Opinion issued August 21, 2025
In The
Court of Appeals For The
First District of Texas ———————————— NO. 01-24-00061-CV ——————————— AUSTIN BEHAVIORAL HOSPITAL, LLC OPERATING AS CROSS CREEK HOSPITAL AND, SUBJECT TO ITS PREVIOUSLY FILED SPECIAL APPEARANCE, ACADIA HEALTHCARE COMPANY, INC., Appellants V. EDDIE LEE WILSON AND CHESTER JACKSON SR. AS NEXT FRIEND OF CHESTER JACKSON JR., HEATHER MARTIN AS NEXT FRIEND OF C.C.J. AND C.C.J., AND PE’TRECIA RAY AS NEXT FRIEND OF D.H., Appellees
On Appeal from the 234th District Court Harris County, Texas Trial Court Case No. 2021-23885
MEMORANDUM OPINION Appellees—family members of Chester Jackson Jr.—allege that thirty-year-
old Jackson was admitted to Cross Creek Hospital after having a mental health
episode. Soon after his admission, Jackson experienced severe agitation requiring
hospital staff to physically restrain him and administer a combination of
antipsychotic and sedative medications. Jackson quit breathing almost immediately
and went into cardiopulmonary arrest. Four hours after his admission to Cross Creek
Hospital, Jackson was transferred to another hospital for emergency care. Jackson
allegedly suffered severe brain injury, and he remains in a permanent vegetative
state.
Jackson’s family sued Cross Creek Hospital, appellant Acadia Healthcare Co.,
Inc., and several individuals asserting claims under the Texas Medical Liability Act.1
As required under the TMLA, Jackson’s family timely served an expert report
opining that Cross Creek Hospital breached the standard of care owed to Jackson
and caused serious bodily injury. Specifically, the report criticized Cross Creek
Hospital’s delay in initially treating Jackson for severe agitation, application of
physical restraints to him, administration of medications to him, and delay in
providing first aid and resuscitative efforts after he quit breathing.
1 Acadia filed a special appearance, which the record indicates has not been decided by the trial court. 2 Acadia and appellant Austin Behavioral Hospital, which purportedly operates
as Cross Creek Hospital (collectively, “the Providers”), objected to the expert report
and moved to dismiss the lawsuit under the TMLA. The Providers also requested
attorney’s fees and costs. The trial court denied the motion.
In a single issue, the Providers contend that the trial court abused its discretion
by overruling their objections to the expert report and denying their motion to
dismiss.2 They argue that the expert report did not adequately describe the standard
of care, how they allegedly breached the standard of care, and how any breach
caused Jackson’s alleged injuries. In their reply brief, the Providers argue for the
first time on appeal that the expert report did not address Acadia’s conduct.
We hold that the expert report met the “modest requirement” imposed by the
TMLA “at this early stage of litigation.” See Bush v. Columbia Med. Ctr. of
Arlington Subsidiary, L.P., 714 S.W.3d 536, 543 (Tex. 2025); see also Walker v.
Baptist St. Anthony’s Hosp., 703 S.W.3d 339, 342–43 (Tex. 2024) (per curiam). We
affirm.
2 See TEX. CIV. PRAC. & REM. CODE § 51.014(a)(9) (authorizing party to appeal interlocutory order denying motion for relief under Civil Practice and Remedies Code Section 74.351(b) with exception not applicable here). 3 Background
A. Plaintiffs’ Allegations and Lawsuit
As alleged in this lawsuit, Jackson had a mental health episode on April 19,
2019. His family called 911 and requested assistance in transporting Jackson to a
mental health facility. A Burleson County Sheriff’s Office deputy responded and
observed Jackson with a blank stare and clammy skin, speaking gibberish, and
sweating profusely. The deputy arrested Jackson and confined him in the Burleson
County Jail for two days. A jailer allegedly abused him while he was in jail. Jackson
was transported to Cross Creek Hospital, a mental health facility in Austin, where
he was admitted at 2:15 p.m. on April 21, 2019. Jackson appeared to be in an altered
mental state when he arrived at the hospital.
When hospital staff told him that he was no longer in jail, Jackson became
uncooperative and demanded to leave the hospital because he did not consent to
treatment. Dr. Caanan Blakemore and John W physically restrained Jackson.3 Dr.
