Opinion issued December 20, 2016.




                                      In The

                               Court of Appeals
                                      For The

                          First District of Texas
                             ————————————
                               NO. 01-16-00142-CV
                            ———————————
         GERIATRIC ASSOCIATES OF AMERICA, P.A., Appellant
                                         V.
                           STEPHEN ALEX, Appellee


                    On Appeal from the 129th District Court
                             Harris County, Texas
                       Trial Court Case No. 2014-63269


                        MEMORANDUM OPINION

      In this interlocutory appeal, appellant Geriatric Associates of America, P.A.

is challenging the trial court’s order denying its motion to dismiss the healthcare

liability claims filed against it by appellee Stephen Alex. GAA argues that the trial

court abused its discretion by denying the motion to dismiss because Alex’s expert’s
report does not comply with the requirements of Chapter 74 of the Civil Practice &

Remedies Code. See TEX. CIV. PRAC. & REM. CODE ANN. § 74.351 (West Supp.

2016), § 74.402 (West 2011). We affirm.1

                                      Background

      Alex underwent cardiovascular surgery at Texas Methodist Hospital in San

Antonio, Texas, in March 2013. After his surgery, Alex was referred to SSC

Kerrville Hilltop Village Operating Company LLC a/k/a Hilltop Village Nursing

and Rehabilitation Center for a post-surgical rehabilitation program in order to

recover from the surgery before eventually returning home. Alex’s physicians at

Methodist noted that sternal precautions were necessary for his rehabilitation

because he had a large incision down his chest from the surgery which had not fully

healed.




1
      The parties disagree as to whether GAA, individually, can challenge the sufficiency
      of the report as to its employee, Dr. Milton Shaw, when Dr. Shaw is not challenging
      the sufficiency of the report. Although we have not found any legal authority that
      expressly addresses this point, we find the Texas Supreme Court’s opinion in TTHR
      Ltd. Partnership v. Moreno, 401 S.W.3d 41, 45 (Tex. 2013) to be instructive. In
      Moreno, the plaintiff asserted that the hospital was liable because of its own direct
      negligence, as well as its vicarious liability for the negligence of its nurses and two
      of its doctors. Id. at 43. Although the doctors were defendants in the suit, they were
      not parties to the appeal. Nevertheless, the Supreme Court considered the hospital’s
      challenge to the sufficiency of the report with respect to the vicarious liability claim
      and held that because the reports were adequate to support the plaintiff’s claims
      against the doctors, “the trial court did not abuse its discretion by finding [the
      plaintiff]’s reports adequate as to the claim that [the hospital] is vicariously liable
      for actions of the doctors.” Id. at 44.


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      Alex was admitted to Hilltop on March 22, 2013, to begin his rehabilitation

program. Milton Shaw, M.D., Hilltop’s medical director, was Alex’s attending

physician at Hilltop and supervised his treatment. Eight or nine days after Alex’s

surgery, members of Hilltop’s staff instructed Alex to support his full weight on the

parallel bars while walking on a treadmill. While attempting to perform this exercise,

Alex experienced “a severe and sudden pain in his sternum.” He was transported to

a nearby hospital several hours later, where he was diagnosed with sternal

dehiscence. Alex was then transferred back to Methodist where he underwent

surgery to repair his sternum the next day.

      Alex subsequently filed suit against GAA, Hilltop, and Dr. Shaw. In his

petition, Alex alleged that GAA was liable for its own negligence with respect to the

care, services, treatment, and supervision of treatment provided to him, as well as

vicariously liable for the negligent acts or omissions of its employees and agents.

Alex served GAA with a report prepared by his expert, Janice K. Smith, MD, MPH.

GAA objected to the sufficiency of the report and filed a motion to dismiss pursuant

to Civil Practice and Remedies Code section 74.351. TEX. CIV. PRAC. & REM. CODE

ANN. § 74.351. After a hearing, the trial court denied GAA’s motion to dismiss.

      This interlocutory appeal followed.




