REVERSE and REMAND; and Opinion Filed August 27, 2019.




                                              In The
                                Court of Appeals
                         Fifth District of Texas at Dallas
                                       No. 05-18-00928-CV

                       VICTORIA KERR, Appellant
                                 V.
 PIRF OPERATIONS, LLC DBA ACCEL REHABILITATION HOSPITAL OF PLANO
                        AND JANE DOE, Appellees

                       On Appeal from the 219th Judicial District Court
                                    Collin County, Texas
                           Trial Court Cause No. 219-04279-2017

                              MEMORANDUM OPINION
                           Before Justices Myers, Molberg, and Carlyle
                                   Opinion by Justice Molberg

       Victoria Kerr appeals the trial court’s order dismissing with prejudice her health care

liability claims against PIRF Operations, LLC d/b/a Accel Rehabilitation Hospital of Plano (Accel)

and Jane Doe. In four issues, Kerr contends the trial court erred by dismissing her claims without

granting her a thirty-day extension of time to cure any deficiencies in the medical expert report she

served on Appellees pursuant to the Texas Medical Liability Act (TMLA), TEX. CIV. PRAC. &

REM. CODE ANN. §§ 74.001–.507, arguing: (1) Karis Schirmer, RN, BSN, was qualified to testify

to the applicable standard of care for nurses and nurse assistants; (2) the expert report submitted

by Kerr represented a good faith effort to comply with the statutory requirements of the TMLA;

(3) the trial court should have granted Kerr a thirty-day extension of time to cure any deficiencies



                                                –1–
in her expert report; and (4) the trial court’s failure to file findings of fact and conclusions of law

is presumed harmful.1

           For the reasons that follow, we conclude Kerr’s chapter 74 expert report represented a good

faith effort to comply with the statutory requirements of the TMLA, and the trial court should have

granted Kerr a thirty-day extension of time to cure any deficiencies in her expert report.

Accordingly, we reverse the trial court’s order dismissing Kerr’s claims with prejudice, and we

remand this cause to the trial court with the instruction to grant Kerr a thirty-day extension of time

to afford her the opportunity to cure any deficiencies in her chapter 74 expert report, and for further

proceedings consistent with this opinion.

                                                   BACKGROUND

                                                 Factual Background

           The following facts are drawn from the allegations in Kerr’s petition. Kerr filed this lawsuit

against Appellees after she fell in a shower at Accel, sustaining severe injuries to her lumbar spine,

pelvis, knees, toes, and jaw. Kerr sustained these injuries after her admission to and while under

the care of Accel.

           Kerr was admitted to Accel on July 7, 2015, for inpatient rehabilitation to regain “mobility

and Activities of Daily Living.” Upon her admission, Accel assessed Kerr as “a moderate fall

risk.” Accordingly, Accel employed fall precautions for Kerr’s stay, including assistance during

bathing. Four days later, on July 11, Kerr was assessed as “an extreme fall risk.”2 Accel assigned

a hospital staff person (Jane Doe) to assist Kerr while she showered. Later that day, Jane Doe left

Kerr alone while Kerr was showering. While unattended, Kerr fell and sustained a compression


    1
        The trial court, in fact, did make findings of fact and conclusions of law.
    2
      The expert report of Karis Schirmer, RN, BSN, reflected that Accel’s medical chart on Kerr indicated that,
beginning on July 7 and thereafter, every post-admission nursing assessment designated Kerr as a “high fall risk.”



                                                            –2–
fracture of her L1 vertebrae, a torn meniscus in her right knee, gashes on and nerve damage to both

of her big toes, and a broken jaw.

         The petition alleges Appellees were negligent and grossly negligent by leaving Kerr

unattended in the shower, which resulted in the fall. The petition also alleges Accel was negligent

and grossly negligent in failing to adequately “screen, train, and supervise Jane Doe.”

         The petition alleges that, as a direct and proximate result of Appellees’ negligence and

gross negligence, Kerr sustained specified injuries to her neck, back, pelvis, knees, toes, and jaw.

