the sufficiency of the two reports       (Tex.1999))); see also id. at 539–40 (observing, with
and also asserting that chapter 74’s expert-report               respect to the causation element, “the expert must ...
requirement violates various protections of the U.S. or          explain, to a reasonable degree, how and why the breach
Texas constitutions. Following a hearing, the district court     caused the injury based on the facts presented”). This is
granted appellees’ motion to dismiss. Subsequently, after        so, in the supreme court’s view, because “ ‘[a] report that
hearing evidence, the district court awarded appellees           merely states the expert’s conclusions about the standard
attorney’s fees as required by chapter 74,7 and this order       or care, breach, and causation’ does not fulfill the two
also served to make the court’s prior dismissal order final.     purposes of a good-faith effort.” Id. at 539 (quoting
The Heberts then timely perfected this appeal.                   Palacios, 46 S.W.3d at 879); see also id. at 540 (expert
                                                                 “must include sufficient detail” regarding how breach
                                                                 caused plaintiff’s injuries “to allow the trial court to
                                                                 determine if the claim has merit”).

                        ANALYSIS                                 [3]
                                                                      Importantly, the only information relevant to
                                                                 determining whether an expert report complies with these
Sufficiency of expert reports                                    requirements is that contained within “the four corners” of
In their first issue, the Heberts urge that the district court   the report itself. Palacios, 46 S.W.3d at 878.
abused its discretion in holding that Dr. White’s report,        Consequently, neither the trial court nor this Court may
either in its original form or as supplemented, did not          infer additional opinions or underlying facts to fill in gaps
represent an objective good faith effort to comply with the      that the report itself leaves open. See Wright, 79 S.W.3d
statutory definition of an expert report.                        at 53; see also Austin Heart, P.A. v. Webb, 228 S.W.3d
[1] [2]                                                          276, 279 (Tex.App.-Austin 2007, no pet.) (this
      The standards governing the contents of the expert         requirement “precludes a court from filling gaps in a
report or reports required by chapter 74 are well                report by drawing inferences or guessing as to what the
established. Chapter 74 defines an “expert report” as “a         expert likely meant or intended” (citing Wright, 79
fair summary of the expert’s opinion as of the date of the       S.W.3d at 53)).
report regarding applicable standards of care, the manner
in which the care rendered by the physician or health care

                © 2015 Thomson Reuters. No claim to original U.S. Government Works.                                     2
Hebert v. Hopkins, 395 S.W.3d 884 (2013)


[4]
   Our standard of review is likewise limited. Chapter 74       S.W.3d 91, 93 (Tex.2006); Walker v. Gutierrez, 111
imposes a mandatory duty on a trial court to grant a            S.W.3d 56, 63 (Tex.2003)).
motion challenging the adequacy of an expert report “if it
                                                                [5]
appears to the court” that the report does not meet the            Applying this deferential abuse-of-discretion standard
above-described requirements. See Tex. Civ. Prac. &             of review, we cannot conclude that the district court acted
Rem.Code Ann. § 74.351(l ) (“A court shall grant a              arbitrarily, unreasonably, and without guiding rules and
motion challenging the adequacy of an expert report only        principles in determining that Dr. White’s reports did not
if it appears to the court ... that the report does not         supply it sufficient information regarding his opinions
represent an objective good faith effort to comply with the     concerning standard of care and breach, as they relate to
definition of an expert report in Subsection (r)(6).”)          the underlying facts, to enable it to determine whether the
(emphasis added). *891 Conversely, the trial court is           Heberts’ claims had merit.
prohibited from granting such a motion unless such
noncompliance “appears to the court.” Id. (“A court shall       In his initial report, White summarized medical records
grant a motion challenging the adequacy of an expert            reflecting that Richard Hebert sought treatment at
report only if it appears to the court ....”) (emphasis         Shannon in the early morning hours of September 7,
added). But the linchpin determination that controls which      2008, following a fall in which he injured his neck, and
of these two alternative sets of mandatory duties               that Richard was placed under Hopkins’s care. According
applies—whether “it appears to the court” that the report       to White, CT scans and other evaluations revealed that
does not comply with the requirements—has been                  Richard had suffered “a trace traumatic subarachnoid
committed to the trial court’s sound discretion by the          hemorrhage” (i.e., bleeding on the brain) and a “fracture
Legislature. See Palacios, 46 S.W.3d at 877–78.                 through the superior vertebral body of C6 with a fracture
Consequently, we review the trial court’s determination         extending through the posterior elements of C5–6.” The
for abuse of that discretion. See Wright, 79 S.W.3d at 52       injury “was initially managed in a cervical collar which
(citing Palacios, 46 S.W.3d at 878).                            was changed to a Philadelphia collar and spinal
                                                                precautions were ordered” within about five hours. That
A trial court abuses its discretion when it acts in an          same evening, White indicated, Hopkins performed a
arbitrary or unreasonable manner without reference to any       surgical procedure in which the neurosurgeon *892 fused
guiding rules or principles. See id. (citing Downer v.          Richard’s C5–C6 vertebrae and implanted “C4 through
Aquamarine Operators, Inc., 701 S.W.2d 238, 241–42              C7 anterior instrumentation”—a plate over or along the
(Tex.1985)). “When reviewing matters committed to the           front of Richard’s spine, attached by screws to his bone—
trial court’s discretion, a court of appeals may not            to provide stability and support while the fracture healed.
substitute its own judgment for the trial court’s               On the following day, White continued, the medical
judgment.” Id. (citing Flores v. Fourth Court of Appeals,       records indicated that Richard had showed signs of
777 S.W.2d 38, 41 (Tex.1989)). We do not, in other              recovery progress and that “[c]ervical collar is
words, examine the contents of Dr. White’s reports and          discontinued per Dr. Hopkins’[s] order.” But four days
make our own de novo determination as to whether he has         later, during the afternoon of September 12, Richard had a
provided sufficient information, with respect to his            decline in neurological function and subsequent CT scans
opinions regarding standard of care, breach, and                “confirm[ed] failure of implant fixation at C6 and C7”
causation, to (1) inform appellees of the specific conduct      and injury to the spinal cord. Although another
the Heberts have called into question; and (2) provide a        neurosurgeon, Dr. Duarte, operated on Richard thereafter
basis for the district court to conclude that the claims have   to remove the failed anterior instrumentation and
merit. See Jelinek, 328 S.W.3d at 538–40 & n. 9; Wright,        implement a different type of fixation method, Richard
79 S.W.3d at 52; Palacios, 46 S.W.3d at 878–79. Instead,        ended up with “increased neurological deficit
we determine only whether the district court acted              (quadriparesis).”
arbitrarily, unreasonably, and without reference to guiding
rules and principles in determining that the reports failed     The medical records, as summarized by White,
to provide that information. See Wright, 79 S.W.3d at 52;       additionally reflected that Richard had a history of
see also Jelinek, 328 S.W.3d at 542 (Jefferson, C.J.,           “coronary artery disease treated with cardiac stints,
dissenting) (“The dividing line between a sufficient and        Plavix, and aspirin; cerebrovascular accident [ (i.e., a
an inadequate report is impossible to draw precisely. We        stroke) ] on two occasions with residual left hand
have said, therefore, that the determination must be made       paraesthesias [ (tingling or prickling sensations) ] treated
in the first instance by the trial court, and review of that    with Plavix and aspirin; and hypertension,” as well as
decision asks not how an appellate court would have             “ankylosing spondylitis,” a degenerative condition of the
resolved that issue, but instead whether the trial court        spine that causes both brittleness of bones and self-fusion
abused its discretion.”) (citing Jernigan v. Langley, 195       of vertebrae.
                © 2015 Thomson Reuters. No claim to original U.S. Government Works.                                   3
Hebert v. Hopkins, 395 S.W.3d 884 (2013)



                                                                However, in the next sentence, within the same
Although he did not indicate whether or how Richard’s           paragraph, White acknowledged that “clinical situations”
other medical conditions impacted the standard of care,         could arise in which anterior-only instrumentation,
White emphasized his opinion that a patient with                coupled with “supplemental protection” other than
ankylosing spondylitis warranted special precautions            posterior implementation, would be consistent with the
when performing surgery to address spinal fracture:             standard of care:

  In the surgical treatment of cervical spine fractures                     If the clinical situation in which the
  complicating ankylosing spondylitis, the prudent spine                    surgeon finds himself and the
  surgeon must recognize the unstable nature of these                       patient allows only inadequate
  fractures. The instability is contributed to by the long                  internal fixation, the surgeon is
  level arms cranial and caudal to the fracture site                        obligated to protect the patient
  resulting from the multilevel autofusion and poor bone                    supplementing the internal fixation
  quality associated with ankylosing spondylitis. These                     with external bracing and/or
  two factors result in increased susceptibility to spine                   activity        limitations.      The
  fractures as a result of relatively minor trauma, greater                 supplemental protection should
  instability, and a greater likelihood of neurologic deficit               continue until the patient can be
  resulting from a cervical fracture than found in patients                 returned to the operating room for
  with cervical spine fractures and otherwise normal                        additional internal fixation or the
  spinal anatomy.                                                           fracture becomes stable through
                                                                            healing.
  The prudent spine surgeon should design a surgical
  plan of care allowing decompression of the spinal cord,
  reduction of the traumatic deformity, and immediate           Following these statements regarding standard of care,
  stabilization of the spinal column to protect the spinal      White turned to whether or how Hopkins breached an
  cord and to facilitate mobilization and nursing care to       applicable standard. Consistent with the first portion of
  the patient in the short term and healing of the spinal       his explanation of the standard of care, White began by
  fusion in the longer term.                                    asserting that Hopkins breached the standard by utilizing
                                                                “anterior only plate/screw fixation”:
As for the standard of care regarding the specific means
by which these objectives should be achieved, White                         Dr. Timothy Hopkins’[s] choice of
initially  suggested     that    anterior-only    internal                  anterior only plate/screw fixation
instrumentation was inconsistent with the standard of care                  fails to meet the applicable
and that some form of posterior internal instrumentation,                   standard of care. Constrained
either additionally or as an alternative to anterior                        anterior cervical plates function as
instrumentation, would instead be preferable:                               tension band devices and require
                                                                            relative stability of the posterior
  Over the recent years, the debate of the spinal                           elements. In extension these
  community has been in which circumstances fusion                          devices resist distraction of the
  with posterior only fixation or fusion with anterior and                  anterior column. These devices do
  posterior    fixation     is    appropriate.    Anterior                  not effectively resist flexion forces
  instrumentation only is predictably inadequate in a                       and require stable posterior
  fracture pattern with gross anterior and posterior                        elements to limit deformity
  column instability such as Mr. Hebert’s. Adequate                         resulting from flexion forces. In the
  treatment of Mr. Herbert’s [sic] fracture requires                        absence of adequate posterior
  anterior and posterior instrumentation in order to meet                   stability,   anterior     plate/screw
  the standard of care.                                                     constructs typically fail in flexion
                                                                            by plate breakage or, as in this
  In Mr. Herbert’s [sic] situation, the standard of care                    case, by screw pullout. Mr.
  requires fixation stable *893 enough to allow                             Herbert’s [sic] fracture resulted in
  mobilization of the patient without loss of fixation                      significant instability of both the
  resulting in increased neurological deficits. This goal is                anterior and posterior elements at
  more likely to be achieved by multilevel posterior                        the C5–6 level. Anterior only
  internal fixation in addition to at least single level                    plate/screw fixation, in this setting,
  anterior internal fixation with fusion at appropriate                     is predictably doomed to failure.
  levels.
               © 2015 Thomson Reuters. No claim to original U.S. Government Works.                                   4
Hebert v. Hopkins, 395 S.W.3d 884 (2013)



But in the next sentence, White seemed to allude to his      Among their objections to the sufficiency of White’s
previously expressed view that a surgeon could act within    initial report, appellees urged that the report did not
the standard of care by “supplementing” otherwise            represent an objective good faith attempt to comply with
“inadequate internal fixation” with some form of             chapter 74’s requirements—i.e., that it discussed the
“external bracing and/or activity limitations” as an         standard of care, breach, and causation with sufficient
alternative to posterior surgical fixation:                  specificity to (1) inform them of the conduct called into
                                                             question and (2) provide a basis for the district court to
            The prudent spine surgeon must                   determine that the claims have merit—because it was
            recognize the limitations of the                 internally inconsistent as to the standard of care that
            various internal fixation constructs             applied and did not address whether or not Hopkins
            available and if necessary must                  complied with the standard of care through the use of the
            compensate for the predictable                   “external bracing and/or activity limitation” White had
            weaknesses by adequate external                  contemplated. And these asserted deficiencies, appellees
            bracing and/or activity limitation.              further suggested, in turn undermined any factual bases
                                                             underlying White’s assertions that the standard of care
Then White ended his discussion of breach with the           either required Hopkins’s use of anterior-only internal
following conclusion:                                        fixation or was breached by his choice not to use posterior
                                                             interior fixation.
            The standard of care for the
            surgical treatment of this fracture              In arguing that the district court abused its discretion in
            requires a multilevel posterior                  sustaining appellees’ objections, the Heberts emphasize
            fixation and a fusion in conjunction             the portions of White’s initial report focusing on the
            with anterior fixation and fusion                relative merits of anterior versus posterior internal
            with or without supplemental                     fixation. But the district court was within its discretion
            external fixation as was ultimately              also to consider White’s recognition of an apparent
            performed by Dr. Duarte on                       exception, qualification, or limitation to his broader
            September 12, 2008.                              criticisms of anterior fixation: “the clinical situation in
                                                             which the surgeon finds himself and the patient” may
White then offered the following opinions as to causation,   “allow[ ] only inadequate internal fixation,” in which case
now referencing perceived inadequacies in internal and       the standard of care could be met by “supplementing the
external fixation without elaborating as to the nature or    internal fixation with external bracing and/or activity
identity of any of the latter category:                      limitations.” Along with White’s recognition of this
                                                             aspect of the standard of care, the court also could have
            The failure to choose the internal               reasonably considered that White never elaborated on the
            and external fixation construct                  nature or type of “clinical situation” that would “allow [ ]
            capable of providing stability to                only inadequate internal fixation” or whether such a
            allow mobilization of the patient,               situation did or did not exist in regard to Richard, a
            prevent spinal displacement, and                 patient who, as White acknowledged in his report, had a
            protect the spinal cord is the                   history of coronary artery disease, two strokes, and
            proximate cause of Mr. Herbert’s                 hypertension, not to mention bleeding on the brain from
            [sic] *894 increased neurologic                  his fall. The court likewise could reasonably have viewed
            deficit     (quadriparesis).    This             White’s references to “external bracing” or “activity
            occurred as a result of the                      limitations” as an alternative to further internal fixation as
            constrained anterior plate/screw                 begging the question as to whether the unspecified “spinal
            construct’s predictable inability to             precautions” Hopkins had ordered, the cervical collar
            neutralize flexion forces resulting              Richard wore following surgery, or other “external
            in screw pullout at C6 and C7                    bracing” or “activity limitations” Hopkins imposed had or
            levels followed by displacement of               had not satisfied the standard of care.
            the spinal column through the C5–6
            fracture/allograft     site     with             In short, we cannot conclude that the district court acted
            subsequent spinal cord injury and                arbitrarily, unreasonably, or without regard to guiding
            deterioration      of     neurologic             principles in determining that White’s initial report fell
            function.                                        short of describing the applicable standard or care or
                                                             breach thereof, as applicable to the underlying facts, with
                                                             sufficient specificity to provide the court a basis to
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Hebert v. Hopkins, 395 S.W.3d 884 (2013)



determine that White’s claims have merit. See Jelinek,          day extension; (2) the requirements focusing judicial
328 S.W.3d at 538–40 & n. 9; Wright, 79 S.W.3d at 52;           analysis of a report’s sufficiency solely on the “four
Palacios, 46 S.W.3d at 878–79. And in the face of such          corners” of the report and prohibiting courts from
deficiencies regarding standard of care and breach, the         considering extrinsic evidence of a claim’s merits; and (3)
district court would have acted within its discretion in        the mandatory requirement that courts dismiss health care
determining that any assertions by White to the effect that     liability claims with prejudice for failing to serve an
anterior-only internal fixation breaches the standard of        adequate expert report and also award attorney’s fees. The
care or that only posterior internal fixation can suffice       Heberts contend that these mechanisms unfairly “single
lack an underlying factual basis— *895 i.e., are                out” health care liability claimants for unconstitutional
“conclusory”—and fail to satisfy chapter 74. See Wright,        “disparate treatment,” deprive courts of judicial discretion
79 S.W.3d at 52 (“the expert must explain the basis of his      in violation of the separation-of-powers protections of the
statements to link his conclusions to the facts” (quoting       Texas Constitution, and deprive claimants of access to the
Earle, 998 S.W.2d at 890)).                                     courts in violation of due-process or open-courts
                                                                protections.10
The Heberts urge us to indulge a “fair reading” that
White’s opinions regarding unspecified “clinical                *896 When reviewing the constitutionality of a statute,
situations” refers to a surgeon who is attempting to            we begin with a presumption that it is constitutional.
perform a combined anterior and posterior procedure but         Herrera v. Seton Nw. Hosp., 212 S.W.3d 452, 460–61
gets interrupted by “surgical complications such as delays      (Tex.App.-Austin 2006, no pet.) (citing Walker, 111
or blood loss,” and that no such complications arose here.      S.W.3d at 66); see also Tex. Gov’t Code Ann. §
The dissent similarly relies on inferences or implications      311.021(1) (West 2005). The wisdom or expediency of
that such “extraordinary circumstances” were not present.       the law is the Legislature’s prerogative, not ours. Smith v.
But the problem with these arguments is that White never        Davis, 426 S.W.2d 827, 831 (Tex.1968). We presume that
actually says any of this in his initial report, and the        the Legislature has not acted unreasonably or arbitrarily.
established rule is that the report must stand or fall on the   Sax v. Votteler, 648 S.W.2d 661, 664 (Tex.1983) (quoting
contents within its “four corners.” Palacios, 46 S.W.3d at      Davis, 426 S.W.2d at 831). The party challenging a
878. This requirement, again, “precludes a court from           statute’s constitutionality has the burden of proving that
filling gaps in a report by drawing inferences or guessing      the statute fails to meet constitutional requirements.
as to what the expert likely meant or intended.” Austin         Walker, 111 S.W.3d at 66. A party must show that a
Heart, P.A., 228 S.W.3d at 279 (citing Wright, 79 S.W.3d        statute is unconstitutional either on its face or as applied
at 53).                                                         to that party. Texas Workers’ Comp. Comm’n v. Garcia,
                                                                893 S.W.2d 504, 518 n. 16 (Tex.1995); see also City of
Nor did the district court abuse its discretion in holding      Corpus Christi v. Public Util. Comm’n, 51 S.W.3d 231,
that such deficiencies were not cured by White’s                240–41 (Tex.2001) (per curiam) (Owen, J., concurring).
supplemental report. In his supplement, although White          To sustain a facial challenge, the party must show that the
reiterates and emphasizes at length his conclusions and         statute, by its terms, always operates unconstitutionally.
assertions regarding anterior versus posterior fixation         Garcia, 893 S.W.2d at 528 n. 16. To sustain an as-applied
generally, nowhere does he address the deficiencies             challenge, the party must show that the statute is
concerning the standard of care and breach that the             unconstitutional when applied to that particular person or
district court could have perceived in his initial report.      set of facts. Id.

We overrule the Heberts’ first issue.                           We note at the outset that the Heberts face an uphill battle
                                                                because every court that has considered similar challenges
                                                                to chapter 74’s expert-report requirement, including this
                                                                Court, has rejected them. See, e.g., Stockton v. Offenbach,
Constitutional claims                                           336 S.W.3d 610, 618 (Tex.2011) (denying open-courts
[6] [7]
        In their second issue, the Heberts bring forward        challenge); Hightower v. Baylor Univ. Med. Ctr., 348
constitutional challenges to chapter 74’s expert-report         S.W.3d 512, 521–22 (Tex.App.-Dallas 2011, pet. denied)
requirement. While not appearing to quarrel with the            (rejecting special-law, vagueness, due-course-of-law, and
general concept that the Legislature can validly impose         separation-of-powers challenges); Broxterman v. Carson,
some form of threshold report requirement for asserting         309 S.W.3d 154, 159 (Tex.App.-Dallas 2010, pet. denied)
health care liability claims or other types of civil claims,    (rejecting due-process challenge); Gulf Coast Med. Ctr.,
the Heberts complain about three basic features of chapter      LLC v. Temple, No. 13–09–00350–CV, 2010 WL 196972,
74’s expert-report requirement: (1) the fixed deadline of       at *6 (Tex.App.-Corpus Christi Jan.21, 2010, no pet.)
120 days to serve an expert report, subject to a single 30–     (mem. op.) (rejecting due-process and due-course-of-law

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Hebert v. Hopkins, 395 S.W.3d 884 (2013)



challenges); Bogar v. Esparza, 257 S.W.3d 354, 372–73            but was the result of an accident or mistake. Id. §
(Tex.App.-Austin 2008, no pet.) (same); Wilson–Everett           13.01(d), (g).
v. Christus St. Joseph, 242 S.W.3d 799, 802–04
(Tex.App.-Houston [14th Dist.] 2007, pet. denied)                The Heberts also assert that “4590i did not mandate what
(rejecting separation-of-powers challenge); Ledesma v.           had to be included in the contents of the report,” and that
Shashoua, No. 03–05–00454–CV, 2007 WL 2214650, at                “there was no requirements or authorization for the court
*9 (Tex.App.-Austin Aug. 3, 2007, pet. denied) (mem.             to summarily dismiss the case based on the deficiencies in
op.) (rejecting due-process and open-courts challenges);         the language of the report.” They also contend that parties
Thoyakulathu v. Brennan, 192 S.W.3d 849, 855–56                  opposing an article 4590i expert report had to “satisfy
(Tex.App.-Texarkana 2006, no pet.) (due process does not         summary judgment procedures to secure a dismissal with
require “exceptions [to the expert-report requirement] that      prejudice.” To the contrary, a court considering the
would encompass any conceivable complication in order            sufficiency of an expert report under article 4590i, as
to pass constitutional muster”); Herrera, 212 S.W.3d at          under chapter 74, was limited to the “four corners” of the
461–62 (rejecting equal-protection, due-process, due-            report. See Palacios, 46 S.W.3d at 878. Likewise, if a
course-of-law, and open-courts challenges). Texas courts         claimant failed to serve a report, or served a report that
also uniformly rejected constitutional challenges to an          the trial court concluded did not represent a good faith
expert-report requirement under chapter 74’s predecessor         effort to comply with the statutory definition of expert
statute, article 4590i. See, e.g., Strom v. Memorial             report, the trial court was required to dismiss the case
Hermann Hosp. Sys., 110 S.W.3d 216, 227 (Tex.App.-               with prejudice and award costs and attorney’s fees to the
Houston [1st Dist.] 2003, pet. denied) (rejecting due-           opposing party. See former art. 4590i, § 13.01(e), (l ),
process, equal-protection, and jury-trial challenges); Villa     (r)(6); see also Palacios, 46 S.W.3d at 877.
v. Hargrove, 110 S.W.3d 74, 81 (Tex.App.-San Antonio
2003, pet. denied) (rejecting due-process and equal-
protection challenges); Walker, 111 S.W.3d at 66
(rejecting due-process challenge); *897 Perry v. Stanley,        “Disparate treatment ”
                                                                 [8]
83 S.W.3d 819, 825 (Tex.App.-Texarkana 2002, no pet.)                The Heberts contend that chapter 74 irrationally singles
(rejecting open-courts challenge); Mocega v. Urquhart,           them out for disparate treatment in violation of their rights
79 S.W.3d 61, 64 (Tex.App.-Houston [14th Dist.] 2002,            to due process and equal protection. The due-course-of-
pet. denied) (same); Gill v. Russo, 39 S.W.3d 717, 718–19        law guarantee of the Texas Constitution provides: “No
(Tex.App.-Houston [1st Dist.] 2001, pet. denied) (same);         citizen of this State shall be deprived of liberty, property,
Knie v. Piskun, 23 S.W.3d 455, 467 (Tex.App.-Amarillo            privileges or immunities, or in any manner
2000, pet. denied) (rejecting equal-protection, due-             disenfranchised, except by due course of the law of the
process, open-courts and free-speech challenges); Schorp         land.” Tex. Const. art. I, § 19. Similarly, the federal due-
v. Baptist Mem’l Health Sys., 5 S.W.3d 727, 736–38               *898 process clause provides: “No state shall make or
(Tex.App.-San Antonio 1999, no pet.) (rejecting due-             enforce any law which shall abridge the privileges or
process, open-courts, and jury-trial challenges).11              immunities of the citizens of the United States; nor shall
                                                                 any State deprive any person of life, liberty, or property,
The Heberts acknowledge the constitutional validity of           without due process of law;....” U.S. Const. amend. XIV,
the expert-requirement in chapter 74’s predecessor               § 1. While the Texas Constitution is textually different in
statute, article 4590i, but attempt to distinguish it as “less   that it refers to “due course” rather than “due process,”
draconian.” See Act of May 5, 1995, 74th Leg., R.S., ch.         Texas courts regard these terms as without substantive
140, § 1, sec. 13.01, 1995 Tex. Gen. Laws 985, 985–88,           distinction unless and until a party demonstrates
repealed and recodified as amended by Act of June 2,             otherwise, and the Heberts suggest no reason to construe
2003, 78th Leg., R.S., ch. 204, § 10.01, sec. 74.351, 2003       them differently here. See University of Tex. Med. Sch. at
Tex. Gen. Laws 847, 875–77 (amended 2005) (current               Houston v. Than, 901 S.W.2d 926, 929 (Tex.1995) (citing
version at Tex. Civ. Prac. & Rem.Code Ann. § 74.351).            Mellinger v. City of Houston, 68 Tex. 37, 3 S.W. 249,
They emphasize differences in the deadlines article 4590i        252–53 (1887)).
imposed for serving expert reports and the extent of
                                                                 [9] [10] [11] [12] [13]
discretion vested in trial courts to extend deadlines.                             Under federal and state guarantees of due
Specifically, article 4590i allowed claimants to either          process, legislation that does not affect a fundamental
serve an expert report within 90 days of filing suit or file a   right or interest is valid if it bears a rational relationship to
cost bond. See former art. 4590i, § 13.01(a). An expert          a legitimate state interest. Rylander v. B & A Mktg. Co. ex
report was required within 180 days of suit, though the          rel. Atl. Richfield Co., 997 S.W.2d 326, 333–34
court could grant a 30–day extension if the failure to serve     (Tex.App.-Austin 1999, no pet.) (citing Williamson v. Lee
was not intentional or the result of conscious indifference,     Optical, 348 U.S. 483, 491, 75 S.Ct. 461, 99 L.Ed. 563

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Hebert v. Hopkins, 395 S.W.3d 884 (2013)



(1955); Garcia, 893 S.W.2d at 525). Similarly, the               Accordingly, the expert-report requirement applies
constitutional guarantee of equal protection requires only       equally to all physicians and health care providers and
that disparate treatment of different classifications be         rationally relates to the interests of the State “in ensuring
rationally related to a legitimate state purpose, unless the     that medical practitioners were not ‘being placed in the
classification impinges on the exercise of a fundamental         situation of defending frivolous claims at a high cost’ to
right or distinguishes between people on a “suspect”             the health care system.” Id. (quoting Schorp, 5 S.W.3d at
basis, such as race or national origin.12 The Heberts have       737). Recently, the Dallas Court of Appeals adopted the
not demonstrated that chapter 74 impinges on a                   Smalling analysis and applied it to chapter 74. See
fundamental or important right or a suspect class. By its        Hightower, 348 S.W.3d at 521.
terms, chapter 74 is facially neutral and applies to any
party asserting a health care liability claim. Consequently,     While Smalling and Hightower dealt with special-law
in addressing the Heberts’ due-process and equal-                challenges, we previously rejected an equal-protection
protection claims, we must determine whether chapter 74          challenge to chapter 74’s predecessor for similar reasons.
bears a rational relationship to a legitimate state interest     Fields v. Metroplex Hosp. Found., No. 03–04–00516–CV,
and whether the Legislature had a rational basis in              2006 WL 2089171, at *4 (Tex.App.-Austin July 28, 2006,
differentiating between health care liability claimants and      no pet.) (mem. op.) (“[T]he legislature determined that
other litigants. “In so doing, we must uphold the law if we      medical liability plaintiffs should be treated differently
can conceive of any rational basis for the Legislature’s         because of the negative effects of the numbers and cost of
action.” Owens Corning v. Carter, 997 S.W.2d 560, 581            their lawsuits had on the provision of health care.”). In
(Tex.1999).                                                      that case, the claimant failed to show article 4590i’s
                                                                 expert-report requirement was not rationally or
In enacting chapter 74, the Legislature made a number of         substantially related to the government’s interest in
findings about the state of the health care system in            reducing the aggregate costs of defending against
Texas. See Act of June 2, 2003, 78th Leg., R.S., ch. 204, §      frivolous costs and reducing the costs of insurance and
10.11, 2003 Tex. Gen. Laws 847, 884–85. Specifically, it         medical care to all. Id.; see also Bogar, 257 S.W.3d at
found the frequency of claims and the amounts paid out           373 (in addressing due-process challenge to chapter 74:
by insurers in judgments and settlements had risen               “We disagree that it is irrational, in light of the
inordinately since 1995, which created a public problem          legislature’s goal of curtailing frivolous health care
in the availability and affordability of adequate medical        liability claims, for it to require that appellees serve an
professional liability insurance. Id. § 10.11(a)(1), (3), (4).   expert report explaining why or how this outcome was
This “crisis” increased costs to physicians, hospitals,          actually caused by the conduct of [the defendant], as
patients, and the public. Id. § 10.11(a)(5), (7). As a result,   opposed to some other person or health care provider.”).
the Legislature concluded the “adoption of certain
modifications in the medical, insurance and legal                The Heberts challenge the Legislature’s rationale as “pre-
systems” would “have a positive effect on the rates              textual, not supported by empirical data and refuted by
charged by insurers for medical professional liability           surveys showing there aren’t excessive frivolous medical
insurance.” Id. § 10.11(a)(12). In enacting various              malpractice suits.” They reason that because the
measures, including chapter 74, the Legislature intended         Legislature had previously acted to curb frivolous medical
to reduce the frequency and severity of health care              malpractice claims by enacting article 4590i, its
liability claims, decrease costs of claims, and ensure *899      subsequent enactment of chapter 74 reflects intent to
that awards were rationally related to costs, but “do so in      “single out medical malpractice claimants for special and
a manner that will not unduly restrict a claimant’s rights       harsh treatment by making it so onerous to file and
any more than necessary to deal with the crisis.” Id. §          prosecute [a claim] that they or their counsel will not take
10.11(b)(1), (2), (3).                                           the case, or once it is filed, to make it so difficult to
                                                                 prosecute the case that they or their counsel will just give
In Smalling v. Gardner, the Fourteenth Court of Appeals          up.” The Heberts likewise complain that chapter 74 strips
recognized that the “legislature has broad authority to          them “of all the rights accorded to other litigants in the
create classifications for legislative purposes, so long as      Texas Rules of Civil Procedure,” but does not place
they have a reasonable basis and operate equally on all          similar restrictions on “major corporations like insurance
persons within the class.” 203 S.W.3d 354, 371                   companies and banks suing for breach of contract, or on
(Tex.App.-Houston [14th Dist.] 2005, pet. denied)                individual or corporate clients suing attorneys, *900
(addressing special-law challenge to constitutionality of        accountants, bankers and brokers.” According to the
article 4590i).13 The expert report is required only for         Heberts, no compelling state interest or rational basis
claims against healthcare providers for departures from          supports this “arbitrary” classification.
accepted standards of medical or health care or safety. Id.

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Hebert v. Hopkins, 395 S.W.3d 884 (2013)


[14] [15]
        We find no merit in the Heberts’ argument that the      serving the expert report does not restrict the trial court’s
Legislature, evaluating the impact of 4590i, could not          power to hear evidence, determine the facts of a case and
have rationally concluded that a problem had nonetheless        the rights of the parties, apply the law to the facts and to
persisted in the cost and availability of health care due to    enter a judgment appropriate to the case, any more than a
the prevalence of medical-malpractice suits. To the extent      statute of limitations does.”). The same is true of chapter
the Heberts challenge the underlying policies of chapter        74’s requirement that courts award attorney’s fees upon
74, it is not our place to question the Legislature’s policy    dismissal. Hightower, 348 S.W.3d at 522 (rejecting
decisions when conducting a rational basis review. See          separation-of-powers challenge based on attorneys’ fees
Bell v. Low Income Women of Tex., 95 S.W.3d 253, 264            provision because “court still retains its constitutional
(Tex.2002) (“The restriction clearly serves [the act’s]         authority to determine the reasonable fees based on the
purposes, and it is not for us to second-guess the              law and the evidence presented by the parties”). The
Legislature’s policy choices.”). The Heberts fail to            Heberts offer no persuasive authority to the contrary.
demonstrate that the Legislature lacked any rational basis      Accordingly, we reject the *901 Heberts’ separation-of-
in differentiating between health care liability claimants      powers constitutional challenge.
and other litigants. Accordingly, we reject the Heberts’
“disparate treatment” constitutional challenges.

                                                                Right of access
                                                                [18] [19] [20] [21]
                                                                                  Finally, the Heberts argue chapter 74
Separation of powers                                            violates their right of access to the courts and due course
[16] [17]
           For similar reasons, the Heberts’ other              of law. The open-courts provision of the Texas
constitutional challenges fail. They claim the Legislature      Constitution guarantees litigants the right to redress their
has impermissibly interfered with the judicial branch           grievances. Tex. Const. art. I, § 13; LeCroy v. Hanlon,
through chapter 74. The Texas Constitution vests the            713 S.W.2d 335, 341 (Tex.1986). It protects a person
judicial power of the State in the courts. Tex. Const. art.     from having his or her right to sue cut off by a legislative
V, § 1. The separation-of-powers requirement prohibits          act before the individual has been afforded a reasonable
one branch of government from exercising a power                opportunity to discover the wrong and bring suit. Shah v.
inherently belonging to another branch. Id. art. II, § 1;       Moss, 67 S.W.3d 836, 842 (Tex.2001). It is premised on
Wilson–Everett, 242 S.W.3d at 802 (citing General Servs.        the rationale that the Legislature has no power to make a
Comm’n v. Little–Tex Insulation Co., 39 S.W.3d 591, 600         remedy by due course of law contingent upon an
(Tex.2001)). Only when the executive or legislative             impossible condition. Hightower, 348 S.W.3d at 522
branch interferes with the functioning of the judicial          (citing Moreno v. Sterling Drug, Inc., 787 S.W.2d 348,
process in a field constitutionally committed to the control    355 (Tex.1990)); see also Stockton, 336 S.W.3d at 618
of the courts does a constitutional problem arise. Wilson–      (rejecting open-courts challenge based on chapter 74’s
Everett, 242 S.W.3d at 802.                                     120–day deadline). To prove that the statute violates the
                                                                open-courts provision, the Heberts must show that: (1) a
Chapter 74’s expert report imposes a threshold procedural       cognizable common law cause of action is being
requirement aimed at filtering out meritless or premature       restricted, and (2) the restriction is unreasonable or
lawsuits from proceeding until a claimant makes a good-         arbitrary when balanced with the statute’s purpose and
faith effort to demonstrate that at least one expert believes   basis. Sax, 648 S.W.2d at 666.
that a breach of the applicable standard of care caused the
                                                                [22]
claimed injury. Id. at 802–04 (rejecting argument that               A claimant bringing an as-applied open-courts
chapter 74 “interefere[d] with the judiciary’s                  challenge to chapter 74 must show that the expert-report
constitutional power to decide when and how to render           requirements actually prevented him from bringing his
judgments” (citing Murphy v. Russell, 167 S.W.3d 835,           claims. Herrera, 212 S.W.3d at 461; McGlothlin v.
838 (Tex.2005) (per curiam); Walker, 111 S.W.3d at 66).         Cullington, 989 S.W.2d 449, 453 (Tex.App.-Austin 1999,
Though the Heberts contend chapter 74 “prohibits the            pet. denied). The Heberts failed to prove how the
courts from using the rules of procedure and directs the        provisions of chapter 74, as opposed to their own failure
courts in every respect,” in actuality, the courts retain the   to provide an adequate report, prevented them from
judicial power to determine whether a timely served             pursuing their claims. See Ledesma, 2007 WL 2214650,
report is adequate in this regard and to render a decision      at *9 (rejecting open-courts challenge when plaintiff
accordingly. See Tex. Civ. Prac. & Rem.Code Ann. §              failed to serve sufficient reports); see also Stockton, 336
74.351(l ), (r)(6); see also Carrick v. Summers, 294            S.W.3d at 618–19 (rejecting as-applied open-courts
S.W.3d 886, 891 (Tex.App.-Beaumont 2009, no pet.)               challenge when plaintiff failed to exercise due diligence
(“[I]mposing a strict, non-discretionary time limit on          in serving expert report on defendant physician).

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Hebert v. Hopkins, 395 S.W.3d 884 (2013)



                                                               and Jelinek v. Casas, 328 S.W.3d 526 (Tex.2010).
[23] [24]
        As discussed above, the Heberts have also failed to    Together, those three cases describe and clarify the
show chapter 74 is unreasonable or arbitrary when              standards by which courts are to evaluate an expert report.
balanced with the statute’s purpose and basis. Health care     Because those standards are appropriately set forth in the
liability claims require expert testimony at trial. See        majority opinion, I will not repeat them all. But it is
Smalling, 203 S.W.3d at 371. The expert-report                 crucial to remember that all that is necessary to avoid
requirement “ ‘does not violate the open-courts provision      dismissal is that the report represent a “good faith effort”
by requiring an expert report sooner rather than later in      to comply with the statutory definition of an expert report,
the litigation.’ ” Id. (addressing article 4590i (quoting      which in turn requires only that the report provide “a fair
Mocega, 79 S.W.3d at 64)); see also Gill, 39 S.W.3d at         summary of the expert’s opinions” regarding standard of
718–19 (article 4590i expert-report requirement did not        care, breach, and causation. Most important, the supreme
violate open-courts provision because plaintiff raising        court has defined “good faith effort” as “one that provides
medical negligence claim required to prove claim by            information sufficient to (1) ‘inform the defendant of the
competent expert testimony to avoid summary judgment           specific conduct the plaintiff has called into question,’
and/or prevail at trial); Bankhead v. Spence, 314 S.W.3d       and (2) ‘provide a basis for the trial court to conclude that
464, 466 (Tex.App.-Waco 2010, pet. denied) (“This Court        the claims have merit.’ ” Jelinek, 328 S.W.3d at 539
and others have determined that the expert-report              (quoting Wright, 79 S.W.3d at 52). I believe the report in
requirement itself does not violate the open-courts            the present case easily meets that test.
guarantee because it ‘is rationally related to the purpose
of the statute to discourage frivolous malpractice suits.’ ”   The first prong of the good-faith test is that the report
(quoting Powell v. Clements, 220 S.W.3d 138, 140               must “inform the defendant of the specific conduct the
(Tex.App.-Waco 2007, pet. denied))); Fields, 2006 WL           plaintiff has called into question.” In this regard, the
2089171, at *4 (holding report requirement not so              expert report in this case could not be clearer: the standard
onerous that it “effectively deprived the litigant of access   of care requires that a spinal fracture complicated by pre-
to the court”).14                                              existing ankylosing spondylitis must be treated by
                                                               posterior internal fixation, either alone or in combination
*902 [25] [26] The Heberts have failed to demonstrate a        with anterior internal fixation, not by anterior fixation
constitutional defect in chapter 74’s expert-report            alone, as was done by the defendant physician here. By
requirement.15 Accordingly, we overrule their second           my count, the medical expert’s report contains no less
issue.16                                                       than nine separate statements and/or explanations of this
                                                               requirement, four in his original report and five more in
                                                               his supplemental report.

                                                                    • “Anterior instrumentation only is predictably
                     CONCLUSION                                     inadequate in a fracture pattern with gross anterior
                                                                    and posterior column instability such as Mr.
Having overruled the Heberts’ issues on appeal, we affirm           Hebert’s. Adequate treatment of Mr. Herbert’s
the district court’s judgment.                                      fracture   requires     anterior   and     posterior
                                                                    instrumentation in order to meet the standard of
                                                                    care.”

                                                                    • “Dr. Timothy Hopkins’ choice of anterior only
*903 Jones, C.J., dissent.
                                                                    plate/screw fixation fails to meet the applicable
                                                                    standard of care.”
J. WOODFIN JONES, Chief Justice, dissenting.
                                                                    • “In the absence of adequate posterior stability,
Because I believe the expert report in this case represents         anterior plate/screw constructs typically fail in
a good-faith effort to comply with the statutory definition         flexion by plate breakage or, as in this case, by screw
of an expert report, I respectfully dissent.                        pullout.... Anterior only plate/screw fixation, in this
                                                                    setting, is predictably doomed to failure.”
The three significant Texas Supreme Court opinions that
                                                                    • “The standard of care for the surgical treatment of
address the issue of determining the adequacy of an
                                                                    this fracture requires a multilevel posterior fixation
expert report are American Transitional Care Centers of
                                                                    and a fusion in conjunction with anterior fixation and
Texas, Inc. v. Palacios, 46 S.W.3d 873 (Tex.2001); Bowie
Memorial Hospital v. Wright, 79 S.W.3d 48 (Tex.2002);

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Hebert v. Hopkins, 395 S.W.3d 884 (2013)



     fusion with or without supplemental external                          performing a multilevel posterior
     fixation....”                                                         instrumented       fusion       caused
                                                                           permanent and irreversible spinal
     • “Dr. Hopkins performed an anterior (front) only                     cord injury when the screw
     plate and screw fixation.... The standards of care                    predictably pulled out in the post
     governing a prudent surgeon require that he not                       perioperative period.... When the
     perform anterior only fixation with plate and                         screw pulled out of the vertebral
     screws....”                                                           segments of C–6 and C–7, the C–5
                                                                           vertebral body was allowed to
     • “The standards of care governing a prudent surgeon                  move on C–6 resulting in cord
     require that he perform a multilevel posterior                        compression.         The         screw
     instrumented fusion alone or in conjunction with an                   predictably failed because the
     anterior instrumented fusion....”                                     anterior only approach was
                                                                           insufficient in the absence of
     *904 • “My opinion is that Dr. Hopkins breached the                   inherent or surgically created
     standard of care by performing a multi-level anterior                 posterior element stability, to
     only fusion and fixation with plate/screws without                    stabilize the fracture and resist
     also performing a multi-level posterior fusion and                    deformation due to flexion forces.
     fixation with instrumentation.”                                       When the screws failed, the
                                                                           vertebral segments moved resulting
     • “The factual basis for this opinion is that a prudent
                                                                           in cord compression. As a result,
     surgeon following the standards of care would not
                                                                           Mr. Hebert is now a quadraparetic,
     have performed an anterior only fusion with
                                                                           meaning he is nearly completely
     instrumentation to attempt to stabilize this very
                                                                           paralyzed from the chest down. If,
     unstable fracture but would have performed an
                                                                           instead of the anterior only surgery,
     anterior instrumented fusion with plates/screws and a
                                                                           Dr. Hopkins had performed an
     multilevel posterior instrumented fusion or a
                                                                           anterior and posterior instrumented
     multilevel posterior instrumented fusion alone.”
                                                                           fusion, like Dr. Duarte did on
     • “[P]erforming an anterior only fusion with                          9/12/08, it is highly probable the
     instrumentation without also performing the                           anterior implants would not have
     posterior fusion and fixation was a breach of the                     failed as they did, the resulting cord
     standard of care because the standards of care require                compression would have been
     performing both procedures to adequately stabilize                    avoided and Mr. Hebert would not
     the very unstable fracture and anterior only surgery                  have sustained his spinal cord
     was doomed to fail....”                                               injury and paralysis.

There can be no doubt what conduct is being called into        In the face of the expert report’s highly detailed
question.                                                      explanation of all of the elements required by Palacios,
                                                               Wright, and Jelinek, the majority holds that a single
The second prong of the supreme court’s good-faith             sentence from the original report was so “internally
definition is that the report must “provide a basis for the    inconsistent” as to the applicable standard of care that all
trial court to conclude that the claims have merit.” Here,     of the report’s detailed explanations and opinions were
the expert report goes into great detail in explaining the     vitiated:
standard of care, why the actions of the defendant
physician constituted a breach of the standard, and “how                   If the clinical situation in which the
and why the breach caused the injury based on the facts                    surgeon finds himself and the
presented.” Jelinek, 328 S.W.3d at 539–40. The report                      patient allows only inadequate
does not contain mere conclusions of the expert. Quite the                 internal fixation, the surgeon is
contrary. As to causation, for example, the report explains                obligated to protect the patient
at length the process by which the breach of the standard                  supplementing the internal fixation
of care resulted in the plaintiff’s paralysis:                             *905 with external bracing and/or
                                                                           activity limitations.
            My opinion is that performing an
            anterior   only    fusion   with                   There are several things to note about this sentence. First,
            instrumentation   without    also                  it does not say that anterior only internal fixation could
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Hebert v. Hopkins, 395 S.W.3d 884 (2013)



ever meet the standard of care in treating a patient with                    during discovery and possibly trial, not as part of a
the conditions existing here. Indeed, the sentence does not                  gatekeeper effort to deter frivolous lawsuits. This is
explicitly reference anterior internal fixation at all. It is                especially true in light of the fact that the medical records
simply a general reference to a hypothetical situation in                    available to the expert in preparing his report may not
which “inadequate internal fixation” is, temporarily, the                    have reflected whether any such extraordinary
only available option under some presumably                                  circumstances existed at the time of the surgery.1 To
extraordinary circumstances. Second, whatever the                            require a report to negate possible defenses at this stage of
general references to “clinical situation” and “inadequate                   the litigation creates an extra-statutory burden and is
internal fixation” mean, the report goes on to specify that                  unfair to both the plaintiff and the medical expert.
the defendant breached the standard of care in this case,
as to this patient. This is an implicit statement that, to the               I believe the expert report in this case constituted a good-
best of the expert’s knowledge, there were no                                faith effort to comply with the definition of an expert
extraordinary circumstances in this case. Third, and                         report, as required by the applicable statutes and supreme
perhaps most important, the possible existence of                            court precedent. Accordingly, I respectfully dissent.
extraordinary circumstances that might—or might not—
justify the defendant physician’s temporary use of
anterior only internal fixation is a matter to be fleshed out

Footnotes
1      The parties have advised us that Richard Hebert died shortly after the Heberts perfected their appeal. As contemplated by rule
       7.1 of the rules of appellate procedure, the parties have proceeded on appeal as if all parties are alive, and so have we. See
       Tex.R.App. P. 7.1(a)(1).
2      See Tex. Civ. Prac. & Rem.Code Ann. § 74.351(a) (West 2011) (“In a health care liability claim, a claimant shall, not later than
       the 120th day after the date the original petition was filed, serve on each party or the party’s attorney one or more expert reports,
       with a curriculum vitae of each expert listed in the report for each physician or health care provider against whom a liability
       claim is asserted.”).
          In the absence of material intervening substantive changes, we have cited the current version of chapter 74 for convenience.
3      See id. (“Each defendant physician or health care provider whose conduct is implicated in a report must file and serve any
       objection to the sufficiency of the report not later than the 21st day after the date it was served, failing which all objections are
       waived.”).
4      See id. § 74.351(b) (“If, as to a defendant physician or health care provider, an expert report has not been served within the
       period specified by Subsection (a), the court, on the motion of the affected physician or health care provider, shall ... enter an
       order that: (1) awards to the affected physician or health care provider reasonable attorney’s fees and costs of court incurred by
       the physician or health care provider; and (2) dismisses the claim with respect to the physician or health care provider, with
       prejudice to the refiling of the claim.”); see also id. § 74.351(c) (recognizing that “an expert report has not been served within
       the period specified by Subsection (a)” when “elements of the report are found deficient”).
5      See id. § 74.351(c).

6      See id. § 74.351(b), (c).

7      See id. § 74.351(b)(1).

8      See id. § 74.351(r)(6). Chapter 74 also imposes requirements regarding the qualifications of the “expert” who may prepare an
       “expert report,” see id. § 74.351(r)(5), but appellees have not disputed that White meets those standards here.
9      Id. § 74.351(l ).

10     The Heberts acknowledge that Richard’s death during the pendency of this appeal may have terminated his open-courts claim.
       “[W]rongful-death and survival claimants cannot establish an open-courts violation because they ‘have no common law right to
       bring either.’ ” Horizon/CMS Healthcare Corp. v. Auld, 34 S.W.3d 887, 903 (Tex.2000) (quoting Bala v. Maxwell, 909 S.W.2d
       889, 893 (Tex.1995)). The Texas Supreme Court also has declined to rule on an open-courts argument in a similar situation
       when the claimant died during the pendency of the appeal. Kallam v. Boyd, 232 S.W.3d 774, 776 (Tex.2007) (per curiam).

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Hebert v. Hopkins, 395 S.W.3d 884 (2013)



      While we have similar reservations, we will address the Heberts’ open-courts argument to the extent its substance implicates
      due-process and due-course-of-law protections they have also raised. See, e.g., Bogar v. Esparza, 257 S.W.3d 354, 370 n. 6
      (Tex.App.-Austin 2008, no pet.) (noting open-court protections not directly implicated in statutory wrongful-death and survivor
      action before conducting similar due-process analysis).
11    In their reply brief, the Heberts attempt to distinguish some of these cases on the basis that they involved “a complete failure to
      file an expert report,” instead of “addressing the legislature’s restriction placed on the courts in deciding the issue” of a report’s
      sufficiency. However, Texas courts, including this Court, have rejected constitutional challenges where, as here, an expert
      report was served, but found deficient. See, e.g., Hightower v. Baylor Univ. Med. Ctr., 348 S.W.3d 512, 520 (Tex. App.-Dallas
      2011, pet. denied) (upholding dismissal of deficient reports); Ledesma v. Shashoua, No. 03–05–00454–CV, 2007 WL 2214650,
      at *7–8 (Tex.App.-Austin Aug. 3, 2007, pet. denied) (mem. op.) (same).
12    Classifications that impinge upon the exercise of a fundamental right or distinguish between people on a suspect basis (i.e., race,
      national origin, and alienage) “are subject[ ] to strict scrutiny and will be sustained only if they are suitably tailored to serve a
      compelling state interest.” City of Cleburne v. Cleburne Living Ctr. Inc., 473 U.S. 432, 440, 105 S.Ct. 3249, 87 L.Ed.2d 313
      (1985) (plurality opinion). When a statute burdens a sensitive class or impinges on an important right, the statute is subject to an
      intermediate level of scrutiny, which requires a showing that the statute is substantially related to an important state interest. Id.
      at 440–41, 105 S.Ct. 3249.
13    Though the Heberts did not explicitly claim chapter 74 was an unconstitutional special law prohibited by the Texas
      Constitution, many of their complaints track arguments raised by parties who have raised such claims. Accordingly, we find
      cases addressing special-law challenges instructive.
14    The Heberts also argue that chapter 74 “effectively revives the general demurrer practice which permitted judges to dismiss
      cases on the pleadings.” They argue that summary judgment is the preferred method for defendants to obtain a dismissal on the
      merits. Our rules of procedure prohibit the use of general demurrers. Tex.R. Civ. P. 90. However, “[w]hen a rule of procedure
      conflicts with a statute, the statute prevails unless the rule has been passed subsequent to the statute and repeals the statute....”
      Johnstone v. State, 22 S.W.3d 408, 409 (Tex.2000) (per curiam). The current version of chapter 74 was passed in 2003 and
      amended in 2005; rule 90 was approved in 1940 and amended in 1980. Thus, to the extent chapter 74 and rule 90 conflict,
      chapter 74 controls. See Mitchell v. Berry, No. 05–06–01328–CV, 2007 WL 4111923, at *4 (Tex.App.-Dallas Nov. 20, 2007,
      pet. denied) (mem. op.) (rejecting argument Tex. Civ. Prac. & Rem.Code Ann. § 13.001 allowing for dismissal in inability-to-
      pay cases was a general demurrer in contravention of Rule 90); see also Smalling v. Gardner, 203 S.W.3d 354, 367 n. 8
      (Tex.App.-Houston [14th Dist.] 2005, pet. denied) (distinguishing dismissal under general demurrer from dismissal for failure
      to serve expert report).
15    The Heberts make passing reference to infringement of their right to trial by jury, but provide no authority or argument in
      support of any challenge based on that provision that is distinct from their other arguments. To the extent the Heberts intended
      to advance a distinct challenge based on their right to jury trial, it too would fail. The right to a jury trial is not an absolute right
      in civil cases, but is subject to certain procedural rules. Schorp v. Baptist Mem’l Health Sys., 5 S.W.3d 727, 738 (Tex.App.-San
      Antonio 1999, no pet.) (citing Wooten v. Dallas Hunting & Fishing Club, Inc., 427 S.W.2d 344, 346 (Tex.Civ.App.-Dallas
      1968, no writ)). “Imposing the requirement to file an expert report and the failure to meet that requirement allows the trial court
      to dismiss the case. This dismissal is not based on the merits, but merely operates to dismiss the case on a procedural
      requirement which is directly related to the statute’s purpose of limiting the number of frivolous suits.” Id. (addressing article
      4590i (citing Buckholts Indep. Sch. Dist. v. Glaser, 632 S.W.2d 146, 149 (Tex.1982) (holding that failure of plaintiff to fulfill
      bonding requirement for challenging school board election did not deny taxpayer right to jury trial on merits))).
16    The Heberts point to decisions from other jurisdictions that, in their view, struck down expert-report requirements similar to
      chapter 74 based on constitutional provisions analogous to the protections on which they rely here. See, e.g., Putman v.
      Wenatchee Valley Med. Ctr., 166 Wash.2d 974, 216 P.3d 374, 378–79 (2009) (law requiring certificate of merit from expert at
      time of filing violated separation of powers and right of access as it cut off rights of discovery and abrogated pleading
      requirements in rules of procedure); Wimley v. Reid, 991 So.2d 135, 138 (Miss.2008) (law requiring certificate of merit violated
      separation of powers); Summerville v. Thrower, 369 Ark. 231, 253 S.W.3d 415, 421 (2007) (law requiring expert affidavit
      within 30 days of suit violated separation of powers); Zeier v. Zimmer, Inc. 152 P.3d 861, 873 (Okla.2006) (law requiring
      affidavit of merit with petition barred right of access). They also acknowledge that courts in at least two jurisdictions upheld
      laws similar to chapter 74. See McAlister v. Schick, 147 Ill.2d 84, 167 Ill.Dec. 1021, 588 N.E.2d 1151, 1157–58 (1992);
      Mahoney v. Doerhoff Surgical Servs. Inc., 807 S.W.2d 503, 512–13 (Mo.1991). Additionally, they favorably cite cases from
      other jurisdictions that upheld similar laws “so long as the Legislature [does] not direct[ ] the Courts how to decide the
      legitimacy of the case.” Texas decisions regarding chapter 74 are consistent with that reasoning. See, e.g., Wilson–Everett v.
      Christus St. Joseph, 242 S.W.3d 799, 803 (Tex.App.-Houston [1st Dist.] 2007, pet. denied) (rejecting argument that chapter 74
      “interfere[d] with the judiciary’s constitutional power to decide when and how to render judgments”). In any event, cases from
      other jurisdictions have no precedential value for this Court. Instead, we are bound to follow the Supreme Court of Texas and

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Hebert v. Hopkins, 395 S.W.3d 884 (2013)



      our own precedent, as well as the persuasive cases of our sister courts. Texas authorities have consistently rejected
      constitutional challenges similar to those advanced by the Heberts.
1     Medical issues, like legal ones, are seldom black and white. One can imagine a hypothetical conversation between a plaintiff’s
      attorney and the plaintiff’s medical expert, in which the expert says something like, “In the overwhelming majority of cases like
      this, the standard of care is X. But I have to be candid: in a very small percentage of such cases, extraordinary circumstances
      may call for a different treatment approach. Nothing in the medical records I have seen indicates that such extraordinary
      circumstances existed in this case, but I would not be completely honest if I did not at least mention that possibility.”




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.                                                    14
Jelinek v. Casas, 328 S.W.3d 526 (2010)
54 Tex. Sup. Ct. J. 272


                                                              *529 Ronald G. Hole, Ida Cecilia Garza, Hole & Alvarez,
                                                              L.L.P., McAllen, for Michael T. Jelinek, M.D.
                     328 S.W.3d 526
                 Supreme Court of Texas.
                                                              John N. Mastin, San Antonio, Francisco J. Rodriguez,
       Michael T. JELINEK, M.D. and Columbia Rio              Rodriguez Tovar & Lopez, LLP, McAllen, for Francisco
        Grande Healthcare, L.P. d/b/a Rio Grande              Casas.
              Regional Hospital, Petitioners,
                                                              Mike A. Hatchell, Sarah B. Duncan, Elissa Gail
                            v.
                                                              Underwood, Locke Lord Bissell & Liddell, LLP, Austin,
       Francisco CASAS and Alfredo DeLeon, Jr., as
                                                              Raul Javier Guerra, Green, DuBois & Guerra, San
      Personal Representatives of the Estate of Eloisa
                                                              Antonio, Susan A. Kidwell, Locke Lord Bissell &
              Casas, Deceased, Respondents.
                                                              Liddell, LLP, Austin, for Columbia Rio Grande
No. 08–1066. | Argued Feb. 18, 2010. | Decided Dec.           Healthcare, L.P.
                    3, 2010.
                                                              Opinion

Synopsis                                                      Justice GUZMAN delivered the opinion of the Court, in
Background: Patient’s surviving family members                which Justice HECHT, Justice WAINWRIGHT, Justice
brought medical malpractice action against hospital and       MEDINA, Justice JOHNSON, and Justice WILLETT
physician, arising out of treatment of patient at hospital.   joined, and in which Chief Justice JEFFERSON, Justice
Following non-suiting of physician, and following jury        GREEN, and Justice LEHRMANN joined as to Parts I
trial, the 275th District Court, Hidalgo County, Juan R.      and II.A.
Partida, J., entered judgment for family members.
Hospital and physician appealed. The Corpus Christi
                                                              When circumstantial evidence is consistent with several
Court of Appeals, 2008 WL 2894889, affirmed. Hospital
                                                              possible medical conclusions, only one of which
and physician petitioned for review.
                                                              establishes that the defendant’s negligence caused the
                                                              plaintiff’s injury, an expert witness must explain why,
                                                              based on the particular facts of the case, that conclusion is
Holdings: The Supreme Court, Guzman, J., held that:           medically superior to the others. If the expert fails to give
                                                              any reason beyond an unsupported opinion, the expert’s
[1]                                                           testimony is legally insufficient evidence of causation. In
  lay testimony of family members did not present some
evidence in support of finding that hospital’s alleged        this case, we determine whether legally sufficient
negligence caused patient’s additional pain and suffering;    evidence supports the jury’s verdict in favor of the estate
                                                              of Eloisa Casas1 against Rio Grande Regional Hospital
[2]                                                           (the Hospital).2 Following her admission to the Hospital
   expert testimony did not present some evidence in
support of finding that hospital’s alleged negligence         with abdominal pain, doctors placed Casas on antibiotics
caused patient’s additional pain and suffering; and           used to treat and prevent certain intra-abdominal
                                                              infections. Two days later she underwent major
[3]                                                           abdominal surgery and continued on the antibiotics for
  expert report was conclusory with regard to causation
and, thus, was deficient.                                     another five days, but the Hospital allowed the
                                                              prescriptions to lapse for four-and-a-half days. The
                                                              Hospital admits it should have continued the antibiotics
Reversed and rendered in part; reversed and remanded in       but denies that the lapse caused Casas any additional pain.
part.                                                         We hold that the Casases failed to present legally
                                                              sufficient evidence that Casas suffered from an infection
Jefferson, C.J., dissented in part, and filed opinion in      the omitted antibiotics would have treated. Accordingly,
which Green and Lehrmann, JJ., joined.                        we reverse the court of appeals’ judgment and render
                                                              judgment that the Casases take nothing.3
Lehrmann, J., filed opinion dissenting in part.
                                                              In a separate petition, Dr. Michael Jelinek, one of Casas’s
                                                              treating physicians sued by the Casases, argues that the
Attorneys and Law Firms                                       trial court should have granted his motion for sanctions
                                                              and dismissal because the Casases’ expert report was
                                                              deficient. We agree and hold that an award of attorney’s
                 © 2015 Thomson Reuters. No claim to original U.S. Government Works.                                 1
Jelinek v. Casas, 328 S.W.3d 526 (2010)
54 Tex. Sup. Ct. J. 272

fees is proper. Therefore, we reverse and remand to the        on July 23, he informed Casas and then prescribed
trial court for an award of attorney’s fees and costs.         different antibiotics, Levaquin and Vancomycin. On July
                                                               25, after a CAT scan showed no abscess, Dr. Garcia–
                                                               Cantu removed the drain. Casas left the Hospital on
                                                               August 23, but she returned in early September and died
                                                               two months later.
                   *530 I. Background
                                                               In May 2003, several members of Casas’s family,
In 2000, Eloisa Casas was diagnosed with colon cancer          including her husband and son, filed suit against the
and underwent surgery, radiation, and chemotherapy. A          Hospital, Dr. Garcia–Cantu, and Dr. Jelinek. The
year later, doctors told her that the cancer appeared to be    plaintiffs claimed that the defendants’ negligence caused
in remission, and she thought she was cured. But on July       Eloisa Casas to “suffer grievous embarrassment and
10, 2001, she was admitted to the Hospital with                humiliation, as well as excruciating pain the remainder of
abdominal pains; she also had a fever and a mildly             her life which she would not have suffered to such degree
elevated white-blood-cell count, potentially indicating an     or extent if properly diagnosed, treated and cared for.”
infection. To treat this possible infection, her surgeon and   The plaintiffs sought to recover damages for Casas’s
primary physician, Dr. Carlos Garcia–Cantu, consulted          injuries and mental anguish. They twice amended their
with an infectious disease specialist at the Hospital, Dr.     petition, ultimately leaving the Casases as the sole
Michael Jelinek, who on July 11 prescribed two                 plaintiffs.
medications, Maxipime (a broad-spectrum antibiotic), and
Flagyl (an antibiotic used to treat anaerobic bacteria).       *531 As required by former article 4590i § 13.01 of the
                                                               Medical Liability and Insurance Improvement Act, see
The Hospital performed several diagnostic tests, which         TEX.REV.CIV. STAT. art. 4590i § 13.01,5 the Casases
revealed abnormal collections of fluid in Casas’s              filed an expert report within 180 days of filing the original
abdomen. On July 13, she underwent major abdominal             petition. In the report, Dr. John Daller opined that Dr.
surgery during which Dr. Garcia–Cantu discovered that          Garcia–Cantu and Dr. Jelinek were negligent in failing to
“fairly extensive” metastatic cancer had perforated            discover that the antibiotics were not being given to Casas
Casas’s colon and allowed material to leak into her            and that within “reasonable medical probability” this
abdominal cavity, causing an intra-abdominal abscess. Dr.      negligence resulted in a prolonged hospital stay and
Garcia–Cantu drained the abscess, repaired Casas’s colon,      increased pain and suffering. Dr. Jelinek later filed a
and inserted a Jackson–Pratt drain to prevent further          motion for sanctions and dismissal under article 4590i §
problems. Following the surgery, Dr. Garcia–Cantu              13.01(e), alleging that the expert report was deficient
continued the Maxipime and Flagyl prescriptions, and a         because, among other things, it failed to explain any
culture of the removed abscess revealed an E. coli             causal connection between the negligence and the
infection, which is effectively treated with Maxipime.         purported injury. The trial court denied the motion.
Casas received Maxipime and Flagyl for another five            Before trial began, however, the Casases nonsuited Dr.
days, but hospital staff inadvertently failed to place a       Jelinek and Dr. Garcia–Cantu.
prescription renewal form on Casas’s chart, resulting in a
four-and-a-half-day period between July 18 and 23 during       At trial, Dr. Daller testified as the Casases’ medical
which Casas did not receive either medication. Even so,        expert. During direct examination, he analyzed the
Casas never tested positive for E. coli again and a culture    Hospital’s daily patient notes regarding Casas and
of the incision site on July 18 instead grew Candida (a        identified the significant events. He noted changes in
fungus) for which Diflucan (an antifungal) was                 Casas’s vital signs on July 21 and 22, such as increased
prescribed. Then, on July 21, a second culture from a          heart rate and temperature, inflammation, and tenderness
blood sample grew coagulase-negative staph, for which          of the surgery site. Dr. Daller stated that “in medical
Vancomycin was prescribed.4 Neither Maxipime nor               probability” there was an infection in the abdomen, but on
Flagyl would have treated the Candida or coagulase-            cross-examination he admitted that “there was no
negative staph infection.                                      objective evidence present to demonstrate that intra-
                                                               abdominal infection.” When reviewing the patient notes
On July 23, Dr. Garcia–Cantu noted an abscess in the           for July 24, which noted the presence of a foul smell, he
wound, which he drained by removing the staples and            suggested that the smell was consistent with an anaerobic
opening the wound. The next day, records indicate that a       infection that would be difficult to culture because
foul smell was emanating from the wound site, and              anaerobic bacteria die when exposed to air. Dr. Carl
hospital staff brought fans into the room to dissipate the     Berkowitz, the Hospital’s expert, offered several other
odor. When Dr. Jelinek learned of the lapsed prescription

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Jelinek v. Casas, 328 S.W.3d 526 (2010)
54 Tex. Sup. Ct. J. 272

explanations for the smell, such as the Candida infection       A. Sufficiency of the Evidence
                                                                [1]
or dying tissue.                                                    The facts of this case are unfortunate: a woman with
                                                                advanced colon cancer underwent surgery to repair her
The Casases also called Casas’s relatives to testify about      cancer-perforated and infected colon, and in the course of
her condition. Consistent with Dr. Daller’s testimony,          treatment for her many symptoms the Hospital failed to
Casas’s son linked the smell with the opening of the            renew her antibiotic prescriptions for a four-and-a-half-
wound to drain the abscess: “The odor that I noticed was        day period. The Hospital admits it should have continued
after they had taken out the staples on her incision, and       the antibiotics. Even so, the plaintiff bears the burden to
one day that I went to see her as soon as they opened the       prove that the negligence caused an injury: “[A]t trial the
door the whiff of this putrid smell just engulfed me.” He       plaintiff must establish two causal nexuses in order to be
also testified that Casas was upset upon learning that she      entitled to recovery: (a) a causal nexus between the
had not received the antibiotics but was even more upset        defendant’s conduct and the event sued upon; and (b) a
when the incision had to be opened and drained: “Well,          causal nexus between the event sued upon and the
after she was told and I was told that she wasn’t getting       plaintiff’s injuries.” Morgan v. Compugraphic Corp., 675
antibiotics, like I said, she was upset. What really upset      S.W.2d 729, 731 (Tex.1984). Only the second nexus is at
her more was when they had to—they had to take out the          issue here.
staples out of her incision, and they had to open her
                                                                [2] [3] [4]
incision up again.” Casas’s husband testified that, while                 In City of Keller v. Wilson, we considered at
she was upset and did not trust the nurses or doctors after     length the parameters of legal sufficiency review, quoting
learning of the lapsed prescription, “she was still fighting.   with approval Chief Justice Calvert’s seminal article on
She ... wanted to beat this cancer she had.” The son            the topic:
testified that Casas did not lose hope until she witnessed
the events of September 11, 2001, following her re-                           “No evidence” points must, and
admission to the Hospital: “That’s why I remember that                        may only, be sustained when the
day so vividly in my mind because that was the turning                        record discloses one of the
point in my mom. She seemed to just give up, not fight,                       following situations: (a) a complete
not want to fight anymore like she used to. And that was a                    absence of evidence of a vital fact;
very, very sad day.”                                                          (b) the court is barred by rules of
                                                                              law or of evidence from giving
*532 The jury found that the negligence of the Hospital,                      weight to the only evidence offered
Dr. Jelinek, and Dr. Garcia–Cantu proximately caused                          to prove a vital fact; (c) the
Casas’s injury. The jury apportioned ninety percent of the                    evidence offered to prove a vital
negligence to the Hospital, five percent to Dr. Jelinek, and                  fact is no more than a mere
five percent to Dr. Garcia–Cantu. It awarded $250,000 in                      scintilla;   (d)     the    evidence
damages to the Casases as compensation for Casas’s pain                       establishes     conclusively     the
and mental anguish.                                                           opposite of the vital fact.

