                                      In The

                                Court of Appeals
                    Ninth District of Texas at Beaumont
                           ____________________
                            No. 09-18-00070-CV
                           ____________________
        DEBORAH HENDRYX AND KPH-CONSOLIDATION, INC.
          D/B/A KINGWOOD MEDICAL CENTER, Appellants

                                         V.

     CAROLINA DUARTE, INDIVIDUALLY AND AS NEXT FRIEND
       AND PERSONAL REPRESENTATIVE OF THE ESTATE
      OF BABY BOY DUARTE, AND ISRAEL DUARTE, Appellees

_______________________________________________________            ______________

                    On Appeal from the 410th District Court
                         Montgomery County, Texas
                       Trial Cause No. 17-05-05997-CV
________________________________________________________             _____________

                          MEMORANDUM OPINION

     In this interlocutory appeal, we are asked to decide whether the trial court

abused its discretion by denying a hospital’s and a physician’s respective motions to

dismiss a lawsuit filed by Carolina and Israel Duarte, which involved health care




                                         1
liability claims. 1 In their respective appeals, the hospital and the physician argue that

the expert report, filed by the Duartes, failed to meet the expert report requirements

found in the Texas Medical Liability Act (hereinafter, “the Act”). 2 Because the

expert report and accompanying resume, which listed the expert’s qualifications,

allowed the trial court to conclude that the report met the requirements in the Act,

we overrule the appellants’ issues and uphold the trial court’s order denying the

motions to dismiss.

                                      Background

      Carolina’s baby died on May 16, 2015, approximately six hours after he was

born. The expert medical report, filed by the Duartes, states that the baby died due

to being deprived of oxygen and blood when he was born in a prolonged “breech

presentation.” 3 Just under two years after the baby died, Carolina, her husband, and



      1
        Carolina sued the defendants individually and as Baby Boy Duarte’s next
friend and personal representative. Her husband, Israel, sued the defendants as the
baby’s father.
      2
        See Tex. Civ. Prac. & Rem. Code Ann. § 74.351(l) (West 2017) (requiring a
court to grant a motion challenging the adequacy of an expert report if the report
does not represent an objective good faith effort to comply with the definition of an
expert report, as provided by the Act).
      3
        We note that a “breech presentation” is a presentation of the fetus in which
the baby’s buttocks or feet arrive first at the mother’s uterine cervix. See WEBSTER’S
THIRD NEW INT’L DICTIONARY 274 (2002).
                                            2
their son’s estate sued KPH-Consolidation, Inc. d/b/a Kingwood Medical Center and

Dr. Deborah Hendryx, the hospital and the doctor involved in the baby’s delivery.

      In their original petition, the Duartes alleged that Kingwood Medical and Dr.

Hendryx were negligent for allowing Carolina to deliver the baby via a vaginal

delivery instead of delivering the baby by cesarean section.4 In July 2017, the

Duartes served the hospital and Dr. Hendryx with an expert medical report, authored

by Dr. William E. Roberts. Dr. Roberts attached his resume to his report. In his

report, Dr. Roberts explained why he believed he had the qualifications required to

render opinions about the care that Carolina received from Dr. Hendryx and

Kingwood Medical. The report contains Dr. Roberts’ opinions, which are critical of

the care Kingwood Medical and Dr. Hendryx provided Carolina. The report also

explains how the doctor and the hospital violated the standards of care that apply to

patients who present with signs and symptoms like those Carolina had when she

arrived, by ambulance, at Kingwood Medical in May 2015 to deliver her baby.

According to Dr. Roberts’ report, Carolina’s baby would have survived delivery had

he been delivered via cesarean.




      4
        A “cesarean” is “a surgical operation through the walls of the abdomen and
uterus for the purpose of delivering the young of a human[.]” WEBSTER’S THIRD
NEW INT’L DICTIONARY 367 (2002).
                                         3
      After the Duartes served Kingwood Medical and Dr. Hendryx with Dr.

