Opinion issued December 31, 2019




                                     In The

                              Court of Appeals
                                    For The

                         First District of Texas
                            ————————————
                              NO. 01-18-01054-CV
                           ———————————
    NANCY CARMEN CURNEL AND RONALD CURNEL, Appellants
                                       V.
    HOUSTON METHODIST WILLOWBROOK HOSPITAL, THE
METHODIST HOSPITAL D/B/A THE METHODIST HOSPITAL SYSTEM,
OBIOHA TOBECHUKWU EMENANJO, RN, LIQUN MICHELLE JIANG,
       RN, AND MOSHIR SIMON BANSUAN, RN, Appellees


                    On Appeal from the 55th District Court
                            Harris County, Texas
                      Trial Court Case No. 2016-36453


                         MEMORANDUM OPINION

      In this interlocutory appeal, Nancy Carmen Curnel and Ronald Curnel

appeal from a judgment dismissing their health care liability claim for failure to

serve adequate expert reports. TEX. CIV. PRAC. & REM. CODE §§ 51.014(a)(9),
74.351(a), (b). In a single issue, the Curnels contend that the trial court abused its

discretion by granting the motion to dismiss for failure to serve adequate expert

reports. We reverse and remand.

                                     Background

      This case has been before us twice previously.1 According to the expert

reports, Nancy Curnel visited a local walk-in clinic on October 4, 2015. She was

diagnosed with a urinary tract infection and prescribed the antibiotic nitrofurantoin.

Nitrofurantoin is known for potential hepatotoxic effects and can cause drug-

induced liver injury (“DILI”).

      Four days later, Curnel presented to the emergency department at Houston

Methodist Willowbrook Hospital (“Willowbrook”) with elevated liver enzymes.

Dr. M. Esantsi, an on-duty hospitalist, examined Curnel and misdiagnosed her with

viral hepatitis. Without evaluating her current medications for hepatotoxicity, Dr.

Esantsi told Curnel to continue taking the antibiotic that caused her elevated liver

enzymes. He then admitted her to the hospital for further evaluation. Once


1
      Curnel v. Houston Methodist Hosp.-Willowbrook, 562 S.W.3d 553 (Tex. App.—
      Houston [1st Dist.] 2018, no pet.) (op. on reh’g) (“Curnel I”) (holding the trial
      court abused its discretion in denying motion for extension to cure deficient expert
      reports and motion for reconsideration); Curnel v. Methodist Hosp., No. 01-17-
      00742-CV, 2018 WL 4014590, at *1 (Tex. App.—Houston [1st Dist.] Aug. 23,
      2018, no pet.) (mem. op.) (“Curnel II”) (holding the trial court abused its
      discretion in denying their motion for an extension to cure deficient expert
      reports).



                                           2
admitted, Dr. Esantsi ordered nurses to administer acetaminophen to Curnel, which

is a well-known hepatoxic medication.

      Shortly thereafter, two nurses administered nitrofurantoin to Curnel at

separate times. On the third day of her hospitalization, Dr. S. Ugbarugba, a

gastroenterologist, examined Curnel, noted that she might be suffering from DILI,

and ordered a biopsy of her liver for additional testing. Dr. Ugbarugba did not

record the medications that Curnel had been taking at that time, including

nitrofurantoin. Dr. Y. Naygandhi, another hospitalist, examined Curnel that same

day, documented the “medication-related hepatitis,” and ordered a review of

Curnel’s medications to determine the cause of her elevated liver enzymes.

      Dr. Naygandhi further ordered Curnel to discontinue nitrofurantoin, and

Curnel’s liver enzymes improved.2 Her bilirubin began to decrease, her AST

continued to decrease, and her ALT and ALP underwent “non-significant

changes.” Dr. Ugbarugba examined Curnel examined a third time. His progress

note contained the “exact” same “assessment from the day prior” except that it

noted, “Liver bx today.”3 “A pre-procedure prothrombin time/INR ordered by Dr.

Esantsi return[ed] as normal (this was the first time checked since presentation).”4


2
      None of the      physicians   specifically   ordered   that   Curnel   discontinue
      acetaminophen.
3
      The medical term “Bx” is an abbreviation for biopsy. Bx, MERRIAM-WEBSTER,
      https://www.merriam-webster.com/dictionary/bx (last visited Oct. 22, 2019).
                                          3
      Despite Curnel’s liver enzymes showing signs of improvement after

discontinuing nitrofurantoin, neither the physicians nor the nurses canceled or

postponed the biopsy. A radiologist performed the biopsy. He obtained two

“cores,” which showed that “the liver function abnormalities were due to

medication effects.” During the biopsy, the radiologist nicked Curnel’s artery,

causing severe injuries, including shock, anemia, and intra-abdominal hemorrhage.

Curnel required multiple blood transfusions, medications to maintain circulation,

mechanical ventilation, prolonged resuscitation, and extended ICU care.

