                  NUMBER 13-15-00024-CV

                    COURT OF APPEALS

             THIRTEENTH DISTRICT OF TEXAS

               CORPUS CHRISTI - EDINBURG


MARIA ZAMARRIPA, AS TEMPORARY
GUARDIAN OF THE ESTATES OF R.F.R.
AND R.J.R., MINORS, AND OLGA FLORES,
AS TEMPORARY ADMINISTRATOR OF THE
ESTATE OF YOLAND IRIS FLORES,                          Appellants,

                               v.

BAY AREA HEALTH CARE GROUP, LTD
D/B/A CORPUS CHRISTI MEDICAL CENTER,
HIDALGO COUNTY EMS, AND HIDALGO
COUNTY EMERGENCY MEDICAL
SERVICE FOUNDATION,                                     Appellees.


             On appeal from the 445th District Court
                  of Cameron County, Texas.


                  MEMORANDUM OPINION

        Before Justices Rodriguez, Benavides, and Perkes
            Memorandum Opinion by Justice Perkes
       Appellants Maria Zamarripa, as temporary guardian of the estates of R.F.R. and

R.J.R., minor children, and Olga Flores, as temporary administrator of the estate of

Yolanda Flores (collectively Zamarripa), appeal the trial court’s granting of motions to

dismiss their health care liability claim in favor of appellees Bay Area Health Care Group

d/b/a Corpus Christi Medical Center (CCMC), Hidalgo County EMS, and Hidalgo County

Emergency Medical Service Foundation (EMS). See TEX. CIV. PRAC. & REM. CODE ANN.

§ 74.351(b) (West, Westlaw through 2015 R.S.). By three issues, Zamarripa argues:

(1) the trial court erred by granting EMS more relief than requested; (2) the expert reports

constitute a “good faith effort” as to EMS; and (3) the expert reports constitute a “good

faith effort” as to CCMC. We affirm.

                                    I.    BACKGROUND

       When she was approximately thirty-two weeks pregnant, Yolanda Flores arrived

by ambulance at Valley Regional Medical Center in Brownsville. That day, she was

assessed and treated at Valley Regional by Dr. Patrick Ellis, M.D. and Dr. Whitney

Gonsoulin, M.D. Due to pregnancy complications, Hidalgo County EMS transported

Flores from Valley Regional to Bay Area Hospital in Corpus Christi by ground ambulance

later in the day. Due to a traffic jam, EMS was delayed in arriving at Bay Area Hospital

and Flores suffered a placental abruption in route. She arrived at Bay Area Hospital

bleeding. She underwent a cesarean section and hysterectomy but was pronounced

dead at the hospital later that night.




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        Zamarripa filed suit against CCMC and EMS, along with numerous other

defendants, alleging CCMC’s and EMS’s negligence caused Flores’s death.1 In support

of the health care liability claims against CCMC, Zamarripa timely filed two expert

reports—the first authored by Frederick Harlass, M.D. and the second authored by Grace

Spears, R.N. Dr. Harlass practices maternal-fetal medicine while Spears is a pediatric

case manager for hematology and oncology. In support of the health care liability claim

against EMS, Zamarripa filed expert reports authored by Dr. Harlass and Jonathan

Tibaldo, R.N. Tibaldo is a licensed registered nurse who is certified in and practices

emergency medicine.

        EMS filed objections to Dr. Harlass’s and Tibaldo’s expert reports. Specifically,

EMS alleged that Dr. Harlass’s report failed to establish that EMS caused Flores’s death.

EMS also challenged Tibaldo’s qualifications and claimed that his report failed to state

the standard of care. EMS filed no separate motion to dismiss, though in its objection to

the expert reports it concluded that Zamarripa filed “no reports” and asked the trial court

to dismiss her claims.