Shamima Khan prescribed Jackson a combination of three medications, which
Jackson’s family calls a “B-52 cocktail,” to be administered by injection. Nurse
Jordan Gouldburn administered the medication to Jackson while he was restrained.
About five minutes after the medication was administered and while being
physically restrained in a prone position, Jackson became unconscious, his
3 The appellate record does not contain a full name for John W. 4 respirations were shallow, his pulse was faint, and he went into cardiopulmonary
arrest.
Approximately four hours after his admission, Cross Creek Hospital staff
transferred Jackson to St. David’s Hospital for emergency medical treatment.4
Jackson allegedly “suffered severe brain damage as a result of the hold and
deprivation of oxygen to his brain.” He remains in a minimally conscious state and
is non-verbal, and he is confined to an assisted living facility.
Jackson’s family filed suit on his behalf against Cross Creek Hospital, Acadia,
and various doctors and nurses, including Blakemore, W, Khan, and Gouldburn.5
The live petition asserted claims for federal nondiscrimination and civil rights
violations, medical negligence under the TMLA, and assault and battery. See 29
U.S.C. § 794; 42 U.S.C. § 1981; TEX. CIV. PRAC. & REM. CODE §§ 74.001–.552.
B. Expert Report
Jackson’s family served Cross Creek Hospital and Acadia with an expert
report as required by the TMLA. See TEX. CIV. PRAC. & REM. CODE § 74.351(a),
4 The record and the responsive brief by Jackson’s family variously refer to this hospital as St. Davis Hospital and St. David’s Hospital. We refer to this hospital as St. David’s Hospital. 5 The underlying lawsuit was filed by Eddie Lee Wilson and Chester Jackson Sr. as next friend of Jackson, who allegedly lacks capacity to bring suit on his own behalf; Heather Martin as next friend of minors C.C.J. and C.C.J.; and Pe’trecia Ray as next friend of minor D.H. The individual doctors and nurses named as defendants in the live petition are not parties to this appeal. 5 (r)(6). The report was authored by Dr. Lynn P. Roppolo, a practicing board-certified
emergency medicine physician and professor of emergency medicine at the
University of Texas Southwestern Medical Center in Dallas. Her qualifications are
not disputed on appeal.
Roppolo based her opinions on Jackson’s medical records, including records
from Cross Creek Hospital, St. David’s Hospital, and Travis County EMS which
transported Jackson between the hospitals. Roppolo also reviewed video recordings
showing Jackson’s arrest, his incarceration during the two days in jail, and his arrival
at Cross Creek Hospital.
Roppolo stated that Jackson was 30 years old and healthy when he was
admitted to Cross Creek Hospital. She acknowledged that Jackson had reportedly
suffered a mental health episode, and his family called the police for assistance. In
jail, Jackson exhibited odd behavior, such as taking off his clothes and standing
naked in the booking lobby, making nonsensical communications, exhibiting
agitated behavior, and biting an officer. Jail medical records stated that Jackson was
in a “state of psychosis and paranoid in delusions” and recommended inpatient
psychiatric hospitalization. Jackson allegedly fell at the jail and “was physically
tossed by an officer striking his head on a metal toilet.” Roppolo stated, however,
that the fall did not cause a change in Jackson’s mental status or neurological
function, nor did it induce signs of traumatic brain injury.
6 Jackson was transferred to Cross Creek Hospital two days after he was booked
into jail. He was admitted directly to the psychiatric intensive care unit at 2:15 p.m.
for agitation and gross psychosis. Dr. Jaswant Pandher, who is also named as a
defendant, evaluated Jackson at 3:17 p.m. and diagnosed him with “unspecified
schizophrenia spectrum and other psychotic disorder” and recommended acute
inpatient psychiatric treatment. The medical records contained no additional notes
concerning Jackson between his admission at 2:15 p.m. and 5:30 p.m.