                               Procedural History

      Curnel and her husband, Ronald (the “Curnels”), asserted health care

liability claims against Willowbrook, Dr. Ugbarugba, and various other physicians

who treated her throughout her hospitalization. The Curnels obtained and served a

series of expert reports from a gastroenterologist, Dr. T. Sheer, and a registered

nurse, J. Fomenko. Dr. Sheer’s report addressed whether the failure to evaluate the

toxicity of Curnel’s medications and whether the failure to implement a “chain of

command” system caused Curnel’s injuries. Fomenko’s report addressed the

standard of care and its breach. Willowbrook and Dr. Esantsi filed motions to

dismiss under Texas Civil Practice and Remedies Code Section 74.351. The trial


4
      “A prothrombin time test measures how quickly your blood clots.” Prothrombin
      time test, Mayo Clinic (May 10, 2018), https://www.mayoclinic.org/tests-
      procedures/prothrombin-time/about/pac-20384661.
                                        4
court found that the combined expert reports were inadequate as to all three

elements of the Curnels’ claims (i.e., standard of care, breach, and causation),

denied the Curnels’ request for an extension to cure the deficiencies, and dismissed

the Curnels’ claims against Willowbrook and Dr. Esantsi. The Curnels appealed

the trial court’s interlocutory order dismissing their claims with prejudice against

Willowbrook, contending the trial court abused its discretion in granting the

motion to dismiss for failure to serve adequate expert reports. See Curnel v.

Houston Methodist Hosp.–Willowbrook, 562 S.W.3d 553, 561 (Tex. App.—

Houston [1st Dist.] 2018, no pet.) (op. on reh’g) (“Curnel I”).

      In Curnel I, this Court held Fomenko’s reports on Willowbrook provided

adequate opinions on the standard of care and breach but that Dr. Sheer’s reports

on Willowbrook did not adequately address cause-in-fact and foreseeability, as

required to establish causation. Id. at 570. This Court also held that the expert

reports were potentially curable and therefore the trial court erred in failing to

allow an extension to cure deficiencies. Id. The case was remanded for further

proceedings. Id.

      While the Curnel I interlocutory appeal was pending, the Curnels filed an

amended petition, which asserted health care liability claims against TMH Health

Care Group, the Methodist Hospital System (“Methodist”), which manages and

oversees Willowbrook, as well as three Willowbrook nurses, M. Bansuan, O.


                                          5
Emenanjo, and L. Jiang (the “Nurse Defendants”). The Curnels’ claim against

Methodist was based on the same allegations as their direct liability claim against

Willowbrook, and their claims against the Nurse Defendants were based on the

same allegations as their vicarious liability claim against Willowbrook. The

Curnels served additional expert reports. Willowbrook and the Nurse Defendants

objected to the expert reports as deficient and moved to dismiss the Curnels’

claims. The Curnels filed a response and requested an extension to cure the expert

reports. Finding the expert reports deficient, the trial court denied the Curnels’

motion for an extension to cure and dismissed their claims against Methodist and

the Nurse Defendants. The Curnels filed a second interlocutory appeal, contending

that the trial court abused its discretion by granting the motions to dismiss and

denying their motion for an extension to cure. See Curnel v. Methodist Hosp., No.

01-17-00742-CV, 2018 WL 4014590, at *2 (Tex. App.—Houston [1st Dist.] Aug.

23, 2018, no pet.) (mem. op.) (“Curnel II”).

      In Curnel II, the Court held that Dr. Sheer’s reports on Methodist and the

Nurse Defendants failed to adequately address cause-in-fact and foreseeability, as

required to establish causation. Id. at *8–*9. The Court also held that the trial court

abused its discretion by denying the Curnels’ motion for an extension to cure

because the expert reports were deficient but curable and reversed and remanded

the case. Id. at *10.


                                          6
      On remand, the Curnels served three additional expert reports from Dr.

Sheer, Fomenko, and Dr. D. Kett, addressing the deficiencies identified in Curnel I

and Curnel II.

      Willowbrook, Methodist, and the Nurse Defendants objected to the expert

reports as deficient and moved to dismiss the Curnels’ claims. The trial court

granted the motion to dismiss. This interlocutory appeal followed.

                                Motion to Dismiss

      In their sole issue, the Curnels contend that the trial court abused its

discretion by dismissing their claims against Willowbrook, Methodist, and the

Nurse Defendants.

A.    Applicable law and standard of review

      Under the Medical Liability Act, a plaintiff asserting health care liability

claims must timely serve each defendant physician and health care provider with

one or more expert reports and a curriculum vitae of each expert whose opinion is

offered to substantiate the merits of the claims. TEX. CIV. PRAC. & REM. CODE §

74.351(a), (i); see Mangin v. Wendt, 480 S.W.3d 701, 705 (Tex. App.—Houston

[1st Dist.] 2015, no pet.). The expert report must provide a “fair summary” of the

expert’s opinions regarding the (1) applicable standards of care, (2) manner in

which the care rendered by the physician or health care provider failed to meet the

standards, and (3) causal relationship between that failure and the injury, harm, or


                                         7
damages claimed. TEX. CIV. PRAC. & REM. CODE § 74.351(r)(6). A “fair summary

of the expert’s opinions” means that, at the least, the report must state more than

mere conclusions and must instead explain the basis of the expert’s opinion so as

to link the conclusions to the facts of the case. See Jelinek v. Casas, 328 S.W.3d

526, 539 (Tex. 2010) (citing Bowie Mem’l Hosp. v. Wright, 79 S.W.3d 48, 52 (Tex.