The petition seeks damages for reasonable and necessary past medical care and expenses, past and

future physical pain and suffering, and past and future mental pain and anguish. Alleging that

Appellees’ acts and omissions constituted gross negligence, as they were committed knowingly,

intentionally, and recklessly, the petition seeks exemplary damages as permitted under section

41.003(a)(3) of the Texas Civil Practice and Remedies Code.

                                                 Procedural History

         Kerr filed her petition on September 5, 2017. Accel filed an answer on September 27,

2017. Because this lawsuit involves a health care liability claim, it is subject to the requirements

of chapter 74 of the Texas Civil Practice and Remedies Code. See TEX. CIV. PRAC. & REM. CODE

ANN. §§ 74.001–.507. In accordance with chapter 74, Kerr served on Accel the expert report and

curriculum vitae of Karis Schirmer, RN, BSN (Schirmer Report), on February 11, 2018.3 Kerr did

not serve an expert report from a physician. On March 2, 2018, Accel filed “Objections to

Plaintiff’s Inadequate Chapter 74 Expert Report and Motion to Dismiss” (motion to dismiss). In

its motion to dismiss, Accel argued:

                 The Schirmer Report failed to identify any injuries sustained by Kerr.

    3
      In its motion to dismiss, Accel stated that it agreed to a thirty-day extension of time for Kerr to file a chapter 74
expert report.



                                                           –3–
           The Schirmer Report failed to identify the standard of care applicable to
          a rehabilitation hospital.

           The Schirmer Report failed to discuss the “nursing standard of care” with
          specificity. By way of example, Appellees argued, “the Schirmer Report
          does not attempt to explain what it means for Defendant to be ‘by patient’s
          side.’”

           The Schirmer Report failed to sufficiently describe how Appellees
          breached the standard of care.

           The Schirmer Report failed to discuss how any breach in the standard of
          care proximately caused Kerr’s injuries.

           Schirmer was unqualified to opine as to causation because she is a nurse
          practitioner and not a physician.

       In her March 26, 2018 reply to Accel’s motion to dismiss, Kerr argued that she submitted

the Schirmer Report in good faith, but, in the event the trial court deemed her expert report

deficient, Kerr requested a thirty-day extension of time to cure the deficiency under section

74.351(c). After a hearing on Accel’s motion to dismiss, the trial court sustained Accel’s

objections and granted Accel’s motion to dismiss, dismissing the case with prejudice by order

dated May 30, 2018.

                          THE TEXAS MEDICAL LIABILITY ACT

                            Chapter 74’s Expert Report Requirement

       Chapter 74 of the TMLA requires a plaintiff pursuing a health care liability claim to serve

an expert report on each physician or health care provider against whom a health care liability

claim is asserted no later than 120 days after the date each defendant’s answer is filed. TEX. CIV.

PRAC. & REM. CODE ANN. § 74.351(a). The purpose of the expert report requirement is “to

eliminate frivolous health care liability claims” and “preserve those of potential merit.” Samlowski

v. Wooten, 332 S.W.3d 404, 410 (Tex. 2011) (Medina, J.); see also Scoresby v. Santillan, 346

S.W.3d 546, 554 (Tex. 2011).



                                                –4–
       “Expert report” is defined as:

          [A] written report by an expert that provides a fair summary of the expert’s
          opinions as of the date of the report regarding 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). A report meets the requirements of chapter

74 if it represents an “objective good faith effort to comply with” the statutory definition. Id.

§ 74.351(l). To constitute a “good faith effort,” the expert report must: (1) “inform the defendant

of the specific conduct” complained of, and (2) “provide a basis for the trial court to conclude that

the claims have merit.” Scoresby, 346 S.W.3d at 555–56 (quoting Am. Transitional Care Ctrs. of

Tex., Inc. v. Palacios, 46 S.W.3d 873, 879 (Tex. 2001)).

