                          COURT OF APPEALS
                           SECOND DISTRICT OF TEXAS
                                FORT WORTH


                                  NO. 2-09-379-CV


DOROTHY MENEFEE, INDIVIDUALLY                                          APPELLANTS
AND AS NEXT OF FRIEND OF
EVOLLA TUTT, AND EVOLLA TUTT

                                          V.

ALLAN B. OHMAN, JR., M.D.                                                 APPELLEE

                                      ------------

         FROM THE 67TH DISTRICT COURT OF TARRANT COUNTY

                                      ------------

                                     OPINION

                                      ------------

      This case involves health care liability claims against numerous defendants

arising out of the diagnosis and treatment of appellant Evolla Tutt. In a single issue,

appellants Tutt and her mother, Dorothy Menefee, contend that the trial court abused

its discretion by granting appellee Allan B. Ohman, Jr., M.D.’s motion to dismiss their

claims against him for failure to file an adequate expert report. See Tex. Civ. Prac.

& Rem. Code Ann. § 74.351(b) (Vernon Supp. 2009). Because we hold that the trial

court abused its discretion by determining that appellants’ expert is not qualified to
opine as to the standard of care applicable to Dr. Ohman and by also concluding that

the expert report is inadequate, we reverse and remand.

                                Background Facts

      Appellants sued Dr. Ohman and numerous others on February 24, 2009.

Appellants alleged that on February 25, 2007, when Tutt was sixteen, she was

admitted to Millwood Hospital and diagnosed with “major depressive disorder with

psychosis.” W hile at Millwood, she was given “several psychiatric medications,

including Seroquel, Concerta, Zoloft and Haldol, as well as Benadryl and Ativan.”

After becoming “acutely confused” and falling in her room, Tutt was transported to

Arlington Memorial Hospital. W hile at Arlington Memorial, Menefee told the staff that

her daughter had changed significantly while at Millwood—when she left Tutt there

she was “alert, verbal and independent”—but at Arlington Memorial she was “not

making eye contact . . . drooling . . . non-verbal. . . breathing . . . but . . . not

communicating. Her whole body [was] shaking (Not seizure-like violently shaking,

but all over trembling to the point of vibrating the wheelchair.).” Because Menefee

thought her daughter’s condition was deteriorating while waiting at Arlington

Memorial, she drove her daughter to North Hills Hospital that same day.

      Appellants allege that three doctors saw Tutt on March 1, 2007 at North Hills

and that Dr. Ohman examined her on March 2, noting, “I am not aware of any

pediatric syndrome that would explain this situation. I guess that she is reacting to

her medications that were given to her and that she will probably continue to be in


                                          2
this state until the medications wear off.” W hile at North Hills, Tutt suffered seizures

and was placed on a ventilator. Appellants allege that she suffered “substantial

brain damage and permanent, debilitating physical and mental impairment that she

continues to suffer in the present.”

      As to Dr. Ohman, appellants alleged that he owed Tutt “in an acute care

setting the duty of immediate and sufficient medical response to her condition in

order to prevent brain damage.” They further alleged that he “breached his standard

of care by failing to immediately prescribe prophylactic anticonvulsants in sufficient

dosages to prevent further seizures, given the history of the patient upon admission.”

      Appellants timely served an expert report from Dr. J. Boswell Tabler, Jr. on Dr.

Ohman, who filed combined objections to the sufficiency of the report and a motion

to dismiss. See id. Dr. Ohman objected to Dr. Tabler’s qualifications to provide an

opinion claiming that Dr. Tabler, a psychiatrist, did not explain how he has

knowledge of the applicable standards of care as to Dr. Ohman, a consulting

pediatrician. Dr. Ohman also objected that Dr. Tabler failed to set forth the standard

of care applicable to a pediatrician. Dr. Ohman further objected that Dr. Tabler’s

causation statements are conclusory.         The trial court sustained Dr. Ohman’s

objections, granted the motion to dismiss, and dismissed the claims against Dr.

Ohman with prejudice.1



      1
      Although appellants had requested a thirty-day extension of time to file an
amended report, the trial court denied this request.