2002) (per curiam)).

      For standard of care and breach, the expert report must explain what the

physician or health care provider should have done under the circumstances and

what the physician or health care provider did instead. Am. Transitional Care Ctrs.

of Tex., Inc. v. Palacios, 46 S.W.3d 873, 880 (Tex. 2001). For causation, the expert

report must explain how and why the physician’s or health care provider’s breach

proximately caused the plaintiff’s injury. Columbia Valley Healthcare Sys., L.P. v.

Zamarripa, 526 S.W.3d 453, 459–60 (Tex. 2017).

      Causation consists of two components: (1) cause-in-fact and (2)

foreseeability. Gunn v. McCoy, 554 S.W.3d 645, 658 (Tex. 2018). A physician’s or

health care provider’s breach was a cause-in-fact of the plaintiff’s injury if the

breach was a substantial factor in bringing about the harm, and absent the breach

the harm would not have occurred. Id. Even if the harm would not have occurred

absent the defendant’s breach, “the connection between the defendant and the

plaintiff’s injuries simply may be too attenuated” for the breach to qualify as a


                                         8
substantial factor. Allways Auto Grp., Ltd. v. Walters, 530 S.W.3d 147, 149 (Tex.

2017) (per curiam) (quoting Union Pump Co. v. Allbritton, 898 S.W.2d 773, 776

(Tex. 1995)). A breach is not a substantial factor if it “does no more than furnish

the condition that makes the plaintiff’s injury possible.” Id. A physician’s or health

care provider’s breach is a foreseeable cause of the plaintiff’s injury if a physician

or health care provider of ordinary intelligence would have anticipated the danger

caused by the negligent act or omission. Puppala v. Perry, 564 S.W.3d 190, 197

(Tex. App.—Houston [1st Dist.] 2018, no pet.).

      The expert report is not required to prove the defendant’s liability but only to

provide notice of the conduct forming the basis of the plaintiff’s claim. Gracy

Woods I Nursing Home v. Mahan, 520 S.W.3d 171, 189 (Tex. App.—Austin 2017,

no pet.). The report “need not anticipate or rebut all possible defensive theories that

may ultimately be presented” in the case. Owens v. Handyside, 478 S.W.3d 172,

187 (Tex. App.—Houston [1st Dist.] 2015, pet. denied). “Nothing in Section

74.351 suggests the preliminary report is required to rule out every possible cause

of the injury, harm or damages claimed, especially given that Section 74.351(s)

limits discovery before the report is filed.” Meyer v. Strahan, 578 S.W.3d 165, 172

(Tex. App.—Tyler 2019, pet. denied) (citing Baylor Med. Ctr. at Waxahachie,

Baylor Health Care Sys. v. Wallace, 278 S.W.3d 552, 562 (Tex. App.—Dallas

2009, no pet.)).


                                          9
      In reviewing the adequacy of an expert report, a trial court may not consider

an expert’s credibility, the data relied upon by the expert, or the documents that the

expert failed to consider at this pre-discovery stage of the litigation. See Mettauer

v. Noble, 326 S.W.3d 685, 691 (Tex. App.—Houston [1st Dist.] 2010, no

pet.); Gonzalez v. Padilla, 485 S.W.3d 236, 245 (Tex. App.—El Paso 2016, no

pet.). Instead, the trial court must limit its review to the “four corners” of the expert

report and, when the question of adequacy hinges on the expert’s qualifications,

the “four corners” of the expert’s curriculum vitae. Mangin, 480 S.W.3d at 706.

      The statute’s purpose is not to determine the merits of the claim but to rule

out frivolous lawsuits at the onset of litigation, before the parties have conducted

full discovery. Ross v. St. Luke’s Episcopal Hosp., 462 S.W.3d 496, 502 (Tex.

2015); Mangin, 480 S.W.3d at 706. As we have explained:

      The requirement to serve an expert report arises at the outset of
      litigation and before the opportunity for the plaintiff to engage in
      significant discovery, including taking oral depositions of the
      defendants. As such, the statute itself contemplates that the amount
      and quality of evidence available at the time of drafting the expert
      reports will be less than that available at trial on the merits or even the
      summary-judgment stage.

Mangin, 480 S.W.3d at 713 (citations omitted). Thus, the requirements of the

statute have been variously described as a “lenient standard,”5 “low threshold,”6

and “relatively low bar.”7


5
      Scoresby v. Santillan, 346 S.W.3d 546, 549 (Tex. 2011).
                                           10
      If the plaintiff “fails to timely serve an expert report, then on the affected

health care provider’s motion the trial court must dismiss the pertinent health care

liability claim with prejudice and award attorney’s fees.” Baty v. Futrell, 543

S.W.3d 689, 692 (Tex. 2018) (citing TEX. CIV. PRAC. & REM. CODE § 74.351(b)).