       The trial court may grant a motion challenging the adequacy of an expert report only if the

report does not accomplish these two goals. Scoresby, 346 S.W.3d at 555–57. To that end, the

report must include a summary of the expert’s opinion on the three elements required by chapter

74: (1) the applicable standard of care, (2) the manner in which the defendant failed to meet the

standard of care, and (3) the causal relationship between the defendant’s failure to meet the

standard of care and the plaintiff’s injury, harm, or damages. TEX. CIV. PRAC. & REM. CODE ANN.

§ 74.351(r)(6).

                             Trial Courts Must Be Lenient In Granting
                  A Thirty-Day Extension of Time to Cure a Deficient Expert Report

       Because the purpose of the expert report requirement is to “deter baseless claims, not to

block earnest ones,” Certified EMS, Inc. v. Potts, 392 S.W.3d 625, 631 (Tex. 2013), the TMLA

provides an opportunity for a plaintiff to cure any deficiencies in an expert report: “[If] elements

of the report are found deficient, the court may grant one 30-day extension to the claimant in order

to cure the deficiency.” TEX. CIV. PRAC. & REM. CODE ANN. § 74.351(c). While section



                                                –5–
74.351(c)’s use of the word “may” indicates the trial court has some discretion in granting an

extension to cure any deficiencies, the supreme court has circumscribed that discretion.

Recognizing that the TMLA provides no guidance on how the trial court may exercise its

discretion, the supreme court requires the trial court’s decision to grant or deny a request for an

extension of time to be governed by the “broader” and “overriding” purpose of the TMLA: to

eliminate frivolous claims and preserve meritorious ones. See Scoresby, 346 S.W.3d at 554;

Samlowski, 332 S.W.3d at 410–11.

       Implicitly acknowledging the Texas Constitution’s open courts provision, TEX. CONST. art.

I, § 13 (persons bringing common law claims will not be unreasonably denied court access), in

Scoresby, the supreme court cautioned, “It must be remembered that ‘[t]here are constitutional

limitations upon the power of courts [to] dismiss an action without affording a party the

opportunity for a hearing on the merits of his cause[,]’ and those limitations constrain the

Legislature no less in requiring dismissal.” 346 S.W.3d at 554 (quoting TransAmerican Nat. Gas

Corp. v. Powell, 811 S.W.2d 913, 918 (Tex. 1991)). In the same vein, Samlowski emphasizes that

while the legislature enacted the TMLA, in part, to reduce frivolous lawsuits, it “intended to do so

in a manner that will not unduly restrict a claimant’s rights.” 332 S.W.3d at 416 (Guzman, J.,

concurring) (quoting Leland v. Brandel, 257 S.W.3d 204, 208 (Tex. 2008)). Consequently, the

supreme court has admonished trial courts to be “lenient” in granting an extension of time to cure

a deficient chapter 74 expert report. Scoresby, 346 S.W.3d at 554 (the thirty-day “minimal delay

before a report’s sufficiency may again be challenged and the case dismissed does not impair the

purpose of the [TMLA]”).

       Issued merely four months after Samlowski, Scoresby’s admonishment for leniency

underscores the majority court’s directive in Samlowski that trial courts “should [g]rant an




                                                –6–
extension when a deficient expert report can readily be cured and deny the extension when it

cannot.” Samlowski, 332 S.W.3d at 411 (“a deficient report does not invariably require dismissal

of the underlying claim”); id. at 416 (Guzman, J., concurring), 419 (Wainwright, J., concurring);

see also Scoresby, 346 S.W.3d at 554 (“when an expert report can be cured in thirty days, the claim

is not frivolous”). Even more to the point, the majority court in Samlowski prescribes that “trial

courts should err on the side of granting claimants’ extensions to show the merits of their claims.”

Id. at 411–12 (Medina, J.), 416 (Guzman, J., concurring); see also Scoresby, 346 S.W.3d at 549

(adopting position taken by a plurality of the court in Samlowski). “The right answer in many

cases will be for the trial court to grant one thirty-day extension upon timely request and be done

with it.” Samlowski, 332 S.W.3d at 411–12. As stated in Justice Guzman’s concurring opinion in

Samlowski, “The price of preserving a meritorious claim will be thirty days, compared to a much

higher price of dismissal.” Id. at 416.