The Hospital appealed, arguing that the evidence was            168 S.W.3d 802, 810 (Tex.2005) (quoting Robert W.
legally and factually insufficient to prove causation or        Calvert, “No Evidence” and “Insufficient Evidence”
damages for mental anguish. Dr. Jelinek also appealed,          Points of Error, 38 TEX. L.REV. 361, 362–63 (1960)).
challenging the trial court’s denial of his motion for          “When the evidence offered to prove a vital fact is so
sanctions and dismissal. The court of appeals affirmed on       weak as to do no more than create a mere surmise or
all issues. ––– S.W.3d ––––.                                    suspicion of its existence, the evidence is no more than a
                                                                scintilla and, in legal effect, is no evidence.” Kindred v.
                                                                Con/Chem, Inc., 650 S.W.2d 61, 63 (Tex.1983). The same
                                                                is true when the evidence equally supports two
                                                                alternatives: “ ‘When the circumstances are equally
                          II. Analysis                          consistent with either of two facts, neither fact may be
                                                                inferred.’ ” City of Keller, 168 S.W.3d at 813 (quoting
We address in turn the two issues raised in this appeal: the    Tubelite, a Div. of Indal, Inc. v. Risica & Sons, Inc., 819
legal sufficiency of the causation evidence and the             S.W.2d 801, 805 (Tex.1991)). When considering such
sufficiency of the Casases’ expert report.                      cases, “we must ‘view each piece of circumstantial
                                                                evidence, not in isolation, but in light of all the known
                                                                circumstances,’ ” id. at 813–14 (quoting Lozano v.
                                                                Lozano, 52 S.W.3d 141, 167 (Tex.2001) (per curiam)),

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Jelinek v. Casas, 328 S.W.3d 526 (2010)
54 Tex. Sup. Ct. J. 272

and we “must consider not just favorable but all the            recognized treatment, unless he proves by a doctor of the
circumstantial evidence, and competing inferences as            same school of practice as the defendant: (1) that the
well.” Id. at 814.                                              diagnosis or treatment complained of was such as to
                                                                constitute negligence and (2) that it was a proximate
[5]
    To meet the legal sufficiency standard in medical           cause of the patient’s injuries.”). We have allowed lay
malpractice cases “plaintiffs are required to adduce            evidence to establish causation “in those cases in which
evidence of a *533 ‘reasonable medical probability’ or          general experience and common sense will enable a
‘reasonable probability’ that their injuries were caused by     layman to determine, with reasonable probability, the
the negligence of one or more defendants, meaning               causal relationship between the event and the condition.”
simply that it is ‘more likely than not’ that the ultimate      Morgan, 675 S.W.2d at 733 (citing Lenger v. Physician’s
harm or condition resulted from such negligence.”               Gen. Hosp., Inc., 455 S.W.2d 703, 706 (Tex.1970)). Care
Kramer v. Lewisville Mem’l Hosp., 858 S.W.2d 397, 399–          must be taken to avoid the post hoc ergo propter hoc
400 (Tex.1993) (citations omitted). Thus, we examine the        fallacy, that is, finding an earlier event caused a later
record to determine if the Casases presented legally            event merely because it occurred first. Stated simply,
sufficient evidence that “in reasonable medical                 correlation does not necessarily imply causation. As we
probability” the Hospital’s negligence caused Casas             noted in Guevara, “[e]vidence of an event followed
additional pain and suffering.                                  closely by manifestation of or treatment for conditions
                                                                which did not appear before the event raises suspicion
When distilled to its essence, the Casases’ claim is            that the event at issue caused the conditions. But
predicated on the presence of an infection—treatable by         suspicion has not been and is not legally sufficient to
the lapsed antibiotics—that caused Casas pain and mental        support a finding of legal causation.” 247 S.W.3d at 668.
anguish above and beyond that caused by the cancer, the
                                                                [10]
surgery, and the other known infections. The absence of              When lay testimony is credited as evidence of
an infection treatable by Maxipime and Flagyl would             causation, it usually highlights a connection between two
undermine the Casases’ claim, for then the prescription         events that is apparent to a casual observer. In Morgan,
lapse would amount to an unfortunate, but harmless,             for example, a previously healthy employee, upon
occurrence. The Hospital argues that the Casases                exposure to leaking chemicals, suffered watering of the
presented no evidence that the Hospital’s negligence            eyes, blurred *534 vision, headaches, and swelling of the
caused such an infection. The Casases’ expert admitted          breathing passages. 675 S.W.2d at 733. In such a
there is no direct evidence of an anaerobic infection,          circumstance, lay testimony sufficed to connect the
leaving the jury to consider the circumstantial evidence        specific injury to the negligence with no evidence of
and make proper inferences from it. In reviewing the            causation beyond the leaking chemicals. Id. Likewise in
record, we initially decide if jurors can determine             Guevara, we stated that determining causation of “certain
causation under these facts unaided by expert testimony—        types of pain, bone fractures, and similar basic
that is, whether lay testimony regarding causation is           conditions” following an automobile accident was within
legally sufficient.                                             the competence of lay jurors. 247 S.W.3d at 668. But we
                                                                held that expert testimony was required to prove that a
                                                                patient’s medical expenses resulted from the accident,
                                                                noting that “[p]atients in hospitals are often treated for
                                                                more than one condition brought on by causes
                  1. Lay Testimony of Causation                 independent of each other.” Id. at 669. These cases
[6] [7] [8] [9]                                                 illustrate this basic premise: “[N]on-expert evidence alone
             Lay testimony may be used as evidence of           is sufficient to support a finding of causation in limited
causation in certain circumstances, but “[w]hen expert          circumstances where both the occurrence and conditions
testimony is required, lay evidence supporting liability is     complained of are such that the general experience and
legally insufficient.” City of Keller, 168 S.W.3d at 812. In    common sense of laypersons are sufficient to evaluate the
medical malpractice cases, expert testimony regarding           conditions and whether they were probably caused by the
causation is the norm: “The general rule has long been          occurrence.” Id. at 668.
that expert testimony is necessary to establish causation as
to medical conditions outside the common knowledge and          The present case does not fall within this rule. Unlike in
experience of jurors.” Guevara v. Ferrer, 247 S.W.3d            Morgan, an otherwise healthy person did not suddenly
662, 665 (Tex.2007); see also Bowles v. Bourdon, 148            experience health difficulties following the defendant’s
Tex. 1, 219 S.W.2d 779, 782 (1949) (“It is definitely           negligent conduct when the plaintiff’s symptoms were
settled with us that a patient has no cause of action against   reasonably attributable to the negligence and to nothing
his doctor for malpractice, either in diagnosis or              else. Rather, a patient with terminal colon cancer did not
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Jelinek v. Casas, 328 S.W.3d 526 (2010)
54 Tex. Sup. Ct. J. 272

receive antibiotics for four-and-a-half days following        husband and son is evidence of her suffering, but not of
major abdominal surgery and after having received the         its cause. Thus, we hold that the lay testimony presented
medications for eight days. There is no direct evidence       by the Casases is legally insufficient to establish that the
that she suffered from an infection treatable by the          Hospital’s negligence caused Casas additional pain and
omitted antibiotics, but there is evidence that she had two   suffering.
other infections that accounted for all of her symptoms
during that time. Given Casas’s medical condition, expert
testimony was crucial to link the prescription lapse to an
infection causing additional pain and suffering beyond
what she would otherwise have experienced. See Kaster v.                           2. Expert Testimony
Woodson, 123 S.W.2d 981, 983 (Tex.Civ.App.-Austin             [11]
1938, writ ref’d) (“What is an infection and from whence          The Casases also presented expert testimony regarding
did it come are matters determinable only by medical          causation. The Casases’ expert, Dr. Daller, testified that
experts.”); see also Hart v. Van Zandt, 399 S.W.2d 791,       the Hospital’s negligence “in medical probability” caused
792 (Tex.1966) (“In determining negligence in a case          Casas additional pain and suffering. He based this opinion
such as this, which concerns the highly specialized art of    on the presence of an intra-abdominal infection that could
treating disease, the court and jury must be dependent on     have been treated using Maxipime and Flagyl. Admitting
expert testimony. There can be no other guide, and where      that no direct evidence indicated such an infection, Dr.
want of skill and attention is not thus shown by expert       Daller pointed to various circumstantial indicators that
evidence applied to the facts, there is no evidence of it     suggested an infection. These indicators were primarily
proper to be submitted to the jury.”).                        Casas’s changed vital signs, such as fever and increased
                                                              heart rate: “Well, given the fact that two to three days
The Casases point to testimony by Casas’s husband and         after the antibiotics had been mistakingly [sic] stopped
son to support their argument that she deteriorated rapidly   her fever curve went up and her heart rate went up, to me
after discovering she did not receive the antibiotics. But    that suggests the presence of on going [sic] infection.”6
this characterization overstates the evidence. While          But on cross-examination, he conceded these data were
Casas’s husband testified she was upset and did not trust     equally consistent with two other infections cultured from
her doctors following the discovery, she was still            Casas’s incision and blood—Candida and coagulase—
determined to fight her cancer. The son also observed         negative staph—neither of which is treatable by
Casas’s anger and lack of trust but testified that the        Maxipime or Flagyl:
opening of her wound, which occurred the same day she
learned of the lapse, upset her even more. As Dr. Daller
                                                                 Q. Now, Candida, infection of a wound like this, they
admitted, Candida likely caused the abscess that required
                                                                 can cause high temperatures. Correct?
Dr. Garcia–Cantu to drain the wound. Further, based on
his experience at Casas’s bedside, her son pinpointed the            A. Fungal infections can cause a high temperature,
tragic events of September 11, 2001, and their effect on             yes.
his mother as the turning point in her mental state. The
latter event was some seven weeks after discovery of the             Q. It can cause increased heart rate?
lapsed prescriptions and after Casas’s discharge from and
re-admission to the Hospital. This evidence does not bear            A. That is correct.
out the Casases’ claim of a marked shift in Casas’s mental
resilience following the omission of the medications.                Q. And inflammation?

*535 More importantly, Casas’s husband and son were                  A. That is correct.
unable to precisely identify the cause of her suffering.
While they could accurately describe her discomfort, they            Q. Pain?
were unable to say if it was the cancer, the surgery, the
                                                                     A. That is correct.
other infections, or the lapse that caused it. Even
testimony that Casas suffered after learning of the                  Q. How about an abscess?
omission raises no more than a mere suspicion of
causation, and that is not enough, see Guevara, 247                  A. It caused or is part of the abscess in that wound
S.W.3d at 668, particularly in light of the evidence that            that was present, that wound infection that needed to
Casas thought she was cured of cancer before the surgery             be opened.
and then learned that not only was it “back with a
vengeance,” it was terminal. The testimony of Casas’s
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Jelinek v. Casas, 328 S.W.3d 526 (2010)
54 Tex. Sup. Ct. J. 272

       Q. So when Doctor Garcia went in on 7/23 ... and        defendant’s negligence. The expert must explain why the
       drained that wound at bedside that abscess was          inferences drawn are medically preferable to competing
       within a reasonable degree of medical probability       inferences that are equally consistent with the known
       caused by the Candida?                                  facts. Thus, when the facts support several possible
                                                               conclusions, only some of which establish that the
       *536 A. That was one of the organisms that was          defendant’s negligence caused the plaintiff’s injury, the
       there. It was the organism that was cultured. That is   expert must explain to the fact finder why those
       correct.                                                conclusions are superior based on verifiable medical
                                                               evidence, not simply the expert’s opinion. See Lenger,
       ....                                                    455 S.W.2d at 707 (“[E]xpert testimony that the event is a
                                                               possible cause of the condition cannot ordinarily be
       Q. ... This coagulase negative staph causes fever?      treated as evidence of reasonable medical probability
                                                               except when, in the absence of other reasonable causal
       A. Correct.
                                                               explanations, it becomes more likely than not that the
       Q. Increased heart rate?                                condition did result from the event.”); Hart, 399 S.W.2d
                                                               at 792 (“The burden of proof is on the plaintiff to show
       A. The fever will cause increased heart rate.           that the injury was negligently caused by the defendant
                                                               and it is not enough to show the injury together with the
       ....                                                    expert opinion that it might have occurred from the
                                                               doctor’s negligence and from other causes not the fault of
       Q. It can cause pain?                                   the doctor. Such evidence has no tendency to show that
                                                               negligence did cause the injury.”).
       A. Depending upon the site. Correct.
                                                               By conceding that Casas’s symptoms were consistent
       Q. Okay. All of these things can be caused by           with infections not treatable by Maxipime or Flagyl, Dr.
       coagulase negative staph and Candida, which we          Daller undermined his conclusion that an undetected
       know were present 7/18 through 7/23, the time           infection was also present. While it is possible that Casas
       period she did not get antibiotics?                     did have such an infection, its presence can only be
                                                               inferred from facts that are equally consistent with the
       A. That’s correct.
                                                               Candida and coagulase-negative staph infections. “
       Q. Neither one would have been killed by Maxipime       ‘When the circumstances are *537 equally consistent with
       or Flagyl?                                              either of two facts, neither fact may be inferred.’ ” City of
                                                               Keller, 168 S.W.3d at 813 (quoting Tubelite, 819 S.W.2d
      A. That’s correct.                                       at 805). Here, objective data—the cultures—support the
[12] [13]
        It is not enough for an expert simply to opine that    Candida and staph infections but not the supposed
the defendant’s negligence caused the plaintiff’s injury.      anaerobic infection.7
The expert must also, to a reasonable degree of medical        [14]   [15]
probability, explain how and why the negligence caused                  Based on the record evidence, an anaerobic
the injury. We have rejected expert opinions not grounded      infection cannot be proved or disproved. It is equally
in a sound evidentiary basis: “[I]f no basis for the opinion   plausible that Casas had such an infection or that she did
is offered, or the basis offered provides no support, the      not. Dr. Daller opined that she did, but he did not explain
opinion is merely a conclusory statement and cannot be         why that opinion was superior to the opposite view. Such
considered probative evidence, regardless of whether           evidence raises no more than a possibility of causation,
there is no objection. ‘[A] claim will not stand or fall on    which is insufficient. As we said in Bowles v. Bourdon, “
the mere ipse dixit of a credentialed witness.’ ” City of      ‘[t]he proof must establish causal connection beyond the
San Antonio v. Pollock, 284 S.W.3d 809, 818 (Tex.2009)         point of conjecture. It must show more than a possibility.
(quoting Burrow v. Arce, 997 S.W.2d 229, 235                   Verdicts must rest upon reasonable certainty of proof.
(Tex.1999)); see also Whirlpool Corp. v. Camacho, 298          Where the proof discloses that a given result may have
S.W.3d 631, 637 (Tex.2009) ( “Conclusory or speculative        occurred by reason of more than one proximate cause, and
opinion testimony is not relevant evidence because it does     the jury can do no more than guess or speculate as to
not tend to make the existence of material facts more          which was, in fact, the efficient cause, the submission of
probable or less probable.”). When the only evidence of a      such choice to the jury has been consistently condemned
vital fact is circumstantial, the expert cannot merely draw    by this court and by other courts.’ ” 219 S.W.2d at 785
possible inferences from the evidence and state that “in       (quoting Ramberg v. Morgan, 209 Iowa 474, 218 N.W.
medical probability” the injury was caused by the              492, 498–99 (1928)).

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Jelinek v. Casas, 328 S.W.3d 526 (2010)
54 Tex. Sup. Ct. J. 272

                                                               when those findings are not supported by credible
The Casases argue that the foul smell, which is consistent     evidence. When the evidence compels the jury to guess if
with an anaerobic infection, is strong evidence of such an     a vital fact exists, a reviewing court does not undermine
infection. Looking at the patient notes for July 24, Dr.       the jury’s role by sustaining a no-evidence challenge. The
Daller commented on the smell:                                 evidence in this case—being consistent with an anaerobic
                                                               infection that was treatable by Flagyl, a fungal infection
   A. The text says something about drainage to the            that was not, or even with dying tissue, cancerous or
   abdomen with moderate amount of drainage. And it            otherwise—did not provide the jury a reasoned basis from
   says that it is foul smelling.                              which to infer the presence of a negligence—induced
                                                               infection. Because the jury could not reasonably infer an
   ....                                                        infection caused by the Hospital’s negligence, we agree
                                                               with the Hospital that no evidence supports the jury’s
   Q. The [previous notes] that I remember that we have        verdict.
   gone over didn’t say anything about foul smelling?
                                                               We understand the Casas family’s predicament and
   A. That’s correct. They were just described as I recall
                                                               frustration at the Hospital’s conduct, and we recognize the
   as being purulent and looking like puss [sic].
                                                               difficulty of proving that the lapsed prescriptions caused a
   Q. What does that mean when it says “foul smelling”?        painful infection. But the Casases shouldered that burden
                                                               and must prove the causal link with reasonable certainty.
   A. When you have foul smelling, it suggests that the        In that quest, the Casases offered the testimony of Dr.
   organism is an anaerobe. In other words, one of those       Daller, but he did not explain why an undetected,
   bacteria that didn’t need oxygen in order to grow that,     anaerobic infection is medically more probable than one
   for example, Flagyl would treat.                            based on the known infections and the dying tissue,
                                                               leaving the jury to guess if the lapsed prescriptions caused
   Q. Okay. Does that give you clinical evidence that had      additional pain and suffering. Without probative medical
   she been continued on Maxipime and Flagyl that they         testimony that the lapse caused—by means of an infection
   would have had some effect with regards to the              treatable by Maxipime and Flagyl—more pain than the
   condition as we see it on the 24th?                         cancer, the surgery, and the other infections already
                                                               inflicted, there is no legally sufficient evidence of
   A. Well, like I said, most anaerobes are sensitive or       causation. Dr. Daller did not provide that causal link;
   susceptible to Flagyl. And she had previously been on       accordingly, we hold that his testimony is legally
   Flagyl and at this time she is not. So I would have         insufficient to support the jury’s verdict. Because the
   expected that that would be an appropriate antibiotic       Casases failed to prove causation, we reverse the
   that would have covered the organism that’s causing         judgment of the court of appeals and render judgment that
   that foul smell.                                            the Casases take nothing.

Dr. Berkowitz, the Hospital’s expert, offered several other
explanations for the smell, including necrotic tissue, dead
cancer tissue, and the Candida infection.8 As *538 noted,      B. Adequacy of the Expert Report
                                                               [18] [19]
Casas’s son noticed the smell after the incision was                     In his petition, Dr. Jelinek raises a single issue:
opened to drain the abscess, which Dr. Daller admitted         whether the trial court abused its discretion by denying
was likely caused by Candida.                                  his motion for sanctions and dismissal because the
                                                               Casases’ expert report was deficient under former article
[16] [17]
        Here again, there are competing explanations for       4590i § 13.01, the statute in effect at the time. See
the smell, which amounts to no more than circumstantial        TEX.REV.CIV. STAT. art. 4590i § 13.01. Article 4590i
evidence of some kind of infection or possibly dying           required the report to provide “a fair summary of the
tissue. Because there is no direct evidence of the infection   expert’s opinions as of the date of the report regarding
and the circumstantial evidence is meager, we “must            applicable standards of care, the manner in which the care
consider not just favorable but all the circumstantial         rendered by the physician or health care provider failed to
evidence, and competing inferences as well.” City of           meet the standards, and the causal relationship between
Keller, 168 S.W.3d at 814. Courts should not usurp the         that *539 failure and the injury, harm, or damages
jury’s role as fact finder, nor should they question the       claimed.” Id. § 13.01(r)(6). “If a plaintiff timely files an
jury’s right to believe one witness over another. But when     expert report and the defendant moves to dismiss because
reviewing a verdict for sufficiency of the evidence, courts    of the report’s inadequacy, the trial court must grant the
need not—indeed, must not—defer to the jury’s findings         motion ‘only if it appears to the court, after hearing, that

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Jelinek v. Casas, 328 S.W.3d 526 (2010)
54 Tex. Sup. Ct. J. 272

the report does not represent a good faith effort to comply        Palacios element—it does not give the trial court any
with the definition of an expert report in Subsection (r)(6)       reasonable basis for concluding that the lawsuit has merit.
of this section.’ ” Bowie Mem’l Hosp. v. Wright, 79                See 46 S.W.3d at 879. An expert’s conclusion that “in
S.W.3d 48, 51–52 (Tex.2002) (per curiam) (quoting §                medical probability” one event caused another differs
13.01(l )). Dismissal for failure to serve an adequate             little, without an explanation tying the conclusion to the
expert report also carried mandatory sanctions, requiring          facts, from an ipse dixit, which we have consistently
an award to the defendant of his costs and attorney’s fees         criticized. See Pollock, 284 S.W.3d at 818 (citing Burrow,
against the plaintiff or the plaintiff’s attorney. See Am.         997 S.W.2d at 235); Earle, 998 S.W.2d at 890 (“An
Transitional Care Ctrs. of Tex., Inc. v. Palacios, 46              expert’s simple ipse dixit is insufficient to establish a
S.W.3d 873, 877 (Tex.2001) (citing § 13.01(e)).                    matter; rather, the expert must explain the basis of his
                                                                   statements to link his conclusions to the facts.”). Instead,
[20] [21]
        We have defined a “good-faith effort” as one that          the expert must go further and explain, to a reasonable
provides information sufficient to (1) “inform the                 degree, *540 how and why the breach caused the injury
defendant of the specific conduct the plaintiff has called         based on the facts presented. While we have said that no
into question,” and (2) “provide a basis for the trial court       “magical words” need be used to meet the good-faith
to conclude that the claims have merit.” Wright, 79                requirement, mere invocation of the phrase “medical
S.W.3d at 52 (citing Palacios, 46 S.W.3d at 879). All              probability” is likewise no guarantee that the report will
information needed for this inquiry is found within the            be found adequate. See Wright, 79 S.W.3d at 53.
four corners of the expert report, which need not “marshal
all the plaintiff’s proof” but must include the expert’s           Under these standards, the Casases’ report is conclusory
opinion on each of the three main elements: standard of            on causation. It offers no more than a bare assertion that
care, breach, and causation. Id. Importantly for this case,        Dr. Jelinek’s breach resulted in increased pain and
the “report cannot merely state the expert’s conclusions           suffering and a prolonged hospital stay. Beyond that
about these elements,” but “ ‘the expert must explain the          statement, the report offers no explanation of how the
basis of his statements to link his conclusions to the             breach caused the injury. Again, the plaintiff need not
facts.’ ” Id. (quoting Earle v. Ratliff, 998 S.W.2d 882, 890       marshal all of his proof in the report, but he must include
(Tex.1999)). “A report that merely states the expert’s             sufficient detail to allow the trial court to determine if the
conclusions about the standard of care, breach, and                claim has merit. Because the Casases’ report lacks any
causation” does not fulfill the two purposes of a good-            explanation linking the expert’s conclusion to the relevant
faith effort. Palacios, 46 S.W.3d at 879.                          facts, we hold that the trial court abused its discretion by
                                                                   denying Dr. Jelinek’s motion and the court of appeals
[22] [23]
         We review the trial court’s grant or denial of a          erred by affirming that ruling.9 See id. at 52. Accordingly,
motion for sanctions and dismissal under the abuse-of-             we remand the case to the trial court for an award of
discretion standard. Palacios, 46 S.W.3d at 877–78. A              attorney’s fees and costs10 under former article 4590i §
district court “abuses its discretion if it acts in an arbitrary   13.01(e) against the Casases and their counsel.11
or unreasonable manner without reference to any guiding
rules or principles.” Wright, 79 S.W.3d at 52 (citing
Downer v. Aquamarine Operators, Inc., 701 S.W.2d 238,
241–42 (Tex.1985)).
                                                                                      *541 III. Conclusion
Dr. Jelinek argues that the Casases’ report is deficient in
two ways, failing (1) to state the applicable standard of          For the foregoing reasons, we reverse the court of
care, and (2) to provide more than conclusory statements           appeals’ judgment, render judgment that the Casases take
of causation. We focus on the latter. Dr. Daller’s report          nothing, and remand to the trial court for an award of Dr.
concluded that Dr. Jelinek’s breach of the appropriate             Jelinek’s attorney’s fees and costs consistent with this
standard of care in “reasonable medical probability,               opinion.
resulted in a prolonged hospital course and increased pain
and suffering being experienced by Ms. Casas.” Aside
from repeating essentially the same phrase twice more,
the report says nothing more regarding causation. The              Chief Justice JEFFERSON filed an opinion, dissenting in
Casases argue this statement is sufficient to meet the             part, in which Justice GREEN and Justice LEHRMANN
good-faith requirement. We disagree.                               joined.

An expert cannot simply opine that the breach caused the           Justice LEHRMANN filed an opinion, dissenting in part.
injury. Stated so briefly, the report fails the second

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Jelinek v. Casas, 328 S.W.3d 526 (2010)
54 Tex. Sup. Ct. J. 272

Chief Justice JEFFERSON, joined by Justice GREEN and          Dr. Jelinek and the hospital appealed the trial court’s
Justice LEHRMANN, dissenting in part.                         judgment. The hospital complained that the evidence was
                                                              legally insufficient to support the verdict. Dr. Jelinek
We must decide whether an expert report gave a “fair          complained that the trial court improperly denied him
summary” of the expert’s opinions regarding standard of       attorney’s fees, as the expert report was not a good faith
care, failure to meet the standard, and the link between      effort to comply with statutory requirements. The court of
that failure and the patient’s damages. We must consider      appeals affirmed, 2008 WL 2894889, *9–*10, 2008
the expert’s opinions “as of the date of the report.”         Tex.App. LEXIS 5647, *28–*29 (Tex.App.-Corpus
TEX.REV.CIV. STAT. art. 4590i § 13.01(r)(6) (repealed         Christi July 29, 2008), and the appellants below are now
2003). To do so, we must disregard today’s holding that,      petitioners here. I fully join the *542 Court’s rendition of
at trial, there was no evidence linking the discontinuation   judgment for the hospital. I disagree with the Court’s
of antibiotics to increased suffering by Casas. The expert    holding as to the doctor.
report submitted in this case gave fair notice of a
meritorious claim—that the doctor failed to ensure that
his patient received antibiotics, thereby increasing her
pain and suffering. I would affirm the court of appeals’      II. Good faith effort; fair summary
judgment with respect to the doctor.
                                                              Former article 4590i provided that “[a] 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
I. Background                                                 not represent a good faith effort to comply with the
                                                              definition of an expert report in [the statute].”
Eloisa Casas, a patient recently diagnosed with colon         TEX.REV.CIV. STAT. art. 4590i § 13.01(l ). “That
cancer, was admitted to Rio Grande Hospital for               definition requires, as to each defendant, a fair summary
abdominal pain. The cancer had perforated her colon, the      of the expert’s opinions about the applicable standard of
contents of which leaked into her abdominal cavity,           care, the manner in which the care failed to meet that
causing an abscess. After the doctor drained and              standard, and the causal relationship between that failure
surgically removed the abscess, he discovered that Casas      and the claimed injury.” Am. Transitional Care Ctrs. of
had an E. coli infection, for which the doctor prescribed     Tex., Inc. v. Palacios, 46 S.W.3d 873, 878 (Tex.2001)
two antibiotics. Although those prescriptions were            (citing TEX.REV.CIV. STAT. art. 4590i § 13.01(r)(6)).
supposed to have been renewed five days later, they           Because an expert report is filed long before discovery is
lapsed. Casas contends this mistake occurred because the      complete, we cannot judge it according to what
doctor failed to ensure that hospital staff complied with     subsequent discovery reveals or how the evidence
his renewal order. During the four days after the             develops at trial. The question is whether the report fairly
prescriptions expired, Casas’s surgical incision began to     summarizes the malpractice elements before the case is
emit a putrid odor. She developed several infections in       tested in a full adversary process. For that reason, “to
addition to E. coli, exacerbating her pain and extending      avoid dismissal, a plaintiff need not present evidence in
her stay in the hospital. Casas died two months after she     the report as if it were actually litigating the merits. The
was discharged.                                               report can be informal in that the information in the report
                                                              does not have to meet the same requirements as the
Casas’s estate sued the Hospital and two of the treating      evidence offered in a summary-judgment proceeding or at
doctors, Dr. Garcia–Cantu and Dr. Jelinek, for negligently    trial.” Id. at 879.
causing Mrs. Casas “grievous embarrassment and
humiliation, as well as excruciating pain the remainder of    The report must also give the defendant notice of the
her life which she would not have suffered to such degree     conduct the plaintiff challenges, and the trial court must
if properly diagnosed, treated and cared for....” The trial   have a basis to determine whether the claim has merit. Id.
court denied Dr. Jelinek’s motion to dismiss the case         The dividing line between a sufficient and an inadequate
against him. Nevertheless, the estate nonsuited both          report is impossible to draw precisely. We have said,
doctors more than a year before Casas’s claim against the     therefore, that the determination must be made in the first
Hospital was tried to a jury. At that trial, the jury found   instance by the trial court, and review of that decision
the hospital 90% negligent, and each doctor 5% negligent.     asks not how an appellate court would have resolved the
The trial court rendered judgment against the hospital,       issue, but instead whether the trial court abused its
and the court’s order non-suiting Dr. Jelinek “with           discretion. See, e.g., Jernigan v. Langley, 195 S.W.3d 91,
prejudice” merged into that final judgment.                   93 (Tex.2006); Walker v. Gutierrez, 111 S.W.3d 56, 63
                                                              (Tex.2003).

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Jelinek v. Casas, 328 S.W.3d 526 (2010)
54 Tex. Sup. Ct. J. 272

                                                                did not abuse its discretion by dismissing the plaintiff’s
                                                                claim for lack of a good faith effort to summarize the
                                                                expert’s opinions.
III. Dr. Daller’s report
                                                                Subsequently, in Bowie Memorial Hospital v. Wright, we
Dr. Daller is a physician and an expert on intra-abdominal      held that the trial court did not abuse its discretion in
abscesses and infection. His report states that a doctor        concluding that an expert report failed to comply with the
treating a patient like Casas must ensure that the              statute, as the report did not “establish how any act or
antibiotics he prescribes are actually administered.            omission of employees of Bowie Memorial Hospital
Despite that standard, Dr. Daller states that antibiotics       caused or contributed to [the patient’s] injuries.” See
prescribed for Ms. Casas were not administered from July        Bowie Mem’l Hosp. v. Wright, 79 S.W.3d 48, 51–53
17 through July 23, even though “[t]here [wa]s no order         (Tex.2002) (quoting the expert in that case as speculating,
to discontinue the antibiotic therapy.” He concluded that       “I do believe that it is reasonable to believe that if the x-
Dr. Jelinek breached the standard of care by his “failure to    rays would have been correctly read and the appropriate
recognize that the antibiotics were not being administered      medical personnel acted upon those findings then [the
as ordered.” Dr. Daller concludes that “[t]his breach in the    plaintiff] would have had the possibility of a better
standard of care ..., within reasonable medical probability,    outcome.”). We observed that a report must satisfy
resulted in a prolonged hospital course and increased pain      Palacios’s two-part test. Id. at 52. Because the report
and suffering....”                                              “lack[ed] information linking the expert’s conclusion (that
                                                                [the plaintiff] might have had a better outcome) to [the
                                                                defendant’s] alleged breach (that it did not correctly read
                                                                and act upon the x-rays), the trial court could have
IV. Dr. Daller gave a “fair summary” of the required            reasonably determined that the report was conclusory.”
standard of care and how the allegedly inadequate               Id. at 53.
care fell below that standard.
                                                                In each of those cases, the trial court could not have
The Court concludes that Dr. Daller’s report lacks the
                                                                evaluated the claim’s merit without speculating about
detail necessary to conclude that the estate’s lawsuit has
                                                                actions the defendant could have taken to prevent injury.
merit. But the cases it cites as support involve situations
                                                                No such speculation is required here. Dr. Daller states that
in which a hindsight view is entirely appropriate. Earle v.
                                                                had the antibiotics been administered from July 17
Ratliff, for example, is a summary judgment case; it
                                                                through July 23, Eloisa Casas would have suffered less.
presents the higher evidentiary standard that Palacios
                                                                Dr. Daller could have stated that conclusion in greater
rejected for expert reports. Earle v. Ratliff, 998 S.W.2d
                                                                detail, of course, but “[a] report need not marshal all the
882, 890 (Tex.1999) (“Summary judgment can be granted
                                                                plaintiff’s proof.” Palacios, 46 S.W.3d at 878. Daller’s
on the affidavit of an interested expert *543 witness, ...
                                                                report includes his opinions on (1) the applicable standard
but the affidavit must not be conclusory.... [R]ather, the
                                                                of care (to maintain vigilance over a patient’s treatment),
expert must explain the basis of his statements to link his
                                                                (2) the manner in which the care failed to meet that
conclusions to the facts.”). Similarly, the standard
                                                                standard (failing to ensure the treatment he ordered was
employed in City of San Antonio v. Pollock, 284 S.W.3d
                                                                actually administered), and (3) the causal connection
809, 817–18 (Tex.2009), also cited by the Court, is
                                                                between the failure and the claimed injury (without the
inapplicable here, since it examined an expert report
                                                                antibiotics, the patient’s pain and suffering increased and
under the “no evidence” standard of review. See –––
                                                                she required additional hospitalization).
S.W.3d at ––––.
                                                                A “good faith effort” does not require that the report
In Palacios we held that an expert report that failed to
                                                                “meet the same requirements as the evidence offered in a
articulate a standard of care or explain how the defendant
                                                                summary-judgment proceeding or at trial”; therefore, an
hospital breached that standard was not a good faith effort
                                                                expert report does not fail the good faith effort test merely
to comply with the statutory requirements. Palacios, 46
                                                                because it may not later prove legally sufficient to support
S.W.3d at 880. The expert in that case blamed the hospital
                                                                a judgment. Id. at 879. So, here, whether the Casas estate
for taking no action to prevent a patient from falling out
                                                                ultimately amassed sufficient proof in an adversarial trial
of his bed, even though the patient “had a habit of trying
                                                                is beside the point; the claim itself was far from frivolous.
to undo his restraints.” Id. at 879–880. The report, as
                                                                See id. at 878 (noting that “one purpose of the expert-
such, was not a fair summary of the evidence because it
                                                                report requirement is to deter frivolous *544 claims”).
neglected to articulate what actions the hospital should
                                                                The law imposes a penalty for filing a frivolous suit. Only
have taken that it did not. Id. at 880. Thus, the trial court
                                                                by today’s decree does it also punish a claimant for failing
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Jelinek v. Casas, 328 S.W.3d 526 (2010)
54 Tex. Sup. Ct. J. 272

to win an arguably meritorious case. Cf. TransAmerican                   period provisions of section 13.01(g).” Walker v.
Natural Gas Corp. v. Powell, 811 S.W.2d 913, 918                         Gutierrez, 111 S.W.3d 56, 62 (Tex.2003). Thus, health
(1991) (holding that “sanctions cannot be used to                        care claimants could receive an opportunity to rectify
adjudicate the merits of a party’s claims or defenses                    deficiencies in a report if they could show that they did
unless a party’s hindrance of the ... process justifies a                not intentionally, or with conscious indifference, submit
presumption that its claims or defenses lack merit.”).                   an inadequate report.

I agree with the Court that the Estate failed to prove                   Here, the Casases never had the chance to request an
causation at trial; I disagree that, as to Dr. Jelinek, the              opportunity to cure any deficiencies in their report
expert report was not a good faith attempt to comply with                because the trial court determined that the report
the statute. I respectfully dissent in part from the Court’s             adequately complied with section 13.01(d). In Gutierrez,
judgment.                                                                we were guided by our recognition that it would be
                                                                         “perverse” to allow a claimant who filed no report a
                                                                         second chance to comply with the statute’s expert report
                                                                         requirement, while “punishing those who attempt to
Justice LEHRMANN, dissenting in part.                                    comply with the statute but fail.” Id. In this case,
                                                                         perversely, the Casases may have been in a better position
I fully join Chief Justice Jefferson’s dissent. I write                  *545 than they are now if the trial court had found that the
separately, however, to highlight the incongruity inherent               report was inadequate; they might have had an
in the Court’s decision to remand the case for an award of               opportunity to eliminate any deficiencies.
attorney’s fees and costs under former article 4590i §
13.01(e), given this case’s circumstances. See                           I agree fully with Chief Justice Jefferson that the report
TEX.REV.CIV. STAT. art. 4590i § 13.01(e) (repealed                       represents a good-faith effort to comply with section
2003)1. The Court presumes that Dr. Michael Jelinek is                   13.01. Even if it did not, however, I would remand the
entitled to attorney’s fees because the expert report filed              case to allow the Casases an opportunity to show that
by Eloisa Casas’s estate2 was, on appeal, determined to be               their failure to present an adequate report was not
insufficient. But, after a pre-trial hearing was held on the             intentional or the result of conscious indifference. See
defendant’s motion to dismiss the lawsuit, the trial court               City of DeSoto v. White, 288 S.W.3d 389, 401 (Tex.2009)
rejected Dr. Jelinek’s contention that the report was                    (remanding in the interest of justice sua sponte to allow
inadequate; consequently, the Casases had no opportunity                 police officer “to make an appellate election with full
to rectify any deficiencies as the statute and our precedent             knowledge of his appellate rights and with knowledge of”
would have allowed.                                                      the guidance provided in Court’s opinion). In my view,
                                                                         the Casases should not be assessed attorney’s fees and
Section 13.01(e) of article 4590i provided for an order                  costs if they can make the showing section 13.01(g)
awarding attorney’s fees and costs if a health care                      requires and then submit a report complying with the
claimant failed to supply an expert report within the time               statute. For these reasons, as well as those expressed by
required under subsection (d)—180 days. But the statute                  Chief Justice Jefferson, I respectfully dissent in part.
provided several avenues for health care claimants to
obtain an extension of the 180–day deadline, including
section 13.01(g). That provision required the trial court to
grant a thirty-day extension of the statutory deadline if a              Parallel Citations
claimant’s failure to provide an expert report was not
intentional or the result of conscious indifference. And we              54 Tex. Sup. Ct. J. 272
have expressly held that “a party who files a timely but
inadequate expert report may seek relief under the grace

Footnotes
1      Francisco Casas and Alfredo DeLeon Jr., Casas’s husband and son, respectively, serve as personal representatives of her estate.
       We refer to them collectively as “the Casases.”
2      Columbia Rio Grande Regional Healthcare, L.P., d/b/a/ Rio Grande Regional Hospital.

3      Because we conclude legally insufficient evidence supports the jury’s verdict, we do not reach the Hospital’s second issue—
       whether the Hospital preserved error regarding its proposed unavoidable accident instruction.


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Jelinek v. Casas, 328 S.W.3d 526 (2010)
54 Tex. Sup. Ct. J. 272

4      There was a several-day lag between taking the culture and ordering the prescription, presumably to allow the culture to grow
       and to transmit the results to the treating physicians. Thus, the Diflucan was prescribed on July 21 and the Vancomycin on July
       23.
5      See Act of May 5, 1995, 74th Leg., R.S., ch. 140, § 1, 1995 Tex. Gen. Laws 985, 986, amending the Medical Liability and
       Insurance Improvement Act of Texas, Act of May 30, 1977, 65th Leg., R.S., ch. 817, 1977 Tex. Gen. Laws 2039, 2041,
       repealed by Act of June 2, 2003, 78th Leg., R.S., ch. 204, § 10.09, 2003 Tex. Gen. Laws 847, 884. Former article 4590i § 13.01
       was replaced by Texas Civil Practice and Remedies Code § 74.351, as amended.
6      When asked if the lapsed prescriptions affected Casas’s hospital stay, Dr. Daller equivocated:
          A. I think that it certainly did impact it. However, I cannot quantitate that because there are multiple variables that are
          present in a clinical condition. Whether it lengthened her stay by one day, two days, three days, I cannot say that. What I
          would say from a scientific standpoint is that for four and a half days she did not receive appropriate therapy. Had she
          received the appropriate therapy then you would expect her length of stay to be shortened somewhat. To quantitate that, I
          could not do that.
          ....
          A. Obviously, not receiving antibiotics is not going to shorten your stay. Therefore, if it impacted the stay it must have
          lengthened it. (emphases added).
7      Admittedly, anaerobic bacteria are hard to culture because they are averse to oxygen.

8      Dr. Berkowitz testified:
            I think that there are a number of things that can cause things smelling bad besides just infection. Tissue that dies doesn’t
            smell good. There’s bacteria and products released by the dead tissue that don’t smell good.
            And we know based on the pathology report of the cancer that they took out of her abdomen, that this had grown enough
            that it was dying. In other words, it was probably outgrowing it’s [sic] blood supply and was starting to die. That in and of
            itself can smell bad. Then you have a wound that is infected; although Candida itself does not typically smell bad, not like
            something dead. It smells funky and people don’t like the way it smells. The wound itself when it wasn’t healing was
            probably having some necrotic tissue, as well, or dead tissue that is in the wound. I’m sure that smelled bad, as well. And
            they were never able to completely get rid of all that dead cancer tissue that was in her abdomen.
            I think there’s a number of reasons why she would have had a bad smell, none of which can be explained by four or five
            days of not getting Flagyl [or] Maxipime.
9      In his dissent, CHIEF JUSTICE JEFFERSON argues that an expert report need not meet the legal sufficiency requirements
       necessary to support a judgment and suggests that we hold it must. We agree that an expert report need not “meet the same
       requirements as the evidence offered in a summary-judgment proceeding or at trial.” Palacios, 46 S.W.3d at 879. But, as we
       stated earlier, the report must provide more than conclusory statements concerning applicable standards of care, breach of those
       standards, and causation. See id. An expert report must instead, within its four corners, provide some explanation as to each of
       these elements. TEX.REV.CIV. STAT. art. 4590i § 13.01(r)(6); Wright, 79 S.W.3d at 52. The report here offered only a
       conclusory statement concerning causation with no explanation as to how the lapse in antibiotic treatment resulted in longer
       hospitalization, increased pain and suffering, or ultimately Casas’s death.
10     In her dissent, JUSTICE LEHRMANN indicates that (1) she would remand the case to allow the Casases an opportunity to
       show that their failure to present an adequate report was not intentional or the result of conscious indifference, and (2) Dr.
       Jelinek should not be entitled to attorney’s fees and costs if the Casases can make this showing and submit an adequate report.
       We note that the Casases did not request a remand of this nature, nor brief the attorney’s fees issue. See State v. Brown, 262
       S.W.3d 365, 370 (Tex.2008) (observing that “[a] party generally is not entitled to relief it does not seek” and refusing to sua
       sponte grant relief that was not sought); Fed. Sign v. Tex. S. Univ., 951 S.W.2d 401, 410 (Tex.1997) (noting that ordinarily,
       failure to brief an argument waives error on appeal); TEX.R.APP. P. 38.1(h).
11     We briefly note that under former article 4590i a trial court’s order denying a motion to dismiss premised on an inadequate
       expert report was not immediately appealable, as it now is under Texas Civil Practice and Remedies Code §§ 51.014 and
       74.351. Nor did we definitively say that mandamus review was appropriate for such orders until almost four years after the trial
       court denied Dr. Jelinek’s motion for dismissal and sanctions. See In re McAllen Med. Ctr., Inc., 275 S.W.3d 458, 461–62
       (Tex.2008). Thus, we do not fault Dr. Jelinek for waiting until final judgment to seek review of the trial court’s order. See
       Hernandez v. Ebrom, 289 S.W.3d 316, 318 (Tex.2009) (“Generally, appeals may only be taken from final judgments....”).
         We mention this point because we have since cautioned that a defendant—having foregone the interlocutory appeal now
         available—risks losing the right to appeal following final judgment if, after a trial on the merits, the jury finds the defendant
         liable. See id. at 321. Even if the present statute applied here, this caution would not bar Dr. Jelinek’s appeal because he was
         not a party at trial, having been nonsuited earlier. We will not bar a nonsuited defendant’s appeal after final judgment because
         the jury finds him liable at a former codefendant’s trial. Such a defendant did not call or cross-examine witnesses, present
               © 2015 Thomson Reuters. No claim to original U.S. Government Works.                                                    12
Jelinek v. Casas, 328 S.W.3d 526 (2010)
54 Tex. Sup. Ct. J. 272

         evidence, or otherwise participate at trial and should not be bound by what happens there.
1      See Act of May 5, 1995, 74th Leg., R.S., ch. 140, § 1, 1995 Tex. Gen. Laws 985, 986, amending the Medical Liability and
       Insurance Improvement Act of Texas, Act of May 30, 1977, 65th Leg., R.S., ch. 817, 1977 Tex. Gen. Laws 2039, 2041,
       repealed by Act of June 2, 2003, 78th Leg., R.S., ch. 204, § 10.09, 2003 Tex. Gen. Laws 847, 884. For ease of reference, I will
       refer to the relevant provisions as they were identified in article 4590i.
2      I refer to the estate, which was represented by Casas’s husband and son, as “the Casases.”




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
Jernigan v. Langley, 195 S.W.3d 91 (2006)
49 Tex. Sup. Ct. J. 717



                                                               Opinion
                     195 S.W.3d 91
                 Supreme Court of Texas.                       PER CURIAM.
          Floyd E. JERNIGAN, M.D., Petitioner,
                             v.                                The issue in this medical malpractice case is whether the
           Marie LANGLEY, Individually and as                  plaintiff’s expert reports meet the specificity requirements
      Representative of the Estate of John Langley and         of section 13.01 of the Medical Liability and Insurance
          Mariah Langley, a Minor, Respondent.                 Improvement Act (the “MLIIA”). Former TEX. REV.
                                                               CIV. STAT. art. 4590i, § 13.01.1
               No. 05–0299. | June 9, 2006.
                                                               In September 1998, Marie Langley brought suit alleging
Synopsis                                                       that the death of her 46–year–old husband, John Langley,
Background: Wife of patient who died two days after            resulted from the negligence of Providence Hospital in
emergency surgery brought medical malpractice action           Waco and several physicians, including Dr. Floyd
against attending physician and others. The 19th District      Jernigan. The trial court dismissed Langley’s suit against
Court, McLennan County, Ralph Strother, J., dismissed          Dr. Jernigan for failure to provide an expert report that
action against attending physician for failure to provide an   satisfied the requirements of section 13.01 of the MLIIA.
expert report that satisfied the requirements of the           The court of appeals reversed the trial court’s dismissal.
Medical Liability and Insurance Improvement Act. Wife          We reverse the judgment of the court of appeals and
appealed. The Court of Appeals, 76 S.W.3d 752, reversed.       dismiss with prejudice Langley’s claims against Dr.
Attending physician petitioned for further review. The         Jernigan.
Supreme Court, 111 S.W.3d 153, reversed. On remand,
the Court of Appeals initially affirmed the district court’s   On the morning of October 6, 1996, John Langley went to
dismissal, but upon grant of wife’s motion for rehearing,      Providence Hospital complaining of stomach pain. An
the Court of Appeals, 2005 WL 486759, reversed.                abdominal x-ray was performed, and John was diagnosed
Attending physician petitioned for review.                     with fecal impaction. He was given a gallon of
                                                               GoLYTELY to drink at home and was instructed to return
                                                               that evening. He returned a few hours later in acute pain
                                                               and was admitted to the hospital. John’s condition
Holdings: The Supreme Court held that:                         worsened, and he underwent emergency surgery that
                                                               evening. He fared poorly overnight and was operated on
[1]
   expert reports failed to identify with specificity any      again the following day. John died the next morning,
action or inaction by attending physician that breached the    October 8, 1996.
applicable standard of care, and thus reports failed to
comply with the Act, and                                       Marie Langley filed this suit in September 1998, and filed
                                                               two timely expert reports thereafter. In June 2000, Dr.
[2]
  expert reports could not constitute a good faith effort to   Jernigan filed a motion to dismiss with prejudice under
comply with the Act, and thus trial court had no discretion    section 13.01(e) of the MLIIA based on alleged
but to dismiss claims against attending physician.             deficiencies in Langley’s expert reports. At the hearing on
                                                               the motion to dismiss, Langley argued that Dr. Jernigan
                                                               had waived his statutory right to seek dismissal because
Judgment of Court of Appeals reversed.                         he had waited more than 600 days to challenge the
                                                               reports. Langley also moved for an extension of time to
                                                               allow the late filing of a third expert report. The trial court
Attorneys and Law Firms                                        denied Langley’s motion for an extension of time, and
                                                               then severed and dismissed Langley’s claims against Dr.
*92 Greg White, Nancy Napier Morrison, Waco, Bob
                                                               Jernigan. The court of appeals reversed, holding that Dr.
Burleson, Naman, Howell, Smith & Lee, L.L.P., Temple,
                                                               Jernigan had impliedly waived his rights under section
for Petitioner.
                                                               13.01. 76 S.W.3d 752 (Tex.App.—Waco 2002). This
Thomas B. Cowart, Law Offices of Windle Turley, P.C.,          Court disagreed, reversing and remanding the case back
Dallas, for Respondent.                                        to the court of appeals. 111 S.W.3d 153 (Tex.2003).


                 © 2015 Thomson Reuters. No claim to original U.S. Government Works.                                    1
Jernigan v. Langley, 195 S.W.3d 91 (2006)
49 Tex. Sup. Ct. J. 717

On remand, the court of appeals initially affirmed the trial
                                                                 [4]
court’s dismissal, *93 No. 10–00–00373–CV, 2004 WL                  Limiting our section 13.01(1) adequacy analysis to the
1211607, 2004 Tex.App. LEXIS 4972 (June 2, 2004), but            four corners of Langley’s two timely-filed expert reports,
nine months later issued a new opinion holding that              id. at 878, it is notable that one report does not mention
Langley’s reports were adequate under section 13.01, and         Dr. Jernigan at all, and the other report only mentions him
therefore the trial court abused its discretion in dismissing    in this single sentence: “At 4:30 p.m. [John Langley’s]
Langley’s claims against Dr. Jernigan, 2005 WL 486759,           case was discussed with Dr. Jernigan and at 4:50 p.m. a
2005 Tex.App. LEXIS 1687 (Mar. 2, 2005).                         lactulose enema was ordered.”
Alternatively, the court concluded that the trial court
abused its discretion in refusing to grant Langley a 30–         Dr. Jernigan appears in only one line of one report. This
day grace period under section 13.01(g) because                  passing reference does not identify with specificity any
Langley’s failure to comply was not intentional or the           action or inaction by Dr. Jernigan that breached the
result of conscious indifference. Id. 2005 WL 486759, at         applicable standard of care. This perfunctory mention
*5, 2005 Tex.App. LEXIS 1687 at *10–18.                          alleges no misconduct whatsoever, much less discusses
                                                                 the required elements with “sufficient specificity” to
[1]
    Under section 13.01(d)(1) of the MLIIA, a plaintiff          inform Dr. Jernigan of “the conduct the plaintiff has
bringing a health care liability claim must furnish an           called into question.” Id. at 875.
expert report within 180 days of filing suit. Former TEX.
REV. CIV. STAT. art. 4590i, § 13.01(d)(1). The expert            As to the standard of care applicable to Dr. Jernigan, the
report need not marshal every bit of the plaintiff’s             court of appeals found that the following stand-alone
evidence, but it must provide “a fair summary of the             statement in one of the reports captured the standard *94
expert’s opinions as of the date of the report regarding         of care for each defendant-physician: “surgical
applicable standards of care, the manner in which the care       consultation should have been obtained once the x-rays
rendered by the physician or health care provider failed to      demonstrated obstruction.” 2005 WL 486759, at *2, 2005
meet the standards, and the causal relationship between          Tex.App. LEXIS 1687 at *8–9. Even assuming arguendo
that failure and the injury, harm or damages claimed.” Id.       that the standard of care applicable to every doctor
§ 13.01(r)(6). If a claimant fails to file an adequate expert    reviewing such x-ray results is to obtain an immediate
report timely, the trial court must dismiss a claimant’s suit    surgical consult, neither of Langley’s expert reports
with prejudice upon motion by the defendant. Id. §               asserts that Dr. Jernigan was ever provided with the x-ray
13.01(e). The trial court must grant a motion challenging        results or had any independent duty to review them.
the adequacy of an expert report only if the report does         Instead, the court of appeals indulges multiple inferences
not represent a good faith effort to comply with section         that are simply unsupported by the scant reports.
13.01(r)(6)’s definition of an expert report. Id. § 13.01(1).
Finally, upon timely motion, the trial court must grant the      Moreover, according to the reports, the x-rays were taken
claimant a 30–day grace period to comply with the statute        on John Langley’s first visit to Providence Hospital at
if the trial court finds that the claimant’s failure to comply   6:40 a.m. on October 6, 1996, whereas Dr. Jernigan did
was “not intentional or the result of conscious                  not become involved in John’s treatment until the case
indifference but was the result of an accident or mistake.”      was “discussed” with him at 4:30 p.m., nearly ten hours
Id. § 13.01(g).                                                  later. The expert reports state that the surgeons were
                                                                 called at 6:40 p.m., but do not assert that Dr. Jernigan
[2] [3]
       A trial court’s decision to dismiss under section         personally failed to order a surgical consult prior to that
13.01(e) is reviewed for abuse of discretion. Am.                time or that the roughly two-hour gap between when the
Transitional Care Ctrs. of Tex., Inc. v. Palacios, 46            surgeons were called and when they arrived at 8:30 p.m.
S.W.3d 873, 877–78 (Tex.2001). Denial of a section               was attributable to Dr. Jernigan.
13.01(g) grace period is also reviewed for abuse of
discretion. Walker v. Gutierrez, 111 S.W.3d 56, 63               We agree with the dissent below that Langley’s expert
(Tex.2003).                                                      reports failed to comply with section 13.01 because
                                                                 “[e]ven if we assume that the reports address the standard
We held in Palacios that in order to constitute a good-          of care with respect to each doctor, ... neither report
faith effort under section 13.01(1), an expert report must       addresses how Dr. Jernigan breached the standard or how
“discuss the standard of care, breach, and causation with        his unstated breach of duty caused John’s death with
sufficient specificity to inform the defendant of the            sufficient specificity for the trial court, and Jernigan, to
conduct the plaintiff has called into question and to            determine that the allegations against Jernigan had any
provide a basis for the trial court to conclude that the         merit.” 2005 WL 486759, at *14, 2005 Tex.App. LEXIS
claims have merit.” 46 S.W.3d at 875.                            1687 at *51–52 (Gray, C.J., dissenting). A glancing
                © 2015 Thomson Reuters. No claim to original U.S. Government Works.                                    2
Jernigan v. Langley, 195 S.W.3d 91 (2006)
49 Tex. Sup. Ct. J. 717

statement that John’s case was “discussed” with Dr.
Jernigan sheds no light whatsoever on what Dr. Jernigan                 The trial court did not abuse its discretion in dismissing
allegedly did wrong, much less how his alleged error(s)                 Langley’s claims against Dr. Jernigan. Accordingly,
proximately caused John’s death. Thus, we conclude that                 without hearing oral argument, we reverse the court of
the reports omitted statutory elements of Marie Langley’s               appeals’ judgment and dismiss with prejudice Langley’s
claim against Dr. Jernigan.                                             claims against Dr. Jernigan. TEX. R. APP. P. 59.1.
[5]
   Because Langley’s expert reports omit at least one of
the three specifically enumerated requirements of section
13.01(r)(6), they cannot constitute a good faith effort to              Parallel Citations
meet the statutory requirements. Palacios, 46 S.W.3d at
879. Accordingly, the trial court had no discretion but to              49 Tex. Sup. Ct. J. 717
conclude, as it did here, that Langley’s claims against Dr.
Jernigan must be dismissed. Id. at 880.

Footnotes
1      Act of May 5, 1995, 74th Leg., R.S., ch. 140, § 1, 1995 Tex. Gen. Laws 985, 985–87 (adding expert report requirement, at
       former TEX. REV. CIV. STAT. art. 4590i, § 13.01(d)), repealed and recodified as amended by Act of June 2, 2003, 78th Leg.,
       R.S., ch. 204, §§ 10.01, 10.09, 23.02(a), (d), 2003 Tex. Gen. Laws 847, 864, 884, 898–99 (“House Bill 4”) (adopting chapter 74
       of the Texas Civil Practice and Remedies Code, applicable only to actions filed on or after September 1, 2003, and continuing
       prior law in effect for actions filed before that date) (current version at TEX. CIV. PRAC. & REM CODE § 74.351).




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.                                                  3
Kingwood Pines Hosp., LLC v. Gomez, 362 S.W.3d 740 (2011)




                                                              Panel consists of Justices FROST, SEYMORE, and
                      362 S.W.3d 740                          JAMISON.
                  Court of Appeals of Texas,
                    Houston (14th Dist.).

      KINGWOOD PINES HOSPITAL, LLC, Horizon
      Health Corporation, Psychiatric Solutions, Inc.
            and Yolanda Bassett, Appellants,                                         OPINION
                           v.
        R. GOMEZ, Individually and a/n/f of V.G.,             MARTHA HILL JAMISON, Justice.
                       Appellee.
                                                              This is a health care liability case governed by the
           No. 14–11–00050–CV. | Nov. 22, 2011.               Medical Liability Act.1 Appellants bring an interlocutory
                                                              appeal from the trial court’s order denying appellants’
                                                              motions to dismiss based on the asserted inadequacy of an
Synopsis                                                      expert report served by appellee R. Gomez, individually
Background: Mother, individually and as next friend of        and as next friend of her daughter V.G. We reverse the
her daughter, brought negligence, aiding and abetting         trial court’s order denying the motions to dismiss and
assault, assisting or encouraging assault and medical         remand this cause to the trial court to consider whether a
malpractice action against physician, counselor and           30–day extension of the deadline for serving the report to
hospital, where daughter was being evaluated for a            allow Gomez to address deficiencies is appropriate.
psychiatric condition following a history of sexual abuse,
after daughter was molested by another patient. The 127th
District Court, Harris County, R.K. Sandill, J., denied
defendants’ motion to dismiss based on an inadequate
expert report. Defendants filed interlocutory appeal.                                Background

                                                              V.G., a minor, was admitted into Kingwood Pines
                                                              Hospital for evaluation of a psychiatric condition relating
Holdings: The Court of Appeals, Martha Hill Jamison, J.,      to her past history of being raped and subjected to sexual
held that:                                                    molestation in two separate incidents. As alleged, while in
[1]
                                                              the care of Kingwood Pines Hospital, V.G. was molested
  trial court did not abuse its discretion by finding that    by another female patient.2 According to Gomez’s expert,
mother’s expert was qualified to give an opinion; but         Dr. Mark Blotcky, Gomez asserted in an affidavit that
[2]
                                                              hospital staff knew the other patient was aggressive, had
   expert report did not adequately set forth the standards   been sexually abused, and had sexually molested others,
of care and how those standards were breached;                but allowed the two patients to share a room and,
[3]
                                                              accordingly, *744 did not prevent the other patient from
   expert report did not adequately describe the causal       having physical access to V.G.3
relationship between defendants’ failure to meet the
standards of care and daughter’s injury; and                  Gomez filed suit on February 24, 2010, against appellants
[4]
                                                              and others,4 alleging that they failed to provide a
      doctrine of res ipsa loquitur did not apply.            reasonably safe environment for V.G. and the other
                                                              patient by allowing them to share a room. Gomez asserted
                                                              claims against appellants for negligence, aiding and
Reversed and remanded.                                        abetting assault, assisting or encouraging assault, and
                                                              medical malpractice. She seeks actual and special
                                                              damages.
Attorneys and Law Firms

*743 Ryan Lee Clement, Houston, for appellants.               On May 28, 2010, Gomez served an expert report and
                                                              curriculum vitae prepared by Dr. Mark Blotcky, a board
David K. Mestemaker, Norman Louis Straub, Jonathan            certified psychiatrist, in support of her claims. After
Brian Zumwalt, Houston, for appellee.                         appellants objected to the adequacy of the report, Gomez
                                                              served a supplemental expert report.5 Appellants objected

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Kingwood Pines Hosp., LLC v. Gomez, 362 S.W.3d 740 (2011)



to the adequacy of the supplemental report on the same           (Tex.2001); Group v. Vicento, 164 S.W.3d 724, 727
grounds as their former objections and moved to dismiss          (Tex.App.-Houston [14th Dist.] 2005, pet. denied).
the claims with prejudice pursuant to the Act.6 See Tex.         Similarly, we review a trial court’s determination of
Civ. Prac. & Rem.Code § 74.351(b). Appellants                    whether a physician is qualified to opine in a health care
contended that the initial report was inadequate because         liability case under an abuse of discretion standard.
Blotcky (1) did not establish his qualifications to opine        Larson v. Downing, 197 S.W.3d 303, 304–05 (Tex.2006)
regarding the standards of care for the admission,               (per curiam); Mem’l Hermann Healthcare Sys. v. Burrell,
treatment, and care of patients in a psychiatric facility; (2)   230 S.W.3d 755, 757 (Tex.App.-Houston [14th Dist.]
failed to articulate a fair summary of his opinions              2007, no pet.). A trial court abuses its discretion if it acts
regarding the applicable standards of care, the manner in        in an unreasonable or arbitrary manner or without
which those standards were breached by appellants, and           reference to any guiding rules or principles. Larson, 197
the causal relationship between any breach and the injury        S.W.3d at 304–05; see also Jelinek, 328 S.W.3d at 539.
and damages claimed; and (3) attempted to apply a single
                                                                 [3] [4]
standard of care to multiple health care providers. After                The Act specifies requirements for an adequate
considering appellants’ challenges to the expert report and      report and mandates “an objective good faith effort to
supplemental report and hearing arguments of the parties,        comply” with the requirements. Tex. Civ. Prac. &
the trial court entered an order denying appellants’             Rem.Code § 74.351(l ), (r)(6); Scoresby, 346 S.W.3d at
motions to dismiss.                                              549. It also authorizes a trial court to give a plaintiff who
                                                                 meets the 120–day deadline an additional 30 days to cure
                                                                 any deficiencies in the report. Tex. Civ. Prac. &
                                                                 Rem.Code § 74.351(c); Scoresby, 346 S.W.3d at 549. The
                                                                 trial court should err on the side of granting the extension
                         Discussion                              and must grant it if the deficiencies are curable. Scoresby,
                                                                 346 S.W.3d at 549. When determining if a good faith
In two issues, appellants contend the trial court abused its     effort has been made, the trial court is limited to the four
discretion in denying appellants’ motions to dismiss             corners of the report and cannot consider extrinsic
because the expert and supplemental reports neither              evidence. See Jelinek, 328 S.W.3d at 539; Palacios, 46
establish Blotcky’s qualifications to render an opinion          S.W.3d at 878.
regarding licensed professional counselors, nursing staff,
and hospital personnel nor include a fair summary of             [5] [6] [7] [8] [9] [10] [11]
                                                                                       An expert must establish that he is
Blotcky’s opinions in connection with the statutory              qualified to provide an acceptable report. Tex. Civ. Prac.
elements required by section 74.351—the applicable               & Rem.Code § 74.351(r)(5)(B). Qualifications must
standards of care, the manner in which the care rendered         appear in the expert report and cannot be inferred. Baylor
failed to meet those standards, and the causal relationship      Coll. of Med. v. Pokluda, 283 S.W.3d 110, 117
between the failure and the injury, harm, or damages             (Tex.App.-Houston [14th Dist.] 2009, no pet.).
claimed. See id. Gomez contends the reports meet the             Additionally, an expert report must provide a fair
standards required by section 74.351, but even if they do        summary of the expert’s opinions regarding (1) the
not, an expert report was not required because the               applicable standard of care; (2) the manner in which the
doctrine of res ipsa loquitur applies.                           care provided failed to meet that standard; and (3) the
                                                                 causal relationship between that failure and the injury,
                                                                 harm, or damages claimed. See Tex. Civ. Prac. &
                                                                 Rem.Code § 74.351(r)(6); Palacios, 46 S.W.3d at 879. In
*745 A. Standard of Review and Applicable Law
[1] [2]                                                          compliance with these standards, the expert report must
      The Act entitles a defendant to dismissal of a health
                                                                 incorporate sufficient information to inform the defendant
care liability claim if he is not served with an expert
                                                                 of the specific conduct the plaintiff has called into
report showing that the claim has merit within 120 days of
                                                                 question and provide a basis for the trial court to conclude
the date suit was filed. Tex. Civ. Prac. & Rem.Code §
                                                                 the claims have merit. Patel v. Williams, 237 S.W.3d 901,
74.351(b); Scoresby v. Santillan, 346 S.W.3d 546, 549
                                                                 904 (Tex.App.-Houston [14th Dist.] 2007, no pet.) (citing
(Tex.2011). The trial court’s refusal to dismiss may be
                                                                 Palacios, 46 S.W.3d at 879). A report may not merely
immediately appealed. Tex. Civ. Prac. & Rem.Code §
                                                                 contain the expert’s conclusions about these elements.
51.014(a)(9); Scoresby, 346 S.W.3d at 549. We review a
                                                                 Jelinek, 328 S.W.3d at 539; Palacios, 46 S.W.3d at 879.
trial court’s denial of a motion to dismiss under section
                                                                 The expert must explain the basis for his statements and
74.351 for abuse of discretion. Jelinek v. Casas, 328
                                                                 must link his conclusions to the facts. Jelinek, 328 S.W.3d
S.W.3d 526, 539 (Tex.2010); Am. Transitional Care Ctrs.
                                                                 at 539. However, a plaintiff need not present all the
of Tex., Inc. v. Palacios, 46 S.W.3d 873, 875, 878
                                                                 evidence necessary to litigate the merits of his case.

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Kingwood Pines Hosp., LLC v. Gomez, 362 S.W.3d 740 (2011)



Palacios, 46 S.W.3d at 879; Patel, 237 S.W.3d at 904.           Id. § 74.402(a). To determine whether an expert is
The report may be informal in that the information need         “qualified on the basis of training or experience,” a court
not *746 fulfill the same requirements as the evidence          must consider whether the expert:
offered in a summary judgment proceeding or at trial.
Palacios, 46 S.W.3d at 879; Patel, 237 S.W.3d at 904.              (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
B. Dr. Blotcky’s Qualifications                                    claim; and
Within their second issue, appellants argue that the expert
and supplemental reports do not establish that Blotcky             (2) is actively practicing health care in rendering health
was qualified to render an opinion regarding a licensed            care services relevant to the claim.
professional counselor7 or nursing staff and hospital
personnel.                                                      Id. § 74.402(c).
                                                                [12]
To be qualified to provide opinion testimony regarding             Blotcky has been a licensed physician for 40 years and
whether a health care provider departed from the accepted       has practiced psychiatry for almost 35 years. He also has
standard of health care, an expert must satisfy section         been a clinical professor in the Department of Psychiatry
74.402. See Tex. Civ. Prac. & Rem.Code §                        of The University of Texas Southwestern Medical Center
74.351(r)(5)(B). Section 74.402 lists three specific            at Dallas for almost 35 years. He is board certified in
qualifications an expert witness must possess to provide        child and adolescent psychiatry and general psychiatry.
opinion testimony on how a health care provider departed        When the expert report was served, he maintained a
from accepted standards of health care. The expert must:        private practice, and approximately 66% of his patients
                                                                were children and adolescents.8 He previously served on
  (1) [be] practicing health care in a field of practice that   the managing board of directors of a psychiatric hospital,
  involves the same type of care or treatment as that           was director of the hospital’s Child and Adolescent
  delivered by the defendant health care provider, if the       Psychiatry Residency Program, and clinical director of the
  defendant health care provider is an individual, at the       hospital. He examined *747 child psychiatrists for
  time the testimony is given or was practicing that type       certification by the American Board of Psychiatry and
  of health care at the time the claim arose;                   Neurology for over ten years and served as Chair of the
                                                                Committee for Certification of Child and Adolescent
  (2) [have] knowledge of accepted standards of care for        Psychiatry for that board.
  health care providers for the diagnosis, care, or
  treatment of the illness, injury, or condition involved in    Based on Blotcky’s education, training, and experience in
  the claim; and                                                treating patients similarly situated to V.G.—an adolescent
                                                                who was seeking treatment for her psychiatric
  (3) [be] qualified on the basis of training or experience     conditions—and in working in a hospital setting, the trial
  to offer an expert opinion regarding those accepted           court acted within its discretion in concluding that
  standards of health care.                                     Blotcky is qualified to render an opinion on the standard
                                                                of care at issue in this case. See Pokluda, 283 S.W.3d at
Id. § 74.402(b) (emphases added).                               120. Similarly, Blotcky’s hospital experience qualifies
                                                                him to opine on the standards of care required for nursing
The above emphasized terms are specifically defined in          staff and hospital personnel. See Tex. Civ. Prac. &
subsections (a) and (c) of section 74.402. “Practicing          Rem.Code § 74.402(c)(2); see also Pokluda, 283 S.W.3d
health care” includes:                                          at 118–19 (“The test is whether the report and curriculum
                                                                vitae establish the witness’s knowledge, skill, experience,
  (1) training health care providers in the same field as       training, or education regarding the specific issue before
  the defendant health care provider at an accredited           the court that would qualify the expert to give an opinion
  educational institution; or                                   on that particular subject.”).
  (2) serving as a consulting health care provider and
                                                                We hold that the trial court acted within its discretion by
  being licensed, certified, or registered in the same field
                                                                denying appellants’ motions to dismiss as to Blotcky’s
  as the defendant health care provider.
                                                                qualifications, and we overrule that portion of appellants’
                                                                second issue attacking the expert and supplemental
                                                                reports on that basis.