Roberts’ report, Dr. Hendryx and Kingwood Medical filed motions to dismiss the

case. In their motions, both Kingwood Medical and Dr. Hendryx challenged Dr.

Roberts’ qualifications to offer opinions as an expert, asserting that Dr. Roberts was

not qualified because he was not actively practicing medicine or providing health

care when Carolina delivered the baby or when the Duartes filed their suit.

      Dr. Roberts’ report and resume contain information that is relevant to his

qualifications as an expert. The information in the report and the resume shows that

Dr. Roberts is currently licensed to practice medicine in Tennessee, that he has

specialties in obstetrics and gynecology, and that he is a subspecialist in maternal

fetal medicine. Dr. Roberts holds board certifications from the American Board of

Obstetrics and Gynecology. He first received his board certification in 1981 and has

been recertified since then in the field of obstetrics and gynecology, and in his

subspecialty of maternal fetal medicine.

      Dr. Roberts’ resume reflects that he has authored or co-authored two books in

the fields of his specialties, authored or co-authored eighteen chapters in other books

that were published in the field of obstetrics, and authored or co-authored eighty-

three journal articles, published on subjects relevant to his certifications. Dr. Roberts

has also authored or co-authored 104 abstracts in fields that involved his specialties.

                                           4
      The resume Dr. Roberts attached to his report contains information about his

employment history. The resume shows that Dr. Roberts completed an obstetrics

internship and residency at Keesler Air Force Base, in Mississippi, and that he served

as the chief of the obstetrics service at both Travis Air Force Base, in California, and

at Keesler Air Force Base. Dr. Roberts previously held a teaching position as

professor in the obstetrics and gynecology departments at the University of

Mississippi, as chief and then chair of the obstetrics department at Keesler Air Force

Medical Center, and he served as vice chairman of the obstetrics and gynecology

department at Lehigh Valley Medical Center in Allentown, Pennsylvania. Between

2007 and 2012, Dr. Roberts worked in the division of maternal fetal medicine for

Erlanger Health System in Chattanooga, Tennessee, while serving as a professor at

the University of Tennessee School of Medicine. Currently, Dr. Roberts is employed

by “Perinatal Consultants.” Dr. Roberts’ resume and report, however, contain no

further details about what his position with Perinatal Consultants entails.

      The report at issue shows what records Dr. Roberts reviewed in forming his

opinions in the Duartes’ case. He reviewed records from Carolina’s treating

obstetrician, Northeast Ob/Gyn Associates, records from Cypress Creek EMS (the

organization that transported Carolina to the hospital), and the preliminary and




                                           5
amended autopsy reports on Carolina’s baby, which states the cause of the baby’s

death in medical terms.

      Dr. Roberts’ report includes his opinions on the medical care Carolina

received from the hospital and Dr. Hendryx on May 16, 2015. Dr. Roberts’ opinions

are premised on the fact, as shown in Carolina’s medical records, that Carolina’s

baby was in a breech position at birth. The records Dr. Roberts reviewed also show

the baby was believed to be in a breech position when Carolina was last seen by her

treating obstetrician, more than a week before she delivered her baby. According to

Dr. Roberts, Carolina’s medical records show that in early April 2015, Carolina’s

treating obstetrician determined that Carolina’s baby was not in a head-down

position in her womb. Carolina saw her treating obstetrician again on May 5, 2015,

eleven days before she went to Kingwood Medical, where she delivered the baby.

The treating obstetrician’s records show that Carolina was thirty-four weeks

pregnant when last seen, but that her baby had still not turned in her womb.

According to Dr. Roberts’ report, Carolina’s obstetrician told her of “the continued

fetal malpresentation and the need for a cesarean delivery if it persists[.]” Carolina’s

obstetrician advised Carolina to contact the labor and delivery unit of the hospital

should she experience the symptoms of labor.