                   A Deficient But Curable Expert Report Requires the Trial Court
                                to Grant an Extension of Time to Cure

        Because Samlowski limits the discretion afforded to the trial court in the matter of granting

an extension of time under section 74.351(c),4 we must “distinguish between deficient reports that

demonstrate merit and deficient reports that do not.” Id. at 412. The decision on whether a plaintiff

may cure a chapter 74 expert report may hinge on what best serves the “interests of justice.” Id.

In Samlowski, the Texas Supreme Court affirmed the appellate court’s conclusion that the trial

court abused its discretion by denying a request for an extension of time to cure the expert report

and the appellate court’s remand of the case to the trial court with the instruction to grant a thirty-

day extension of time to cure. There was no majority opinion, because although a majority of the



    4
      A majority of the court in Samlowski agreed that a trial court’s discretion under section 74.351(c) is not
unfettered. 332 S.W.3d at 409 (Medina, J.), 414 (Guzman, J., concurring).



                                                     –7–
court agreed the court of appeals correctly remanded the cause with an order to permit an extension

of time to cure, there was no majority reasoning for why remand was proper.

        In Samlowski, the supreme court issued its judgment and four corresponding opinions. The

plurality and concurring opinions reiterated chapter 74’s purpose of preserving potentially

meritorious claims. To that end, a majority of the Samlowski court instructed, “[T]rial courts

should err on the side of granting claimants’ extensions to show the merits of their claims.” 332

S.W.3d at 411–12; id. at 416 (Guzman, J., concurring) (“In order to preserve the highest number

of meritorious claims, trial courts should err on the side of granting claimants’ extensions to show

the merits of their claims.”). While a majority of the court did not agree on the criteria a trial court

should use in deciding whether to grant an extension of time under section 74.351(c), a majority

did agree that a trial court must grant an extension of time to cure when the plaintiff demonstrates

or the record establishes that the deficiencies in the expert report could be cured. Id. at 411

(Medina, J.), 415–16 (Guzman, J., concurring).           The supreme court hammered home this

requirement four months later in Scoresby, stating that trial courts “must” grant a thirty-day

extension of time “if deficiencies in an expert report can be cured within the thirty-day period.”

376 S.W.3d at 554.

        Therefore, the curability of Kerr’s expert report is our paramount concern in determining

whether the trial court abused its discretion in this case by denying her request for an extension of

time under section 74.351(c). Id. Our ultimate goal in resolving this question is to serve the

interests of justice and preserve Kerr’s health care liability claims if we see any potential merit.

Samlowski, 332 S.W.3d at 410–12; see also Scoresby, 346 S.W.3d at 558 (claimant must be

assured of “a fair opportunity to cure any deficiencies and demonstrate that his claim is not

frivolous and should be determined on the merits.”).




                                                  –8–
                                            ANALYSIS

                                        Standard of Review

       We review a trial court’s denial of a request for an extension of time to cure a deficient

chapter 74 expert report for an abuse of discretion. Biggs v. Baylor Univ. Med. Ctr., 336 S.W.3d

854, 859 (Tex. App.—Dallas 2011, pet. denied). A trial court abuses its discretion by denying a

section 74.351(c) request for an extension of time if the claimant demonstrates or the record

establishes that the defects in the report could be cured. Id.

                                       The Schirmer Report

       In her first issue, Kerr contends Schirmer is an expert qualified to testify to a departure

from the standard of care applicable to nurses and nursing assistants under section 74.402(b). TEX.

CIV. PRAC. & REM. CODE ANN. § 74.402(b). In her second issue, Kerr contends the Schirmer

Report represented a good faith effort to comply with section 74.351(r)(6) by informing Appellees

of the specific conduct subject of Kerr’s claims and by providing a basis for the trial court to

conclude Kerr’s claims have merit. See id.