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Kingwood Pines Hosp., LLC v. Gomez, 362 S.W.3d 740 (2011)



                                                                Burkhalter, 227 S.W.3d 221, 227 (Tex.App.-Houston [1st
                                                                Dist.] 2007, no pet.). While it is possible that a single
                                                                standard of care may apply to several defendants, generic
C. Standard of Care and Breach                                  statements that the same standard of care attaches to each
[13]
     In both issues, appellants contend that the expert and     defendant without further explanation are conclusory. See
supplemental reports do not adequately address each             Gray v. CHCA Bayshore L.P., 189 S.W.3d 855, 859
element required by subsection 74.351(r)(6) (standards of       (Tex.App.-Houston [1st Dist.] 2006, no pet.); see also
care, breach, causation and damages) because the reports        Tenet Hosps. Ltd. v. Love, 347 S.W.3d 743, 753
are conclusory as to each element and do not represent an       (Tex.App.-El Paso 2011, no pet.) (“If the standard of care
objective good faith effort to comply with the statutory        is the same for each defendant, then the report must state
definition of an expert report. We first address whether        so.”).
the reports set forth the applicable standards of care and
how appellants breached these standards. We conclude            [19]
                                                                    Blotcky’s expert report addresses standards of care
that they do not.                                               and breach as follows:

As set forth above, the two-fold purpose of an expert                  • Kingwood Pines Hospital was required to
report under section 74.351 is to inform the defendants of             “supervise[ ] closely and house [ ] safely” any
the specific conduct the plaintiff has called into question            “aggressive [or] sexually aggressive 14 year old girl
and to provide the trial court with a basis to determine               with a history of being both sexually molested and
whether or not the plaintiff’s claims have merit. Kelly v.             perpetrating sexual molestation herself so she could
Rendon, 255 S.W.3d 665, 679 (Tex.App.-Houston [14th                    not harm another patient”9 and provide treatment of
Dist.] 2008, no pet.). A report that merely states the                 patients such as V.G. “in a safe environment.” The
expert’s conclusions about the standard of care, breach,               hospital staff “breached both these standards of
and causation does not fulfill these two purposes.                     care—effective, careful supervision of a predator and
Palacios, 46 S.W.3d at 879. Rather, the expert must                    careful, effective protection of a molestation victim.”
explain the basis of his statements to link his conclusions
to the facts. Jelinek, 328 S.W.3d at 539; see also Earle v.
Ratliff, 998 S.W.2d 882, 890 (Tex.1999) (“An expert’s                • Dr. Torres10 and Bassett were required “to ensure
simple ipse dixit is insufficient to establish a matter;             that there were appropriately trained and adequate
rather, the expert must explain the basis of his statements          staffing and milieu structure” so that a “young”
to link his conclusions to the facts.”); Davis v. Spring             patient “would not be sexually molested.” They
Branch Med. Ctr., 171 S.W.3d 400, 406 (Tex.App.-                     breached “their duties to [V.G.]” by failing to do so.
Houston [14th Dist.] 2005, no pet.) (“[T]he expert report       The supplemental report further addresses these issues as
has to set out, in nonconclusory language, the expert’s         follows:
opinion about [the] three [statutorily required] elements of
the claim.”).                                                          • While they “may each have different standards of
                                                                       care in some areas,” Kingwood Pines Hospital,
[14] [15] [16] [17] [18]
                   Standard of care is defined by what an              Torres, and Bassett “share the most rudimentary
ordinarily prudent health care provider or physician                   responsibility for the safety and security of their
would have done under the same or similar                              patients ... in whatever therapeutic milieu their
circumstances. Palacios, 46 S.W.3d at 880; Strom v.                    patient is being treated. The safety and security of
Mem’l Hermann Hosp. Sys., 110 S.W.3d 216, 222                          any patient is always a most basic element in the
(Tex.App.-Houston [1st Dist.] 2003, pet. denied).                      standard of care.” The “treating team” must “provide
Identifying the standard of care is critical: whether a                additional supervision” to patients with histories “of
defendant breached his or her duty to a patient cannot be              hurting themselves and being vulnerable to being
determined absent specific information about what the                  hurt by others.” Kingwood Pines Hospital, Torres,
defendant should have done differently. Palacios, 46                   and Bassett breached this standard of care, as
S.W.3d at 880. While a “fair summary” is something less                “[V.G.] was not afforded the most basic supervision
than a full statement of the applicable standard of care and           under their care.”
how it was *748 breached, even a fair summary must set
out what care was expected, but not given. Id. When a                  • Kingwood Pines Hospital must not “allow any
plaintiff sues more than one defendant, the expert report              harm to occur to any of its patients.” The standard of
must set forth the standard of care for each defendant and             care for the hospital “is to supervise the behavior
explain the causal relationship between each defendant’s               *749 of each and every patient.” “Based on the facts
individual acts and the injury. CHCA Mainland L.P. v.                  contained in the medical records,” the hospital

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Kingwood Pines Hosp., LLC v. Gomez, 362 S.W.3d 740 (2011)



     breached its standard of care by failing to provide “a      appellants’ argument that Blotcky improperly applies the
     safe and secure environment” and “allowing” V.G.            same standard of care to multiple health care providers.
     “to be molested by another patient.”
                                                                 Conclusory Articulation of Standard of Care. Other than
     • Bassett was required to “do anything necessary” to        containing conclusory statements regarding the provision
     “insure that any patient she treats in [the] hospital ...   of a secure environment, the supervision of patients, and
     has been admitted to a safe and secure milieu” by           the prevention of harm to patients, the reports do not
     “be[ing] aware of the treatment milieu, patient             indicate what an ordinarily prudent health care provider
     population, and the structure and safety measures” in       would do under the same or similar circumstances. See
     place. She breached the standard of care by failing to      Palacios, 46 S.W.3d at 880. They merely include
     “insur[e] her patient’s basic safety using any number       Blotcky’s conclusion that appellants did not provide a
     of measures available.”                                     safe and secure environment for V.G., but do not specify
                                                                 how this should have been accomplished. They are thus
Appellants complain that Blotcky’s articulation of the           deficient in this regard. See id.
applicable standards of care is deficient in two regards,
first, that Blotcky improperly applies a single standard of      *750 Breach of the Standard of Care. Blotcky’s
care to multiple health care providers and second, that his      statements regarding breach of the standard of care, such
articulation of the standard is conclusory.                      as Bassett’s “failing to ensure that there were
                                                                 appropriately trained and adequate staffing and milieu
Single Standard of Care Applied to Multiple Health               structure such that a young girl (about whom they were
Care Providers. In the expert report, Blotcky applies a          forewarned was vulnerable) would not be sexually
standard of care to Kingwood Pines Hospital separate             molested” and “breach[ing] the standard of care by not
from the standard he applies to Bassett and Torres. He           insuring her patient’s safety using any of the number of
states that the hospital was required to supervise known         measures available ” and appellants’ failing to “provide
sexually aggressive patients and protect molestation             additional supervision” and “not afford[ing] [V.G.] ... the
victims from aggressive patients. By contrast, he applies a      most basic supervision ” are similarly conclusory.
single standard of care to Torres and Bassett—to insure          (Emphases added.) Whether a defendant breached the
that the hospital had properly trained and adequate              standard of care cannot be determined without “specific
staffing so that a patient would not be molested. In the         information about what the defendant should have done
supplemental report, Blotcky clarifies that, although “they      differently.” Id. For example, the reports do not provide
may have different standards of care in some areas,” the         information about how Bassett was to insure that hospital
hospital, Torres, and Bassett all shared the same                staff were appropriately trained and adequately staffed or
responsibility for the safety and security of their patients.    what “measures” were available to her to insure her
He further articulates the standard as to each party. The        patient’s safety. Nor do the reports indicate what kind of
hospital was required to supervise every patient. Torres         supervision by the hospital or Bassett was necessary or
was required to “admit patients only to ... facilit[ies] that    “basic” to provide a secure environment for V.G.11
provide[ ] a safe and secure environment,” “work with the        Blotcky, moreover, states that the hospital breached its
treatment team to understand his patient’s treatment and         standard of care “[b]ased on the facts contained in the
other needs,” “consult with ... staff to insure ... his orders   medical records,” but does not indicate on what “facts” he
are understood and followed” and “know the inpatient             relies to reach that conclusion.
program and how it implements a safe structure for
patients who have been either victims or perpetrators of         We conclude that Blotcky’s reports are deficient because
sexual assault.” Similarly, Bassett was required to insure       they do not adequately describe applicable standards of
her patients are being treated in a safe and secure              care or breaches of those standards by each appellant.
environment by being aware of the environment, patient
population, and safety measures taken by the hospital.

We conclude that Blotcky articulates a standard of care          D. Causation
                                                                 [20]
for each appellant, although conclusorily, as set forth               Conclusory statements also plague Blotcky’s efforts to
below. In the supplemental report, he adequately explains        satisfy the statutory element of causation. In the expert
why the standards of care overlap as to the parties, which       report, he simply states, “In medical probability, V.G.
cures any deficiencies with regard to his applying the           would be expected to suffer significant psychological
same standard to Torres and Bassett in the expert report.        damage especially from sexual molestation occurring to
See Tenet, 347 S.W.3d at 753. We thus find without merit         her in a treatment setting. The proximate cause of this was
                                                                 the hospital’s failure as well as that of ... Ms. Bassett to

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Kingwood Pines Hosp., LLC v. Gomez, 362 S.W.3d 740 (2011)



meet the standard of care.” Likewise, he states in the
                                                                 [25]
supplemental report that appellants’ breaches of the                While the nature of Gomez’s claims of malpractice
standards of care caused V.G.’s damages and “[h]ad               and V.G.’s alleged injuries may be plainly within the
[V.G.] and the other patients been properly supervised,          common knowledge of laypersons, Gomez would still
[V.G.] would not have been assaulted.”                           have to show that her claim fell within one of the pre–
                                                                 1977 categories of cases in order for res ipsa loquitur to
These reports do not adequately describe the causal              apply. See Losier, 362 S.W.3d at 642–43; Hector, 175
relationship between appellants’ failures to meet the            S.W.3d at 837. Because it does not, we find without merit
standards of care and V.G.’s injury: Blotcky provided no         Gomez’s argument that she was not required to serve an
explanation regarding how and why these failures resulted        expert report.
in the alleged molestation. Rather, he provided bare
assertions that appellants’ failure to “properly supervise”      We hold that the trial court abused its discretion by
the patients resulted in V.G.’s damages. He did not              denying the motions to dismiss because they do not
attempt to explain what constitutes proper supervision.          adequately describe the elements required by subsection
Because the reports do not contain this required                 74.351(r)(6). We thus sustain that portion of appellants’
information, they are deficient. See Jelinek, 328 S.W.3d at      issues attacking the adequacy of the expert and
539–40; Palacios, 46 S.W.3d at 879 (holding reports that         supplemental reports because they are deficient.
merely state expert’s conclusions about causation are
deficient).

                                                                 F. Opportunity to Cure
                                                                 [26]
                                                                      In their second issue, appellants assert that because of
E. Res Ipsa Loquitur                                             the reports’ deficiencies, no “expert report” has been
Gomez also contends she was not required to serve expert         timely served and this case should be dismissed. As
reports because the *751 negligence alleged in this case         discussed above, Gomez’s reports are deficient. But even
rises to the level of res ipsa loquitur.                         with these deficiencies, the trial court still has discretion
                                                                 to grant Gomez a thirty-day extension under section
[21] [22] [23]
             Res ipsa loquitur is not a cause of action          74.351(c). See Tex. Civ. Prac. & Rem.Code § 74.351(c);
separate from negligence; rather, it is a rule of evidence       Scoresby, 346 S.W.3d at 554. Gomez requested such an
by which the jury may infer negligence. Losier v. Ravi,          extension in the trial court, and the trial court has not
362 S.W.3d 639, 642–43 (Tex.App.-Houston [14th Dist.]            ruled on this request. The appellants have not shown that
2009, no pet.). It applies to situations in which two factors    Gomez is not entitled to a ruling on her request for a
are present: (1) the character of the accident is such that it   thirty-day extension under section 74.351(c).12 See Tex.
would not ordinarily occur in the absence of negligence,         Civ. Prac. & Rem.Code § 74.351(c); Scoresby, 346
and (2) the instrumentality causing the injury is shown to       S.W.3d at 554. Therefore, while we agree with appellants
have been under the management and control of the                that the reports are deficient, we conclude that this case
defendant. Id. Further, the doctrine applies only when the       should be remanded for the trial court to consider granting
nature of the alleged malpractice and injuries are plainly       a 30–day extension to cure the reports’ deficiencies under
within the common knowledge of laypersons, requiring             *752 section 74.351(c). Accordingly, we overrule
no expert testimony. Id.                                         appellants’ second issue.
[24]
    The legislature limited the applicability of res ipsa
loquitur in health care claims only to those instances in
which the doctrine had been applied by Texas appellate
courts as of August 29, 1977. See Tex. Civ. Prac. &                                      Conclusion
Rem.Code § 74.201. The three recognized areas in which
res ipsa loquitur applies to health care claims are              We reverse the trial court’s order denying the motions to
negligence in the use of mechanical instruments,                 dismiss filed by appellants and remand this cause to the
operating on the wrong body part, and leaving surgical           trial court to consider whether a 30–day extension to
instruments or sponges inside the body. Losier, 362              allow Gomez to address the deficiencies in the reports is
S.W.3d at 642–43 (citing Haddock v. Arnspiger, 793               appropriate.
S.W.2d 948, 951 (Tex.1990)); Hector v. Christus Health
Gulf Coast, 175 S.W.3d 832, 837 (Tex.App.-Houston
[14th Dist.] 2005, pet. denied).


                 © 2015 Thomson Reuters. No claim to original U.S. Government Works.                                    6
Kingwood Pines Hosp., LLC v. Gomez, 362 S.W.3d 740 (2011)




Footnotes
1     Tex. Civ. Prac. & Rem.Code §§ 74.001–.507. All references to the Act are to these provisions.

2     The other patient, also a minor, allegedly got into bed with V.G., “made out with her,” touched her private parts, left visual
      marks (hickeys) on her, and threatened to beat her up if she told anyone.
3     The affidavit is not in the record, but the expert reported prepared by Dr. Mark Blotcky describes the affidavit and states that
      Blotcky relied on the affidavit in reaching his conclusions.
4     Gomez sued Kingwood Pines Hospital, LLC; Horizon Health Corporation; Psychiatric Solutions, Inc.; Psychiatric Solutions,
      P.C.; Fernando Guillermo Torres, M.D. and Yolanda Bassett. Gomez alleged that Kingwood Pines Hospital is owned by the
      other corporate defendants. Only Kingwood Pines Hospital, Horizon Health Corporation, Psychiatric Solutions, Inc., and
      Bassett filed this appeal.
5     The supplemental report was served on June 24, 2010, the 120th day after Gomez filed suit, so both reports were timely under
      the Act. See Tex. Civ. Prac. & Rem.Code § 74.351(a).
6     Kingwood Pines Hospital, Horizon Health Corporation, and Psychiatric Solutions, Inc. jointly filed their objections and motion
      to dismiss, and Bassett filed her objections and motion to dismiss separately. All of appellants’ objections were based on the
      same grounds.
7     Bassett is a licensed professional counselor.

8     We assume this is still the case, but the record reflects only Blotcky’s qualifications when the report was served.

9     We note that Blotcky bases his opinion on Gomez’s affidavit stating that the patient who allegedly molested V.G. “was known
      by the hospital staff to be aggressive, to have been sexually abused and to be a sexual molester.” We assume without deciding
      the accuracy of this allegation because we are confined to the four corners of the expert report in our consideration of its
      adequacy. See Palacios, 46 S.W.3d at 878. While an expert may rely on a statement that otherwise would not be admissible in
      evidence in formulating his opinions, see Gannon v. Wyche, 321 S.W.3d 881, 890–91 (Tex.App.-Houston [14th Dist.] 2010, pet.
      denied), it is unclear how Gomez obtained this information. Cf. id. at 892 (“[A]ll that is required is that [the] expert report
      informs the defendants of the specific conduct the plaintiffs have called into question and provides a basis for the trial court to
      conclude that the claims have merit.”).
10    As set forth above, Torres is a defendant in the underlying case, but not an appellant.

11    Gomez argues that this case is akin to Russ v. Titus Hospital District, 128 S.W.3d 332 (Tex.App.-Texarkana 2004, pet. denied),
      which held that an expert report was sufficient relating to a claim filed by a mentally ill patient who was allowed access to an
      unsecured window out of which she fell. Id. at 344. But the expert report in that case specifically outlined that the standard of
      care required a suicidal patient not to be placed in a room with unlocked windows and what steps the hospital, doctors, and
      nurses should have taken to secure the windows, id. at 342, whereas the reports in this case merely state that V.G. should have
      been placed in a secure environment where patients were supervised, without specifying how this should have been
      accomplished.
12    Even if appellants had argued that Gomez’s reports amount to no report at all and even if it were appropriate to address that
      argument at this juncture, we would still conclude that the reports satisfy the minimal standard in Scoresby. See Scoresby, 346
      S.W.3d at 557.




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
Kocurek v. Colby, Not Reported in S.W.3d (2014)




                                                            Colby was under Kocurek’s care for approximately two
                                                            months after sustaining injuries on the job; his primary
                2014 WL 4179454
  Only the Westlaw citation is currently available.         medical complaints were numbness and pain in his left
                                                            hip and tingling in his right hand. According to Colby,
  SEE TX R RAP RULE 47.2 FOR DESIGNATION                    Kocurek performed no physical examination on him and
         AND SIGNING OF OPINIONS.                           instead had only oral conferences with him. Further,
                                                            Kocurek indicated to him orally that she would refer him
           MEMORANDUM OPINION                               to a specialist, but never did.
            Court of Appeals of Texas,
                     Austin.                                After receiving treatment from Kocurek, Colby moved
                                                            out of state and transferred his care to an orthopedic
  Kristen KOCUREK, M.D., and Texas MedClinic,               specialist there. Shortly thereafter, however, Colby
                   Appellants                               returned to see Kocurek, claiming new symptoms.
                       v.                                   According to Colby’s petition, at that visit Kocurek again
           Anthony D. COLBY, Appellee.                      failed to examine him physically, ignored his symptoms,
                                                            and displayed an inappropriate demeanor toward him.
       No. 03–13–00057–CV. | Aug. 22, 2014.
                                                            Colby filed suit against Kocurek and Texas MedClinic,2
From the District Court of Travis County, 419th Judicial    alleging departures from accepted standards of medical
District No. D–1–GN–12–000186, Tim Sulak, Judge             care that proximately resulted in injuries to him. Colby
Presiding.                                                  alleged that Kocurek failed to meet the applicable
                                                            standards of care in failing to (1) perform a thorough
Attorneys and Law Firms
                                                            examination of him; (2) secure appropriate treatment for
Anthony D. Colby, Austin, TX, pro se appellee.              him; (3) properly diagnose and treat him; (4) refer him to
                                                            or consult with a specialist; and (5) monitor his condition.
Laura A. Macom, George F. Evans Jr., Brett B. Rowe,         Colby     also    made      a    claim     for     fraudulent
Evans & Rowe, PC, San Antonio, TX, for appellant.           misrepresentation/common-law         fraud     relating    to
                                                            Kocurek’s documentation of his injuries and treatment. In
Before Chief Justice JONES, Justices GOODWIN and            addition, Colby claimed that Kocurek’s actions caused (1)
FIELD.                                                      a pinched nerve in his right hand to become entrapped, (2)
                                                            his left hip to develop bursitis and soft-tissue nerve
                                                            damage, (3) limited range of motion in his hip, as well as
                                                            constant pain and nerve damage that will worsen with
                                                            age, and (4) a need for surgery in his right hand due to
                                                            numbness, tingling, and serious pain.
             MEMORANDUM OPINION
                                                            After filing suit, Colby served appellants with the expert
SCOTT K. FIELD, Justice.                                    report of Dr. Ronald Devere, a neurologist, to comply
                                                            with the expert-report requirement of section 74.351 of
*1 Appellants Kristen Kocurek, M.D., and Texas
                                                            the Texas Civil Practice and Remedies Code. See id.
MedClinic appeal from the trial court’s denial of their
                                                            Appellants then filed a motion to dismiss the suit,
motion to dismiss appellee Anthony D. Colby’s1 suit for
                                                            claiming that Devere’s expert report failed to satisfy the
medical malpractice based on Colby’s alleged failure to
                                                            statutory elements under section 74.351. After a hearing,
provide an adequate expert report as required by chapter
                                                            the trial court agreed with appellants that Devere’s expert
74 of the Texas Civil Practice and Remedies Code. See
                                                            report was deficient, but granted Colby a 30–day
Tex. Civ. Prac. & Rem.Code § 74.351. We will reverse
                                                            extension to cure the deficiencies. In response to the trial
the trial court’s judgment and remand for dismissal and a
                                                            court’s ruling, Colby served appellants with an amended
determination of attorneys’ fees.
                                                            report from Devere. Appellants again filed a motion to
                                                            dismiss, contending that Devere’s amended report
                                                            remained deficient. After a hearing, the trial court denied
                                                            appellants’ motion to dismiss.3 Appellants then filed this
 FACTUAL AND PROCEDURAL BACKGROUND                          interlocutory appeal. See id. § 51.014(a)(9).



              © 2015 Thomson Reuters. No claim to original U.S. Government Works.                                  1
Kocurek v. Colby, Not Reported in S.W.3d (2014)



                       ANALYSIS                                dismiss the plaintiff’s claims. See id. § 74.351(a), (b). In
                                                               two appellate issues, appellants contend that the trial court
Jurisdiction                                                   abused its discretion in denying their motion to dismiss
*2 In response to appellants’ appeal, Colby contends that      because (1) Devere is not a qualified expert to provide a
this Court lacks jurisdiction over the appeal. Colby           report in this case, and (2) Devere’s report is conclusory
appears to argue that once a trial court grants a 30–day       with regard to the element of causation. We will begin
extension for a plaintiff to file an amended report and the    with analysis of whether Devere’s report adequately
plaintiff files an amended report, no appeal may be taken      demonstrates causation.
with regard to the trial court’s ruling on the adequacy of
the amended report. Colby argues that, in any event, a         *3 When a party challenges the adequacy of an expert
party may not appeal the denial of a motion to dismiss         report, the trial court should sustain the objection only if it
relating to the adequacy of the expert report. In support of   determines that the report does not represent an “objective
his argument, Colby relies on this Court’s opinion in          good faith effort to comply with the definition of an
Academy of Oriental Med., L.L.C. v. Andra, 173 S.W.3d          expert report.” Id. § 74.351(l ). To constitute a good-faith
184 (Tex.App.-Austin 2005, no pet.). Our opinion in            effort, the report must inform the defendant of the specific
Andra, however, does not support Colby’s position. In          conduct called into question and provide a basis for the
Andra, the defendant filed an interlocutory appeal of a        trial court to determine whether the claims have merit.
denial of a motion to strike an expert report, not a motion    American Transitional Care Ctrs. of Tex., Inc. v.
to dismiss as in this case. Id. at 186. Because of the         Palacios, 46 S.W.3d 873, 879 (Tex.2001). A report does
unique procedural posture in the Andra case, we                not fulfill these purposes if it fails to address the standard
concluded that the motion for relief was a motion under        of care, breach of the standard of care, and causation, or if
section 74.351(l ), for which there is no provision for an     it merely states the expert’s conclusions regarding these
interlocutory appeal when denied. Id. at 189; see Tex.         elements. Id. The expert must link his conclusions to the
Civ. Prac. & Rem.Code § 51.014(a)(10) (allowing                facts of the case. Bowie Mem’l Hosp. v. Wright, 79
interlocutory appeal of order granting relief under section    S.W.3d 48, 52 (Tex.2002). We review a trial court’s
74.351(1 )). That is not the type of motion appellants filed   denial of a motion to dismiss under section 74.351 under
in this case.                                                  an abuse-of-discretion standard. Palacios, 46 S.W.3d at
                                                               878. However, “if an expert report contains only
Appellants filed a motion to dismiss and request for           conclusions about the statutory elements, the trial court
attorneys’ fees under section 74.351(b). See Tex. Civ.         has ‘no discretion but to conclude ... that the report does
Prac. & Rem.Code § 74.351(b) (providing that physician         not represent a good-faith effort’ to satisfy the statute.”
provider may move to dismiss when sufficient expert            Smith v. Wilson, 368 S.W.3d 574, 577 (Tex.App.-Austin
report not served and 120–day deadline has expired). The       2012, no pet.) (quoting Palacios, 46 S.W.3d at 877, 880).
denial of a motion to dismiss and request for attorneys’       To perform its review, the trial court must look only to the
fees under section 74.351(b) is subject to interlocutory       four corners of the report itself. Palacios, 46 S.W.3d at
appeal under section 51.014(a)(9) of the Texas Civil           878.
Practice and Remedies Code. Lewis v. Funderburk, 253
S.W.3d 204, 208 (Tex.2008). Colby’s jurisdictional             Devere’s eight-page report contains a paragraph on his
complaint is overruled, and we now turn to the merits of       qualifications, lists the issues he is reviewing and the
this appeal.                                                   materials used in that review, and states the background
                                                               facts. The report then turns to a discussion of the
                                                               standards of care for Kocurek’s treatment of Colby and a
                                                               discussion applying those standards of care to the facts
Sufficiency of Expert Report                                   presented. Finally, it contains a conclusion section. The
In a health-care-liability claim, a claimant must provide      report contains some detail of Colby’s complaints, the
each defendant with an expert report and curriculum vitae      standards of care applicable to those complaints, and an
for each expert within 120 days of filing suit. Tex. Civ.      opinion as to whether Kocurek breached the applicable
Prac. & Rem.Code § 74.351(a). The expert report must           standards of care. Devere’s report, however, contains
summarize the expert’s opinions “regarding applicable          nearly no discussion of causation to link Colby’s alleged
standards of care, the manner in which the care rendered       harm to Kocurek’s actions.
by the physician or health care provider failed to meet the
standards, and the causal relationship between that failure    Looking only to the four corners of the report, the
and the injury, harm, or damages claimed.” Id. §               following are the only statements from Devere’s report
74.351(r)(6). After an expert report is filed, the defendant   that could potentially be considered as touching on
may object to the sufficiency of the report and move to        causation:
               © 2015 Thomson Reuters. No claim to original U.S. Government Works.                                      2
Kocurek v. Colby, Not Reported in S.W.3d (2014)



     • “Based on Dr. Kocurek’s failure to act, secure         alleged breaches of the standards of care to any one of
     treatment and properly execute a referral for Mr.        Colby’s injuries.
     Colby, his condition has worsened and he has
     suffered tremendously and unnecessarily.” (from          An expert report must explain, to a reasonable degree,
     Background Facts section of report)                      how and why the alleged breach caused the injury based
                                                              on the facts presented. See Jelinek v. Casas, 328 S.W.3d
     • “By not making this referral [to a specialist],        526, 539–40 (Tex.2010). The closest Devere’s report
     Defendant, Dr. Kocurek, deceived Mr. Colby,              comes to providing a causal link is in his statement that
     created anxiety in Mr. Colby by making him think         “[b]ased on [Kocurek’s] actions or failures to act, Mr.
     that a referral to a specialist was coming when it was   Colby suffered and [Kocurek’s] actions or failures to act
     not and resulted in a delay in Mr. Colby receiving       were a direct cause of worsening pain and numbness to
     any needed care, treatment or therapy that might         Mr. Colby. Her violations of the standard of care resulted
     have been recommended by a specialist, if that           in a delay of Mr. Colby receiving appropriate care for his
     referral had been made.” (from Application of            injuries, and the worsening of his symptoms.” This
     Standard of Care section)                                statement, however, never identifies which breach of
                                                              which standard of care by Kocurek led to a worsening of
     *4 • “In my expert opinion, the Defendant violated       Colby’s pain and numbness. Further, the statement fails to
     the applicable standard of care for physician’s [sic]    identify how any specific injury sustained by Colby
     operating in the State of Texas based on the reasons     would have been prevented or lessened had he received
     mentioned above. Based on her actions or failures to     “appropriate care” sooner. Devere’s statement that
     act, Mr. Colby suffered and her actions or failures to   referring Colby to a specialist might have made a
     act were a direct cause of worsening pain and            difference in Colby’s condition—“treatment or therapy
     numbness to Mr. Colby. Her violations of the             that might have been recommended by a specialist, if that
     standard of care resulted in a delay of Mr. Colby        referral had been made”—amounts to nothing more than
     receiving appropriate care for his injuries, and the     speculation. See id. at 539 (concluding that statement in
     worsening of his symptoms.” (from the Conclusion         expert report that breach of standard of care “in
     section)                                                 reasonable medical probability resulted in [injury]” was
                                                              insufficient). The report does not explain what treatment
     • “Based on these worsening injuries, Mr. Colby has      or therapy a specialist would have provided had Colby
     endured and will continue to endure significant pain,    been referred earlier or how such treatment or therapy
     numbness and incapacity until he can receive the         would have prevented Colby’s injuries. As a result, the
     appropriate treatment to correct these conditions.”      statements in Devere’s report regarding causation amount
     (from the Conclusion section)                            to “no more than a bare assertion that [Kocurek’s] breach
                                                              resulted in increased pain and suffering.” See id. at 540.
The issue is whether these statements, which appear to be
the only attempts made at establishing causation in
                                                              *5 This Court has consistently required more than what
Devere’s report, are sufficient to meet the requirements of
                                                              Devere has provided in terms of expert testimony on
section 74.351. We conclude they are not.
                                                              causation in the context of section 74.351. See Smith, 368
                                                              S.W.3d at 577–78 (holding that expert report failed to
The problem with Devere’s report is that it fails to show,
                                                              show how doctor’s alleged breach of standard of care
within its four corners, what specific actions Kocurek did
                                                              caused patient to commit suicide); Constancio v. Bray,
or did not take, or could have taken, that would have
                                                              266 S.W.3d 149, 157–58 (Tex.App.-Austin 2008, no pet.)
prevented Colby’s symptoms or injuries. See Tex. Civ.
                                                              (holding that expert report that alleged that breach of
Prac. & Rem.Code § 74.351(r)(5) (expert report must
                                                              standard of care by doctor caused patient’s death is
include “fair summary” or expert’s opinion as to “causal
                                                              insufficient when report did not explain how increased
relationship” between medical defendant’s failure to meet
                                                              monitoring of patient, detection of hypoxemia, and other
standard of care and injury). Nowhere in the report does
                                                              actions would have prevented patient’s death); Perez v.
Devere actually state what specific violation of which
                                                              Daughters of Charity Health Servs. of Austin, No. 03–08–
standard of care led to a particular health problem of
                                                              00200–CV, 2008 WL 4531558, at *4 (Tex.App.-Austin
Colby’s. The report lists five standards of care that
                                                              Oct. 10, 2008, no pet.) (mem.op.) (concluding expert
Kocurek allegedly violated in her treatment of Colby and
                                                              report insufficient on causation because it did not link
the specific ways Devere believes Kocurek violated those
                                                              hospital’s actions to patient’s death or any cause of death
standards of care. Devere, however, did not provide facts
                                                              and did not identify any specific injury that would have
that would explain a causal link between any of those
                                                              been prevented had hospital complied with standard of
                                                              care). To find Devere’s report sufficient on causation, we
               © 2015 Thomson Reuters. No claim to original U.S. Government Works.                                 3
Kocurek v. Colby, Not Reported in S.W.3d (2014)



would have to make inferences from beyond the four
corners of his report; this we are not allowed to do.

Based on the record before us and the four corners of the
expert report, we are left with no choice but to conclude                                         CONCLUSION
that the report does not provide an adequate causal link
between Kocurek’s alleged shortcomings and Colby’s                         We reverse the trial court’s order denying appellants’
symptoms or injuries. Because the report is insufficient as                motion to dismiss. We remand the cause to the trial court
to Kocurek, it is also insufficient as to Texas MedClinic,                 for a determination of attorneys’ fees, see Tex. Civ. Prac.
which Colby sued solely on the basis of its alleged                        & Rem.Code § 74.351(b), and for entry of a final order
vicarious liability for Kocurek’s actions. See Smith, 368                  dismissing Colby’s claims against appellants.
S.W.3d at 579. Accordingly, we sustain the appellants’
second issue on appeal.4

Footnotes
1      Colby represents himself in this appeal as he did in the trial court proceedings.

2      Colby’s claims against Texas MedClinic were solely for vicarious liability arising from Kocurek’s actions.

3      The trial judge who denied appellants’ motion to dismiss Devere’s amended expert report was not the same trial judge who
       ruled that Devere’s expert report was deficient in the context of appellants’ first motion to dismiss.
4      Because appellants’ second issue is dispositive of this appeal, we need not reach appellants’ first appellate issue challenging the
       trial court’s conclusion that the expert report adequately demonstrated Devere’s qualifications as an expert.




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.                                                     4
Kuykendall v. Dragun, Not Reported in S.W.3d (2006)




                    2006 WL 728068
      Only the Westlaw citation is currently available.
                                                                          MEMORANDUM OPINION
      SEE TX R RAP RULE 47.2 FOR DESIGNATION
             AND SIGNING OF OPINIONS.                        RICK STRANGE, Justice.
              MEMORANDUM OPINION                             *1 This is a medical malpractice action. Michael J.
               Court of Appeals of Texas,                    Dragun, M.D. and West Texas Urology filed a motion to
                       Eastland.                             dismiss contending that Kelly and Terry Kuykendall’s
                                                             expert report did not satisfy the requirements of
        Kelly KUYKENDALL and Husband, Terry                  TEX.REV.CIV. STAT. art. 4590i, § 13.01 (2001).1 The
                 Kuykendall, Appellants                      trial court granted appellees’ motion to dismiss and
                            v.                               denied appellants’ request for an extension of time to file
        Michael J. DRAGUN, M.D. and West Texas               an amended report. We find no error and affirm.
                    Urology, Appellees.

         No. 11-05-00230-CV. | March 23, 2006.


Synopsis                                                                               Facts
Background: Patient filed medical malpractice action
                                                             Kelly Kuykendall underwent a bilateral salphingo-
against surgeon who was brought in during surgery to
                                                             oophorectomy and a laparoscopic-assisted vaginal
address complications from perforation of patient’s
                                                             hysterectomy on June 24, 2002. The surgery was
bladder. The 142nd District Court, Midland County,
                                                             performed by Dr. Brady Locke. Kelly’s bladder was
granted surgeon’s motion to dismiss. Patient appealed.
                                                             perforated during the surgery. Dr. Dragun was contacted
                                                             and was asked to repair the injury. He performed a
                                                             laparotomy and was assisted in the procedure by Dr.
Holdings: The Court of Appeals, Rick Strange, J., held       Locke.
that
                                                             The original surgery was scheduled for two hours.
[1]
    expert report submitted by patient did not satisfy       Because of the bladder complication, the surgery lasted
statutory requirements, and                                  six hours. Appellants allege that Kelly’s peripheral nerves
                                                             were damaged during the extended surgery.
[2]
   trial court did not abuse its discretion when it denied
patient’s request for a 30-day grace period to amend         Appellants filed a medical malpractice action against Dr.
report.                                                      Dragun and other health care providers on May 29, 2003.
                                                             They timely filed the expert report and curriculum vitae
                                                             of Dr. Mearl A. Naponic. Appellees filed a motion to
Affirmed.                                                    dismiss, contending the expert report did not satisfy the
                                                             requirements of Article 4590i, section 13.01. Appellants
                                                             responded that Dr. Naponic’s expert report was sufficient
On Appeal from the 142nd District Court, Midland             and, alternatively, requested an Article 4590i, section
County, Texas, Trial Court Cause No. CV45114.                13.01(g) thirty-day extension. The trial court conducted a
                                                             hearing and granted appellees’ motion to dismiss and
Attorneys and Law Firms                                      denied appellants’ request for an extension.

Rick Dunbar, for Appellants.

Jack Tidwell, for Appellees.
                                                                                       Issues
Panel consists of WRIGHT, C.J., and McCALL, J., and
STRANGE, J.                                                  In two issues, appellants contend that their expert report
                                                             satisfies the requirements of

                 © 2015 Thomson Reuters. No claim to original U.S. Government Works.                              1
Kuykendall v. Dragun, Not Reported in S.W.3d (2006)



or, alternatively, that the trial court abused its discretion      not fulfill these two purposes. Nor can a report meet
by denying their request for an Article 4590i, section             these purposes and thus constitute a good-faith effort if
13.01(g) thirty-day grace period to amend their report.            it omits any of the statutory requirements. However, to
                                                                   avoid dismissal, a plaintiff need not present evidence in
                                                                   the report as if it were actually litigating the merits. The
                                                                   report can be informal in that the information in the
                                                                   report does not have to meet the same requirements as
                    Standard of Review                             the evidence offered in a summary-judgment
                                                                   proceeding or at trial. (citations omitted)
A trial court’s decision to dismiss a lawsuit because of an
inadequate expert report is reviewed under an abuse of           Courts have identified additional considerations when
discretion standard. Am. Transitional Care Ctrs. of Tex.,        multiple defendants are sued. In that instance, the expert
Inc. v. Palacios, 46 S.W.3d 873, 878 (Tex.2001). A trial         report must provide an explanation of how each defendant
court’s decision to grant or deny an Article 4590i, section      specifically breached the applicable standard of care and
13.01(g) grace period is also reviewed under an abuse of         how that breach caused or contributed to the cause of
discretion standard. Walker v. Gutierrez, 111 S.W.3d 56,         injury. Taylor v. Christus Spohn Health Sys. Corp., 169
62 (Tex.2003).                                                   S.W.3d 241, 244 (Tex.App.-Corpus Christi 2004, no pet.).

A trial court abuses its discretion if it acts in an arbitrary   That portion of Dr. Naponic’s expert report which
or unreasonable manner without reference to any guiding          addressed Dr. Dragun’s actions contained the following
rules or principles. Downer v. Aquamarine Operators,             language:
Inc., 701 S.W.2d 238, 241-42 (Tex.1985). A reviewing
court is not allowed to substitute its judgment for that of        On June 24, 2002, Kelly Kuykendall underwent
the trial court when reviewing a discretionary decision.           bilateral salphingo-oophorectomy, as well as a
Flores v. Fourth Court of Appeals, 777 S.W.2d 38, 41-42            laparoscopic assisted vaginal hysterectomy. Theses
(Tex.1989). The mere fact that a trial court may decide a          [sic] surgical treatments were performed in an effort to
matter within its discretionary authority in a different           relieve pre-operative symptoms of pelvic pain,
manner than an appellate court in a similar circumstance           dysmenorrhea and menorrhagia and failed medical
does not demonstrate that an abuse of discretion has               management of same. The initial procedure scheduled
occurred. Downer, 701 S.W.2d at 241-42.                            for two hours was performed by Dr. Brady Locke and
                                                                   was complicated by an intra-operative injury to the
                                                                   bladder. The perforation of the bladder necessitated
                                                                   surgical repair; and, thus this two hour surgery evolved
                                                                   into a six hour surgery, involving a laparotomy to
    Does Dr. Naponic’s Report Satisfy Article 4590i?               repair an incision into the bladder of approximately
                                                                   eight to nine centimeters. This second surgery was
*2 [1] In Palacios, 46 S.W.3d at 878-79, the supreme court
                                                                   performed by Dr. Michael Dragun and assisted by Dr.
outlined the criteria for evaluating the efficiency of expert
                                                                   Brady Locke.
reports. Specifically, the court wrote:
                                                                   The standard of care for such procedures as described
  [T]he expert report must represent only a good-faith
                                                                   above, necessarily require[s] that the peripheral nerves
  effort to provide a fair summary of the expert’s
                                                                   in and adjacent to the operative site be identified and
  opinions. A report need not marshal all the plaintiff’s
                                                                   protected. This is particularly true when a self-retaining
  proof, but it must include the expert’s opinion on each
                                                                   retractor is used and the length of the surgery is
  of the elements identified in the statute. In setting out
                                                                   prolonged. Complications, including nerve injuries,
  the expert’s opinions on each of those elements, the
                                                                   from self-retaining retractors are well-known and well-
  report must provide enough information to fulfill two
                                                                   described in the relevant literature. Failing to properly
  purposes if it is to constitute a good-faith effort. First,
                                                                   pad the self-retaining retractor, failure to adequately
  the report must inform the defendant of the specific
                                                                   position the patient and/or leaning on the patient during
  conduct the plaintiff has called into question. Second,
                                                                   this prolonged surgery are the most likely cause of the
  and equally important, the report must provide a basis
                                                                   intra-operative injuries and complications suffered by
  for the trial court to conclude that the claims have
                                                                   Kelly Kuykendall and are below the accepted standard
  merit.
                                                                   of care for these procedures. As both Dr. Locke and Dr.
  A report that merely states the expert’s conclusions             Dragun performed the bladder repair, they shared the
  about the standard of care, breach, and causation does

                © 2015 Thomson Reuters. No claim to original U.S. Government Works.                                      2
Kuykendall v. Dragun, Not Reported in S.W.3d (2006)



  responsibility to protect Kelly Kuykendall against this         The supreme court’s holding in Palacios, 46 S.W.3d at
  injury.                                                         873, that a trial court’s decision to grant a motion to
                                                                  dismiss is subject to an abuse of discretion review,
*3 A fair summary is something less than a full statement         mandates that we provide trial courts with some deference
of the applicable standard of care and how it was                 when determining what constitutes a good faith effort to
breached. A fair summary must set out what care was               comply with the statute in a particular case. Because Dr.
expected but not given. Palacios, 46 S.W.3d at 880                Naponic’s report failed to provide specific information
(“[w]hether a defendant breached his or her duty to a             concerning Dr. Dragun’s conduct, because he assumed
patient cannot be determined absent specific information          the two doctors were equally responsible for Kelly’s
about what the defendant should have done differently”).          injury, and because Dr. Naponic relied upon assumptions
An expert report must show causation beyond mere                  to determine the “most likely” cause of her injury, we
conjecture. Bowie Mem’l Hosp. v. Wright, 79 S.W.3d 48,            hold the trial court did not abuse its discretion when it
52 (Tex.2002). Knowing what specific conduct the                  granted appellees’ motion to dismiss. Appellants’ first
plaintiff’s expert has called into question is critical to both   issue is overruled.
the defendant’s ability to prepare for trial and the trial
court’s ability to evaluate the viability of the plaintiff’s
claims. Palacios, 46 S.W.3d at 876-77. Dr. Naponic’s
report does not provide this level of information because
his analysis is premised on several assumptions and               Were Appellants Entitled To A Thirty-Day Extension To
because he fails to distinguish between the actions of Dr.                        Amend Their Report?
Locke and Dr. Dragun.
                                                                  *4 [2] Article 4590i, section 13.01(d) required claimants to
Dr. Naponic’s analysis is similar to a res ipsa approach.         furnish an expert report within 180 days after the claim
Because Kelly suffered from peripheral nerve damage and           was filed. Article 4590i, section 13.01(g) gave trial courts
because the relevant literature documents a connection            the discretion to provide a thirty-day grace period to file
between that injury and the failure to properly pad self-         an amended report if the failure to timely file an adequate
retaining retractors, improperly positioning the patient, or      report “was not intentional or the result of conscious
leaning on the patient, Dr. Naponic assumes that these are        indifference but was the result of an accident or mistake.”
the “most likely” causes of her injury. He assumes further
that Dr. Locke and Dr. Dragun are collectively                    In their response to appellees’ motion to dismiss,
responsible for one or more of these actions.2                    appellants included an alternative request for a thirty-day
                                                                  extension based upon their belief that Dr. Naponic’s
There are several problems with this approach. First, Dr.         report was adequate and, if not, contended that their
Naponic’s report does not document that a self-retaining          failure to provide an adequate report was due to accident
retractor was even used or, if so, by whom. This is not a         or mistake and not an intentional act or conscious
question of mere semantics. Dr. Dragun cannot be held             indifference. Appellants’ request was supported by the
responsible for any actions taken before he arrived in the        testimony of their trial counsel who stated that he
operating room, nor can he be held responsible for                contacted Dr. Naponic based upon the referral of a
improperly using equipment that was never utilized.               general surgeon, that he provided Dr. Naponic with the
Knowing what Dr. Naponic alleges Dr. Locke did during             relevant records and caselaw, that they discussed this
the initial portion of the procedure and what Dr. Naponic         case, that Dr. Naponic indicated that it would be difficult
alleges happened during Dr. Dragun’s portion of the               to distinguish from the medical records which defendant
procedure are vital.                                              caused the intraoperative injuries absent an admission, but
                                                                  that Dr. Naponic informed him that all the health care
Second, even assuming Dr. Dragun used a self-retaining            providers shared a duty to protect Kelly. Counsel testified
retractor, Dr. Naponic did not document how it was                that he relied upon Dr. Naponic, who was a board-
padded or how it should have been padded. Third, the              certified obstetrician and gynecologist, to provide him
report does not document how Kelly was positioned at              with a sufficient report and that he believed Dr. Naponic
any point in time during her surgical procedure, nor how          had done so.
she should have been positioned during Dr. Dragun’s
procedure. Finally, the report provides no support for his        The Texas Supreme Court faced a similar situation in
hypothesis that Dr. Dragun leaned on Kelly beyond his             Walker, 111 S.W.3d at 56. There, as here, claimant’s
contention that this is frequently the cause of her type of       counsel mistakenly believed that his expert’s report was
injury.                                                           sufficient. The supreme court comprehensively reviewed
                                                                  intermediate court decisions on

                © 2015 Thomson Reuters. No claim to original U.S. Government Works.                                     3
Kuykendall v. Dragun, Not Reported in S.W.3d (2006)



13.01(g) extensions, finding that some courts were                        records would contain information on the surgical
erroneously holding that any mistake of law was                           equipment utilized, the manner in which the patient was
sufficient to support an extension while others were                      positioned, and the surgery conducted. Because two
impermissibly applying a standard that precluded an                       different doctors operated on Kelly, their respective
extension because of a mistake of law. Id. at 63-64.                      records would provide information unique to each doctor
According to the supreme court, some-but not all-                         and their procedures. The trial court could have
mistakes of law may negate a finding of intentional                       reasonably concluded that in this case appellants had the
conduct or conscious indifference and, therefore, support                 ability to distinguish between the actions of the two
an extension. The distinction turns on the knowledge and                  doctors and determine what surgical equipment and
acts of the claimant. Id. at 64.                                          procedures were utilized and that their failure to do so
                                                                          precluded a thirty-day grace period.
The supreme court concluded that counsel’s belief that his
expert’s report was sufficient, despite clear statutory                   The cases decided since Walker indicate that the trial
requirement to the contrary, “does not establish a                        court’s decision to grant or deny a thirty-day grace period
‘sufficient excuse’ necessary to support a finding that a                 when counsel argues that his mistaken belief that a report
party made a mistake of law.” Id. at 64-65. This follows                  was sufficient constitutes a mistake of law, are afforded
because a medical malpractice claimant is charged with                    great deference due to their individual factual patterns.
knowledge of Article 4590i, section 13.01 and its                         Compare In re Zimmerman, 148 S.W.3d 214, 217
requirements. Id. Appellants distinguish Walker by                        (Tex.App.-Texarkana 2004, orig. pro-ceeding) (affirming
alleging it involved a report which was absent the relevant               the trial court’s decision to grant a thirty-day grace period
standard of care and how the defendants breached that                     based upon mistake of law) with Sandles v. Howerton,
standard. Appellants contend that, if their report is                     163 S.W.3d 829, 838 (Tex.App.-Dallas 2005, no
inadequate, it is not because of the absence of a critical                pet.)(affirming the trial court’s decision to not grant a
element but simply insufficient information.                              thirty-day grace period based upon a mistake of law).

*5 The trial court is best positioned to assess what                      We cannot say that the trial court abused its discretion
appellants knew and to evaluate their actions. The extent                 when it denied appellants’ request for a thirty-day grace
and quality of the information available to a medical-                    period. Appellants’ second issue is overruled.
malpractice claimant will vary from case to case. That
information directly impacts the report a good faith effort
will produce. We have found that the trial court did not
abuse its discretion when it held Dr. Naponic’s report was
insufficient because Dr. Naponic failed to distinguish                                              Conclusion
between the actions of the two doctors and because his
analysis relies heavily on assumption. During oral                        The trial court did not abuse its discretion when it granted
argument, appellants’ counsel pointed out that physicians                 appellees’ motion to dismiss and denied appellants’
are unlikely to admit to errors in their medical records                  request for a thirty-day grace period. The trial court’s
and, therefore, that one cannot expect doctors to                         judgment is affirmed.
affirmatively state that they leaned on their patient during
surgery. Even if we accept this as true, the medical

Footnotes
1      Although applicable to this case, Article 4590i was repealed effective September 1, 2003; and the subject matter is now
       governed by TEX. CIV. PRAC. & REM.CODE ANN. § 74.351 (Vernon Supp.2005).
2      In Palacios, the supreme court noted that, as a general rule, res ipsa loquitur does not apply in medical malpractice cases. 46
       S.W.3d at 880. Consequently, an expert report must do more than simply assume that a health care provider is responsible for
       any surgical complication.




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.                                                       4
Kuykendall v. Dragun, Not Reported in S.W.3d (2006)




             © 2015 Thomson Reuters. No claim to original U.S. Government Works.   5
McKenna Memorial Hosp., Inc. v. Quinney, Not Reported in S.W.3d (2006)




                                                               Before Chief Justice LAW, Justices PATTERSON and
                2006 WL 3246524
                                                               PEMBERTON.
  Only the Westlaw citation is currently available.

  SEE TX R RAP RULE 47.2 FOR DESIGNATION
         AND SIGNING OF OPINIONS.

            MEMORANDUM OPINION                                               MEMORANDUM OPINION
             Court of Appeals of Texas,
                      Austin.                                  JAN P. PATTERSON, Justice.
   McKENNA MEMORIAL HOSPITAL, INC.; and                        *1 This accelerated interlocutory appeal arises out of a
     Robert Donovan Butter, D.O., Appellants                   health-care liability claim. Appellants McKenna
                      v.                                       Memorial Hospital, Inc., and Robert Donovan Butter,
          Sandra QUINNEY, Appellee.                            D.O., appeal the trial court’s denial of their motions to
                                                               dismiss appellee Sandra Quinney’s lawsuit. They urge
        No. 03-06-00119-CV. | Nov. 10, 2006.                   that she failed to provide a sufficient expert report as
                                                               required by section 74.351 of the civil practice and
Synopsis                                                       remedies code. See Tex. Civ. Prac. & Rem.Code Ann. §
Background: Patient brought health care liability action       74.351 (West Supp.2006). Because we conclude that the
against emergency care physician and hospital alleging         trial court abused its discretion by finding that the expert
that physician negligently failed to diagnosis her             report was sufficient, we reverse the trial court’s orders
infection. Physician and hospital moved to dismiss the         and remand for proceedings consistent with this opinion.
action based on patient’s alleged failure to provide a
sufficient expert report. The District Court, 207th Judicial
District, Comal County, Charles R. Ramsay, P.J., denied
the motion. Physician and hospital brought an accelerated
                                                                FACTUAL AND PROCEDURAL BACKGROUND
interlocutory appeal.
                                                               On February 23, 2003, two weeks after giving birth,
                                                               appellee Quinney visited McKenna’s emergency room.
Holding: The Court of Appeals, Jan P. Patterson, J., held      The intake form filled out by the triage nurse noted that
that the expert report offered by patient did not set forth    Quinney complained of a two-day history of hip pain
the applicable standard of care, as required by statute.       radiating down both legs. The report filled out by Dr.
                                                               Butter, the emergency room treating physician, noted the
                                                               chief complaint as “LBP” (low back pain), and
Reversed and remanded.                                         “radiation” was circled under the report’s musculoskeletal
                                                               section. Dr. Butter diagnosed Quinney with
                                                               radiculopathy, a disease of the spinal nerve roots, gave
From the District Court of Comal County, 207th Judicial        her prescriptions for Motrin and a muscle relaxer, and
District, No. C2005-1102B, Charles R. Ramsay, Judge            discharged her the same day.
Presiding.
                                                               On February 28, 2003, Quinney returned to McKenna’s
Attorneys and Law Firms                                        emergency room, where she was diagnosed with a
                                                               methicillin-resistant Staphylococcus aureus (MRSA)
Rebecca A. Copeland and Stephanie S. Bascon, for               infection. She was admitted to the intensive care unit that
McKenna Memorial Hospital, Inc.                                day and discharged from the hospital on March 11, 2003.

Susan Cooley and Dena B. Mastrogiovanni, for Robert            Quinney filed suit on February 14, 2005, alleging that
Donovan Butter.                                                McKenna and Dr. Butter were negligent in failing to
                                                               diagnose and treat her MRSA infection during her first
Kevin B. Miller and Mark A. Cevallos, for Sandra               visit to McKenna’s emergency room.1 She alleges that as
Quinney.                                                       a result of the defendants’ negligence she has suffered
                                                               damages, including “mitral valve problems.” In support of
J. Truscott Jones, for Katharina A. Klouda, M.D.
               © 2015 Thomson Reuters. No claim to original U.S. Government Works.                                   1
McKenna Memorial Hosp., Inc. v. Quinney, Not Reported in S.W.3d (2006)



her claims and in order to comply with section 74.351 of
the civil practice and remedies code, see id., Quinney        Because the statute focuses on what the report should
proffered a report by Robert J. Lowry, M.D., which            discuss, the only information relevant to the inquiry is
included Dr. Lowry’s curriculum vitae. McKenna and Dr.        within the four corners of the document. American
Butter objected to the report and moved to dismiss            Transitional Care Ctrs. of Tex., Inc. v. Palacios, 46
Quinney’s lawsuit pursuant to section 74.351. See id.         S.W.3d 873, 878 (Tex.2001). A report need not marshal
Specifically, McKenna and Dr. Butter argued that the          all of the plaintiff’s proof, but it must include the expert’s
report failed to state the standard of care and the causal    opinion on each of the elements identified in the statute.
relationship between the alleged breach of the standard of    Id. To constitute a good faith effort, the report must
care and Quinney’s damages. McKenna also contended            inform the defendant of the specific conduct called into
that Dr. Lowry, as a physician, was not qualified to render   question and provide a basis for the trial court to
an expert opinion as to nursing care. The trial court         determine that the claims have merit. Id. at 879. A report
determined that the report was sufficient and denied          does not fulfill these two purposes if it fails to address the
McKenna’s and Dr. Butter’s motions to dismiss. This           standard of care, breach of the standard, and causation, or
accelerated interlocutory appeal followed.                    if it only states the expert’s conclusions regarding these
                                                              elements. Id.

                                                              Failure to serve an adequate expert report mandates
                                                              dismissal with prejudice. Tex. Civ. Prac. & Rem.Code
                       ANALYSIS                               Ann. § 74.351(b). However, if an expert report cannot be
                                                              considered served because elements of the report are
On appeal, McKenna and Dr. Butter urge that the trial         found to be deficient, the trial court has discretion to grant
court erred in determining the report was sufficient          one thirty-day extension to the claimant to cure the
because the report does not discuss the standard of care      deficiency. Id. § 74.351(c).
and the causal relationship between the alleged breach of
the standard and Quinney’s damages. McKenna also
argues that the trial court erred in accepting the report
because Dr. Lowry is not qualified to give an expert          Standard of review
opinion on nursing care.                                      We review a trial court’s ruling on a motion to dismiss
                                                              under section 74.351(l ) for an abuse of discretion.
                                                              Jernigan v. Langley, 195 S.W.3d 91, 93 (Tex.2006) (per
                                                              curiam) (citing Palacios, 46 S.W.3d at 877-78). A trial
Requirements for expert reports                               court abuses its discretion if it acts in an arbitrary or
*2 In a health-care liability claim, the claimant must        unreasonable manner or without reference to any guiding
provide each defendant with one or more expert reports        rules and principles. Downer v. Aquamarine Operators,
and include a curriculum vitae for each expert. Id. §         Inc., 701 S.W.2d 238, 241-42 (Tex.1985). When
74.351(a). An “expert report” is defined as:                  reviewing matters committed to the trial court’s
                                                              discretion, we may not substitute our own judgment for
            a written report by an expert that                that of the trial court. Walker v. Gutierrez, 111 S.W.3d 56,
            provides a fair summary of the                    63 (Tex.2003).
            expert’s opinions as of the date of
            the report regarding applicable
            standards of care, the manner in
            which the care rendered by the                    Report of Dr. Lowry
            physician or health care provider                 In Dr. Lowry’s three-and-one-half-page report, he opines
            failed to meet the standards, and                 that the problems in the health care Quinney received
            the causal relationship between the               began with the nursing care during Quinney’s first
            failure and the injury, harm, or                  emergency room visit. In discussing how the triage nurse
            damages claimed.                                  filled out the intake form, he states:
Id. § 74.351(r)(6). A court must grant a motion                 *3 The interesting concern about how this page was
challenging the adequacy of the report “only if it appears      filled out, is that despite the fact that this patient was
to the court, after hearing, that the report does not           two-weeks post-partum, and she was having pain
represent an objective good faith effort to comply with the     anywhere near the pelvis, with a mild fever to boot, the
definition of an expert report.” Id. § 74.351(l ).              GU, the GYN, and the Abdomen sections of the form

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McKenna Memorial Hosp., Inc. v. Quinney, Not Reported in S.W.3d (2006)



  were checked-off as “N/A” (not applicable). These              Although these two areas (hip and low back) [sic], the
  areas should have been at the top of the concern here. It      situation is such that the pain was apparently not
  appears to me that the triage nurse got stuck on the idea      specific enough to pinpoint one small spot and should
  that this was a musculoskeletal issue and did not even         have further lead the doctor to investigate the nature of
  consider that there was a potential post-partum medical        the pain further. There is no listed characterization, or
  issue at hand, despite the prompting via the pre-printed       investigation of the nature of the pain listed in the
  form.                                                          history. So he did not take a thorough enough history,
                                                                 and failed to perform a thorough enough exam to even
  ....                                                           justify the “radiculopathy” diagnoses, let alone an ER
                                                                 visit for (any) pain, in a woman who also has a fever,
  The exam by the triage nurse totally dismisses an              and rapid pulse and being 2-weeks post partum.
  OB/Gyn possibility here, which becomes one of the              Furthermore, with what little he did do for an exam, his
  early mistakes in my opinion.                                  findings actually go away from a true radiculopathy-
                                                                 which again should have led him to investigate things
After discussing the performance of the triage nurse, Dr.        further. The worst thing is that he neglected to do a
Lowry reviews Dr. Butter’s examination of Quinney:               thorough history (and thus missed the OB issue
                                                                 completely), and then did not examine the patient to the
  Here I see a few problems and the following bullet
                                                                 extent that the history (at least the one written down by
  points will set-through my thinking here:
                                                                 the triage nurse) should have had him delve into the
  1. The patient presents and thus is known to have pain         possibility of an OB etiology-and most of those options
  around the low back, hip, and down into the lower              on the differential would be extremely life-threatening.
  extremities;                                                   He didn’t even take any labs (from a person
                                                                 complaining of pain anywhere close to the pelvis, and
  2. She gave a history of being 2-weeks post partum;            two weeks out from a delivery!)-any one of several
                                                                 would have likely pointed towards the presence of a
  3. a mild fever was noted at triage time, and her pulse is     significant problem.
  123bpm;
                                                               *4 Dr. Lowry then discusses Quinney’s second visit to the
  With just that information above, most doctors I know        McKenna emergency room, identifying as a mistake that
  would automatically be thinking a Gyn/Ob issue is            Quinney was released even though “she was noted to
  possibly going on here and the “hip” or low-back pain        have a fever just a few hours before release.” He states
  may be being caused by this. There is also the chance        that “she should not have been released unless she was
  that she truly has a direct low-back pain issue from a       afebrile for at least a whole uninterrupted 24 hours
  musculoskeletal standpoint given she has recently            immediately prior to release.”
  delivered a child. Both possibilities needed to be
  evaluated.                                                   In summarizing his comments, Dr. Lowry states, in part:

  ....                                                                     [I]t appears to me that the Triage
                                                                           nurse for the ER visit of 2/23 was
  [W]hen the physician (Dr. Don Butler?) performs his                      provided         [sic]       sub-par
  history, he does not inquire about the noted (and                        treatment/care (for not at least
  already given) history of the 2-weeks post-partum                        recognizing the possibility of a
  issue, or of fevers, or anything else down that pathway,                 Ob/gyn problem existing and
  but just writes a brief note of the LBP. It appears he                   evaluating and recording such), and
  had already made his diagnoses before even seeing the                    certainly for the ER doc that day
  patient. Worse yet, his exam was not one which was                       who clearly didn’t recognize the
  inclusive enough to actually have been examining for                     significant potential of an OB/gyn
  the cause of the LBP (essentially no orthopedic tests                    issue being at the root of the visit,
  were listed as being performed). So although he came                     and also for performing a sub-
  up with a diagnoses of “radiculopathy”, his exam notes                   standard evaluation for the history
  do not reflect such findings (no SLR test even being                     presented by the patient to the ER,
  done, no neuro deficits found in the lower extremities,                  and even for a radiculopathy for
  etc.) sufficient enough to lead anyone to come up with                   that matter. Likely, had the source
  that diagnoses. Also, the intake form listed “hip” pain,                 of the problem actually been
  he listed LBP (low back pain) as the chief complaint.                    looked for (simple labs and a

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McKenna Memorial Hosp., Inc. v. Quinney, Not Reported in S.W.3d (2006)



             minimally complete physical exam)                  intake form the triage nurse checked off as “N/A (not
             at this visit, the answers would                   applicable)” three areas that “should have been at the top
             have been staring them right in the                of the concern here,” but he does not state what the triage
             eye and she would have been                        nurse should have done differently in filling out the form.
             admitted that day, and undergone a                 Dr. Lowry’s report criticizes Dr. Butter for not conducting
             much less exhaustive course the                    a “thorough enough history,” for failing to perform a
             next couple months.                                “thorough enough exam to even justify the
                                                                ‘radiculopathy’ diagnoses,” for not “delv[ing] into the
                                                                possibility of an OB etiology,” and for not taking any labs
                                                                or x-rays. While in hindsight it may be possible to point
Standard of care                                                out additional steps that could have been taken to
In health-care liability claims, the standard of care is        diagnose Quinney’s MRSA infection, Dr. Lowry’s report
defined by what an ordinarily prudent health-care               does not explain what steps an ordinarily prudent
provider or physician would have done under the same or         physician would have been required to take. Dr. Lowry
similar circumstances. Palacios, 46 S.W.3d at 880; Strom        does reference other doctors in his report when he states
v. Memorial Hermann Hosp. Sys., 110 S.W.3d 216, 222             that “most doctors I know would automatically be
(Tex.App.-Houston [1st Dist.] 2003, pet. denied).               thinking a Gyn/Ob issue is possibly going on here and the
“Identifying the standard of care is critical: Whether a        ‘hip’ or low-back pain may be being caused by this.” This
defendant breached his or her duty to a patient cannot be       comment falls short of invoking an appropriate standard
determined absent specific information about what the           of care, which inquires as to what an ordinarily prudent
defendant should have done differently.” Palacios, 46           doctor would have done under the same or similar
S.W.3d at 880. The required statutory elements must be          circumstances. See Palacios, 46 S.W.3d at 880.
present within the four corners of the report and, thus, the
courts will not make inferences to supply omitted               Dr. Lowry’s assessment of Quinney’s second visit when,
elements. See, e.g., Bowie Mem’l Hosp. v. Wright, 79            according to his report, she was released just a few hours
S.W.3d 48, 53 (Tex.2002) (per curiam) (stating that court       after showing a fever is also deficient. While Dr. Lowry
could not infer causation where expert report stated that       states that Quinney “should not have been released unless
plaintiff might have had “the possibility of a better           she was afebrile for at least a whole uninterrupted 24
outcome,” but did not explain how the defendant’s               hours prior to release,” it is not clear that the standard of
conduct caused the injury); Russ v. Titus Hosp. Dist., 128      care required McKenna’s staff to wait 24 hours. To the
S.W.3d 332, 343 (Tex.App.-Texarkana 2004, pet. denied)          extent that the report states what an ordinarily prudent
(stating that it was not an abuse of discretion for the trial   health-care provider or physician would not have done, it
court to dismiss a suit against some parties where              is addressing a breach of the standard of care rather than
ascertaining the standard of care as to them required an        the applicable standard of care itself. Strom, 110 S.W.3d
inference; expert report detailed omissions of two nurses       at 223.
but did not address what conduct was necessary or
required).

In Palacios, a case involving a patient’s fall from a bed,
the plaintiffs relied mainly on one statement in the expert                          CONCLUSION
report to establish the standard of care: “Mr. Palacios had
                                                                Because Dr. Lowry’s report does not provide enough
a habit of trying to undo his restraints and precautions to
                                                                information to inform McKenna or Dr. Butter of the
prevent his fall were not properly utilized.” 46 S.W.3d at
                                                                specific conduct Quinney has called into question or to
879-80. Holding that this statement was not a statement of
                                                                allow the trial court to determine that Quinney’s claims
a standard of care, the supreme court reasoned that neither
                                                                have merit, see Palacios, 46 S.W.3d at 878, it was an
the trial court nor the defendant would be able to tell from
                                                                abuse of discretion for the trial court to find that Dr.
this conclusory statement whether the expert believed that
                                                                Lowry’s report was sufficient under the statute. We
the standard of care required the defendant “to have
                                                                therefore reverse the trial court’s orders denying the
monitored Palacios more closely, restrained him more
                                                                defendants’ motions to dismiss and remand for further
securely, or done something else entirely.” Id. at 880.
                                                                proceedings consistent with this opinion.2
*5 Dr. Lowry’s report includes conclusory statements
similar to the statement in Palacios. He states that on the

Footnotes

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McKenna Memorial Hosp., Inc. v. Quinney, Not Reported in S.W.3d (2006)




1     Quinney also brought suit against her obstetrician and the hospital where she delivered her baby, but she non-suited claims
      against both of those parties.
2     Because the expert report, although deficient, was timely filed, the trial court has discretion to grant Quinney an extension of
      time to cure the deficiency. See Tex. Civ. Prac. & Rem.Code Ann. § 74.351(c) (West Supp.2006); Wells v. Ashmore, No. 07-06-
      0232-CV, 2006 Tex.App. LEXIS 8182, at *8 n. 1 (Tex.App.-Amarillo Sept.15, 2006, no pet. h.); Longino v. Crosswhite ex rel.
      Crosswhite, 183 S.W.3d 913, 917 n. 2 (Tex.App.-Texarkana 2006, no pet.).




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.                                                   5
Psychiatric Solutions, Inc. v. Palit, 414 S.W.3d 724 (2013)
56 Tex. Sup. Ct. J. 946




                   414 S.W.3d 724                             In Texas West Oaks Hospital, LP v. Williams, we held
               Supreme Court of Texas.                        that a mental health professional employee’s claims
                                                              against his employer, a mental health hospital, alleging
   PSYCHIATRIC SOLUTIONS, INC. and Mission                    inadequate security and training were health care liability
    Vista Behavioral Health Services, Inc. d/b/a              claims (HCLC) based on the 2003 amendments to the
      Mission Vista Behavioral Health Center,                 Texas Medical Liability Act (TMLA).1 Here, we consider
                    Petitioners,                              the claims of an employee health care provider against his
                         v.                                   employer, also a health care provider. The employee’s
           Kenneth PALIT, Respondent.                         claims arise from an incident similar to that in West Oaks,
                                                              and we thus determine whether the employee’s claim that
            No. 12–0388. | Aug. 23, 2013.                     the employer provided improper security of a *725
                                                              psychiatric patient and inadequate safety for the employee
                                                              is an HCLC under the TMLA. As in West Oaks, we
Synopsis                                                      conclude here that the employee’s claim is an HCLC, the
Background: Mental health professional brought                employee is a claimant, and his failure to serve the
negligence action against employer stemming from              defendant with an expert report within the TMLA’s 120–
injuries sustained while physically restraining a             day deadline mandates dismissal of his suit. Because the
psychiatric patient during a behavioral emergency. The        court of appeals concluded otherwise, we reverse its
166th Judicial District Court, Bexar County, Solomon          judgment.
Casseb, III, J., denied employer’s motion to dismiss.
Employer appealed. The San Antonio Court of Appeals,
415 S.W.3d 9, affirmed. Employer petitioned for further
review, which was granted.
                                                                                    I. Background

                                                              Kenneth Palit was employed as a psychiatric nurse at
Holding: The Supreme Court, Guzman, J., held that             Mission Vista Behavioral Health Center, operated by
mental health professional’s negligence claim against         Psychiatric Solutions, Inc., and Mission Vista Behavioral
employer was health care liability claim (HCLC) that          Health Services, Inc. (collectively “Mission Vista”). On
required expert report.                                       April 2, 2008, he was injured at work while physically
                                                              restraining a psychiatric patient during a behavioral
                                                              emergency. Palit subsequently filed suit asserting a cause
Reversed and remanded with instructions.                      of action for negligence against Mission Vista, seeking
                                                              damages for personal injuries.
Boyd, J., filed concurring opinion in which Lehrmann, J.,
joined.                                                       Over 120 days later, Mission Vista moved to dismiss
                                                              Palit’s suit, claiming the suit alleged an HCLC and must
                                                              be dismissed because Palit failed to serve an expert report
Attorneys and Law Firms                                       as required by section 74.351 of the TMLA. The trial
                                                              court denied the motion to dismiss, and the court of
*724 Ryan Lee Clement, Sepe Jones Andrews Callender
                                                              appeals affirmed. 415 S.W.3d 9, 10.
& Bell, Houston, TX, for Petitioners Psychiatric
Solutions, Inc.