                                           6
      Dr. Roberts’ report contains information relevant to the day Carolina went

into labor. His report notes that Carolina did not immediately go to the hospital when

she began experiencing labor pains. Instead, she waited until 11:45 p.m., on May 15,

2015, before calling for an ambulance. Dr. Roberts then notes that the records of

Cypress Creek EMS state that Carolina informed the emergency responders who

came to her home that her baby was not in a head-down position based on the

information she received from her obstetrician. The Cypress Creek records also

show that Carolina told the emergency responders that she was having contractions

every five minutes. Cypress Creek EMS took Carolina to Kingwood Medical’s labor

and delivery unit, which admitted her on May 16, 2015, at 12:30 a.m.

      Dr. Roberts’ report also mentions what he found significant in Kingwood

Medical’s records. Upon Carolina’s arrival at the hospital, Carolina was seen by a

nurse. The nurse noted that Carolina’s cervix was completely effaced and dilated, at

eight centimeters. Around 12:42 a.m., Kingwood Medical notified Dr. Hendryx, the

obstetrician who was on-call that night, that Carolina had been admitted to the

hospital. At 12:47 a.m., Carolina requested that the nurse perform an ultrasound, but

the nurse who performed the test noted in the hospital’s records that she was unable

to determine the baby’s position in Carolina’s womb. At 12:53 a.m., the nurse called

Dr. Hendryx and asked that the doctor “perform the ultrasound to determine fetal

                                          7
position.” At 1:00 a.m., according to Dr. Roberts’ report, the hospital records show

that Dr. Hendryx was “at bedside and confirm[ed] the breech presentation.” At 1:01

a.m., Dr. Hendryx called for an emergency cesarean. The hospital’s records,

according to Dr. Roberts’ report, show that Dr. Hendryx and the nurses were ready

to perform the cesarean at 1:27 a.m., but were on standby because the anesthesiology

personnel needed to assist in the surgery had not yet arrived. At 1:31 a.m., Carolina’s

records show she began pushing uncontrollably and that she delivered the baby,

buttocks first. Although Carolina’s baby apparently survived his breech delivery, he

required emergency medical care. When examined at the nursery, the baby’s eyes

were fixed and dilated, and he was unresponsive to pain. Kingwood Medical

transferred the baby to another hospital, where he was pronounced dead around 7:30

a.m. According to Dr. Roberts’ report, an autopsy on the baby shows the baby died

of “‘global hypoxic ischemia of the brain in the setting of breech presentation with

prolonged delivery.’”

      Alleging that the negligence of Dr. Hendryx and Kingwood Medical caused

the baby’s death, the Duartes sued Dr. Hendryx and Kingwood Medical, alleging

that they failed to timely and adequately assess Carolina’s condition, failed to timely

provide her with the care she needed for her condition, and failed to timely and

adequately diagnose her condition. The petition also alleges that the acts and

                                          8
omissions of Dr. Hendryx and Kingwood Medical proximately caused the baby’s

death.

         After the Duartes served the defendants with Dr. Roberts’ report, Dr. Hendryx

objected to it on the ground that the report showed that Dr. Roberts, as of October

2012, was no longer actively engaged in the practice of medicine. Kingwood

Medical objected to Dr. Roberts’ report for additional reasons, claiming that the

information Dr. Roberts included with his report failed to show that Dr. Roberts was

qualified to express opinions about the care Carolina received from the hospital.

Additionally, Kingwood Medical argued that Dr. Roberts was no longer actively

practicing medicine as a health care provider. Finally, Kingwood Medical objected

to Dr. Roberts’ report because his opinions about how the hospital’s acts or

omissions caused the baby’s death were overly conclusory.

         After the Duartes failed to amend or supplement Dr. Roberts’ report, Dr.