At 5:30 p.m., Jackson became more agitated, stated that he wanted to leave,
and periodically banged on doors and windows. At 5:36 p.m., he allegedly physically
and verbally assaulted a hospital staff member and “intended to elope” from the
hospital, so hospital staff put him in “an undescribed ‘personal hold’” that Roppolo
described as a physical restraint. Jackson was placed in this hold for sixteen minutes
from 5:36 p.m. until 5:52 p.m. Within two minutes of placing him in the hold,
hospital staff tried to de-escalate Jackson, but he continued to be hostile and
assaultive. Dr. Khan prescribed a combination of antipsychotic and sedative
medications known as a “B-52”: 2 mg of lorazepam, 10 mg of haloperidol, and 50
mg of diphenhydramine. Nurse Gouldburn administered the prescribed medication
at 5:47 p.m., eleven minutes after staff placed Jackson in a physical hold.
When hospital staff released Jackson from the physical hold five minutes later
at 5:52 p.m., he was unconscious and unresponsive with shallow respirations and a
7 faint pulse. He was turned supine, but his pulse faded and became absent, his eyes
were “fixed and dilated,” and he showed “no signs of consciousness.” Hospital staff
initiated chest compressions at 5:54 p.m. and called EMS at 5:55 p.m. Staff
continued chest compressions until EMS arrived. EMS used an automated external
defibrillator to give Jackson one shock at 6:01 p.m. Jackson’s pulse returned at 6:13
p.m., and he was “revived” at 6:14 p.m. He was transported to St. David’s Hospital
at 6:21 p.m.
At St. David’s Hospital, Jackson was neurologically “completely
unresponsive.” He was intubated and given a feeding tube. A toxicology screen
revealed the presence of benzodiazepines and marijuana. Jackson was treated for
possible aspiration pneumonia and admitted to the critical care unit. In the following
days, doctors diagnosed Jackson with severe cardiomyopathy. A neurological
consultation raised concern that Jackson had an anoxic brain injury and hypoxic-
ischemic encephalopathy which Roppolo explained “basically indicated that Mr.
Jackson sustained brain [injury] from low oxygen levels.” An MRI indicated that
Jackson had diffuse anoxic brain injury.
Jackson remained in a vegetative state in early May 2019 with a tracheotomy
tube to breathe and a feeding tube to receive nutrition because he was “no longer
able to maintain these essential life-sustaining functions on his own due to his anoxic
8 brain injury.” Jackson was transferred to a long-term care facility in June 2019, and
he “currently remains in need of long-term care in a permanent vegetative state.”
Regarding the standard of care owed by Cross Creek Hospital, Dr. Roppolo
stated that the “care and treatment of an agitated patient should be based on the
BETA guidelines, which stands for ‘Best practices in the Evaluation and Treatment
of Agitation.’” According to Roppolo, severe agitation is a medical emergency
requiring emergent medical care and a prompt, appropriate response. The standard
of care applicable to severely agitated patients is to first attempt de-escalation to
prevent injury to the patient, others, and the environment. But Roppolo noted that
de-escalation “is almost always not effective at this level of agitation.”
Roppolo opined that severely agitated patients typically require medication to
reduce agitation symptoms. Administering medication often requires physical
restraint without the patient’s consent. Two types of medication are usually
administered: sedatives and antipsychotics if the patient has psychotic symptoms
like Jackson did. Hospital staff administered 10 mg of haloperidol, 2 mg of
lorazepam, and 50 mg of diphenhydramine, or Benadryl, to Jackson. Roppolo stated
that haloperidol is an antipsychotic used for severe agitation. The typical dose is 5
mg, and the maximum dose is 10 mg for larger patients. Lorazepam is a
benzodiazepine, which is a sedative commonly administered to severely agitated
9 patients alone or in combination with an antipsychotic medication. The usual dosage
of lorazepam is 2 mg when administered with haloperidol.
Roppolo stated that the standard of care in this case required administering
only 5 mg of haloperidol to control agitation because Jackson is average height and
weight: “the dosage of 10 mg of haloperidol was twice the dose that is typically
given to a patient of Mr. Jackson’s height and weight.” Roppolo also stated that it
“is the widely accepted practice to refrain from using all three medications, a cocktail
referred to as a B-52, as the addition of diphenhydramine only prolongs sedation of
the patient which also may reduce a patient’s ability to breathe effectively.”