       In the curriculum vitae attached to her expert report, Schirmer stated her qualifications,

which include staff positions as a nurse practitioner, various supervisory positions in hospitals and

medical care and emergency facilities, supervising medical staff, as well as serving as a director

of several departments in hospitals and medical care and emergency facilities. In her expert report,

Schirmer indicates the opinions expressed in her report are based on her review of Kerr’s medical

chart from Accel.

       The Schirmer Report opined on all three required elements of an adequate expert report

under chapter 74: the standard of care Accel and its staff owed to Kerr, the manner in which Accel

and its staff breached that standard of care, and how the breach caused Kerr’s injuries.

Specifically, the Schirmer Report identified and described Accel’s assessments of Kerr’s pre-


                                                –9–
admission condition and Kerr’s specific care and support needs while at Accel. The Schirmer

Report also chronicled daily medical notes made by Accel’s nurses, physical therapists, and a

physician, all of which warned Accel’s staff that Kerr not only was at “high risk” of falling, but

also that she was, in fact, “frequent[ly] falling.” These medical notes alerted Accel’s staff that

Kerr required continuous and unabated assistance with all acts of daily living and ambulation,

including sitting and standing. The Schirmer Report identified the deficiencies in Accel’s care of

Kerr, and it generally stated that Accel’s acts and omissions caused Kerr’s injuries.

          The Schirmer Report described Accel’s July 6, 2015 pre-admission screening records,

which documented that Kerr suffered from multiple sclerosis; she “was having frequent falls”; and

she “required 24/7 nursing care” for “ambulation” and the activities of daily living, including

“bowel and bladder management, cognition, communication, disease management, medication

management, ‘providing a safe environment,’ and ‘transfers.’” Upon her admission to Accel on

July 7, 2015, a nursing evaluation assessed Kerr as a moderate fall risk under the “Morse Fall

Scale.”5

          A nursing assessment later that day, however, re-assessed Kerr as a “high fall risk.”

Schirmer’s review of Accel’s medical records showed that, “Every subsequent nursing assessment

beginning on 07/07/15 7 pm to 7 am shift rates [Kerr] as a high fall risk.” Accel’s July 8, 2015

“History and Physical” records “noted again [that Kerr] was having frequent falls and noted she

had ‘deficits of endurance, balance, locomotion, safety awareness, transfer control, and self-care.’”

A physician evaluation on the same day stated Kerr “requires 24/7 Rehabilitation nursing for

assisting with ambulation and transfer, assisting with all activities of daily living, assisting with

ambulation and transfer.” Physical therapy notes on July 9, 2015 stated Kerr “is requiring constant


   5
       The Schirmer Report indicated a copy of the Morse Fall Scale was attached to the report.



                                                        –10–
checks for safety as she has poor safety awareness.” Physical therapy notes on the following day,

July 10, stated Kerr “is now requiring maximum assistance to sit or stand.”

       The Schirmer Report provided the applicable standard of care:

          [Kerr] was known and well documented to be a high fall risk. The nursing
          standard of care for a patient with generalized weakness from Multiple
          Sclerosis and frequent falls would have to be in attendance at their side to
          ensure patient safety.

       The Schirmer Report stated how Accel and its employees breached the standard of care:

“On 7/11/15 . . . a certified nursing assistant aided [Kerr] to the shower and left her without

assistance at which time she fell sustaining injuries.” The Schirmer Report then attempted to

explain how Accel’s breach of the standard of care caused Kerr’s injuries: “[Kerr] being left alone

in the shower and known to be a high fall risk is directly related to the fall and would fall outside

of a basic standard of care.”

                    Schirmer Was Qualified to Opine On the Standard of Care
                             Owed By Nurses and Nurse Assistants

       In her first issue, Kerr contends Schirmer is an expert qualified under section 74.402(b) to

opine on the standard of care applicable to nurses and nursing assistants and on how Accel’s

nursing staff breached the duty of care. TEX. CIV. PRAC. & REM. CODE ANN. § 74.402(b).