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                                         Discussion

      In four issues, GAA argues that the trial court abused its discretion when it

denied the motion to dismiss because Dr. Smith’s expert report does not satisfy the

requirements of Chapter 74 with respect to Alex’s direct liability claim against GAA

or his vicarious liability claim against GAA that is based on Dr. Shaw’s conduct.

Specifically, GAA contends that Dr. Smith is not qualified to opine as to GAA’s

standard of care or give legal opinions with respect to Alex’s direct liability claim.

GAA further contends that Dr. Smith’s opinions as to the applicable standard of care,

any breaches thereof, and causation are conclusory, with respect to both Alex’s

direct and vicarious liability claims.

A.    Chapter 74 Expert Reports

      Section 74.351 of the Civil Practice and Remedies Code serves as a

“gate-keeper” through which no medical negligence causes of action may proceed

until the claimant has made a good-faith effort to demonstrate that at least one expert

believes that a breach of the applicable standard of care caused the claimed injury.

See TEX. CIV. PRAC. & REM. CODE § 74.351; Murphy v. Russell, 167 S.W.3d 835,

838 (Tex. 2005). To constitute a good faith effort, the report must provide enough

information to fulfill two purposes: (1) inform the defendant of the specific conduct

that the plaintiff has called into question and (2) provide a basis for the trial court to

conclude that the claim has merit. See Am. Transitional Care Ctrs. of Tex., Inc. v.



                                             4
Palacios, 46 S.W.3d 873, 878–79 (Tex. 2001). A report that merely states the

expert’s conclusions as to the three statutory elements of standard of care, breach,

and causation does not fulfill these two purposes. Id. at 879. The expert must explain

the basis for his statements and link his conclusions to the facts. Bowie Mem’l Hosp.

v. Wright, 79 S.W.3d 48, 52 (Tex. 2002) (citing Earle v. Ratliff, 998 S.W.2d 882,

890 (Tex. 1999)). The trial court may not draw any inferences, but must rely

exclusively on the information contained within the four comers of the report. See

Palacios, 46 S.W.3d at 878.

      When a healthcare liability claim involves a vicarious liability theory, an

expert report that adequately implicates the actions of that party’s agents or

employees is sufficient to implicate the party under the vicarious theory. Gardner v.

U.S. Imaging, Inc., 274 S.W.3d 669, 671–72 (Tex. 2008) (per curiam). And, if any

liability theory has been adequately covered, the entire case may proceed. Certified

EMS, Inc. v. Potts, 392 S.W.3d 625, 632 (Tex. 2013).

B.    Standard of Review

      We review a trial court’s ruling on a motion to dismiss for an abuse of

discretion. Palacios, 46 S.W.3d at 875. A trial court abuses its discretion when it

acts in an arbitrary or unreasonable manner or without reference to any guiding rules

or principles. Downer v. Aquamarine Operators, Inc., 701 S.W.2d 238, 241–42

(Tex. 1985). However, a trial court has no discretion in determining what the law is



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or in applying the law to the facts. Walker v. Packer, 827 S.W.2d 833, 840 (Tex.

1992) (orig. proceeding).

C.    GAA’s Vicarious Liability Based on Dr. Shaw’s Conduct

      Alex’s vicarious liability claim against GAA is based on Dr. Shaw’s conduct.

GAA argues that Dr. Smith’s report does not comply with Chapter 74 because the

report does not provide specific information as to the applicable standards of care,

how Dr. Shaw allegedly breached those standards, and how such breaches were a

substantial factor in Alex’s injuries, and is, therefore, conclusory.

      In her report, Dr. Smith identified Dr. Shaw as an employee of GAA and

stated that Dr. Shaw was Hilltop’s Medical Director, as well as Alex’s

admitting/supervising physician while he was rehabilitating at Hilltop. She further

stated that the “prevailing standard of care” for “physicians serving in a medical

supervisory role in rehabilitation centers” makes that supervisory physician

“responsible for approving the treatment protocols to be followed by the facility’s

medical support staff,” and also “responsible for insuring that those protocols are

followed faithfully by the staff.”2

      Dr. Smith stated that because Alex exhibited at least two risk factors for

sternal dehiscence (i.e., morbid obesity and a history of poorly controlled diabetes



2
      In light of our disposition, we need not address the other standards of care and Dr.
      Shaw’s alleged breaches of those standards that Dr. Smith identified in her report.