However, if the motion challenges the adequacy of an otherwise timely report, the

trial court may grant the motion ‘only if it appears to the court, after hearing, that

the report does not represent an objective good faith effort to comply with the

[Act’s] definition of an expert report.’” Baty, 543 S.W.3d at 692–93 (quoting TEX.

CIV. PRAC. & REM. CODE § 74.351(l)).

      A report qualifies as an objective good faith effort to avoid dismissal if it

discusses each element with sufficient specificity that it (1) informs the defendant

of the specific conduct the plaintiff questions and (2) provides a basis for the trial

court to conclude that the plaintiff’s claims have merit. Miller v. JSC Lake

Highlands Operations, LP, 536 S.W.3d 510, 513 (Tex. 2017) (per curiam). A trial

court may read several reports in concert in determining whether a plaintiff has

made a good-faith effort to comply with the Act’s requirements. TEX. CIV. PRAC. &


6
      Loaisiga v. Cerda, 379 S.W.3d 248, 264 (Tex. 2012) (Hecht, J., concurring in part
      and dissenting in part) (“An expert report, as we have interpreted it, is a low
      threshold a person claiming against a health care provider must cross merely to
      show that his claim is not frivolous.”).
7
      Baty v. Futrell, 543 S.W.3d 689, 698 (Tex. 2018) (Johnson, J., dissenting)
      (describing medical expert report requirements as interpreted by majority).
                                          11
REM. CODE § 74.351(i); TTHR Ltd. P’ship v. Moreno, 401 S.W.3d 41, 43 (Tex.

2013) (noting Section 74.351(i) “authoriz[es] fulfilling the expert report

requirements by serving multiple reports”). In determining whether an expert

report constitutes an objective good faith effort to address each element, “a trial

court may not draw inferences; instead, it must exclusively rely upon the

information contained within the four corners of the report.” Puppala, 564 S.W.3d

at 197.

      We review a trial court’s ruling on a motion to dismiss a health care liability

claim for an abuse of discretion. Miller, 536 S.W.3d at 512. Under this standard,

we “defer to the trial court’s factual determinations if they are supported by

evidence, but review its legal determinations de novo.” Van Ness v. ETMC First

Physicians, 461 S.W.3d 140, 142 (Tex. 2015) (per curiam). A trial court abuses its

discretion if it acts arbitrarily or unreasonably or without reference to guiding rules

or principles. Bowie Mem’l Hosp., 79 S.W.3d at 52.

      Two months after this Court decided Curnel II, the Texas Supreme Court’s

watershed opinion of Abshire v. Christus Health, 563 S.W.3d 219 (Tex. 2018),

relaxed the standards for causation. Id. at 225–26. Per the Supreme Court, in

reviewing the sufficiency of expert reports, courts do not determine whether

causation is reasonable or believable. Id. at 226. Rather, the court stated that, “with

respect to causation, the court’s role is to determine whether the expert has


                                          12
explained how the negligence conduct caused the injury.” Id. A court’s inquiry into

the adequacy of an expert report is preliminary, and the determination of the merits

should be decided at a later stage of the litigation proceedings. Id. “[T]he purpose

of the expert report requirement is to weed out frivolous malpractice claims in the

early stages of litigation, not to dispose of potentially meritorious claims.” Id. at

223.

       After the decisions of Curnel I and Curnel II, this Court has applied the

relaxed standards of Abshire. See, e.g., New Med. Horizons, II, Ltd. v. Milner, 575

S.W.3d 53 (Tex. App.—Houston [1st Dist.] 2019, no pet.); Tomball Tex. Hosp.

Co., LLC v. Bobinger, No. 01-18-00361-CV, 2019 WL 3801664, at *7 (Tex.

App.—Houston [1st Dist.] Aug. 13, 2019, no pet. h.) (mem. op.). With this

framework, we analyze the adequacy of the medical expert reports first as to

Methodist and Willowbrook then as to the Nurse Defendants, then finally as to

TMH Health Care Group.

B.     Adequacy of reports on Methodist and Willowbrook

       The Curnels supported their claim against Methodist and Willowbrook with

expert reports from Fomenko, Dr. Kett, and Dr. Sheer.

       We first note that Fomenko is a nurse, and a portion of her expert reports

opined on causation. Under the Medical Liability Act, a nurse is not qualified to

offer an expert opinion on causation. See TEX. CIV. PRAC. & REM. CODE §


                                         13
74.351(r)(5)(C); see also Peabody v. Manchac, 567 S.W.3d 814, 823 (Tex. App.—

Houston [14th Dist.] 2018, no pet.). Therefore, we will not consider Fomenko’s

opinions on the cause-in-fact or foreseeability components of the causation

element.

      Methodist asserts that we are unable to consider Dr. Kett’s report because it

addresses a new theory of liability: post-operative negligence. Specifically,

Methodist argues that the Curnels did not assert this theory in their third amended

petition. Rather, the third amended petition alleges that the nurses and physicians

acted in a negligent manner before the liver biopsy because the liver biopsy was

medically unnecessary and caused severe injuries to Curnel. Thus, Methodist

contends that the third amended petition did not provide fair notice of the post-

operative difficulties as a basis of the Curnels’ claims. See Pacheco-Serrant v.