Roppolo also opined about physically restraining Jackson and placing him in
a prone position. She stated that Jackson was “in a severely agitated state for a
prolonged period of time then placed in a physical hold for a prolonged period of
time in his severely agitated state as he was not given medications to reduce his
agitated behavior until 11 minutes after he was placed in a physical hold.” Jackson
was also physically restrained in a prone position, which “reduce[s] an individual’s
ability to breathe effectively, to inhale oxygen and to exhale carbon dioxide.” The
combination of physical restraint, restraint in a prone position, and administration of
“large doses of medication” can “further impair his ability to breathe.”
Finally, Roppolo stated that Cross Creek Hospital staff did not adequately
monitor Jackson and document his vital signs. She opined that the “standard of care
10 for individuals requiring sedation is to monitor their oxygenation, heart rate and
rhythm, and exhaling carbon dioxide using simple monitoring equipment and to
check vital signs (heart rate, respiratory rate, blood pressure) once the patient is in a
state where these can be performed.” But for two minutes after Jackson was released
from physical restraint, hospital staff did not “clearly” document “that his
respirations were shallow, his pulse was faint and he was unresponsive.” No
documentation showed that staff checked his vital signs or oxygenation levels.
Dr. Roppolo opined that Cross Creek Hospital deviated from the standard of
care in four ways: (1) failing to control Jackson’s agitation to avoid injury;
(2) improperly restraining him; (3) administering the combination of medications at
an excessive dosage; and (4) delaying first aid and resuscitation.
First, Roppolo opined that “the combination of the physical restraint, prone
positioning and large doses of these medications to control his agitation prevented
him from breathing effectively resulting in worsening his acidotic state, impaired his
ability to breathe and ultimately caused his cardiopulmonary arrest in which he
stopped breathing and his heart stopped beating.”
Second, Roppolo opined that Jackson was restrained for too long and not
medicated soon enough. She stated that “agitated patients who require physical
restraint need to be promptly medicated to reduce their level of agitation.” Cross
Creek Hospital staff physically restrained Jackson for eleven minutes before
11 administering medication. Moreover, when Jackson was released from physical
restraint five minutes after he was medicated, he “was completely limp,
unresponsive, had shallow breathing and a faint pulse and was immediately followed
by full cardiopulmonary arrest two minutes later.” “There was a period of time
before Mr. Jackson’s physical hold was released when it should have been evident
that his level of agitation had decreased,” and at this time, hospital staff should have
discontinued physical restraint.
Hospital staff also placed Jackson in a prone position while being physically
restrained, and “the prone position is likely to cause greater restriction in breathing
than other positions which in Mr. Jackson’s situation, worsened his acidotic state as
it prevented him from using his breathing to compensate for his metabolic acidosis.”
Untreated “acidosis can progress to a level that is incompatible with life resulting in
cardiopulmonary arrest.”
Third, Roppolo opined that Cross Creek Hospital staff administered too much
medication to Jackson and did not consider Jackson’s height and weight when
determining the dosage. Both the “medication dosing and combination were
excessive” for Jackson, who is an “average size male” weighing 169 pounds and
standing at 5’8”. Combining lorazepam and diphenhydramine with haloperidol “is
not necessary and only increases and prolongs his sedation and does not help to
reduce his agitation symptoms.” Lorazepam and diphenhydramine are “CNS
12 depressants and can cause more respiratory depression resulting in reduced
oxygenation and ventilation[.]” Roppolo stated that the standard of care requires
(1) “administration of medications that have been titrated for an appropriate dose
based on the patient’s weight”; and (2) “only mixing drugs in a safe combination to
not cause respiratory compromise which can result in hypoxia (low oxygen levels)
and retention of carbon dioxide (causing respiratory acidosis) which may lead to
Fourth, Roppolo opined that hospital staff delayed providing first aid and
resuscitative efforts to Jackson after he became unresponsive with shallow breathing
and a faint pulse. The medical records contain no documentation that staff took any
action for two minutes “until he was in full cardiopulmonary arrest.” During this
time, hospital staff did not obtain Jackson’s vital signs, check his oxygen saturation
levels, call 911, or obtain a crash cart. There is no indication “that anything was
being done for his abnormal breathing such as ensuring he had a patent airway,
supplementing his breathing with a bag-valve-mask or giving him oxygen . . . which
are required by the applicable standard of care.” According to Roppolo, “These basic
life saving interventions could have made a critical difference in the two minutes
before he was in full cardiopulmonary arrest and could have prevented the severe
anoxic (without oxygen) brain injury that has forever changed his life.”