Hendryx and Kingwood Medical moved to dismiss the Duartes’ claims. In late

January 2018, the trial court conducted a hearing on the defendants’ respective

motions to dismiss. Following the hearing, the trial court denied both motions. In its

order, the trial court found that Dr. Roberts’ report satisfied the expert report

requirements in the Act.5 The trial court also found that, to the extent there were any


         5
             See Tex. Civ. Prac. & Rem. Code Ann. § 74.351 (West 2017).
                                            9
deficiencies in the information that Dr. Roberts provided about whether he was

actively practicing medicine, “good reason [exists] to admit [his] testimony based

upon his extensive years of experience, training and teaching in the field at issue in

this case.” Thereafter, Kingwood Medical and Dr. Hendryx exercised their rights to

pursue interlocutory appeals from the denial of their motions.6

                                        Issues

      In their appeals, both Dr. Hendryx and Kingwood Medical contend that Dr.

Roberts failed to establish he is actively practicing medicine to author an expert

report that complies with the requirements of the Act.7 Unlike Dr. Hendryx, whose

only complaint concerns whether Dr. Roberts was actively practicing medicine as

required by the Act, Kingwood Medical also contends that Dr. Roberts failed to

show that he is knowledgeable about the standards of care applicable to a hospital’s

nursing staff and that his opinions about what caused the baby’s injury and death are

overly conclusory.

                                 Standard of Review

      In appeals from rulings on expert reports in health care liability cases, a trial

court’s ruling on a defendant’s motion to dismiss is reviewed by the appellate court


      6
          See id. § 51.014 (a)(9) (West Supp. 2018).
      7
          See id. §§ 74.401, 74.402 (West 2017).
                                          10
under an abuse-of-discretion standard.8 “A trial court abuses its discretion if it acts

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

principles.”9 When the plaintiff’s case is subject to the Act, trial courts may be found

to have abused their discretion in ruling on motions to dismiss when the record

before the appellate court demonstrates that the trial court failed to analyze or apply

the law correctly. 10 Absent an abuse of discretion, an appellate court may not

substitute its judgment for the judgment the trial court made on the motion.11

Moreover, just “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.”12




      8
       See Am. Transitional Care Ctrs. of Tex., Inc. v. Palacios, 46 S.W.3d 873,
877-78 (Tex. 2001).
      9
          Bowie Mem’l Hosp. v. Wright, 79 S.W.3d 48, 52 (Tex. 2002).
      10
           Walker v. Packer, 827 S.W.2d 833, 840 (Tex. 1992).
      11
         See In re Mem’l Hermann Hosp. Sys., 464 S.W.3d 686, 698 (Tex. 2015)
(citing Walker, 827 S.W.2d at 839-40); Wright, 79 S.W.3d at 52.
      12
       Palladian Bldg. Co., Inc. v. Nortex Found. Designs, Inc., 165 S.W.3d 430,
433 (Tex. App.—Fort Worth 2005, no pet.) (citing Downer v. Aquamarine
Operators, Inc., 701 S.W.2d 238, 241-42 (Tex. 1985)).

                                          11
      The Act requires that plaintiffs suing health care providers for medical

malpractice must file an “expert report” not later than the 120th day after the date

the health care provider answered the suit. 13 Under the Act, an “expert report” is a

written report by an expert that provides a fair summary of the expert’s opinions, as

of the date of the report, about the standards of care that apply to the health care

providers, the manner in which the medical care provided to the patient failed to

meet that standard, and how the medical provider’s failure to meet the required

standard of care caused the patient’s injury. 14 The Texas Supreme Court has

explained that, to comply with the Act, 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.” 15 Reports authored by physicians or other

medical experts that do no more than provide conclusory statements about the

standard of care that applies, how the provider breached the standard, and causation




      13
           Tex. Civ. Prac. & Rem. Code Ann. § 74.351(a).
      14
           Id. § 74.351(r)(6).
      15
           Palacios, 46 S.W.3d at 875.