Mark A. Cevallos, Kevin B. Miller, Law Offices of Miller
& Bicklein, San Antonio, TX, for Respondent Kenneth                                 II. Discussion
Palit.
                                                              Under the TMLA, a claimant is “a person ... seeking or
Opinion                                                       who has sought recovery of damages in a health care
                                                              liability claim.” TEX. CIV. PRAC. & REM.CODE §
Justice GUZMAN delivered the opinion of the Court, in
                                                              74.001(a)(2). When a claimant asserts an HCLC, the
which Chief Justice JEFFERSON, Justice HECHT,
                                                              claimant must comply with the TMLA’s requirements,
Justice GREEN, Justice JOHNSON, Justice WILLETT,
                                                              one of which is to serve an expert report within 120 days
and Justice DEVINE joined.
                                                              of filing suit. Id. § 74.351. Palit, is a claimant under the
               © 2015 Thomson Reuters. No claim to original U.S. Government Works.                                  1
Psychiatric Solutions, Inc. v. Palit, 414 S.W.3d 724 (2013)
56 Tex. Sup. Ct. J. 946

TMLA if his suit is seeking damages in an HCLC. Tex.          We addressed the second element in West Oaks, which
W. Oaks Hosp., LP v. Williams, 371 S.W.3d 171, 179            involved a negligence claim by a mental health
(Tex.2012) (holding the change from “patient” to              professional against his mental health hospital employer
“claimant” in the 2003 amendment to the HCLC                  for injuries sustained in a physical altercation with a
definition in the TMLA now includes an employee of a          patient. Id. at 174–75. We reasoned that a “health care
health care provider who brings an HCLC). We must             facility’s ‘training and staffing policies and supervision
therefore determine whether Palit’s claim is an HCLC to       and protection of [a patient] and other residents are
resolve whether Palit’s suit must be dismissed for failing    integral components of [the facility’s] rendition of health
to comply with the TMLA’s expert-report requirement.          care services.’ ” Id. at 181 (quoting Diversicare Gen.
                                                              Partner, Inc. v. Rubio, 185 S.W.3d 842, 850 (Tex.2005))
In West Oaks, we held that a mental health professional       (alterations in original). Importantly, “by specific
employee’s claims against his employer mental health          statutory directive[,] health care claims must involve a
hospital regarding inadequate security and training were      patient-physician relationship,” and claims involving
HCLCs based on the 2003 amendments to the TMLA. Id.           employee supervision of a patient at a mental health care
at 181. The 2003 Legislation amended the definition of an     facility can still qualify as a health care claim because the
HCLC to mean:                                                 patient’s presence at the facility is due to their patient-
                                                              physician relationship. Id. Thus, because appropriate
            a cause of action against a health                supervision and security of patients and “providing a safe
            care provider or physician for ...                workplace ... [for] caregiver[s] at a psychiatric facility are
            claimed departure from accepted                   integral to the patient’s care and confinement,” those acts
            standards of medical care, or health              or omissions constitute “health care” under section
            care, or safety or professional or                74.001(a)(10) of the TMLA. Id. at 182.
            administrative services directly
            related to health care, which                     Following the 2003 amendments, HCLCs now include
            proximately results in injury to or               “departure[s] from accepted standards of medical care, or
            death of a claimant, whether the                  health care, or safety or professional or administrative
            claimant’s claim or cause of action               services directly related to health care.” TEX. CIV.
            sounds in tort or contract.                       PRAC. & REM.CODE § 74.001(a)(13). Of these types of
                                                              claims, safety is the only term not defined in the TMLA.
Act of June 2, 2003, 78th Leg., R.S., ch. 204, § 10.01,       See, e.g., id. § 74.001(a)(10), (a)(19), (a)(24) (defining
2003 Tex. Gen. Laws 847, 865 (current version at TEX.         “health care,” “medical care,” and “professional or
CIV. PRAC. & REM.CODE § 74.001(a)(13)) (emphases              administrative services”). Because “safety” is not defined,
added).                                                       it is construed “according to its common meaning as
                                                              being secure from danger, harm or loss.” Tex. W. Oaks,
We explained in West Oaks that an HCLC has three basic        371 S.W.3d at 184.
elements:
                                                              Here, Palit’s claim alleges he was injured “as a result of
            (1) a physician or health care                    improper security of a dangerous psychiatric patient”
            provider must be a defendant; (2)                 because Mission Vista “failed to provide a safe working
            the claim or claims at issue must                 environment and failed to make sufficient precautions for
            concern     treatment,   lack     of              [his] safety.” As in West Oaks, these allegations fall under
            treatment, or a departure from                    both the safety and health care components of an HCLC,
            accepted standards of medical care,               indicating both an alleged departure from the accepted
            or health care, or safety or                      standards of safety, see id. at 186, and that Palit’s health
            professional or administrative                    care provider employer violated the standard of health
            services directly related to health               care owed to its psychiatric patients, id. at 182. In West
            care; and (3) the defendant’s act or              Oaks we noted that Texas mental health statutes and
            omission complained of must                       regulations require that inpatient mental health facilities “
            proximately cause the injury to the               ‘provide adequate medical and psychiatric care and
            claimant.                                         treatment to every patient in accordance with the highest
                                                              standards accepted in medical practice,’ ” id. at 181
*726 371 S.W.3d at 179–80. The parties only dispute the       (quoting TEX. HEALTH & SAFETY CODE §
second element here.                                          576.022(a)) (emphasis added), and that “[i]t would blink
                                                              reality to conclude that no professional mental health
                                                              judgment is required to decide what those [standards]
               © 2015 Thomson Reuters. No claim to original U.S. Government Works.                                    2
Psychiatric Solutions, Inc. v. Palit, 414 S.W.3d 724 (2013)
56 Tex. Sup. Ct. J. 946

should be, and whether they were in place at the time of         therefore concur in the Court’s judgment, but write
[the] injury,” id. at 182. As such, we have held “that if        separately to express and explain the nature of my
expert medical or health care testimony is necessary to          disagreement.
prove or refute the merits of a claim against a physician or
health care provider, the claim is a health care liability       The Texas Legislature has defined a “health care liability
claim.” Id. Thus, because Palit’s allegations implicate a        claim” to mean “a cause of action against a health care
standard of care that requires expert testimony to prove or      provider or physician for treatment, lack of treatment, or
refute it, his claim is an HCLC. See id.2                        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
                   *727 III. Conclusion                          sounds in tort or contract.” TEX. CIV. PRAC. &
                                                                 REM.CODE § 74.001(a)(13). Prior to 2003, this
In sum, Palit’s suit claims that Mission Vista departed          definition included only “claimed departure [s] from
from the accepted standards of safety and health care,           accepted standards of medical care, or health care, or
which requires the use of expert health care testimony to        safety”—that is, it did not include the language “or
support or refute the allegations. Id. at 182, 193. Thus, the    professional or administrative services directly related to
claim is an HCLC. Id. at 182. As a person seeking                health care.” Act of May 30, 1977, 65th Leg., R. S., ch.
recovery of damages in an HCLC, Palit is a claimant and          817, § 1.03(a)(4), 1977 TEX. GEN. LAWS 2039, 2041
was required to serve an expert report within 120 days of        (former TEX.REV.CIV. STAT. art. 4590i, § 1.03(a)(4)),
filing suit. TEX. CIV. PRAC. & REM.CODE §                        repealed by Act of June 2, 2003, 78th Leg., R. S., ch. 204,
74.351(a). Because he failed to serve an expert report,          § 10.09, 2003 TEX. GEN. LAWS 847, 884.
Mission Vista is entitled to a dismissal of the claim and
reasonable attorney’s fees and costs. Id. § 74.351(b).           This Court has struggled to reach a consensus on the
Mission Vista requested its attorney’s fees and costs in         meaning of the word “safety,” as used in both the prior
the trial court pursuant to section 74.351(b)(1) of the          and current versions of the statute. Under the prior
TMLA. Accordingly, without hearing oral argument,                version, a five-member majority of the Court first held
TEX.R.APP. P. 59.1, we grant the petition for review,            that the Legislature’s inclusion of the reference to
reverse the court of appeals’ judgment, and remand to the        “safety” standards “expands the scope of the statute *728
trial court with instructions to dismiss Palit’s claim           beyond what it would be if it only covered medical and
against Mission Vista and consider Mission Vista’s               health care,” and thus includes “[p]rofessional
request for attorney’s fees and costs. Tex. W. Oaks, 371         supervision, monitoring, and protection of the patient
S.W.3d at 193.                                                   population.” Diversicare Gen. Partner, Inc. v. Rubio, 185
                                                                 S.W.3d 842, 855 (Tex.2005) (Wainwright, J., joined by
                                                                 Hecht, Medina, Johnson, and Willett, JJ., joined by
                                                                 Jefferson, C.J. as to Part III.B.3 (“Safety”)). Chief Justice
Justice BOYD filed a concurring opinion, in which                Jefferson joined the Court’s discussion of “safety” and
Justice LEHRMANN joined.                                         concluded in his concurring and dissenting opinion that
                                                                 the “statute’s plain text” and “plain meaning” did not
Justice BOYD,        joined   by    Justice   LEHRMANN,          limit safety claims only to those that “involve health care”
concurring.                                                      or “safety as it relates to the provision of health care.” Id.
                                                                 at 860–61 (Jefferson, C.J., concurring in part and
I agree with the Court’s conclusion that Palit’s claims are      dissenting in part). Dissenting from the judgment, three
health care liability claims subject to the Texas Medical        Justices disagreed with Chief Justice Jefferson and agreed
Liability Act (TMLA), and I agree with the Court’s               instead “with the Court” that the Act encompassed
disposition of those claims, which is consistent with the        “safety” claims only “when those claims are directly
Court’s prior decision in Texas West Oaks Hospital, L.P.         related to the provision of health care.” Id. at 866
v. Williams, 371 S.W.3d 171 (Tex.2012). I do not agree,          (O’Neill, J., dissenting, joined by Brister and Green, JJ.).
however, with the West Oaks majority’s broad
construction of the “safety standards” component of the          The Court addressed the prior version of the statute again
TMLA’s definition of a “health care liability claim.”            in Marks v. St. Luke’s Episcopal Hospital, 319 S.W.3d
Although this disagreement does not alter the proper             658 (Tex.2010). There, two members of the Court
disposition of this case, it relates to an important issue       concluded that a cause of action alleging departures from
that I anticipate the Court will face again in future cases. I   accepted safety standards is a health care liability claim
                © 2015 Thomson Reuters. No claim to original U.S. Government Works.                                      3
Psychiatric Solutions, Inc. v. Palit, 414 S.W.3d 724 (2013)
56 Tex. Sup. Ct. J. 946

only if the safety standards are “an inseparable or integral    administrative services,” and thus claims asserting a
part of the patient’s care or treatment,” and held that the     departure from accepted safety standards are health care
plaintiff’s claims did, in fact, involve “an integral and       liability claims only if the safety standards are “directly
inseparable part of the health care services provided” to       related to health care.”
him. Id. at 664 (Medina, J., joined by Hecht, J.).1 Four
Justices disagreed that the plaintiff’s claims involved an      First, I believe this construction is required in light of the
integral component of his treatment, but noted that the         statutory context and under the principle of ejusdem
claims would have satisfied the broader construction of         generis. See Marks, 319 S.W.3d at 663 (observing that
the “safety” that Chief Justice Jefferson advocated in          “the principle of ejusdem generis warns against expansive
Diversicare, which the Court had rejected. Id. at 675–76        interpretations of broad language that immediately
(Jefferson, C.J., joined by Green, Guzman, and                  follows narrow and specific terms, and counsels us to
Lehrmann, JJ., concurring in part and dissenting in part).      construe the broad in light of the narrow”). Even before
Two other Justices separately concurred and expressly           the Legislature added the phrase “directly related to health
agreed with Chief Justice Jefferson’s broader construction      care,” some Justices on this Court concluded that, for this
of the “safety” component in Diversicare. Id. at 672–74         reason and others, the statute’s reference to safety
(Johnson, J., joined by Willett, J., concurring).2 One          standards included only those standards related to patient
Justice declined to join any of the others’ constructions of    care or treatment. See Marks, 319 S.W.3d at 663–64
“safety” because “it is not necessary in this case, as it was   (plurality op.); Diversicare, 185 S.W.3d at 866 (O’Neill,
not in Diversicare, to define the precise scope of ‘safety’     J., joined by Brister and Green, JJ., dissenting). Several of
under the [Act].” Id. at 667 (Wainwright, J., concurring).      these Justices concluded that the Legislature’s later
                                                                addition of the phrase “or professional or administrative
More recently, in West Oaks, the Court addressed the            services directly related to health care” after the term
statute’s current definition of a “health care liability        “safety” indicates the Legislature’s agreement with the
claim,” and a six-member majority held that “the safety         narrower construction of the term “safety.” See
component of [health care liability claims] need not be         Diversicare, 185 S.W.3d at 867 (O’Neill, J., joined by
directly related to the provision of health care.” West         Brister and Green, JJ., dissenting). Reading the statutory
Oaks, 371 S.W.3d at 186. The Court concluded, inter             language in context, I agree that the most appropriate
alia, that the Legislature intended that the new phrase         conclusion is that the Legislature added the phrase
“directly related to health care” modify only the newly-        “directly related to health care” to modify the term
added terms “professional or administrative services,” and      “safety” as well as the terms “professional or
not the previously-existing term “safety.” Id. at 185. The      administrative services.”
Court thus construed the statute to mean that any cause of
action against a health care provider or physician claiming     Second, I believe we must attribute meaning to the
departure from accepted standards of “safety” is a health       Legislature’s choice not to insert a comma after the word
care liability claim, even if the safety standards are not      “safety” when it inserted the phrase “or professional or
“directly related to health care.” Id. at 186. Three Justices   administrative services directly related to health care.”
dissented in West Oaks, concluding that, in adopting the        Although I acknowledge the debate over usage of the
2003 amendments, the Legislature intended that the new          Oxford or “serial” comma,3 I necessarily attribute
phrase “directly related to health care” modify the term        meaning to the lack of such usage in this instance. By
“safety” *729 as well as the terms “professional or             inserting a comma after “safety,” the Legislature would
administrative services.” See id. at 198–99 (Lehrmann, J.,      have clearly indicated its intent to separate that term from
joined by Medina and Willett, JJ., dissenting). They read       the newly-added language, so that health care liability
the statute to mean that a cause of action claiming             claims would include claims alleging a departure from
departure from accepted standards of “safety” is a health       accepted standards of:
care liability claim only if it “arise[s] from a breach of a
health care provider’s duty to adequately ensure a
patient’s safety in providing health care services.” Id. at          1. medical care, or
198.
                                                                          2. health care, or
As in West Oaks, the current statutory definition of a
“health care liability claim” governs this case. I agree                  3. safety, or
with the Justices who dissented in that case. For three
                                                                          *730 4. professional or administrative services
primary reasons, I conclude that the Legislature intended
                                                                          directly related to health care ...
the phrase “directly related to health care” to modify the
term “safety” as well as the terms “professional or
                © 2015 Thomson Reuters. No claim to original U.S. Government Works.                                     4
Psychiatric Solutions, Inc. v. Palit, 414 S.W.3d 724 (2013)
56 Tex. Sup. Ct. J. 946

     By choosing not to insert the comma, the Legislature     be a health care liability claim under the Court’s holding
     instead tied the term “safety” to the new language, so   West Oaks. Unless I assume that the Legislature
     that health care liability claims include claims         intentionally avoids the use of the Oxford comma, I am
     alleging a departure from accepted standards of:         aware of nothing in the TMLA that indicates their intent
                                                              to accomplish something so far outside the stated purpose
            1. medical care, or                               of the statute and its amendments. I cannot attribute such
                                                              great weight to such an assumption.
            2. health care, or
                                                              So far, the Court’s disagreements over the construction of
            3. safety or professional or administrative       the statute have been of little consequence, because each
            services directly related to health care ...      time we have held that a claim satisfied the “safety”
                                                              component we have also held the claim satisfied the
     In my view, we must read the Legislature’s choice
                                                              “health care” component or that the safety standards were
     not to insert a comma after “safety” as an indication
                                                              directly related to health care. See West Oaks, 371 S.W.3d
     of its intent that “safety” be included with
                                                              at 181 (holding that hospital caregiver injured by mental
     “professional or administrative services,” and thus
                                                              health patient under his supervision asserted health care
     modified by the requirement that the claim be
                                                              liability claims “based on claimed departures from
     “directly related to health care.”
                                                              accepted standards of health care”); Marks, 319 S.W.3d at
Finally, as other Justices have noted, this construction is
                                                              666 (holding that claim of recovering surgical patient
most consistent with the purposes of the TMLA. See id.;
                                                              injured when hospital bed footboard collapsed was a
Marks, 319 S.W.3d at 663–64. The Legislature enacted
                                                              health care liability claim “[b]ecause the provision of a
the TMLA’s predecessor statute in 1977 for the express
                                                              safe hospital *731 bed was an inseparable part of the
purpose of relieving a “crisis [having] a material adverse
                                                              health care services provided during [the patient’s]
effect on the delivery of medical and health care in
                                                              convalescence from back surgery”); Diversicare, 185
Texas.” West Oaks, 371 S.W.3d at 177 (quoting Act of
                                                              S.W.3d at 849 (concluding that claims against nursing
May 30, 1977, 65th Leg., R.S., ch. 817, § 1.02(6), 1977
                                                              home for failing to prevent sexual assault by another
TEX. GEN. LAWS 2039, 2040 (repealed 2003)); Marks,
                                                              patient were “claims for breaches of the standard of care
319 S.W.3d at 663 (same). In 2003, when the Legislature
                                                              for a health care provider because the supervision of
codified the TMLA and amended the definition of a
                                                              Rubio and the patient who assaulted her and the
health care liability claim, it noted that the State was
                                                              protection of Rubio are inseparable from the health care
“facing another ‘medical malpractice insurance crisis’ and
                                                              and nursing services provided to her”).
a corresponding ‘inordinate[ ]’ increase in the frequency
of [health care liability claims] filed since 1995.” West
                                                              Here too, Palit alleges that Mission Vista departed from
Oaks, 371 S.W.3d at 177 (quoting Act of June 2, 2003,
                                                              safety standards that, in my view, are “directly related to
78th Leg., R. S., ch. 204, § 10.11(a), 2003 TEX. GEN.
                                                              health care,” so these claims are health care liability
LAWS 847, 884); Marks, 319 S.W.3d at 663 (same). The
                                                              claims under section 74.001(a)(13).4 Thus, although I
purpose of both the original statute and the 2003
                                                              disagree with the Court’s construction of the statute, I
amendments was to address crises affecting “medical and
                                                              concur in the Court’s judgment. In light of the difficulty
health care” and “medical malpractice insurance.”
                                                              that the Court has had in reaching a consensus about the
                                                              meaning of this statute, and because I anticipate that the
As Justice Medina observed in Marks, “given the object
                                                              Court will one day be required to address claims based on
of the statute and the Legislature’s express concern, it is
                                                              safety standards that are not directly related to health care,
apparent that the Legislature did not intend for standards
                                                              I write separately to express and explain my disagreement
of safety to extend to every negligent injury that might
                                                              with the Court’s construction.
befall a patient.” Marks, 319 S.W.3d at 664. Construing
section 74.001(a)(13) to encompass all “safety” claims
takes the statute far beyond the Legislature’s stated
purpose. For example, if a hospital visitor who is            Parallel Citations
assaulted at night in the hospital’s parking lot sues the
hospital alleging that the hospital failed to provide         56 Tex. Sup. Ct. J. 946
adequate lighting and security, the visitor’s claim would

Footnotes
1      371 S.W.3d 171, 179 (Tex.2012).

                 © 2015 Thomson Reuters. No claim to original U.S. Government Works.                                  5
Psychiatric Solutions, Inc. v. Palit, 414 S.W.3d 724 (2013)
56 Tex. Sup. Ct. J. 946


2      The concurrence believes that the Legislature’s 2003 amendments to the TMLA indicate that claims alleging a departure from
       the accepted standards of safety must be directly related to health care to qualify as HCLCs. 415 S.W.3d 9, 11 (Boyd, J.,
       concurring). Because the concurrence itself concedes that the claim here directly relates to health care, the opinion is advisory at
       best. See Heckman v. Williamson Cnty., 369 S.W.3d 137, 147 (Tex.2012).
1      Justices Wainwright, Johnson, and Willett joined other parts of Justice Medina’s opinion, including the disposition.

2      Justices Hecht and Wainwright joined other parts of Justice Johnson’s concurring opinion.

3      See Omaha Healthcare Ctr., L.L.C. v. Johnson, 246 S.W.3d 278, 282 (Tex.App.–Texarkana 2008) (discussing use of serial
       comma and debate), rev’d on other grounds 344 S.W.3d 392 (Tex.2011) and abrogated by Tex. W. Oaks Hosp., LP v. Williams,
       371 S.W.3d 171 (Tex.2012); see also Lynne Truss, EATS, SHOOTS & LEAVES: THE ZERO TOLERANCE APPROACH TO
       PUNCTUATION (Gotham 2004) (“There are people who embrace the Oxford comma, and people who don’t, and I’ll just say
       this: never get between these people when drink has been taken.”).
4      As the Court agrees, Palit’s claims “arise from an incident similar to that in West Oaks,” ante at 724, and “[a]s in West Oaks,
       [Palit’s] allegations fall under both the safety and health care components of [a health care liability claim].” Ante at 726. As to
       the safety claims issue, this case is essentially identical to West Oaks, and it was as unnecessary to address the issue in West
       Oaks as it is to do so here; or, alternatively, it is as necessary to do so here as it was to do so there. If addressing the issue here
       constitutes an “advisory” opinion, then the Court’s addressing of the issue in West Oaks was also an advisory opinion and the
       issue remains unresolved, which is exactly why I have addressed it here.




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
Regent Care Center of San Antonio II, Ltd. Partnership v...., 300 S.W.3d 343 (2009)




                                                                  ON APPELLEES’ MOTION FOR REHEARING
                  300 S.W.3d 343
              Court of Appeals of Texas,                        Opinion by: REBECCA SIMMONS, Justice.
                    San Antonio.
                                                                The motion for rehearing filed by appellees Barbara
  REGENT CARE CENTER OF SAN ANTONIO II,                         Hargrave, Individually and as Executrix of the Estate of
 LTD. PARTNERSHIP d/b/a Regent Care Center of                   Dorothy Montgomery, and Vernon Lloyd Pierce,
   Oakwell Farms and RCCSA II, Inc., Appellant,                 Individually, is denied. This court’s opinion and judgment
                          v.                                    dated April 3, 2009, are withdrawn, and this opinion and
     Barbara HARGRAVE, Individually and as                      judgment are substituted.
  Executrix of the Estate of Dorothy Montgomery,
 and Vernon Lloyd Pierce, Individually, Appellees.              This case is on remand from the Texas Supreme Court.
                                                                See Regent Care Ctr. of San Antonio II, Ltd. P’ship v.
       No. 04–05–00274–CV. | Aug. 31, 2009.
                                                                Hargrave, 251 S.W.3d 517 (Tex.2008). On original
                                                                submission, we dismissed the appeal for lack of
Synopsis                                                        jurisdiction holding that this Court lacked subject matter
Background: Executrix of nursing home resident’s estate         jurisdiction to review the denial of the motion to dismiss
filed medical malpractice action against hospital. Hospital     and for sanctions which was rendered moot by the trial
motioned to dismiss based on inadequate expert report.          court’s subsequent nonsuit. This court, however, never
The 150th Judicial District Court, Bexar County, Lori           reached the merits of the appeal. On remand, the sole
Massey, J., denied hospital’s motion. Hospital appealed.        remaining issue is the adequacy of the expert report.

                                                                Appellants Regent Care Centers of San Antonio II,
                                                                Limited Partnership d/b/a Regent Care Center of Oakwell
[Holding:] The Court of Appeals, Rebecca Simmons, J.,           Farms and RCCSA II, Inc. (Regent Care) appeal the *345
held that expert report did not contain necessary elements      trial court’s denial of its motion to dismiss based on an
of causation.                                                   inadequate expert report under former article 4590i of the
                                                                Texas Revised Civil Statutes. Appellees Barbara
                                                                Hargrave, Individually and as Executrix of the Estate of
Reversed and remanded.                                          Dorothy Montgomery and Vernon Lloyd Pierce,
                                                                Individually (collectively Hargrave) contend that the
Opinion, 2009 WL 902233, superseded.                            expert report, taken in its entirety, provided sufficient
                                                                information for the trial court to determine that the
See also 251 S.W.3d 517.                                        allegations against Regent Care had merit. On remand, we
                                                                hold the trial court erred in denying Regent Care’s motion
                                                                to dismiss in accordance with the requirements set forth in
Attorneys and Law Firms                                         article 4590i. See Act of May 30, 1977, 65th Leg., R.S.,
                                                                ch. 817, § 1, sec. 13.01(d), 1995 Tex. Gen. Laws 985,
*344 D. Ann Comerio, Law Offices of Ann Comerio, San
                                                                986, repealed by Act of June 2, 2003, 78th Leg., R.S., ch.
Antonio, TX, for Appellant.
                                                                204, § 10.09, 2003 Tex. Gen. Laws 847, 884.
Alex M. Miller, Mikal C. Watts, Francisco Guerra, IV,
Watts Guerra Craft LLP, San Antonio, TX, for Appellee.

Sitting: Chief Justice ALMA L. LÓPEZ1, SANDEE
                                                                             FACTUAL BACKGROUND
BRYAN MARION, Justice, REBECCA SIMMONS,
Justice.                                                        On November 15, 2000, Dr. Rafael Parra performed back
                                                                surgery on seventy-two year old Dorothy Montgomery.
                                                                Approximately six days later, Mrs. Montgomery was
                                                                discharged for rehabilitation into the custody of Regent
                                                                Care. On December 18, 2000, Mrs. Montgomery was
                       OPINION                                  transferred from Regent Care back to the hospital with
                                                                acute renal failure. By the time of her transfer, Mrs.
                                                                Montgomery was suffering from a staphylococci infection
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Regent Care Center of San Antonio II, Ltd. Partnership v...., 300 S.W.3d 343 (2009)



and was septic due to an open and draining surgical             standards, and (3) the causal relationship between that
wound on her back. Mrs. Montgomery was transferred              failure and the injury, harm, or damages claimed. See Act
back and forth between the hospital and Regent Care             of May 30, 1977, 65th Leg., R.S., ch. 817, § 1, sec.
several times before her death on February 18, 2001.            13.01(r)(6), 1995 Tex. Gen. Laws 985, 987 (repealed
                                                                2003). If a plaintiff fails to comply with section 13.01(d),
Hargrave filed a medical malpractice lawsuit against two        a defendant may seek sanctions pursuant to section
physicians and Regent Care. In order to comply with the         13.01(e) and the trial court shall grant the motion to
Texas Medical Liability and Insurance Improvement Act           dismiss with prejudice and award costs and attorneys’
(the Act), Hargrave timely filed an expert report prepared      fees to the defendant. See id. sec. 13.01(e), (f), 1995 Tex.
by Dr. Christopher M. Davey. See id.2 Regent Care               Gen. Laws 985, 986. The dispositive question is whether
subsequently moved to dismiss the lawsuit, with                 the expert report represents a good-faith effort to comply
prejudice, claiming the report did not comply with the          with section 13.01(r)(6). Bowie Mem’l Hosp. v. Wright,
statutory requirements. See id. sec. 13.01(e), (l ), (r)(6),    79 S.W.3d 48, 51–52 (Tex.2002) (citing Act of May 30,
1995 Tex. Gen. Laws 985, 986–87. The trial court denied         1977, 65th Leg., R.S., ch. 817, § 1, sec. 13.01(r)(6), 1995
Regent Care’s motions to dismiss, and this appeal               Tex. Gen. Laws 985, 987 (repealed 2003)).
followed.
                                                                [3] [4] [5] [6] [7]
                                                                              To constitute a good-faith effort to establish
                                                                the causal relationship element under the Act, the expert
                                                                “report need not marshal all the plaintiff’s proof,” or
                                                                present evidence as if the plaintiff was actually litigating
         ADEQUACY OF EXPERT REPORT                              the merits. See Bowie Mem’l Hosp., 79 S.W.3d at 52–53;
                                                                accord Palacios, 46 S.W.3d at 878. No magic words such
Regent Care asserts that the trial court abused its             as “reasonable medical probability” are required for the
discretion in denying Regent Care’s Motion to Dismiss           report to comply with the Act. Bowie Mem’l Hosp., 79
with Prejudice and for Statutory Sanctions and the motion       S.W.3d at 53. The report must (1) “inform the defendant
to reconsider the same because the expert report                of the specific conduct the plaintiff has called into
inadequately explains causation. Hargrave contends the          question,” and (2) “provide a basis for the trial court to
expert report contains sufficient information regarding         conclude that the claims have merit.” Palacios, 46 S.W.3d
causation for the court to have reasonably concluded the        at 879. A report that merely sets forth the expert’s
claims against Regent Care had merit.                           conclusions is insufficient to satisfy these two purposes.
                                                                Bowie Mem’l Hosp., 79 S.W.3d at 53. In assessing the
                                                                adequacy of the report, the trial court may not make
                                                                inferences and is confined to the four corners of the
A. Standard of Review
[1]                                                             report. Id.
   The standard of review of a trial court’s order either
dismissing or refusing to dismiss a medical malpractice
claim for failure to comply with the expert report
provisions of section 13.01(d) of article 4590i is abuse of     C. Causation
discretion. See Walker v. Gutierrez, 111 S.W.3d 56, 62          Regent Care argues that the expert report filed by Dr.
(Tex.2003); Am. Transitional Care Ctrs. of Tex., Inc. v.        Davey is inadequate and, consequently, dismissal was
Palacios, 46 S.W.3d 873, 877 (Tex.2001). An abuse of            mandatory. Regent Care challenges only the causation
discretion occurs when a trial court acts arbitrarily or        element of the report, and contends the report does not
unreasonably and “without reference to any guiding rules        meet the statutory requirements because it is conclusory
or principles.” Walker, 111 S.W.3d at 62. A clear failure       and based upon mere conjecture and possibility.3 In
by the trial court to analyze or apply the law correctly will   particular, Regent Care complains that Dr. Davey’s
constitute an abuse of discretion. Baylor Univ. Med. *346       report: (1) contains conclusory statements as to causation
Ctr. v. Biggs, 237 S.W.3d 909, 916 (Tex.App.-Dallas             and fails to link the alleged breaches to the injuries and
2007, pet. denied).                                             damages alleged, and (2) fails to address the numerous
                                                                allegations contained in the First Amended Original
                                                                Petition. See Act of May 30, 1977, 65th Leg., R.S., ch.
                                                                817, § 1, sec. 13.01(l ), 1995 Tex. Gen. Laws 985, 987
B. Sufficiency of the Expert Report
[2]                                                             (repealed 2003).
    The Act defines an expert report as a written report by
an expert that provides a fair summary of the expert’s          [8] [9]
                                                                     As to causation, in the concluding paragraph, Dr.
opinions regarding: (1) applicable standards of care, (2)
                                                                Davey opines “the Breach of the Standard of Care as set
the manner in which the care rendered failed to meet the
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Regent Care Center of San Antonio II, Ltd. Partnership v...., 300 S.W.3d 343 (2009)



forth for each Physician and[/]or Nursing Home in this          and care provided by Dr. Wilcox in December. See
report was a proximate cause of the death of Dorothy            Costello v. Christus Santa Rosa Health Care Corp., 141
Montgomery.” Regent Care argues that the one sentence           S.W.3d 245, 247 (Tex.App.–San Antonio 2004, no pet.)
conclusion on causation is insufficient to satisfy article      (criticizing the expert report as insufficient because it
4590i. We agree. While a claimant is not required to            does not “explain the causal connection between [the
conclusively prove her case through a preliminary expert        hospital’s] claimed omissions (failed to appropriately
report, the report may not merely state conclusions *347        triage and evaluate) and [the patient’s] death”). Dr.
about any of the elements. Palacios, 46 S.W.3d at 879. “        Davey’s opinion fails to articulate facts connecting the
‘[T]he expert must explain the basis of his statements to       criticized deviations from the standard of care by Regent
link his conclusions to the facts.’ ” Bowie Mem’l Hosp.,        Care with Mrs. Montgomery’s dehydration, sepsis, or
79 S.W.3d at 52 (quoting Earle v. Ratliff, 998 S.W.2d           death.
882, 890 (Tex.1999)). Bowie cautions that no “ ‘magical
words’ ” are required to establish the necessary causal         Bowie cautions that no “ ‘magical words’ ” are required to
link. See Bowie Mem’l Hosp., 79 S.W.3d at 53. But, to           establish the necessary causal link. See Bowie Mem’l
avoid being conclusory, “the expert must explain the basis      Hosp., 79 S.W.3d at 53. But, to avoid being conclusory,
of his statements to link his conclusions to the facts.”        “the expert must explain the basis of his statements to link
Bowie, 79 S.W.3d at 52 (emphasis added) (quoting Earle          his conclusions to the facts.” Bowie, 79 S.W.3d at 52
v. Ratliff, 998 S.W.2d 882, 890 (Tex.1999)).                    (emphasis added) (quoting *348 Earle v. Ratliff, 998
                                                                S.W.2d 882, 890 (Tex.1999)). Dr. Davey’s opinion
Hargrave responds that the report provides “several             contains no information about the cause of Mrs.
statements about causation of Mrs. Montgomery’s injuries        Montgomery’s dehydration; we are, therefore, left to infer
(renal failure and sepsis) and eventual death, and provides     that because Mrs. Montgomery presented at the hospital
factual information to allow the court to understand his        with severe dehydration, Regent Care violated a standard
causation opinions.” Specifically Hargrave identifies the       that caused the dehydration. See Villa v. Hargrove, 110
following two standards of care breached by Regent Care:        S.W.3d 74, 79 (Tex.App.–San Antonio 2003, pet. denied)
                                                                (noting that the expert report’s statement that defendants
     (i) The nursing home staff did not adequately and          should have “ ‘recognized’ imminent sepsis and
     timely inform the physician of the increasing amount       ‘hospitalized’ [plaintiff] does not explain how each failed
     of drainage from her back incision in December             to meet the explicable standard of care” and is
     2000, which reasonable staff in a similar situation        conclusory). Accordingly, we conclude that Dr. Davey’s
     would do[, and;]                                           expert report fails to establish a causal relationship
                                                                between the alleged departure from a standard of care and
     (ii) The nursing home allowed [Mrs. Montgomery]            Mrs. Montgomery’s dehydration, sepsis, or death.
     to become so dehydrated that she actually went into
     renal failure by 12/18/00. Her initial lab results         Dr. Davey’s expert report required the trial court to infer
     indicate severe dehydration, which most likely             causation, and under the four corners rule, the trial court
     occurred over several days and should have been            is prohibited from doing so. See Bowie Mem’l Hosp., 79
     physically apparent—i.e., not taking fluids, dry           S.W.3d at 52. It, therefore, follows that Dr. Davey’s
     tongue, increasing lethargy. A reasonable nursing          report was deficient as to causation and “the report does
     home in a similar situation would have noted her           not represent a good-faith effort to comply with the
     decline and alerted the physician much earlier.            [statutory requirements].” See id. at 51. Because we hold
                                                                the expert report was inadequate as to causation, we need
In essence, Hargrave criticizes the nursing staff for failing   not address the allegations concerning negligence. See
to inform the doctors about Mrs. Montgomery’s increased         TEX.R.APP. P. 47.1 (requiring concise opinions
drainage and for allowing her to become dehydrated.             addressing only those issues “necessary to find
                                                                disposition of the appeal”).
Dr. Davey’s report provides that: “the cause of the renal
failure was most likely dehydration, as it resolved just
with fluid replacement” (emphasis added) thereby
refuting dehydration as the cause of Mrs. Montgomery’s
death. Additionally, he fails to link Regent Care’s failure                           CONCLUSION
to timely inform a physician of increased drainage in
December 2000 to Mrs. Montgomery’s subsequent death             The expert report fails to link Regent Care to Mrs.
in February 2001 due to sepsis.4 This is particularly true      Montgomery’s dehydration, sepsis, or subsequent death;
considering Mrs. Montgomery’s admission to the hospital         thus, it does not contain the necessary elements of

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Regent Care Center of San Antonio II, Ltd. Partnership v...., 300 S.W.3d 343 (2009)



causation. Accordingly, because the expert report is                      therefore, reverse the order of the trial court and remand
inadequate, the trial court abused its discretion in failing              this matter to the trial court for further proceedings
to dismiss the case against Regent Care, with prejudice,                  consistent with this opinion.
and award reasonable attorney fees. See Act of May 30,
1977, 65th Leg., R.S., ch. 817, § 1, sec. 13.01(e), (l ),
1995 Tex. Gen. Laws 985, 986–87 (repealed 2003). We,

Footnotes
1      Chief Justice Alma L. López, retired, not participating.

2      All health care liability claims filed before September 1, 2003, must comply with section 13.01(d) of article 4590i. See Act of
       May 30, 1977, 65th Leg., R.S., ch. 817, § 1, sec. 13.01(d), 1995 Tex. Gen. Laws 985, 986, repealed by Act of June 2, 2003,
       78th Leg., R.S., ch. 204, § 10.09, 2003 Tex. Gen. Laws 847, 884.
3      Because Regent Care does not dispute that the expert report fairly summarizes the elements of applicable standard of care and
       breach, we review Dr. Davey’s report as to the causation element only.
4      Although Hargrave suggests that Dr. Davey’s report includes several statements regarding causation of “Mrs. Montgomery’s
       injuries (renal failure and sepsis) and eventual death,” the report clearly provides that Mrs. Montgomery “died of sepsis under
       palliative Hospice care 2/18/01.”




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.                                                       4
Russ v. Titus Hosp. Dist., 128 S.W.3d 332 (2004)




                      128 S.W.3d 332
                  Court of Appeals of Texas,
                         Texarkana.                                                    OPINION
             Robin Gwynne RUSS, Appellant,                     Opinion by Justice CARTER.
                             v.
         TITUS HOSPITAL DISTRICT, d/b/a Titus                  Robin Gwynne Russ appeals from a judgment dismissing
        Regional Medical Center, Peggy Burge, R.N.,            her medical malpractice suit against Titus Hospital
       Rachel Meyers, R.N., and Dr. Mark E. Quiring,           District, d/b/a Titus Regional Medical Center (the
                        Appellees.                             Hospital); Peggy Burge, R.N.; Rachel Meyers, R.N.; and
                                                               Dr. Mark E. Quiring (collectively referred to as
No. 06–03–00032–CV. | Submitted Jan. 22, 2004. |               Appellees). Russ sustained injuries from a fall out of a
            Decided Feb. 3, 2004.                              hospital window. According to her allegations, the fall
                                                               resulted from negligence of the various procedures
                                                               employed by the Appellees while Russ was under their
Synopsis
Background: Patient brought medical malpractice action         care awaiting transfer to a psychiatric hospital. Appellees
against hospital, nurses, and doctor regarding her fall out    moved to dismiss the case alleging the expert report was
                                                               not timely filed and that it did not comply with the
a hospital window. The 76th Judicial District Court, Titus
                                                               statutory requirements for an expert report. The trial court
County, Jimmy L. White, J., dismissed complaint for
                                                               dismissed the suit. We affirm in part, reverse in part, and
untimely , inadequate expert’s report. Patient appealed.
                                                               remand the case to the trial court for further proceedings
                                                               consistent with this opinion.

Holdings: The Court of Appeals, Carter, J., held that:         Russ raises two issues on appeal. First, she argues the trial
                                                               court abused its discretion in failing to allow an additional
[1]                                                            thirty days in which to file an expert report. Second, she
  trial court abused its discretion in refusing to grant 30-
day extension to file report;                                  contends the trial court erred in granting the motion to
                                                               dismiss because the report was sufficient under Article
[2]                                                            4590i.
      expert’s report was timely provided;
[3]                                                            On or about December 3, 1999, Russ sustained injuries
  expert’s report met statutory requirements as to hospital
and physician;                                                 from a fall out of a window. Russ filed suit against
                                                               numerous parties, including the Hospital, on November
[4]                                                            30, 2001. The petition alleged the Hospital was negligent
   expert’s report failed to meet statutory requirements as
to nurses; and                                                 in its treatment of Russ. Russ failed to file an expert
                                                               report by May 29, 2002 (180 days after filing suit). On
[5]                                                            July 1, 2002, Appellees filed a motion to dismiss. On the
      physician was qualified to render expert opinions.
                                                               day of the hearing, July 22, 2002, but before the hearing,
                                                               Russ filed a motion to extend the deadline until August
Affirmed in part, reversed in part, and remanded.              15, 2002. The trial court held the hearing, but the record
                                                               does not contain a ruling on either the motion to dismiss
                                                               or the motion to extend the deadline. On August 16, 2002,
Attorneys and Law Firms                                        Russ filed a second motion to extend requesting the
                                                               deadline be extended to August 20, 2002, which was
*335 Paul D. Hoover, Paul D. Hoover & Associates,              twenty-nine days after the hearing. On August 20, 2002,
Texarkana, for appellant.                                      Russ provided Appellees a copy of the expert report by
                                                               fax. Appellees filed a motion to exclude Russ’ report
C. Victor Haley, John L. Price, Fairchild, Price, et al.,      *336 due to failure to comply with the deadline and for
Nacogdoches, A. Craig Carter, Davis & Davis, PC,               failure to meet the requirements of the statute. On October
Austin, for appellees.                                         2, 2002, a hearing was held and the trial court dismissed
                                                               the lawsuit. Russ now appeals.
Before MORRISS, C.J., ROSS and CARTER, JJ.


                  © 2015 Thomson Reuters. No claim to original U.S. Government Works.                                 1
Russ v. Titus Hosp. Dist., 128 S.W.3d 332 (2004)



Timeliness of Motion to Extend Time                                  failure was not intentional or a result of conscious
[1] [2] [3] [4]
                In her first point of error, Russ argues the trial   indifference. In re Morris, 93 S.W.3d 388, 391
court erred in failing to grant an additional thirty days in         (Tex.App.-Amarillo 2002, no pet.).
which to file an expert report. We review the trial court’s
ruling on a motion for extension of time to file an expert           *337 [7] The Appellees contend the expert report is
report under an abuse of discretion standard. See Walker             untimely because the report was not filed within 210 days
v. Gutierrez, 111 S.W.3d 56, 62 (Tex.2003). An abuse of              of the filing of the suit. Russ’ first motion for extension of
discretion occurs when a trial court acts in an arbitrary or         the deadline was filed on July 22, 2002. This motion
unreasonable manner or without reference to any guiding              requested an extension of the deadline until August 15,
rules or principles. See Moore v. Sutherland, 107 S.W.3d             2002, and was entitled “MOTION TO EXTEND TIME
786, 789 (Tex.App.-Texarkana 2003, pet. denied). A trial             FOR FILING UNDER 4590(i) SECTION 13.01(F).” An
court will be deemed to have acted arbitrarily and                   extension under Section 13.01(f) extends the 180–day
unreasonably if it could have only reached one decision,             period described in Section 13.01(d) to 210 days.2
yet reached a different decision. Teixeira v. Hall, 107              Although this Court has noted the motion to extend the
S.W.3d 805, 807 (Tex.App.-Texarkana 2003, no pet.).                  deadline can be filed at any time, the extension begins
“[A] clear failure by the trial court to ... apply the law           running at the end of the original 180–day time period in
correctly will constitute an abuse of discretion,....” Walker        subsection (d) and lasts until 210 days from the filing of
v. Packer, 827 S.W.2d 833, 840 (Tex.1992).                           the suit. See Roberts, 988 S.W.2d at 402. Under an
                                                                     extension granted pursuant to Section 13.01(f), the expert
[5]
    Article 4590i, Section 13.01(d) requires a plaintiff             report would have been required to be furnished to the
asserting a claim against a healthcare provider or                   opposing parties within 210 days of the filing of the suit.
physician to submit an expert report, along with the                 If the extension had been requested under Section
expert’s curriculum vitae, no later than the 180th day after         13.01(f), the expert report would have been required to be
filing suit. See TEX.REV.CIV. STAT. ANN.. art. 4590i,                furnished to the Hospital and other defendants by June 28,
§ 13.01(d).1 The Act requires an expert report to provide            2002. The Appellees contend that, because the expert
“a fair summary of the expert’s opinions ... regarding               report was not furnished to the opposing parties until
applicable standards of care, the manner in which the care           August 20, 2002, the expert report was not timely.
rendered by the physician or health care provider failed to
meet the standards, and the causal relationship between              Even though the title refers to Section 13.01(f), our
that failure and the injury, harm, or damages claimed.”              conclusion is that the substance of Russ’ motion requested
See TEX.REV.CIV. STAT. ANN.. art. 4590i, §                           the extension under Section 13.01(g). In the motion and at
13.01(r)(6) (repealed 2003).                                         the hearing, the parties recited the standards of Section
                                                                     13.01(g) instead of Section 13.01(f) to the trial court. In
[6]
   Article 4590i, Section 13.01 provides two methods by              the body of the motion, it is alleged that co-counsel was in
which a claimant can receive an extension to the 180–day             trial and that counsel did not realize it was his
deadline. Under Section 13.01(f), “[t]he court may, for              responsibility to file the expert report. Such a statement is
good cause shown after motion and hearing, extend any                consistent with a showing of accident or mistake. In
time period specified in Subsection (d) of this section for          addition, the body of the motion states, “[t]his motion is
an additional 30 days. Only one extension may be granted             timely since filed prior to the hearing on Defendants [sic]
under this subsection.” TEX.REV.CIV. STAT. ANN.. art.                motions.” This statement asserts the timeliness
4590i, § 13.01(f) (repealed 2003). Section 13.01(f) has              requirement of Section 13.01(g) rather than Section
been interpreted by this Court to be directory rather than           13.01(f).
mandatory. Roberts v. Med. City Dallas Hosp., Inc., 988
S.W.2d 398, 402 (Tex.App.-Texarkana 1999, pet. denied).              Further, at the hearing on July 22 at which the court
Under the second method, found in Section 13.01(g), if               considered the first motion to extend, the Hospital and
“the court finds that the failure of the claimant or the             Russ both argued under the standards of Section 13.01(g).
claimant’s attorney was not intentional or the result of             Counsel for the Hospital stated:
conscious indifference but was the result of an accident or
mistake, the court shall grant a grace period of 30 days to                       I think that the standard is in terms
permit the claimant to comply with that subsection.”                              of when a motion like this for an
Section 13.01(g) has been interpreted to be mandatory on                          extension is to be granted is when
a finding that the failure was a result of accident or                            there’s a showing of accident or
mistake. Sutherland, 107 S.W.3d at 789. An extension                              mistake ... I’m not sure that there’s
under Section 13.01(g) can be obtained for either failure                         any showing of accident or mistake
to file a report or for an inadequate report, provided the                        on the part of Mr. Cooksey’s part
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Russ v. Titus Hosp. Dist., 128 S.W.3d 332 (2004)



             [sic] ... I think they need to show                what, and I think Don was relying on me, and I was
             some sort of accident or mistake on                relying on Don,....” In essence, counsel informed the court
             Mr. Cooksey’s part to justify an                   the two attorneys representing Russ erred in their
             extension....                                      communication as to which one of them had the
                                                                responsibility to file the report.
“Accident or mistake” is the standard for a motion under
Section 13.01(g), not Section 13.01(f), which requires          [9]
                                                                   We note that these statements were not made under
“good cause.” Shortly thereafter, Russ’ counsel made the        oath. The general rule is that an attorney’s statements
assertion to the trial court that “a motion to extend time is   must be under oath to constitute evidence. Banda v.
timely filed if it’s filed before the time of the hearing on    Garcia, 955 S.W.2d 270, 272 (Tex.1997). However, such
their motion to dismiss.” As discussed above, this is the       error is waived by failure to object when the opponent
standard for Section 13.01(g) rather than Section 13.01(f).     knew or should have known an objection was required.
At this point, the trial court inquired if “the statute uses    Id.; Sutherland, 107 S.W.3d at 793; Knie v. Piskun, 23
the language ‘accident or mistake.’ “ The Hospital’s            S.W.3d 455, 463 (Tex.App.-Amarillo 2000, pet. denied).
counsel responded that the statute says there cannot be         Similar to Banda, Knie, and Sutherland, the evidentiary
“conscious indifference,” and Russ’ counsel agreed. We          nature of the statements was obvious, particularly after
not that counsel for Dr. Quiring stated the standard was        the attorney had offered to take the witness stand. We
“good cause,” which is the standard under Section               conclude the failure of either defense counsel to object
13.01(f).                                                       waived the requirement that the statement be made under
                                                                oath.
*338 [8] A motion should be construed by its substance to
determine the relief sought, not merely by its form or          [10]
                                                                    Further, the statements are evidence of an accident or
caption. See Surgitek, Bristol–Myers Corp. v. Abel, 997         mistake. The mistake in this case involved a failure of
S.W.2d 598, 601 (Tex.1999). Because the motion                  communication between co-counsel, which resulted in the
contained allegations consistent with showing accident or       requirement being inadvertently overlooked. As such, the
mistake, contained the time standards for Section               mistake is a mistake of fact which clearly triggers the
13.01(g)—not Section 13.01(f), and at the hearing, it was       extension.4 As we noted in Sutherland, *339 the accident
primarily treated by counsel and the trial court in terms       or mistake need not necessarily be a good excuse,
unique to Section 13 .01(g), we find the motion is one for      provided the act or omission was, in fact, an accident or
extension under Section 13.01(g).                               mistake. Sutherland, 107 S.W.3d at 792. If the failure to
                                                                file a report resulted from an accident or mistake, even
The next question is whether the first motion to extend         negligence does not defeat a right to an extension. See id.;
was timely filed.3 The first motion for extension was filed     Roberts, 988 S.W.2d at 403.
before the hearing. A motion under Section 13.01(g)
“shall be considered timely if it is filed before any hearing   [11]
                                                                    Russ’ counsel offered uncontroverted evidence that he
on a motion by a defendant under Subsection (e) of this         did not act with conscious indifference or intentional
section.” TEX.REV.CIV. STAT. ANN.. art. 4590i, §                disregard and that the failure resulted from an accident or
13.01(g) (repealed 2003). A hearing on the Appellees’           mistake. Testimony by an interested witness may
motion to dismiss under Section 13.01(e) was held on            establish a fact as a matter of law if the testimony could
July 22, 2002. On the day of the hearing, July 22, 2002,        be readily contradicted if untrue, and is clear, direct and
but before the hearing, Russ filed the first motion to          positive, and there are no circumstances tending to
extend. Therefore, the first motion to extend was timely        discredit or impeach it. Lofton v. Tex. Brine Corp., 777
filed under Section 13.01(g).                                   S.W.2d 384, 386 (Tex.1989). Since the evidence was
                                                                uncontroverted, the trial court abused its discretion in not
Next, we must consider whether Russ demonstrated that           making a finding of accident or mistake.
she was entitled to an extension. Russ had to prove that
the failure “was not intentional or the result of conscious     [12] [13]
                                                                        The final issue under Russ’ first point of error is
indifference but was the result of an accident or mistake.”     whether the expert report was timely provided to the
See TEX.REV.CIV. STAT. ANN.. art. 4590i, § 13.01(g)             opposing parties under Section 13.01(g). Section 13.01(g)
(repealed 2003). During the hearing, Russ’ counsel              provides a thirty-day “floating window,” which begins to
offered to testify. The trial court stated he was “an officer   run on a finding of accident or mistake.5 Because the
of the court,” which implied there was no need for              extension is mandatory once it is established that the
counsel to take the stand or to be sworn. No objection was      failure was not due to intentional or conscious
made by either defense counsel. Russ’ counsel then              indifference but rather an accident or mistake, the trial
explained: “we had some confusion about who was to do           court must grant a thirty-day extension.

                © 2015 Thomson Reuters. No claim to original U.S. Government Works.                                   3
Russ v. Titus Hosp. Dist., 128 S.W.3d 332 (2004)



48 S.W.3d 259, 264 (Tex.App.-San Antonio 2001, pet.            causation does not meet the statutory requirements. Id.
denied). Therefore, Russ should have received a thirty-        These three separate requirements must all be present and
day extension starting on July 22. Since the report was        described with sufficient specificity.
provided to the opposing parties on August 20, the expert
                                                               [19] [20] [21]
report was timely within the thirty-day window.                           The expert report must set forth an applicable
                                                               standard of care. TEX.REV.CIV. STAT. ANN.. art.
When presented with uncontroverted evidence, the trial         4590i, § 13.01(r)(6). The standard of care for a physician
court should have found that the failure was not               is what an ordinarily prudent physician would do under
intentional or the result of conscious indifference, but       the same or similar circumstances. Palacios, 46 S.W.3d at
rather due to accident or mistake. The motion was filed        880. Identifying the standard of care is critical: “[w]hether
timely, and the expert report was timely provided to the       a defendant breached his ... duty to a patient cannot be
opposing parties.                                              determined absent specific information about what the
                                                               defendant should have done differently.” Id. “While a
                                                               ‘fair summary’ is something less than a full statement of
                                                               the applicable standard of care and how it was breached, a
Adequacy of Medical Report                                     fair summary must set out what care was expected, but
[14]
     In her second point of error, Russ contends the trial     not given.” Id. In other words, the report must specify
court erred in dismissing the suit. Dismissal under Article    what the defendant should have done.
4590i, Section 13.01(e) is treated as a sanction and is
reviewed for an abuse of discretion. See Am. Transitional      Second, the expert report must indicate how the defendant
Care Ctrs. of Tex., Inc. v. Palacios, 46 S.W.3d 873, 877       breached the standard of care. The report must indicate
(Tex.2001).                                                    what actions taken by the defendant deviated from the
                                                               standard of care. It must be a “fair summary” of the care
[15]
     If a claimant furnishes a report within the time          which was expected, but not given. Id.
permitted, a defendant may file a motion challenging the
report. See TEX.REV.CIV. STAT. ANN.. art. 4590i, §             [22]
                                                                  The expert’s report must also contain information on
13.01(l ) (repealed 2003). The trial court shall grant the     causation. It is not enough for a report to contain
motion only if it appears to the court, after hearing, that    conclusory insights about the plaintiff’s claims. Bowie
the report does not represent a good-faith effort to comply    Mem’l Hosp. v. Wright, 79 S.W.3d 48, 52 (Tex.2002);
with the statutory definition of an expert report. See         Sutherland, 107 S.W.3d at 790. Rather, the expert must
TEX.REV.CIV. STAT. ANN.. art. 4590i, § 13.01(l );              explain the bases of the statements and link his or her
Palacios, 46 S.W.3d at 877–78. In determining whether          conclusions to the facts. Id.
the report represents a good-faith effort, the trial court’s
inquiry is limited to the four corners of the report.          Russ presented an expert report in letter form from
TEX.REV.CIV. STAT. ANN.. art. 4590i, § 13.01(r)(6);            Mitchell H. Dunn, M.D. The report, in its entirety, states
Palacios, 46 S.W.3d at 878.                                    as follows:
[16]
     Although the trial court stated as its reason for            It is my opinion, held to a reasonable degree of medical
dismissing the lawsuit the *340 failure to meet “the 25           probability, that there were several deviations from the
day extension,”6 the order granting the dismissal did not         standard of care that directly contributed to the injuries
specify a reason. A trial court cannot abuse its discretion       sustained by Robin Russ on the evening of December
if it reaches the right result, even for the wrong reason.        3, 1999.
See In re Acevedo, 956 S.W.2d 770, 775 (Tex.App.-San
Antonio 1997, no pet.); Hawthorne v. Guenther, 917                Dr. Quiring deviated from the standard of care by
S.W.2d 924, 931 (Tex.App.-Beaumont 1996, writ                     failing to fully evaluate Ms. Russ’ suicidal ideation and
denied); Luxenberg v. Marshall, 835 S.W.2d 136, 141–42            plans, and failing to inquire about the reason for her
(Tex.App.-Dallas 1992, no writ). Therefore, we must               excessive serum Dilantin level. There is no evidence
consider whether the suit should have been dismissed              that he ever performed a mental status examination. It
under the Appellees’ alternative argument that the expert         is evident that he believed the overdose was purposeful
report was inadequate.                                            as his progress note read “Attention getting ? v. suicidal
                                                                  attempts.” Also, it is clear that Ms. Russ was being held
[17] [18]                                                         in the hospital awaiting transfer to a psychiatric
       Omission of any of the statutory elements prevents
the report from being a good-faith effort. Palacios, 46           hospital, indicating that she required further care in a
S.W.3d at 879. A report that merely states the expert’s           psychiatric hospital setting. Dr. Quiring was aware of
conclusions about the standard of care, breach, and               this and should have been aware of the MHMR

               © 2015 Thomson Reuters. No claim to original U.S. Government Works.                                    4
Russ v. Titus Hosp. Dist., 128 S.W.3d 332 (2004)



   representative’s concern that “client may try suicide        proceeding or at trial.” Id. at 879. The expert report is not
   *341 again.” He further deviated from the standard of        required to prove the defendant’s liability, but rather only
   care by failing to order one-to-one observation of Ms.       provide notice of what conduct forms the bases of the
   Russ. Her numerous episodes of attempting to get out         plaintiff’s complaints. “To constitute a ‘good-faith effort,’
   of bed unsupervised, her very unsteady gait, and her         the report must provide enough information to fulfill two
   history of impulsive, potentially life-threatening           purposes: (1) it must inform the defendant of the specific
   behaviors necessitated either one-to-one observation or      conduct the plaintiff has called into question, and (2) it
   restraints that were escape-proof. Either one of these       must provide a basis for the trial court to conclude that the
   interventions would have prevented Ms. Russ’ injuries.       claims have merit.” Wright, 79 S.W.3d at 52 (citing
                                                                Palacios, 46 S.W.3d at 879).
   The hospital deviated from the standard of care by
   placing a patient with potential suicidal ideation and       Palacios makes it clear that a claimant must present
   recent suicidal behavior in a fourth floor room with         specific evidence in a medical report because “knowing
   unlocked windows. It is the standard of care that            what specific conduct the plaintiff’s experts have called
   windows either be secured with metal screens that only       into question is critical to both the defendant’s ability to
   staff can open, or be locked. If the patient has access to   prepare for trial and the trial court’s ability to evaluate the
   the window, a special difficult to break glass or            viability of the plaintiff’s claims.” Palacios, 46 S.W.3d at
   Plexiglass should be used. It is simply unacceptable         877. The Texas Supreme Court stated that “[w]hether a
   that patients of that type could have access to an open      defendant breached *342 his or her duty to a patient
   window. Obviously, if there was no access to an open         cannot be determined absent specific information about
   window, Ms. Russ’ injuries would not have occurred.          what the defendant should have done differently.” Id. at
                                                                880. In other words, one must be able to determine from
   The nursing staff at Titus Regional Medical Center also      the report what the standard of care required to be done.
   deviated from the standard of care by failing to pass on     This requires “specific information about what the
   critical information regarding Ms. Russ’ ICU behavior,       defendant should have done differently.” Id. However, the
   including the fact that her dilantin toxicity was            report is not required to use magical words. Wright, 79
   purposeful, her degree of agitation, her multiple            S.W.3d at 53; Sutherland, 107 S.W.3d at 790. It is the
   attempts to get out of bed unsupervised, and her need        substance of the opinions, not the technical words used,
   for one-to-one supervision. Then, even after witnessing      that constitutes compliance with the statute. Sutherland,
   her agitation, her unsteady gait, and the fact that          107 S.W.3d at 790.
   “Patient almost went over other side of bed head first,”
   the nurses on the med.-surg. floor failed to restrain Ms.    [25]
                                                                    Dr. Dunn’s report states his opinions concerning the
   Russ or pursue a higher degree of supervision for her.       standard of care, the breach, and causation relating to the
   If they had, Ms. Russ’ injuries would not have               Hospital in these particulars:
   occurred. In addition, the nurses’ notes reflect
   knowledge that Ms. Russ had cigarettes but would not
   give them up when the staff requested that she do so. If
   they had obtained a doctor’s order to confiscate Ms.         Standard of Care:
   Russ’ cigarettes, perhaps she would not have tried to go
   out on the ledge.                                               It is the standard of care that windows either be secured
                                                                   with metal screens that only staff can open, or be
[23] [24]
        The plaintiff must only make a good-faith attempt          locked. If the patient has access to the window, a
to provide a fair summary of the expert’s opinions in the          special difficult to break glass or Plexiglass should be
expert report. TEX.REV.CIV. STAT. ANN.. art. 4590i, §              used.
13.01(l ); Palacios, 46 S.W.3d at 875. A “good-faith”
effort requires that the report discuss the standard of care,
breach, and causation with sufficient specificity to inform     Breach:
the defendant of the conduct the plaintiff has called into
question and to provide a basis for the trial court to             The hospital deviated from the standard of care by
conclude that the claims have merit. Palacios, 46 S.W.3d           placing a patient with potential suicidal ideation and
at 875. “[T]o avoid dismissal, a plaintiff need not present        recent suicidal behavior in a fourth floor room with
evidence in the report as if it were actually litigating the       unlocked windows.
merits. The report can be informal in that the information
in the report does not have to meet the same requirements
as the evidence offered in a summary-judgment                   Causation:

                © 2015 Thomson Reuters. No claim to original U.S. Government Works.                                      5
Russ v. Titus Hosp. Dist., 128 S.W.3d 332 (2004)



   Obviously, if there was no access to an open window,         “necessitated” connotes that the actions which follow
   Ms. Russ’ injuries would not have occurred.                  should have been done and were essential or vital. The
The expert report clearly provides the standard of care for     expert stated that either one-to-one observation or escape
the Hospital. It provides that the standard of care is that     restraints were necessary. It is clear from the report what
the window should have been locked or secured with              the expert believes the physician should have done. Based
metal screens. This is a specific allegation which provides     on this information, the physician knew precisely the
the Hospital with notice of the conduct complained of by        complained-of failures. Further, the trial court had
Russ. The report then provides that the standard of care        information on which to evaluate the viability of Russ’
was breached by placing a suicidal patient in a fourth          claims. When discussing the actions of the physician, and
floor room with unlocked windows. Again, this statement         his care to the patient, stating that a course of treatment is
is specific and informs the Hospital of the conduct of          “necessitated” establishes the standard of care and
which Russ is complaining. Last, the report states that, if     complies with the requirements for a medical report.
Russ did not have access to an open window, her injuries
                                                                [26] [27]
would not have occurred. It is undisputed that Russ’                   Last, our analysis arrives at the conduct of the two
injuries resulted from falling out of a fourth story            remaining nurses, Peggy Burge, R.N., and Rachel
window. Obviously, a party cannot fall from a window if         Meyers, R.N. The expert report explains in detail the
one cannot exit through the window. The substance of the        omissions of the nurses which he regarded as a breach of
report gives fair notice to the Hospital of the negligent       the standard of care. However, the report does not state
conduct on which Russ relies and provides a sufficient          what conduct was necessary or required and, therefore,
basis for the trial court to conclude that the claims have      gives no assistance to the trial court in attempting to
merit.                                                          evaluate the conduct of the nurses by the standard of care
                                                                governing them. A trial court does not abuse its discretion
Dr. Dunn’s report states his opinions concerning the            in dismissing a suit in which one is required to infer the
standard of care, the breach, and causation relating to Dr.     standard of care from the allegations in the expert report.
Quiring in these particulars:                                   Wright, 79 S.W.3d at 53. Thus, the trial court did not
                                                                abuse its discretion in dismissing the suit as to the nurses
                                                                because the standard of care must be inferred.

Standard of Care:                                               The report is a good-faith attempt to give a fair summary
                                                                of the standard of care, the breach, and the cause of the
  Her numerous episodes of attempting to get out of bed         injuries suffered as a result of that breach concerning the
  unsupervised, her very unsteady gait, and her history of      Hospital and Dr. Quiring. Because the report in this case
  impulsive, potentially life-threatening behaviors             is not conclusory and does not require inferences, the
  necessitated either one-to-one observation or restraints      report adequately fulfills the requirements of the statute as
  that were escape-proof.                                       it relates to the Hospital and Dr. Quiring.

                                                                Last, the Hospital argues in the alternative that the report
Breach:                                                         is inadequate because Dr. Dunn is not a qualified expert
                                                                and that he did not state whether his standard of care
  He further deviated from the standard of care by failing
                                                                applies to a general hospital. We will briefly address these
  to order one-to-one observation of Ms. Russ.
                                                                remaining arguments.

Causation:                                                      The Hospital contends the expert is not qualified because
                                                                he has never worked in a general hospital. We disagree.
   Either one of these interventions [one-to-one                Dr. Dunn meets the definition of an “expert” for the
   observation or escape proof restraints] would have           purpose of Section 13.01(r)(5)(A). TEX.REV.CIV.
   prevented Ms. Russ’ injuries.                                STAT. ANN.. art. 4590i, § 13.01(r)(5)(A) (repealed
In contrast to the report in Palacios, the expert report here   2003); see TEX.REV.CIV. STAT. ANN.. art. 4590i, §
provides the Appellees and the trial court with the specific    14.01(a), Act of May 5, 1995, 74th Leg., R.S., ch. 140, §
information *343 required. This report states that “[h]er       2, 1995 Tex. Gen. Laws 988, repealed by Act of June 2,
numerous episodes of attempting to get out of bed               2003, 78th Leg., R.S., ch. 204, § 10.09, 2003 Tex. Gen.
unsupervised, her very unsteady gait, and her history of        Laws 884. Dr. Dunn is a board certified psychiatrist who
impulsive,      potentially    life-threatening    behaviors    has served as acting clinical director and medical director
necessitated either one-to-one observation or restraints        of the forensic program of Terrell State Hospital since
that were escape-proof.” (Emphasis added.) The term             1995.
                © 2015 Thomson Reuters. No claim to original U.S. Government Works.                                     6
Russ v. Titus Hosp. Dist., 128 S.W.3d 332 (2004)



[28] [29]
        The Hospital also argues that the expert report fails                  We have carefully examined the Texas Supreme Court’s
to specify whether this standard of care applies to a                          decisions in Palacios and Wright, and believe that this
general hospital or simply to a psychiatric hospital. It is                    case is distinguishable. Unlike the reports examined in
apparent that Dr. Dunn knew the Hospital was a general                         Palacios, the report in question is not conclusory as it
hospital because he stated Russ was awaiting transfer to a                     pertains to Dr. Quiring and the Hospital. The report
psychiatric hospital. “The standard of care for a hospital is                  contains specific information which informs the
what an ordinarily prudent hospital would do under the                         Appellees what Russ is contending they should have
same or similar circumstances.” Palacios, 46 S.W.3d at                         done. Further, one is not required to infer a standard of
880. In addition to serving as the medical director of the                     care from mere insights provided by the report. Further,
forensic program at Terrell State Hospital, Dr. Dunn *344                      Palacios’s two-part test to determine “good faith” was
also has a part-time practice in adult and forensic                            met concerning Dr. Quiring and the Hospital. Therefore,
psychiatry. He has treated many patients with suicidal                         the trial court had no discretion to conclude that the report
behavior and has had the responsibility to make decisions                      as it pertains to Dr. Quiring and the Hospital was not a
to prevent suicidal behavior. We have found that he has                        good-faith effort.
expressed the proper standard of medical and hospital
care. He has training and experience to allow him to offer                     Accordingly, we affirm the judgment of the trial court
such opinions. The requirement of an expert report is to                       concerning Peggy Burge, R.N., and Rachel Meyers, R.N.;
inform the opposing party of Russ’ claim and to provide                        we reverse the judgment of the trial court concerning Dr.
the trial court with a basis to conclude that the claim has                    Quiring and the Hospital, and remand the case to the trial
merit. The report is not required to litigate the claim. Id. at                court for further proceedings.
879. We find Dr. Dunn qualified to render such a medical
report.

Footnotes
1           TEX.REV.CIV. STAT. ANN.. art. 4590i, § 13.01, Act of May 5, 1995, 74th Leg., R.S., ch. 140, § 1, 1995 Tex. Gen. Laws 985–
            87. This Act was repealed and recodified at TEX. CIV. PRAC. & REM.CODE ANN. § 74.351 (Vernon 2004) (effective
            September 1, 2003). Act of June 2, 2003, 78th Leg., R.S., ch. 204, § 10.09, 2003 Tex. Gen. Laws 884. This action was filed
            November 30, 2001, before the new Act’s September 1, 2003, effective date.
2           Villa v. Hargrove, 110 S.W.3d 74, 80 (Tex.App.-San Antonio 2003, pet. denied); Doades v. Syed, 94 S.W.3d 664, 673
            (Tex.App.-San Antonio 2002, no pet.); Landry v. Ringer, 44 S.W.3d 271, 274 (Tex.App.-Houston [14th Dist.] 2001, no pet.);
            Pfeiffer v. Jacobs, 29 S.W.3d 193, 195–97 (Tex.App.-Houston [14th Dist.] 2000, pet. denied); Roberts v. Med. City Dallas
            Hosp., Inc., 988 S.W.2d 398, 402 (Tex.App.-Texarkana 1999, pet. denied).
3           We note Russ also argues that the second motion made the expert report timely. This motion was clearly filed under Section
            13.01(g). However, the second motion was not timely filed because it was not filed before the hearing. The second motion for
            extension was not filed until August 16, 2002, which was more than two weeks after the hearing. Therefore, the second motion
            for extension is not timely and we will not consider it.
4           We note that the Texas Supreme Court has held that not all mistakes of law are mistakes under the statute; specifically, “a
            purportedly mistaken belief that the report complied with the statute does not negate a finding of ‘intentional or conscious
            indifference.’ “ Walker v. Gutierrez, 111 S.W.3d 56, 62 (Tex.2003).
5           See Salazar v. Canales, 85 S.W.3d 859, 865 (Tex.App.-Corpus Christi 2002, no pet.); Whitworth v. Blumenthal, 59 S.W.3d 393,
            399 (Tex.App.-Dallas 2001, pet. dism’d by agr.); Hanzi v. Bailey, 48 S.W.3d 259, 264 (Tex.App.-San Antonio 2001, pet.
            denied); Broom v. MacMaster, 992 S.W.2d 659, 663 (Tex.App.-Dallas 1999, no pet.); cf. Horsley–Layman v. Angeles, 968
            S.W.2d 533, 536 (Tex.App.-Texarkana 1998, no pet.).
6           Russ’ original motion requested a twenty-five-day extension.




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
Russ v. Titus Hosp. Dist., 128 S.W.3d 332 (2004)




              © 2015 Thomson Reuters. No claim to original U.S. Government Works.   8
Shenoy v. Jean, Not Reported in S.W.3d (2011)




                                                            approximately three weeks after gallbladder surgery as a
                                                            result of hypoxic encephalopathy. Dr. Zuniga performed
                2011 WL 6938538
  Only the Westlaw citation is currently available.         the surgery. Dr. Shenoy, a cardiologist, cleared Jean for
                                                            the surgery.
  SEE TX R RAP RULE 47.2 FOR DESIGNATION
         AND SIGNING OF OPINIONS.                           In two issues, Shenoy contends that the trial court abused
                                                            its discretion in denying his motion to dismiss because
           MEMORANDUM OPINION                               Jean’s expert, Dr. Mazzei, an anesthesiologist, is not
            Court of Appeals of Texas,                      qualified to opine on the applicable standard of care for a
              Houston (1st Dist.).                          cardiologist, breach of that standard or causation, and his
                                                            report does not adequately address standard of care,
  Vasudev SHENOY and Dario Zuniga, Appellant                breach, or causation. In his sole issue, Zuniga contends
                          v.                                that the trial court abused its discretion because (1)
 Penny JEAN, Individually, and as Wrongful Death            Mazzei is not qualified to offer an opinion on the
 Beneficiary of Willie Ann Jean, Deceased, and on           applicable standard of care for a surgeon, (2) the report
 Behalf of the Estate of Willie Ann Jean, Deceased,         does not address how Zuniga caused Willie Ann’s death
 and on Behalf of all Wrongful Death Beneficiaries          beyond mere conclusions, and (3) it is “impermissibly
      of Willie Ann Jean, Deceased, Appellee.               cumulative”—that is, it does not adequately identify the
                                                            particular breaches of the standard of care or causation
       No. 01–10–01116–CV. | Dec. 29, 2011.                 with respect to each separate defendant. We reverse and
                                                            render an order dismissing the claims against Shenoy and
On Appeal from the 151st District Court, Harris County,     Zuniga.
Texas, Trial Court Case No.2010–28302.