13 In a conclusion paragraph, Dr. Roppolo opined that Jackson was admitted to
Cross Creek Hospital as “a physically healthy man” who was “independently
walking, talking, and eating” and without respiratory distress or prior underlying
cardiac disease. She further opined that:
His cardiopulmonary arrest was a result of a delay in addressing his agitation, prolonged physical hold, being given an excessive dose of medication causing respiratory depression, and a delay in medical attention immediately after the release of his physical hold when he was found to be unresponsive, breathing very shallow, and had a faint pulse.
Consequently, Jackson “suffered a catastrophic anoxic brain injury and can no
longer communicate, feed himself, walk or perform any activities of daily living.”
Had Cross Creek Hospital followed the standards of care for an agitated patient,
“Jackson would in reasonable probability not have suffered any significant
neurological impairment. His anoxic brain injury is directly attributed to the
deviations from accepted standards of care in April of 2019.”
C. Objections to Expert Report and Motion to Dismiss
The Providers objected to Roppolo’s expert report and moved to dismiss the
claims against them arguing that the report was so inadequate that it amounted to no
report at all. See id. § 74.351(b)(2), (r)(6). They argued that Roppolo inadequately
described the standard of care owed by Cross Creek Hospital, how Cross Creek
Hospital breached the standard of care, and how the breach caused Jackson’s
injuries. Acadia also argued that it was not affiliated with Cross Creek Hospital, and
14 Roppolo’s report did not apply to it. The Providers also requested attorney’s fees
and costs. See id. § 74.351(b)(1). The trial court overruled the objections and denied
the motion to dismiss. This appeal followed.
Sufficiency of Expert Report
In their sole issue on appeal, the Providers contend that the trial court abused
its discretion by overruling their objections to the expert report and denying their
motion to dismiss the suit on the ground that the expert report was inadequate under
the TMLA.
A. Standard of Review and Governing Law
We review a trial court’s ruling regarding the adequacy of an expert report
under the TMLA for an abuse of discretion. Baty v. Futrell, 543 S.W.3d 689, 693
(Tex. 2018); see E.D. ex rel. B.O. v. Tex. Health Care, P.L.L.C., 644 S.W.3d 660,
664 (Tex. 2022) (per curiam) (stating that under abuse-of-discretion standard,
“[c]lose calls must go to the trial court”) (quotation omitted). In conducting our
review, we consider only the information within the four corners of the report.
Abshire v. Christus Health Se. Tex., 563 S.W.3d 219, 223 (Tex. 2018) (per curiam).
A trial court may grant a motion challenging the adequacy of an expert report
“only if it appears to the court, after hearing, that the report does not represent an
objective good faith effort to comply with the [TMLA’s] definition of an expert
report.” Baty, 543 S.W.3d at 693 (quoting TEX. CIV. PRAC. & REM. CODE
15 § 74.351(l)); see also TEX. CIV. PRAC. & REM. CODE § 74.351(r)(6) (defining “expert
report” as report that gives fair summary of expert’s opinions on standard of care,
breach of standard, and causation).
This standard does not require an expert report to marshal all the claimant’s
proof. Baty, 543 S.W.3d at 693; see Bush, 714 S.W.3d at 543 (stating that TMLA
“imposes a modest requirement at this early stage of litigation” to provide fair
summary of expert’s opinions). But the report cannot be conclusory. Baty, 543
S.W.3d at 693. It must discuss the standard of care, breach, and causation with
enough specificity to inform the physician or health care provider of the conduct that
the claimant challenges and to supply the trial court with a basis to conclude that the
claims have merit. Id.