                                           3
                                Standard of Review

       A trial court’s decision on a motion to dismiss under section 74.351 is subject

to an abuse of discretion standard. See, e.g., Am. Transitional Care Ctrs. of Tex.,

Inc. v. Palacios, 46 S.W .3d 873, 875 (Tex. 2001); Craig v. Dearbonne, 259 S.W .3d

308, 310 (Tex. App.—Beaumont 2008, no pet.); San Jacinto Methodist Hosp. v.

Bennett, 256 S.W .3d 806, 811 (Tex. App.—Houston [14th Dist.] 2008, no pet.); Lal

v. Harris Methodist Fort Worth, 230 S.W .3d 468, 471 (Tex. App.—Fort W orth 2007,

no pet.). Additionally, a trial court’s decision on whether a physician is qualified to

offer an expert opinion in a health care liability claim is reviewed under an abuse of

discretion standard. See Mem’l Hermann Healthcare Sys. v. Burrell, 230 S.W .3d

755, 757 (Tex. App.—Houston [14th Dist.] 2007, no pet.).

       To determine whether a trial court abused its discretion, we must decide

whether the trial court acted without reference to any guiding rules or principles; in

other words, we must decide whether the act was arbitrary or unreasonable.

Downer v. Aquamarine Operators, Inc., 701 S.W .2d 238, 241– 42 (Tex. 1985), cert.

denied, 476 U.S. 1159 (1986). Merely because a trial court may decide a matter

within its discretion in a different manner than an appellate court would in a similar

circumstance does not demonstrate that an abuse of discretion has occurred. Id. at

242.   A trial court does not abuse its discretion if it commits a mere error in

judgment. See E.I. du Pont de Nemours & Co. v. Robinson, 923 S.W .2d 549, 558

(Tex. 1995).


                                          4
                           Expert Report Requirements

       In a health care liability claim, a claimant must serve on each defendant an

expert report that addresses standard of care, liability, and causation no later than

the 120th day after the claim is filed. Tex. Civ. Prac. & Rem. Code Ann. § 74.351(a),

(j); Barber v. Mercer, 303 S.W .3d 786, 790 (Tex. App.—Fort W orth 2009, no pet.).

If an expert report has not been served on a defendant within the 120-day period,

then on the motion of the affected defendant, the trial court must dismiss the claim

with prejudice and award the defendant reasonable attorney’s fees and costs. Tex.

Civ. Prac. & Rem. Code Ann. § 74.351(b); Barber, 303 S.W .3d at 790. A report “has

not been served” under the statute when it has been physically served but it is found

deficient by the trial court. Lewis v. Funderburk, 253 S.W .3d 204, 207–08 (Tex.

2008); Barber, 303 S.W .3d at 790–91. W hen no report has been served because

the report that was served was found to be deficient, the trial court has discretion to

grant one thirty-day extension to allow the claimant the opportunity to cure the

deficiency. Tex. Civ. Prac. & Rem. Code Ann. § 74.351(c); Barber, 303 S.W .3d at

791.

       A report is deficient (therefore subjecting a claim to dismissal) when it “does

not represent an objective good faith effort to comply with the definition of an expert

report” in the statute. Tex. Civ. Prac. & Rem. Code Ann. § 74.351(l); Barber, 303

S.W .3d at 791. W hile the expert report “need not marshal all the plaintiff’s proof,”

Palacios, 46 S.W .3d at 878, it must provide a fair summary of the expert’s opinions


                                          5
as to the “applicable standards of care, the manner in which the care rendered by

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

relationship between that failure and the injury, harm, or damages claimed.” Tex.

Civ. Prac. & Rem. Code Ann. § 74.351(r)(6); Barber, 303 S.W .3d at 791.

       To qualify as a good faith effort, the report must “discuss the standard of care,

breach, and causation with sufficient specificity to inform the defendant of the

conduct the plaintiff has called into question and to provide a basis for the trial court

to conclude that the claims have merit.” Palacios, 46 S.W .3d at 875; Barber, 303

S.W .3d at 791. A report does not fulfill this requirement if it merely states the

expert’s conclusions or if it omits any of the statutory requirements. Palacios, 46

S.W .3d at 879; Barber, 303 S.W .3d at 791. The information in the report “does not

have   to   meet   the   same    requirements     as   the   evidence    offered   in   a

summary-judgment proceeding or at trial.” Palacios, 46 S.W .3d at 879; Barber, 303

S.W .3d at 791. W hen reviewing the adequacy of a report, the only information

relevant to the inquiry is the information contained within the four corners of the

document alone. Palacios, 46 S.W .3d at 878; Barber, 303 S.W .3d at 791; see Bowie

Mem’l Hosp. v. Wright, 79 S.W .3d 48, 52 (Tex. 2002). 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. Barber, 303 S.W .3d at 791; see Austin Heart, P.A.

v. Webb, 228 S.W .3d 276, 279 (Tex. App.—Austin 2007, no pet.) (citing Bowie

Mem’l Hosp., 79 S.W .3d at 53).