Attorneys and Law Firms

John G. Myers, Dee L. Dawson, Myers Doyle, Houston,                               Background
for Appellant Vasudev Shenoy.
                                                            Mazzei’s expert report provides the background facts in
Robert G. Smith, David O. Cluck, Scott B. Novak,            this case. The medical records are not before us, and we
Lorance & Thompson, P.C., Houston, for Appellant Dario      accept the factual statements for the limited purpose of
Zuniga.                                                     this appeal.2
Monica C. Vaughan, for Penny Jean, Individually, and as
                                                            Willie Ann Jean, age 57, was taken by ambulance to the
Wrongful Death Beneficiary of Willie Ann Jean,
                                                            emergency room of Doctor’s Hospital on February
Deceased, and on Behalf of the Estate of Willie Ann Jean,
                                                            15,2008, complaining of abdominal pain, vomiting, chest
Deceased, and on Behalf of all Wrongful Death
                                                            pain of three hours’ duration, and difficulty breathing. As
Beneficiaries of Willie Ann Jean, Deceased.
                                                            part of her admission, Willie Ann gave an extensive
Panel consists of Chief Justice RADACK and Justices         medical history that included diabetes, hypertension,
SHARP and BROWN.                                            angina, surgery for a brain aneurysm, coronary artery
                                                            disease, chronic obstructive pulmonary disease,
                                                            hypercholesterolemia, and a prior myocardial infarction.
                                                            Willie Ann reported she had experienced abdominal and
                                                            chest pain for years without treatment. Based on a
                                                            physical examination and ultrasound, the emergency
             MEMORANDUM OPINION                             room physician, Dr. Mireles, determined that she had
                                                            polyps and diagnosed symptomatic gallstones in her
HARVEY BROWN, Justice.                                      gallbladder. He recommended that she undergo surgery to
                                                            remove her gallbladder. He ordered a surgical
*1 In this interlocutory appeal,1 Dr. Shenoy and Dr.        consultation and a cardiology consultation.
Zuniga appeal the trial court’s orders denying their
motion to dismiss Penny Jean’s healthcare liability claim   Shenoy, a cardiologist, saw her that same day, and noted
for failure to serve an adequate expert report. See TEX.    that Willie Ann had a two- to three-year history of
CIV. PRAC. & REM.CODE ANN. § 74.351(a) (West                epigastric and right upper quadrant abdominal pain as
2011). Penny’s mother, Willie Ann Jean, died
              © 2015 Thomson Reuters. No claim to original U.S. Government Works.                                1
Shenoy v. Jean, Not Reported in S.W.3d (2011)



well as a history of a previous myocardial infarction and a
cereberovascular accident (i.e., a stroke). Shenoy noted      Penny filed a wrongful death medical malpractice suit
that Willie Ann had suffered chest pain, accompanied by       against Doctor’s Hospital, Mireles, Amin–Sankar,
shortness of breath and sweating for four to six hours        Shenoy, and Zuniga.3 Penny alleged that Shenoy and
earlier that day. Willie Ann also had an abnormal             Zuniga were negligent in clearing her mother for surgery.
electrocardiogram (EKG). Shenoy’s diagnosis was that          Specifically, Penny alleged that there was no emergency
Willie Ann had sufferedan acute myocardial infarction,        or urgent reason to remove her mother’s gallbladder and
symptomatic gallstones, hypertension, and diabetes.           that her mother had experienced abdominal and chest pain
                                                              for years without treatment. In addition, Willie Ann had
*2 Zuniga, a surgeon, performed the surgical consultation     suffered an acute myocardial infarction before the
three days after her initial admission, on February 18,       gallbladder surgery and had a history of numerous health
2008. Zuniga confirmed the presence of gallstones,            problems. Although she was stable, her history created
diagnosed inflammation of the gallbladder, and cleared        additional risks that made her a poor candidate for
Willie Ann for surgery to remove her gallbladder the next     surgery, and therefore Shenoy and Zuniga negligently
day, February 19, subject to a cardiology assessment. Dr.     cleared Willie Ann for the surgery.
Shenoy saw Willie Ann again on February 18. A nuclear
test was negative for ischemia. Shenoy also ordered an        *3 Penny timely served an expert report from Mazzei, an
EKG, the results of which are included in Mazzei’s report     anesthesiologist.4 Mazzei’s report focused primarily on
but the significance of which are not explained. Shenoy       the anesthesiologist, Amin–Sankar. Concerning Shenoy
cleared Willie Ann for the gallbladder surgery.               and Zuniga, Mazzei stated that if Willie Ann “had not
                                                              undergone elective surgery on February 19, 2008, she
Dr. Amin–Sankar, an anesthesiologist, performed a             would not have experienced the respiratory arrests that
preoperative anesthesia assessment on February 19. He         resulted from her extubation and she would have, in all
noted Willie Ann’s past medical history, including her        probability, survived.”
acute myocardial infarction and abnormal EKG. Amin–
Sankar cleared Willie Ann for surgery.                        Concerning Amin–Sankar, Mazzei’s report states, “In
                                                              reasonable medical probability, if Ms. Jean had not been
On February 19, 2008, Zuniga performed the surgery. The       prematurely extubated, she would not have had the
surgery was an “uneventful” procedure. After leaving the      increased demands placed on her body which caused her
post-anesthesia careunit (PACU), Willie Ann was to be         subsequent respiratory arrest, anoxic brain injury and
sent to the intensive care unit because she had fluctuating   death.” He further explained in his general discussion of
oxygen saturation levels, inadequate ventilation, and         causation that the anesthesiologist should have been
shallowness of breath. Shortly thereafter, she was            aware of the risks of premature extubation. A fair reading
transported back to the PACU and was placed on a              of Mazzei’s report is that the premature extubation was
ventilator. According to Mazzei’s report, Amin–Sankar         the immediate cause of death:
prematurely extubated Willie Ann ten minutes
later.Within a few minutes, Willie Ann was in respiratory                 The time it takes for a patient’s
arrest. She received CPR and medications, and Amin–                       anesthesia effect to lessen enough
Sankarreintubated her.                                                    for them to be able to breathe
                                                                          independently varies from patient
Thirty minutes later, Willie Ann was returned to the ICU.                 to patient and is affected by a
According to Mazzei’s report, Jean became “agitated” and                  patient’s      physiology         and
had trouble with the ventilator. She extubated herself and                underlying disease processes. For a
suffered a second respiratory arrest. She was re-intubated                patient like Ms. Jean who had
and given medications. An EEG the following day                           recently suffered a MI, it should
showed possible hypoxic encephalopathy—brain damage                       have been expected that it would
caused by lack of oxygen. A follow-up EEG the next day                    take her a significant period of time
also indicated hypoxic encephalopathy. Mazzei’s report                    before she was capable of being
does not discuss whether the EEGs differentiate between                   extubated to breathe on her own.
any damage caused by the first extubation and arrest and                  This was not taken into account nor
the second extubation and arrest. Willie Ann was                          was her clinical picture when she
unresponsive to stimuli, including painful stimuli. On                    was untimely extubated [by the
February 25, Willie Ann was transferred to another                        anesthesiologist]. This caused her
facility for long-term care. She died on March 5, 2008 due                to suffer a respiratory arrest which
to the hypoxic encephalopathy.                                            further stressed Ms. Jean’s ability
               © 2015 Thomson Reuters. No claim to original U.S. Government Works.                                2
Shenoy v. Jean, Not Reported in S.W.3d (2011)



            to recover from surgery and lead to
            another respiratory arrest with
            anoxic encephalopathy and death....                I. Chapter 74 expert report requirements
            When Ms. Jean extubated herself,                   Pursuant to section 74.351, medical-malpractice plaintiffs
            the failure to address her increasing              must provide each defendant physician and health care
            respiratory distress resulted in a                 provider with an expert report or voluntarily nonsuit the
            subsequent       respiratory    arrest             action. Id. If a claimant timely furnishes an expert report,
            causing the anoxic encephalopathy                  a defendant may file a motion challenging the report’s
            which lead to her death.                           adequacy. Id. The trial court shall grant the motion only if
                                                               it appears, after hearing, that the report does not represent
Shenoy and Zuniga moved to dismiss, asserting that the         a good faith effort to comply with the statutory definition
report was inadequate to them. The trial court granted         of an expert report. See id. § 74.351(l ). The statute
Penny an opportunity to amend the report. After receiving      defines an expert report as a written report by an expert
the amended report, Shenoy and Zuniga again moved to           that provides, as to each defendant, a fair summary of the
dismiss due to inadequacies in the report. The trial court     expert’s opinions, as of the date of the report, regarding:
denied the motions to dismiss, and this interlocutory          (1) the applicable standards of care; (2) the manner in
appeal followed.                                               which the care provided failed to meet the standards; and
                                                               (3) the causal relationship between that failure and the
                                                               injury, harm, or damages claimed. See id. § 74.351(r)(6);
                                                               Gray v. CHCA Bayshore, L.P., 189 S.W.3d 855, 85859
                                                               (Tex.App.-Houston [1st Dist .] 2006, no pet.).
                   Standard of Review
                                                               Although the report need not marshal all the plaintiff’s
We review a trial court’s ruling on a motion to dismiss a      proof, it must include the expert’s opinions on the three
healthcare liability lawsuit pursuant to Chapter 74 of the     statutory elements—standard of care, breach, and
Texas Civil Practice and Remedies Code under an abuse          causation. See Palacios, 46 S.W.3d at 878; Gray, 189
of discretion standard. See Am. Transitional Care Ctrs. of     S.W.3d at 859. In detailing these elements, the report
Tex., Inc. v. Palacios, 46 S.W.3d 873, 875 (Tex.2001)          must provide enough information to fulfill two purposes if
(reviewing dismissal under predecessor statute, section        it is to constitute a good faith effort: first, it must inform
13(e) of article 4590i); Runcie v. Foley, 274 S.W.3d 232,      the defendant of the specific conduct the plaintiff has
233 (Tex.App.-Houston [1st Dist.] 2008, no pet.). A trial      called into question, and, second, it must provide a basis
court abuses its discretion if it acts in an arbitrary or      for the trial court to conclude that the claims have merit.
unreasonable manner without reference to guiding rules         Scoresby v. Santillan, 346 S.W.3d 546, 556 (Tex.2011)
or principles or if it clearly fails to analyze or apply the   (citing Palacios, 46 S.W.3d at 879). A report that merely
law correctly. Runcie, 274 S.W.3d at 232. In reviewing         states the expert’s conclusions as to the standard of care,
whether an expert report complies with Chapter 74, we          breach, and causation does not fulfill these two purposes.
evaluate whether the report “represents a good-faith           Id. “ ‘[T]he expert must explain the basis of his
effort” to comply with the statute. Strom v. Mem’l             statements and link his conclusions to the facts.’ “ Wright,
Hermann Hosp. Sys., 110 S.W.3d 216, 221 (Tex.App.-             79 S.W.3d at 52 (quoting Earle v. Ratliff, 998 S.W.2d
Houston [1st Dist.] 2003, pet. denied). In making this         882, 890 (Tex.1999)). Furthermore, in assessing the
evaluation, we must look only at the information               report’s sufficiency, the trial court may not draw any
contained within the four corners of the report. Bowie         inferences, and instead must rely exclusively on the
Mem’l Hosp. v. Wright, 79 S.W.3d 48, 53 (Tex.2002).            information contained within the report’s four corners.
                                                               See Scoresby, 346 S.W.3d at 556 (citing Palacios, 46
                                                               S.W.3d at 878).


           Adequacy of Dr. Mazzei’s report
                                                               II. Adequacy of report concerning causation
*4 In their respective appeals, Shenoy and Zuniga attack       Within his second issue, Shenoy contends that Mazzei’s
various aspects of the adequacy of Mazzei’s report,            report does not adequately address causation of Jean’s
asserting it fails to meet the requirements of section         injuries as a result of any negligence by Shenoy. As part
74.351 of the Texas Civil Practice and Remedies Code.          of his sole issue, Zuniga similarly argues that the report is
See TEX. CIV. PRAC. & REM.CODE § 74.351(a).                    inadequate in its statement of causation for his alleged
                                                               malpractice.

               © 2015 Thomson Reuters. No claim to original U.S. Government Works.                                     3
Shenoy v. Jean, Not Reported in S.W.3d (2011)



                                                               In the “Causation” section, the report further states:
*5 An expert report must include a fair summary of the
causal relationship between the defendant’s failure to                      Ms. Jean was a patient who was
meet the appropriate standard of care and the injury,                       still recovering from her MI who
harm, or damages claimed. TEX. CIV. PRAC. &                                 never should have undergone
REM.CODE ANN. § 74.351(r)(6). An expert cannot                              elective surgery. By continuing to
merely state his conclusions or “provide insight” about                     recommend        the    gallbladder
the plaintiffs’ claims, but must instead “explain the basis                 removal surgery, clearing her for
of his statements to link his conclusions to the facts.”                    surgery and performing surgery,
Wright, 79 S.W.3d at 52.In explaining causation, the                        Ms. Jean’s healthcare providers
report must explain how the physician’s conduct caused                      breached and violated the standards
the plaintiff’s injuries. Id. at 53.                                        of care as set forth above and
                                                                            proximately caused her death.

                                                               Finally, Mazzei states for a patient like Willie Ann “it
A. Assertions in Mazzei’s expert report regarding              should have been expected that it would take her a
causation                                                      significant period of time before she was capable of being
Mazzei’s report asserts that the applicable standard of        extubated to breathe on her own .”
care breached by Shenoy included the responsibility to
consider all of Willie Ann’s co-morbidities because these
conditions placed Willie Ann “at an unacceptably high
risk for complications from surgery and anesthesia.” The       B. Adequacy of the report concerning Shenoy
report identifies two risks from the surgery and               *6 Mazzei’s report states that the medical conditions that
anesthesia: (1) the stresses placed upon the cardiovascular    rendered Willie Ann unfit for surgery caused the
and respiratory system during surgery and anesthesia and       complications that arose when she was extubated (“these
(2) the depression of the central nervous system and the       complications occurred because of the medical
resulting risk of “experiencing cardiovascular and             conditions”). What he fails to do is provide a factual
respiratory problems.” It also generally states that a         underpinning for that conclusion explaining why or how
patient’s medical history may increase these risks. It does    this occurred and whether it was all her medical
not, however, quantify or otherwise describe the               conditions listed in his report or her myocardial infarction
magnitude of risk for respiratory problems for a person        in particular that made the risk unacceptable and caused
undergoing this surgery with normal health or compare          her respiratory arrest. These omissions make the report
that risk to the risk for a person with pre-existing medical   conclusory and deficient for purposes of section 74.351.
conditions like Willie Ann’s. According to the report,
these risks are addressed by intubating the patient “so the
anesthesiologist can ventilate the patients while their
central nervous system is depressed” and that intubation       1. Expert reports cannot be conclusory to satisfy section
normally continues “until the patient is able to again         74.351.
breathe on [his] own.” The report continues:                   An opinion on causation stated without the underlying
                                                               facts is conclusory. Jelinek v. Casas, 328 S.W.3d 526,
            .... Although complications arose as               536 (Tex.2010); Arkoma Basin Exploration Co., Inc. v.
            Ms. Jean was extubated following                   FMF Assocs. 1990–A, Ltd., 249 S.W.3d 380, 389 n. 32
            surgery,     these     complications               (Tex.2008). A conclusory opinion is not probative. City of
            occurred because of the medical                    San Antonio v. Pollock, 284 S.W.3d 809, 818 (Tex.2009);
            conditions that should have lead                   see Zamecnik v. Indian Prairie Sch. Dist. No. 204, 636
            Dr. Shenoy to conclude that Ms.                    F.3d 874, 881 (7th Cir.2011) (stating that mere
            Jean was not an appropriate                        conclusions are useless to the court).
            surgical candidate. If Ms. Jean had
            not undergone elective surgery on                  This rule is not a mere procedural hurdle. Juries—or in
            February 19, 2008, she would not                   the case of expert reports, judges—are often confronted
            have experienced the respiratory                   with conflicting expert testimony. One expert may testify
            arrests that resulted from her                     that X caused the plaintiff’s injuries while a different
            extubation and she would have, in                  expert may testify that X did not cause the plaintiff’s
            all probability, survived.                         injuries. The factfinder typically lacks the expertise
                                                               necessary to form an opinion without expert assistance—

               © 2015 Thomson Reuters. No claim to original U.S. Government Works.                                      4
Shenoy v. Jean, Not Reported in S.W.3d (2011)



this is why expert testimony is admitted in the first place.    In Gray, this court held that the expert report contained a
See TEX.R. EVID. 702. It is the expert’s explanation of         conclusory statement concerning causation. 189 S.W.3d
“how” and “why” causation exists that allows the                at 860. The report stated that “[t]he failure to monitor and
factfinder to weigh the credibility of the expert’s opinion     detect the malpositioned left knee resulted in a dislocated
and, when expert opinions conflict, to decide which             left patella, severe pain and suffering, and subsequent
testimony to disregard. Cf. In re Christus Spohn Hosp.          medical treatment.” Id . at 858. Like the Supreme Court in
Kleberg, 222 S.W.3d 434, 440 (Tex.2007) (detailing              Jelinek, this court faulted the causation opinion for failing
reasons why it is essential that the jury have access to the    to “convincingly tie the alleged departure from the
facts and data underlying an expert’s testimony in order        standard of care to specific facts of the case.” Id. at 860.
“to accurately assess the testimony’s worth.”). With
respect to expert reports in healthcare liability claims, the
expert’s explanation is what allows the trial court to
determine whether the claim has merit. See Jelinek, 328         2. Mazzei’s report was conclusory on the issue of
S.W.3d at 539; see also Scoresby, 346 S.W.3d at 552             causation
(observing that Legislature enacted expert report               Mazzei’s causation opinion regarding Shenoy’s decision
requirement to elicit expert opinions at an early stage of      to clear Willie Ann for surgery was conclusory. Although
the litigation to allow the trial court to determine that a     Mazzei’s report states that anesthesia depresses the
basis exists for concluding that the claims have merit).        respiratory system and places stress on the heart, the
Expert testimony that merely states a final conclusion on       report does not state that Willie Ann’s history of heart
an essential element of a cause of action—such as               problems or other conditions somehow made her more
causation—without providing a factual basis for that            likely to suffer respiratory arrest after premature
conclusion does not aid the jury in its role as factfinder      extubation than a person without those medical
but, rather, supplants it. This, an expert may not do. See      conditions. It does not state that her risks for the
Greenberg Traurig of N.Y., P.C.v. Moody, 161 S.W.3d             complications that she experienced—respiratory arrest—
56, 97 (Tex.App.-Houston [14th Dist.] 2004, no pet.)            were enhanced because of her medical conditions. The
(“Expert testimony is admissible to aid the jury in its         report does generally discuss why Willie Ann’s other
decision, but it may not supplant the jury’s decision.”).       conditions affected her suitability for surgery, but does
Similarly, an expert report that merely asserts that a          not link her medical conditions to the complication she
defendant physician’s breach caused the plaintiff’s injury      experienced, respiratory arrest. It recognizes that a
without providing a factual basis does not provide the trial    depressed central nervous system and the resulting risk of
court with the information necessary to evaluate the            respiratory problems are normal byproducts of anesthesia
merits of the plaintiff’s claim. See Jelinek, 328 S.W.3d at     for even a person with normal health. In other words,
529.                                                            Mazzei’s report shows that the surgery itself created the
                                                                risk and does not state how or why Willie Ann’s pre-
*7 The requirement that the expert’s opinion must not be        existing conditions changed those risks except in
conclusory applies not only to trial testimony, but to          conclusory terms. The report also states that those risks
expert reports required by section 74.351(a). See Jelinek,      can be addressed by leaving her intubated for “a
328 S.W.3d at 539–40; Wright, 79 S.W.3d at 53.In                significant period of time” before extubation. Mazzei’s
Jelinek, the Texas Supreme Court found the trial court          report makes it clear that he believes that the premature
abused its discretion in denying a motion to dismiss            extubation was the immediate cause of her death.
because the expert’s opinion on causation was conclusory.
328 S.W.3d at 539–40. The expert’s report stated that           *8 A report may be sufficient if it states a chain of events
“[the defendant’s] breach of the appropriate standard of        that begin with a health care provider’s negligence and
care in ‘reasonable medical probability, resulted in a          end in a personal injury. See Patel v. Williams, 237
prolonged hospital course and increased pain and                S.W.3d 901, 905 (Tex.App.-Houston [14th Dist.] 2007,
suffering being experienced by [the plaintiff].’ “ Id. at       no pet.); see also Engh v. Reardon, No. 01–09–00017–
539. The Court emphasized, “[T]he report says nothing           CV, 2010 WL 4484022, at *8 (Tex.App.-Houston [1st
more regarding causation.” Id. The Court faulted the            Dist.] Nov. 10, 2010, no pet.) (mem.op.). But neither case
report for offering no explanation “tying the conclusion to     involved an event as remote as that involved here.
the facts” or of “how and why the breach caused the
injury based on the facts presented.” Id. at 539–40. This is    In Patel, the Fourteenth Court of Appeals held that an
precisely the information missing here: the how and the         expert report sufficiently set forth causation when it
why.                                                            presented a chain of events beginning with an allegedly
                                                                negligent prescription and ending with the patient’s death.
                                                                Patel, 237 S.W.3d at 905–06. Patel prescribed Williams

                © 2015 Thomson Reuters. No claim to original U.S. Government Works.                                    5
Shenoy v. Jean, Not Reported in S.W.3d (2011)



an anti-dementia drug. Id. at 903. The report explained        cause of Willie Ann’s death if all that is necessary is for
that the drug was not FDA-approved for patients with           an event to have preceded the injury.
Williams’s ailment and that known side-effects of the
drug included restlessness or a need to keep moving. Id.       *9 To establish cause in fact, Mazzei had to discuss why
Williams’s family withdrew consent for the drug, but           the act or omission was a substantial factor in causing the
Patel continued to prescribe it. Id. Williams was being fed    injury and without which the harm would not have
via feeding tube, and allegedly due to the restlessness        occurred. W. Invs., Inc. v. Urena, 162 S.W.3d 547, 551
from the drug, she removed the tube. Id. The report            (Tex.2005); see also Transcon. Ins. Co. v. Crump, 330
identified nurses’ notes that described Williams as            S.W.3d 211, 214 (Tex.2010) (stating that plaintiff must
agitated and stated that she kept pulling at her feeding       prove “cause in fact (or substantial factor)”); Ford Motor
tube. Id. The nursing staff improperly re-inserted the tube,   Co. v. Ledesma, 242 S.W.3d 32, 46 (Tex.2007) (stating
causing a small cut, which became infected because of the      that producing cause requires that (1) the cause must be a
contents of the feeding tube entering the cut. Id. The cut     substantial cause of the event in issue and (2) it must be a
developed into an abscess requiring multiple surgeries. Id.    but-for cause, namely one without which the event would
The report concluded that Williams’s death was caused by       not have occurred). The report does not do so. Mazzei’s
the infection from the improperly re-inserted feeding tube.    report does not link facts from the alleged negligence in
Id. at 904. The Fourteenth Court held that the trial court     clearing her for surgery to Willie Ann’s death. Willie Ann
did not abuse its discretion in determining the report was     did not suffer a cardiac arrest during or after the surgery;
not conclusory or speculative concerning causation. Id. at     she suffered respiratory arrest and only after a premature
905–06.                                                        extubation. Mazzei does not state that Willie Ann suffered
                                                               any unusual respiratory issue during the surgery itself; the
The report in this case is distinguishable. The report         surgical procedure was “uneventful.” And based on
identifies the alleged breach—clearing Willie Ann for          Mazzei’s report, it appears that any patient—healthy or
surgery with her medical history—as did the report in          with a history of medical conditions—who is prematurely
Patel—prescribing an unapproved drug without consent.          extubated will not sufficiently “maintain the oxygenation
See id. But there the similarities end. In Patel, the report   in the blood” and therefore is at risk for respiratory arrest.
explained that a known side effect of the drug was             The mere fact that Willie Ann was cleared for surgery
restlessness, and the restlessness caused Williams to          before her death does not mean that the clearance for
become agitated and remove her feeding tube. Id . Willie       surgery caused her death. Jelinek, 328 S.W.3d at 533
Ann likewise became agitated and removed her breathing         (cautioning against the post hoc ergo propter hoc fallacy,
tube. The report, however does not explain any                 that is, reasoning that an earlier event caused a later event
connection between clearing Willie Ann for surgery or          simply because it occurred first).
her medical history and her agitation. While the report in
Patel explained each step on the path of causation, the        A causal link can be too attenuated to satisfy the causation
report in this case does not.5                                 requirement for an expert report. See Gonzalez v. Sebile,
                                                               No. 09–09–00363–CV, 2009 WL 4668892, at *4
There were “many links in the chain of events” that began      (Tex.App.-Beaumont Dec. 10, 2009, pet. denied)
with the pre-surgical clearance and ended with her death,      (mem.op.). In Gonzalez, the physician was sued for
but Mazzei failed to explain and support each link. While      clearing the patient for surgery without obtaining a
Mazzei explains how Willie Ann’s premature extubation          cardiologist consultation despite an earlier open heart
prevented her from “maintain[ing] the oxygenation in the       surgery. 2009 WL 4668892at *2. According to the
blood,” increasing her risk for respiratory arrest, he fails   plaintiffs, the defendant anesthesiologist fell below the
to explain what role her pre-existing medical conditions       standard of care by failing to disqualify the plaintiff as not
played in her respiratory arrest. It is here that we part      fit for surgery in part because of the risks of general
company with the trial court and find that it abused its       anesthesia. Id. The court held that the report’s statement
discretion. Mazzei does not link the alleged negligence—       that the plaintiff would not have been injured if he had not
clearing Jean for surgery—with the premature extubation        undergone surgery in the first place was “too attenuated to
except that one occurred before the other. That is not         set forth evidence of causation with sufficient specificity
enough; it is only a statement of “but for” causation. If      to inform” the physician of the alleged misconduct and to
that is all that section 74.351 requires to demonstrate        allow the trial court to conclude that the plaintiff’s claims
causation, almost any prior action taken by a health care      had merit. Id . at *3. Mazzei’s report suffers from the
provider could be said to cause the ultimate outcome. For      same defect.
example, the referral by the emergency room physician
for the surgical consultation with Dr. Shenoy also was a       While Mazzei’s report “provides insight” concerning the
                                                               claims surrounding Jean’s death, it does not link the facts
               © 2015 Thomson Reuters. No claim to original U.S. Government Works.                                     6
Shenoy v. Jean, Not Reported in S.W.3d (2011)



of the decision to clear her for surgery to the conclusion               Shenoy, we conclude that, with respect to Zuniga, the
that Shenoy’s alleged breach of the standard of care                     report fails to explain how and why Zuniga’s clearing of
caused Jean’s death. It does not, therefore, provide a basis             Willie Ann for surgery caused her death, fails to
for the trial court to have concluded that causation was                 demonstrate the causal link necessary to have a
demonstrated for Shenoy’s decision to clear Willie Ann                   meritorious claim, and is conclusory and inadequate. See
for surgery. See Palaciois, 46 S.W.3d at 879 (report must                Gray, 189 S.W.3d at 860; Jelinek, 328 S.W.3d at 539–40.
provide basis for concluding that claims have merit). We
conclude, therefore, that the report is conclusory and                   We sustain this portion of Zuniga’s sole issue.6
inadequate with respect to Shenoy. See Gray, 189 S.W.3d
at 860; see also Jelinek, 328 S.W.3d at 539–40 (finding
report inadequate concerning causation because it did not
explain “how and why the breach caused the injury based
on the facts presented”).                                                                          Conclusion

*10 We sustain this portion of Shenoy’s second issue.                    We reverse and render an order dismissing the claims
                                                                         against Shenoy and Zuniga.


B. Adequacy of the report concerning Zuniga
Penny has not alleged, and Mazzei’s report does not                      SHARP, J., dissenting. Dissent to follow.
assert, that Zuniga negligently performed surgery; rather,
the surgery is described as “uneventful.” For the same
reasons that the report is inadequate as to causation for

Footnotes
1      See TEX. CIV. PRAC. & REM.CODE ANN. § 51.014(a)(9) (West 2011).

2      See Bowie Mem’l Hosp. v. Wright, 79 S.W.3d 48, 53 (Tex.2002) (review of Chapter 74 report is limited to four corners of
       report).
3      Only Shenoy and Zuniga are parties to this appeal.

4      See TEX. CIV. PRAC. & REM.CODE ANN. § 74.351(a).

5      The report in this case is similarly distinguishable from the report in Engh. In Engh, the report identified the alleged breach-
       placing a surgical clip on the ureter during surgery. 2010 WL 4484022 at *6. The report also explained the consequences of a
       clipped ureter. Specifically, the report detailed how damage to and, eventually, loss of the kidney would result from clipped
       ureter. Id. Thus, this court found the report adequate, although Engh saw multiple other doctors and several months passed after
       his surgery and before he lost his kidney. Id. at *10. The report explained how the alleged breach caused the loss of Engh’s
       kidney, while the report here contains no explanation of how clearing a patient with a history like Willie Ann’s causes
       premature extubation, self-extubation, or the eventual death of the patient.
6      Because we have sustained Shenoy’s second issue in part and Zuniga’s sole issue in part, we do not address the other arguments
       raised by the parties. See TEX.R.APP. P. 47.1.




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
Smith v. Wilson, 368 S.W.3d 574 (2012)




                                                             appellee Janet Lynn Wilson’s suit for medical
                  368 S.W.3d 574                             malpractice. We reverse the trial court’s order and remand
              Court of Appeals of Texas,                     for dismissal and determination of attorney’s fees.
                       Austin.

   Ted SMITH, D.O.; and Austin Regional Clinic,
                P.A., Appellants,
                                                                      Factual and Procedural Background
                        v.
         Janet Lynn WILSON, Appellee.                        On August 6, 2007, Wilson’s son, Keith Michael Harris,
                                                             went to see Dr. Smith, complaining of depression and
No. 03–10–00387–CV. | Jan. 11, 2012. | Rehearing
                                                             stress. Harris was twenty-three years old and had recently
           Overruled May 7, 2012.
                                                             broken up with his girlfriend. Smith prescribed fluoxetine1
                                                             with twelve refills and did not schedule a follow-up visit.
Synopsis                                                     On September 5, 2007, Harris committed suicide.
Background: Medical malpractice action was brought
against physician and clinic, after patient who had been     Wilson sued appellants, alleging that Smith was negligent
prescribed anti-depressant committed suicide. The 53rd       in prescribing fluoxetine and in not scheduling a follow-
Judicial District Court, Travis County, Suzanne              up visit with Harris, that ARC was vicariously liable as
Covington, J., denied defendants’ motion to dismiss due      Smith’s employer, and that their negligence was a
to deficient expert report, and defendants appealed.         proximate cause of Harris’s death. Wilson timely served
                                                             an expert report by Dr. John T. Maltsberger. See Tex. Civ.
                                                             Prac. & Rem.Code Ann. § 74.351 (West 2011). In his
                                                             report, Maltsberger stated that the accepted standard of
[Holding:] The Court of Appeals, David Puryear, J., held     care that should be employed when prescribing fluoxetine
that expert’s medical report was not good faith attempt to   required a doctor to obtain a description of the patient’s
comply with medical expert report requirements.              “anxious and depressive symptoms” and a full psychiatric
                                                             history. He opined that Smith breached that standard of
                                                             care because he did not “obtain and record” Harris’s
Reversed and remanded.                                       symptoms of anxiety and depression or his full psychiatric
                                                             history. Maltsberger stated that there was a generally
                                                             recognized relationship between fluoxetine and suicide in
Attorneys and Law Firms                                      adolescents and young adults and that “adolescents with
                                                             psychiatric disorders” had a greater risk of suicidal
*575 Diana L. Faust, R. Brent Cooper, Richard C. Harrist,
                                                             thoughts and behavior in “the first few months of
Cooper & Scully, PC, Dallas, TX, for Appellant.
                                                             treatment” when prescribed fluoxetine. Maltsberger *576
Dan Ballard, Stacey J. Simmons, Ballard & Simmons,           concluded by stating, “[I]t is my opinion that more likely
LLP, Austin, TX.                                             than not, had Keith Harris not been prescribed fluoxetine,
                                                             he would not have committed suicide.”
Jay Harvey, Winckler & Harvey, LLP, Austin, TX, for
Appellee.                                                    Appellants objected to the report, asserting it was
                                                             deficient because it was conclusory with regard to
Before Chief Justice JONES, Justices PURYEAR and             causation. Appellants also noted that the report did not
PEMBERTON.                                                   mention ARC at all, much less level any criticism against
                                                             it, and argued that it therefore amounted to no expert
                                                             report at all as to ARC. The trial court found that
                                                             Maltsberger’s report qualified as a report but was
                                                             inadequate, denied appellants’ motion to dismiss, and
                                                             gave Wilson thirty days to remedy the report’s
                       OPINION                               deficiencies. Wilson filed an amended report providing
                                                             essentially the same opinions, but adding more detail to
DAVID PURYEAR, Justice.                                      the causation paragraph.2 Maltsberger changed his
                                                             statements about the relationship between fluoxetine and
Appellants Ted Smith, D.O., and Austin Regional Clinic
                                                             suicidal thinking and behavior to refer only to
(“ARC”) appeal from the denial of their motion to dismiss
               © 2015 Thomson Reuters. No claim to original U.S. Government Works.                                1
Smith v. Wilson, 368 S.W.3d 574 (2012)



adolescents, removing his prior inclusion of “young            medical defendant may file an objection to the report’s
adults.”3 Maltsberger concluded:                               sufficiency and a motion to dismiss the plaintiff’s liability
                                                               claims. See id. § 74.351(a), (b).

   Based on the information provided to me to date, it is      [2]
                                                                  When the adequacy of a report is challenged, the trial
   my opinion that Keith Harris was a suicide-vulnerable,      court should only sustain the objections if it determines
   depressed young man. As outlined in the studies             “that the report does not represent an objective good faith
   described above, fluoxetine worsened his depression         effort to comply with the definition of an expert report.”
   and agitated this patient, driving him beyond his           Id. § 74.351(l ); see American Transitional Care Ctrs. of
   capacity for endurance. It is my opinion that more          Tex., Inc. v. Palacios, 46 S.W.3d 873, 878 (Tex.2001).
   likely than not, fluoxetine was a significant cause that    The trial court should confine its inquiry to the four
   worsened the emotional burden of Mr. Harris’s illness       corners of the report, which must include the expert’s
   and that without it he would not have committed             opinion on all three statutory elements and “ ‘must
   suicide.                                                    explain the basis of [the expert’s] statements to link his
Appellants filed another motion to dismiss, asserting that     conclusions to the facts.’ ” Bowie Mem’l Hosp. v. Wright,
the new report was deficient because Maltsberger “never        79 S.W.3d 48, 52 (Tex.2002) (quoting Earle v. Ratliff,
connects the dots and says that based on the history or        998 S.W.2d 882, 890 (Tex.1999)). If the trial court finds a
presentation that existed had Dr. Smith obtained an            report deficient, the plaintiff’s claims against the medical
adequate history, he should not have prescribed Prozac.”       defendant are subject to dismissal unless the court grants
Appellants further asserted:                                   “one 30–day extension to the claimant in order to cure the
                                                               deficiency.” Tex. Civ. Prac. & Rem.Code Ann. §
            [Maltsberger] never states that                    74.351(c), (l ). If an expert report is not timely served, the
            based on the information available                 trial court must dismiss the claims against the medical
            to Dr. Smith at the time that he was               defendant if the defendant files a motion to dismiss. Id. §
            treating Mr. Harris, Dr. Smith                     74.351(b).
            should have concluded that Mr.
                                                               [3] [4]
            Harris was suicide-vulnerable. As                        “A report need not marshal all the plaintiff’s proof,”
            an expert, he is supposed to analyze               but to be considered a good-faith effort to satisfy the
            Dr. Smith’s actions based on the                   statute, it must do more than simply provide the expert’s
            information that was available to                  conclusions as to standard of care, breach, and causation.
            him at the time. His failure to do so              Palacios, 46 S.W.3d at 878–79. Instead, the report “must
            renders his opinions conclusory,                   discuss the standard of care, breach, and causation with
            and therefore, not adequate.                       sufficient specificity to inform the defendant of the
                                                               conduct the plaintiff has called into question and to
Appellants also reasserted that because Maltsberger’s          provide a basis for the trial court to conclude that the
report made no reference to or criticism of ARC, it did not    claims have merit.” Id. at 875. We review a trial court’s
qualify as an expert report on those claims. The trial court   denial of a motion to dismiss under section 74.351 for an
denied appellants’ motion to dismiss, and appellants filed     abuse of discretion, but if an expert report contains only
this appeal. See id. § 51.014(a)(9) (West 2008).               conclusions about the statutory elements, the trial court
                                                               has “no discretion but to conclude ... that the report does
                                                               not represent a good-faith effort” to satisfy the statute. Id.
                                                               at 877, 880.
                         Analysis                              After appellants objected to the sufficiency of
[1]
   Within 120 days of the date a plaintiff files a health-     Maltsberger’s original report, the trial court gave Wilson
care-liability claim, she must serve each physician or         the opportunity to provide an amended report. The new
health care provider against whom claims are asserted          report, however, added very little to Maltsberger’s
(“medical defendant”) with at least one expert report that     statements related to Smith’s alleged breach of the
summarizes the expert’s opinions “regarding applicable         standard of care and causation, including only one
standards *577 of care, the manner in which the care           additional paragraph that stated that Harris was “a
rendered by the physician or health care provider failed to    suicide-vulnerable, depressed young man” and that
meet the standards, and the causal relationship between        fluoxetine worsened his depression and led to his suicide.4
                                                               Wilson asserts that this report “provides, in its four
that failure and the injury, harm, or damages claimed.” Id.
                                                               corners, that but for prescribing the medication the patient
§ 74.351(a), (r)(6). After an expert report is filed, a
                                                               would not have committed suicide.” That may be true, but

               © 2015 Thomson Reuters. No claim to original U.S. Government Works.                                     2
Smith v. Wilson, 368 S.W.3d 574 (2012)



despite Maltsberger’s opinion that fluoxetine worsened                   and Harris’s suicide, one of the required statutory
Harris’s mental state and “without it he would not have                  elements of an expert report. See Tex. Civ. Prac. &
committed suicide,” the report does not explain how                      Rem.Code Ann. § 74.351(r)(6) (expert report must
taking more complete medical records from Harris would                   include “fair summary” of expert’s opinion as to “causal
have made Smith aware that fluoxetine would put Harris                   relationship” between medical defendant’s failure to meet
at risk for suicidal thoughts or action and *578 would                   standard of care and injury).
have dissuaded Smith from prescribing fluoxetine. In
other words, the report does not show how Smith’s                        Further, Maltsberger states that studies have shown a
alleged breach of the standard of care caused the tragic                 relationship between fluoxetine and suicide in adolescents
result. See Taylor v. Fossett, 320 S.W.3d 570, 577–78                    and that fluoxetine increases the risk of suicidal thoughts
(Tex.App.-Dallas 2010, no pet.) (report did not provide a                and behavior in adolescents with psychiatric disorders. He
factual explanation of how doctor’s delay in diagnosis or                does not, however, state that fluoxetine should never be
treatment caused complications); Estorque v. Schafer, 302                prescribed to adolescents, nor does he explain whether
S.W.3d 19, 28–29 (Tex.App.-Fort Worth 2009, no pet.)                     fluoxetine is always inappropriate *579 for all
(expert report left “gaps by not explaining how or why the               adolescents, whether some adolescents can safely take it,
physicians’ failure to consult a urologist or gynecologist               or, more importantly, whether the findings related to
caused worsening or progression of Shirley’s listed                      adolescents could even be applied to Harris, who at
conditions” and did not explain how plaintiff would not                  twenty-three was not an adolescent. Without more,
have been injured had defendants obtained consults from                  Maltsberger’s statement that a correlation exists between
specialists); Johnson v. Willens, 286 S.W.3d 560, 565                    fluoxetine and suicide in adolescents does not supply a
(Tex.App.-Beaumont 2009, pet. denied) (report did not                    causal link between the prescribing of fluoxetine and
explain what “normal dose” would have been, why                          Harris’s suicide.
prescribed dose was excessive, what patient complained
of, or what proper treatment would have been); see also                  To be sure, Maltsberger was not required to provide an
Wright, 79 S.W.3d at 53 (affirming trial court’s                         exhaustive, lengthy summary of how Smith’s omissions
determination that report was insufficient because it                    caused Harris’s suicide or what aspects of Harris’s
lacked “information linking the expert’s conclusion ... to               medical records led Maltsberger to conclude that
Bowie’s alleged breach”); Gray v. CHCA Bayshore L.P.,                    fluoxetine was an inappropriate and dangerous
189 S.W.3d 855, 859–60 (Tex.App.-Houston [1st Dist.]                     prescription, but he provides literally no summary of such
2006, no pet.) (affirming trial court’s finding that report              information. We are left with no choice but to conclude
was insufficient because it did not provide any specific                 that the report does not provide a fair summary of the
information about what defendants should have done or                    causal link between Smith’s alleged shortcomings and
“convincingly tie the alleged departure from the standard                Harris’s death. See Taylor, 320 S.W.3d at 577–78;
of care to specific facts of the case”).                                 Estorque, 302 S.W.3d at 28–29; Johnson, 286 S.W.3d at
                                                                         565. Because the report is insufficient as to Smith, it is
Maltsberger’s report essentially states that (1) the                     also insufficient as to ARC, which Wilson sued solely for
applicable standard of care required Smith to obtain and                 vicarious liability for Smith’s conduct. See Kettle v.
record a description of Harris’s symptoms and a complete                 Baylor Med. Ctr., 232 S.W.3d 832, 842–43 (Tex.App.-
psychiatric history, (2) Smith neglected to get a                        Dallas 2007, pet. denied) (affirming dismissal of suit
description of the symptoms or a complete psychiatric                    against professional association due to deficiencies in
history in deciding to prescribe fluoxetine, and (3)                     report about doctor’s conduct, stating that whether
fluoxetine worsened Harris’s emotional state to the point                association was directly or vicariously liable, “liability
where he committed suicide. Maltsberger does not,                        still depends on conduct” of doctor).
however, provide even the roughest summary of the
information Smith should have gleaned from Harris’s                      We reverse the trial court’s order denying appellants’
psychiatric past or symptoms that would have stopped                     motion to dismiss. We remand the cause to the trial court
Smith from prescribing fluoxetine or whether Harris’s                    for the determination of attorney’s fees, see Tex. Civ.
symptoms or history actually contained information that                  Prac. & Rem.Code Ann. § 74.351(b), and for entry of a
would have indicated that fluoxetine was not an                          final order dismissing Wilson’s claims against appellants.
appropriate prescription.5 He does not provide facts to
explain the causal link between Smith’s alleged breach

Footnotes
1      Fluoxetine is the generic name for Prozac, an anti-depressant. We will refer to the drug as fluoxetine except when quoting the

               © 2015 Thomson Reuters. No claim to original U.S. Government Works.                                                      3
Smith v. Wilson, 368 S.W.3d 574 (2012)



      record, in which the terms seem to be used interchangeably.
2     The amended report is two and one-half pages long, and the actual summaries of the standard of care, breach, and causation are
      covered in slightly over one page.
3     This is a noteworthy omission, since Harris, as a twenty-three-year-old man, was not what is generally considered an
      adolescent. See Webster’s Third New Int’l Dictionary 28 (2002) (defining adolescence as “the period of life from puberty to
      maturity terminating legally at the age of majority”); see also medical-dictionary.thefreedictionary.com/adolescence (last visited
      January 5, 2012, citing Mosby’s Med. Dictionary (2009), Miller–Keane Encyclopedia & Dictionary of Med., Nursing, & Allied
      Health (2003)) (defining adolescence as time between puberty and adulthood, usually running from between eleven and thirteen
      and between eighteen and twenty).
4     Although Wilson alleged in her petition that Smith breached the standard of care by not scheduling a follow-up visit with
      Harris, neither of Maltsberger’s reports discusses follow-up visits or states whether a follow-up should have been scheduled,
      when such a visit would have been appropriate, or whether it would have made a difference in this case.
5     Wilson cites to Bakhtari v. Estate of Dumas, 317 S.W.3d 486 (Tex.App.-Dallas 2010, no pet.), stating Bakhtari is a “strikingly
      similar case.” The expert report in Bakhtari, however, provided substantially more information than the report presented here.
      The Bakhtari report explained that the medication in question should only have been prescribed for very short-term use, no
      refills should have been given, the patient should have been warned of possible side-effects, the doctor should have consulted
      with or referred the patient to a mental-health professional, and the doctor should have provided or arranged for “on-going
      assessment and monitoring” of the patient’s condition. Id. at 496–97 nn. 9, 10. Maltsberger’s cursory report bears very little
      similarity to the specificity and explanations provided in the Bakhtari report.




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.                                                     4
Strom v. Memorial Hermann Hosp. System, 110 S.W.3d 216 (2003)




                                                               individually and d/b/a Sugar Land Orthopedic Associates
                                                               (Dr. Blum). Strom appeals to challenge orders that
                    110 S.W.3d 216
               Court of Appeals of Texas,                      dismissed those claims, with prejudice, on the grounds
                 Houston (1st Dist.).                          that the expert reports she provided to support those
                                                               claims under section 13.01(d) of article 4590i, the Medial
          Florence M. STROM, Appellant,                        Liability and Insurance Improvement Act, did not comply
                         v.                                    with section 13.01(r)(6) of that statute.1 We address (1)
   MEMORIAL HERMANN HOSPITAL SYSTEM                            whether Strom’s expert reports constituted a fair summary
      d/b/a Memorial Hospital Southwest and                    of the standard of care required by Dr. Blum and the
  Memorial Hospital System, and Dr. Henry Blum,                Hospital, (2) whether the trial court erred by refusing to
   Individually and d/b/a Sugar Land Orthopedic                grant Strom an extension of time to amend her expert
            Associates, P.A., Appellees.                       reports, (3) whether Dr. Blum waived his challenge to the
                                                               adequacy of Strom’s expert reports by not asserting the
       No. 01–01–00756–CV. | May 29, 2003.                     challenge until 180 days after Strom filed suit, (4)
                                                               whether the trial court erred in awarding $5,000 in
Patient brought health-care liability claims against           attorney’s fees to the hospital, (5) the constitutionality of
hospital and doctor. The 164th District Court, Harris          article 4590i, section 13.01(d), and (6) whether the trial
County, Martha Hill Jamison, J., dismissed claims. Patient     court erred in dismissing Strom’s claims of fraud,
appealed. The Court of Appeals, Tim Taft, J., held that:       intentional and fraudulent misrepresentations, and
(1) reports of patient’s experts failed to provide a “fair     “unnecessary surgery” against Dr. Blum. We affirm.
summary” of the experts’ opinions as to the elements of
standard of care and causation; (2) patient was not entitled
to additional time to amend insufficient expert reports; (3)
award of $5,000 in attorney fees as a sanction against
patient was proper; (4) dismissal of patient’s action did                             Background
not violate constitutional guarantees.
                                                               Strom sued the hospital claiming that hospital surgical
Affirmed.                                                      nursing staff improperly positioned her in preparation for
                                                               neck surgery performed at the hospital October 4, 1996,
Mirabal, J., dissented and filed opinion.                      and caused injury to her left knee. Strom also sued Dr.
                                                               Blum, an orthopedic surgeon who later treated the left
                                                               knee and performed a total knee replacement, claiming he
Attorneys and Law Firms                                        was negligent and grossly negligent because the surgery
                                                               was unnecessary. Strom sued the hospital in October 1998
*218 John H. Holloway, Houston, for Appellant.                 and sued Dr. Blum a year later.

Sam A. Houston, Cruse, Scott, Henderson & Allen,               On April 25, 2001, the hospital moved the trial court to
Solace H. Kirkland, Andrews & Kurth, David W. Hodges,          either dismiss Strom’s case against the hospital or require
Mayor, Day, Caldwell & Keeton, L.L.P., Houston, for            her to file a cost bond, on the grounds she had missed the
Appellee.                                                      90–day and the 180–day requirements of article 4590i,
Panel consists of Justices TAFT, HANKS,* and                   section 13.01 by not filing expert reports in compliance
MIRABAL.**                                                     with that statute. See TEX.REV.CIV. STAT. ANN.. art.
                                                               4590i, § 13.01(a), (d), (e)(3) (Vernon Supp.2003). With
                                                               respect to the 180–day requirement, the hospital
                                                               acknowledged that Strom had provided expert reports in
                                                               attempted compliance with section 13.01(d),2 but argued
                                                               that the reports were “insufficient as a matter of law”
                     *219 OPINION
                                                               under section 13.01(r)(6) because they did not provide a
TIM TAFT, Justice.                                             “fair summary” of the applicable standard of care, how it
                                                               was breached, or the causal relationship between the
Appellant, Florence M. Strom, filed health-care liability      alleged breach and Strom’s injuries, as required by that
claims against appellees, Memorial Hermann Hospital            section. See TEX.REV.CIV. STAT. ANN.. art. 4590i, §
System d/b/a Memorial Hospital Southwest and Memorial          13.01(d), (r)(6) (Vernon Supp.2003). The hospital also
Hospital System (the hospital) and Dr. Henry Blum,             requested attorney’s fees, as authorized by

               © 2015 Thomson Reuters. No claim to original U.S. Government Works.                                    1
Strom v. Memorial Hermann Hosp. System, 110 S.W.3d 216 (2003)



13.01(e)(1). See TEX.REV.CIV. STAT. ANN.. art. 4590i,            Dismissals with Prejudice for Insufficient Reports
§ 13.01(e)(1) (Vernon Supp.2003). After conducting a
hearing on May 14, 2001, the trial court dismissed             Strom’s first four points of error challenge dismissal of
Strom’s claims against the hospital, with prejudice, and       her claims against Dr. Blum as an abuse of discretion. In
awarded the hospital $5,000 in attorney’s fees and costs.      points of error five through seven, Strom challenges the
                                                               dismissal against the hospital on the same grounds.
*220 Four days later, on May 18, 2001, Dr. Blum filed a
similar motion to dismiss. The trial court granted this        All health-care liability claims must comply with section
motion and dismissed Strom’s claims against Dr. Blum in        13.01(d) of article 4590i. TEX.REV.CIV. STAT. ANN..
an order signed on August 18, 2001. This order recites         art. 4590i, § 13.01(d) (Vernon Supp.2003). Section
that the trial court considered Strom’s counsel’s sworn        13.01(d) requires that a plaintiff asserting a health-care
testimony, and also reflects the trial court’s findings and    liability claim must, not later than 180 days after filing
conclusions in granting relief.                                suit, either: (1) furnish an expert report, with supporting
                                                               curriculum vitae, to counsel for each defending physician
                                                               or health-care provider; or (2) voluntarily nonsuit the
                                                               claim. TEX.REV.CIV. STAT. ANN.. art. 4590i, §
                                                               13.01(d) (Vernon Supp.2003). Article 4590i defines
                   Standard of Review                          “expert report” as a written report that:
[1]
    The abuse-of-discretion standard governs all article                    provides a fair summary of the
4590i, section 13.01 rulings. American Transitional Care                    expert’s opinions as of the date of
Ctrs. v. Palacios, 46 S.W.3d 873, 877 (Tex.2001); De                        the report regarding applicable
Leon v. Vela, 70 S.W.3d 194, 197 (Tex.App.-San Antonio                      standards of care, the manner in
2001, pet. denied). This standard inquires whether the                      which the care rendered by the
trial court acted without reference to any guiding rules or                 physician or health care provider
principles. Garcia v. Martinez, 988 S.W.2d 219, 222                         failed to meet the standards, and
(Tex.1999); Mueller v. Beamalloy, Inc., 994 S.W.2d 855,                     the causal relationship between that
858 (Tex.App.-Houston [1st Dist] 1999, no pet.). We may                     failure and the injury, harm, or
not reverse a discretionary decision simply because we                      damages claimed.
might have reached a different one. Mueller, 994 S.W.2d
at 858. When resolving factual issues or matters               TEX.REV.CIV. STAT. ANN.. art. 4590i, § 13.01(r)(6)
committed to the trial court’s discretion, we may not          (Vernon Supp.2003).
substitute our judgment for that of the trial court. Walker
v. Packer, 827 S.W.2d 833, 839 (Tex.1992).                     Section 13.01 acknowledges that medical-malpractice
[2]
                                                               cases require expert testimony *221 and the statute was
   Dismissals with prejudice for lack of compliance with       enacted to curtail frivolous lawsuits. See Palacios, 46
section 13.01 of article 4590i are sanctions. See              S.W.3d at 877; Hart v. Wright, 16 S.W.3d 872, 876
TEX.REV.CIV. STAT. ANN.. art. 4590i, § 13.01(e)                (Tex.App.-Fort Worth 2000, pet. denied). If the plaintiff
(Vernon Supp.2003) (“... [T]he court shall, on the motion      does not comply with section 13.01(d), and the defendant
of the affected physician or health care provider, enter an    seeks sanctions pursuant to section 13.01(e), the trial
order awarding as sanctions....”); Palacios, 46 S.W.3d at      court must grant the relief authorized by that section, as
877. In contrast to findings entered in support of a           follows: dismiss the claim against that defendant with
judgment after a bench trial under rule 296 of the Rules of    prejudice; award costs and attorney’s fees to that
Civil Procedure, findings entered in support of a sanction     defendant; and require that any bond filed under section
dismissing a cause, as entered here in the order granting      13.01 be forfeited to pay that award. TEX.REV.CIV.
Dr. Blum’s motion, are not binding on the reviewing            STAT. ANN.. art. 4590i, § 13.01(e)(1)-(3) (Vernon
court, although they are “helpful” in determining whether      Supp.2003); Palacios, 46 S.W.3d at 877; see also
the trial court exercised its discretion in a reasonable and   TEX.REV.CIV. STAT. ANN.. art. 4590i, § 13.01(l )
principled manner. See IKB Indus., Ltd. v. Pro–Line            (Vernon Supp.2003) (“A court shall grant a motion
Corp., 938 S.W.2d 440, 442 (Tex.1997) (appeal from             challenging the adequacy of an expert report only if it
dismissal as a sanction); Chrysler Corp. v. Blackmon, 841      appears to the court, after hearing, that the report does not
S.W.2d 844, 852 (Tex.1992) (mandamus review of                 represent a good faith effort to comply with the definition
dismissal as a sanction).                                      of an expert report in Subsection (r)(6) of this section.”);
                                                               In re Collom & Carney Clinic Ass’n, 62 S.W.3d 924, 928
                                                               (Tex.App.-Texarkana 2001, orig. proceeding) (holding

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Strom v. Memorial Hermann Hosp. System, 110 S.W.3d 216 (2003)



that, because noncompliance with section 13.01(d)                summary of the expert’s opinions as to the elements of
mandates dismissal with prejudice, trial court had no            standard of care, breach, and causation is higher than the
discretion to grant extension of time to comply; granting        “fair notice” requirement of rule 47.
mandamus relief to compel dismissal).
                                                                 [10] [11]
                                                                          Standard of care, the first element required by
[3] [4]
       In assessing an expert report for compliance with         section 13.01(r)(6) for health-care liability claims, is
sections 13.01(d) and (r)(6) on a defendant’s section            defined by what an ordinarily prudent health-care
13.01(e) motion, the dispositive inquiry is whether the          provider or physician would have done under the same or
report “represents a good-faith effort” to comply with           similar circumstances. Palacios, 46 S.W.3d at 880.
section 13.01(r)(6). See Palacios, 46 S.W.3d at 878              Whether a defendant breached the standard of care due a
(citing TEX.REV.CIV. STAT. ANN.. art. 4590i, §                   patient cannot be determined without “specific
13.01(r)(6)). Because section 13.01 focuses on the report,       information about what the defendant should have done
the only information relevant to this inquiry lies within        differently.” See id. (“While a ‘fair summary’ is
the four corners of the report. Id. The trial court may not      something less than a full statement of the applicable
look beyond the report, therefore, in determining                standard of care and how it was breached, even a fair
compliance with the statute. Id.                                 summary must set out what care was expected, but not
                                                                 given.”) (quoting from Palacios, 4 S.W.3d at 865 (Taft,
[5] [6] [7] [8]
            The report need not marshal all the plaintiff’s      J., dissenting)).
proof or meet the requirements for evidence offered to
support a summary judgment or at trial. Palacios, 46
S.W.3d at 878–79. The report must, however, include the
expert’s opinion on each of the elements defined by              A. Standard of Care—Dr. Blum
section 13.01(r)(6), specifically, the standards of care,        Regarding Dr. Blum, Strom relies upon the following
how the defendant breached those standards, and the              excerpts from the reports of Doctors Robert A. Callewart
causal relationship between the breach and the plaintiff’s       and George W. Sibley:
injury. TEX.REV.CIV. STAT. ANN.. art. 4590i, §
13.01(r)(6). In setting out these elements, the report must:        Dr. Callewart’s Report
(1) inform the defendant of the specific conduct called
into question by the plaintiff’s claims and (2) provide a           I have reviewed the medical records furnished in the
basis from which the trial court may conclude the claims            case of Myrna Strom....
have merit. See Palacios, 46 S.W.3d at 879 (citing
                                                                    In February of 1997, she was seen by Dr. Henry Blum,
Palacios v. American Transitional Care Ctrs., 4 S.W.3d
                                                                    an orthopedic surgeon, with her chief complaint
857, 865 (Tex.App.-Houston [1st Dist.] 1999), rev’d, 46
                                                                    involving her left knee. X-rays showed degenerative
S.W.3d 873 (Tex.2001) (Taft, J., dissenting)). A report
                                                                    changes with medial joint space narrowing and some
that merely states the expert’s conclusions about the
                                                                    calcification in the notch, and his impression of torn
standard of care, breach, and causation falls short of
                                                                    medial maniscus and chondromalacia. Again, he
accomplishing these two purposes. Palacios, 46 S.W.3d
                                                                    reports that she had no prior history of knee related
at 879. When the expert report provided in attempted
                                                                    complaints prior to surgery in question [neck surgery
compliance with sections 13.01(d) and (r)(6) contains
                                                                    when the patient suffered a knee injury due to improper
conclusory statements that do not alert the trial court or
                                                                    positioning by the operating room nurses]. Dr. Blum
the defendant to the conduct the plaintiff complains of,
                                                                    performed the manisectomy on February 12, 1997. On
section 13.01(l ) affords the trial court no discretion but to
                                                                    March 3, 1997, it is reported that she is doing fantastic
conclude that the report does not represent the “good-faith
                                                                    after surgery. However, on April 19, 1997, Dr. Blum
effort,” under section 13.01(l ), to provide “a fair
                                                                    indicates the patient needs a total knee replacement,
summary” of the three elements required by section
                                                                    and on July 28, 1997, reports that she is scheduled for a
13.01(r)(6), and no discretion but to dismiss the cause as a
                                                                    total knee replacement on August 1, 1997. The total
sanction, as provided by section 13.01(e). Palacios, 46
                                                                    knee and carpal tunnel release were performed by Dr.
S.W.3d at 880.
                                                                    Blum on August 1, 1997....
[9]
   Strom contends that the requirement of providing a               Based upon the records, it is my expert opinion that
“fair summary” is akin to providing “fair notice” in                the total knee and carpal tunnel release were not
pleadings pursuant *222 to rule 47 of the Texas Rules of            medically indicated. There is no justification or very
Civil Procedure. See TEX.R. CIV. P. 47. It is apparent,             clear indication in the chart for the surgery. There is
however, from the cases Strom cites that the Palacios               some suggestion she had severe arthritis in the knee;
standard for making a good-faith effort to provide a fair           however, this is not consistent with what was reported
                  © 2015 Thomson Reuters. No claim to original U.S. Government Works.                                  3
Strom v. Memorial Hermann Hosp. System, 110 S.W.3d 216 (2003)



   in the knee at the time of the prior surgery                B. Standard of Care—The Hospital
   [manisectomy by Dr. Blum] or other evaluations of the       Regarding the Hospital, Strom relies upon the following
   knee. If she had severe degenerative joint disease, this    excerpts from the reports of Doctors Sibley and
   could not have occurred in several months time frame        Callewart:
   from when she had the surgery of the neck or from the
   time of the February 12, 1997, surgery [manisectomy           Dr. Sibley’s Report
   by Dr. Blum].
                                                                 On 10/4/96, Dr. Berry operated on Florence and
   Based upon a reasonable medical probability, the              decompressed the C7–T1 area. He noted that
   records indicate no medical basis of [sic] reason for         postoperatively, the patient for the first time
   the total knee replacement in a woman in her                  complained of her left knee.
   middle 50’s who weighs 240 lbs, who had reportedly
   a normal knee prior to the operative room injury.             On 11/1/96, an MRI of the left knee showed a tear of
   The surgery would therefore violate the standards of          the posterior horn of the medial meniscus. Dr. Staewen
   care which would be expected to be exercised by a             examined her and made the diagnosis of the dislocated
   reasonable and prudent orthopedic surgeon under the           patella on the left with mild sprain of the lateral
   same or similar circumstances, and gross negligence           collateral ligament. The medical records suggest that
   to submit such a patient to an unnecessary surgery.           the patient, while being strapped in the prone position
                                                                 for a posterior cervical operative procedure on 10/4/96,
   *223 Dr. Sibley’s Report                                      was placed in an untoward position. The result was
                                                                 injury of the left knee....
   Based upon the medical records, the surgery of 8/1/97
   [total knee and carpal tunnel syndrome surgeries] was         On 2/3/97, Florence saw Dr. Blum complaining of her
   not indicated medically. This apparently was                  left knee....
   unnecessary surgery. The medical records do not
   contain adequate indications for the surgery                  On 2/12/97 Dr. Blum did arthroscopic surgery of the
   performed on 8/1/97. A markedly obese 52–year–old             left knee and did a partial medial meniscectomy and
   lady with a short right leg is not a candidate one            chondroplasty of the left knee....
   would expect to have a good result from a total knee
   replacement. The diagnosis of carpal tunnel                   CONCLUSION: Based upon the medical records, it
   syndrome seems to be inadequate grounds to justify            appears that the patient went into the operation of
   the surgery of 8/1/97. The surgeries of 8/1/97 to the         10/4/96 without complaints of her left knee and
   knee and to the wrist were unnecessary.                       came out of the surgery with complaints of the left
                                                                 knee. It is also noted that the patient had a short
(Emphases added by Strom’s brief for both reports.)              right leg and degenerative disease of the left knee
                                                                 prior to the 10/4/96 surgery. Based on the medical
[12]
    Examining the two reports for a showing of what an           records, the patient’s left knee was negligently
ordinarily prudent physician would have done under the           injured while under anesthesia when she was moved
same or similar circumstances, there simply is no                from the supine position on the gurney to the prone
statement of the standard of care. See Palacios, 46              position on the operating table (a twisting injury)
S.W.3d at 880. To the extent that the reports state what an      and/or when she was placed on the operating table
ordinarily prudent physician would not have done, i.e.,          with the left knee inadequately padded.
what Dr. Blum did, the reports are addressing a breach of
the standard of care rather than the applicable standard of      Dr. Callewart’s Report
care itself. Because the reports fail to provide an adequate
                                                                 On May [2]8, 1996, Dr. Cech performed what is
statement of the standard of care, it is unnecessary to
                                                                 described as inferior L4 and superior L5
examine further whether they fulfill the other two
                                                                 hemilaminectomies, bilateral *224 L4–5 medial
requirements for expert reports pursuant to article 4590i,
                                                                 facetectomies and foraminotomies with decompression
section 13.01(r)(6). See De Leon v. Vela, 70 S.W.3d at
                                                                 of the L4/L5 nerve roots and thecal sac. The patient
199.
                                                                 complained of continuing problems post-operatively;
                                                                 however, in a report dated July 8, 1996, she denied any
Accordingly, we overrule Strom’s first four points of
                                                                 trouble with pain in the lower extremities. Based upon
error.
                                                                 evaluation by MRI, x-ray, and a cervical myelogram in
                                                                 August and September 1996, Dr. John Berry suggested
                                                                 a cervical decompression bilaterally of C7–T1, and

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Strom v. Memorial Hermann Hosp. System, 110 S.W.3d 216 (2003)



   possibly re-explore C5–6 bilaterally. This surgery was
   performed on October 4, 1996, at the Memorial                Accordingly, we overrule Strom’s fifth through seventh
   Hospital Southwest in Houston, Texas. This surgery           points of error.
   resulted in the patient sustaining an acute traumatic
   injury in the patient’s left knee/leg; the patient
   being presumably in a sitting position. The patient
   suffered immediate pain and swelling of the knee
   postoperatively, with difficulty in walking.                   Failure to Grant Additional Time to File Complying
                                                                                    Expert Report
   On October 23, 1996, it is reported that the patient
   complains of left knee pain and hobbling on the left         In points of error eight through ten, Strom contends the
   knee, which is swollen, with decreased range of motion       trial court abused its discretion by refusing to grant her an
   and tenderness. A MRI of the left knee on November 1,        additional 30 days to either amend the reports *225 of her
   1996, showed a horizontal tear through the posterior         experts, Drs. Sibley and Callewart, or permit Strom to file
   horn of the medial meniscus, extending to the inferior       their depositions as supplements to their reports. Strom
   articular surface near the free edge, and a small interior   relies on section 13.01(g) of article 4590i, which provides
   surface tear of the medial meniscus at the junction of       as follows:
   the posterior horn and body segment, and a grade I
   medial collateral ligament sprain.                                        Notwithstanding        any      other
                                                                             provision of this section, if a
   The knee injuries described in the MRI do not occur                       claimant has failed to comply with
   when the customary and usual standards of care are                        a     deadline     established      by
   exercised in the positioning and strapping a patient on                   Subsection (d) of this section and
   the operative table. However, the injuries can occur                      after hearing the court finds that the
   when the hospital’s operating room personnel fail to                      failure of the claimant or the
   take necessary precautions to pad and avoid the                           claimant’s attorney was not
   placement of the leg/knee in an abnormal position by                      intentional or the result of
   strapping the patient to prevent movement during                          conscious indifference but was the
   surgery. It is my expert opinion, based upon a                            result of an accident or mistake, the
   reasonable medical probability, that the knee injuries                    court shall grant a grace period of
   suffered by the patient were due to the failure of the                    30 days to permit the claimant to
   operating room personnel to exercise ordinary care, or                    comply with that subsection. A
   negligence of the operating room personnel, in placing                    motion by a claimant for relief
   and maintaining her position on the operating room                        under this subsection shall be
   table. On a follow up of her knee pain January 8, 1997,                   considered timely if it is filed
   it was noted that ‘apparently during her recent surgery,                  before any hearing on a motion by
   her knees were taped in an untoward position, resulting                   a defendant under Subsection (e) of
   in some problems. Difficult to know exactly what, but                     this section.
   it is felt that she has some cartilage torn in the left
   knee.’                                                       TEX.REV.CIV. STAT. ANN.. art. 4590i, § 13.01(g)
                                                                (Vernon Supp.2003).
(Emphases added by Strom’s brief for both reports.)
                                                                [14]
                                                                    The record contains two requests by Strom for
[13]
    Although the above reports mention that Strom’s knee        additional time. The first request appears in the
injury does not normally occur when the usual standards         concluding paragraphs of Strom’s response to the
of care are exercised, and even note that the left knee         hospital’s motion to dismiss. This request refers to
must not have been properly positioned or padded, the           possible secretarial or post-office error and appears to
reports nevertheless fail to set out the applicable standard    presume that the hospital was contending Strom did not
of care. See Palacios, 46 S.W.3d at 880. Once again, the        furnish the reports on a timely basis, as well as moving to
most that can be said is that the reports address a breach      dismiss pursuant to section 13.01(e)(3) because the
of the standard of care by not properly positioning or          reports were insufficient. Citing section 13.01(h) of article
padding the leg and knee. Moreover, the reports are             4590i,3 which authorizes agreements of counsel to extend
conclusory regarding causation, by failing to set out the       the deadlines of sections 13.01(a) or (d), Strom’s counsel
manner in which a failure to properly pad and position the      provided an affidavit documenting his and the hospital’s
leg and knee resulted in Strom’s knee injury.                   February 10, 1999 rule 11 agreement to extend the

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Strom v. Memorial Hermann Hosp. System, 110 S.W.3d 216 (2003)



deadline to provide an expert report an additional day, to
April 1, 1999. The affidavit also documented Strom’s             To comply with section 13.01(g), however, Strom had to
counsel’s instructions to his support staff in accordance        file her request for additional time before any hearing on a
with that agreement. Nothing in the record suggests that         defendant’s motion to dismiss under section 13.01(e). See
the hospital was disputing timeliness of receipt. Rather,        TEX.REV.CIV. STAT. ANN.. art. 4590i, § 13.01(g); see
the record shows that, in contending Strom had not               also Jackson v. Reardon, 14 S.W.3d 816, 819 (Tex.App.-
complied on a timely basis, the hospital had taken the           Houston [1st Dist.] 2000, no pet.) (holding that trial court
position that Strom had not provided complying expert            did not abuse its discretion by denying motion, which
reports by the 180–day deadline, which had therefore             sought additional time to file section 13.01(d) expert
expired. Moreover, in later documents filed with the trial       report, but was filed after hearing on section 13.01(e)
court, Strom’s counsel referred to his timely compliance         motion to dismiss). Here, Strom did not request additional
with the agreed, extended deadline as “undisputed.” Thus,        time to comply with section 13.01(d) on the grounds she
there was no basis on which to invoke section 13.01(h).          raises in this appeal until after the hearing on the
                                                                 hospital’s motion to dismiss. Accordingly, her request
Strom also cited section 13.0 2 (g) of article 4590i in          was not timely.
support of her first request for additional time. Section
13.0 2 (g) does not pertain, however, to expert reports.         Because Strom’s request for additional time was not
See TEX.REV.CIV. STAT. ANN.. art. 4590i, § 13.02(g)              timely, the trial court did not abuse its discretion by
(Vernon Supp.2003). Strom may have mistakenly cited              refusing to grant relief. We need not address, therefore,
section 13.0 2 (g) instead of section 13.0 1 (g), on which       whether Strom’s counsel’s “reasonable belief,” that the
she relies in her brief to this Court. But the “accident or      expert reports provided to support Strom’s claims
mistake” documented in the affidavit supporting Strom’s          complied with sections 13.01(d) and (r)(6) of article
first request refers only to Strom’s having erroneously          4590i, constituted “accident or mistake” that warranted
presumed, as we have just addressed, that the hospital did       granting additional time to comply.
not receive Strom’s reports by the agreed, extended
deadline. The first request does not refer to the “accident      We overrule points of error eight through ten.
or mistake” on which Strom later relied and on which she
relies in this appeal.