Munoz, 555 S.W.3d 782, 793–94 (Tex. App.—El Paso 2018, no pet.) (explaining

fair-notice requirement in health care liability cases). Because the Curnels’

amended petition did not provide fair notice of the post-operative difficulties as a

basis of their claim, we do not consider this new theory of liability for purposes of

our review. See Pacheco-Serrant, 555 S.W.3d at 793–94; Tanhui v. Rhodes-

Madison, No. 12-19-00149-CV, 2019 WL 4462672, at *3 (Tex. App.—Tyler Sept.

18, 2019, no pet. h.) (mem. op.) (declining to review an unpleaded theory of




                                         14
liability for a health care liability claim). Moreover, Dr. Kett’s report does not

address Methodist in his report.

      We begin our analysis by considering whether the expert reports from Dr.

Sheer provide adequate opinions on causation. Proximate cause has two

components: (1) cause-in-fact and (2) foreseeability. Milner, 575 S.W.3d at 69. We

first address cause-in-fact, and then we address foreseeability.

      1.     Cause-in-fact

      In Curnel I, the Court identified the deficiencies in Dr. Sheer’s reports

opining on cause-in-fact and advised the Curnels to “explain how and why

additional information from the nurses would have led the physicians to cancel the

biopsy if the information the physicians already had did not or how the nurses ‘had

either the right or the means to persuade’ the physicians to cancel the biopsy.” 562

S.W.3d at 568 (citing Zamarripa, 526 S.W.3d at 461).

      Dr. Sheer asserted that the implementation of a “chain of command” or a

“checks and balances” system would have prevented the liver biopsy because

Curnel was “stable.” Dr. Sheer attributed his conclusion to the physicians’ and

nurses’ failure to document certain information that “resulted in confusion” and

“significantly contributed to proceeding with the liver biopsy,” resulting in

Curnel’s injuries. Dr. Sheer specifically explained that Dr. Naygandhi failed to

document that he was informed by a nurse that a liver biopsy was scheduled. Dr.


                                          15
Sheer further explained that the nurses failed to document that they informed Dr.

Naygandhi of the scheduled liver biopsy. Dr. Sheer stated that there is nothing in

the records demonstrating that the nurses placed an order for a medication

evaluation. Because there is no evidence, Dr. Sheer presumed that a medication

evaluation was never placed by the nurses at all and that the absence of the results

from the evaluation did not allow the nurses or physicians to make an informed

decision to proceed with the liver biopsy. According to Dr. Sheer, had the nurses

placed a medication evaluation, requested the results of the evaluation, and

communicated the results to the physician, then a “reasonable prudent physician

would not have proceeded with the liver biopsy” and Curnel would have avoided

the injuries from it. Thus, Dr. Sheer suggests that unless there was “evidence of

acute liver failure or progressive liver dysfunction” from the results of the

medication evaluation, then the nurses were “required to intervene . . . to stop the

liver biopsy from proceeding.”

      Although the record shows that Dr. Naygandhi examined Curnel and ordered

a review of her medications, there is nothing showing that the nurses requested the

results of this review or communicated the results to the clinicians and physicians.

Because these steps in the “chain of command” did not occur, the nurses could not

have intervened to stop the scheduled liver biopsy if the results of the medication




                                        16
evaluation suggested that Curnel had acute liver failure or progressive liver

dysfunction.

      Methodist argues that the reports do not explain how “anything a hospital

employee, hospital, or hospital system would have communicated to the physicians

would have changed Curnel’s treatment or outcome given that the physician had

the information . . . they needed to cancel the biopsy.” We disagree because the

statute governing expert reports requires a relatively low threshold to establish the

cause-in-fact component. Loaisiga, 379 S.W.3d at 264 (interpreting TEX. CIV.

PRAC. & REM. CODE § 74.351 and explaining that an expert report “is a low

threshold . . . to show that [the] claim is not frivolous”). “An expert report need not

anticipate or rebut all possible defensive theories that may ultimately be presented

to the trial court, particularly when discovery in the case may yield information

that makes some potential theories untenable.” Bobinger, 2019 WL 3801664, at *7

(citing Owens, 478 S.W.3d at 187). The expert must simply provide some basis

that the defendant health care provider’s act or omission proximately caused

injury. Id.; see also Palacios, 46 S.W.3d at 879 (explaining that “a plaintiff need

not present evidence in the report as if it were actually litigating the merits . . . 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”). Dr. Sheer’s

report meets the low threshold as required by the statute and sufficiently describes


                                           17
how communication and nurse intervention would have prevented Curnel’s liver

biopsy and, ultimately, the injuries resulting from the liver biopsy. Bobinger, 2019

WL 3801664, at *7 (determining that the expert report satisfied the cause-in-fact

element because the expert explained how and why the surgeons’ reliance on

communication of a patient’s post-operative condition would have prevented

patient’s injuries).

       Based on Dr. Sheer’s expert reports, the trial court could have concluded

Curnel made an objective good faith effort to comply with the expert report

requirements. See TEX. CIV. PRAC. & REM. CODE § 74.351(l), (r)(6).