                                           12
do not fulfill the purposes of the Act.16 Instead, under the Act, “‘the expert must

explain the basis of his statements to link his conclusions to the facts.’” 17

      Recently, the Texas Supreme Court explained that “the 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.” 18 After noting the

report’s purpose, the Court then explained that in ruling on motions to dismiss health

care liability claims, the trial court “need only find that the report constitutes a ‘good

faith effort’ to comply” with statutory requirements, as the expert, in the report, is

not required to “‘marshal all the claimant’s proof[.]’” 19

      In deciding whether an expert’s report in a health care liability case is

adequate to comply with the requirements of the Act, courts are to “consider only

the information contained within the four corners of the report.”20 Thus, as to a health

care provider’s complaint that a report fails to adequately explain how the provider


      16
           Id. at 879.
      17
        Wright, 79 S.W.3d at 52 (quoting Earle v. Ratliff, 998 S.W.2d 882, 890
(Tex. 1999)).
      18
           Abshire v. Christus Health Se. Tex., 563 S.W.3d 219, 223 (Tex. 2018) (per
curiam).
      19
           Id. (quoting Palacios, 46 S.W.3d at 878-79).
      20
           Id. (citing Palacios, 46 S.W.3d at 878).

                                           13
caused the patient’s injury, courts should focus on “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.” 21

                                        Analysis

Qualifications

      As both Dr. Hendryx and Kingwood Medical argue that Dr. Roberts was not

qualified to render opinions about Carolina’s care because he was no longer actively

engaged in practicing medicine, we address their arguments about whether the trial

court abused its discretion by finding he is actively practicing medicine before

addressing Kingwood Medical’s remaining issues. In evaluating an expert’s

qualifications, the qualifications the expert possesses must be evident from the four

corners of the report and from the resume that accompanies the expert’s report.22 We

use an abuse-of-discretion standard when reviewing the trial court’s decision that an

expert in a health care liability case has the qualifications that are required to allow




      21
           Id. at 226.
      22
       See Palacios, 46 S.W.3d at 878; Christus Health Se. Tex. v. Broussard, 267
S.W.3d 531, 536 (Tex. App.—Beaumont 2008, no pet.).

                                           14
the expert to express opinions about whether the medical care that a patient received

from the health care provider violated the standards that apply to the provider. 23

      To qualify as an expert in a health care liability claim against a physician, the

Act requires the expert to 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. 24

The Act goes on to define the terms “practicing medicine” as including, but are not

limited to, “training residents or students at an accredited school of medicine or

osteopathy or serving as a consulting physician to other physicians who provide

direct patient care, upon the request of such other physicians.” 25 In assessing the

expertise of individuals who author reports for health care liability claims against

physicians, trial courts are authorized to consider whether the author of the report is


      23
        Cornejo v. Hilgers, 446 S.W.3d 113, 121 (Tex. App.—Houston [1st Dist.]
2014, pet. denied) (citing Broders v. Heise, 924 S.W.2d 148, 151-52 (Tex. 1996)).
      24
           Tex. Civ. Prac. & Rem. Code Ann. § 74.401(a).
      25
           Id. § 74.401(b).

                                          15
“board certified or has other substantial training or experience in an area of medical

practice relevant to the claim” 26 and whether the author is “actively practicing

medicine in rendering medical care services relevant to the claim.” 27 With respect to

whether the author of an expert report that is filed in a health care liability claim is

qualified to express opinions on causation, whether the defendant in the case is a

physician or a hospital, the Act requires the report’s author to be “a physician who

is otherwise qualified to render opinions on such causal relationship under the Texas

Rules of Evidence[.]” 28

      Section 74.402 of the Act addresses the qualifications for experts who author

expert reports in health care liability cases that are critical of the care provided to

patients by hospitals. To qualify as an expert on the subject of the medical care a

patient received at a hospital, the Act states the person may qualify as an expert

witness only if the person

      (1) is practicing health care in a field of practice that involves the same
      type of care or treatment as that delivered by the defendant health care
      provider, if the defendant health care provider is an individual, at the
      time the testimony is given or was practicing that type of health care at
      the time the claim arose;
      26
           Id. § 74.401(c).
      27
           Id.
      28
           Id. § 74.351(r)(5)(C).