                                           6
                         Qualifications of Expert Witness

      Appellants contend that Dr. Tabler, a psychiatrist, is qualified to opine as an

expert regarding the standard of care applicable to Dr. Ohman, a pediatrician

consulting in the emergency room.

      To be an “expert” on the departure from a physician’s standard of care, a

person must be a physician who

      (1) is practicing medicine at the time such testimony is given or was
      practicing medicine at the time the claim arose;

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

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

Tex. Civ. Prac. & Rem. Code Ann. § 74.351(r)(5)(A), § 74.401(a) (Vernon 2005). In

determining whether a physician is qualified on the basis of training or experience,

courts must consider whether the physician who completed the report (1) is board

certified or has other substantial training or experience in an area of medical practice

relevant to the claim, and (2) is actively practicing medicine in rendering medical

care services relevant to the claim. Id. § 74.401(c). In other words,

      there is no validity, if there ever was, to the notion that every licensed
      medical doctor should be automatically qualified to testify as an expert
      on every medical question. . . . [T]he proponent of the testimony has
      the burden to show that the expert possesses special knowledge as to
      the very matter on which he proposes to give an opinion.




                                           7
Ehrlich v. Miles, 144 S.W .3d 620, 625 (Tex. App.—Fort W orth 2004, pet. denied)

(quoting Broders v. Heise, 924 S.W .2d 148, 152–53 (Tex. 1996)); see Barber, 303

S.W .3d at 791–92. For this reason, the offered report (along with the physician’s

curriculum vitae) must generally demonstrate that the expert has “knowledge, skill,

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

would qualify the expert to give an opinion on that particular subject.” Ehrlich, 144

S.W .3d at 625 (quoting Roberts v. Williamson, 111 S.W .3d 113, 121 (Tex. 2003));

see Tex. R. Evid. 702; Barber, 303 S.W .3d at 792.

      However, “there are certain standards of medical care that apply to multiple

schools of practice and any medical doctor.” Blan v. Ali, 7 S.W .3d 741, 746 (Tex.

App.—Houston [14th Dist.] 1999, no pet.). If the subject matter is common to and

equally recognized and developed in all fields of practice, any physician familiar with

the subject may testify as to the standard of care. Broders, 924 S.W .2d at 152;

Barber, 303 S.W .3d at 72 (holding that anesthesiologist who had participated in

hundreds of cardiothoracic surgeries could testify to proper padding and positioning

techniques for which a general surgeon should have knowledge). Therefore, a

physician “who is not of the same school of medicine [as the defendant] . . . is

competent to testify if he has practical knowledge of what is usually and customarily

done by a practitioner under circumstances similar to those confronting the

defendant.” Ehrlich, 144 S.W .3d at 625; see also Marling v. Maillard, 826 S.W .2d

735, 740 (Tex. App.—Houston [14th Dist.] 1992, no writ).


                                          8
      The proper inquiry concerning whether a doctor is qualified to testify is not his

or her area of practice but rather the doctor’s familiarity with the issues involved in

the claim before the court. Foster v. Richardson, 303 S.W .3d 833, 843 (Tex.

App.—Fort W orth 2009, no pet.) (holding that internist specializing in physical

medicine and rehabilitation could provide expert report against orthopedist in case

involving delayed diagnosis of ankle injury and resulting prolonged pain); Blan, 7

S.W .3d at 745 (holding that neurologist could provide expert report against

cardiologist and emergency room doctors indicating that the standard of care for

treating a stroke patient is the same for all doctors).