The standard of care consists of what an ordinarily prudent physician or health
care provider would do under the same or similar circumstances. Am. Transitional
Care Ctrs. of Tex., Inc. v. Palacios, 46 S.W.3d 873, 880 (Tex. 2001). The report
must identify a specific act the physician or health care provider was required to
perform or refrain from performing and explain how the duty was not fulfilled. See
Baty, 543 S.W.3d at 694–95 (holding that report generally stating care should have
been provided “in the proper manner” to avoid injury was conclusory; instead,
adequate report must explain what defendant should have done differently). The
report is inadequate if the standard of care or its ostensible breach can only be
16 inferred from the report. See Palacios, 46 S.W.3d at 880 (reasoning that expert report
which was vague enough to encompass multiple unspecified complaints—closer
monitoring, securer restraint, or something else entirely—was too conclusory and
thus inadequate).
With respect to proximate causation, an expert report must identify “how and
why” a breach of the standard of care caused the injury, harm, or damages by
explaining the basis for the expert’s statements and linking her conclusions to
specific acts. E.D. ex rel. B.O., 644 S.W.3d at 664. The report need only explain
how, as a factual matter, the claimant will prove causation. Id. The credibility or
believability of the expert’s opinion is not relevant to the question of whether the
report is adequate. Id.
Talismanic words and phrases are not required. Baty, 543 S.W.3d at 693. An
expert report need not use legal terminology such as “proximate cause,”
“foreseeability,” or “cause in fact.” Columbia Valley Healthcare Sys., L.P. v.
Zamarripa, 526 S.W.3d 453, 460 (Tex. 2017). But the report must explain, factually,
how the claimant will prove that the physician or health care provider proximately
caused the injury, harm, or damages. Id.
In evaluating the adequacy of an expert report, we read the report as a whole.
E.D. ex rel. B.O., 644 S.W.3d at 664. The report can be informal. Palacios, 46
S.W.3d at 879. The information in the report need not satisfy evidentiary
17 requirements that will apply on summary judgment or at trial. Id.; see E.D. ex rel.
B.O., 644 S.W.3d at 667 (reiterating that adequacy of report is not based on
evidentiary standard and that expert report need not litigate merits as prerequisite to
suit).
B. Analysis
The Providers maintain that the trial court erred by finding the expert report
adequate because the report did not demonstrate the applicable standard of care, how
the Providers breached the standard of care, and how the breach of the standard of
care caused Jackson’s injuries. Specifically, they acknowledge that Dr. Roppolo
criticized the amount of time it took to initially treat Jackson for severe agitation, the
physical restraint used on him, the medication administered to him, and the delay in
providing first aid after he became unresponsive.
The Providers argue, however, that the amount of time it took to initially treat
Jackson is directed at jail officials rather than Cross Creek Hospital. They also argue
that Roppolo did not state the length of time it was reasonable to use physical
restraints or why the method of restraint fell below the standard of care. They also
argue that the report indicates that the amount of haloperidol administered to Jackson
was within the standard of care, and it does not explain what Cross Creek Hospital
should have done when presented with a physician’s medication order that fell
within the standard of care. Finally, they argue that Roppolo does not state what
18 would have been a reasonable delay in providing first aid to Jackson after he became
unresponsive. In addition to inadequately describing the standard of care and breach,
the Providers argue that the expert report also does not explain how or why each act
or omission caused Jackson’s cardiopulmonary arrest and subsequent brain injury.
Thus, they contend that Roppolo’s opinions on the standard of care, breach, and
causation are conclusory and present analytical gaps that render the expert report
inadequate.
We disagree with the Providers’ position that the report is inadequate.
The expert report spans thirteen pages (excluding Roppolo’s seventeen-page
curriculum vitae), and it is broken into separate sections containing her education
and experience, background information about Jackson from his medical records,
and opinions concerning the standard of care, deviations from the standard of care,
and conclusions. The Providers’ arguments simplify and mischaracterize the
opinions contained within the report. See TEX. CIV. PRAC. & REM. CODE § 74.351(l)
(providing that trial court may grant motion to dismiss suit based on inadequacy of
expert report “only if it appears to the court, after hearing, that the report does not
represent an objective good faith effort to comply with the definition of an expert
report”).