                                          16
      (2) has knowledge of accepted standards of care for health care
      providers for the diagnosis, care, or treatment of the illness, injury, or
      condition involved in the claim; and

      (3) is qualified on the basis of training or experience to offer an expert
      opinion regarding those accepted standards of health care.29

The term “‘practicing health care’” is defined in the Act to include “training health

care providers in the same field as the defendant health care provider at an accredited

educational institution[,]” or “serving as a consulting health care provider and being

licensed, certified, or registered in the same field as the defendant health care

provider.”30 Nevertheless, as to hospitals, the Act allows courts to find that an

individual who is practicing medicine in a field of practice that involves the same

type of treatment involved in the claim as the treatment provided by the health care

provider to have the qualifications needed to be knowledgeable about the standards

of care that apply to hospitals.31 In determining whether the author of a report is

qualified to express opinions about a health care provider, and if the author’s

qualifications are based on his training and experience, the Act authorizes courts to

consider whether the person who authored the expert report is “certified by a


      29
           Id. § 74.402(b).
      30
           Id. § 74.402(a) (emphasis added).
      31
           Id. § 74.402(b)(1).
                                          17
licensing agency of one or more states of the United States or a national professional

certifying agency, or has other substantial training or experience, in the area of health

care relevant to the claim[.]” 32 As to hospitals, the Act provides that trial courts also

consider if the author of a report critical of a hospital “is actively practicing health

care in rendering health care services relevant to the claim.” 33

      Dr. Roberts’ expert report and resume show that before October 2012, he was

actively involved in and had a great deal of experience writing, teaching, and

practicing medicine in the field of obstetrics, including the more specialized field of

high-risk pregnancies. His report shows that currently, he works as a consultant in

the field of perinatal medicine. As a consultant in that field, the trial court could have

inferred that Dr. Roberts consults on medical matters that arise in a period

immediately before or after a baby’s birth. Nevertheless, the name “Perinatal

Consultants” does not reveal whether Dr. Roberts has consulted with patients and

doctors (as opposed to consulting only with lawyers) on matters that concern

childbirth, either in May 2015, when Carolina was treated at Kingwood Medical, or

in January 2017, when he signed the report.




      32
           Id. § 74.402(c).
      33
           Id.
                                           18
      The Texas Supreme Court has acknowledged that not every licensed medical

doctor is automatically qualified to provide a court with an opinion on all medical

matters. 34 Nevertheless, the Court cautioned lower courts that the Act’s

qualifications test “‘should not be too narrowly drawn[.]’” 35 The Court explained

that the criteria spelled out in the Act “cannot be rigidly applied because it is

expressly nonexclusive.”36 As to the requirement in the Act that a physician be

actively practicing medicine at the time identified in the Act, the term “practicing

medicine” is defined to include (but is not limited to) “serving as a consulting

physician to other physicians who provide direct patient care, upon the request of

such other physicians.” 37

      The information that Dr. Roberts provided to the trial court shows that he is

currently licensed, that he is board certified in multiple fields relevant to delivering

babies, and that he is currently consulting in the field of medicine that is relevant to

the Duartes’ claims. Currently, Dr. Roberts consults on matters involving new-born


      34
       Benge v. Williams, 548 S.W.3d 466, 472 (Tex. 2018) (quoting Larson v.
Downing, 197 S.W.3d 303, 305 (Tex. 2006) (per curiam)).
      35
           Id.
      36
           Id.
      37
           Tex. Civ. Prac. & Rem. Code Ann. § 74.401(b).