                                  Dr. Tabler’s Report

      Dr. Tabler is a board-certified psychiatrist who at the time of authoring his

report had been practicing almost twenty-four years, twenty of those years in private

practice. At the time he authored the report, he was the Medical Director of the

Behavioral/Medicine Unit of Kindred Hospital, Medical Director of IOP Senior

Perspectives, Medical Director of the Gero-Psychiatric Unit of Ten Broeck Hospital,

and a consultant to the Pathways Brain Injury Unit, Christopher East Healthcare

Center   in   Louisville,    Kentucky.     His   primary   practice   area    was    in

psychopharmacology.         He had previously served as the medical director of a

different hospital’s behavioral health unit and as medical director of Ten Broeck

Hospital’s acute unit; he had also worked as a consultant for several different health




                                           9
care programs, as an attending physician at the Kentucky Correctional Center, and

as a clinical faculty member at the University of Louisville psychiatry department.

       Dr. Tabler concluded that the negligence of all the physicians and staff who

saw Tutt at Millwood, Arlington Memorial, and North Hills “was a proximate cause

of [her] injuries and permanent brain damage.” He noted that Dr. Ohman saw Tutt

for a “pediatric internal medicine consultation” while she was at North Hills. The

pertinent parts of Dr. Tabler’s report follow.

       Dr. Tabler stated that when Tutt was admitted to Millwood, doctors diagnosed

her with “major depressive disorder with psychosis.” Her prescriptions for Concerta,

Seroquel, and Zoloft were continued at the hospital, and doctors additionally

prescribed her Haldol, Ativan, and Benadryl. On Tutt’s second day at Millwood, she

had a temperature of 100.2, was lethargic during group therapy, and appeared to fall

asleep at times during therapy. Two days later, she became “acutely confused” and

fell, suffering soft tissue damage on her face and head, and precipitating her

transport to Arlington Memorial. 2

       After Tutt’s mother, Menefee, moved her from Arlington Memorial to North

Hills, the staff at North Hills noted that Tutt was “feverish with an unstable blood

pressure.” One of the doctors who initially saw her—when she was running a fever

of 102—assessed Tutt as having an “[a]ltered [m]ental [s]tatus . . . , likely cause may



       2
            The doctors at Millwood discontinued the Seroquel and started Tutt on
Abilify.

                                          10
be secondary to her psychiatric medications side effects like Neuroleptic Malignant

Syndrome.” The doctor recommended monitoring Tutt in the emergency room.

      Dr. Tabler notes the following about Dr. Ohman’s examination of Tutt:

              On March 2, 2007 [Tutt’s second day at North Hills] at 11:59
      a.m., the patient had a pediatric internal medicine consultation by [Dr.
      Ohman]. After receiving a history of a fall at Millwood following
      administration of medications, including Haldol and Benadryl. [sic] He
      states that “during the fall, she was also found to have been incontinent
      and had an episode of emesis [vomiting]. Since that point she has
      been unresponsive to painful stimuli.” Dr. Ohman further noted that the
      patient was “drooling” and “will not speak.” His impression was: “W e
      have a 16 yr. old girl with mental status changes following medication
      adjustments over at Millwood. The patient has had a negative
      electroencephalogram which makes seizure and postictal state
      unlikely. She has had a lumbar puncture and multiple cultures are
      pending. She is also on a great deal of antibiotics as we await those
      cultures. I am not aware of any pediatric syndrome that would explain
      this situation. I guess that she is reacting to her medications that
      were given to her and that she will probably continue to be in this
      state until the medications wear off.” Dr. Ohman’s plan at this time
      was stated as follows: “I have gone ahead and ordered four point
      restraints for her since she is not responding to commands and she
      was getting out of bed. I agree with all the tests that have already been
      ordered. I am going to look to see if maybe a sed rate and ANA have
      been done just to make sure that we have not missed some sort of
      unusual autoimmune disease presentation. However, I think our best
      bet is to go ahead and support her and give a chance for the
      medications to wear out of her system.”

Dr. Tabler concluded his review of the facts as follows:

             Evolla Tutt suffered a major catastrophic neurologic event(s) from
      which she has never recovered. She now requires complete around-
      the-clock care. During her stay at Millwood and directly related to her
      care at Millwood, the chain of event was initiated. This negligent chain
      of events continued at AMH and NHH and eventually left her with a
      permanently altered mental state, bowel and urinary incontinence,
      nystagmus, and spastic paralysis. The negligence by the physicians

                                         11
and staff at all three hospitals . . . as detailed herein was a proximate
cause of Evolla’s injuries and permanent brain damage. [Emphasis
added.]