Specifically, Kerr argues that, as a registered nurse with a bachelor of science degree in nursing

and thirty-five years of nursing experience—including in staffing, supervising, and

administration—Schirmer “is more than qualified to render an opinion as to whether leaving a

patient identified as a high fall risk alone in a shower deviates from the standard of care for nurses

and nursing assistants.”

       In a suit involving a health care liability claim against a health care provider, a person may

qualify as an expert witness on the issue of whether the health care provider departed from accepted

standards of care only if the person:


                                                –11–
          (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;

          (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.

TEX. CIV. PRAC. & REM. CODE ANN. § 74.402(b)(1)–(3).

       An expert who gives an opinion on causation, however, must be a licensed physician and

must be otherwise qualified to give an opinion on the causal relationship under the Texas Rules of

Evidence. Id. § 74.403(a). An expert witness may be qualified to opine on one issue but not on

another. Id. § 74.351(i); In re Buster, 275 S.W.3d 475, 477 (Tex. 2008). Significantly, “[a] report

by an unqualified expert will sometimes (but not always) reflect a good-faith effort sufficient to

justify a 30-day extension.” Id.

       Schirmer’s curriculum vitae demonstrates she is a registered nurse holding both an

Associate of Science degree in nursing and a Bachelor of Science degree in nursing. Schirmer has

worked as a nurse and nursing supervisor in a number of medical facilities, including Metroplex

PACU and ICU, Texoma Medical Center, Medical Center McKinney, Texas Health Resources

Intensive Care Unit (supervisor), and Wilson N. Jones Hospital Medical Intensive Care Unit

(supervisor). Schirmer was Director of the Methodist Medical Surgical Unit and Emergency,

where, among other duties, she was responsible for maintaining compliance with standards

promulgated by the Joint Commission on Accreditation of Healthcare Organizations and Nursing

Standards of Care. As Director of Acute Care at Community Medical Center Sherman, Schirmer

was responsible for, among other things, managing, scheduling, and evaluating staff. We conclude

Schirmer was qualified to opine on the first two elements of a chapter 74 expert report—the


                                               –12–
standard of care owed by Accel’s nurses and nurse assistants and their breach of the standard of

care.

         Although Schirmer was not qualified to opine on causation under chapter 74 because she

is not a physician, that fact does not render her report otherwise incompetent as to the other

requisite elements for a chapter 74 expert report. The Schirmer Report admittedly is deficient as

to the causation element, but the deficiency is curable. Kerr only need retain a qualified physician

to opine that Kerr fell because she was not properly monitored and assisted while she showered,

and that her fall caused the specific injuries alleged in her complaint. See Buster, 275 S.W.3d at

477 (trial court properly allowed extension of time to cure where deficient report was by a nurse

rather than a physician).6

         We resolve Kerr’s first issue in her favor.

                                Kerr’s Expert Report Was a Good Faith Effort
                                         to Comply with Chapter 74

         In her second issue, Kerr contends the Schirmer Report represented a good faith effort to

comply with section 74.351(r)(6) by informing Appellees of the specific conduct subject of Kerr’s

claims and by providing a basis for the trial court to conclude Kerr’s claims have merit. See TEX.

CIV. PRAC. & REM. CODE ANN. § 74.351(r)(6). Specifically, Kerr argues that Accel’s “nurse or

nursing assistant departed from accepted standards of health care [by] leaving a high fall risk

Plaintiff alone in a shower,” and Kerr fell in the shower as a direct result of Jane Doe’s breach of