        CCMC also filed objections to Dr. Harlass’s and Spears’s expert reports. CCMC

argued that Dr. Harlass’s report did not state the standard of care for CCMC or its

employees, failed to explain how CCMC breached the standard of care, failed to explain

how any breach in the standard of care caused Flores’s death, and misstated the medical

records and communications associated with the medical care Flores received. CCMC



       1 Though not part of this appeal, the additional named defendants are Colombia Valley Health Care

System, L.P. d/b/a Valley Regional Medical Center, Dr. Ricardo Lemus, Dr. Patrick Ellis, and Dr. Whitney
Gonsoulin. The trial court severed these defendants from the present case.
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further asserted that Dr. Harlass was unqualified to opine on CCMC’s standard of care or

the cause of Flores’s death. Similarly regarding Spears’s report, CCMC alleged that it

failed to identify the standard of care, imposed a duty on CCMC forbidden by Texas law,

failed to explain how CCMC breached the standard of care, based opinions on

speculation and conjecture, and misstated medical reports and medical care that Flores

received. It also claimed that Spears was unqualified to render opinions on the standard

of care. CCMC subsequently filed a motion to dismiss Zamarripa’s claim and asserted

that Dr. Harlass and Spears’s reports constituted “no report” as to CCMC.

      The trial court granted the requested relief and dismissed Zamarripa’s case against

CCMC and EMS. This appeal ensued.

                               II.          STANDARD OF REVIEW

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

Jernigan v. Langley, 195 S.W.3d 91, 93 (Tex. 2006); Maris v. Hendricks, 262 S.W.3d 379,

383 (Tex. App.—Fort Worth 2008, pet. denied); Ctr. for Neurological Disorders, P.A. v.

George, 261 S.W.3d 285, 290–91 (Tex. App.—Fort Worth 2008, pet. denied). A trial

court abuses its discretion if the court acts without reference to any guiding rules or

principles, that is, if the act is arbitrary or unreasonable. Low v. Henry, 221 S.W.3d 609,

614 (Tex. 2007); Cire v. Cummings, 134 S.W.3d 835, 838–39 (Tex. 2004). An appellate

court cannot conclude that a trial court abused its discretion merely because the appellate

court would have ruled differently in the same circumstances. E.I. du Pont de Nemours

& Co. v. Robinson, 923 S.W.2d 549, 558 (Tex.1995); see also Low, 221 S.W.3d at 620.

                                     III.    APPLICABLE LAW


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       The purpose of the expert report requirement in a health care liability claim is to

inform the defendant of the specific conduct the plaintiff has called into question and to

provide a basis for the trial court to conclude that the claims have merit. Bowie Mem’l

Hosp. v. Wright, 79 S.W.3d 48, 52 (Tex. 2002) (citing Am. Transitional Care Ctrs. of Tex.,

Inc. v. Palacios, 46 S.W.3d 873, 879 (Tex. 2001)). An expert report “need not marshal

all the plaintiff’s proof.” Palacios, 46 S.W.3d at 878 (construing former article 4590i,

section 13.01, now section 74.351). Additionally, 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.”   Id. at 879.   However, if a report omits any of the statutory

elements, it cannot be a good-faith effort. Id. A report that merely states the expert’s

conclusions about the standard of care, breach, and causation is not sufficient. Id.

       The expert’s report must provide a “fair summary” of the expert’s opinions

regarding 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). If the defendant files a motion challenging the

adequacy of the expert report, the court shall grant the motion “only if it appears to the

court, after a hearing, that the report does not represent an objective good faith effort to

comply with the definition of an expert report.” Id. § 74.351(l).

                              IV.    EMS REQUESTED RELIEF

       By her first issue, Zamarripa argues the trial court abused its discretion by granting

EMS more relief than it requested. Zamarripa claims that EMS never filed a separate


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and specific “motion to dismiss.” She asserts that EMS’s objections to the expert reports

does not encompass a “motion to dismiss.”