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mellitus), the standard of care also required that “sternal precautions be observed

during the first 4 to 12 weeks, following surgery” in order to avoid undue stress to

his sternum.

      The report further stated that although “Hilltop was aware of the need to

follow sternal precautions in directing Mr. Alex’s physical rehabilitation,” Hilltop’s

nursing staff directed Alex, a morbidly obese patient, “to perform an exercise that

involved supporting his entire weight on parallel bars while walking on a treadmill”

only eight or nine days after his surgery. According to Dr. Smith, this exercise

involved three activities that are specifically prohibited for patients like Alex who

require sternal precautions (i.e., lifting, pushing, or pulling more than ten pounds,

full weight-bearing through upper extremities, and activities that cause excessive

Valsalva maneuver). Dr. Smith further explained that “it was during this period of

prohibited exercise that Mr. Alex exhibited a severe and sudden pain in his sternum,

clear evidence of sternal dehiscence caused by the mechanical stress to his chest

produced by the exercise.”

      According to Dr. Smith, “no copies of Hilltop’s post-surgical exercise

protocols were provided in the medical records [she] reviewed, and without such

review it is impossible to determine whether those protocols were inadequate to

protect at-risk patients such as Mr. Alex, or whether the correct protocols existed

and were simply ignored by the staff at Hilltop.” Dr. Smith opined that “[e]ither case



                                          7
would represent a failure to meet the standard of care for treating such patients, and

the concurrent failure of Dr. Shaw to insure that either the correct protocols were in

place or that the medical staff was in fact following said protocols.” Dr. Smith further

stated that:

       Because of Dr. Shaw’s systematic failure to provide oversight over
       [Alex’s] treatment and insure that the treatment plan being followed for
       [Alex] was both safe and effective, Hilltop staff under Dr. Shaw’s
       supervision both as Medical Director for Hilltop and
       admitting/supervising physician for [Alex] engaged [Alex] in
       rehabilitative exercises that were specifically prohibited for patients
       with “sternal precautions” such as [Alex], causing [Alex]’s sternum
       sutures to break apart. . . . Dr. Shaw is therefore directly and vicariously
       responsible to a high degree of medical certainty for . . . the initial injury
       to [Alex]’s sternum . . . .

       Dr. Smith’s report stated that Dr. Shaw had a duty to Alex to insure that the

correct “safety protocols regarding post-surgery exercise” for patients like Alex were

in place, and that Hilltop’s medical staff were following said protocols. Dr. Smith

inferred from the lack of post-surgical exercise protocols in the medical records

provided by GAA that the protocols in place at the time of Alex’s injury were either

inadequate or that “the correct protocols existed and were simply ignored by the staff

at Hilltop.” She also explained that the correct protocols for a patient with sternal

precautions would have prohibited Alex from attempting the upper-body exercise

that Hilltop’s medical staff directed him to perform only a week after his surgery.

According to Dr. Smith, this exercise, prohibited by the appropriate protocols,

placed undue stress on Alex’s sternum, and caused Alex’s sternal dehiscence.


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      The report provided GAA and Dr. Shaw with a fair summary of Dr. Smith’s

opinions concerning the applicable standard of care and how Dr. Shaw failed to meet

that standard. See Palacios, 46 S.W.3d at 880. The report also informed GAA and

Dr. Shaw of the specific conduct that Alex called into question, i.e., “implement[ing]

(or allow[ing] to be implemented under his supervision) an upper-body exercise

program, including the use of parallel bars, on a morbidly obese patient who had just

undergone cardiac surgery and was instructed to take sternal precautions.” Dr.

Smith’s report is sufficient with regard to standard of care and breach. See id. at 879.