      6
        After all, the nature of the fall and the resulting injuries here are not complex. In any traditional circumstance,
it is doubtful whether expert testimony would be required at all to establish causation in this case, where causation is
within the common knowledge and experience of jurors. See, e.g., Jelinek v. Casas, 328 S.W.3d 526, 533–34 (Tex.
2010) (non-expert evidence sufficient “where both the occurrence and conditions complained of are such that the
general experience and common sense of laypersons are sufficient to evaluate the conditions and whether they were
probably caused by the occurrence”); Morgan v. Compugraphic Corp., 675 S.W.2d 729, 733 (Tex. 1984) (lay
testimony sufficient where “general experience and common sense will enable a layman to determine . . . the causal
relationship between the event and the condition”); Chang v. Denny, No. 05-17-01457-CV, 2019 WL 3955765 (Tex.
App.—Dallas Aug. 22, 2019, no pet.) (mem. op., not released for publication) (lay testimony can establish causation
where it is within the common understanding of jurors).



                                                          –13–
that duty. In her third issue, Kerr contends the trial court should have granted Kerr a thirty-day

extension of time to cure any deficiencies in her expert report.

        The facts alleged in this case are not complicated. Kerr’s petition and the Schirmer Report

provide a clear picture of what happened to Kerr and why she filed suit against Appellees. The

Schirmer Report alone provided sufficient detail to inform Accel of the nature and factual basis of

Kerr’s claims. Kerr has multiple sclerosis. Even before admitting her, Accel knew Kerr “was

having frequent falls” and “required 24/7 nursing care,” including for “ambulation” and the

“activities of daily living.” Kerr was assessed as a moderate fall risk upon her admission to Accel,

but the very same day, she was re-assessed by Accel nursing staff as a high fall risk. Accel’s

physical therapy records caution that, among other things, Kerr “was having frequent falls” and

“deficits of endurance, balance, [and] locomotion.” Accel knew Kerr needed to be supervised for

all acts of daily living, walking, and standing. Two days before Kerr fell, unsupervised, in the

shower, physical therapy notes warned, “[Kerr] is requiring constant checks for safety as she has

poor safety awareness.”     An Accel physician evaluation ordered that Kerr “requires 24/7

Rehabilitation nursing for assisting with ambulation and transfer, assisting with all activities of

daily living.” The day before Kerr fell when Jane Doe left her alone in the shower, Accel’s

physical therapy notes alerted the medical staff that Kerr “is now requiring maximum assistance

to sit or stand.”

        As reflected in Accel’s own nursing, physician, and physical therapy records, the standard

of care Accel owed to Kerr was “24/7 nursing care,” “maximum assistance to sit or stand,”

“assist[ance] with all activities of daily living,” “assist[ance] with ambulation and transfer,” and

“constant checks for safety,” because Kerr was a “high fall risk,” Kerr was having “frequent falls,”

and Kerr had “deficits of endurance, balance, locomotion, safety awareness, transfer control, and




                                               –14–
self-care.” In accord with the standard of care ordered by Accel’s physicians, physical therapists,

and nursing staff, the Schirmer Report plainly stated, “The nursing standard of care for a patient

with generalized weakness from Multiple Sclerosis and frequent falls would have to be in

attendance at their side to ensure patient safety.” The Schirmer Report stated that Appellees

breached the standard of care by leaving Kerr “alone in the shower.”

       There is no question that the Schirmer Report was deficient insofar as the TMLA requires

a physician to opine as to causation.        Nevertheless, given all of the warnings and orders

promulgated by a range of Accel’s medical staff, it is not surprising that the Schirmer Report stated

that Kerr “being left alone in the shower and known to be a high fall risk is directly related to the

fall.” Although Schirmer did not use the word “caused,” no magic words are required. See

Scoresby, 346 S.W.3d at 556. The Schirmer Report’s meaning was clear. Kerr fell in the shower

because she was not receiving the assistance that Accel’s medical staff had repeatedly stated was

necessary for Kerr’s safety. She was left alone in a shower when she needed “maximum assistance

to sit or stand.” While this portion of the Schirmer Report was deficient, Kerr’s expert report did

not entirely fail to address the causation element. Schirmer just was not qualified to render that

opinion—a deficiency that Kerr should “be given an opportunity to cure.” Scoresby, 346 S.W.3d

at 449 (“An individual’s lack of relevant qualifications and an opinion’s inadequacies are

deficiencies the plaintiff should be given an opportunity to cure if it is possible to do so.”); see

also Buster, 275 S.W.3d at 477 (report by unqualified expert may reflect good-faith effort

sufficient to justify thirty-day extension of time to cure).