        The substance of a motion, rather than its title, determines its nature. State Bar

of Tex. v. Heard, 603 S.W.2d 829, 833 (Tex. 1980); Tex.-Ohio Gas, Inc. v. Mecom, 28

S.W.3d 129, 142 (Tex. App.—Texarkana 2000, no pet.). A motion’s substance is to be

determined from the body of the instrument and its prayer for relief. Tex.-Ohio Gas, Inc.,

28 S.W.3d at 142.

        In the “introduction” section of its objections, EMS stated:     “[a]lthough these

reports attempt to comply with Section 74.351 of the Texas Civil Practice and Remedies

Code, they fail to comply for the reasons set forth below and this case should be

dismissed.” The body of the motion described the various failures of the respective

expert reports. Next, under a section labeled “IV,” EMS asserted “[t]here are no reports

filed by [Zamarripa] and there [sic] claims should be dismissed.” While the motion’s

prayer asks the trial court to “sustain their objections,” it also asks for “such other and

further relief . . . .”

        We conclude that the trial court could reasonably have construed EMS’s motion

objecting to Zamarripa’s expert reports as a motion to dismiss. Therefore, the trial court

did not abuse its discretion in granting EMS’s “motion to dismiss.” See id. Zamarripa’s

first issue is overruled.

                            V.    EXPERT REPORTS AS TO EMS

        By her second issue, Zamarripa argues the expert reports served on EMS comply

with the requirements of chapter 74. See TEX. CIV. PRAC. & REM. CODE ANN. § 74.351.


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Zamarripa first addresses Tibaldo’s qualifications. In addressing the substance of the

reports, Zamarripa claims that Tibaldo’s report addressed the applicable standard of care

and how EMS breached the standard of care, whereas Dr. Harlass’s report discussed

causation.

       We first address Dr. Harlass’s expert opinion regarding causation. Zamarripa

argues that Dr. Harlass’s report provided a “fair summary” of his opinions “regarding the

causal relationship between the failure of [EMS] to provide care in accord with the

pertinent standard of care.”

       Relative to causation as applied to EMS, Dr. Harlass’s initial report stated:

       The ground ambulance transfer (and the Hidalgo County EMS personnel’s
       failure to divert) allowed her bleeding and abruption to continue to progress
       to where she became non-responsive and had cardiac arrest. As a result
       of the health care personnel’s breaches, Mrs. Flores he [sic] suffered
       placental abruption, cardiac arrest, DIC, and death, and her fetus died.

Dr. Harlass’s supplemental report further stated:

       . . . due to the breaches of care by EMS in doing the transfer of Mrs. Flores
       on 5/15/12 via a ground ambulance for a cross-country transfer when she
       was in preterm labor and she had a known placental accreta (that can
       detach and begin to bleed profusely), Mrs. Flores was in a location
       (ambulance on the highway) when and where timely emergent C-section
       and hysterectomy surgery was not available when she began to bleed from
       the abrupted placenta. Her bleeding caused her cardiovascular arrest due
       to lack of oxygen carried to the heart for sufficient pumping. This collapse
       led to her DIC and her death. Due to the BAH [CCMC] personnel’s
       breaches of care in informing the EMS personnel not to divert when Mrs.
       Flores was in an emergency situation (oxygen deprivation and bleeding)
       and due to EMS’s breach of care in not diverting, her bleeding continued
       unabated and she suffered cardiovascular arrest, DIC and death.

       A causal relationship is established by proof that the negligent act or omission was

a substantial factor in bringing about the harm, and that, absent this act or omission, the


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harm would not have occurred. Tenet Hosps. Ltd. v. Barajas, 451 S.W.3d 535, 547–48

(Tex. App.—El Paso 2014, no pet.). The expert report must explain the basis for the

causation opinions by linking the expert’s conclusions to the alleged breach. Barajas,

451 S.W.3d at 548; see Wright, 79 S.W.3d at 53. Causation cannot be inferred; it must

be clearly stated. Castillo v. August, 248 S.W.3d 874, 883 (Tex. App.—El Paso 2008,

no pet.). “[W]e are precluded from filling gaps in a report by drawing inferences or

guessing as to what the expert likely meant or intended.” Fulp v. Miller, 286 S.W.3d 501,

509 (Tex. App.—Corpus Christi, 2009, no pet.); see Austin Heart, P.A. v. Webb, 228

S.W.3d 276, 279 (Tex. App.—Austin 2007, no pet.). Moreover, “the only information

relevant to the inquiry is within the four corners of the document.” See Am. Transitional

Care Ctrs. of Tex., Inc. v. Palacios, 46 S.W.3d 873, 878 (Tex. 2001).