Dr. Smith’s report also explained that it was this conduct by Dr. Shaw that caused

Hilltop’s staff to direct Alex to perform an exercise that, not only would have been

prohibited by the proper protocols, but also directly caused Alex’s sternal

dehiscence. Thus, Dr. Smith’s report provided a factual basis for her statements and

she linked those factual statements to her conclusion that Dr. Shaw’s specific actions

or inaction ultimately caused Alex’s injury. See Wright, 79 S.W.3d at 52.

      GAA also challenges the accuracy of Dr. Smith’s opinions with respect to the

applicable standard of care. According to GAA, the “nebulous” standard of care

articulated by Dr. Smith “is an impossible standard for anyone to meet. In short, this

is a legal standard (and a dubious one at that) masquerading as a standard of care.”

Whether Dr. Smith’s opinions regarding the applicable standard of care are correct,

however, is an issue for summary judgment, not a motion to dismiss under Chapter



                                           9
74. See Methodist Hosp. v. Shepherd–Sherman, 296 S.W.3d 193, 199 n.2 (Tex.

App.—Houston [14th Dist.] 2009, no pet.) (citing Sanjar v. Turner, 252 S.W.3d 460,

467 n.6 (Tex. App.—Houston [14th Dist.] 2008, no pet.) (concluding that doctor’s

arguments that he did not owe duty to patient as described in expert report was issue

for summary judgment rather than motion to dismiss) and Wissa v. Voosen, 243

S.W.3d 165, 169–70 (Tex. App.—San Antonio 2007, pet. denied) (same)).

      Citing to Methodist Hospital of Dallas v. King, GAA also argues that Dr.

Smith’s report is deficient with respect to causation because Dr. Smith simply

concludes, without explanation, that Dr. Shaw’s failure to train and ensure that

proper “protocols” are followed resulted in Alex’s injuries. 365 S.W.3d 847 (Tex.

App.—Dallas 2012, no pet.). King, however, is distinguishable because in that case,

the court noted that the plaintiff, not the expert, “infer[red] a breach by Methodist

based on the occurrence of King’s fall, gaps in the medical records, and breaches by

Methodist’s personnel.” 365 S.W.3d at 851. The court further noted that “[a]lthough

in some instances it may be permissible for an expert to make inferences in a report

based on medical history or other facts, [the expert]’s report does not make such

inferences, and we are precluded from guessing as to what she meant or intended

with respect to how Methodist’s alleged breaches caused King’s fall.” Id. (citing

Palacios, 46 S.W.3d at 878). Here, Alex’s expert, Dr. Smith, drew reasonable

inferences about Dr. Shaw’s breaches from gaps in the medical records. She also



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explained how each of those breaches led to Alex’s sternal dehiscence. This is

sufficient under section 74.351. See Patel v. Williams, 237 S.W.3d 901, 905–06

(Tex. App.—Houston [14th Dist.] 2007, no pet.) (holding expert report sufficiently

set forth causation when it presented chain of events beginning with contraindicated

prescription and ending with patient’s death).

      Because Dr. Smith’s report satisfies Chapter 74’s requirements with respect

to Alex’s negligence claim against Dr. Shaw, the trial court did not abuse its

discretion by finding the report adequate as to Alex’s claim that GAA is vicariously

liable for Dr. Shaw’s actions. TTHR Ltd. Partnership v. Moreno, 401 S.W.3d 41, 44

(Tex. 2013). Furthermore, because the trial court did not abuse its discretion by

finding the report adequate as to Alex’s claim that GAA is vicariously liable for Dr.

Shaw’s action, Alex’s suit against GAA can continue in its entirety and we need not

consider whether the report is also sufficient with respect to Alex’s direct liability

claim against GAA. See Potts, 392 S.W.3d at 632.

      We overrule GAA’s first, second, third, and fourth issues.

                                    Conclusion

      We affirm the trial court’s judgment.



                                              Russell Lloyd
                                              Justice

Panel consists of Justices Bland, Massengale, and Lloyd.


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