With respect to the applicable standard of care and its breach, Roppolo opined
that BETA standards apply to the hospital’s treatment of Jackson. In discussing the
19 standard, Roppolo addressed four acts or omissions by Cross Creek Hospital staff:
(1) the delay in addressing Jackson’s agitation; (2) placing him in a prolonged
physical hold; (3) administering an excessive dose and improper combination of
medication; and (4) delaying medical attention immediately after releasing Jackson
from physical hold when he was unresponsive, was breathing shallowly, and had a
faint pulse.
Regarding the delay in addressing Jackson’s agitation, the expert report stated
that “Jackson was clearly psychotic and in an agitated state for at least two days”
and that “[n]othing was done to address Jackson’s severe agitation other than de-
escalation until he was at CCH two days later . . . .” We agree with the Providers
that the expert report attributes this delay to the jail rather than to Cross Creek
Hospital. Nevertheless, “an expert report that adequately addresses at least one
pleaded liability theory satisfies the statutory requirements [of the TMLA], and the
trial court must not dismiss in such a case.” Certified EMS, Inc. v. Potts, 392 S.W.3d
625, 632 (Tex. 2013). “A report need not cover every alleged liability theory to make
the defendant aware of the conduct that is at issue.” Id. at 630. Thus, we consider
whether the report adequately addressed other theories of liability.
Regarding physical restraint, the expert report opined that Cross Creek
Hospital staff restrained Jackson for too long and did not medicate him soon enough.
The report concedes that physical restraint can be part of a proper standard of care
20 when combined with prompt medication to reduce the level of agitation. But
Roppolo opined that Cross Creek Hospital violated this standard of care by
restraining Jackson for eleven minutes before administering any medication.
Moreover, Jackson was “completely limp, unresponsive, had shallow breathing and
a faint pulse,” and he “immediately” went into “full cardiopulmonary arrest two
minutes later.” Roppolo stated that it should have been evident that his level of
agitation had decreased during “a period of time” after he was medicated but before
he was released from physical restraint. Additionally, he was physically restrained
in a prone position. Roppolo opined that “[t]he physical hold and being in a prone
position both reduce an individual’s ability to breathe effectively[.]” She concluded
that the use of physical restraints in a prone position increased his metabolic acidosis
and “worsened his acidotic state as it prevented him from using his breathing to
compensate for his metabolic acidosis,” resulting in Jackson’s cardiopulmonary
arrest and “catastrophic anoxic brain injury[.]”
The Providers argue that the physical restraint opinions in the expert report
are inadequate because Roppolo does not indicate how long physical restraints
reasonably can be used, why the method of restraint fell below the standard of care,
and how and why the physical restraint injured Jackson. This argument lacks merit.
True, Roppolo did not state, for example, that it would have been proper to restrain
Jackson for only eight minutes. But she did opine that there was a period of time
21 after medication was administered to Jackson and before he became limp and
unresponsive that the medication would have reduced his level of agitation such that
physical restraints were no longer necessary and should have been discontinued. She
further opined that the physical restraints and placing Jackson in a prone position
increased his acidosis and in turn reduced his ability to breathe which led to
cardiopulmonary arrest and subsequent brain injury.
Moreover, Roppolo stated that the lengthy use of physical restraints in
addition to improper medication fell below the standard of care and caused Jackson’s
injuries. She stated that the standard of care for treatment of an agitated patient
permitted administering haloperidol, an antipsychotic medication, in combination
with a sedative. But she stated that the standard requires a dosage of 5 mg and a
maximum dosage of 10 mg for a larger person. She noted that medical records
indicated Jackson weighed 169 pounds and was 5’8” tall, which is the profile of an
“average size male.” The standard of care therefore required that hospital staff
administer only 5 mg to Jackson, but staff instead administered 10 mg.
Additionally, Roppolo opined that the combination of medication
administered to Jackson fell below the standard of care. Cross Creek Hospital staff
combined lorazepam and diphenhydramine with haloperidol, which “is not
necessary and only increases and prolongs [Jackson’s] sedation and does not help to
reduce his agitation symptoms.” Lorazepam and diphenhydramine “are both CNS
22 depressants and can cause more respiratory depression resulting in reduced
oxygenation and ventilation[.]” Roppolo stated that “the standard of care requires
only mixing drugs in a safe combination to not cause respiratory compromise which
can result in hypoxia (low oxygen levels) and retention of carbon dioxide (causing
respiratory acidosis) which may lead to cardiopulmonary arrest.” Roppolo opined
that the use of physical restraints and “being given an excessive dose of medication
causing respiratory depression” contributed to Jackson’s “catastrophic anoxic brain
injury.”