       2.     Foreseeability

       In Curnel I, the Court identified the deficiency in Dr. Sheer’s reports opining

on foreseeability and advised the Curnels to “explain how and why Methodist’s

nurses should have anticipated Curnel’s artery being nicked because of either

Methodist’s failure to implement and enforce policies and procedures requiring the

evaluation of hepatotoxic medication or the nurses’ failure to evaluate Curnel’s

medications for hepatotoxicity and to refuse to administer the drug.” 562 S.W.3d at

568.

       According to Dr. Sheer, Methodist’s breach was a foreseeable based on “the

biopsy consent form,” “policies and procedures regarding medication evaluation,”

and “the chain of command.” Specifically, Dr. Sheer explained that the significant


                                          18
risks associated with liver biopsies, such as hemorrhage, must be disclosed on the

“consent form for invasive diagnostic procedures” before a patient undergoes

surgery. Dr. Sheer explained that Methodist included the risk of hemorrhage on

Willowbrook’s consent form, and “reasonable prudent nurses should [have] read

and explain[ed] the complications before a patient signs the form.” Thus, it was

foreseeable to Methodist that any procedure that had a known risk from an invasive

diagnostic procedure would result in harm if the cause of the problem, such as

elevated enzymes, was not identified before proceeding with an invasive medical

procedure.

      As to the medication evaluation, Dr. Sheer explained that Methodist’s failure

to “evaluate medications for toxicity in a patient admitted for elevated liver values”

resulted in “unwarranted diagnostic testing” before the nurses and physicians

identified the actual cause of Curnel’s elevated liver enzymes. Dr. Sheer further

explained that, in such cases, a liver biopsy is an invasive procedure that “can

cause uncontrolled hemorrhage from injury to blood vessels and should not be

performed unless the necessity of the procedure warrants the risk.” Because the

“chain of command” policies and procedures were not implemented by Methodist,

the nurses failed to take affirmative steps to “prevent the administration of well-

known hepatoxic medications and the liver biopsy.” Curnel’s injury from the




                                         19
“contraindicated liver biopsy” was inevitable due to “their failure to implement and

enforce these” policies and procedures.

      Methodist contends that Dr. Sheer’s explanation on foreseeability is

insufficient because the policies and procedures do not “explain how the existence

of a policy regarding chain of command would have prevented Dr. Brodie from

cutting Curnel’s artery during the liver biopsy.” Methodist suggests that in order to

establish the foreseeability element, the expert report must specifically allege how

and why Curnel’s artery was cut during the liver biopsy and not merely rely on

“speculation or conjecture.” Methodist relies on the rationale in Milner, 575

S.W.3d at 75, to support its argument. In Milner, this Court explained why the

expert report in Curnel I was deficient:

      As for Curnel, it is inapposite because it concluded that the causation
      report was deficient on cause-in-fact because the report stated that the
      subsequent treating physicians did have the additional information
      that the nursing staff allegedly failed to provide to them so that they
      could make the correct diagnosis.

This explanation accurately describes the expert reports at the time of Curnel I.

However, Dr. Sheer’s expert reports have been amended since then and now

provide additional information about how the nurses should have performed a

medication evaluation and communicated the results to the physician and stepped

in to prevent the biopsy, an unnecessary invasive medical procedure during which

Curnel’s artery was cut. The additional information Methodist suggests is missing


                                           20
from the reports is not required to prove liability at this pre-discovery stage of

litigation. See Mahan, 520 S.W.3d at 189. Expert reports must provide a causal

relationship between the breach and the injury, but case law rejects requiring every

single detail to satisfy the requirements of Section 74.351. Id. (providing that a

plaintiff is “not required to prove the defendant’s liability, but rather to provide

notice of what conduct forms the basis of the plaintiff’s complaints.”).

      The Texas Supreme Court examined the issue of whether the trial court

abused its discretion by denying the defendants’ motion to dismiss for deficient

expert reports in Miller v. JSC Lake Highlands Operations, LP, 536 S.W.3d 510,

512 (Tex. 2017) (per curiam). The patient reported that she had lost her dental

bridge. Id. After unsuccessful attempts to locate her dental bridge, the patient

began coughing and showing signs of chest congestion. Id. An on-call physician

performed x-rays, which later revealed that the patient’s dental bridge was lodged

in her trachea. Id. This information was neither identified by the technician and

physician or noted in a report. Id. The patient’s condition worsened and she later

died. Id.

      The patient’s daughter filed a health care liability claim and served expert

reports. Id. The defendants moved to dismiss the claims for failure to serve

adequate expert reports. Id. Finding the reports deficient, the trial court granted an

extension to cure the deficiencies. Id. After the reports were amended, the trial


                                         21
court denied the renewed motions to dismiss. Id. The intermediate appellate court

reversed, holding the trial court abused its discretion in denying the motions to

dismiss because one expert’s opinion was read in isolation, stating “only that the

failure to timely remove the foreign body ‘can’ lead to aspiration, which ‘can’ be

deadly.” Id. at 512, 514.

      The patient’s daughter petitioned for review in the Texas Supreme Court. Id.