Under the heading, Familiarity W ith The Standard of Care, Dr. Tabler opined,

       As a board-certified psychiatrist, I am consulted by others to
evaluate patients and to make treatment recommendations for similar
cases as Evolla Tutt. I have knowledge of the accepted standard of
care for the diagnosis, care and treatment of the illness, injury or
conditions, and am qualified based on training and experience to offer
the standard of care expert opinions expressed herein. I am familiar
with the standard of care of a reasonable and prudent physician for
evaluation and treatment of major depressive disorder with psychotic
features, schitzo-affective disorder and/or schizophrenia.

      I am practicing medicine at the time this expert report was drafted
and was at the time the patient’s injury occurred in the fields of
psychiatry and neuropharmacology. From September 2006 to the
present, I have served as the medical director of the
Behavioral/Medicine Unit of Kindred Hospital in Louisville, Kentucky,
managing the treatment of a broad range of psychiatric emergencies
and disorders, and working closely with other disciplines providing
emergent, intensive and long-term care to our patients. . . .

       By way of my education, training, independent research and
professional experience, I have knowledge of the accepted standards
of care for the diagnosis, care and treatment of medical emergencies
arising in patients during the treatment of inpatient/acute psychiatric
disorders, as in this particular case. . . .

       During the course of my practice in the field of psychiatry and
neuropharmacology, I work closely with physicians practicing in the
fields of internal medicine, neurology, toxicology, emergency medical
care, pharmacology and pulmonary medicine, as well as registered
nurses, licensed professional counselors and physicians’ assistants
working under my supervision. The effects of the various psychoactive
substances routinely utilized to treat psychiatric disorders implicate all
of these disciplines due to the great importance of balancing the
associated risks of psychiatric medicines with the purported benefits.
In the course of caring for patients, I have therefore developed


                                   12
      expertise in these related disciplines in order to effectively recognize
      and appropriately treat adverse reactions to medications and other
      medical complications when and if they arise.

             My training and publications in psychiatry, psychotropic
      medications, depression, seizure, brain injury, neuropharmacology and
      related fields allow appropriate background and experience to express
      an opinion on the causes relating to the multiple standards of care in
      this case. Standards of care in this case cross practice areas — there
      are many aspects of medical treatment that cross practice specialty
      areas and in such situations, the appropriate standard of care will be
      the same for most providers regardless of their specialties. . . .
      [Emphasis added.]

      After explaining his familiarity with the standard of care, Dr. Tabler explained

the relevant conditions at issue. According to Dr. Tabler, these are

              •     Neuroleptic malignant syndrome: This is a potentially-
      fatal brain and bodily disorder with sequelae requiring active medication
      treatment if suspected to prevent complications. The classic triad
      involves the autonomic nervous system (fever in 100%), the
      extrapyramidal system (rigidity) (tremor), and cognitive changes. . . .

             •     Epileptic Seizure: An epileptic seizure is a transient
      symptom of abnormal, excessive or synchronous neuronal activity in
      the brain. It can manifest as an alteration in mental state, tonic or
      clonic movements, convulsions, and various other psychic symptoms.
      The medical syndrome of recurrent, unprovoked seizures is termed
      epilepsy, but seizures can occur in people who do not have epilepsy.

             •     Status epilepticus: This refers to a life-threatening
      condition in which the brain is in a state of persistent seizure that will
      not stop without intervention.

      Dr. Tabler set forth a lengthy standard of care paragraph applicable to all

physicians at North Hills, as well as a shorter paragraph specific to each physician.