The Providers argue that the 10 mg of haloperidol administered to Jackson
was within the standard of care as stated in Roppolo’s report. This argument
mischaracterizes the report. Roppolo stated that a 5 mg dose of haloperidol is within
the standard of care for an “average size male” like Jackson, and 10 mg is the
maximum dose for a larger patient. Thus, the report did not conclude that
administering 10 mg of haloperidol to Jackson was within the standard of care.
The report also adequately explained how and why the physical restraints and
administration of medication caused Jackson’s injury. Individually and combined,
these actions reduced Jackson’s ability to breathe which directly led to his immediate
cardiopulmonary arrest and subsequent brain injury. Within minutes of
administering the medication and while in physical restraint, Jackson became
unresponsive and quit breathing for several minutes.
23 This leads to the final area of Roppolo’s opinion: Cross Creek Hospital
delayed providing first aid to Jackson when he became unresponsive. Roppolo noted
that the medical records contain no documentation that any first aid was provided to
Jackson for two minutes after he became unresponsive and went into full
cardiopulmonary arrest. There is no indication that hospital staff obtained Jackson’s
vital signs, checked his oxygen saturation levels, called 911, or obtained a crash cart
during this two-minute period. There is also no indication that hospital staff took any
action to help Jackson’s abnormal airway. These “basic life saving interventions
could have made a critical difference” during these two minutes and prevented his
“severe anoxic (without oxygen) brain injury[.]” Each of these actions—physically
restraining Jackson for too long, administering an excessive dosage of medication in
an improper combination, and delaying first aid when he became unresponsive—
alone and combined reduced Jackson’s ability to breathe and caused his
“catastrophic anoxic brain injury.” Roppolo concluded that if the hospital had taken
these actions, “Jackson would in reasonable probability not have suffered any
significant neurological impairment.”
These opinions are not conclusory and do not leave analytical gaps. The expert
report provides sufficient specificity to inform Cross Creek Hospital of the conduct
challenged by Jackson’s family and to supply the trial court with a basis to conclude
that the claim has merit. See Baty, 543 S.W.3d at 693, 694–95. The report further
24 identifies how and why the alleged breaches of the standard of care injured Jackson:
that is, the breaches reduced Jackson’s ability to breathe, caused him to become
unresponsive and quit breathing, and directly led to cardiopulmonary arrest and
severe anoxic brain injury leaving him in a permanent vegetative state. We therefore
conclude that the expert report “provides a fair summary of the expert’s opinions”
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.” See
TEX. CIV. PRAC. & REM. CODE § 74.351(r)(6).
We address one final contention that the Providers first briefed in their reply
brief. They argue that the expert report does not address any action by Acadia, and
therefore the trial court abused its discretion by not dismissing the claims Jackson’s
family brought against Acadia. Whether this argument is properly before us is an
open question because the opening brief did not present argument on this point. See
McAlester Fuel Co. v. Smith Int’l, Inc., 257 S.W.3d 732, 737 (Tex. App.—Houston
[1st Dist.] 2007, pet. denied) (stating that issue raised for first time in reply brief is
ordinarily waived). Nonetheless, we hold that the trial court acted permissibly in
implicitly determining that the report’s references to Cross Creek Hospital applied
to Acadia. See Gardner v. U.S. Imaging, Inc., 274 S.W.3d 669, 671–72 (Tex. 2008)
(per curiam) (“When a party’s alleged health care liability is purely vicarious, a
25 report that adequately implicates the actions of that party’s agents or employees is
sufficient.”).
We hold that the trial court did not abuse its discretion by overruling the
Providers’ objections to the expert report and denying the motion to dismiss
challenging the adequacy of the expert report. We overrule the Providers’ sole issue.
Conclusion
We affirm the trial court’s order overruling the Providers’ objections to the
expert report and motion to dismiss the lawsuit.
David Gunn Justice
Panel consists of Justices Guerra, Gunn, and Dokupil.