Strom’s second request for additional time appears in her
June 15, 2001 motion for rehearing of the trial court’s                   Deadline to Challenge Expert Reports
May 24, 2001 order dismissing her case against the               [15]
hospital, with prejudice. In addition to claiming that her           In point of error 11, Strom contends Dr. Blum waived
expert reports complied with section 13.01 of article            his right to challenge Strom’s expert reports by waiting
4590i, Strom alternatively requested that the trial court        until 180 days after Strom filed suit. Strom maintains that
“extend the time to file or furnish an amended report or         Dr. Blum had the reports and was aware of their contents,
the depositions of Dr. Sibley and Dr. Callewart as an            but “sat on his hands” and waited until after the last
amendment *226 to the prior reports.” Strom again cited          possible date for Strom to provide a complying expert
section 13.01(h) of article 4590i, governing agreements of       report. Article 4590i imposes no deadline for challenging
counsel to extend preliminary deadlines for filing expert        an expert report under section 13.01(d). See Gonzalez v.
reports. Section 13.01(h) does not apply to relief               El Paso Hosp. Dist., 68 S.W.3d 712, 717 (Tex.App.-El
requested of a court.                                            Paso 2001, no pet.); Chisholm v. Maron, 63 S.W.3d 903,
                                                                 908 (Tex.App.-Amarillo 2001, no pet.); Hargrove v.
Strom again cited “accident or mistake” in her second            Denno, 40 S.W.3d 714, 716 (Tex.App.-San Antonio 2001,
request, but asserted reasons that differed from her first       no pet.).
request. Here, Strom clearly invoked the provisions of
section 13.01(g) of article 4590i by asserting that her          Accordingly, we overrule point of error 11.
failure to comply with section 13.01(d) was neither
intentional nor the result of conscious indifference, but
the result of accident or mistake. See TEX.REV.CIV.
STAT. ANN.. art. 4590i, § 13.01(g). Strom’s claim of                      Award of Attorney’s Fees to Hospital
“accident or mistake” is premised on her attorney’s sworn
affidavit attesting to his “reasonable belief” that the expert   [16]
                                                                     In point of error 12, Strom contends that the trial court
reports he provided complied with article 4590i. Strom           abused its discretion in awarding the Hospital $5,000 for
reasserts that contention on appeal.                             attorney’s fees without evidence to support the claim.
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Strom v. Memorial Hermann Hosp. System, 110 S.W.3d 216 (2003)



Strom also argues that she was entitled to a jury trial on     for medical negligence be brought under article 4590i.
the issue of reasonable attorney’s fees.                       Strom’s attempt to recast her claims of negligence in
                                                               advising her of the necessity of surgery as fraud and
Article 4590i, section 13.01(e)(1) provides that the trial     intentional and fraudulent misrepresentations regarding
court shall award reasonable attorney’s fees as a sanction     unnecessary surgery do not remove those claims from
for a plaintiff’s failure to comply with the requirements of   article 4590i. See Gomez v. Matey, 55 S.W.3d 732, 735
section 13.01(d). TEX.REV.CIV. STAT. ANN.. art.                (Tex.App.-Corpus Christi 2001, no pet.) (holding claims
4590i, § 13.01(e)(1) (Vernon Supp.2003). By providing          of fraud and misrepresentation regarding unnecessary
that the trial court assess the sanction, the plain language   surgery fell within scope of article 4590i).
*227 of the statute does not contemplate that a jury
determine what is reasonable as attorney’s fees. Strom         Accordingly, we overrule both of Strom’s points of error
does not provide any authority that would permit the jury      thirteen.
to determine this issue.
[17]
     In contending that no evidence supported the trial
court’s award of attorney’s fees, Strom ignores affidavit
testimony that $7,500 represented a reasonable award of                                 Conclusion
attorney’s fees in this case. This suggested fee was $2,500
more than the amount the trial court actually awarded. In      We affirm the judgment of the trial court. We deny all
disputing the evidentiary support for the award of             pending motions.
attorney’s fees, Strom appears to argue that something
more than an affidavit is required, but again offers no
authority to support that contention.
                                                               Justice MARGARET GARNER MIRABAL, dissenting.
We hold that the trial court did not err by awarding
attorney’s fees without convening a jury or requiring
testimony beyond proof by affidavit. Accordingly, we           MARGARET GARNER MIRABAL, Justice, dissenting.
overrule point of error 12.
                                                               In my opinion, the timely-filed expert report of Dr. Robert
                                                               A. Callewart, M.D., represents a good faith effort to
                                                               comply with the definition of an expert report in
                                                               Subsection (r)(6) of the Medical Liability and Insurance
       Constitutional Challenges to Section 13.01              Improvement Act,1 and therefore the trial court abused its
                                                               discretion when it dismissed the plaintiff’s claims with
In two points of error 13, Strom contends that (1) the         prejudice. Accordingly, I respectfully dissent.
dismissal of her suit with prejudice violates her state and
federal constitutional guarantees of due process of law,       I note that this is not a case involving the failure to file an
equal protection of the law, and right to a jury trial; and    expert report, and *228 this is not a case involving the
(2) the trial court abused its discretion in dismissing        filing of a late expert report. Rather, this case involves a
Strom’s claims for fraud, intentional and fraudulent           timely-filed expert report. The issue is whether the
misrepresentations, and “unnecessary surgery” because          defendants’ challenges to the adequacy of the expert
these causes of action are not issues relating to a “medical   report should have been granted, resulting in the dismissal
standard” under article 4590i.                                 of plaintiff’s case with prejudice.
[18]
     Strom correctly asserts that article 4590i places a       If a plaintiff timely files an expert report and the
heavy burden on medical malpractice plaintiffs to comply       defendant moves to dismiss because of the report’s
with very specific requirements and that the sanction for      inadequacy, the trial court must grant the motion “only if
failing to comply is severe, but neither violates              it appears to the trial court, after hearing, that the report
constitutional guarantees. See Schorp v. Baptist Mem’l         does not represent a good faith effort to comply with the
Health Sys., 5 S.W.3d 727, 737–38 (Tex.App.-San                definition of an expert report in Subsection (r)(6) of this
Antonio 1999, no pet.); McGlothlin v. Cullington, 989          section.” TEX.REV.CIV. STAT. ANN.. Art. 4590i, §
S.W.2d 449, 452–53 (Tex.App.-Austin 1999, pet. denied).        13.01(l ) (Vernon Supp.2003) (emphasis added); Bowie
[19]                                                           Memorial Hosp. v. Wright, 79 S.W.3d 48, 51–52
   As for Strom’s contention that her claims exceeded the      (Tex.2002). To constitute a “good-faith effort,” the report
scope of article 4590i, settled law compels that all claims    must provide enough information to fulfill two purposes:

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Strom v. Memorial Hermann Hosp. System, 110 S.W.3d 216 (2003)



(1) it must inform the defendant of the specific conduct              fail to take necessary precautions to pad and avoid
the plaintiff has called into question, and (2) it must               the placement of the leg/knee in an abnormal
provide a basis for the trial court to conclude that the              position by strapping the patient to prevent
claims have merit. Bowie, 79 S.W.3d at 52. A Court                    movement during surgery.
reviews the information contained within the four corners
of the report to determine whether it constitutes a “good-
faith effort” to provide a fair summary of the expert’s          C. Breach
opinions about the standard of care, breach, and causal
connection between breach and injury. Id.                             It is my expert opinion, based upon a reasonable
                                                                      medical probability, that the knee injuries suffered
                                                                      by the patient were due to the failure of the operating
                                                                      room personnel to exercise *229 ordinary care, or
                                                                      negligence of the operating room personnel, in
                Claims against the Hospital                           placing and maintaining her position on the
                                                                      operating room table.
Dr. Callewart’s report reads, in relevant part:

                                                                 D. Causal Connection

A. Injury                                                             The knee injuries described in the MRI do not occur
                                                                      when the customary and usual standards of care are
     Based upon evaluation by MRI, x-ray, and a cervical              exercised in the positioning and strapping a patient
     myelogram in August and September 1996, Dr. John                 on the operative table. However, the injuries can
     Berry suggested a cervical decompression bilaterally             occur when the hospital’s operating room personnel
     of C7–T1, and possibly re-explore C5–6 bilaterally.              fail to take necessary precautions to pad and avoid
     This surgery was performed on October 4, 1996, at                the placement of the leg/knee in an abnormal
     the Memorial Hospital Southwest in Houston, Texas.               position by strapping the patient to prevent
     This surgery resulted in the patient sustaining an               movement during surgery.... On a follow up of her
     acute traumatic injury in the patient’s left knee                knee pain January 8, 1997, it was noted that
     probably associated with improper positioning of                 ‘apparently during her recent surgery, her knees were
     padding of the knee/leg, the patient being                       taped in an untoward position, resulting in some
     presumably in a sitting position. The patient suffered           problems. Difficult to know exactly what, but it is
     immediate pain and swelling of the knee                          felt that she has some cartilage torn in the left
     postoperatively, with difficulty walking.                        knee.’.... It is my expert opinion, based upon a
                                                                      reasonable medical probability, that the knee injuries
            On October 23, 1996, it is reported that the              suffered by the patient were due to the failure of the
            patient complains of left knee pain and hobbling          operating room personnel to exercise ordinary care,
            on the left knee, which is swollen, with                  or negligence of the operating room personnel, in
            decreased range of motion and tenderness. A               placing and maintaining her position on the
            MRI of the left knee on November 1, 1996,                 operating table.
            showed a horizontal tear through the posterior       Does Dr. Callewart’s report provide enough
            horn of the medial meniscus, extending to the        information to inform the defendant Hospital of the
            inferior articular surface near the free edge, and   specific conduct the plaintiff has called into question,
            a small inferior surface tear of the medial          and to provide a basis for the trial court to conclude
            meniscus at the junction of the posterior horn       that the claims have merit?
            and body segment, and a grade I medial
            collateral ligament sprain.                          Clearly, Dr. Callewart’s report gives notice that the
                                                                 manner in which the hospital personnel strapped the
                                                                 plaintiff to the operating table was called into question.
B. Standard of Care                                              The standard of care requires hospital personnel to take
                                                                 necessary precautions to pad and avoid the placement of
     The knee injuries described in the MRI do not occur
                                                                 the leg/knee in an abnormal position by strapping
     when the customary and usual standards of care are
                                                                 (standard of care); a medical report indicated that
     exercised in the positioning and strapping a patient
                                                                 plaintiff’s knees were taped in an untoward position on
     on the operative table. However, the injuries can
                                                                 the operating table, and based on a reasonable medical
     occur when the hospital’s operating room personnel

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Strom v. Memorial Hermann Hosp. System, 110 S.W.3d 216 (2003)



probability, it was Dr. Callewart’s expert opinion that the               reports that she had no prior history of knee
plaintiff’s knee injuries were due to the failure of the                  related complaints prior to surgery in question.
hospital personnel to properly place and maintain                         Dr. Blum performed the menisectomy on
plaintiff’s position on the operating table (breach and                   February 12, 1997. On March 3, 1997, it is
causal connection).                                                       reported that she is doing fantastic after
                                                                          surgery. However, on April 19, 1997, Dr. Blum
This case is unlike the Palacios case. American                           indicates the patient needs a total knee
Transitional Care Centers v. Palacios, 46 S.W.3d 873                      replacement, and on July 28, 1997, reports that
(Tex.2001). In Palacios, the patient fell from his bed, and               she is scheduled for a total knee replacement on
the expert opined that “precautions to prevent [the                       August 1, 1997.
patient’s] fall were not properly utilized.” Id. at 880. The
supreme court held that this was not a statement of a                (Emphasis added). Dr. Blum performed the total
standard of care because neither the trial court nor the             knee replacement surgery on the plaintiff.
defendant would be able to determine from this statement
if the doctor “believes that the standard of care required
[defendant] to have monitored Palacios more closely,             B. Standard of Care
restrained him more securely, or done something else
entirely.” Id. In contrast, the expert’s report in the present       The surgery would ... violate the standards of care
case puts the trial court and the defendant on notice of the         which would be expected to be exercised by a
conduct complained of, i.e. that the hospital personnel              reasonable and prudent orthopedic surgeon under the
failed to properly pad and place the leg/knee in a normal            same or similar circumstances.
position when strapping the plaintiff to the operating
table—by taping the leg in an untoward and abnormal
                                                                 C. Breach
position, a tearing injury was caused to the plaintiff’s
knee.                                                                Based upon the records, it is my expert opinion that
                                                                     the total knee and carpal tunnel releases were not
Under the guiding principles set out in Bowie and                    medically indicated. There is no justification or very
Palacios, Dr. Callewart’s report constitutes a good-faith            clear indication in the chart for the surgery. There is
effort to provide a fair summary of the doctor’s opinions            some suggestion she had severe arthritis in the knee;
about the standard of care, breach and causal connection.            however, this is not consistent with what was
Accordingly, the trial court abused its discretion when it           reported in the knee at the time of the prior surgery
granted the defendant’s motion challenging the adequacy              or other evaluations of the knee. If she had severe
of the report resulting in a dismissal, *230 with prejudice,         degenerative joint disease, this could not have
of the plaintiff’s claims against the hospital.                      occurred in a several months time frame from when
                                                                     she had the surgery of the neck or from the time of
                                                                     February 12, 1997, surgery.

                                                                          Based upon a reasonable medical probability,
                 Claims against Dr. Blum
                                                                          the records indicate no medical basis of reason
Dr. Callewart’s report reads, in relevant part:                           for the total knee replacement in a woman in
                                                                          her middle 50’s who weighs 240 lbs, who had
                                                                          reportedly a normal knee prior to the operative
                                                                          room injury. The surgery would therefore
A. Injury                                                                 violate the standards of care which would be
                                                                          expected to be exercised by a reasonable and
     “I have reviewed the medical records furnished in                    prudent orthopedic surgeon under the same or
     the case of Myrna Strom....”                                         similar circumstances, and gross negligence to
                                                                          submit such a patient to unnecessary surgery.
            In February of 1997, she was seen by Dr. Henry
            Blum, an orthopedic surgeon, with her chief
            complaint involving her left knee. X-rays            D. Causal Connection
            showed degenerative changes with medial joint
            space narrowing and some calcification in the            Based upon the records, it is my expert opinion that
            notch, and his impression of torn medial                 the total knee and carpal tunnel releases were not
            meniscus and chondromalacia. Again, he                   medically indicated. There is no justification or very

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Strom v. Memorial Hermann Hosp. System, 110 S.W.3d 216 (2003)



     clear indication in the chart for the surgery.... Based                             breached his or her duty to a patient
     upon a reasonable medical probability, the records                                  cannot be determined absent
     indicate no medical basis of reason for the total knee                              specific information about what the
     replacement....                                                                     defendant should have done
Does Dr. Callewart’s report provide enough                                               differently.
information to inform the defendant Doctor of the
specific conduct the plaintiff has called into question,                  Id. at 880. In the present case, the expert’s report
and to provide a basis for the trial court to conclude                    identified the standard of care for an orthopedic surgeon,
that the claims have merit?                                               and specifically stated what care was expected, but not
                                                                          given, i.e., a diagnosis and action based on what is
*231 It is clear from Dr. Callewart’s report that the                     medically indicated, not the performance of unnecessary
conduct called into question is the performance of a total                major surgery.
knee replacement operation, when such surgery was
unnecessary. The report provides a fair summary of Dr.                    Once again, under the guiding principles set out in Bowie
Callewart’s opinions about the standard of care (that                     and Palacios, Dr. Callewart’s report constitutes a good-
which would be expected to be exercised by a reasonable                   faith effort to provide a fair summary of his opinions
and prudent orthopedic surgeon under the same or similar                  about the standard of care, breach, and causal connection.
circumstances), breach (performing “unnecessary” knee                     Accordingly, the trial court abused its discretion when it
replacement surgery, which is “not medically indicated”,                  granted the defendant doctor’s motion challenging the
for which there is “no justification ... in the chart”), and              adequacy of the report resulting in a dismissal, with
causal connection (the breach of the applicable standard                  prejudice, of the plaintiff’s claims against the defendant,
of care caused the injury of unnecessary knee replacement                 Dr. Blum.
surgery).

With regard to standard of care, the Texas Supreme Court
stated in Palacios:
                                                                                                  CONCLUSION
            The standard of care for a hospital                           We should sustain appellant Strom’s points of error one
            is what an ordinarily prudent                                 through seven, reverse the judgment, and remand the case
            hospital would do under the same                              to the trial court.
            or similar circumstances. ....
            Identifying the standard of care is
            critical: Whether a defendant

Footnotes
*      This case was originally submitted to a panel consisting of Justices Taft, Mirabal, and retired Justice Jackson B. Smith, Jr. Upon
       Justice Smith’s recusal, Justice George C. Hanks, Jr., who was appointed to this Court on December 31, 2002, is participating
       by assignment.
**     The Honorable Margaret Garner Mirabal, former Justice, Court of Appeals, First District of Texas at Houston, participating by
       assignment.
1      See TEX.REV.CIV. STAT. ANN.. art. 4590i, § 13.01(d), (r)(6) (Vernon Supp.2003).

2      Strom provided her experts’ reports to counsel for the hospital on April 1, 1999. It is undisputed that the experts’ reports were
       timely by agreement of counsel signed in accordance with rule 11 of the Rules of Civil Procedure and as authorized by section
       13.01(h) of article 4590i. See TEX.REV.CIV. STAT. ANN.. art. 4590i, § 13.01(h) (Vernon Supp.2003); TEX.R. CIV. P. 11.
3      TEX.REV.CIV. STAT. ANN.. art. 4590i, § 13.01(h) (Vernon Supp.2003)

1      TEX.REV.CIV. STAT. ANN.. Art. 4590i, § 13.01(r)(6) (Vernon Supp.2003).




               © 2015 Thomson Reuters. No claim to original U.S. Government Works.                                                   10
Strom v. Memorial Hermann Hosp. System, 110 S.W.3d 216 (2003)




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.                                     11
Taylor v. Fossett, 320 S.W.3d 570 (2010)




                                                               order and remand to the trial court for the limited
                   320 S.W.3d 570                              purposes of determining Dr. Taylor’s reasonable
               Court of Appeals of Texas,                      attorney’s fees and costs and for entry of a final order
                         Dallas.                               dismissing Fossett’s claims with prejudice.

      Roosevelt TAYLOR, Jr., M.D., Appellant,
                      v.
           LaToya FOSSETT, Appellee.
                                                                                     Background
       No. 05–09–01271–CV. | Aug. 25, 2010.
                                                               Given the procedural posture of this case, we draw the
                                                               facts from the allegations in Fossett’s petition. On
Synopsis                                                       November 1, 2006, Fossett was admitted under Dr.
Background: Patient brought healthcare liability action        Taylor’s care to Mesquite Community Hospital for
against physician, arising out of contraction of methicillin   induction of labor. There were complications with the
resistant staphylococcus aureus (MRSA). The County             delivery and Dr. Taylor performed a cesarean section
Court at Law No. 4, Dallas County, William Ken                 birth. A few days later, an infection developed in the
Tapscott, Jr., denied physician’s motion to dismiss.           cesarean section incision. According to Fossett, Dr.
Physician appealed.                                            Taylor failed to culture the infection and failed to
                                                               document abdominal fascial integrity during Fossett’s
                                                               hospitalization. Fossett was discharged from the hospital
                                                               on November 4, 2006. She was seen by Dr. Taylor in his
[Holding:] The Court of Appeals, Fillmore, J., held that       office three days later on November 7, 2006. Dr. Taylor
expert’s report failed to adequately establish causation       evaluated Fossett’s condition and prescribed the oral
element required in action.                                    antibiotic Keflex. According to Fossett, Dr. Taylor failed
                                                               at that time to culture the incision infection and to
                                                               document abdominal fascial integrity. On November 9,
Reversed and remanded with instructions.                       2006, Fossett went to the Baylor Hospital Emergency
                                                               Department. She was diagnosed with cellulitis,
                                                               hospitalized, and placed on intravenous antibiotics. A
Attorneys and Law Firms                                        bacterial culture showed the infection to be methicillin
                                                               resistant staphylococcus aureus (MRSA). Fossett was
*571 J. Wade Birdwell, D. Michael Wallach, Leslie Ann
                                                               hospitalized for two weeks. While hospitalized, Fossett
Dillon Thomas, Wallace, Andrews & Stouffer, P.C., Fort
                                                               underwent two surgical procedures relating to wound
Worth, TX, for Appellant.
                                                               dehiscence and drainage from the incision. According to
Douglas Michael Wood, Law Firm of Douglas Wood,                Fossett, she continues to suffer bowel and abdominal
Dallas, TX, for Appellee.                                      pain, has permanent scarring and disfigurement of her
                                                               abdomen, and will require plastic surgery.
Before Justices MOSELEY, BRIDGES and FILLMORE.
                                                               Fossett filed suit against Dr. Taylor. Fossett alleges that
                                                               Dr. Taylor’s failure *572 following a caesarian section to
                                                               timely diagnose and treat her for an incision infection,
                                                               wound dehiscence and cellulitis involving MRSA
                                                               proximately caused her to suffer injuries and otherwise
                        OPINION                                avoidable surgical intervention. Fossett contends Dr.
                                                               Taylor was negligent in (1) failing to diagnose incision
Opinion By Justice FILLMORE.                                   infection, wound dehiscence and cellulitis; (2) failing to
                                                               timely communicate with the patient and document
This interlocutory appeal follows the trial court’s refusal    cellulitis; and (3) failing to document abdominal fascial
to dismiss LaToya Fossett’s health care liability claims       integrity, obtain bacterial cultures, evaluate for and
against Roosevelt Taylor, Jr., M.D. Dr. Taylor contends        administer appropriate medical care, including
the trial court erred by denying his motion to dismiss,        hospitalization, and treat spreading cellulitis.
which challenged the sufficiency of Fossett’s initial and
supplemental expert reports, and by denying him
attorney’s fees and costs. We reverse the trial court’s
               © 2015 Thomson Reuters. No claim to original U.S. Government Works.                                  1
Taylor v. Fossett, 320 S.W.3d 570 (2010)



Pursuant to section 74.351 of the Texas Civil Practice and      Dr. Taylor’s failure to meet to (sic) the applicable
Remedies Code, Fossett served Dr. Taylor with an expert         standard of care, as described above, in all medical
report prepared by Dr. Adam S. Levine, a practicing             probability, was the proximate cause of the injuries
obstetrician and gynecologist, in support of her claims. In     LaToya Fossett suffered. As a result of Dr. Taylor’s
his expert report, Dr. Levine asserted that Dr. Taylor          failure to meet the applicable standard of care LaToya
deviated from the accepted standard of care for post-           Fossett required: *573 1) At least one surgical wound
operative surgical wound infection and his deviations           exploration that might not have been necessary; 2) A
from the standard of care were the proximate cause of           hospital stay that was longer than should have been
Fossett’s complications and injuries. In his report, Dr.        necessary had she been admitted 48 hours sooner; 3) A
Levine stated:                                                  longer recovery than should have been necessary had
                                                                she been admitted 48 hours sooner; 4) a larger scar; and
  Dr. Taylor provided LaToya Fossett with ante- and             5) continued abdominal pain and discomfort.
  post- natal care. Dr. Taylor performed LaToya
  Fossett’s cesarean section, which included making the       Dr. Taylor challenged the legal sufficiency of Dr.
  surgical incision which ultimately became infected. Dr.     Levine’s report as failing to comply with the statutory
  Taylor breached the standard of care because: 1)            requirements of section 74.351 and moved to dismiss
  neither a weight nor a blood pressure were recorded on      Fossett’s health care liability claims with prejudice
  the first post-operative visit for LaToya Fossett; 2)       pursuant to section 74.351(b). See TEX. CIV. PRAC. &
  aside from a foul odor and draining, no information         REM.CODE ANN. § 74.351(b) (Vernon Supp. 2009) (if
  was recorded with regard to when the pain became            health care liability claimant does not serve expert report
  worse, when the drainage began, or whether there was        as required, the trial court must, upon motion by affected
  any redness or swelling; 3) no documentation was            health care provider or physician, dismiss claim with
  provided with regard to the size or extent of the wound     prejudice). He argued the report was legally insufficient
  infection and there was no documentation regarding          to satisfy the statutory requirements because Dr. Levine’s
  fascial integrity; 4) no bacterial wound cultures were      opinions regarding the alleged violations of the standard
  taken; 5) Dr. Taylor prophylactically prescribed the        of care and the alleged causal connection between such
  same antibiotics that had no impact earlier in LaToya       violations and injuries and damages claimed by Fossett
  Fossett’s pregnancy; 6) Dr. Taylor failed to order re-      were conclusory. After a hearing, the trial court concluded
  evaluation within 24 to 48 hours and instead ordered it     Dr. Levine’s report was insufficient under section 74.351.
  for a week later; 7) Dr. Taylor ordered wound               The trial court, however, granted Fossett a thirty-day
  compresses but failed to document or instruct LaToya        extension under section 74.351(c) “to cure a causation
  Fossett any (sic) form of wound care, irrigation or         deficiency” in her expert’s report:
  cleaning.
                                                                          namely, whether in Dr. Levine’s
  Because Dr. Taylor documented a surgical wound                          opinion, Dr. Taylor’s failure to
  infection with “copious pus” and failed to provide                      meet the appropriate standard of
  LaToya Fossett with treatment in accord with the                        care in post-surgical wound care
  standard of care, Fossett required admission to Baylor                  more likely than not or within
  Hospital. Unfortunately, this admission was within 48                   reasonable medical probability
  hours of Dr. Taylor’s evaluation and order to follow-up                 caused LaToya Fossett to have one
  one week later. At Baylor Hospital, LaToya Fossett                      or more exploratory surgeries. The
  was evaluated according to the standard of care and                     current language in the report is
  ultimately subjected to two surgical wound                              insufficient     regarding      the
  explorations, a prolonged hospital stay, a larger                       exploratory surgeries.
  incision and scar, and long-standing abdominal pain.
  Had Dr. Taylor appropriately evaluated and treated          See TEX. CIV. PRAC. & REM.CODE ANN. § 74.351(c)
  LaToya Fossett in a timely fashion according to the         (trial court may grant extension to party that failed to
  standard of care, she might have been admitted to the       serve expert report because timely served report found to
  hospital earlier and required only one, if any, surgical    be deficient). The trial court overruled any other
  wound explorations (sic). She would most likely not         objections to the report.
  have required two surgeries. Had Dr. Taylor
  appropriately evaluated and treated LaToya Fossett she      Within the thirty-day extension period, Fossett served a
  would not have required as prolonged a hospital stay        supplemental report prepared by Dr. Levine. Dr. Levine’s
  because the infection got worse each day and smaller        supplemental report stated:
  infections are easier to treat than larger infections.

               © 2015 Thomson Reuters. No claim to original U.S. Government Works.                                 2
Taylor v. Fossett, 320 S.W.3d 570 (2010)



  My original opinions regarding the medical care Dr.           Dr. Levine was sufficient and satisfied the requirements
  Taylor provided LaToya Fossett remain unchanged. Dr.          of section 74.351. See TEX. CIV. PRAC. & REM.CODE
  Taylor failed to meet an appropriate standard of care         ANN. §§ 74.351(l ), 74.351(r)(6).
  for a post-surgical wound. Specifically, Dr. Taylor
  failed to timely examine, culture, investigate or treat       The trial court denied Dr. Taylor’s motion to dismiss.
  what was an obvious post-surgical wound                       Pursuant to section 51.014(a)(9) of the civil practice and
  complication. Dr. Taylor’s failure to examine, culture,       remedies code, Dr. Taylor brought this interlocutory
  investigate or treat LaToya Fossett’s surgical wound          appeal challenging the trial court’s denial of his motion to
  more likely than not and within a reasonable degree of        dismiss. See TEX. CIV. PRAC. & REM.CODE ANN. §
  medical probability caused LaToya Fossett to have one         51.014(a)(9) (Vernon 2008).
  or more exploratory surgeries and debridements. Dr.
  Taylor should have appropriately examined LaToya
  Fossett.

  Further, Dr. Taylor should have recognized the                          Standard of Review and Applicable Law
  possibility of MRSA infection because MRSA                    [1] [2]
  infections are common iatrogenic infections in                      Dr. Taylor asserts the trial court abused its discretion
  hospitals. Had Dr. Taylor examined or cultured LaToya         when it denied his motion to dismiss because Dr. Levine’s
  Fossett’s surgical wound, Dr. Taylor might have               original and supplemental expert reports, whether
  properly diagnosed MRSA and begun treatment with              considered separately or collectively, are legally and
  appropriate antibiotic therapy it (sic) is more likely than   factually insufficient and conclusory. We review a trial
  not that LaToya Fossett would not have required               court’s order on a motion to dismiss a health care liability
  subsequent surgeries which resulted in significant pain       claim for an abuse of discretion. See Am. Transitional
  and permanent scarring.                                       Care Ctrs. of Texas v. Palacios, 46 S.W.3d 873, 875
                                                                (Tex.2001); Nexion Health at Terrell Manor v. Taylor,
  Finally, it is my opinion, based on a reasonable degree       294 S.W.3d 787, 791 (Tex.App.-Dallas 2009, no pet.). A
  of medical probability, that Dr. Taylor deviated from         trial court has no discretion in determining what the law is
  the accepted standard of care in this case and that his       or in applying the law to the facts. See Walker v. Packer,
  deviations from the standard of care caused LaToya            827 S.W.2d 833, 840 (Tex.1992) (orig. *575 proceeding).
  Fossett’s injuries.                                           An abuse of discretion occurs if the trial court clearly fails
                                                                to analyze or apply the law correctly. Id.
*574 Dr. Levine’s supplemental report added one opinion
                                                                [3]
on causation that was not contained in his original report:        Under section 74.351 of the civil practice and remedies
“Had Dr. Taylor examined or cultured LaToya Fossett’s           code, any person who brings suit asserting a health care
surgical wound, Dr. Taylor might have properly                  liability claim must, within 120 days of filing the original
diagnosed MRSA and begun treatment with appropriate             petition, provide an expert report for each physician or
antibiotic therapy it (sic) is more likely than not that        health care provider against whom a claim is asserted.
LaToya Fossett would not have required subsequent               TEX. CIV. PRAC. & REM.CODE ANN. § 74.351(a).
surgeries which resulted in significant pain and permanent      “Expert report” means a written report that provides a fair
scarring.”                                                      summary of the expert’s opinions as to the applicable
                                                                standards of care, the manner in which the care rendered
Dr. Taylor again objected to the report and moved to            failed to meet those standards, and the causal relationship
dismiss Fossett’s claims for failure to serve a sufficient      between that failure and the injury, harm, or damages
expert report under section 74.351. He contended that Dr.       claimed. TEX. CIV. PRAC. & REM.CODE ANN. §
Levine’s opinions set forth in his original and                 74.351(r)(6); see also, Bowie Mem’l Hosp. v. Wright, 79
supplemental reports, whether the reports are considered        S.W.3d 48, 52 (Tex.2002). An expert report must provide
separately or collectively1, were conclusory and lack           enough information to fulfill two purposes if it is to
sufficient factual specificity with regard to the violations    constitute an objective, good faith effort to comply with
of the standard of care alleged against Dr. Taylor and the      the definition of an expert report under section
alleged causal connection between any such violations           74.351(r)(6). The report must inform the defendant of the
and the injuries and damages claimed by Fossett. He             specific conduct the plaintiff has called into question and
further contended that the supplemental report, like the        must provide a basis for the trial judge to conclude the
original report, merely concluded that Dr. Taylor caused        claims have merit. Leland v. Brandal, 257 S.W.3d 204,
Fossett’s injuries by breaching the standard of care. After     206–07 (Tex.2008); Palacios, 46 S.W.3d at 879.
a hearing, the trial court found that the expert report of

               © 2015 Thomson Reuters. No claim to original U.S. Government Works.                                      3
Taylor v. Fossett, 320 S.W.3d 570 (2010)


[4]   [5]   [6]
            An expert report need not marshal all the           opinion that had Dr. Taylor examined or cultured
plaintiff’s proof. Wright, 79 S.W.3d at 52. However, it         Fossett’s surgical wound, he might have properly
must do more than merely state the expert’s conclusions         diagnosed MRSA and begun treatment with appropriate
about the standard of care, breach, and causation; it must      antibiotic therapy, thereby avoiding subsequent surgeries,
explain the basis of the expert’s statements and link his       pain, and permanent scarring.
conclusions to the facts. Id. The report must contain
sufficiently specific information to demonstrate causation      Dr. Levine’s supplemental report incorporated his original
beyond conjecture. See, Farishta v. Tenet Healthsystem          report. Therefore, in this analysis we collectively refer to
Hosps. Dallas, Inc., 224 S.W.3d 448, 453 (Tex.App.-Fort         the original and supplemental reports as Dr. Levine’s
Worth 2007, no pet.). The report must not be conclusory         “report.” Dr. Levine’s report emphasized the significance
in its explanation of causation; it must explain the basis of   of the 24 to 48 hour period following Fossett’s office
its statements sufficiently to link its conclusions to the      evaluation by Dr. Taylor:
facts. Wright, 79 S.W.3d at 52; Quinones v. Pin, 298
S.W.3d 806, 810 (Tex.App.-Dallas 2009, no pet.); see              Because of the possibility of worsening infection
also, Arkoma Basin Exploration Co. v. FMF Assocs.                 resulting in significant morbidity and mortality,
1990–A, Ltd., 249 S.W.3d 380, 389 n. 32 (Tex.2008)                [women with post-operative surgical incision] require
(quoting BLACK’S LAW DICTIONARY 308 (8th ed.                      both careful and frequent assessment of their surgical
2004)) (defining conclusory as “[e]xpressing a factual            wounds every 24 to 48 hours by qualified personnel
inference without stating the underlying facts on which           such as their physician, by wound management
the inference is based”). Thus, courts have reasoned that         personnel, or by home health nursing.
an expert report that describes causation in terms of mere
possibilities does not accomplish the purpose of providing        Antibiotics for minor infections may be given by
“a basis for the trial court to conclude that the claims have     mouth; provided the patient is seen within 24 to 48
merit.” Wright, 79 S.W.3d at 52; see also Quinones, 298           hours to assess that the infection is not getting worse.
S.W.3d at 815–16.
                                                                  Dr. Taylor failed to either admit LaToya Fossett to the
[7]
    In determining whether a report complies with the             hospital or to re-evaluate her within 24 to 48 hours [of
requirements of section 74.351(r)(6), the court may not           Fossett’s office evaluation by Dr. Taylor].
look beyond the report itself, because all information
                                                                  The standard of care for evaluation and treatment of a
relevant to the inquiry should be contained within the
                                                                  post-operative surgical wound infection require[s] ...
document’s four corners. Wright, 79 S.W.3d at 52; Nexion
                                                                  either admitting the patient to a hospital or arranging
Health at Terrell Manor, 294 S.W.3d at 791. A trial court
                                                                  for close outpatient follow-up and re-evaluation within
must grant a motion to dismiss a plaintiff’s claims for
                                                                  24 to 48 hours....
failure to file an adequate expert report only if it appears
to the court, after hearing, that the report does not           According to Dr. Levine’s report, Fossett was
represent an objective good-faith effort to comply with         hospitalized “within 48 hours” of her post-operative visit
the statutory definition of an expert report. TEX. CIV.         in Dr. Taylor’s office. Fossett’s arrival at Baylor Hospital
PRAC. & REM.CODE ANN. § 74.351(l ); see also,                   occurred within the time frame Dr. Levine determined a
Palacios, 46 S.W.3d at 878.                                     re-evaluation to be appropriate and consistent with the
                                                                applicable standard of care. Had Dr. Taylor scheduled
                                                                Fossett for re-evaluation 48 hours after her post-operative
                                                                office visit, consistent with the standard of care
                         Analysis                               articulated by Dr. Levine, the progression of Fossett’s
                                                                infection and wound dehiscence presumably would have
[8]
   Dr. Levine opined in his original report2 that Dr. Taylor    been no more advanced or severe than the condition
breached the applicable *576 standard of care by failing        actually treated at Baylor Hospital following Fossett’s
to order re-examination of Fossett within 24 to 48 hours        arrival at the hospital within that same 48–hour period.
of her post-operative office visit, causing Fossett to suffer
(1) at least one surgical wound exploration that might not      Dr. Levine did not assert in his report that had Fossett
have been necessary, along with resulting scarring and          been re-evaluated by Dr. Taylor within 48 hours of her
continued pain and discomfort and (2) hospitalization and       post-operative office visit, she would have avoided
recovery that was more lengthy “than should have been           hospitalization and surgical treatment. Rather, Dr. Levine
necessary had she been admitted [to the hospital] 48 hours      opined that the duration of Fossett’s hospitalization and
sooner.” Dr. Levine’s supplemental report added the             recovery would not have been longer than it “should have
                                                                been.” Dr. Levine provided no facts in his report
                  © 2015 Thomson Reuters. No claim to original U.S. Government Works.                                 4
Taylor v. Fossett, 320 S.W.3d 570 (2010)



concerning the expected duration of Fossett’s                  complications or surgical interventions. Dr. Levine
hospitalization and recovery in the absence of the alleged     explained neither the impact of the alleged 48–hour delay
negligence of Dr. Taylor. Accordingly, Dr. Levine’s            in re-evaluation of Fossett on the nature and severity of
report presented no factual basis for a conclusion that Dr.    the underlying infection nor in what manner the infection
Taylor’s alleged negligence resulted in a period of            developed or changed in that period of time necessitating
hospitalization and recovery that was longer than it would     surgery that otherwise would not have been required. Dr.
have been in the absence of such alleged negligence.           Levine’s report left the trial court to infer that the alleged
                                                               delay in diagnosis and treatment proximately caused the
*577 [9] Dr. Levine’s report claimed that as a result of Dr.   additional surgery, pain and scarring without actually
Taylor’s failure to meet the applicable standard of care,      providing a factual basis for the trial court to so infer. Cf.
Fossett required at least one surgical wound exploration       Mosely v. Mundine, 249 S.W.3d 775, 780 (Tex.App.-
that might not have been necessary, sustained a larger scar    Dallas 2008, no pet.) (comparative description of nodule
from additional surgery and suffered continued pain and        and growth of mass after two-year delay in diagnosis
discomfort. He asserted that if Dr. Taylor had                 provided factual basis for conclusion that failure to
“appropriately evaluated and treated Fossett in a timely       identify nodule led to invasive and aggressive treatment
fashion according to the standard of care, she might have      claimant underwent).
been admitted to the hospital earlier and required only
one, if any, surgical wound explorations (sic). She would      Dr. Levine’s report failed to articulate a causal connection
most likely not have required two surgeries.” (Emphasis        between Dr. Taylor’s care of Fossett and the injuries that
added.) Again, Dr. Levine’s standard of care did not call      allegedly resulted. Dr. Levine’s statements concerning
for wound re-evaluation until up to 48 hours from the          causation are conclusory, suggest only the possibility of
time of Fossett’s post-operative office visit with Dr.         causation, and are unsupported by a factual basis within
Taylor. Within 48 hours of Fossett’s office visit with Dr.     the four corners of the report. Considering the report and
Taylor, she was being treated at Baylor Hospital.              applicable law, we conclude the report constitutes a
Accordingly, Dr. Levine’s report presented no factual          factually and legally insufficient basis for the trial court to
basis for a conclusion that Dr. Taylor’s alleged negligence    determine whether Fossett’s claims have merit. See *578
resulted in surgical procedures, scarring, and pain that       Leland, 257 S.W.3d at 206–07. We conclude the trial
would not have occurred in the absence of such alleged         court abused its discretion in denying Dr. Taylor’s motion
negligence. Moreover, Dr. Levine’s report suggested only       to dismiss based on an inadequate expert report.
that in the absence of the alleged negligence, Fossett
                                                               [10]
might have been admitted to the hospital earlier and               Dr. Taylor asserts the trial court abused its discretion
required only one, if any, surgical wound exploration. A       in failing to award him attorney’s fees and costs. Section
description of only a possibility of causation is not          74.351(b) requires that if an expert report has not been
sufficient to satisfy requirements concerning the              served within the statutorily required period of time, upon
necessary content of an expert report. See Wright, 79          the motion of the affected physician or health care
S.W.3d at 53.                                                  provider, the trial court shall enter an order awarding
                                                               reasonable attorney’s fees and costs and dismiss the claim
Dr. Levine’s report claimed that had Dr. Taylor examined       with prejudice. TEX. CIV. PRAC. & REM.CODE ANN.
or cultured Fossett’s surgical wound, he might have            § 74.351(b); see also, Hernandez v. Ebrom, 289 S.W.3d
properly diagnosed MRSA and begun treatment with               316, 318 (Tex.2009) ( “If a timely and sufficient report is
appropriate antibiotic therapy, thereby avoiding               not served, the trial court must award the provider its
subsequent surgeries, pain, and permanent scarring. This       attorney’s fees and costs and dismiss the case with
attempt to establish causation also suffers from the           prejudice.”). Having concluded that the trial court should
infirmity that it presents only a possibility of causation.    have granted Dr. Taylor’s motion to dismiss as to
See id. Dr. Levine’s report presented no factual basis for a   Fossett’s claims, under section 74.351(b) of the civil
conclusion that had Dr. Taylor examined or cultured            practice and remedies code, the trial court erred in
Fossett’s surgical wound, properly diagnosed MRSA, and         denying Dr. Taylor’s request for reasonable attorney’s
begun treatment with appropriate antibiotic therapy, the       fees and costs of court. Accordingly, we sustain Dr.
subsequent surgical procedures, pain, and permanent            Taylor’s assertion of entitlement to his reasonable
scarring would have been avoided.                              attorney’s fees and costs under section 74.351(b).

Dr. Levine’s report omitted any factual explanation of
how any act or omission by Dr. Taylor in delaying
diagnosis and treatment of Fossett’s condition for no more
than 48 hours proximately caused additional                                             Conclusion

               © 2015 Thomson Reuters. No claim to original U.S. Government Works.                                      5
Taylor v. Fossett, 320 S.W.3d 570 (2010)



We reverse the trial court’s order denying Dr. Taylor’s                   of a final order dismissing Fossett’s claims against Dr.
motion to dismiss. We remand this case to the trial court                 Taylor with prejudice.
for the limited purposes of determining and awarding Dr.
Taylor reasonable attorney’s fees and costs and for entry

Footnotes
1      Dr. Levine expressly incorporated the opinions he expressed in his original expert report in his supplemental expert report. On
       appeal, Fossett contends that “taken together,” Dr. Levine’s original and supplemental reports comply with the statutory
       requirements of section 74.351. Reports may be considered together in determining whether a claimant provided a report
       meeting the statutory requirements. See TEX. CIV. PRAC. & REM.CODE ANN. § 74.351(i); see also, Packard v. Guerra, 252
       S.W.3d 511, 527 (Tex.App.-Houston [14th Dist.] 2008, pet. denied) (“If a plaintiff can rely on more than one report to satisfy
       the standard of care, breach, and causation, we see no violation of section 74.351(i) just because a plaintiff attempted to cure an
       insufficient report with supplemental reports and refiled expert reports some of which initially were found to be insufficient.”).
          We disagree with Fossett’s argument on appeal that Dr. Taylor is precluded from raising objections to Dr. Levine’s initial
          report because Dr. Taylor did not seek relief from this Court at the time of the trial court’s order regarding that report. See
          TEX. CIV. PRAC. & REM.CODE ANN. § 51.014(9) (Vernon 2008) (no appeal may be taken from trial court’s order
          granting extension under section 74.351(c)); see also, Ogletree v. Matthews, 262 S.W.3d 316, 321 (Tex.2007) (in cases where
          report that implicated health care provider’s conduct was served and trial court granted extension under section 74.351(c),
          appellate courts are without jurisdiction to reach merits of motion to dismiss).
2      Dr. Levine’s original report contains numerous purported breaches of the standard of care by Dr. Taylor. Here, the analysis is
       dedicated to Dr. Levine’s opinions concerning alleged breaches of the standard of care that he asserts caused injury or damage.




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
Texarkana Nursing & Healthcare Center, LLC v. Lyle, 388 S.W.3d 314 (2012)




                  388 S.W.3d 314
              Court of Appeals of Texas,
                     Texarkana.                                                        OPINION
     TEXARKANA NURSING & HEALTHCARE                           Opinion by Justice CARTER.
            CENTER, LLC, Appellant
                         v.
  Susan LYLE, Independent Guardian of Betty Ruth
                  Vest, Appellee.                             I. Background
                                                              Betty Ruth Vest was a resident of Texarkana Nursing &
 No. 06–12–00067–CV. | Submitted: Nov. 20, 2012.              Healthcare Center, L.L.C. (Texarkana Nursing) from
            | Decided: Dec. 14, 2012.                         2003 until September 2011, when she passed *316 away.1
                                                              From the time of her admission, Vest was dependent on
                                                              the nursing home staff for all of her care. It is alleged that
Synopsis                                                      on July 31, 2009, while under the care of the Texarkana
Background: Resident’s daughter brought action against        Nursing staff and while receiving hospice care, Vest was
nursing home, alleging negligent hiring, supervision, and     assaulted by Mary Bean, an L.V.N. employed by
failure to provide a safe environment, as well as vicarious   Texarkana Nursing. The assault allegedly left scratches on
liability for assault of resident by home’s employee. The     Vest’s forehead, cuts on her left leg, knots on the sides of
202nd Judicial District Court, Bowie County, Leon F.          her head, and caused bruising and swelling of her left eye.
Pesek Jr., J., trial court denied nursing home’s motion to    Vest recovered from the assault.2 Bean was arrested and
dismiss. Nursing home appealed.                               charged with assault.

                                                              In July 2011, Susan Lyle, Vest’s daughter and
Holdings: The Court of Appeals, Carter, J., held that:        independent guardian, sued Texarkana Nursing3 alleging
                                                              Vest was assaulted by Bean in July 2009 and was injured
[1]
   expert report provided by daughter was deficient with      as a result. Lyle pleads that the claims “by Plaintiff
respect to her direct liability claim;                        against Defendants fall within the scope of Chapter 74 of
                                                              the Texas Civil Practice and Remedies Code.” This
[2]
   remand was required to allow trial court to consider       assertion is incorporated into each theory of liability
whether to grant extension to allow expert to cure the        thereafter set forth in the petition. Lyle claims Texarkana
deficiency;                                                   Nursing is vicariously liable for the alleged negligence of
                                                              its employees. Lyle further alleges Texarkana Nursing
[3]
   expert report was also deficient with respect to           was directly responsible for the assault due to negligent
daughter’s vicarious liability claims; and                    supervision, negligent hiring, failure to hire and provide
                                                              sufficient staff, and failure to allocate sufficient financial
[4]
   the deficiency with respect to the vicarious liability     resources to the facility. The petition also alleges a direct
claims was not curable.                                       negligence claim against Texarkana Nursing based on the
                                                              failure to provide a safe environment for its residents.

Remanded.                                                     Lyle provided an expert report from Milton D. Shaw,
                                                              M.D., C.M.D.4 In response, Texarkana Nursing filed a
                                                              motion to dismiss for failure to provide an adequate
Attorneys and Law Firms                                       expert report in accordance with Section 74.351(a) and
                                                              (b) of the Texas Civil Practice and Remedies Code. TEX.
*315 David W. Frost, Kent, Anderson & Bush, PC, Tyler,        CIV. PRAC. & REM.CODE ANN. § 74.351(a), (b) (West
TX, for appellant.                                            2011). The trial court denied the motion to dismiss. On
                                                              appeal of this interlocutory order, Texarkana Nursing
J.T. Borah, Dawn W. Smith, Curtis E. Clinesmith, The          alleges that (1) the trial court erred in denying its motion
Clinesmith Firm, Dallas, TX, for appellee.                    to dismiss Lyle’s direct liability claims, and (2) the trial
                                                              court erred in denying its motion to dismiss Lyle’s
Before MORRISS, C.J., CARTER and MOSELEY, JJ.                 vicarious liability claims.

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Texarkana Nursing & Healthcare Center, LLC v. Lyle, 388 S.W.3d 314 (2012)




II. Applicable Law and Standard of Review
[1] [2] [3]
            Chapter 74 of the Texas Civil Practice and          III. Analysis
Remedies Code requires a health care liability claimant to
serve on each party one or more expert reports, together        A. Shaw’s Report is Deficient, but Not Silent, with
with a curriculum vitae of each expert, no later than 120       Respect to Direct Liability Claims
days after the original petition is filed. TEX. CIV. PRAC.      Texarkana Nursing argues that Shaw’s report is silent
& REM.CODE ANN. § 74.351(a). An expert report is                with respect to the pled claims of direct liability.
                                                                Texarkana Nursing characterizes the categories of direct
             a written report by an expert that                 negligence listed in the petition as negligence in hiring,
             provides a fair summary of the                     staffing levels, supervision of personnel, provision of
             expert’s opinions as of the date of                financial resources, and failing to comply with the Code
             the report regarding applicable                    of Federal Regulations.5
             standards of care, the manner in
             which the care rendered by the                     Shaw’s report states that Vest “was assaulted by Mary
             physician or health care provider                  Ann Bean, an L.V.N. at the nursing facility, resulting in
             failed to meet the standards, and                  injuries to Mrs. Vest, including a 1 inch scratch to the
             the *317 causal relationship                       forehead, bilateral contusions with swelling to the
             between that failure and the injury,               forehead, left periorbital ecchymosis, *318 and contusion
             harm, or damages claimed.                          with ecchymosis to the left lower leg.”6

TEX. CIV. PRAC. & REM.CODE ANN. § 74.351(r)(6)                  The report includes one paragraph addressing the standard
(West 2011). A motion to dismiss is properly granted if it      of care, as follows:
appears that the report does not represent a good-faith
effort to comply with subsection (r)(6) or is not                           The standard of care for a long
sufficiently specific “to provide a basis for the trial court               term care facility and its staff
to conclude that the claims have merit.” Am. Transitional                   requires that the facility in question
Care Ctrs. of Tex., Inc. v. Palacios, 46 S.W.3d 873, 875                    provide that level of care and
(Tex.2001); see TEX. CIV. PRAC. & REM.CODE ANN.                             treatment that a reasonable,
§ 74.351(r)(6). A report that merely states the expert’s                    prudent, similar facility would
conclusions regarding the standard of care, breach, and                     provide under the same or similar
causation is deficient. See Palacios, 46 S.W.3d at 879.                     circumstances. The facility must
“[T]he expert must explain the basis of his statements to                   provide the necessary care and
link his conclusions to the facts.” Bowie Mem’l Hosp. v.                    services to attain or maintain the
Wright, 79 S.W.3d 48, 52 (Tex.2002) (per curiam). A                         highest      practicable     physical,
motion challenging the adequacy of an expert report shall                   mental, and psychosocial wellbeing
be granted if the report “does not represent an objective                   possible. To do so also requires that
good faith effort to comply” with the statutory definition                  the nursing facility provide a safe
of an expert report. TEX. CIV. PRAC. & REM.CODE                             environment for its residents,
ANN. § 74.351(l ) (West 2011). A “good faith effort” is                     insofar as it is possible.
one that (1) provides information sufficient to inform the
defendant of the specific conduct called into question and      Shaw further opines:
(2) enables the trial court to conclude the claims have
merit. Wright, 79 S.W.3d at 52.                                             In the case of Ms. Vest, Texarkana
                                                                            Nursing and Healthcare Center
[4] [5]
      We review a trial court’s ruling on a motion to                       clearly did not provide a safe and
dismiss for an abuse of discretion. Id.; Goforth v.                         secure     environment       for     its
Bradshaw, 296 S.W.3d 849, 851 (Tex.App.-Texarkana                           residents, allowing the documented
2009, no pet.). A trial court abuses its discretion when it                 assault of Ms. Vest by one of its
acts arbitrarily or unreasonably or without reference to                    own employees. In this regard,
any guiding rules or principles. Walker v. Gutierrez, 111                   Texarkana Nursing and Healthcare
S.W.3d 56, 62 (Tex.2003). A trial court has no discretion,                  Center breached its responsibility
however, in correctly analyzing and applying the law.                       to Ms. Vest and her family,
Walker v. Packer, 827 S.W.2d 833, 840 (Tex.1992).                           resulting in injury to the resident.

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Texarkana Nursing & Healthcare Center, LLC v. Lyle, 388 S.W.3d 314 (2012)



Shaw concludes that “Texarkana Nursing and Healthcare
Center failed to provide a safe environment for Ms. Vest,      Conversely, Lyle contends that the report meets the
resulting in her assault and injury at the hands of an         criteria set out in Chapter 74. According to Lyle, the
employee of the facility.”                                     report sets forth the standard of care, requiring the facility
                                                               to provide the level of care and services necessary for
                                                               Vest to maintain and attain the highest level of well-being
                                                               possible, thus necessitating the provision of an
                                                               environment safe for residents. Lyle defends the breach
           (1) Standard of Care and Breach                     and causation sections of the report in reliance on UHS of
                                                               Timberlawn, Inc. v. S.B. ex rel. A.B., 281 S.W.3d 207
Even though our analysis is confined to the four corners       (Tex.App.-Dallas 2009, pet. denied). In that case, a
of the report, the report must be read in conjunction with     thirteen-year-old patient at Timberlawn’s psychiatric
the pleadings to determine if it provides a basis for Lyle’s   treatment facility was placed in a ward with male patients,
claims. See Palacios, 46 S.W.3d at 878. The report states      where one of them allegedly raped her. The patient
that the applicable standard of care requires Texarkana        claimed her injuries were proximately caused by the
Nursing to “provide the necessary care and services to         negligence of Timberlawn’s employees and submitted an
attain or maintain the highest practicable physical, mental,   expert report in support of her claims. Timberlawn
and psychosocial wellbeing possible.” This standard            claimed the report was inadequate and conclusory on the
includes, insofar as it is possible, the duty to “provide a    issue of causation. This complaint was based on the
safe environment for ... residents.” Shaw opines that          premise that the expert did not opine that the patient was
Texarkana Nursing breached the standard of care by             actually raped, and, thus, could not identify the alleged
allowing the “documented assault on Ms. Vest by one of         causal relationship between Timberlawn’s alleged
its own employees.” The resulting injuries are listed in the   negligence and the patient’s injury. In rejecting this
report.                                                        premise, the court distinguished health care liability
                                                               claims in which “the ‘injury, harm, or damages claimed’
Texarkana Nursing initially takes issue with Shaw’s            flow from the existence of a medical condition that itself
opinion addressing the need to provide Vest with a “safe       resulted from the breach of the applicable standard of
environment” because it is not a pled claim. Even though       care.” Id. at 212. In such a case,
not pled in this precise language, the petition alleges a
breach of the nondelegable duty to assist Vest in attaining      [I]dentifying the causal relationship between the
and maintaining “the highest practicable level of physical,      alleged breach of the standard of care and the resulting
mental, and psychosocial well being.” As Shaw opines,            harm involves not only an explanation as to how the
the provision of a safe environment is required in order to      standard of care was breached, but also how the breach
fulfill this duty. See Harris Methodist Fort Worth v. Ollie,     gave rise to the new, deleterious medical condition.
342 S.W.3d 525, 527 (Tex.2011) (per curiam) (“services a         Similarly, other healthcare liability claims may allege
[health care provider] provides its patients necessarily         that a breach of the applicable standard of care
include those services required to meet the patients’            exacerbated a pre-existing medical condition, or
fundamental needs such as ... safety”).                          hindered or prevented the effective treatment of such a
                                                                 condition. Identifying the “breach/injury” causal
Texarkana Nursing further complains of the inadequacy            relationship in these cases may well require an expert
of the stated standard of care, because it does not indicate     to opine as to the existence, extent, and prognosis of the
what Texarkana Nursing should have done differently,             pre-existing medical condition, as well as how the
citing Russ v. Titus Hospital District, 128 S.W.3d 332,          alleged breach of the standard of care aggravated such
341–42 (Tex.App.-Texarkana 2004, pet. denied)                    a condition, impeded or prohibited its treatment, and
(“[w]hether a defendant breached his or her duty to a            otherwise affected the patient’s prognosis.
patient cannot be determined absent specific information
about what the defendant should have done differently”)          However, S.B.’s claim is different. S.B. alleges that, as
(quoting Palacios, 46 S.W.3d at 880).7 In other words,           a result of Timberlawn’s failure to meet the applicable
one must be able to determine from the report what was           standards of care relevant to its treatment of her, she
required by the standard of care. This requires “specific        was raped. Rape is not a medical condition. It is an
information about what the defendant should have done            assault. Moreover, rape may—or may not—be
differently.” Palacios, 46 S.W.3d at 880. Here, we have a        accompanied by medically ascertainable evidence of
generic statement that the nursing facility must provide a       physical trauma, or even physical evidence that it
safe environment. Texarkana Nursing maintains this is            occurred.
insufficient.

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Texarkana Nursing & Healthcare Center, LLC v. Lyle, 388 S.W.3d 314 (2012)



*320 Id. The court, therefore, declined to hold that the       moving her from the bed to a chair in her room, they
causation element of the report was required to include an     danced with her. Sanchez alleged that during these
opinion that the patient was in fact raped. Id.                physical contacts, the nurse and nurse’s assistant made
                                                               sexual overtures and comments and that the improper
This case is different from Timberlawn inasmuch as             conduct continued until she was discharged from the
Texarkana Nursing is not claiming that the report fails to     hospital a few days later. Id. at 872.
state that Vest was, in fact, assaulted. There is no dispute
that Vest was assaulted; the assault was photographically      *321 Sanchez sued the hospital for negligent hiring,
documented.8 Instead, Texarkana Nursing claims the mere        supervision, training, and retention of its employees and
statement that it failed to provide a safe environment is an   vicarious liability for the conduct of its employees.
insufficient statement of the breach of the standard of        Relevant to this case, Sanchez’s expert report was
care, because it does not indicate what should have been       attacked on the basis that it did not adequately set forth
done differently. In contrast, the Timberlawn report stated    the standard of care and/or safety and breach because the
that housing the patient                                       report was alleged to be conclusive and speculative. Id. at
                                                               877. Spohn further argued that the report failed to provide
                                                               specific information about what it should have done
   in the male unit exposed [the patient] to harm which        differently. The report stated, in relevant part, that the
   resulted in her self reported rape. Had [S.B.] been         “standard of care requires that the hospital and its nursing
   housed in a safe and appropriate manner, given her          staff provide adequate supervision to their certified
   propensity for sexual victimization, she would not have     nursing assistants and licensed nursing personnel.” The
   been placed in a male unit. By being housed in a male       report further stated that the “standard of care requires
   unit it was foreseeable that [S.B.] would be exposed to     that the hospital and its nursing staff protect their patients
   and was at higher risk for the exact self reported harm     from sexual harassment and abuse.” Id.
   which she suffered....
   Id. at 214. The report made clear the specific conduct      The court concluded that the report identified the care that
   called into question and provided a sufficient basis for    was expected, but not rendered under the applicable
   the trial court to conclude that the claim had merit. Id.   standard of care, because it states the hospital “[f]ailed to
   at 215.                                                     provide adequate supervision to the [certified nurse’s
In this case, however, the report indicates that Texarkana     assistant] and the [registered nurse],” “[f]ailed to protect
Nursing failed to provide “a safe and secure environment       Ms. Sanchez from sexual harassment and sexual abuse,”
for its residents, allowing the documented assault of Ms.      and “[f]ailed to provide safety to Ms. Sanchez in her
Vest by one if its own employees.” In other words, the         immediate post operative [sic] when the [certified nurse’s
assault itself is the breach of the standard of care, which    assistant] lifted Ms. Sanchez up and began dancing with
requires the provision of a safe and secure environment        her.” Id. The court found that this report put the hospital
for nursing home residents. This statement does not,           on notice of the specific, complained-of conduct. Id.
however, advise Texarkana Nursing of what should have
been done in order to prevent its employee from                In this case, unlike Sanchez, the report simply states that
assaulting Vest.                                               Texarkana Nursing failed to provide a safe and secure
                                                               environment for Vest. In Sanchez, however, the report
The question boils down to one of how much detail is           stated that the hospital was required to provide adequate
needed in order for an expert report to withstand Chapter      supervision of its certified nursing assistants and licensed
74 scrutiny when the harm alleged arises from assaultive       nursing personnel, to protect its patient from sexual
conduct. Lyle points to Christus Spohn Health System           harassment and abuse, and to keep the patient safe.
Corp. v. Sanchez, 299 S.W.3d 868 (Tex.App.-Corpus              Granted, this is not much more detail than we have in this
Christi 2009, pet. denied), in support of her contention       case, but Sanchez may be close to the line of what is
that the report is sufficient. Sanchez involved an action      permissible.
against a hospital and hospital employees in their
individual capacities for assault and intentional infliction   For example, Baylor All Saints Medical Center v. Martin,
of emotional distress. Sanchez was an I.C.U. patient when      340 S.W.3d 529 (Tex.App.-Fort Worth 2011, no pet.),
a registered nurse and a certified nurse’s assistant           involved an alleged sexual assault on a patient in her
allegedly entered her room and made unwanted sexual            hospital room.9 The hospital objected to the sufficiency of
advances toward her. Sanchez alleged that one of the men       the patient’s expert report. The report in question
undressed her and exposed her body for the other to see.       articulates the standard of care as follows:
She further claimed that they turned her over using their
hands instead of a turning pad and, while they were

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Texarkana Nursing & Healthcare Center, LLC v. Lyle, 388 S.W.3d 314 (2012)



   A hospital such as Baylor All Saints Medical [C]enter         report further indicated that (the physician) was required
   is expected to adhere to specific standards of care in        “to insure her patients are being treated in a safe and
   regard to all of its patients. A bedrock principal [sic] in   secure environment by being aware of the environment,
   providing care to its patients is the understanding that      patient population, and safety measures taken by the
   all of a hospital’s patients by nature of their disease or    hospital.” Id. at 749. In concluding the report was
   injury are potentially vulnerable and necessarily need        conclusory, the court noted that it did not provide
   to receive treatment in a safe and secure environment.        information about how the physician was to insure that
   The Joint Commission on Accreditation of Health Care          the hospital was adequately staffed and that staff members
   Organizations (JCAHO) has established in its Hospital         were appropriately trained or what measures were
   Standards that all healthcare organizations must have in      available to insure the patient’s safety. Further, the report
   place policies which safeguard patients from assault by       did not indicate what kind of supervision by the hospital
   hospital staff and by strangers that enter the hospital.      was sufficient to provide a secure environment for the
   The JCAHO requires that hospitals adequately                  patient. Id. at 750.
   implement these standards, and monitor this
                                                                 [6]
   implementation. The JCAHO patient security and                   In this case, the only direct negligence claim addressed
   safety expectations would require at a minimum that           in Shaw’s report is that of failing to provide Vest with a
   hospitals should employ a sufficient number of security       safe and secure environment. Because the report fails to
   personal [sic] to insure that no unauthorized persons         articulate what Texarkana Nursing should have done
   enter patients [’] rooms and physically assault their         differently to prevent the assault, it is deficient with
   patients. Additionally, the JCAHO standards would             respect to articulation of the standard of care and its
   expect that all hospital staff should be trained to           breach.
   identify *322 persons that are not authorized to enter
   patients[’] rooms and should monitor and prevent
   unauthorized persons from having access to patients
   receiving treatment at the hospital.
   Id. at 533–34. The court determined this to be an                                   (2) Causation
   insufficient statement of the standard of care. For
   example, the report stated that there must be policies in     Texarkana Nursing further contends that Shaw’s report is
   place to safeguard patients from assault, including           deficient in that it *323 fails to set forth the causal
   employing a sufficient number of security personnel.          relationship between Texarkana Nursing’s alleged
   The court wrote that this statement failed to indicate        deviations from the standard of care and Vest’s injuries.
   what specific policies and safeguards should have been        The report does, however, indicate that Texarkana
   in place. Further, the “ ‘policies in place to safeguard      Nursing breached its responsibility to Vest in allowing the
   patients’ are not identified.” Id. at 534. The number of      documented assault of Vest by one of its own employees,
   security personnel needed and the training the staff          resulting in injury to Vest. The resulting injuries are
   should have received is not described. Id. This report        described. Lyle maintains that this is a sufficient
   failed in light of the required standard, i.e., “what an      statement of causation under Timberlawn. After all,
   ordinary prudent hospital would do under the same or          assault is not a medical condition. Conversely, if the
   similar circumstances,” and “even a fair summary must         report is not sufficiently detailed in its statement of the
   set out what care was expected.” Id. (citing Palacios,        standard of care and breach, and, thus, fails to advise
   46 S.W.3d at 880).10                                          Texarkana Nursing of what it should have done
Kingwood Pines Hospital, LLC v. Gomez, 362 S.W.3d                differently to provide a safe and secure environment for
740 (Tex.App.-Houston [14th Dist.] 2011, no pet.),               Vest, then it logically follows that causation should be
further illustrates the need for detail when an expert offers    described in terms of the specific shortcomings that
opinions regarding patient safety. In that case, a patient of    created a situation in which assault could occur.
Kingwood Pines Hospital was sexually assaulted by
another patient. Gomez offered an expert report indicating
a failure “to ensure that there were appropriately trained
                                                                 B. Deficiencies Regarding Direct Liability Are
and adequate staffing and millieu structure such that a
                                                                 Curable
young girl ... would not be sexually molested.” The report       [7]
                                                                     Texarkana Nursing contends that because the report
stated that the standard of care was breached when the
                                                                 does not address the pleaded cause of action, it does not
physician failed to insure her patient’s safety using “any
                                                                 constitute a good-faith effort to comply with the statutory
of the number of measures available,” by failing to
                                                                 requirements and should, therefore, be dismissed in
“provide additional supervision” and not affording the
                                                                 reliance on Windsor v. Maxwell, 121 S.W.3d 42, 51
patient “the most basic supervision.” Id. at 750. The

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Texarkana Nursing & Healthcare Center, LLC v. Lyle, 388 S.W.3d 314 (2012)



(Tex.App.-Fort Worth 2003, pet. denied) (to inform              against Texarkana Nursing to satisfy the expert report
defendant of specific conduct plaintiff has called into         requirement for the vicarious liability claims. See RGV
question, report must support cause of action alleged by        Healthcare Assocs., Inc. v. Estevis, 294 S.W.3d 264, 273
plaintiff in its pleadings). Here, as previously discussed,     (Tex.App.-Corpus Christi 2009, pet. denied).
the report does address the claim that Texarkana Nursing
had a duty to assist Vest in attaining and maintaining “the     Lyle pled that the staff of Texarkana Nursing did not
highest practicable level of physical, mental, and              provide Vest with timely and accurate care assessments
psychosocial well being.” Implicit in this duty is the          and necessary supervision; failed to use reasonable care in
provision of a safe and secure environment. See Harris          treating residents with the degree of skill and learning
Methodist Fort Worth, 342 S.W.3d at 527. The report,            ordinarily possessed and used by nursing home facilities
albeit in a conclusory manner, addresses this claim.            in the same or similar locality; failed to assist residents
                                                                (including Vest) in attaining and maintaining the highest
Because the report is deficient with respect to Lyle’s          practicable level of physical, mental, and psychosocial
direct liability claim regarding the failure to provide a       well-being; failed to meet the applicable standards of
safe and secure environment for Vest, the trial court           care; violated their duty of care to Vest through
should be permitted the opportunity to consider whether         mistreatment, abuse and neglect; and violated Section
to grant a thirty-day extension to cure the deficiencies.       22.04 of the Texas Penal Code (injury to elderly
See TEX. CIV. PRAC. & REM.CODE ANN. § 74.351(c)                 individual). Shaw’s report is silent with respect to each of
(West 2011);11 Leland v. Brandal, 257 S.W.3d 204, 207           these claims, with the exception of assaultive conduct and
(Tex.2008); Longino v. Crosswhite, 183 S.W.3d 913, 918          mistreatment. The report identifies conduct by Texarkana
n. 2 (Tex.App.-Texarkana 2006, no pet.); see also               Nursing’s employee—the alleged assault on Vest. The
Scoresby v. Santillan, 346 S.W.3d 546, 549 (Tex.2011)           report fails, however, to identify the standard of care,
(trial court should err on side of granting additional time     breach of the standard of care, or causation.
and must grant it if deficiencies are curable).12 Because at
                                                                [9]
least three of Lyle’s direct liability claims necessarily          The only statement regarding the standard of care in the
relate to the provision of a safe environment, they are not     entire report regarding the staff is: “The standard of care
completely unaddressed, and we decline to find that such        for a long term care facility and its staff requires that the
claims should be dismissed.13 See *324 Querry v.                facility in question provide that level of care and
Sanders, No. 06–08–00099–CV, 2009 WL 1097904, at *7             treatment that a reasonable, prudent, similar facility
(Tex.App.-Texarkana Apr. 24, 2009, no pet.) (mem. op.)          would provide under the same or similar circumstances.”
(report which wholly failed to address alleged negligence       (Emphasis added.) The report says nothing regarding the
in failing to properly identify and isolate main bile duct      breach of the standard of care by the staff or how that
before initiating main procedure not curable deficiency).       breach caused Vest’s injuries. While the underlying
                                                                nature of the vicarious liability claim rests in the
                                                                intentional acts of Bean, which appear to be unrelated to
                                                                the rendition of health care, Lyle’s pleading alleges her
C. Shaw’s Report Fails to Address Vicarious Liability           claims fall within the purview of Chapter 74.14 We must,
Claims                                                          therefore, analyze *326 them as such. See Giron v. Baylor
[8]
    Lyle’s petition alleges that Texarkana Nursing has          Univ. Med. Ctr., No. 05–09–00825–CV, 2011 WL
“vicarious liability for the acts and omissions of all          149981, at *2 (Tex.App.-Dallas Jan. 19, 2011, pet.
persons or entities under their control, either directly or     denied) (mem. op.) (when Giron chose to proceed under
indirectly, including employees, agents, consultants, and       Chapter 74 and plead her cause of action as health care
independent contractors, whether in-house or outside            liability claim, she bound herself to statutory
entities, individuals, agencies, or pools causing or            requirements).
contributing to the injuries of BETTY RUTH VEST.”
“When a party’s alleged health care liability is purely         [10]
                                                                    The lone statement regarding the standard of care
vicarious, a report that adequately implicates the actions      applicable to the staff of Texarkana Nursing fails to
of that party’s agents or employees is sufficient.” Gardner     specify what is required of a reasonable and prudent staff
v. U.S. Imaging, Inc., 274 S.W.3d 669, 671–72                   under the same or similar circumstances. This statement is
(Tex.2008) (per curiam). Thus, if the report identifies         not a fair summary of Shaw’s opinions regarding the
conduct by Texarkana Nursing’s employee, Texarkana              standard of care for the Texarkana Nursing staff. The
Nursing is implicated. As long as the report adequately         mere recitation of a legal standard, in the absence of
addresses the standard of care applicable to the employee,      specific facts applicable to this case, is not a good-faith
how the employee breached the standard of care, and that        effort to articulate the standard of care. See Lira v. Cerna,
the breach caused the plaintiff’s injury, it is sufficient as   No. 08–01–00250–CV, 2002 WL 1767569, at *6

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Texarkana Nursing & Healthcare Center, LLC v. Lyle, 388 S.W.3d 314 (2012)



(Tex.App.-El Paso Aug. 1, 2002, no pet.) (not designated
for publication) (The statement that “[t]he standard of
care requires that a physician provide that level of care
which a reasonable prudent physician would provide in                        IV. Conclusion
the same or similar circumstances” does not demonstrate                      Because the report is deficient with respect to Lyle’s
good-faith effort to provide fair summary of expert’s                        direct liability claim regarding the failure to provide a
opinions and does not identify standard of care.); see also                  safe and secure environment for Vest, we remand this
Hood v. Phillips, 554 S.W.2d 160, 165 (Tex.1977)                             claim to the trial court to consider whether to grant a
(holding that legal standard for medical profession is                       thirty-day extension to cure these deficiencies.
“reasonable and prudent” physician “under the same or
similar circumstances”). Moreover, the report is silent                      Shaw’s report is silent with respect to the standard of
regarding the breach of the standard of care and causation.                  care, breach, and causation regarding her vicarious
Because the standard of care applicable to the staff is not                  liability claims. Because these deficiencies are not
identified, and because breach and causation are not                         curable, Lyle’s vicarious liability claims are dismissed.
addressed, these deficiencies are not curable. Lyle’s
vicarious liability claims should, therefore, have been
dismissed by the trial court.

Footnotes
1      Lyle died in September 2011, after the petition was filed in July 2011.