The court determined that the expert report identified the delay in discovering the

dental bridge in her trachea need not “outline the conduct of a particular defendant

who caused that delay because other reports supplied that information.” Id. at 514.

The court held that the expert reports adequately established the foreseeability

component because the expert “ma[de] clear that failing to identify the lodged

dental bridge and alert appropriate personnel could result in harm.” Id. at 515.

      Similarly, the court of appeals addressed whether expert reports adequately

established causation in JMA Partners, Inc. v. Guzman, No. 05-17-01464-CV,

2019 WL 1615345, at *4 (Tex. App.—Dallas Apr. 16, 2019, pet. denied) (mem.

op.). The patient underwent a routine cataract surgery, and the surgeon injected

into the patient’s eye a steroid medication, which was compounded by the

pharmacy, causing permanent damage to his eye. Id. at *1. The expert report

opined that the pharmacy failed to formulate, prepare, and test its steroid

medication to meet a safe, nontoxic pH level. Id. at *5. The expert further opined


                                         22
that this failure caused harm to the patient because “injury will occur if a

compound’s pH is not within a tolerable range for the confined space of the eye.”

Id. Disagreeing with appellee’s contention that the expert required additional

detail including, “either the specific pH of the medication . . . or an explanation of

what caused the pH to become ‘too high,’ was required” to establish foreseeability,

the court held that the expert report adequately “explains, to a reasonable degree,

how and why the alleged breach caused injury” to the patient because the expert

report adequately provided a causal relationship between the breach and the injury.

Id.

      Applying Miller and JMA Partners, we conclude that Methodist’s challenge

is overly narrow and ignores other parts of Dr. Sheer’s report because it argues that

the physicians had already documented a diagnosis of possible DILI and

discontinued all hepatotoxic medications. Our review of Dr. Sheer’s expert reports

must be inclusive. See Baty, 543 S.W.3d at 694 (stating that “courts must view the

report in its entirety, rather than isolating specific portions or sections”). Dr.

Sheer’s reports do not simply end with suggesting additional documentation and

medication evaluation was necessary to avoid Curnel’s injury. Rather, Dr. Sheer’s

reports explained that, with the standard of care in mind, the nurses should have

taken affirmative action to request the results of a medication evaluation, report

these results to the hospitalist, and require the hospitalist to determine the actual


                                         23
cause of the elevated liver enzymes; and, if the cause did not justify a liver biopsy,

then, in that instance, cancel the scheduled liver biopsy. Because the physicians

had already diagnosed Curnel with DILI and discontinued the medications causing

the DILI, the scheduled liver biopsy was unnecessary given that she showed signs

of improvement, which Dr. Naygandhi and Dr. Ugbarugba both documented, and a

medical professional within the chain of command (a nurse, the treating physicians,

or the radiologist scheduled to perform the liver biopsy) was supposed to cancel

the biopsy, but did not. For these reasons, we hold that Dr. Sheer’s reports

represents an objective good-faith effort to adequately explain “how and why”

Methodist’s breach of the standard of care caused Curnel’s liver biopsy and

subsequent liver injury.

C.    Adequacy of reports on the Nurse Defendants

      Next, we consider whether the expert reports from Dr. Sheer provide

adequate opinions on causation. We first address the cause-in-fact component, and

then we address the foreseeability component.

      1.     Cause-in-fact

      In Curnel II, the Court determined that Dr. Sheer’s reports opining on cause-

in-fact did not “(1) explain how and why the nurses’ failure to evaluate Curnel’s

medications and refrain from administering nitrofurantoin caused the biopsy and

resulting injuries when the physicians themselves evaluated Curnel’s medications


                                         24
and discontinued nitrofurantoin without cancelling or postponing the biopsy, (2)

explain how the nurses ‘had either the right or the means to persuade’ the

physicians to cancel the biopsy . . . , or (3) state that the nurses were part of the

decision to perform the biopsy or its timing.” 2018 WL 4014590, at *8. The Nurse

Defendants argue that Dr. Sheer’s seven expert reports “refers generally to

‘nursing staff’ and does not explain how or why any of the three named nurses

proximately caused Curnel’s injuries.”

      According to Dr. Sheer, the chain of command consists of physicians,

pharmacists, and nurses within the nursing department, pharmacy, and radiology

unit. Dr. Sheer reviewed the policies and procedures and did not find any policies

and procedures providing for the utilization of the “chain of command to prevent

administration of well-known hepatoxic medications” or to stop the liver biopsy

from proceeding. Dr. Sheer stated that the Nurse Defendants’ failure to evaluate

Curnel’s medications caused the biopsy and the injuries because they required to

“refuse to administer nitrofurantoin and advise the physicians that refusal was due

to the potential for causing liver injury.” Sheer opined that the Nurse Defendants

“deprived the physicians of relevant diagnostic information and resulted in their

motivation to order additional testing, including the liver biopsy, to determine the

cause of her abnormal liver values.”