The general paragraph reads as follows:



                                         13
     Evolla Tutt presented upon admission at North Hills Hospital as a
     patient with suspected seizure activity who had recently been
     administered both atypical and first generation antipsychotics, both of
     which are known to reduce the patient’s seizure threshold. Due to the
     patient’s elevated temperature, reported history from her mother and
     possibly other sources, recent drug regimen and non-responsiveness,
     Neuroleptic Malignant Syndrome (NMS), central nervous system
     infection including possible pathogen-induced encephalitis, serotonin
     syndrome, catatonic schizophrenia, thyreotoxic crisis and possibly
     acute neuroleptic intoxication would properly have been considered
     possible explanations for her health condition in a differential diagnosis.
     Irrespective of the ultimate cause of the patient’s condition, the
     standard of care required North Hills Hospital and the medical care
     providers treating Ms. Tutt at that facility to immediately come to the
     conclusion that the risk for the patient of continued seizure activity far
     outweighed any risks associated with the administration of prophylactic
     anticonvulsants. North Hills Hospital’s failure to adequately buffer Ms.
     Tutt’s defenses against seizure in this instance and abate her rapidly
     deteriorating health status post-Millwood and Arlington Memorial’s
     substandard treatment caused the patient to suffer many more
     seizures, which to a reasonable degree of medical probability were a
     producing cause of the substantial brain damage that has permanently
     disabled her. . . .

     As to the specific alleged standard of care applicable to Dr. Ohman, Dr. Tabler

opined,

           Dr. Ohman began treating the patient on March 2 at North Hills
     Hospital at 9:51 A.M. in his capacity as a consulting pediatrician. Dr.
     Ohman failed the patient while she was under his care at the North Hills
     Hospital facility, contributing to Ms. Tutt’s injuries. Dr. Ohman owed the
     patient in an acute care setting the duty of immediate and sufficient
     medical response to her condition in order to prevent brain damage.
     The patient was admitted with suspicion of recent seizure activity and
     Neuroleptic Malignant Syndrome (NMS) following recent increases in
     her antipsychotic medications at Millwood Hospital, per the history
     provided by the patient’s mother. Dr. Ohman notes the following:

           [Here, Dr. Tabler recites Dr. Ohman’s notes indicating his
           knowledge of her history of medications, subsequent confusion


                                         14
             and fall, and her condition at Arlington Memorial, as well as the
             results of his examination.]

             Dr. Ohman breached his standard of care by failing to
      immediately prescribe prophylactic anticonvulsants in sufficient
      dosages to prevent further seizures, given the history of the patient
      upon admission. To a reasonable degree of medical probability, this
      failure by Dr. Ohman to intervene at this early point in the patient’s
      treatment at North Hills Hospital contributed to her continued seizures
      and ultimate brain damage. [Emphasis added.]

                 Dr. Tabler Is Qualified To Render Expert Report

      Dr. Ohman contends that Dr. Tabler’s report is deficient because Dr. Tabler

does not indicate that he has ever participated in the provision of pediatric care to

a patient such as Tutt. Specifically, Dr. Ohman contends that his “limited pediatric

consulting role in this case require[s] that the allegations raised against him be

substantiated by an expert who has the qualifications to opine on the treatment

provided in that limited role.” He contends that Dr. Tabler does not indicate that he

has ever worked with a pediatrician, has practical knowledge of what is customarily

or usually done by a pediatrician under similar circumstances, or has any experience

treating patients like Tutt.

      A pediatrician is a specialist in “the study and treatment of children in health

and disease during development from birth to adolescence.” Stedman’s Medical

Dictionary 1446 (28th ed. 2006) (emphasis added). Reading Dr. Tabler’s report as

a whole, he clearly indicates that he has experience evaluating and making

treatment recommendations for patients “in similar cases as” Tutt’s and that his



                                         15
knowledge of the standard of care applies to the emergency treatment of psychiatric

patients “as in this particular case.” See Barber, 303 S.W .3d at 794 (holding that

court must not view any one part of expert report or curriculum vitae in isolation).

He does not limit this experience and knowledge to a particular age group but to the

underlying condition at issue.

      Although Dr. Ohman characterizes treatment of Tutt’s condition as the

provision of pediatric services to Tutt, it is more properly characterized as the

evaluation and treatment of a pediatric patient, with an underlying diagnosis of major

depressive disorder and psychosis, presenting in an emergency room setting with

suspicion of recent seizure activity and neuroleptic malignancy syndrome. Dr.