       As the statute has been applied, not only should Kerr’s expert report opine that Accel’s

breach of its duty of care caused Kerr to fall while she was left unattended in the shower, but the

report also should opine that the specific injuries alleged in the petition were caused by Kerr’s fall.




                                                 –15–
These omissions, however, are exactly the type of deficiencies that may be cured under section

74.351(c). As Justice Guzman stated in Samlowski:

           [T]he provision allowing for an extension is not punitive—it says nothing
           about withholding an extension when a claimant has failed to do something.
           Rather, the provision is curative, intending to give claimants an opportunity
           to save their claims from dismissal.

332 S.W.3d at 416 (Guzman, J., concurring).

        The Schirmer Report provided enough information to inform Accel of the specific conduct

Kerr complains of, and it provided a basis for a court to conclude Kerr’s claims have merit. See

Scoresby, 346 S.W.3d at 556. Moreover, the Schirmer Report gave Accel clear notice of the basis

of Kerr’s claims and the kind of evidence it will need to marshal for its defense. Because the

deficiencies in the Schirmer Report are readily curable, the report does not indicate Kerr’s claims

are frivolous. See Scoresby, 346 S.W.3d at 556. To the contrary, the expert report manifests the

merit of Kerr’s claims.

        In light of Scoresby and Samlowski and the TMLA’s silence “on the principles and

procedure that should control the trial court’s discretion” under 74.351(c), we conclude the

Schirmer Report constituted an objective, good faith effort to comply with the statutory

requirements of chapter 74, despite its deficiency in failing to include a physician’s report

addressing causation, which is curable. Scoresby, 346 S.W.3d at 556; Samlowski, 332 S.W.3d at

411. Therefore, the trial court’s failure to grant Kerr an extension of time to cure any deficiencies

in the expert report was an abuse of discretion. See Samlowski, 332 S.W.3d at 416 (Guzman, J.,

concurring). Accordingly, we resolve Kerr’s second and third issues in her favor.

        We reverse the trial court’s order dismissing Kerr’s claims with prejudice, and we remand

this cause to the trial court with the instruction to grant Kerr a thirty-day extension of time to afford




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her the opportunity to cure any deficiencies in her chapter 74 expert report, and for further

proceedings consistent with this opinion. 7




                                                             /Ken Molberg/
                                                             KEN MOLBERG
                                                             JUSTICE


180928F.P05




    7
      Based upon our resolution of Kerr’s first, second, and third issues, we need not address Kerr’s fourth issue. TEX.
R. APP. P. 47.1.



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                                Court of Appeals
                         Fifth District of Texas at Dallas
                                        JUDGMENT

 VICTORIA KERR, Appellant                             On Appeal from the 219th Judicial District
                                                      Court, Collin County, Texas
 No. 05-18-00928-CV          V.                       Trial Court Cause No. 219-04279-2017.
                                                      Opinion delivered by Justice Molberg.
 PIRF OPERATIONS, LLC DBA ACCEL                       Justices Myers and Carlyle participating.
 REHABILITATION HOSPITAL OF
 PLANO AND JANE DOE, Appellee

       In accordance with this Court’s opinion of this date, the order of the trial court is
REVERSED and this cause is REMANDED to the trial court with the instruction to grant
appellant a thirty-day extension of time to afford her the opportunity to cure any deficiencies in
her expert report, and for further proceedings consistent with this opinion.

       It is ORDERED that appellant VICTORIA KERR recover her costs of this appeal from
appellee PIRF OPERATIONS, LLC DBA ACCEL REHABILITATION HOSPITAL OF
PLANO AND JANE DOE.


Judgment entered this 27th day of August, 2019.




                                               –18–