2      While Lyle does not claim Vest died as a result of the assault, the prayer for relief is phrased in terms of the “wrongful death
       beneficiaries of BETTY RUTH VEST.”
3      Ann Yeager Ellisor (the nursing home administrator) was also a named defendant in the lawsuit. The claim against Ellisor was
       nonsuited.
4      Shaw is board certified in internal medicine and is certified by the American Medical Directors Association as a medical
       director. Shaw is the medical director of the geriatrics and extended care program at the Veterans Administration (VA) Hospital
       in Kerrville and is assistant clinical professor of medicine at the University of Texas Medical School at San Antonio. Shaw is
       the medical director of two private community nursing homes in Kerrville, separate from his VA practice.
5      The allegations fall variously under the categories listed in the petition as “Negligence,” “Negligence Resulting in Health Care
       Liability Claims,” “Negligence Per Se,” and “Violation of Penal Code § 22.04.” Pled claims include: the failure to allocate
       sufficient financial resources to Texarkana Nursing for residents’ needs to be met, resulting in the mistreatment, abuse, and
       neglect of Vest; the failure to use reasonable care in treating residents with the degree of skill and learning ordinarily possessed
       and used by nursing home facilities in the same or similar locality; the failure to assist all residents, including Vest, in attaining
       and maintaining the highest practicable level of physical, mental, and psychosocial well-being; the failure to properly supervise
       nurses and aides; the failure to provide sufficient nurses and aides; the failure to ensure that Vest received timely and accurate
       care assessments and necessary supervision; various violations of the Code of Federal Regulations; and violation of Section
       22.04 of the Texas Penal Code (injury to elderly individual). TEX. PENAL CODE ANN. § 22.04 (West Supp.2012).
6      Ecchymosis is “[t]he passage of blood from ruptured blood vessels into subcutaneous tissue, marked by a purple discoloration
       of the skin.” Ecchymosis Definition, TheFreeDictionary.com,
       http://www.thefreedictionary.com/ecchymosis (last visited Dec. 10, 2012).
7      Russ involved an allegedly deficient report regarding a hospital’s duty to keep a suicidal patient from injuring herself. In that
       case, the patient sustained injuries from a fall out of a hospital window. This Court held that the statement “that windows [must]
       either be secured with metal screens that only staff can open, or be locked” or, “[i]f the patient has access to the window, a
       special difficult to break glass or Plexiglass should be used” was sufficient to apprise the hospital of what it should have done
       differently in light of the fact that the hospital placed the patient in a fourth-floor room with unlocked windows. Russ, 128
       S.W.3d at 342.
8      Shaw’s report indicates he reviewed the following records in conjunction with issuing his report:
           1) Nursing Home Records from Texarkana Nursing and Healthcare Center
           2) Affidavit from the Texas Board of Nursing
           3) Offense Report by Officer Steven G. Womack
           4) Pictures of Mrs. Vest taken by her daughter
                © 2015 Thomson Reuters. No claim to original U.S. Government Works.                                                        7
Texarkana Nursing & Healthcare Center, LLC v. Lyle, 388 S.W.3d 314 (2012)



           5) Arrest Report of Mary Elliott Bean.
9     The Martin opinion does not indicate whether the assault was committed by a hospital employee, another patient, or some other
      third party.
10    The court also addressed Martin’s claim that the report was all that could be done at the time in light of the fact that Section
      74.351(s) only allows discovery of medical records and billing records, which do not contain the circumstances surrounding the
      assault and hence provide no discovery as to whether security standards were met. The court wrote that this was a misreading of
      the discovery allowed under Section 74.351(s). Because assaults in health care settings are covered by Section 74.351, said the
      court (Martin, 340 S.W.3d at 534 (citing Diversicare Gen. Partner, Inc. v. Rubio, 185 S.W.3d 842, 851 (Tex.2005))), logically,
      discovery of the hospital’s policies and procedures regarding the protection of patients from assault must be covered by Section
      74.351(s). Martin, 340 S.W.3d at 534.
11    Section 74.351 of the Texas Civil Practice and Remedies Code states, “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.” TEX. CIV. PRAC. & REM.CODE ANN. § 74.351(c).
12    Scoresby involved a letter report that failed to state the standard of care but implied that it was inconsistent with the physicians’
      conduct. Even so, the report contained the opinion of an individual with expertise that the claim had merit and implicated the
      defendants’ conduct. This minimal standard is met here as well. The report is written by an individual with expertise, implicates
      the conduct of Texarkana Nursing, and indicates that the claim has merit. Scoresby, 346 S.W.3d at 557.
13    Lyle alleges that Texarkana Nursing was negligent in terms of hiring, staffing levels, supervision of personnel, provision of
      financial resources, and in failing to comply with the Code of Federal Regulations.
14    Recently, the Texas Supreme Court decided Loaisiga v. Cerda, 379 S.W.3d 248 (Tex.2012). Loaisiga was not decided until
      after the appellant’s brief was filed here and well after the hearing in the trial court. In Loaisiga, two female patients sued a
      medical doctor, the professional association bearing his name, and a clinic alleging the doctor assaulted them by groping their
      breasts while examining them for sinus and flu symptoms. Id. at 253. The patients served the doctor and professional
      association with reports from a physician who, based on the assumption that the allegations in the plaintiffs’ pleadings were
      true, opined that the doctor’s alleged actions did not fall within any appropriate standard of care. The defendants argued that the
      claims were health care liability claims and moved for dismissal on the basis that the reports were deficient. The trial court
      denied the motions. The court of appeals held that the claims were not health care liability claims and that expert reports were
      not required and affirmed the trial court’s order without considering the report’s adequacy. Id. at 254. The high court recognized
      a presumption:
            The breadth of the statute’s text essentially creates a presumption that a claim is an HCLC if it is against a physician or
            health care provider and is based on facts implicating the defendant’s conduct during the course of a patient’s care,
            treatment, or confinement. See [Marks v. St. Luke’s Episcopal Hosp., 319 S.W.3d 658, 662 (Tex.2010) ]. But the
            presumption is necessarily rebuttable. In some instances the only possible relationship between the conduct underlying a
            claim and the rendition of medical services or healthcare will be the healthcare setting (i.e., the physical location of the
            conduct in a health care facility), the defendant’s status as a doctor or health care provider, or both.
         Id. at 256. Following a discussion of the statute’s requirement that claimants in health care liability claims file expert reports,
         the high court wrote:
            [W]e fail to see how the Legislature could have intended the requirement of an expert report to apply under circumstances
            where the conduct of which a plaintiff complains is wholly and conclusively inconsistent with, and thus separable from, the
            rendition of “medical care, or health care, or safety or professional or administrative services directly related to health
            care” even though the conduct occurred in a health care context. See TEX. CIV. PRAC. & REM.CODE ANN. §
            74.001(a)(13); see also TEX. GOV’T CODE ANN. § 311.021 (“In enacting a statute, it is presumed that ... a just and
            reasonable result is intended....”).
         Id. at 257.
         The court then listed three factors that must be reflected in the record in order for an assault claim against a medical or health
         care provider not to be considered a health care liability claim:
            [A] claim against a medical or health care provider for assault is not an HCLC if the record conclusively shows that (1)
            there is no complaint about any act of the provider related to medical or health care services other than the alleged
            offensive contact, (2) the alleged offensive contact was not pursuant to actual or implied consent by the plaintiff, and (3)
            the only possible relationship between the alleged offensive contact and the rendition of medical services or healthcare was
            the setting in which the act took place.
         Id.
         In determining whether a claim is subject to the Texas Medical Liability Act’s (TMLA) expert report requirements, the trial
         court is not limited to the four corners of the expert report; instead, the trial court should consider the entire record, including
         pleadings, motions and responses, and relevant evidence properly admitted. Id. at 258. In Loaisiga, the court noted a lack of

               © 2015 Thomson Reuters. No claim to original U.S. Government Works.                                                        8
Texarkana Nursing & Healthcare Center, LLC v. Lyle, 388 S.W.3d 314 (2012)



         information to give context to the physician’s actions during the examinations, such as medical records, reports, and other
         information regarding the plaintiffs’ symptoms and complaints to the physician. This lack of information prevented the
         plaintiffs from conclusively showing that “the only relationship between the alleged touching of their breasts and Dr.
         Loaisiga’s rendition of medical services was the physical location of the examination....” Id. at 259. The court went on to say
         that
            because we are clarifying the standard for whether claims are subject to the TMLA’s expert report requirements and the
            plaintiffs maintain that theirs are not, we conclude it is appropriate to remand the case to the trial court for further
            proceedings regarding that issue. See Low v. Henry, 221 S.W.3d 609, 621 (Tex.2007) (remanding “to allow the parties to
            present evidence responsive to our guidelines”).
         Id. at 260.
         In light of Loaisiga, this Court questioned whether to remand the case to the trial court for a determination of whether or not
         Lyle’s claim is, in fact, a health care liability claim. However, in Loaisiga, the plaintiffs maintained that their claims were not
         health care liability claims. Here, Lyle has represented to this Court that her claims are health care liability claims, and, in
         oral argument, Lyle’s counsel stated it was not her wish to remand the case to the trial court for a determination of whether
         her claims are subject to the TMLA’s expert report requirements.




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.                                                       9
Texas West Oaks Hosp., LP v. Williams, 371 S.W.3d 171 (2012)
55 Tex. Sup. Ct. J. 1033


                                                                [6]
                                                                   aside from claims alleging negligent medical care or
                                                                health care, a claim need not involve a patient-physician
                    371 S.W.3d 171
                Supreme Court of Texas.                         relationship for it to be an HCLC.

      TEXAS WEST OAKS HOSPITAL, LP and Texas
          Hospital Holdings, LLC, Petitioners,                  Judgment of Court of Appeals reversed; case remanded
                          v.                                    with instructions.
          Frederick WILLIAMS, Respondent.
                                                                Lehrmann, J., filed a dissenting opinion, in which Medina
No. 10–0603. | Argued Nov. 8, 2011. | Decided June              and Willett, JJ., joined.
                    29, 2012.
                                                                Attorneys and Law Firms
Synopsis
Background: Estate of psychiatric patient brought health        *174 Ryan Lee Clement, Wesson H. Tribble, Tribble,
care liability claim (HCLC) against hospital and                Ross & Wagner, Houston, TX, for Texas West Oaks
hospital’s employee who was involved in physical                Hospital, LP.
altercation with patient that resulted in patient’s death and
injuries to employee. Employee brought cross-claim of           Charles M. Hessel, Marks Balette & Giessel, P.C., Robert
negligence against hospital, which was a nonsubscriber to       Steven Kwok, William Wade Hoke, Robert Kwok &
workers’ compensation scheme. The 234th District Court,         Associates, Leah Rush Easterby, Houston, TX, for
Harris County, Reese Rondon, J., denied hospital’s              Frederick Williams.
motion to dismiss employee’s cross-claim as an HCLC
                                                                Opinion
subject to expert-report requirements. Hospital brought
interlocutory appeal. The Court of Appeals, 322 S.W.3d          Justice WAINWRIGHT delivered the opinion of the
349, Leslie B. Yates, J., affirmed. Hospital filed petition     Court, in which Chief Justice JEFFERSON, Justice
for review.                                                     HECHT, Justice GREEN, Justice JOHNSON, and Justice
                                                                GUZMAN joined.

Holdings: The Supreme Court, Wainwright, J., held that:
                                                                At issue in this interlocutory appeal is whether the claims
[1]                                                             of an employee against his employer, both of whom are
   employee was a “claimant” under the Texas Medical
                                                                health care providers, alleging injuries arising out of
Liability Act (TMLA);
                                                                inadequate training, supervision, risk-mitigation, and
[2]                                                             safety in a mental health facility, constitute health care
   negligence claim was based on alleged departures from
                                                                liability claims (HCLCs) under the Texas Medical
accepted standards of health care and of safety and was
                                                                Liability Act (TMLA or Act). See TEX. CIV. PRAC. &
therefore an HCLC;
                                                                REM.CODE ch. 74 et seq. We conclude that the TMLA
[3]                                                             does not require that the claimant be a patient of the
   if expert medical or health care testimony is necessary
                                                                health care provider for his claims to fall under the Act, so
to prove or refute the merits of claim against a physician
                                                                long as the Act’s other requirements are met. We hold
or health care provider, claim is an HCLC;
                                                                that the employee here is properly characterized as a
[4]                                                             “claimant” under the Act and his allegations against his
   to qualify as an HCLC, a claim that is based on
                                                                nonsubscribing employer are health care and safety
departures from accepted standards of safety need not be
                                                                claims under the TMLA’s definition of HCLCs, requiring
directly related to health care, abrogating St. David’s
                                                                an expert report to maintain his lawsuit. We further hold
Healthcare P’ship, L.P. v. Esparza, 315 S.W.3d 601;
                                                                that the Act does not conflict with the Texas Workers’
Appell v. Muguerza, 329 S.W.3d 104;
                                                                Compensation Act (TWCA). We therefore reverse the
[5]                                                             judgment of the court of appeals.
  interpreting hospital employee’s action as an HCLC did
not conflict with exclusive-remedy provisions of Texas
Workers’ Compensation Act (TWCA), as hospital was a
nonsubscriber to workers’ compensation insurance; and
                                                                                      I. Background

                © 2015 Thomson Reuters. No claim to original U.S. Government Works.                                    1
Texas West Oaks Hosp., LP v. Williams, 371 S.W.3d 171 (2012)
55 Tex. Sup. Ct. J. 1033

Texas West Oaks Hospital, LP and Texas Hospital                            tendencies that Mario Vidaurre
Holdings, LLC operate Texas West Oaks Hospital (West                       possessed; (c) Failing to provide
Oaks), a state-licensed, private mental health hospital                    adequate protocol to avoid and/or
located in Houston, Texas. Frederick *175 Williams, a                      decrease the severity of altercations
psychiatric technician and professional caregiver at West                  between its employees, such as
Oaks, was injured on the job while supervising a patient,                  Williams, and patients; (d) Failing
Mario Vidaurre. Vidaurre was admitted to West Oaks on                      to provide its employees, including
June 11, 2007. Due to his history of paranoid                              Williams, with adequate emergency
schizophrenia, including manic outbursts and violent                       notification devices to alert other
behavior directed at family members and professional                       employees of altercations in which
staff, Vidaurre was placed by his admitting physician on                   assistance is needed; (e) Failing to
one-to-one observation, an elevated level of supervised                    warn Williams of the dangers that
care in the psychiatric unit. Vidaurre was also put on “unit               West Oaks knew or should have
restriction,” meaning he could only be taken out of the                    known were associated with
psychiatric unit by direct order of a physician. A few days                working with patients such as Mr.
after Vidaurre’s admission, while Williams was                             Vidaurre; and (f) Failing to provide
supervising him, Vidaurre became agitated. To calm him,                    a safe workplace for its employees,
Williams took Vidaurre to an outdoor enclosed smoking                      including Williams.
area, in violation of the unit-restriction policy. The door
to the enclosure locked behind them and the unsupervised       West Oaks filed a motion to dismiss on the grounds that
area contained no cameras, audio supervision, mirrors, or      Williams’ claims constituted HCLCs under the TMLA
other monitoring apparatus. Although Williams                  and that Williams had not served an expert report on West
previously had taken Vidaurre to the smoking area              Oaks, as required under the Act. See TEX. CIV. PRAC. &
without incident, a physical altercation occurred on this      REM.CODE § 74.001(a)(13) (defining health care
occasion, resulting in Vidaurre’s death and injuries to        liability claims), and § 74.351(a), (b) (requiring a trial
Williams.                                                      court to dismiss a health care liability claim if an expert
                                                               report is not served within 120 days of filing suit).1
Vidaurre’s estate sued West Oaks, and later Williams,          Williams *176 responded that his claims sound in
asserting HCLCs under the TMLA, codified in Chapter            ordinary negligence rather than health care liability.
74 of the Texas Civil Practice and Remedies Code. TEX.         Following a hearing, the trial court denied West Oaks’
CIV. PRAC. & REM.CODE §§ 74.001–74.507. Williams               motion. West Oaks then filed this interlocutory appeal.
later asserted cross claims of negligence against West         See id. § 51.014(a)(9).
Oaks pursuant to section 406.033 of the Texas Labor
Code, a statutory provision governing employee common          The court of appeals affirmed the trial court’s order. 322
law claims against employers not subscribed to workers’        S.W.3d 349, 354. The court analyzed Williams’ claims as
compensation. See TEX. LAB.CODE § 406.033. West                breaches of West Oaks’ duty of safety to its employee. Id.
Oaks’ status as a nonsubscriber to workers’ compensation       at 352. The court of appeals began its analysis from the
is uncontroverted, and therefore, Williams’ claims against     premise that the phrase “directly related to health care” in
his employer are not barred by the Texas Workers’              section 74.001(a)(13) modifies not only “professional or
Compensation Act. See id.; Port Elevator–Brownsville,          administrative services,” but also the term “safety.” Id. It
L.L.C. v. Casados, 358 S.W.3d 238, 241 (Tex.2012)              concluded that a safety claim “must be directly related to
(discussing the “exclusive remedy” doctrine).                  and inseparable from health care.” Id. It is not disputed
                                                               here that Vidaurre’s claims against West Oaks are
Williams alleged that West Oaks was negligent in:              HCLCs, but Williams argues his claims against West
                                                               Oaks are not. The court of appeals noted the related
            (a) Failing to properly train                      nature of the two parties’ cases but concluded, based in
            Williams to work at West Oaks’                     part on our withdrawn opinion in Marks v. St. Luke’s
            premises, including warning him of                 Episcopal Hospital, 52 Tex.Sup.Ct.J. 1184, withdrawn
            the inherent dangers of working                    and superseded on rehearing, 319 S.W.3d 658
            with patients with the conditions                  (Tex.2010), that Williams’ claims against West Oaks are
            and tendencies that Mario Vidaurre                 separable from health care and are not HCLCs. 322
            possessed; (b) Failing to adequately               S.W.3d at 353. Reasoning that the source of West Oaks’
            supervise West Oaks’ employees,                    duty to Williams is the employer-employee relationship
            including Williams, while working                  and that the nature of Vidaurre’s relationship with West
            with patients with conditions and                  Oaks—patient to health care provider—is different from

               © 2015 Thomson Reuters. No claim to original U.S. Government Works.                                   2
Texas West Oaks Hosp., LP v. Williams, 371 S.W.3d 171 (2012)
55 Tex. Sup. Ct. J. 1033

Williams’, the court of appeals concluded that the safety      security breaches do not require expert medical testimony
claims “flow from the employment relationship” between         and are interchangeable with safety and security issues
Williams and West Oaks and are not “directly related” to       arising in non-medical settings such as corrections
health care, as required by the statute. 322 S.W.3d at 352–    facilities. See id. at 353 (opining that Williams’ safety and
53; TEX. CIV. PRAC. & REM.CODE § 74.001(a)(13).                security claims involve issues also “aris[ing] in other
West Oaks filed a petition for review in this Court.           settings, such as jails and prisons”). In essence, Williams
                                                               argues that the hospital is the mere situs of his claims, that
                                                               his role as psychiatric technician overseeing a mental
                                                               patient has no bearing on the character of his claims, and
                                                               the fact that his claims arose in a mental health facility
                      II. Discussion                           has little or no bearing on their character.
[1]
   In seeking to distinguish ordinary negligence claims
from HCLCs, the heart of these cases lies in the nature of
the acts or omissions causing claimants’ injuries and          A. Standard of Review
whether the events are within the ambit of the legislated      [2] [3]
                                                                       West Oaks’ and Williams’ arguments both implicate
scope of the TMLA. Causes of action that are HCLCs             the scope of claims reached by the TMLA. The nature of
cannot be transmuted to avoid the strictures of the            the claims the Legislature intended to include under the
medical liability statute. Omaha Healthcare Ctr., LLC v.       TMLA’s umbrella is a matter of statutory construction, a
Johnson, 344 S.W.3d 392, 394 (Tex.2011); Diversicare           legal question we review de novo. Marks, 319 S.W.3d at
Gen. Ptr., Inc. v. Rubio, 185 S.W.3d 842, 851 (Tex.2005).      663 (interpreting the TMLIIA); see also MCI Sales &
We recognize that the Legislature intended the Texas           Serv., Inc. v. Hinton, 329 S.W.3d 475, 500 (Tex.2010)
Medical Liability Insurance Improvement Act (TMLIIA),          (observing that questions of statutory construction are
the TMLA’s predecessor, to be broad, and it broadened          generally reviewed de novo). In construing a statute, our
that scope further in 2003 with its repeal and amendments      aim “ ‘is to determine and give effect to the Legislature’s
resulting in the TMLA. Act of May 30, 1977, 65th Leg.,         intent,’ ” and we begin with the “ ‘plain and common
R.S., ch. 817, § 1.02(6), 1977 Tex. Gen. Laws 2039, 2040       meaning of the statute’s words.’ ” McIntyre v. Ramirez,
(former TEX.REV.CIV. STAT. art. 4590i, § 1.02(6)),             109 S.W.3d 741, 745 (Tex.2003) (quoting Tex. Dep’t of
repealed by Act of June 2, 2003, 78th Leg., R.S., ch. 204,     Transp. v. Needham, 82 S.W.3d 314, 318 (Tex.2002);
§ 10.09, 2003 Tex. Gen. Laws 847, 884. After the 2003          State Dep’t of Highways & Pub. Transp. v. Gonzalez, 82
amendments, the breadth of HCLCs include causes of             S.W.3d 322, 327 (Tex.2002) (further citations omitted)).
action against physicians and health care providers for
negligence in the provision of “medical care, or health
care, or safety or professional or administrative services
directly related to health care.” TEX. CIV. PRAC. &            B. Relationship Between the Parties Under the Act
REM.CODE § 74.001(a)(13).                                      Williams argues that the lack of a patient-physician or
                                                               patient-health-care-provider relationship between him and
West Oaks argues that Williams’ claims, mirroring the          West Oaks is a clear barrier to inclusion of his claims
same facts as Vidaurre’s HCLCs, are HCLCs and                  within the Legislature’s definition of HCLCs. He asserts
therefore implicate the requirement to serve an expert         that such a relationship is necessary to HCLCs. At one
report. Such a conclusion would mandate *177 a                 point in the past, Williams may have had a good
dismissal because Williams did not serve a report on West      argument. However, modifications over time to the
Oaks. TEX. CIV. PRAC. & REM.CODE § 74.351(a), (b).             TMLA and its predecessor indicate a different scope for
West Oaks also urges that Williams’ status as a health         HCLCs under current law.
care provider at the hospital—as opposed to a patient—
does not remove Williams from the requirement that he          The TMLIIA was enacted in 1977 to relieve a medical
pursue his allegations as HCLCs. On the other hand,            “crisis [having] a material adverse effect on the delivery
Williams characterizes his allegations as ordinary             of medical and health care in Texas.” Act of May 30,
negligence claims against a nonsubscriber to the workers’      1977, 65th Leg., R.S., ch. 817, § 1.02(6), 1977 Tex. Gen.
compensation scheme. Williams contends that the court of       Laws 2039, 2040 (repealed 2003). In 2003, facing another
appeals was correct in concluding that his claims fall         “medical malpractice insurance crisis” and a
outside the HCLC definition and therefore an expert            corresponding “inordinate[ ]” increase in the frequency of
report is not required for his suit to proceed. See 322        HCLCs filed since 1995, the Legislature repealed the
S.W.3d 349, 353–54. Williams also echoes the court of          TMLIIA, amending parts of the previous article 4590i and
appeals in asserting that West Oaks’ alleged safety and        recodifying it as Chapter 74 of the Texas Civil Practice

               © 2015 Thomson Reuters. No claim to original U.S. Government Works.                                     3
Texas West Oaks Hosp., LP v. Williams, 371 S.W.3d 171 (2012)
55 Tex. Sup. Ct. J. 1033

and Remedies Code. Act of June 2, 2003, 78th Leg., R.S.,       gravamen of the claim or claims against the health care
ch. 204, § 10.11(a), 2003 Tex. Gen. Laws 847, 884.             provider. See Diversicare, 185 S.W.3d at 854.

The 2003 legislation featured a significant modification to
the existing law; it changed the HCLC definition:
                                                               C. Williams’ Status as a “Claimant” Under the Act
                                                               [5]
            *178 ‘Health care liability claim’                    We next examine whether Williams is a “claimant”
            means a cause of action against a                  under the TMLA. Only claimants are obligated to serve
            health care provider or physician                  expert reports on physicians or health care providers.
            for treatment, lack of treatment, or               TEX. CIV. PRAC. & REM.CODE § 74.351(a), (b). West
            other claimed departure from                       Oaks argues that the language and structure of the
            accepted standards of medical care,                definition of “claimant” in the current statute, especially
            or health care, or safety or                       when compared to its predecessor, indicate that the term
            professional or administrative                     includes not only patients, but other persons as well.
            services directly related to health                Williams asserts that he is not a “claimant” because his
            care, which proximately results in                 claims are not HCLCs, as they do not involve the exercise
            injury to or death of a claimant,                  of professional medical judgment. Williams also argues
            whether the claimant’s claim or                    that the Legislature’s substitution of “patient” with
            cause of action sounds in tort or                  “claimant” is meant only to include derivative claims by
            contract.                                          the relatives and representatives of deceased patients,
                                                               *179 not employees of health care provider defendants.
TEX.      CIV.      PRAC.      &       REM.CODE          §
74.001(a)(13)(emphases added). The Legislature replaced        As observed above, a “claimant” is broadly defined as a
the term “patient” with “claimant” in the definition of an     “person,” including the estate of a person, bringing an
HCLC.2 Compare TEX. CIV. PRAC. & REM.CODE §                    HCLC. TEX. CIV. PRAC. & REM.CODE § 74.001(a)(2).
74.001(a)(13), with TEX.REV.CIV. STAT. art. 4590i, §           A claimant is a person seeking damages for an HCLC.
1.03(a)(4) (repealed 2003). The Legislature also defined       See id. § 74.001(a)(2), (13). As noted above, the TMLIIA,
the new term in the Act:                                       by contrast, featured an HCLC definition predicated on
                                                               injury to a “patient.” TEX.REV.CIV. STAT. art. 4590i, §
                                                               1.03(a)(4) (repealed 2003). Neither “person” nor “patient”
   ‘Claimant’ means a person, including a decedent’s           is a defined term in the TMLA and therefore possesses
   estate, seeking or who has sought recovery of damages       such meaning as is consistent with the common law.
   in a health care liability claim. All persons claiming to   TEX. CIV. PRAC. & REM.CODE § 74.001(b).
   have sustained damages as the result of the bodily
   injury or death of a single person are considered a         Although he likely would not have been a “patient” under
   single claimant.                                            the TMLIIA, Williams is a “claimant” and a “person”
   TEX. CIV. PRAC. & REM.CODE § 74.001(a)(2).                  under the textual change to the definition of HCLCs in the
   “Person” is not defined in the TMLA and therefore           TMLA. Not only is the term “patient” not included within
   must be given its common law meaning. Id. §                 the definition of “claimant,” the Legislature used the term
   74.001(b). Changing the term “patient” to “claimant”        “including” to precede the reference to a decedent’s
   and defining “claimant” as a “person” expands the           estate. This renders any components of the definition
   breadth of HCLCs beyond the patient population. This        nonexclusive. TEX. GOV’T CODE § 311.005(13);
   in turn necessarily widened the reach of the expert         Entergy Gulf States, Inc. v. Summers, 282 S.W.3d 433,
   report requirement, unless otherwise limited by other       440–41 (Tex.2009) (noting that the term “including” is a
   statutory provisions.                                       term of enlargement and cautioning against
However, “health care” and “medical care” HCLCs are            “circumventing Legislative intent” by misapplying non-
separately defined in the Act and reference treatment          exhaustive lists in statutes); see also In re Allcat Claims
furnished “for, to, or on behalf of a patient.” Id. §          Serv., L.P., 356 S.W.3d 455, 468 (Tex.2011) (observing
74.001(a)(10), (a)(19).3 As discussed more fully below,        that the term “including” in that case was an explanatory
“medical care” and “health care” HCLCs require that the        term of enlargement).
claimant be a patient. See Part II.D.1, infra.
                                                               The dissent argues that the 2003 amendment substituting
[4]
   With the exception of medical care and health care          “claimant” in lieu of “patient” in the HCLC definition
claims, our focus in determining whether claims come           merely clarifies that a patient’s estate or others acting in a
under the TMLA is not the status of the claimant, but the      representative capacity may bring an HCLC. 371 S.W.3d

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Texas West Oaks Hosp., LP v. Williams, 371 S.W.3d 171 (2012)
55 Tex. Sup. Ct. J. 1033

at 194 (Lehrmann, J., dissenting). But further belying the     definition. There are several types of HCLCs set out in
contention that a “claimant” may be only a patient or her      the TMLA: in addition to claims involving treatment and
estate is the Act’s definition of “representative.” The term   lack of treatment, the Act contemplates claims for alleged
“representative,” used in the Act’s medical-records-           “departure[s] from accepted standards of medical care, or
disclosure provision, is defined as the “agent of the          health care, or safety or professional or administrative
patient or claimant,” indicating that patient and claimant     services directly related to health care.” TEX. CIV.
do not necessarily refer to the same category of persons.      PRAC. & REM.CODE § 74.001(a)(13). All of these
TEX. CIV. PRAC. & REM.CODE § 74.001(a)(25)                     categories of claims, except safety, are defined terms in
(emphasis added), 74.052; Wilson N. Jones Mem’l Hosp.          the Act. See, e.g., id. § 74.001(a)(10), (a)(19), and (a)(24)
v. Ammons, 266 S.W.3d 51, 61–62 (Tex.App.—Dallas               (defining “health care,” “medical care,” and “professional
2008, pet. denied) (also drawing the distinction). Neither     or administrative services”). West Oaks asserts that
the language of the TMLA nor the logic of the                  Williams’ claims allege departures from accepted
amendments can support a narrow reading of the term            standards of either “health care” or “safety.” Williams
“claimant.”                                                    argues that neither of these categories of claims applies to
                                                               his allegations, removing him from the Act’s reach.


D. Character of Williams’ Claims
In defining the types of claims against health care            1. Claimed Departures from Accepted Standards of
providers constituting HCLCs, the question we face is not      Health Care
whether it seems that a claimed injury really arose from       We examine whether Williams’ complaints are “claimed
treatment commonly understood to be some type of               departure[s] from accepted standards of ... health care.”
medical or health care; nor do we address whether the          TEX. CIV. PRAC. & REM.CODE § 74.001(a)(13). In
incident causing the injury would have been a common           Diversicare, we held that a claim alleges a departure from
law negligence claim. Instead, the issue posed is whether      accepted standards of health care if the act or omission
the umbrella fashioned by the Legislature’s promulgation       complained of is an inseparable or integral part of the
of the TMLA includes the cause of action brought by a          rendition of health care. 185 S.W.3d at 848, 850.
claimant against physicians or health care providers.          “[T]raining and staffing policies and supervision and
                                                               protection of [patients] ... are integral components of a
The foundations of our analysis are well established. As       [health care facility’s] rendition of health care services....”
in Diversicare and Marks, we determine whether the             Id. at 850. Williams’ claims are similar to the health care
relevant allegations are negligence claims or are properly     claims at issue in Diversicare. However, our analysis of
characterized as HCLCs under the Act. Marks, 319               health care claims in that case involved claims by a
S.W.3d at 662 (construing the TMLIIA); Diversicare, 185        patient against a health care provider, not, as in this case,
S.W.3d at 847.                                                 claims brought by a non-patient employee against his
                                                               employer.
[6]
    An HCLC contains three basic elements:4 (1) a
physician or health care *180 provider must be a               The definition for “health care” suggests that claims
defendant; (2) the claim or claims at issue must concern       brought under this prong of the HCLC definition must
treatment, lack of treatment, or a departure from accepted     involve a patient-physician relationship. See id. §
standards of medical care, or health care, or safety or        74.001(a)(10). “Health care” is:
professional or administrative services directly related to
health care; and (3) the defendant’s act or omission                        ... any act or treatment performed
complained of must proximately cause the injury to the                      or furnished, or that should have
claimant. See TEX. CIV. PRAC. & REM.CODE §                                  been performed or furnished, by
74.001(a)(13); Marks, 319 S.W.3d at 662 (construing the                     any health care provider for, to, or
similar definition found in the TMLIIA).                                    on behalf of a patient during the
                                                                            patient’s medical care, treatment,
The second element is at issue in this case: whether                        or confinement.
Williams’ claims alleging West Oaks’ failure to properly
train the facility’s staff, warn of risks associated with      Id. § 74.001(a)(10)(emphases added); see also, e.g.,
violent psychiatric patients, provide adequate protocols       Omaha Healthcare Ctr., 344 S.W.3d at 395 (pointing to
and equipment to limit such risks, and provide a safe          the “any act” language in the “health care” definition as
work environment under such circumstances implicate            necessarily implicating more than acts of *181 physical
one or more of the standards listed in the HCLC                care and medical diagnosis and treatment);

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Texas West Oaks Hosp., LP v. Williams, 371 S.W.3d 171 (2012)
55 Tex. Sup. Ct. J. 1033

185 S.W.3d at 847 (noting the “broad[ ]” nature of the         policies and supervision and protection of [a patient] and
“health care” definition). While the “any act” language of     other residents are integral components of [the facility’s]
the “health care” definition is certainly expansive, it is     rendition of health care services.” 185 S.W.3d at 850.
limited by the requirement that health care be rendered        Williams’ similar allegations constitute HCLCs based on
“for, to, or on behalf of a patient during the patient’s       claimed departures from accepted standards of health
medical care, treatment, or confinement.” TEX. CIV.            care.
PRAC. & REM.CODE § 74.001(a)(10) (emphases
added). Because a claim under the health care prong of         Texas mental health statutes and regulations bolster this
section 74.001(a)(13) incorporates the definition of           conclusion. West Oaks is a state-licensed, private mental
“health care,” such a claim must involve a patient-            health facility. The law requires that an inpatient mental
physician relationship.                                        health facility “provide adequate medical and psychiatric
                                                               care and treatment to every patient in accordance with the
[7]
   The requirement that a claim arising under the health       highest standards accepted in medical practice.” TEXAS
care prong of section 74.001(a)(13) involve a patient-         HEALTH AND SAFETY CODE § 576.022(a)(emphasis
physician relationship could be viewed as in tension with      added). Mental health hospitals may not operate in Texas
the term “claimant,” defined in terms of a person. See id.     *182 unless licensed by the Texas Department of Health
§ 74.001(a)(2). We consider all the relevant provisions of     and operated in accordance with the rules and standards
the TMLA together and follow the rule that specific            of the Texas Board of Mental Health and Mental
statutory provisions prevail over more general provisions.     Retardation to ensure the proper care and treatment of
See Jackson v. State Office of Admin. Hearings, 351            patients. Id. § 577.001(a), 577.005(b), 577.010(a).
S.W.3d 290, 297 (Tex.2011) (reiterating the rule that “a
                                                               [9]
specific statutory provision prevails as an exception over        The necessity of expert testimony to support or refute
a conflicting general provision”) (citing Tex. Lottery         the allegations at issue is a factor in assessing the nature
Comm’n v. First State Bank of DeQueen, 325 S.W.3d              of a claim against a health care provider or physician.
628, 637 (Tex.2010)); see also TEX. GOV’T CODE §               Diversicare, 185 S.W.3d at 848. Here, the court of
311.026(b) (same). However, the specific wording of the        appeals considered the need for expert testimony in
“health care” definition, that health care be an act           Williams’ case and concluded that “even if medical expert
involving treatment rendered for, to or on behalf of a         testimony is necessary to establish Williams’ claims, the
patient, acts as a limitation on the general provision that    need for expert testimony is not dispositive as to whether
an HCLC need only be pursued by a “claimant.” While            a claim is a health care liability claim.” 322 S.W.3d at
other categories of HCLCs need only be pursued by              353. We have indicated that even when expert medical
claimants, by specific statutory directive health care         testimony is not necessary, the claim may still be an
claims must involve a patient-physician relationship.          HCLC. Murphy v. Russell, 167 S.W.3d 835, 838
                                                               (Tex.2005) (“The fact that in the final analysis, expert
[8]
   Claims based on departures from accepted standards of       testimony may not be necessary to support a verdict does
health care therefore involve a nexus between the              not mean the claim is not a health care liability claim.”).
standard departed from and the alleged injury. Such a          We have not previously addressed the court of appeals’
nexus exists in this case. Williams, a health care provider    reasoning, and we now hold that if expert medical or
for Vidaurre, was assaulted by Vidaurre, who was a West        health care testimony is necessary to prove or refute the
Oaks patient. See TEX. CIV. PRAC. & REM.CODE §                 merits of the claim against a physician or health care
74.001(a)(12) (defining “health care provider” to include      provider, the claim is a health care liability claim.
employees of facilities licensed to provide health care).
                                                               [10]
Williams was acting on orders to provide one-on-one                Expert testimony in the health care field is necessary
supervision for Vidaurre. That directive was made by a         to support Williams’ claims. Those claims require
West Oaks physician exercising professional judgment           evidence on proper training, supervision, and protocols to
about the schizophrenic patient’s care and treatment,          prevent, control, and defuse aggressive behavior and
including, specifically, heightened supervision in light of    altercations in a mental hospital between psychiatric
recent aggressive and violent behavior. Additional             patients and employed professional counselors who treat
professional judgments about the safety protocols for such     and supervise them. The provision of emergency
patients were put in place by West Oaks to care for its        notification devices, warning of dangers associated with
mental patients. Williams alleges that these judgments,        psychiatric patients, providing a safe workplace, and
concerning his training and psychiatric institutional          properly training the caregiver at a psychiatric facility are
protocols, departed from accepted standards of care and        integral to the patient’s care and confinement. Acts or
caused his injury. We previously reasoned in Diversicare       treatment that are integral to a “patient’s medical care,
that the health care facility’s “training and staffing         treatment, or confinement” constitute “health care.” TEX.

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Texas West Oaks Hosp., LP v. Williams, 371 S.W.3d 171 (2012)
55 Tex. Sup. Ct. J. 1033

CIV. PRAC. & REM.CODE § 74.001(a)(10). Claims for              bare basis that they mirror those of the patient and stem
injuries arising from departures from proper “treatment        from the same fact pattern. Williams and the patient stand
performed or furnished, or that should have been               as separate claimants. We analyze the applicability of the
performed or furnished” are health care claims. Id. §          TMLA and its attendant procedural requirements on the
74.001(a)(10). Contrary to Williams’ argument, this            gist of the claimant’s allegations. See Diversicare, 185
dispute concerns more than simply determining whether a        S.W.3d at 847–48.
person should be protected from a known aggressive
person. The dispute between Williams and West Oaks is,
at its core, over the appropriate standards of care owed to
this mental health professional in treating and supervising    2. Claimed Departures from Accepted Standards of
a psychiatric patient at the mental hospital, what services,   Safety
                                                               [12]
protocols, supervision, monitoring and equipment were               We also examine whether Williams’ claims may be
necessary to satisfy the standard, and whether such            characterized as HCLCs under the definition’s “safety”
specialized standards were breached. See Diversicare, 185      prong. We have not decided whether safety claims must
S.W.3d at 850. The allegedly missing or insufficient           be “directly related to health care.” The TMLA’s HCLC
protocols and standards were for a mental patient in a         definition includes, among the different types of covered
mental hospital. It would blink reality to conclude that no    claims, “claimed departure[s] from accepted standards of
professional mental health judgment is required to decide      ... safety....” TEX. CIV. PRAC. & REM.CODE §
what those should be, and whether they were in place at        74.001(a)(13).
the time of Williams’ injury.5
                                                               Williams was injured during an altercation with Vidaurre
*183 Williams’ argument that any security officer could        in a smoking area at the hospital, and he contends his
have performed the oversight and supervision of a              injuries would have been avoided if West Oaks had
psychiatric patient at the mental health hospital is overly    instituted proper safety protocols and monitoring devices.
simplistic. Perhaps a security officer could have protected    Williams’ claims, predicated upon the monitoring and
Williams, and Vidaurre himself, from harm, or lessened         restraint *184 of violent, schizophrenic patients, implicate
the severity of the injuries suffered, but security is only    the safety, as commonly understood, of employees and
one aspect of the matter. Williams’ position at West Oaks      patients. Safety is not defined in the TMLA. This Court
involved professional, health-care-related judgments           has construed the term, under principles of statutory
different from the tasks typically associated with a law       construction, according to its commonly understood
enforcement officer, security guard, or bouncer.               meaning as the condition of being “untouched by danger;
Treatment of a mental patient subject to psychotic and         not exposed to danger; secure from danger, harm or loss.”
aggressive outbursts requires health care, not simply          Diversicare, 185 S.W.3d at 855 (quoting the definition of
protection from bodily harm, to control, defuse, or            “safe” in Black’s Law Dictionary (6th ed.1990) to
prevent mental processes leading to aggression, and            construe the meaning of “safety” under predecessor
professional techniques to do so. Patients at West Oaks        statute). Logically, the inclusion of safety “expand[ed] the
are there not merely for shelter, but also for care and        scope of the statute beyond what it would be if it only
treatment. See Charrin v. Methodist Hosp., 432 S.W.2d          covered medical and health care” and included the claims
572, 574 (Tex.Civ.App.—Houston [1st Dist.] 1968, no            in that case, and it was not necessary to define the precise
writ) (holding that the hospital-patient relationship is       boundaries of the safety prong. Diversicare, 185 S.W.3d
different from that of a landlord-tenant). Williams’ self-     at 855; see also Marks, 319 S.W.3d at 662–63.
described role at West Oaks was that of a “counselor” and
                                                               [13]
“caregiver,” not a security guard. One of Vidaurre’s               In 2003, the Legislature modified the definition of
experts characterizes psychiatric technicians as a             HCLCs. It changed “patient” to “claimant,” and also
“valuable and indispensable part of psychiatric hospital       added the italicized phrase to the relevant portion of the
care.” Vidaurre’s expert also notes that the role of           pre–2003 definition: HCLC means a cause of action for a
psychiatric technician involves appropriately observing        “claimed departure from accepted standards of medical
and evaluating potentially assaultive mentally ill patients    care, or health care, or safety or professional or
and assessing the potential for violent eruptions. Thus, the   administrative services directly related to health care,
very deficiencies in training and protocols Williams           which proximately results in injury to or death of a
complains of underscore the health-related nature of his       claimant....” TEX. CIV. PRAC. & REM.CODE §
role.                                                          74.001(a)(13)(emphasis added). The dissent argues that
                                                               the 2003 amendment was intended to narrow the existing
[11]                                                           scope of the safety prong of HCLCs by requiring that
  We do not conclude, as West Oaks would have us, that
Williams’ claims should be considered HCLCs on the

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Texas West Oaks Hosp., LP v. Williams, 371 S.W.3d 171 (2012)
55 Tex. Sup. Ct. J. 1033

safety be “directly related to health care.”6 See id. We        reasoning that safety is not constricted by the subsequent
disagree for several reasons.                                   addition to the statute of the phrase “professional or
                                                                administrative services directly related to health care.”
Safety was in the Act prior to the 2003 amendments and          Concurring and dissenting in Diversicare, Chief Justice
this Court construed it according to its common meaning         Jefferson wrote that safety, undefined in the statute, is
as being secure from danger, harm or loss. Diversicare,         commonly understood to mean protection from danger
185 S.W.3d at 855. The phrase “directly related to health       and that the “specific source of that danger ... is without
care” was added to the definition of HCLCs in 2003 to           limitation.” 185 S.W.3d at 860–61 (Jefferson, C.J.,
modify “professional or administrative services.”               concurring and dissenting) (also noting that “[i]n defining
Compare TEX.REV.CIV. STAT. art 4590i, § 1.03(a)(4)              health care liability claims as it did, the Legislature
(repealed 2003), with Act of June 2, 2003, 78th Leg.,           created a statute with a broad scope. Complaints about the
R.S., ch. 204, § 10.01, 2003 Tex. Gen. Laws 847, 865.           breadth of [the TMLIIA] should be directed to the
                                                                Legislature, not to this Court, for the courts must ‘take
[14]
    Scrutinizing grammar in interpreting statutes, we are       statutes as they find them.’ ” (citation omitted)).
cognizant of the rule that “[m]odifiers should come, if         Concurring in Marks, Justice Johnson agreed with Chief
possible, next to the words they modify.” William Strunk,       Justice Jefferson’s analysis of safety in his concurrence
Jr. & E.B. White, THE ELEMENTS OF STYLE R. 30                   and dissent in Diversicare. Justice Johnson reasoned that
(4th ed. 2000); see also Bryan A. Garner, GARNER’S              making safety contingent on a direct connection between
MODERN AMERICAN USAGE 523 (2003) (noting that                   it *186 and health care would “effectively read [ ] safety
“[w]hen modifying words are separated *185 from the             out of the statute instead of properly giving it meaning as
words they modify, readers have a hard time processing          an additional category of claims.” Marks, 319 S.W.3d at
the information,” and adding that “the true referent should     673 (Johnson, J., concurring, joined by Justice Willett,
generally be the closest appropriate word.”). This rule is      Justice Hecht, and Justice Wainwright).8 Chief Justice
related to the last antecedent doctrine of statutory            Jefferson wrote again in Marks, quoting his concurrence
interpretation commonly applied to ambiguous legislative        and dissent in Diversicare, noting that a reasonable
texts. 82 C.J.S. STATUTES § 443 (2011) (footnotes               construction of “safety” is to give the term its “common
omitted). Under that tenet, a qualifying phrase should be       meaning,” which could therefore encompass premises
applied only to the portion of the sentence “immediately        liability claims. Id. at 674 (Jefferson, C.J., concurring and
preceding it.” City of Dallas v. Stewart, 361 S.W.3d 562,       dissenting, joined by Justices Green, Guzman and
571 n. 14 (Tex.2012) (applying the doctrine); Spradlin v.       Lehrmann).
Jim Walter Homes, Inc., 34 S.W.3d 578, 580 (Tex.2000)
(same). Accordingly, the phrase “directly related to health     We agree with West Oaks that Williams’ claims are
care” modifies the terms immediately before it—                 indeed for departures from accepted standards of safety.
“professional or administrative services.” Under the            We conclude that the safety component of HCLCs need
dissent’s logic, the phrase “directly related to health care”   not be directly related to the provision of health care and
should be applied to modify each term in the HCLC               that Williams’ claims against West Oaks implicate this
definition, including professional or administrative            prong of HCLCs.
services, safety, health care, and medical care. This
construction is nonsensical, as it would be entirely
redundant as to health care and medical care, unsupported
by the text in the attempted application to safety, and         E. Relationship with the Texas Workers’
render safety largely repetitive of health care. See Marks,     Compensation Act
                                                                [15]
319 S.W.3d at 673 (Johnson, J., concurring) (pointing out            Williams also contends that interpreting the TMLA to
that safety and health care are separate). We explained in      encompass his claims will conflict with the procedural
Diversicare, a patient-assault case also involving training     and substantive litigation rights granted to employee
and staffing policies and monitoring and protection of          plaintiffs under the TWCA. See TEX. LAB.CODE §
patients, that “[p]rofessional supervision, monitoring, and     406.001 et seq. He argues that his personal injury claims
protection of the patient population necessarily implicate      against his employer should not be characterized as
the accepted standards of safety.” Diversicare, 185             HCLCs because the Legislature did not intend for
S.W.3d at 855. Williams’ similar complaints here                employee claims against a health care provider employer
concerning his protection from danger at the hands of a         to fall under the rubric of the Act. Williams also contends
mental patient also implicate safety.7                          that an employee’s personal injury claim against his
                                                                employer would not have constituted a medical
Moreover, a majority of the members of this Court have          malpractice claim prior to the enactment of the medical
opined in written opinions or joined written opinions           liability statutes in 1977.

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Texas West Oaks Hosp., LP v. Williams, 371 S.W.3d 171 (2012)
55 Tex. Sup. Ct. J. 1033
                                                                 [16]
                                                                        Thus, the workers’ compensation construct
We see no conflict between the TMLA and the TWCA,                contemplates two systems, one in which covered
whether the claim at issue is asserted against an employer       employees may recover relatively quickly and without
subscribing to workers’ compensation insurance or, as            litigation from subscribing employers and the other in
here, against a nonsubscriber. The TWCA is unique in             which nonsubscribing employers, or the employers of
permitting private Texas employers to elect to subscribe         employees who have opted not to accept workers’
to workers’ compensation insurance. Id. § 406.002(a);            compensation coverage, are subject to suit by injured
Lawrence v. CDB Servs., Inc., 44 S.W.3d 544, 552                 employees to recover for their on-the-job injuries. “In
(Tex.2001); see also Casados, 358 S.W.3d at 241. If they         providing the worker a form of prompt remuneration for
so elect, and their employees do not opt out of the              loss of earning capacity, the statutory [workers’
workers’ compensation coverage, then their employees             compensation] scheme is in lieu of common law liability
are generally precluded from filing suit against them and        based on negligence.” Paradissis v. Royal Indem. Co.,
must instead pursue their claims through an                      507 S.W.2d 526, 529 (Tex.1974); see also Reed Tool Co.
administrative agency against the employer’s insurance           v. Copelin, 689 S.W.2d 404, 407 (Tex.1985) (“The
carrier for benefits provided for in the TWCA. See TEX.          system balances the advantage to employers of immunity
LAB.CODE § 406.031(a) (noting that an employer’s                 from negligence and potentially larger recovery in
insurance carrier is liable for compensation of an               common law actions against the advantage to employees
employee’s injury if the employee is subject to the Act          of relatively swift and certain compensation without proof
and the injury arises out of the course and scope of the         of fault.”).
employment). But employees need not prove the
employer’s negligence for workers’ compensation                  Just as the workers’ compensation system treats
recovery, just that they were injured in the course and          employees of subscribing versus nonsubscribing
scope of employment. See id. (“An insurance carrier is           employees differently, the treatment of those two
liable for compensation for an employee’s injury without         differently situated employees under the TMLA for on-
regard to fault or negligence....”); id. § 406.002(b) (stating   the-job injuries is also distinct. The employee of a
that a subscribing employer is subject to the TWCA). As          subscriber that is a health care provider must pursue an
part of the legislated policy trade-off underlying the           administrative remedy under the TWCA for on-the-job
workers’ compensation system, employees are also                 injuries. However, the employee of a nonsubscribing
limited in their recovery to indemnity and medical               employer that is a health care provider must file suit
expenses, absent intentional conduct. See id. § 408.001(a)       against the nonsubscriber and follow the rules that govern
(“Recovery of workers’ compensation benefits is the              that suit. In this case, the governing rules include the
exclusive remedy of an employee covered by workers’              TMLA’s requirements for a claimant suing a health care
compensation insurance coverage....”); but see id. §             provider. Other proceedings to recover against
408.001(b) (allowing recovery of exemplary damages for           nonsubscribing employers would similarly be governed
*187 death caused by an intentional act or omission or the       by applicable statutes and rules, e.g., proof of negligence
employer’s gross negligence).                                    and causation, notice requirements under the Texas Tort
                                                                 Claims Act, or the common pleading and service
However, if an employer forgoes workers’ compensation            requirements in the Texas Rules of Civil Procedure for all
coverage, and is a nonsubscriber to the workers’                 lawsuits.
compensation system, it is subject to suits at common law
for damages. With the exception of certain employer              Williams invites us to read into the TMLA an exception
defenses abrogated by the statute, a suit by an employee         for claimants happening to be employees of nonsubscriber
of a nonsubscribing employer is largely outside the              health care provider employers who sue their employers
limitations imposed by the TWCA. See id. § 406.033(a),           for claims that come under the TMLA umbrella.
(d) (discussing limited defenses and employee burden of          Williams’ case is against a nonsubscriber, outside of the
proof in establishing negligence). Employees of a                workers’ compensation system, yet he implores the Court
nonsubscriber, injured on the job, must prove the                to except him from the TMLA’s requirements without any
elements of a common law negligence claim, absent                express statutory exception. He seeks a common law
intentional misconduct. Id. § 406.033(d). An employee            exemption from the TMLA’s mandate that we are not
may also elect to waive workers’ compensation coverage           willing to create.
and “retain the common-law right of action to recover
damages for personal injuries or death” if certain               As explained, the TWCA and the TMLA do not conflict
notification requirements are met. Id. § 406.034(a), (b).        in this case. But even if they did, the Legislature has
                                                                 already designated the victor—the TMLA would prevail.
                                                                 Section 74.002(a) of the TMLA states:
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Texas West Oaks Hosp., LP v. Williams, 371 S.W.3d 171 (2012)
55 Tex. Sup. Ct. J. 1033

            *188 In the event of a conflict
            between this chapter and another
            law, including a rule of procedure
            or evidence or court rule, this
            chapter controls to the extent of a                                  III. Response to Dissent
            conflict.
                                                                At base, the dissent’s position is that, notwithstanding the
TEX. CIV. PRAC. & REM.CODE § 74.002(a). This                    Legislature’s substitution of the term “claimant” for
provision was added as part of the 2003 amendments and          “patient” in the TMLA’s HCLC definition, HCLCs are
replaced an earlier, more cabined conflicts provision. See      only those in which the defendant has a patient-physician
TEX.REV.CIV. STAT. art. 4590i, § 11.05 (repealed)               or “patient-health-care-provider” relationship with the
(entitled “Subchapter’s Application Prevails Over Certain       plaintiff. In spite of the Act’s words, the dissent proffers
Other Laws” and stating that “[t]he provisions of this          that the Court strays from the language of the Act and
subchapter shall apply notwithstanding the provisions           undermines its purpose. See 371 S.W.3d at 199–200
contained in Article 4671, Revised Civil Statutes of            (Lehrmann, J., dissenting). The chart below vividly
Texas, 1925, as amended, and the provisions of Article          illustrates the Legislature’s broad intention and refutes the
5525, Revised Civil Statutes of Texas, 1925, as amended”        dissent’s position.
(pertaining to injuries resulting in death and survival of
cause of action, respectively)).9

Here, Williams must establish the medical negligence of
West Oaks to recover under the TMLA. The statute
requires expert reports to support his claims.
         TEX.REV.CIV. STAT. art. 4590i,                              TEX. CIV. PRAC. & REM.CODE


  § 1.03(a)(4) (repealed 2003) (emphases added)                § 74.001(a)(13) (amended 2003) (emphases
                                                                                 added)




“Health care liability claim” means a cause of               “Health care liability claim” means a cause of
action against a health care provider or physician           action against a health care provider or physician
for treatment, lack of treatment, or other claimed           for treatment, lack of treatment, or other claimed
departure from accepted standards of medical care            departure from accepted standards of medical
or health care or safety which proximately results           care, or health care, or safety or professional or
in injury to or death of the patient, whether the            administrative services directly related to health
patient’s claim or cause of action sounds in tort or         care, which proximately results in injury to or
contract.                                                    death of a claimant, whether the claimant’s claim
                                                             or cause of action sounds in tort or contract.




                                                                1.03(a)(4) (repealed 2003). A claimant need not be the
As explained in Parts II.B and C above, in 2003 the
                                                                patient in all HCLCs.
Legislature modified the scope of HCLCs when it deleted
“patient” and inserted the broader term “claimant” in the
definition. Compare TEX. CIV. PRAC. & REM.CODE §                As discussed above, two of the different types of HCLCs
74.001(a)(13), with TEX.REV.CIV. STAT. art. 4590i, §            have specific definitions. The “medical care” and “health
                                                                care” definitions both refer to services rendered for, to, or
               © 2015 Thomson Reuters. No claim to original U.S. Government Works.                                    10
Texas West Oaks Hosp., LP v. Williams, 371 S.W.3d 171 (2012)
55 Tex. Sup. Ct. J. 1033

on behalf of a patient during the patient’s care,10            (Tex.2010)). However, nothing in the language of the
treatment, or confinement. *189 TEX. CIV. PRAC. &              notice and disclosure provisions or in their purpose of
REM.CODE § 74.001(a)(10), (a)(19); see id. at §                encouraging pre-suit negotiation and settlement indicates
74.001(a)(13). Although HCLCs, as defined, include             a legislative intent that in all cases a claimant must be a
causes of action against health care providers brought by      patient or her representative.
“claimants,” the specific incorporation of the patient
relationship for health care and medical care claims           The dissent contends that the parties’ right to medical
governs the HCLC for departures from accepted standards        records cannot be applied against a third-party patient,
of medical care and health care. See Jackson, 351 S.W.3d       such as Vidaurre. Specifically, the dissent points out that
at 297 (holding that specific statutory provisions override    medical-privacy laws may prevent the parties from
general provisions). However, that limitation does not         compelling a person such as Vidaurre, who is not a party
apply to claims of safety, which is not defined with           to this case *190 pursuing a claim under the TMLA, from
reference to a patient.11 TEX. CIV. PRAC. & REM.CODE           supplying his medical records. 371 S.W.3d at 195
§ 74.001(a)(13). Contending that only patients’ claims         (Lehrmann, J., dissenting). JUSTICE LEHRMANN’S
may be considered HCLCs, the dissent argues, in essence,       point is well taken, but not in this case. Williams is the
that the 2003 amendment is a nullity and seeks to have the     claimant in this case and these requirements should be
Court rewrite section 74.001(a)(13). We decline to do so.      applied to him. For purposes of his own medical records,
                                                               Williams would be the “patient” referenced in the
[17]
    This is a statutory construction case. Our role “is to     authorization form. See TEX. CIV. PRAC. &
determine and give effect to the Legislature’s [expressed]     REM.CODE § 74.052(c)(A). In alignment with the
intent.” McIntyre, 109 S.W.3d at 745. Such cases may           broadly defined “claimant,” the notice provision makes
offer the temptation to shoehorn a desired legislative         clear at the outset that it applies to “any person” asserting
result. But the Legislature changed “patient” to               an HCLC, as opposed to a “patient” or representative. Id.
“claimant,” and “claimant” is broader than “patient.”          §§ 74.001(a)(2), .051(a). In turn, the disclosure
Aside from claims alleging negligent medical care or           requirements allow not only for the release of records of a
health care, a claim need not involve a patient-physician      patient-plaintiff, but also the pre- and post-injury records
relationship for it to be an HCLC.                             of non-patient plaintiffs seeking recovery for her post-
                                                               injury damages. See id. § 74.052 (predicating the
The dissent argues several other points which we address       disclosure requirements on the applicability of section
briefly. The dissent contends that other provisions of the     74.051(a)). Such records would bear directly in assessing
TMLA should trump the definition of HCLCs.                     the extent of damages and would streamline settlement
                                                               negotiations, regardless of whether the claimant was a
[18]
     (1) Notice of suit and medical records release            patient of the health care provider being sued.
provisions. The dissent similarly notes that inclusion of
non-patients as claimants would render the notice of suit      (2) Expert report provisions. The dissent similarly asserts
to health care providers, and accompanying medical-            that the Act’s definition of “expert report” and discussion
records releases, to health care providers, questionable.      of expert qualifications means that HCLCs must be based
371 S.W.3d at 195 (Lehrmann, J., dissenting) (citing           on a patient-physician relationship because those
TEX. CIV. PRAC. & REM.CODE §§ 74.051, .052). The               provisions contain references to departures from accepted
Act requires “any person” asserting an HCLC to provide         standards by physicians or health care providers and
notice to the defendant physician or health care provider.     knowledge of accepted standards for diagnosing, caring,
TEX. CIV. PRAC. & REM.CODE § 74.051(a). This                   or treating the illness, injury, or condition at issue in the
notice must be accompanied by the medical-records              claim. 371 S.W.3d at 195–96 (Lehrmann, J., dissenting)
release form detailed in section 74.052. Id. § 74.052; Jose    (discussing TEX. CIV. PRAC. & REM.CODE §§
Carreras, M.D., P.A. v. Marroquin, 339 S.W.3d 68, 73           74.351(r)(6), .401(a)(2), .402(a)(2)). The fact that experts
(Tex.2011). Further, all parties are entitled to “complete     submitting reports have knowledge of the alleged
and unaltered copies of the patient’s medical records.”        standards at issue does not logically lead to a conclusion
TEX. CIV. PRAC. & REM.CODE § 74.051(d). The form               that only a patient’s suit against a health care provider can
of notice provides a release including the name of the         constitute an HCLC, especially when such a conclusion
“patient.” Id. § 74.052(c)(A), (B). As the dissent correctly   conflicts with the Legislature’s substitution of “claimant”
observes, the Legislature’s purpose for the notice and         for “patient” in the TMLA’s definition of HCLCs.
disclosure requirements was to encourage the parties to        Similarly, the dissent’s point that the “expert report”
negotiate and settle disputes prior to suit. 371 S.W.3d at     definition calls for a discussion of the manner in which
195 (Lehrmann, J., dissenting); Carreras, 339 S.W.3d at        the care rendered by the physician or health care provider
73 (citing Garcia v. Gomez, 319 S.W.3d 638, 643                failed to meet standards does not lead to the conclusion
               © 2015 Thomson Reuters. No claim to original U.S. Government Works.                                   11
Texas West Oaks Hosp., LP v. Williams, 371 S.W.3d 171 (2012)
55 Tex. Sup. Ct. J. 1033

that only the patient at the receiving end of that care can     was determinative in the scope of HCLCs generally, but
be a “claimant” under the Act. Id. § 74.351(r)(6); see also     because those were the facts of the case we were
id. § 74.001(a)(2). An expert report detailing the              deciding. Diversicare, 185 S.W.3d at 850. The standards
departure from standards would still be relevant in a case,     for the conduct at issue, rather than the form of pleadings
such as this, where a non-patient alleges that the health       or identity of parties, are paramount in classifying
care provider’s deviations from accepted standards led to       HCLCs. See Yamada v. Friend, 335 S.W.3d 192, 196
his injury. As explained, expert testimony is necessary to      (Tex.2010) ( “Artful pleading does not alter [the nature of
specify the departure from accepted standards leading to        the underlying claim].”); Omaha Healthcare, 344 S.W.3d
the injury. Id. § 74.351(r)(6). The Act’s requirement that      at 394 (similar).
an expert be qualified to give an opinion on the standards
at issue does not, as the dissent contends, indicate that the   (5) Importance of the 2003 amendments. Incredibly, the
condition at issue must be sustained by a patient. The          dissent contends that the Court places “undue
expert report requirement is intended to effectuate the         importance” on the Legislature’s modification of the
TMLA’s objective that only meritorious causes of action         HCLC definition in 2003, substituting the broader term
proceed, not define the scope of HCLCs. See Samlowski           “claimant” for “patient” in identifying who may bring a
v. Wooten, 332 S.W.3d 404, 416 (Tex.2011) (Wainwright,          claim. 371 S.W.3d at 193–94 (Lehrmann, J., dissenting);
J., dissenting in part).                                        TEX. CIV. PRAC. & REM.CODE § 74.001(a)(13). The
                                                                dissent would interpret that modification as referring to
(3) Jury instructions. The dissent observes that one of the     the estate or direct representatives of a patient-plaintiff,
jury instructions required by the Act in jury trials includes   parties that have always been permitted to make a claim,
a caution that a finding of negligence may not be based         even prior to the 2003 amendment. See 371 S.W.3d at 197
solely on evidence of a “bad result” to the claimant, but a     (Lehrmann, J., dissenting); see also TEX.REV.CIV.
bad result may be considered in determining negligence.         STAT. art. 4590i, § 1.03(a)(9), 4.01 (repealed 2003).
371 S.W.3d at 196 (Lehrmann, J., dissenting) (citing            First, focusing on the language of the statutory definition
TEX. CIV. PRAC. & REM.CODE § 74.303(e)(2)).                     at the center of this case does not give it “undue
Drifting again from the statutory text directly at issue, the   importance.” Second, the dissent’s construction is
dissent argues that this instruction “only *191 makes           contrary to established rules of statutory construction. As
sense” in the context of a patient dissatisfied with medical    we note in Parts II. B and C, “claimant” is defined as “a
or health care services delivered by a health care provider.    person, including a decedent’s estate, seeking or who has
We fail to see the logic in this argument. “Bad result” is      sought recovery of damages in a health care liability
not defined, making it difficult to limit its meaning           claim.” TEX. CIV. PRAC. & REM.CODE § 74.001(a)(2).
exclusively to health care or medical care, as the dissent      Thus, aside from claims involving health care or medical
would do. The Act indicates that a “bad result” is merely       care and claims based on treatment, a direct healthcare-
a fact that may be considered in a negligence finding. To       provider-to-patient relationship is not required for claims
conclude from this provision that the Legislature intended      to constitute HCLCs.
to include only patients under the Act, when it expressly
broadened the HCLC definition, is not logical and would         (6) Construction of “safety.” The dissent argues that this
render the revisions to the more relevant HCLC definition       issue has not been properly raised. 371 S.W.3d at 198
meaningless.                                                    (Lehrmann, J., dissenting). However, West Oaks presents
                                                                the safety-related nature of its claims in its briefing, and
(4) Re-interpretation of Diversicare. Our opinion today is      the court of appeals analyzed Williams’ claims as safety
consistent with our earlier construction of the HCLC            claims. 322 S.W.3d 349, 352. Contrary to the dissent’s
definition in Diversicare, 185 S.W.3d at 847 (noting that       assertions, our construction of “safety” is based not only
“we examine the underlying nature of the claim and are          on established canons of textual construction, *192 but
not bound by the form of the pleading”). The dissent            also on our interpretation of safety based on its commonly
contends that we stray from Diversicare and its progeny         understood meaning. See Diversicare, 185 S.W.3d at 855.
by centering our analysis on the nature of the claims at        Further, following principles of statutory construction, our
issue. 371 S.W.3d at 196–97 (Lehrmann, J., dissenting).         construction of “safety” prevents the term from becoming
The dissent erroneously argues that Diversicare requires        meaningless surplusage, subsumed into claims based on
courts to place equivalent emphasis on the relationship         departures from accepted standards of “health care.” See
between the parties. Specifically, the dissent contends that    TEX. CIV. PRAC. & REM.CODE § 74.001(a)(13).
in Diversicare we attached “equal” importance to the
“claimant’s status as a patient” at a health care facility.     (7) Balance between the TMLA and TWCA. Contending
Id.; see Diversicare, 185 S.W.3d at 850. However, in            that our assessment of Williams’ claims as HCLCs
Diversicare we discussed that relationship, not because it      “forc[es]” them into the HCLC “mold” and “significantly
                © 2015 Thomson Reuters. No claim to original U.S. Government Works.                                  12
Texas West Oaks Hosp., LP v. Williams, 371 S.W.3d 171 (2012)
55 Tex. Sup. Ct. J. 1033

disrupts the delicate balance between employee and             no language in the Act required that a “claimant” also
employer interests” motivating the TWCA, the dissent           necessarily be a “patient.” Id. at 60–62.
argues that our reasoning alters the incentive structure in
the TWCA intended to penalize nonsubscribing
employers. 371 S.W.3d at 199 (Lehrmann, J., dissenting).
However, contrary to the implication of the dissent, the
TWCA does not create an especially punitive litigation                              IV. Conclusion
regime for nonsubscribing employers. Rather, as noted
above, nonsubscribing employers are divested of several        Williams claims that West Oaks failed to properly train,
common law defenses. See TEX. LAB.CODE §                       warn and supervise him to *193 work with potentially
406.033(a); see also Kroger Co. v. Keng, 23 S.W.3d 347,        violent psychiatric patients and, as a result, failed to
349–50 (Tex.2000) (describing the limitation of defenses       provide a safe workplace. In 2003, the Legislature
of nonsubscribers as a “penalty” meant as an incentive for     broadened the definition of health care liability claims
employers to subscribe to workers’ compensation                under the Texas Medical Liability Act by adding new
insurance). However, the plaintiff must prove the              types of claims under the HCLC definition and expanding
negligence of the nonsubscribing employer or the               the scope of persons included within the Act’s purview.
employer’s agent. TEX. LAB.CODE § 406.033(d). As               Compare TEX. CIV. PRAC. & REM.CODE §
part of the negligence claim against a health care provider    74.001(a)(13), with TEX.REV.CIV. STAT. art. 4590i, §
employer, an employee asserting a claim that is otherwise      1.03(a)(4) (repealed 2003). We conclude that Williams’
an HCLC must adhere to the expert report requirements          claims against West Oaks are properly characterized as
of the TMLA. The dissent also argues that our reasoning        health care liability claims based on claimed departures
will discourage small claims and implies that fewer            from accepted standards of health care and safety.
employers will subscribe to workers’ compensation              Williams failed to provide an expert report in accordance
insurance. 371 S.W.3d at 199 (Lehrmann, J., dissenting).       with section 74.351(a). TEX. CIV. PRAC. &
However, because no information concerning workers’            REM.CODE § 74.351(a). We therefore reverse the
compensation policies is in the record before us, the          judgment of the court of appeals affirming the trial court’s
dissent’s concerns are speculative at best. As described       order denying West Oaks’ motion to dismiss all of
above, while we see no conflict between the TMLA and           Williams’ claims. Because West Oaks requested its
TWCA, the Legislature signaled its intent that the TMLA        attorney’s fees and costs in the trial court pursuant to
should control over contradictory statutory provisions.        Texas Civil Practice and Remedies Code section 74.35
See TEX. CIV. PRAC. & REM.CODE § 74.002(a).                    1(b)(1), we remand to that court with instructions to
                                                               dismiss Williams’ claims against West Oaks and consider
(8) Legislative purpose of the TMLA. Noting that one of        West Oaks’ request for attorney’s fees and costs.
the stated purposes of the Act is to reduce the frequency
and cost of medical malpractice claims, the dissent
concludes that our holding will result in a larger number
of total HCLC claims, contrary to the Legislature’s            Justice LEHRMANN filed a dissenting opinion, in which
purpose. 371 S.W.3d at 199–200 (Lehrmann, J.,                  Justice MEDINA and Justice WILLETT joined.
dissenting). Given the number of claims filed against
health care providers, many will be HCLCs and some
may not be. The dissent would shift the balance so that        Justice LEHRMANN, joined by Justice MEDINA and
many more are not HCLCs, which is contrary to the              Justice WILLETT, dissenting.
Legislature’s change of “patient” to “claimant.” We
refuse to trump explicit statutory language with the           “A whole new world [of health care liability claims],
dissent’s view of the TMLA’s purpose.                          hinted by opinions in the last few years, is here.” In re
                                                               McAllen Med. Ctr., Inc., 275 S.W.3d 458, 470 (Tex.2008)
Finally, our conclusion that the Act covers claims by non-     (Wainwright, J. dissenting). Interpreting a law designed to
patients against health care providers is not new territory.   reduce the number of medical malpractice suits, the Court
The Fifth Court of Appeals has concluded that a non-           holds that an employee’s claims against his employer for
patient hospital visitor’s personal injury claim resulting     providing an unsafe workplace and inadequate training
from an on-premises patient assault was an HCLC.               are health care liability claims. The Court’s strained
Ammons, 266 S.W.3d at 64. The court, citing Diversicare,       reading of the statute runs counter to express statutory
concluded that the supervision and restraint of patients       language, the Legislature’s stated purposes in enacting the
was at issue and constituted health care under the facts of    current version of chapter 74, and common sense. Further,
that case. Id. The Ammons court correctly reasoned that        the Court’s decision undermines the balance struck by the

               © 2015 Thomson Reuters. No claim to original U.S. Government Works.                                  13
Texas West Oaks Hosp., LP v. Williams, 371 S.W.3d 171 (2012)
55 Tex. Sup. Ct. J. 1033

Legislature to encourage employers to become                     decide the case, the Court then reaches out to further
subscribers under the Workers Compensation Act. For              expand the Act’s scope by deciding that a claim under the
these reasons, I am compelled to respectfully express my         “safety” prong of the health care liability claim definition
dissent.                                                         need not be directly related to health care—even though
                                                                 Williams’s claim is, in the Court’s view—directly related
                                                                 to health care. Both conclusions are inconsistent with
                                                                 plain statutory language and sound statutory construction.
                                                                 The Act is replete with provisions indicating that a health
     I. The Medical Liability Act Contemplates a                 care liability claim must be founded on a health care
  Patient/Physician Relationship Between the Parties             provider’s alleged breach of a professional duty towards a
                                                                 patient. See Diversicare Gen. Partner, Inc. v. Rubio, 185
A. The Act’s plain language indicates that it applies to         S.W.3d 842, 851, 854 (Tex.2005). The Court’s
claims alleging a breach of a health care provider’s             interpretation renders some of those provisions
duty to a patient.                                               meaningless or nonsensical.
Our primary objective in construing a statute “is to
ascertain and give effect to the Legislature’s intent by first
looking at the statute’s plain and common meaning.” Tex.
                                                                 1. Williams’s claims are not “health care” claims, as
Natural Res. Conservation Comm’n v. Lakeshore Util.
                                                                 the Court concludes.
Co., 164 S.W.3d 368, 378 (Tex.2005). We divine that
intent by reading the statute as a whole, and we interpret       The Act defines “health care” as “any act or treatment
the legislation to give effect to the entire act. Id. (citing    performed or furnished, or that should have been
City of San Antonio v. City of Boerne, 111 S.W.3d 22, 25         performed or furnished, by any health care provider for,
(Tex.2003)). Furthermore, we may look to the statutory           to, or on behalf of a patient during the patient’s medical
context to determine a term’s meaning. City of Boerne,           care, treatment, or confinement.” TEX. CIV. PRAC. &
111 S.W.3d at 25. All of those tools lead to the conclusion      REM.CODE § 74.001(a)(10) (emphasis added). Plainly,
that Williams’s claims are not health care liability claims.     the Legislature contemplated that a health care liability
                                                                 claim based upon a departure from standards of health
Under the Medical Liability Act, § 74.001 et seq., a health      care would stem from medical treatment directed toward a
care liability claim is                                          particular patient—“the patient” whose care, treatment, or
                                                                 confinement is the subject of the lawsuit.
             a cause of action against a health
             care provider or physician for                      Based largely on the Legislature’s use of the term
             treatment, lack of treatment, or                    “claimant” rather than “patient” in the health care liability
             other claimed departure from                        claim definition, the Court determines that a claim falls
             accepted standards of medical care,                 under the health care prong of the definition even absent a
             or health care, or safety or                        physician-patient relationship so long as a physician-
             professional *194 or administrative                 patient relationship is “involved.” 371 S.W.3d at 189. As
             services directly related to health                 set out in section I.B. below, the Court’s analysis of the
             care, which proximately results in                  significance of the Legislature’s use of “claimant” in the
             injury to or death of a claimant,                   definition flows from an erroneous premise and is deeply
             whether the claimant’s claim or                     flawed; the Court’s reliance on the change ignores the fact
             cause of action sounds in tort or                   that the Legislature used the term throughout the Act’s
             contract.                                           predecessor, including in its statement of legislative
                                                                 purpose. More importantly, the Legislature did not say
TEX. CIV. PRAC. & REM.CODE § 74.001(a)(13). The                  that a health care claim must “involve” a patient. Indeed,
Court concludes that Williams’s suit against his employer        the word is found nowhere in the definition of health care
for providing an unsafe workplace and inadequate                 or health care liability claim. Instead, health care claims
training alleges health care liability claims, despite the       arise from “act[s] or treatment furnished or that should
lack of any physician-patient relationship between the           have been furnished for, to, or on behalf of a patient
health care provider and the claimant. 371 S.W.3d at 174.        during the patient’s medical care, treatment, or
The Court first determines that Williams’s claims are for        confinement.” TEX. CIV. PRAC. & REM.CODE §
a departure from health care standards because they              74.001(a)(10) (emphasis added). Williams’s claims allege
“involve a patient-physician relationship.” 371 S.W.3d at        that West Oaks failed to provide him, not the patient,
181. Although that determination is more than enough to          adequate training and a safe work place.