                                          19
babies, a field that is directly relevant to the issues that are involved in the Duartes’

case. We conclude the trial court was not required to rigidly apply the qualifications

test by assuming that Dr. Roberts consults only with lawyers and to assume that he

does not consult with doctors or other health care providers on matters involving

perinatal medicine.

      Nonetheless, even if the information the trial court had about Dr. Roberts’

consulting work was incomplete, the Act gave the trial court the right to excuse the

active practice requirement if, “under the circumstances, the court determines that

there is a good reason to admit the expert’s testimony.” 38 Here, the trial court

specifically found that the exception applied, basing its decision on Dr. Roberts’

experience training others and teaching in the field of medicine that is relevant to the

issues in dispute.39 The trial court’s decision to relax the active practice requirement

is stated on the record, and the trial court did not abuse its discretion by relaxing the

active practice requirement under the circumstances in this case. 40


      38
           Id. §§ 74.401(d), 74.402(d).
      39
         The trial court’s order states that “[t]o the extent there is any deficiency [in
the information Dr. Roberts provided in his report about his qualifications],
particularly in regards to ‘[p]racticing medicine’ this Court finds good reason to
admit William E. Robert[s], M.D.’s testimony based upon his extensive years of
experience, training[,] and teaching in the field at issue in this case.”
      40
           Id. §§ 74.401(d), 74.402(d).
                                           20
      In its brief, Kingwood Medical contends the trial court abused its discretion

relaxing the active practice of medicine requirement because the Legislature never

intended the exception to apply unless, from the information the expert provided to

the court, the court could positively determine that the expert was in fact no longer

actively practicing medicine. Kingwood Medical argues the exception does not

apply when the author of the expert report simply “failed to satisfy the criteria of

[section 74.402,] subsections (a) to (c)[,]” which are the subsections that contain the

criteria courts are to follow in deciding whether an expert is “practicing health care.”

      We disagree that the exception, found in subsection (d), applies only when the

information before the court about a physician who authors an expert report

affirmatively shows that the physician is no longer practicing medicine. Subsection

(d) allows trial courts to depart from the other criteria the Legislature set out in

subsections (a)-(c) if the trial court finds that “there is good reason to admit the

expert’s testimony,” and it states that reason on the record. 41 Put simply, the

Legislature did not restrict the way trial courts apply the exception to prevent the

trial court from applying it under the circumstances that were before it here.




      41
           Id.

                                          21
      Additionally, Kingwood Medical argues that the information that Dr. Roberts

provided to the trial court fails “to establish he has knowledge of the standard of

care” that applies to the hospital “in this situation.” Dr. Roberts’ report, however,

states that he has “a thorough understanding of all standards of care applicable in

this case through [his] knowledge, training, and experience.” The trial court could

reasonably construe Dr. Roberts’ statement about his knowledge of the standard of

care to mean that he was familiar with the standard of care that applies to hospitals

based upon his experience as a board-certified obstetrician, his experience as the

chief of obstetrics and experience as chairman of the obstetrics department when he

worked at hospitals, his experience writing books and articles, and his experience

teaching other physicians about the care a mother needs to allow a baby to survive

the mother’s high-risk pregnancy. 42 We conclude the trial court did not abuse its

discretion by finding Dr. Roberts possessed the qualifications needed to author an

expert report critical of the care that Carolina received from Kingwood Medical.



      42
         See Methodist Hosp. v. Shepherd-Sherman, 296 S.W.3d 193, 198 (Tex.
App.—Houston [14th Dist.] 2009, no pet.) (“If the doctor is familiar with the
standard of care for other health care providers based on experience working with or
supervising them, then he can be qualified to render an opinion.”); see also Baylor
Med. Ctr. at Waxahachie, Baylor Health Care Sys. v. Wallace, 278 S.W.3d 552,
558-59 (Tex. App—Dallas 2009, no pet.); San Jacinto Methodist Hosp. v. Bennett,
256 S.W.3d 806, 814 (Tex. App.—Houston [14th Dist.] 2008, no pet.).