Tabler’s training and experience—including his work in both psychiatric and acute

care settings—show that he is qualified to render an expert opinion as to the

treatment of such a condition. See Foster, 303 S.W .3d at 843; Blan, 7 S.W .3d at

745–47; see also Barber, 303 S.W .3d at 794–96 (concluding that entirety of expert

report showed that anesthesiologist was qualified to render expert opinion against

general surgeon because report showed anesthesiologist’s experience with the type

of surgery at issue even though report never stated that anesthesiologist had

experience working specifically with general surgeons). And although Dr. Tabler

does not specifically mention working with pediatricians in his report, he does state

that he has worked specifically with internal medicine specialists and emergency

room doctors and that the standard of care for treatment of conditions similar to


                                         16
Tutt’s crosses practice specialties; moreover, he notes in his report that Dr. Ohman

performed a pediatric internal medicine evaluation of Tutt in the emergency room.

Accordingly, we conclude and hold that, reading Dr. Tabler’s report in its entirety, he

is qualified to render an expert opinion as to the standard of care applicable to Dr.

Ohman’s treatment of Tutt’s condition in this case and, therefore, that the trial court

abused its discretion by determining otherwise.

    Articulation of Standard of Care And Breach Are Sufficiently Specific

      In his objections to Dr. Tabler’s report, Dr. Ohman also claimed that Dr. Tabler

failed to specifically set forth the standard of care applicable to Dr. Ohman as a

pediatrician and how Dr. Ohman breached such a standard. See Bowie Mem’l

Hosp., 79 S.W .3d at 52–53; Rusk v. Titus Hosp. Dist., 128 S.W .3d 332, 340 (Tex.

App.—Texarkana 2004, pet. denied). But as set forth above, Dr. Tabler not only set

forth a standard of care applicable to all of the physicians at North Hills, he also later

specifically described that standard in reference to Dr. Ohman’s care of Tutt. He

also specifically described how Dr. Ohman allegedly breached that standard of care:

by failing to immediately prescribe anticonvulsants for Tutt instead of waiting for the

other medications to “wear out of her system.” Accordingly, we conclude and hold

that the trial court abused its discretion by sustaining this objection to Dr. Tabler’s

report. See Davisson v. Nicholson, No. 02-09-00169-CV, 2010 W L 1137031, at

*9–10 (Tex. App.—Fort W orth Mar. 25, 2010, no pet.) (op. on reh’g); Foster, 303

S.W .3d at 843.


                                           17
                          Sufficiency of Causation Opinion

      Dr. Ohman’s final objection to Dr. Tabler’s report is that its statements

regarding causation are conclusory. See Bowie Mem’l Hosp., 79 S.W .3d at 53.

According to Dr. Ohman, this court must engage in impermissible gap-filling to

determine how Dr. Ohman’s alleged breach of the described standard of care

caused Tutt’s injuries.    Dr. Tabler faults Dr. Ohman for one thing:          failing to

immediately prescribe anticonvulsant medication to Tutt to stop her seizures. He

states earlier in his report that because all of the doctors continually failed to

prescribe such anticonvulsant therapy after recognizing the seizure activity, Tutt

continued to have seizures as a result of the syndrome caused by the medications

she had been given at Millwood, and that the continuation of those seizures caused

her resulting brain damage. In other words, Dr. Tabler’s report indicates that each

doctor failed to prescribe the anticonvulsants, that each failure contributed to more

seizures, and that the multiple seizures caused the injury. Therefore, we conclude

and hold that this statement of causation is sufficiently specific and not conclusory

and that the trial court abused its discretion by granting this objection to Dr. Tabler’s

report. See Granbury Minor Emergency Clinic v. Thiel, 296 S.W .3d 261, 273 (Tex.

App.—Fort W orth 2009, no pet.); Apodaca v. Miller, 281 S.W .3d 123, 128–29 (Tex.

App.—El Paso 2008, no pet.); Chandler v. Singh, 129 S.W .3d 184, 191–92 (Tex.

App.—Texarkana 2004, no pet.).




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      Having determined that the trial court abused its discretion by granting Dr.

Ohman’s objections to Dr. Tabler’s report, we conclude and hold that the trial court

likewise abused its discretion by dismissing appellants’ claims against Dr. Ohman.

W e sustain appellants’ sole issue.

                                      Conclusion

      Having sustained appellants’ sole issue, we reverse the trial court’s order and

remand this case to the trial court for further proceedings on appellants’ claims

against Dr. Ohman.




                                              TERRIE LIVINGSTON
                                              CHIEF JUSTICE

PANEL: LIVINGSTON, C.J.; DAUPHINOT and MCCOY, JJ.

DELIVERED: May 27, 2010




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