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Texas West Oaks Hosp., LP v. Williams, 371 S.W.3d 171 (2012)
55 Tex. Sup. Ct. J. 1033

                                                                    (A) I, _______________ (name of patient [not
Section 74.051 of the Act highlights the Court’s error in           claimant] or authorized representative), hereby
concluding that the mere peripheral involvement of a                authorize _______________ (name of physician or
patient transforms an ordinary negligence claim into a              other health care provider to whom the notice of
health care claim. That section requires health care                health care claim is directed) to obtain and disclose
liability claimants to provide *195 notice by certified mail        ... the protected health information described
to any health care provider against whom the claim is               below....
asserted sixty days before the claim is filed. TEX. CIV.
PRAC. & REM.CODE § 74.051(a). The notice must be               Other provisions of the Act, which provide the relevant
accompanied by a form authorizing the release of the           statutory context, see City of Boerne, 111 S.W.3d at 25,
medical records of “the patient ” whose treatment is the       shore up the conclusion that health care liability claims
subject of the claim. Id. §§ 74.051(d)( “All parties shall     arise from a health care provider’s breach of a duty
be entitled to obtain complete and unaltered copies of the     toward a particular patient. I examine several below.
patient’s medical records....”); 74.052(c)A, B. Under the
Court’s reading of the statute, Williams would be required
to authorize or obtain authorization for the release of
Vidaurre’s medical records to pursue his suit against his      2. The Court’s interpretation is inconsistent with
employer. Obviously, medical privacy laws prevent              provisions governing the expert reports and the
Williams from authorizing the release of Vidaurre’s            qualifications of experts.
medical records. 45 C.F.R. § 164.502(f) (providing that
Health Insurance Privacy and Portability Act restrictions      The Court reverses the court of appeals’ judgment and
apply to deceased individuals). While the Legislature          remands to the trial court, instructing it to dismiss because
sought to reduce frivolous claims against health care          Williams failed to comply with the expert report
providers, it sought to do so without unduly restricting       requirement of section 74.351. But the very definition of
claims with merit. It is inconceivable that the Legislature    “expert report” belies the Court’s conclusion that
intended to require health care claimants with meritorious     Williams’s allegations state claims for health care
claims to be blocked by the refusal of third parties (the      liability. An “expert report” is defined as
patients “involved”) to authorize release of their medical
records.                                                                    a written report by an expert that
                                                                            provides a fair summary of the
Moreover, even if Williams were somehow able to obtain                      expert’s opinions as of the date of
authorization from Vidaurre’s estate, the records would                     the report regarding applicable
not serve the purpose sections 74.051 and 74.052 were                       standards of care, *196 the manner
designed to serve: to “ ‘provide[ ] an opportunity for                      in which the care rendered by the
health care providers to investigate claims and possibly                    physician or health care provider
settle those with merit at an early stage.’ ” Jose Carreras,                failed to meet the standards, and
M.D., P.A. v. Marroquin, 339 S.W.3d 68, 73 (Tex.2011)                       the causal relationship between that
(quoting In re Collins, 286 S.W.3d 911, 916–17                              failure and the injury, harm, or
(Tex.2009)). Vidaurre’s psychiatric diagnosis and violent                   damages claimed.
tendencies are undisputed, and the records would have no
bearing on the merits of Williams’s claims against West        TEX.       CIV.      PRAC.       &       REM.CODE           §
Oaks for allegedly providing an unsafe workplace and           74.351(r)(6)(emphasis added). The emphasized language
inadequate training.                                           clearly contemplates that the defendant health care
                                                               provider has delivered health care services to a patient,
The Court discounts the import of these sections, finding      who has allegedly been injured by the provider’s
no language to suggest that employee/employer disputes         departure from applicable standards. The Court minimizes
like this case are not health care liability claims. But       the definition’s significance by noting that “[t]he fact that
section 74.052, which describes the statutory                  experts submitting reports have knowledge of the alleged
authorization form that must accompany the statutory           standards deviated from does not logically lead to a
notice provides:                                               conclusion that only a patient’s suit against a health care
                                                               provider can constitute an HCLC....” 371 S.W.3d at 190.
     (c) The medical authorization required by this            That suggestion, however, overlooks the provision’s
     section shall be in the following form[ ]:                reference to the health care provider’s rendition of care.



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Texas West Oaks Hosp., LP v. Williams, 371 S.W.3d 171 (2012)
55 Tex. Sup. Ct. J. 1033

The sections of the Act governing the qualifications of           Noting that “our focus ... is not the status of the claimant,”
experts who may author reports similarly show that a              371 S.W.3d at 178, the Court rejects out of hand
health care liability claim arises only from a patient/health     Williams’s contention that the lack of a patient-physician
care provider relationship. Section 74.041 establishes the        relationship between him and West Oaks places his suit
necessary qualifications for an expert in a suit against a        outside of the Act. It is true, as the Court asserts, that in
physician. Among other qualifications, the expert must            Diversicare we placed great importance upon the essence
“ha[ve] knowledge of accepted standards of medical care           of the claims, “the alleged wrongful conduct and the
for the diagnosis, care, or treatment of the illness, injury,     duties allegedly breached.” 185 S.W.3d at 851. But in
or condition involved in the claim.” TEX. CIV. PRAC. &            *197 rejecting Rubio’s contention that her claim for a
REM.CODE § 74.401(a)(2)(emphasis added). The                      sexual assault by another patient should be treated as an
definitions thus contemplates that the lawsuit will center        ordinary premises liability claim, we attached equal
on a physician’s treatment of a patient’s illness, injury, or     importance to the claimant’s status as a patient between
condition, not on the adequacy of a workplace or the              the parties: “There is an important distinction in the
training provided to an employee.                                 relationship between premises owners and invitees on one
                                                                  hand and health care facilities and their patients on the
                                                                  other. The latter involves health care.” Id. at 850. And we
                                                                  emphasized that, were we to agree with Rubio’s position,
3. The jury instruction mandated by the Legislature               “our decision would have the effect of lowering the
contemplates that the claim arises from a health care             standard from professional to ordinary care.” Id. at 854.
provider’s treatment of a patient.                                The presence of a doctor-patient relationship was
                                                                  undeniably important to our determination that Rubio’s
In section 74.303(e) of the Act, the Legislature mandated         allegations amounted to health care liability claims.
the inclusion of two express jury instructions “[i]n any
action on a health care liability claim that is tried by a jury   The Court attaches much significance to the Legislature’s
in any court in this state.” The second of those is:              alteration in 2003 of the definition of “health care liability
                                                                  claim.” The Act’s predecessor, the Medical Liability and
             A finding of negligence may not be                   Insurance Improvement Act, former article 4590i, defined
             based solely on evidence of a bad                    the term as
             result to the claimant in question,
             but a bad result may be considered                                a cause of action against a health
             by you, along with other evidence,                                care provider or physician for
             in determining the issue of                                       treatment, lack of treatment, or
             negligence. You are the sole judges                               other claimed departure from
             of the weight, if any, to be given to                             accepted standards of medical care
             this kind of evidence.                                            or health care or safety which
                                                                               proximately results in injury or
Id. § 74.303(e)(2). This instruction reflects the long-                        death of the patient, whether the
recognized principle that a physician who exercises                            patient’s claim or cause of action
ordinary care, within his school or specialty, is not liable                   sounds in tort or contract.
to a patient for a bad outcome. See Bowles v. Bourdon,
148 Tex. 1, 219 S.W.2d 779, 782 (1949). Clearly, the              Act of May 30, 1977, 65th Leg., R.S., ch. 817, §
instruction only makes sense where a patient or the               1.03(a)(4), 1997 Tex. Gen. Laws 2039, 2041, repealed by
patient’s proxy is dissatisfied by health care services           Act of June 2, 2003, 78th Leg., R.S., ch. 204, § 10.09
delivered by a health care provider. In the context of the        2003 Tex. Gen. Laws 847, 884 (emphasis added). In
present case, in which the health care provider acted as an       2003, the Legislature replaced the word “patient” with the
employer, the instruction becomes nonsensical.                    term “claimant.” TEX. CIV. PRAC. & REM.CODE §
                                                                  74.001(13). Without regard to the abundant indicia to the
                                                                  contrary throughout the Act, the Court concludes that this
                                                                  change contemplated health care liability claims that do
B. The Court’s Interpretation Is Contrary to Our                  not arise from the physician-patient relationship.
Prior Interpretations and Attaches Undue Importance
to the Alteration of the Definition of “Health Care               While claimant is a new term in the definition of health
Liability Claim.”                                                 care liability claim, the word was used throughout the
                                                                  TMLIIA before the Legislature made that change. In fact,
                                                                  the Legislature used the term in describing the Act’s very

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Texas West Oaks Hosp., LP v. Williams, 371 S.W.3d 171 (2012)
55 Tex. Sup. Ct. J. 1033

purpose: to alleviate a perceived health care crisis “in a      with the rendition of health care services.” Even if the
manner that will not unduly restrict a claimant’s rights        question were properly before us, though, I would reach a
any more than necessary to deal with the crisis.” Act of        different conclusion than the Court. I would hold that a
May 30, 1977, 65th Leg., R.S., ch. 817, § 1.02(13)(3),          claim for safety under the Health Care Liability Act must
1977 Tex. Gen. Laws 2039, 2040, repealed by Act of              arise from a breach of a health care provider’s duty to
June 2, 2003, 78th Leg., R.S., ch 204, § 10.09 2003 Tex.        adequately ensure a patient’s safety in providing health
Gen. Laws 847, 884 The term was also used and defined           care services.
in section 13 of article 4590i. That section, the precursor
of sections 74.351 and 74.352 of the current act, among         The Court’s conclusion that a health care liability claim
other things, required a claimant in a health care liability    for breach of a safety standard depends entirely on the last
claim to file an expert report within 180 days. Act of May      antecedent doctrine, 371 S.W.3d at 182, or the notion that
1, 1995, 74th Leg., R.S., ch. 971, § 1, sec. 13.01(d), (e),     “ ‘[m]odifiers should come, if possible, next to the words
1995 Tex. Gen. Laws 985, 985–986, repealed by Act of            they modify.’ ” 371 S.W.3d at 184 (quoting William
June 2, 2003, 78th Leg., R.S., ch 204, § 10.09, 2003 Tex.       Strunk, Jr. & E.B. White, THE ELEMENTS OF STYLE
Gen. Laws 847, 884. “Claimant” was defined as                   R. 20 (4th ed. 2000)). In the Court’s view, then, the
                                                                Legislature would have had to frame the definition as “a
             a party who files a pleading                       cause of action against a health care provider or physician
             asserting a claim. All plaintiffs                  for treatment, lack of treatment, or other claimed
             claiming to have sustained damages                 departure from accepted standards of ... safety directly
             as the result of the bodily injury or              related to health care or professional or administrative
             death of a single person are                       services directly related to health care, which proximately
             considered to be a single claimant.                results in injury to or death of a claimant, whether the
                                                                claimant’s claim or cause of action sounds in tort or
Act of May 1, 1995, 74th Leg., R.S., ch. 971, § 1, sec.         contract. Neither Strunk and White’s instructions nor the
13.01(d), (e), 1995 Tex. Gen Laws 985, 985–986,                 last antecedent doctrine are so absolute as to require such
repealed by Act of June 2, 2003, 78th Leg., R.S., ch 204, §     redundancy. See City of Dallas v. Stewart, 361 S.W.3d
10.09 2003 Tex. Gen. Laws 847, 884. Accordingly, even           562, 571 n. 14 (Tex.2012). Instead, we should read the
though “health care liability claim” referred to injury to or   word in harmony with the other provisions I have
the death of a patient, the statute contemplated that others    discussed, and in conjunction with the words surrounding
could pursue claims under article 4590i. And what parties       “safety,” which all clearly implicate claims arising from a
could claim to have damages as the result of the injury or      health care provider’s delivery of medical care to a
death of a patient but spouses or relatives with their own      patient. See City of Boerne, 111 S.W.3d at 29 (citing Cty.
claims for loss of support or *198 consortium or mental         of Harris v. Eaton, 573 S.W.2d 177, 179 (Tex.1978)).
anguish, or others acting in a representative capacity, such
as an estate or next friend? In light of that history, it       The Court’s reading of the term “safety”—“untouched by
seems fairly obvious that the Legislature broadened the         danger, not exposed to danger; secure from danger, harm
definition of “health care liability claim” in 2003 to          or loss”—is so broad that almost any claim against a
harmonize the definition with its previous recognition that     health care provider can now be deemed a health care
parties other than patients might suffer injuries as the        liability claim. If a hospital cook leaves an unlit gas
result of a health care provider’s departure from accepted      burner on and causes an explosion, claims for any
standards in rendering health care services to a patient.1      resulting injuries might be health care liability *199
                                                                claims. If a nurse’s deranged spouse arrives at a clinic and
                                                                shoots her, her claim that the facility provided inadequate
                                                                security will also fall under the statute. Surely the
                                                                Legislature did not intend to make professional liability
                 II. Safety Under the Act                       insurers responsible for such claims in order to solve an
                                                                insurance availability crisis.
Although its holding that Williams has asserted a claim
for breach of a health care standard is dispositive, the
Court reaches out to decide an issue that isn’t even
presented: whether a claim for safety under the Act must
be directly related to health care. That issue isn’t              III. The Court’s Holding Undermines the Balance
presented because, at least in the Court’s view, Williams’s            Struck by the Legislature in the Workers
claim is directly related to health care. West Oaks itself                        Compensation Act
argued that Willams’s claims “are inextricably interwoven

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Texas West Oaks Hosp., LP v. Williams, 371 S.W.3d 171 (2012)
55 Tex. Sup. Ct. J. 1033

I dissent also because, by forcing an employee’s               IV. The Court’s Holding Undermines the Legislature’s
negligence suit against his employer for on-the-job                              Stated Purposes
injuries into the health-care-liability-claim mold, the
Court significantly disrupts the delicate balance between      In enacting chapter 74, the Legislature found that “the
employee and employer interests the Legislature sought to      number of health care liability claims [had] increased
implement when it enacted the Texas Workers                    since 1995 inordinately[,] caus[ing] a serious public
Compensation Act (TWCA). The TWCA permits an                   problem in availability and affordability of adequate
employee to bring a negligence action against a                medical professional liability insurance.” Act of June 2,
nonsubscriber like West Oaks. See TEX. LAB.CODE §              2003, 78th Leg., R.S., ch. 204, § 10.11(a)(1), (4), 2003
406.033. By making the common law defenses of                  Tex. Gen. Laws 847, 884. It adopted the Act to reduce the
assumption of the risk, negligence of a fellow employee,       frequency and decrease the *200 costs of those claims. Id.
and contributory negligence unavailable to a                   at § 10.11(b)(1), (2). By sweeping a whole new class of
nonsubscribing employer under the TWCA, id. at §               claims—negligence claims of employees of health care
406.033(a), it is clear that the Legislature intended to       institutions—into chapter 74, the Court increases the
“penalize[ ] nonsubscribers” and make it easier for their      number of health care liability claims and thwarts that
employees to recover. Kroger Co. v. Keng, 23 S.W.3d            purpose. Mystifyingly, the Court proclaims that its
347, 349, 352 (Tex.2000) (noting that “[t]o encourage          decision is “in harmony” with the Act’s purposes because
employers to obtain workers’ compensation insurance,           this new class of health care claimants will be required to
[the TWCA] penalizes nonsubscribers by precluding them         file expert reports. 371 S.W.3d at 182–83, n. 5. To be
from asserting certain common-law defenses in their            sure, Williams’s claim will be dismissed in the wake of
employees’ personal injury actions” and that the               today’s decision—one claim will go away. But, in the
“Legislature intended that an employee’s fault would           future, employees in Williams’s position will be
neither defeat nor diminish his or her recovery”). Under       forewarned that they must provide an expert report and
the Court’s holding, employees of nonsubscribing               undoubtedly will do so. The upshot of the Court’s
healthcare providers will encounter procedural hurdles,        decision is that medical professional liability insurers will
such as the Act’s notice and expert report requirements,       be responsible for claims that normally would have fallen
that the TWCA does not contemplate. See TEX. CIV.              under a health care employer’s workers compensation or
PRAC. & REM.CODE §§ 74.051, 74.351. Failure to                 comprehensive liability coverage.
comply with these special requirements can result in harsh
consequences, including dismissal of a claim with              The Court has previously declined to construe provisions
prejudice and assessment of attorneys fees against the         of the Act in a way that would lead to absurd results. Jose
plaintiff. Id. § 74.351(b). Rather than the health care        Carreras, M.D., P.A. v. Marroquin, 339 S.W.3d 68, 72–
provider being penalized for not subscribing to workers’       73 (Tex.2011). It should do so here.
compensation insurance, the Court’s decision increases
the burden and cost of pursuing negligence claims against
nonsubscribers for employees of health care institutions.
This will likely discourage healthcare workers from
bringing smaller claims.                                                             V. Conclusion

                                                               The Court’s conclusion that Williams’s claim against his
More importantly, the Act places strict limits on damages
                                                               employer for providing inadequate training and an unsafe
that may be recovered from health care providers. TEX.
                                                               workplace is a health care liability claim is not only
CIV. PRAC. & REM CODE §§ 74.301–.303. By
                                                               counterintuitive, it is inconsistent with the Act’s express
conferring the benefit of the Act’s statutory damages cap
                                                               language and its underlying purposes. Furthermore, it
on nonsubscribing health care providers, the Court gives
                                                               alters the contours of employees’ claims against
health care provider nonsubscribers a benefit that is at
                                                               nonsubscribing health care providers established in the
odds with the measures the Legislature implemented to
                                                               Workers Compensation Act. For these reasons, I
penalize employers who opt not to participate in the
                                                               respectfully dissent.
workers compensation system. “In enacting section
406.033 and its predecessors, the Legislature intended to
delineate explicitly the structure of an employee’s
personal-injury action against his or her nonsubscribing       Parallel Citations
employer.” Kroger v. Keng, 23 S.W.3d at 350–351.
Today’s decision redraws that delineation.                     55 Tex. Sup. Ct. J. 1033



               © 2015 Thomson Reuters. No claim to original U.S. Government Works.                                   18
Texas West Oaks Hosp., LP v. Williams, 371 S.W.3d 171 (2012)
55 Tex. Sup. Ct. J. 1033


Footnotes
1      The HCLC definition was amended after Williams’ cause of action accrued, and the prior law is applicable to his claims. Act of
       June 2, 2003, 78th Leg., R.S., ch. 204, § 10.09, 2003 Tex. Gen. Laws 847, amended by Act of July 19, 2011, 82nd Leg., 1st
       C.S., ch. 7, § 4.02, 2011 Tex. Gen. Laws 5445 (amending section 74.001(a), adding subsection (a)(12)(A)(viii) (including a
       health care collaborative as a “health care provider”) and making nonsubstantive changes).
2      The Legislature also broadened the subject-matter scope of the activities constituting HCLCs through the addition to the
       definition of “professional or administrative services directly related to health care.” Id. § 74.001(a)(24).
3      This conclusion is in harmony with the Legislature’s stated intent to “reduce [the] excessive frequency ... of health care liability
       claims through reasonable improvements and modifications in the Texas insurance, tort, and medical malpractice systems....”
       Act of June 2, 2003, 78th Leg., R.S., ch. 204, § 10.11(b)(1), 2003 Tex. Gen. Laws 847, 884.
4      “ ‘Health care liability claim’ means 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 § 74.001(a)(13).
5      As we discussed in Diversicare, a number of other states also recognize that providing supervision and a safe environment at a
       health care facility are matters of professional health care judgment. 185 S.W.3d at 852–54 (citing Dorris v. Detroit Osteopathic
       Hosp., 460 Mich. 26, 594 N.W.2d 455, 466 (1999) (concluding that claims for assault in a psychiatric hospital implicated
       medical or health care under Michigan’s medical malpractice statute and noting that “[t]he ordinary layman does not know the
       type of supervision or monitoring that is required for psychiatric patients in a psychiatric ward.”); Smith v. Four Corners Mental
       Health Ctr., 70 P.3d 904, 914 (Utah 2003) (holding that an assaulted child’s lawsuit against the outpatient mental health care
       provider was a health care malpractice claim because the plaintiff’s “allegations arise out of the fact that [a health care provider]
       provided mental health services directly to him....”)); see also D.P. v. Wrangell Gen. Hosp., 5 P.3d 225, 229 n. 17 (Alaska 2000)
       (“[I]n so far as [plaintiff] intends to argue issues that involve specialized medical decisions—such as the appropriate level of
       physical restraints or medication—she can do so only through expert testimony.”); Bell v. Sharp Cabrillo Hosp., 212
       Cal.App.3d 1034, 260 Cal.Rptr. 886, 896 (1989) (“[T]he competent selection and review of medical staff is precisely the type of
       professional service a hospital is licensed and expected to provide, for it is in the business of providing medical care to patients
       and protecting them from an unreasonable risk of harm while receiving medical treatment.... [T]he competent performance of
       this responsibility is ‘inextricably interwoven’ with delivering competent quality medical care to hospital patients.”).
6      Texas appellate courts construing the TMLA have diverged on whether “directly related” applies to safety claims or only to
       other claims in the definition’s list of departures from accepted standards. Compare St. David’s Healthcare P’ship, L.P. v.
       Esparza, 315 S.W.3d 601, 604 (Tex.App.—Austin 2010), rev’d on other grounds, 348 S.W.3d 904 (Tex.2011) (“directly related
       to health care” modifies “safety”); Appell v. Muguerza, 329 S.W.3d 104, 115 (Tex.App.—Houston [14th Dist.] 2010, pet. filed)
       (same); Dual D Healthcare Operations, Inc. v. Kenyon, 291 S.W.3d 486, 489–90 (Tex.App.—Dallas 2009, no pet.) (same);
       Omaha Healthcare Ctr., L.L.C. v. Johnson, 246 S.W.3d 278, 284 (Tex.App.—Texarkana 2008), rev’d on other grounds, 344
       S.W.3d 392 (Tex.2011) (same); Harris Methodist Ft. Worth v. Ollie, 270 S.W.3d 720, 723 (Tex.App.—Fort Worth 2008), rev’d
       on other grounds, 342 S.W.3d 525 (Tex.2011) (same); Christus Health v. Beal, 240 S.W.3d 282, 289 (Tex.App.—Houston [1st
       Dist.] 2007, no pet.) (same); Valley Baptist Med. Ctr. v. Stradley, 210 S.W.3d 770, 774–75 (Tex.App.—Corpus Christi 2006,
       pet. denied) (same), with Holguin v. Laredo Reg’l Med. Ctr., L.P., 256 S.W.3d 349, 354–55 (Tex.App.—San Antonio 2008, no
       pet.) (safety claim need not be directly related to health care); Emeritus Corp. v. Highsmith, 211 S.W.3d 321, 328 (Tex.App.—
       San Antonio 2006, pet. denied) (“[A] claim may be a ‘health care liability claim’ under the safety definition even if it does not
       ‘directly relate[ ] to healthcare.’ ”).
7      We explained in Diversicare that the claimant’s allegations of deficient monitoring and training are distinct from hypothetical
       claims for injuries arising out of an intruder assaulting a claimant due to an unlocked window or a claimant falling from a
       rickety staircase. 185 S.W.3d at 854. These examples, however, did not concern our analysis of HCLCs that were alleged
       departures from accepted standards of safety. They were instead provided as examples of claims that would be separable from
       health care under the health care prong of the HCLC definition. Id. (construing the TMLIIA). Diversicare ’s only holding as to
       the scope of claims based on alleged departures from accepted standards of safety was that inclusion of the term safety in the
       HCLC definition expanded the reach of the statute and that it was broad enough to include the claimants’ claim in that case.
       Marks v. St. Luke’s Episcopal Hosp., No. 07–0783, 52 Tex.Sup.Ct.J. 1184, 2009 WL 2667801, 2009 Lexis 636, at *39 (Tex.
       August 28, 2009) (Wainwright, J., dissenting), opinion withdrawn and substituted on rehearing, 319 S.W.3d 658 (Tex.2010).
8      Justices Hecht and Wainwright joined Justice Johnson’s concurrence in Marks, except for the discussion of “safety.” 319
       S.W.3d at 667.

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Texas West Oaks Hosp., LP v. Williams, 371 S.W.3d 171 (2012)
55 Tex. Sup. Ct. J. 1033


9      Articles 4671 and 5525 were both repealed prior to the 2003 amendments as part of the Legislature’s 1985 adoption of the
       Texas Civil Practice and Remedies Code. TEX.REV.CIV. STAT. arts. 4671 and 5525, repealed by Act of June 16, 1985, 69th
       Leg., R.S., ch. 959, § 9(1), 1985 Tex. Gen. Laws 3242, 3322.
10     There is a slight variance between the definitions for “health care” and “medical care.” The “health care” definition features the
       word “medical” between the words “patient’s” and “care.” The “medical care” definition does not feature this word. TEX. CIV.
       PRAC. & REM.CODE § 74.001(a)(10), (a)(19).
11     The scope of claims for “professional or administrative services directly related to health care” in the HCLC definition is not at
       issue in this case.
1      The Court also makes much of the Act’s definition of “representative,” a term used in the Act’s medical records disclosure
       provision. TEX. CIV. PRAC. & REM.CODE §§ 74.001(a)(25), .052. “Representative” is defined as the “agent of the patient or
       claimant.” The Court concludes this “indicat[es] that patient and claimant do not necessarily refer to the same category of
       persons.” I agree, but my conclusion that “claimant” refers to parties with claims derived from a health care provider’s breach of
       a duty toward a particular patient, such as guardians, executors, survivors, and next friends, is far more consistent with other
       provisions of the Act than the Court’s.




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.                                                    20
W.B.M. Management Co. v. Flores, Not Reported in S.W.3d (2014)
Med & Med GD (CCH) P 304,923


                                                                timely and treat her mother’s urinary tract infection,
                                                                leading eventually to her mother’s death.
                    2014 WL 1691362

SEE TX R RAP RULE 47.2 FOR DESIGNATION AND                      In May 2013, Flores served the Home with the report and
SIGNING OF OPINIONS.                                            curriculum vitae of James E. Moulsdale, M.D., F.A.C.S.2
         MEMORANDUM OPINION                                     The Home timely objected to the report. After Flores
           Court of Appeals of Texas,                           responded, the trial court heard the Home’s objections in
                   Amarillo.                                    September 2013. The trial court found the report
                                                                deficient, and granted a 30–day extension to address the
     W.B.M. MANAGEMENT COMPANY d/b/a                            identified deficiencies.
         Vivians Nursing Home, Appellant
                        v.                                      The amended report was filed in late October 2013. The
             Mary FLORES, Appellee.                             Home again filed objections and moved to dismiss Flores’
                                                                claims pursuant to section 74.351(b) of the Civil Practice
       No. 07–14–00008–CV. | April 25, 2014.                    & Remedies Code. TEX. CIV. PRAC. & REM.CODE
                                                                ANN. § 74.351(b) (West 2013). The trial court heard
On Appeal from the 108th District Court, Potter County,         argument at a hearing in December 2013, overruled the
Texas, Trial Court No. 101179–E, Honorable Douglas              objections to the amended report and denied the Home’s
Woodburn, Presiding.                                            motion to dismiss. The Home has brought this
                                                                interlocutory appeal.
Attorneys and Law Firms

Arlene C. Matthews, W.C. Bratcher, for W.B.M.
Management Company.
                                                                                          Analysis
Lorren L. Lucero, for Mary Flores.
                                                                Through one issue, the Home challenges the sufficiency
Before QUINN, C.J., and CAMPBELL and PIRTLE, JJ.                of Moulsdale’s amended expert report, contending the
                                                                report was “impermissibly speculative and conclusory” in
                                                                its attempt to describe the “causal relationship between
                                                                the alleged breach of the standard of care by [the Home]
                                                                and the death of Dionisia Dominguez Gomez.” The
              MEMORANDUM OPINION                                Home’s issue also contends the amended report
                                                                inadequately described the applicable standard of care and
JAMES T. CAMPBELL, Justice.                                     its alleged breach.

*1 This is an interlocutory appeal in a health care liability   We review a trial court’s decision on a motion to dismiss
suit.1 Appellant W.B.M. Management Company D/B/A                a health care liability claim for abuse of discretion. Am.
Vivians Nursing Home (“the Home”) appeals the trial             Transitional Care Ctrs. of Tex., Inc. v. Palacios, 46
court’s order overruling its objections to an expert’s          S.W.3d 873, 875 (Tex.2001); Gray v. CHCA Bayshore
report and denying its motion to dismiss the suit. We will      L.P., 189 S.W.3d 855, 858 (Tex.App.-Houston [1st Dist.]
reverse the trial court’s order and remand the cause to the     2006, no pet.). A trial court abuses its discretion if it acts
trial court for dismissal.                                      in an arbitrary or unreasonable manner without reference
                                                                to guiding rules or principles. Jelinek v. Casas, 328
                                                                S.W.3d 526, 539 (Tex.2010). When reviewing matters
                                                                committed to the trial court’s discretion, we may not
                                                                substitute our own judgment for that of the trial court.
                       Background                               Bowie Mem’l Hosp. v. Wright, 79 S.W.3d 48, 52
                                                                (Tex.2002). A trial court does not abuse its discretion
Appellee Mary Flores filed suit against the Home after the      merely because it decides a discretionary matter
death of her mother Dionisia Dominguez Gomez, alleging          differently than an appellate court would in a similar
the Home was negligent in its care and treatment of her         circumstance. Harris Cnty. Hosp. Dist. v. Garrett, 232
mother. Flores’ amended pleadings alleged in particular         S.W.3d 170, 176 (Tex.App.-Houston [1st Dist.] 2007, no
the Home’s employees negligently failed to diagnose             pet.). However, an incorrect construction of the law or a

               © 2015 Thomson Reuters. No claim to original U.S. Government Works.                                      1
W.B.M. Management Co. v. Flores, Not Reported in S.W.3d (2014)
Med & Med GD (CCH) P 304,923

misapplication of the law to undisputed facts is an abuse       In Moulsdale’s October 2013 report, he stated:
of discretion. Walker v. Packer, 827 S.W.2d 833, 840
(Tex.1992) (orig.proceeding) (“A trial court has no               I have been asked to review the care rendered to the
‘discretion’ in determining what the law is or applying the       above-captioned individual in January, 2011. She was,
law to the facts”); see Perry Homes v. Cull, 258 S.W.3d           at that time, a resident of Vivians Nursing Home.
580, 598 n. 102 (Tex.2008) (quoting Walker ).                     Historically, the patient had had a CVA in the remote
                                                                  past, leaving her extremely debilitated and unable to
*2 A health care liability claimant must timely provide           care for herself, necessitating nursing home placement.
each defendant health care provider with an expert report.        I reviewed the records from Vivian’s Nursing Home for
See TEX. CIV. PRAC. & REM.CODE ANN. § 74.351;                     the period of August, 2010 through January, 2011. On
Gray, 189 S.W.3d at 858. The expert report must provide           January 10, 2011, the patient was found to have
a fair summary of the expert’s opinions as of the date of         increasing mental confusion and a probable urinary
the report regarding the applicable standards of care, the        tract infection. She was subsequently taken by
manner in which the care rendered by the health care              ambulance to Baptist St. Anthony Hospital in Amarillo,
provider failed to meet the standards, and the causal             Texas, where she was found to have a severe urinary
relationship between that failure and the injury, harm, or        tract infection and probable urosepsis. She was treated
damages claimed. TEX. CIV. PRAC. & REM.CODE                       aggressively and appeared to recover but was later sent
ANN. § 74.351(r)(6).                                              to hospice care and expired there.

If a defendant files a motion challenging the adequacy of         *3 The standard of care applicable to this type of
the claimant’s expert report, the trial court shall grant the     patient is careful monitoring, especially since she was
motion to dismiss only if it appears to the court, after a        unable to communicate any problems she might be
hearing, that the report does not represent an objective          experiencing. Careful monitoring would include taking
good faith effort to comply with the definition of an             her vital signs (i.e. blood pressure, pulse rate, body
expert report. TEX. CIV. PRAC. & REM.CODE ANN. §                  temperature, and respiratory rate) at a minimum of
74.351(l). Making that inquiry, the court considers only          once per day in order to detect any changes in her
the information contained within the four corners of the          condition. Especially in a debilitated patient, it is
report. Palacios, 46 S.W.3d at 878. Although the claimant         essential to monitor vital signs in order to detect
need not marshal all her proof in the report, the report          changes in the patient’s condition, such as urinary tract
must include the expert’s opinion on each of the elements         infection, since the patient is not able to alert the staff
identified in the statute. Palacios, 46 S.W.3d at 878–79;         on his/her own.
Gray, 189 S.W.3d at 859.
                                                                  In reviewing the nursing home records, I found notes
To constitute a good faith effort, in setting out the             stating that Ms. Gomez’s vital signs should be taken
expert’s opinions on the standard of care, the breach of          only once per week. The nursing home records further
the standard and the causative relationship between the           indicate that Ms. Gomez’s vital signs were, in fact, only
breach and the injury, harm or damages claimed, the               taken once per week. Had her vital signs been taken
report must provide enough information to fulfill two             more frequently, at a minimum of once per day, it is
purposes. Palacios, 46 S.W.3d at 879. First, the report           much more likely that this condition would have been
must inform the defendant of the specific conduct the             found earlier and might have been treated in the
claimant has called into question. Id. Second, the report         nursing home without the necessity of hospitalization.
must provide a basis for the trial court to conclude that the     More likely than not, the vital signs would have shown
claim has merit. Id. A report that merely states the              an increase in body temperature, an increased heart
expert’s conclusions does not fulfill these two purposes.         rate, an increased respiratory rate, a decrease in blood
Id. “Rather, the expert must explain the basis of his             pressure, or any combination of the above, indicating a
statements to link his conclusions to the facts.” Bowie, 79       change in the patient’s medical condition which
S.W.3d at 52 (quoting Earle v. Ratliff, 998 S.W.2d 882,           required further investigation. Because of the fact that
890 (Tex.1999)). But a claimant need not present                  her urinary infection was not discovered in a timely
evidence in the report as if she were actually litigating the     fashion, she required hospitalization and treatment in
merits. Palacios, 46 S.W.3d at 879. Furthermore, the              an intensive care unit. Because this is a life threatening
report may be informal in that the information in the             illness, delay in diagnosis is a serious breach of the
report need not meet the same requirements as the                 standard of care.
evidence offered in a summary-judgment proceeding or              I believe that this claim does have merit because of the
trial. Id.                                                        delay in the diagnosis of the urinary tract infection. In
                                                                  my training and experience as a urologist, it is more

               © 2015 Thomson Reuters. No claim to original U.S. Government Works.                                     2
W.B.M. Management Co. v. Flores, Not Reported in S.W.3d (2014)
Med & Med GD (CCH) P 304,923

  likely than not that an undiagnosed urinary tract            faith effort toward compliance with the statutory
  infection might develop into urosepsis, especially in a      requirements.
  debilitated patient who is unable to communicate any
  symptoms or changes in their medical condition. I            Reiterated, an expert report that merely states the expert’s
  believe that this was the case in the care rendered to       conclusions does not provide enough information to fulfill
  Ms. Gomez. Furthermore, it is documented in the death        the purposes of the report. Bowie, 79 S.W.3d at 52 (citing
  certificate that the cause of death was sepsis secondary     Palacios, 46 S.W.3d at 879). The report must explain the
  to urinary tract infection.3                                 basis of the expert’s statements to link his conclusions to
                                                               the facts. Bowie, 79 S.W.3d at 52. Otherwise, the report
The Home’s objections asserted that the amended report         neither informs the defendant of the specific conduct the
failed to adequately address the standard of care              claimant calls into question nor provides a basis for the
applicable to the Home and how the standard of care was        trial court to conclude the claim has merit. Id.
allegedly breached by the Home or its employees. The
Home also asserted the amended report failed to address        A case Flores cites is helpful to demonstrate the
the causal relationship between the alleged breach and the     inadequacies of Moulsdale’s report. Mosely v. Mundine,
injury, harm or damages claimed by Flores, and asserted        249 S.W.3d 775 (Tex.App.-Dallas 2008, no pet.), dealt
the amended report contained only global and conclusory        with a claim a physician failed to detect an early stage of
statements concerning the causal connection.                   cancer. The physician moved to dismiss the claim,
                                                               asserting the expert report expressed only conclusory
Standard of care is defined by what an ordinarily prudent      statements as to the causative relationship between the
health care provider or physician would have done under        failure to detect and the harm to the patient. Id. at 780–81.
the same or similar circumstances. Palacios, 46 S.W.3d at      The expert report there, as relevant to causation, stated:
880; Strom v. Mem’l Hermann Hosp. Sys., 110 S.W.3d
216, 222 (Tex.App.-Houston [1st Dist.] 2003, pet.                In the case of Mrs. Mundine, Dr. Mosley [sic] failed to
denied). Whether a defendant breached a duty to a patient        identify a 1cm nodule on the chest x-ray during the ER
cannot be determined absent specific information about           visit in 5/2004. Approximately 21 months later this
what the defendant should have done differently.                 nodule had developed into a 6cm mass extending into
Palacios, 46 S.W.3d at 880.                                      the lung tissue with undetermined metastasis. Mrs.
                                                                 Mundine has a poor prognosis given the extent of the
*4 According to Moulsdale’s report, the applicable               tumor growth and required lung resection,
standard of care for treatment of a debilitated patient like     chemotherapy [,] and radiation. Had this cancer been
Ms. Gomez required that the Home monitor her carefully,          detected in 2004[,] the likelihood of survival for Mrs.
taking her vital signs, defined as blood pressure, pulse         Mundine would have been significantly greater with a
rate, body temperature and respiratory rate, at least once       much less invasive treatment protocol. Dr. Mosley [sic]
per day to detect changes in her condition. Addressing the       breached the standard of care by failing to detect the
Home’s breach of the standard of care, Moulsdale’s report        early stage of the cancer in May 2004.
states that his review of the nursing home records reveals
notes that Ms. Gomez’s vital signs were to be taken only         *5 * * *
once per week and records further indicating that her vital
signs were indeed taken once per week.                           .... Dr. Mosely failed to identify the early cancer nodule
                                                                 in Mrs. Mundine in 2004. This failure resulted in
Moulsdale further explains that because the vital signs          delayed diagnosis of lung cancer, required invasive and
were not taken daily, Ms. Gomez’s urinary tract infection        aggressive treatment and in all medically probability
went undetected long enough to develop into sepsis, a            significant reduction in the life expectancy of Mrs.
life-threatening condition requiring hospitalization. He         Mundine.
states “[m]ore likely than not, the vital signs would have
                                                                 249 S.W.3d at 780.
shown an increase in body temperature, an increased heart
rate, an increased respiratory rate, a decrease in blood
                                                               The appeals court affirmed the trial court’s denial of the
pressure, or any combination of the above, indicating a
                                                               physician’s motion. It held the trial court could have
change in the patient’s medical condition which required
                                                               concluded the report “established a causal relationship”
further investigation.”
                                                               between the physician’s departure from the standard of
                                                               care and the patient’s injury. In so concluding, the court
Our discussion will focus on causation because we readily
                                                               found the expert’s report linked the physician’s failure to
conclude that in its discussion of that element,
                                                               identify the one-centimeter nodule in 2004 to the patient’s
Moulsdale’s amended report does not constitute a good
               © 2015 Thomson Reuters. No claim to original U.S. Government Works.                                    3
W.B.M. Management Co. v. Flores, Not Reported in S.W.3d (2014)
Med & Med GD (CCH) P 304,923

injury from the developed six-centimeter mass some 21          next four days, her condition deteriorated and she was
months later. Id. at 781.                                      transferred to another facility where she died a few days
                                                               later. The expert report addressed what it described as
The report in Mosely gave the trial court a factual basis to   breaches of the standard of care by a physician during her
understand the change in the patient’s condition between       four-day hospital stay. Reversing the trial court’s denial
the breach of the standard, occurring on a known occasion      of challenges to the expert report, the appellate court held
on which the patient had a one-centimeter nodule, and the      the report was conclusory as to causation. The court
later condition when the nodule had become a six-              summarized the expert report’s discussion of causation as
centimeter mass. 249 S.W.3d at 780. By contrast with that      follows:
report found adequate as to causation, Moulsdale’s report
contains the facts that on January 10, 2011, Ms. Gomez, a        [Expert’s] report explains that the standard of care
debilitated patient, “was found to have increasing mental        required [the physician] to examine and assess [the
confusion and a probable urinary tract infection,” and was       patient] on a daily basis, and that daily chest x-rays
subsequently taken by ambulance to the hospital, where           should have been performed. In addition, the report
she was diagnosed with a severe urinary tract infection          states that if [the physician] had examined [the
and probable urosepsis. The report speaks in conclusory          patient’s] lungs, then “more likely than not” she would
fashion of a “delay in diagnosis,” but contains no facts on      have found that [the patient’s] pneumonia and
which one may base a conclusion that there occurred a            congestive heart failure had worsened, and those
delay in diagnosing her infection or that any such delay         conditions “could have been effectively treated more
was attributable to a failure of the Home to check her vital     likely than not.” The report also concludes that if [the
signs daily. The report’s statement that “more likely than       physician] had performed “proper assessment and
not, the vital signs would have shown an increase in body        treatment” on January 26, 27, or 28, “then more likely
temperature, an increased heart rate, an increased               than not, [the patient] could have been successfully
respiratory rate, a decrease in blood pressure, or any           treated and would not have died when she did.”
combination of the above, indicating a change in the             [Expert] further concludes in the report that
patient’s medical condition which required further               [physician’s] negligence proximately caused [patient’s]
investigation”4 is not factual, but merely a more detailed       death, and if [physician] had not been negligent,
statement of Moulsdale’s opinion. The report contains no         [patient] “would not have died when she did.”
factual statement describing when, relative to January 10,
the Home’s employees last checked Ms. Gomez’s vital            259 S.W.3d at 312. The court found the expert’s
signs. Nor does it contain statements of what any of Ms.       statements conclusory because they were not linked to the
Gomez’s vital signs were at any point in time, before,         facts and did not explain how the physician’s alleged
during or after her diagnosis, or how any of her vital signs   negligence caused the patient’s death. Id. at 313 (citing,
had changed from any point in time to another.                 inter alia, Gonzales v. Graves, No. 07–03–00268–CV,
                                                               2004 Tex.App. LEXIS 2403, 2004 WL 510898
With regard to her hospital care, Moulsdale’s report adds      (Tex.App.-Amarillo Mar. 16, 2004, no pet.) (mem.op.)).
only the facts that Ms. Gomez was treated aggressively
and appeared to recover but later died under hospice care.     Moulsdale’s report contains even fewer facts than the
The report concludes with the statement that, according to     report in Craig. 259 S.W.3d at 312. That report at least
her death certificate, the cause of Ms. Gomez’s death was      described Mrs. Dearbonne’s condition on her admission
“sepsis secondary to urinary tract infection.” But the         to the hospital, giving the trial court some means to
report contains nothing to link that fact with his             understand the factual consequences of a failure to order
conclusion the Home’s failure to check her vital signs         daily x-rays. See Craig, 259 S.W.3d at 313–14 (Gaultney,
daily in the days before her hospitalization led to her        J., dissenting). As noted, Moulsdale’s report gives no
septic condition or her death some two weeks later. And        facts regarding Ms. Gomez’s vital signs on any day,
we cannot engage in inferences to supply information not       providing no basis for evaluation of the effects of a failure
present within the four corners of the report. See Bowie,      to check her vital signs daily. See also Foster v.
79 S.W.3d at 53.                                               Richardson, 303 S.W.3d 833, 842 (Tex.App.-Fort Worth
                                                               2009, no pet.) (holding expert report “does not explain
*6 Moulsdale’s report may also be compared with the            beyond mere conjecture” how condition of patient’s ankle
expert report considered in Craig v. Dearbonne, 259            worsened from June to July so that physician’s failure to
S.W.3d 308 (Tex.App.-Beaumont 2008, no pet.). Mrs.             give correct diagnosis in June caused the requirement of
Dearbonne was admitted to a hospital on January 25 with        further treatment in July).
admitting diagnoses that included “respiratory
distress/shortness of breath” and pneumonia. Over the

               © 2015 Thomson Reuters. No claim to original U.S. Government Works.                                    4
W.B.M. Management Co. v. Flores, Not Reported in S.W.3d (2014)
Med & Med GD (CCH) P 304,923

Moulsdale’s report expresses his opinion that the Home’s       without reference to guiding rules or principles and did
failure to take Ms. Gomez’s vital signs at least daily         not, therefore, misapply the law to the undisputed facts of
caused a failure to find and timely treat her urinary tract    this case, or otherwise abuse its discretion, I respectfully
infection. It further expresses his opinion that because the   dissent.
infection was left untreated, it developed into sepsis, a
life-threatening condition, ultimately leading to her death.   As the majority opinion correctly sets out, this is an
But the report does not explain the basis of Moulsdale’s       interlocutory appeal in a health care liability suit, wherein
statements to link his conclusions to the facts, Bowie, 79     Appellant, W.B.M. Management Company, d/b/a Vivians
S.W.3d at 52, with the result that it also does not provide    Nursing Home, seeks to overturn the decision of the trial
a basis for the trial court to conclude the claim has merit.   court to deny Appellant’s motion to dismiss the claims of
Id. Ultimately, it states only Moulsdale’s opinions on         Appellee, Mary Flores, pursuant to section 74.351(l).
causation. Accordingly, the report does not set forth a        TEX. CIV. PRAC. & REM.CODE ANN. § 74.351(l)
“good faith effort” to provide a fair summary of the           (West 2012). The majority concludes the trial court erred
causation element as described in the statute. When it         because the report of Dr. James E. Moulsdale does not
overruled the Home’s objections to the report’s causation      constitute an objective good faith effort to describe a
element discussion and denied its motion to dismiss, the       causal relationship between Appellant’s failure to follow
trial court misapplied the “good faith effort” standard.       an appropriate standard of medical care and Appellee’s
Our conclusion the report is inadequate in its discussion      claimed damages. Because the majority accurately sets
of causation makes it unnecessary for us to consider the       forth the law applicable to a case such as this, I will not
adequacy of its discussion of the standard of care and         restate the principles of law governing an appellate
breach.                                                        court’s analysis of the sufficiency of an expert report as
                                                               statutorily defined. Id. at § 74.351(r)(6).

                                                               Reduced to its essence, Appellee claims Appellant’s
                                                               employees failed to provide medical care within an
                       Conclusion                              applicable standard of care, and their failure to do so
                                                               resulted in the death of her mother, Dionisia Dominguez
*7 We sustain the Home’s sole issue. We reverse the trial      Gomez. In support of her claim, Appellee provided the
court’s order and remand the cause to the trial court for      expert report of Dr. James E. Moulsdale,1 which opines, in
the limited purposes of determining the Home’s                 part, as follows:
reasonably incurred attorney’s fees and costs and entry of
an order dismissing with prejudice Flores’ claims against
the Home. TEX. CIV. PRAC. & REM.CODE ANN. §                      In reviewing the nursing home records, I found notes
74.351(b).                                                       stating that Ms. Gomez’s vital signs should be taken
                                                                 only once per week. The nursing home records further
                                                                 indicate that Ms. Gomez’s vital signs were, in fact, only
                                                                 taken once per week. Had her vital signs been taken
PIRTLE, J., dissenting.                                          more frequently, at a minimum of once per day, it is
                                                                 much more likely that this condition would have been
                                                                 found earlier and might have been treated in the
                                                                 nursing home without the necessity of hospitalization.
                                                                 More likely than not, the vital signs would have shown
                DISSENTING OPINION                               an increase in body temperature, an increased heart
                                                                 rate, an increased respiratory rate, a decrease in blood
PATRICK A. PIRTLE, Justice.                                      pressure, or any combination of the above, indicating a
*7 Respectfully disagreeing with my colleagues                   change in the patient’s medical condition which
concerning the application of the law to the undisputed          required further investigation. Because of the fact that
facts of this case, I dissent. By its opinion, the majority      her urinary infection was not discovered in a timely
finds the trial court misapplied the law concerning the          fashion, she required hospitalization and treatment in
application of the “objective good faith” standard to the        an intensive care unit. Because this is a life threatening
evaluation of an expert report under section 74.351(l) of        illness, delay in diagnosis is a serious breach of the
the Texas Civil Practices and Remedies Code, resulting in        standard of care.
a finding of abuse of discretion and the concomitant
judgment to reverse and remand. Because I find the trial            *8 I believe that this claim does have merit because
court did not act in an arbitrary or unreasonable manner            of the delay in the diagnosis of the urinary tract

               © 2015 Thomson Reuters. No claim to original U.S. Government Works.                                    5
W.B.M. Management Co. v. Flores, Not Reported in S.W.3d (2014)
Med & Med GD (CCH) P 304,923

      infection. In my training and experience as a             between the failure to closely monitor any change in her
      urologist, it is more likely than not that an             condition and harm suffered as a result of her declining
      undiagnosed urinary tract infection might develop         medical health.
      into urosepsis, especially in a debilitated patient who
      is unable to communicate any symptoms or changes          *9 Drawing insight from Mosely v. Mundine, 249 S.W.3d
      in their medical condition. I believe that this was the   775 (Tex.App.-Dallas 2008, no pet.), the majority opines
      case in the care rendered to Ms. Gomez.                   that the expert report in that case was found to be
      Furthermore, it is documented in the death certificate    sufficient because it gave the trial court a “factual basis to
      that the cause of death was sepsis secondary to           understand the change in the patient’s condition”—in that
      urinary tract infection.                                  case a change from a 1 cm nodule to a 6 cm mass over a
In the context of a claim based on a failure to timely          21 month period. Here, Dr. Moulsdale’s report is really no
diagnose Ms. Gomez’s medical condition, the report (1)          different in that it places the emphasis on the differential
provides a summary of the expert’s opinions regarding           diagnosis of Ms. Gomez’s condition from day to day (as
applicable standards of care, (2) relates the manner in         opposed to from week to week). The majority criticizes
which the care rendered failed to meet those standards,         Dr. Moulsdale’s report for failing to contain a statement
and (3) opines as to the causal connection between that         concerning Ms. Gomez’s vital signs at any specific point
failure and the injury, harm, or damages claimed. As            in time. In reaching this conclusion the majority
such, the report meets the statutory purpose of an expert       completely overlooks the fact that it doesn’t matter what
report because it (1) informs Appellant of the specific         her vital signs were at any particular moment because the
conduct Appellee has called into question and (2)               medical significance is the change, not the difference. Dr.
provides a basis for the trial court to conclude the claim      Moulsdale’s report indicates that it was the daily change
has merit. See Am. Transitional Care Ctrs. of Tex., Inc. v.     that would have, in all probability, alerted the Appellants
Palacios, 46 S.W.3d 873, 879 (Tex.2001).                        to the imminent need for more aggressive treatment of her
                                                                failing condition.
Appellant contends, and the majority agrees, the expert
report was “impermissibly speculative and conclusory” in        In another misinterpretation of Appellee’s cause of action
its attempt to describe, within the four corners of the         and the purpose of an expert report, the majority opines
report, the “causal relationship between the alleged breach     that the “report contains nothing to link [Dr. Moulsdale’s
... and the death of [Ms. Gomez].” The majority then            opinion that Ms. Gomez’s death was ‘sepsis secondary to
analyzes relevant case law to reach the conclusion that         urinary tract infection’] with his conclusion the
this particular report does not “link” Dr. Moulsdale’s          [Appellant’s] failure to check her vital signs daily in the
conclusions to the facts of this case.                          days before her hospitalization led to her septic condition
                                                                or her death some two weeks later.” (Emphasis in the
So, just what are the “facts” of this case? From the four       original.) Appellee does not contend that the failure to
corners of the report, we know that Ms. Gomez was               timely diagnose led to Ms. Gomez’s septic condition.
“extremely debilitated,” that she was “unable to care for       Rather, Appellee contends her worsening septic condition
herself,” that Appellant was aware of the fact that she had     (which would have been reflected in her daily vital signs
a “probable urinary tract infection,” and that in light of      and could have been treated earlier but for the delay in
that knowledge, Appellant chose to take her vital signs         diagnosing Ms. Gomez’s infection) led to injury, harm, or
only once per week. We also know the standard of care           other damages because it was not timely diagnosed and
applicable to this type of patient called for “careful          treated. Simply put, Dr. Moulsdale’s report establishes
monitoring,” which would specifically include taking her        that Ms. Gomez was harmed by Appellant’s breach of the
vital signs “a minimum of once per day,” and that the           appropriate standard of care.
purpose of that frequency of monitoring was “to detect
any changes in her condition.” We also know this                Contrary to the conclusion reached by the majority, I find
monitoring was “especially” called for in a debilitated         the facts of this case clearly provide a basis upon which
patient, like Ms. Gomez, because the patient was not            the trial judge could reasonably have concluded that there
otherwise able to alert the staff on her own. Finally, we       was merit to the Appellee’s claim. Accordingly, I would
know that within reasonable medical probability, “had her       affirm the decision of the trial court.
vital signs been taken more frequently ... it was much
more likely that [her] condition would have been found
earlier” and she might not have required hospitalization.
The fact that more careful monitoring would have alerted        Parallel Citations
the medical care providers to provide earlier, more
aggressive treatment, establishes a causal relationship         Med & Med GD (CCH) P 304,923

               © 2015 Thomson Reuters. No claim to original U.S. Government Works.                                      6
W.B.M. Management Co. v. Flores, Not Reported in S.W.3d (2014)
Med & Med GD (CCH) P 304,923



Footnotes
1     See TEX. CIV. PRAC. & REM.CODE ANN. § 51.014(a)(9) (West 2012).

2     Dr. Moulsdale is a board-certified urologist who has practiced in the field for over 34 years. He holds accreditation in a number
      of urological fields, and has published several articles. The Home does not challenge Moulsdale’s qualifications on appeal.
3     The date of Ms. Gomez’s death is not stated in Moulsdale’s report, but Flores’ brief states she died on January 24, 2011.

4     The statement is one of those added by the amended report.

1     Dr. Moulsdale is a board-certified urologist who has practiced in the field of urology for over 34 years. Dr. Moulsdale’s
      qualifications as an expert in this field are not challenged.




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
Wood v. Tice, 988 S.W.2d 829 (1999)




                                                               satisfied the statute with an expert’s deposition transcript.
                                                               Alternatively, Wood maintains the trial court abused its
                   988 S.W.2d 829
               Court of Appeals of Texas,                      discretion by denying him an extension of time to file an
                     San Antonio.                              expert report. Finding no error, we affirm.

             Neale WOOD, Appellant,
                        v.
  Diane TICE, D.D.S.; Barry Solomon, D.D.S.; and
                                                                                      Background
    Dental Centers of America, L.L.C., also doing
   business as Windsor Dental Center, Appellees.               On November 1, 1996, Wood sued Diane Tice, Andre
                                                               Smith, Barry Solomon, and Dental Centers of America,
       No. 04–98–00392–CV. | Feb. 17, 1999.
                                                               L.L.C. for negligent treatment of a chipped tooth. In
Patient sued dentists and dental clinic for malpractice.       March 1997, Wood took Dr. Smith’s deposition, which
The 57th Judicial District Court, Bexar County, Peter          was transcribed and distributed to Drs. Tice, Smith, and
Michael Curry, J., dismissed action, and patient appealed.     Solomon on April 17, 1997. Dental Centers did not
The Court of Appeals, Green, J., held that: (1) patient’s      receive a copy of the deposition.
failure to timely provide dental clinic with copy of
deposition warranted dismissal of clinic; (2) deposition       In January 1998, the defendants moved to dismiss the
testimony of one of dentists being sued failed to satisfy      case based on Wood’s failure to provide an expert’s
the Medical Liability Act’s requirement of an expert           report. See TEX.REV.CIV. STAT. ANN. art. 4590i, §
report; (3) finding that patient was not entitled to 30–day    13.01(d–e) (Vernon Supp.1998) (“Medical Liability
grace period in which to file expert report was supported      Act”). In response, Wood filed a motion for extension of
by evidence; and (4) patient was not entitled to new trial     time to file an expert report, which included an affidavit
in order to file expert report.                                indicating his belief that Dr. Smith’s deposition satisfied
                                                               the statute. On January 16, the trial court orally granted a
Affirmed.                                                      dismissal with prejudice. Its order, however, was not
                                                               signed until March 10.
*829 From the 57th Judicial District Court, Bexar County,
Texas Trial *830 Court No. 98–CI–03977 Honorable               On April 23, Wood moved for a new trial, arguing he did
Peter Michael Curry, Judge Presiding.1                         not learn about the signed order until April 15. See
                                                               TEX.R.APP. P. 304a(4–5). He also urged the court to
Attorneys and Law Firms                                        grant him an extension of time to file an expert report.
                                                               The trial court denied the motion for new trial, finding it
Randy Gathany, David W. Rogers, Law Offices of Dave            had no jurisdiction. The court also denied Wood’s motion
Rogers, Inc., San Antonio, for Appellant.                      to reconsider.2 Despite Wood’s lack of notice, he timely
                                                               perfected this appeal.
Todd A. Prins, Stanley E. Faye, Edward C. Mainz, Jr.,
Robert B. Biechlin, Jr., Thornton, Summers, Biechlin,
Dunham & Brown, L.C., San Antonio, for Appellee.

Before CATHERINE STONE, Justice, PAUL W.                             Compliance with the Medical Liability Act
GREEN, Justice, KAREN ANGELINI, Justice.
                                                               Wood claims he satisfied the Medical Liability Act with a
                                                               copy of Dr. Smith’s deposition. In contrast, the
                                                               defendants contend the deposition is too “generalized and
                                                               speculative” to satisfy the statute’s requirement of an
                                                               expert report. We agree with the defendants.
                        OPINION
                                                               We review the trial court’s dismissal order with the abuse
PAUL W. GREEN, Justice.                                        of discretion standard. See Pony Express Courier Corp. v.
                                                               Morris, 921 S.W.2d 817, 820 (Tex.App.—San Antonio
Neale Wood appeals an order dismissing his suit for
                                                               1996, no writ). In applying this standard, we defer to the
failing to file an expert report under the Medical Liability
                                                               trial court’s factual determinations but review questions
and Insurance Improvement Act. Wood contends he
                                                               of law de novo. Id.; see also Johnson v. City of Fort
               © 2015 Thomson Reuters. No claim to original U.S. Government Works.                                    1
Wood v. Tice, 988 S.W.2d 829 (1999)



Worth, 774 S.W.2d 653, 656 (Tex.1989) (describing                    Q. So when a patient comes in with any type of a
statutory construction as question of law).                          complaint, you should take an x-ray, no matter what?
[1]                                                                  A. Yes.
    The legislature enacted the Medical Liability Act to
curtail frivolous claims against physicians and other
health care providers. Horsley–Layman v. Angeles, 968                Q. Okay. And would it be below the minimum
S.W.2d 533, 537 (Tex.App.—Texarkana 1998, no pet.).                  accepted standard of care to fail to take that x-ray?
To that end, section 13.01 requires a plaintiff to provide
each defendant with one or more expert reports relating to           A. Yes.
liability and causation. See TEX.REV.CIV. STAT. ANN.
                                                                     ...
art. 4590i, § 13.01(i–j) (Vernon Supp.1998); HOUSE
COMM. ON CIVIL PRACTICES, BILL ANALYSIS,                             Q. If it turns out that there was an x-ray that was
Tex. H.B. 971, 74th Leg., R.S. (1995). The expert report             taken, and for some reason was not shown in here,
must be “furnish[ed],” together with a curriculum vitae,             and that this x-ray appeared somewhere in the future
no later than 180 days after suit is filed. TEX.REV.CIV.             and it showed that there had been an infection in it,
STAT. ANN. art. 4590i, § 13.01(d) (Vernon Supp.1998).                would it have been—infection in Tooth No. 12,
If the plaintiff fails to timely provide the report, the trial       would it have been below the minimum standard of
court “shall, on *831 the motion of the affected physician           care to put this miracle mix on there anyway? ...
or health care provider, enter an order” dismissing the suit
with prejudice. Id. § 13.01(e).3                                     A. Yes, sir.
[2]
   The statute defines “expert report” as a “written report      The deposition also includes the following information
by an expert that provides a fair summary of the expert’s        about Dr. Tice’s potential liability:
opinions as of the date of the report regarding applicable
standards of care, the manner in which the care rendered             Q. Would you, going back to the reference to the
by the physician or health care provider failed to meet the          reasonably prudent dentist, would you consider that
standards, and the causal relationship between that failure          it would be below a minimum standard of care for a
and the injury, harm, or damages claimed.” Id. §                     dentist to start a root canal that soon after the
13.01(r)(6). The report must specifically refer to the               procedures that are described for November 5th of
defendant and discuss how that defendant breached the                1994?
applicable standard of care. See Horsley–Layman, 968
S.W.2d at 535; cf. TEX.REV.CIV. STAT. ANN. art.                      ...
4590i, § 13.01(l ) (Vernon Supp.1998) (requiring good
faith effort to comply with the definition of expert report).        A. I don’t think any reasonable and prudent dentist
                                                                     would.
[3]
   Wood filed suit on November 1, 1996. His expert’s
report was due April 30, 1997. On April 17, the individual       At the dismissal hearing, Wood claimed the following
defendants received copies of Dr. Smith’s deposition, but        excerpt discussed Dr. Solomon’s liability:
Wood neither provided Dental Centers with a copy nor
did he indicate he would rely on the deposition as an                Q. When you—so what type of guidelines were
expert report. Because Dental Centers is a health care               established with them for the means whereby you did
provider entitled to receive a report, the trial court did not       various procedures?
abuse its discretion in dismissing Wood’s claim against
that defendant. See TEX.REV.CIV. STAT. ANN. art.                     A. There were really no guidelines except for self-
4590i, § 1.03(a)(3) (Vernon Supp.1998) (defining health              imposed guidelines.
care provider as a professional association providing
                                                                     Q. So if a dentist chose to on an individual basis, was
dental services); see also id. § 13.01(d–e).
                                                                     there anybody overseeing that dentist [sic]—the
[4]                                                                  quality of that dentist’s work?
   To determine whether the trial court properly dismissed
the remaining defendants, we must evaluate whether Dr.               A. No, sir.
Smith’s deposition satisfies the definition of an “expert
report.” At the dismissal hearing, Wood argued the               The deposition testimony fails to mention the defendants
following excerpt satisfied the definition by establishing       by name, fails to specify how *832 the defendants
the liability of Dr. Tice:                                       breached the standard of care, and fails to demonstrate
                                                                 causation and damages. Furthermore, there is no
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Wood v. Tice, 988 S.W.2d 829 (1999)



indication the deposition included a copy of Dr. Smith’s                    Craddock v. Sunshine Bus Lines, 134 Tex. 388, 133
curriculum vitae. Therefore, as a matter of law, Dr.                        S.W.2d 124, 126 (1939)).
Smith’s deposition does not satisfy the Medical Liability
Act’s requirement of an expert report. Accordingly, the                     Wood filed his motion for extension of time on the day
trial court did not abuse its discretion in dismissing                      the trial court heard the defendants’ motion to dismiss. In
Wood’s claims against the remaining defendants.                             his motion, Wood alleged “he had a good faith belief that
                                                                            the deposition constituted an expert report.” Responding
                                                                            to this assertion during the hearing, counsel David Coates
                                                                            said he discussed the absence of an expert report with
                                                                            plaintiff’s counsel, Randy Gathany, in December 1997.
                          Grace Period                                      According to Coates, Gathany never indicated reliance on
[5]                                                                         Dr. Smith’s deposition until the day of the hearing. In
   Wood argues the trial court erred by denying him a                       contrast, Gathany said he “believe[d]” he “mentioned the
thirty-day grace period under section 13.01(g) of the                       deposition.”5 Because the evidence of Wood’s reliance
Medical Liability Act. We disagree.4                                        was conflicting, we cannot say the trial court abused its
                                                                            discretion in denying Wood an extension of time. See
We review the trial court’s decision with the abuse of                      Estrello, 965 S.W.2d at 758 (finding no abuse of
discretion standard. Estrello, 965 S.W.2d at 758. We                        discretion when evidence conflicted). Contra Horsley–
further note the trial court does not abuse its discretion                  Layman, 968 S.W.2d at 536–37 (finding that statement of
when it bases its decision on conflicting evidence. Id.                     belief was not controverted).
[6]
      Section 13.01(g) provides:                                            [7]
                                                                                In his motion for new trial, Wood also requested an
                                                                            extension of time to file an expert report. He contends the
               Notwithstanding        any      other                        trial court erred in finding it had no jurisdiction over the
               provision of this section, if a                              motion. The trial court’s ruling, however, is irrelevant
               claimant has failed to comply with                           because the motion for new trial was unnecessary in light
               a     deadline     established      by                       of Wood’s previous request for an extension of time. Cf.
               Subsection (d) of this section and                           TEX.REV.CIV. STAT. ANN. art. 4590i, § 13.01(g)
               after hearing the court finds that the                       (Vernon Supp.1998) (noting section 13.01(g) may be
               failure of the claimant or the                               invoked before dismissal under section 13.01(e));
               claimant’s attorney was not                                  McClure, 959 S.W.2d at 682 (demonstrating section
               intentional or the result of                                 13.01(g) may be invoked after dismissal under section
               conscious indifference but was the                           13.01(e)). Additionally, Wood’s motion for new trial
               result of an accident or mistake, the                        offered no new evidence regarding his lack of intentional
               court shall grant a grace period of                          or conscious indifference. Instead, it was limited to new
               30 days to permit the claimant to                            allegations that *833 he did not timely receive notice of
               comply with that subsection. A                               the dismissal order.6 Despite this lack of notice, Wood
               motion by a claimant for relief                              timely perfected his appeal. Thus, Wood’s complaint is
               under this subsection shall be                               without merit.
               considered timely if it is filed
               before any hearing on a motion by
               a defendant under Subsection (e) of
               this section.
                                                                                                   Conclusion
TEX.REV.CIV. STAT. ANN. art. 4590i, § 13.01(g)
(Vernon Supp.1998) (emphasis added). Proof of accident                      We affirm the trial court’s dismissal order.
or mistake must establish “some” excuse, not necessarily
a “good” excuse. McClure v. Landis, 959 S.W.2d 679,
681 (Tex.App.—Austin 1997, pet. denied) (applying

Footnotes
1         The Honorable Peter Michael Curry signed the appealable order, but the Honorable Martha Tanner presided at the hearing.

2         Technically, the motions should have been dismissed for lack of jurisdiction.

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Wood v. Tice, 988 S.W.2d 829 (1999)



3     The Medical Liability Act also permits dismissal if the plaintiff fails to “file” either a cash deposit, cost bond, or expert report
      90 days after suit is filed. TEX.REV.CIV. STAT. ANN. art. 4590i, § 13.01(a–b) (Vernon Supp.1998). This provision was not
      raised by the defendants in the trial court.
4     This case does not involve any other extensions of time permitted by the Medical Liability Act. See, e.g., TEX.REV.CIV.
      STAT. ANN. art. 4590i, § 13.01(h) (Vernon Supp.1998) (extending 180–day period by agreement); id. § 13.01(f) (extending
      180–day period by court order); cf. Estrello v. Elboar, 965 S.W.2d 754, 758 (Tex.App.—Fort Worth 1998, no pet.) (suggesting
      a § 13.01(f) extension must be requested by the plaintiff and granted by the court within 30 days of the date the 180–day period
      ends).
5     Neither attorney objected to the unsworn testimony. See Banda v. Garcia, 955 S.W.2d 270, 272 (Tex.1997) (finding unsworn
      attorney testimony to be evidence in the absence of an objection).
6     In contrast, the defendants offered additional evidence that Gathany told Coates in their December conversation that “the courts
      never dismiss a case for failing to file an expert’s report.”




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.                                                           4