                                         22
Causation

       Lastly, Kingwood Medical argues that because Dr. Roberts’ opinions on

causation are conclusory and speculative, the trial court should have agreed with its

claims that his report did not constitute a good faith effort to comply with the

requirements of the Act. 43 Kingwood Medical’s argument is premised on its apparent

belief that Dr. Roberts’ opinions about the hospital’s care revolve entirely around

his assumption that Cypress Creek’s emergency responders passed on the

information to the hospital’s nurses that Carolina’s baby was not in a head-down

position in her womb. Kingwood Medical concludes that Dr. Roberts’ criticisms

about the hospital’s care, as to causation, were based entirely on that one assumption.

      To comply with the causation requirements in the Act, the physician who

authors the expert report must link his conclusions to the facts involved in the

patient’s treatment. 44 While Kingwood Medical assumes that Dr. Roberts relied

entirely on an assumption that the emergency responders told the nurses that

Carolina told them her baby was in a breech position at the last appointment she had

with her obstetrician, the trial court could have reasonably concluded that Carolina



      43
           See Tex. Civ. Prac. & Rem. Code Ann. § 74.351(l).
      44
           See Wright, 79 S.W.3d at 53.

                                          23
gave the nurses that same information after she arrived at the hospital. For example,

Dr. Roberts’ report indicates that Carolina told one of Kingwood Medical’s nurses

that she wanted them to perform an ultrasound. From this information, the trial court

could reasonably infer that Carolina told the nurses that she feared her baby was not

properly positioned in her womb. Dr. Roberts’ report, when read as a whole,

suggests the nurses obtained information about the baby’s position but then failed to

act in a timely manner to pass that information on to Dr. Hendryx. In evaluating

Kingwood Medical’s arguments, the trial court was not required to focus on any one

statement in Dr. Roberts’ report. Instead, the trial court was entitled to read the report

in its entirety, and in context, in determining whether Dr. Roberts’ report established

that the Duartes have potentially meritorious claims. 45

      When explaining causation “the expert need not prove the entire case or

account for every known fact; the report is sufficient if it makes ‘a good-faith effort

to explain, factually, how proximate cause is going to be proven.’” 46 Here, the trial

court could have reasonably found that Dr. Roberts’ report represented a good faith

effort to explain how the hospital’s acts and omissions proximately caused the baby


      45
        See Abshire, 563 S.W.3d at 223; Benavides v. Garcia, 278 S.W.3d 794, 799
(Tex. App.—San Antonio 2009, pet. denied).
      46
        Abshire, 563 S.W.3d at 224 (quoting Columbia Valley Healthcare Sys., L.P.
v. Zamarripa, 526 S.W.3d 453, 460 (Tex. 2017)).
                                           24
to be delivered in a buttocks-down position. The report also explains why, had

Carolina had a cesarean, the baby would have lived. The report traces the failure of

the hospital’s nurses to convey critical information about Carolina’s history to Dr.

Hendryx in a timely manner to the delays that prevented a surgical procedure that

Dr. Roberts’ report indicated would have saved the baby’s life.

       We conclude that Dr. Roberts’ report provides a straightforward link between

the treatment that Carolina received from Kingwood Medical and her baby’s death.47

We further conclude that the opinions that Dr. Roberts expressed in his report are

not overly conclusory, as the facts that Dr. Roberts relied on in the medical records

are tied to his ultimate conclusions.48

       For the reasons discussed, we overrule the appellants’ issues and affirm the

trial court’s order.

       AFFIRMED.

                                                    _________________________
                                                         HOLLIS HORTON
                                                              Justice

Submitted on June 4, 2018
Opinion Delivered March 7, 2019

Before McKeithen, C.J., Kreger and Horton, JJ.
       47
            See id. at 227.
       48
            See Wright, 79 S.W.3d at 52.
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