       Dr. Harlass’s report does not explain how EMS’s failure to divert caused Flores’s

death. Dr. Harlass concludes that EMS’s failure to divert allowed Flores’s bleeding to

continue, but he fails to explain to where EMS should have diverted, whether other

facilities were even available or within a distance that would allow for timely intervention,

whether the facilities would have been able to provide the prescribed treatment, and

whether diverting would have probably saved Flores’s life. Thus, without the aid of

natural inferences “as to what the expert likely meant or intended,” Dr. Harlass fails to

explain how a diversion would have affected the ultimate outcome.            See Fulp, 286

S.W.3d at 509.

       We conclude that Dr. Harlass’s report contains analytical gaps that fail to connect

EMS’s failure to divert to having caused Flores’s death. See Wright, 79 S.W3d at 52;


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see also Park Place Hosp. v. Estate of Milo, 909 S.W.2d 508, 510–11 (Tex. 1995)

(concluding the premature attempt to wean patient from respirator leading to patient's

death did not proximately cause death when the patient had “only a fifty percent or less

chance of survival”); Jones v. King, 255 S.W.3d 156, 160–61 (Tex. App.—San Antonio

2008, pet. denied) (concluding the report failed to meet the standards with regard to

causation where the report failed to link any delay in diagnosis to any additional pain or

suffering or exacerbation of the meningitis than would have occurred in the face of the

earlier diagnosis). We further conclude that Dr. Harlass report does not qualify as an

“expert report” under Texas law with respect to EMS because it fails to adequately explain

how EMS’s transportation delays were substantial factors in bringing about Flores’s

death. See TEX. CIV. PRAC. & REM. CODE ANN. § 74.351(r)(6). Given Zamarripa’s failure

to meet the statutory element of causation with respect to EMS, the trial court did not

abuse its discretion by granting EMS’s motion to dismiss. See Palacios, 46 S.W.3d at

878–79. Zamarripa’s second issue is overruled.

                              VI.     EXPERT REPORT AS TO CCMC

       By her third issue, Zamarripa argues the trial court erred by granting CCMC’s

motion to dismiss. She contends that Dr. Harlass’s report satisfied the requirements of

chapter 74 by sufficiently explaining the causal connection between CCMC’s alleged

breach of the standard of care and Flores’s death. See TEX. CIV. PRAC. & REM. CODE

ANN. § 74.351(r)(6).        Specifically, Zamarripa contends that Dr. Harlass’s report

“established that CCMC’s breach[2] caused [Flores] to be stranded on a highway, in an


       2  CCMC’s alleged breach was its failure to divert EMS to a closer medical facility rather than
allowing EMS to proceed to CCMC.
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ambulance, without access to life-saving surgery, while bleeding to death and suffering

cardiac arrest.” We disagree.

       Although Dr. Harlass need only offer a “fair summary” of statutory requirements,

his conclusions regarding CCMC’s alleged breach of the standard of care and Flores’s

death is insufficient. See Palacios, 46 S.W.3d at 879. Similar to the failures in providing

causation regarding EMS, Dr. Harlass fails to explain whether a closer facility existed,

whether the facility would have been able to administer the necessary treatment, and

whether Flores’s death would have probably been prevented had CCMC directed EMS

to divert to a closer facility. We are precluded from filling gaps in Dr. Harlass’s report by

drawing these inferences. See Fulp, 286 S.W.3d at 509.

       By failing to adequately provide a “fair summary” of the causation of Flores’s death

regarding CCMC, Dr. Harlass’s report did not comply with the statutory requirements.

See TEX. CIV. PRAC. & REM. CODE ANN. § 74.351(r)(6); Palacios, 46 S.W.3d at 878–79.

Accordingly, the trial court did not abuse its discretion by granting CCMC’s motion to

dismiss. Zamarripa’s third issue is overruled.

                                    VII.   CONCLUSION

       We affirm the trial court’s judgment.

                                                    GREGORY T. PERKES
                                                    Justice
Delivered and filed the
22nd day of November, 2016.




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