                                         25
      Although the physicians had already diagnosed Curnel with DILI and

discontinued the medications causing the DILI in this case, Sheer opined that the

Nurse Defendants were required to “request that the biopsy be discontinued

pending the results, [and i]f the physicians failed to [cancel the biopsy], the

standard of care required the nurses to intervene and implement the chain of

command to stop the liver biopsy from proceeding.” Sheer further opined that an

invasive procedure, such as a liver biopsy, “carries significant risks such as

hemorrhage,” and because the Nurse Defendants were required to “understand the

diagnoses, indications, and complications of the diagnostic testing ordered,” their

failure to take affirmative acts to ensure that the liver biopsy was not performed

caused Curnel’s injuries from an unwarranted liver biopsy.

      The Nurse Defendants review Dr. Sheer’s expert reports too narrowly. Dr.

Sheer does not contend that Curnel’s damages were caused only by administering

nitrofurantoin. Instead, Dr. Sheer’s expert opinion is that the Nurse Defendants

should have recognized the cause of Curnel’s abnormal liver values before

proceeding with a liver biopsy. And even if the physicians had already diagnosed

Curnel with DILI, then the Nurse Defendants should have known that a liver

biopsy was not the next course of action. Thus, the Nurse Defendants were

required to personally intervene or contact each person within the chain of

command to prevent the radiologist from performing the procedure. Had the Nurse


                                        26
Defendants done so, the radiologist would not have performed the liver biopsy,

proximately causing Curnel’s injuries.

      2.    Foreseeability

      The Court also determined that Dr. Sheer’s reports opining on foreseeability

did not explain how and why the Nurse Defendants “explain how and why the

nurses should have anticipated that their negligent failure to evaluate Curnel’s

medications and to refrain from administering the drug would result in Curnel’s

artery being nicked during a biopsy of her liver.” Curnel II, WL 4014590, at *8.

      The Nurse Defendants argue that Sheer’s expert reports do not specifically

identify the Nurse Defendants or establish that they were “involved with the liver

biopsy consent form for Curnel,” but were only responsible for “Curnel’s care on”

October 8 through October 10.

      The question is not who obtained Curnel’s consent disclosing the risks

associated with a liver biopsy. See Miller, 536 S.W.3d at 514 (explaining that the

expert report “did not need to specifically name the person who caused the delay or

otherwise outline the conduct of a particular defendant who caused that delay”).

Rather, the question is whether the Nurse Defendants failed to appreciate the

known risks which were disclosed on the consent form. See Curnel I, 562 S.W.3d

at 566. Dr. Sheer’s reports discussed the anticipated dangers caused by the

negligent act or omission. Dr. Sheer stated that the nurses were aware of


                                         27
hemorrhage as a generally-known risk of an invasive medical procedure because it

was disclosed on the consent form.8 The Nurse Defendants were aware that a liver

biopsy was scheduled and had a duty to provide the disclosures on the consent

form. Because the Nurse Defendants did not “evaluate medications for toxicity in a

patient admitted for elevated liver values,” the radiologist was scheduled to

perform an “unwarranted diagnostic testing” before the nurses and physicians

identified the actual cause of Curnel’s elevated liver enzymes. And, Dr. Sheer

stated that, because the Nurse Defendants negligently omitted to implement the

chain of command to personally intervene before knowing the results of the

medical evaluation, the Nurse Defendants should have anticipated that Curnel

would have hemorrhaged. Therefore, we conclude that Dr. Sheer’s expert reports

explain how and why the Nurse Defendants’ failure to evaluate Curnel’s

medications and discontinue nitrofurantoin caused the biopsy and resulting

injuries.




8
       C.f. Curnel I, 562 S.W.3d at 566 (“Sheer does not address whether the risk was
       generally known or recognized by hospitalists like Esantsi before the surgery. Nor
       does Sheer provide information demonstrating that the risk is part of the informed
       consent disclosures or that a hospitalist of ordinary intelligence would have
       anticipated the danger of a patient’s blood vessel being cut during this type of
       procedure.”).

                                           28
      Dr. Sheer’s expert reports represent a basis for the trial court to have

concluded that they represent an objective good faith effort to comply with the

expert report requirements. See TEX. CIV. PRAC. & REM. CODE § 74.351(l), (r)(6).

      At this preliminary stage of litigation, the Court does not pass judgment on

the strength or weakness of the experts’ theories. “[W]ith respect to causation, the

court’s role is to determine whether the expert has explained how the negligent

conduct caused the injury. Whether this explanation is believable should be

litigated at a later stage of the proceedings.” Abshire, 563 S.W.3d at 226. The

ultimate evidentiary value of expert opinions is a matter to be determined at

summary judgment and beyond. Id.




                                        29
                                     Conclusion

      Having concluded that the expert reports provide notice of the conduct

forming the basis of the Curnels’ claims, we reverse the trial court’s judgment

dismissing their health care liability claims and remand the case to the trial court

for further proceedings consistent with this opinion.9




                                               Sarah Beth Landau
                                               Justice

Panel consists of Justices Lloyd, Goodman, and Landau.




9
      Willowbrook, Methodist, TMH Health Care Group, and the Nurse Defendants
      filed an objection and motion to strike the appendix to the Curnels’ amended reply
      brief. They contend that the documents attached to the reply brief are not part of
      the appellate record. Because we have not considered any matters outside the
      appellate record, we deny the motion to strike as moot.
                                          30
