CHCA Mainland, L.P. D/B/A Mainland Medical Center v. Bonnie Dickie

• Court: Court of Appeals of Texas
• Decided: August 21, 2008
• Docket: 14-07-00831-CV
• Status: Published

Opinion

Reversed and Remanded and Memorandum Opinion filed August 21, 2008

Reversed and Remanded and Memorandum Opinion filed August 21, 2008.

In The

Fourteenth Court of Appeals

____________

NO. 14-07-00831-CV

CHCA MAINLAND, L.P. D/B/A MAINLAND MEDICAL CENTER, Appellant

V.

BONNIE DICKIE, Appellee

On Appeal from the 10th District Court

Galveston County, Texas

Trial Court Cause No. 06CV1400

M E M O R A N D U M   O P I N I O N

Appellee Bonnie Dickie sued appellant CHCA Mainland, L.P. d/b/a Mainland Medical Center (ACHCA Mainland@) for alleged medical malpractice.  In support of her claim, and pursuant to section 74.351(a) of the Civil Practice and Remedies Code, Dickie submitted the expert report and curriculum vitae of Dr. David J. Hyman.  CHCA Mainland then filed a motion to dismiss challenging the adequacy of Dr. Hyman=s expert report.  The trial court denied the motion to dismiss, and CHCA Mainland filed this interlocutory appeal.

We conclude that Dr. Hyman=s report and curriculum vitae do not demonstrate that he is qualified to offer an expert opinion.  In addition, Dr. Hyman=s report is conclusory on the elements of breach of the applicable standard of care and causation.  We therefore reverse the order of the trial court denying CHCA Mainland=s motion to dismiss, and remand to the trial court for consideration of whether Dickie is entitled to a thirty-day extension under section 74.351(c) to cure the deficiencies.

Factual and Procedural Background

In her petition, Dickie alleged that she developed a decubitus ulcer, or Apressure sore,@ during her six-week hospitalization at Mainland Medical Center as a result of CHCA Mainland=s negligence.  She contends that CHCA Mainland was negligent in failing to (1) provide adequate nutrition; (2) provide adequate hydration; (3) have Dickie reposition herself every hour to avoid the development of pressure sores; and (4) use appropriate seat cushions.  Dickie further alleged that Adecubitus ulcers are considered preventable and the development of decubitus ulcers is evidence of some form of neglect (nutrition, hydration, positioning, infection control etc.).@

On April 10, 2007, Dickie filed a report completed by Dr. David J. Hyman, a physician who is board-certified in internal medicine and has been a professor at Baylor College of Medicine for over thirteen years.  Dr. Hyman=s report related the following facts and opinions:

Thank you for allowing me to review this case.  I am a Board Certified Internist and am fully licensed in the State of Texas.  I have been both practicing and teaching inpatient and outpatient medicine here for 17 years.  I feel I am very much in position to comment on appropriate standards of care.

Ms. Dickie developed Decubitus Ulcers during a hospitalization at Mainland Medical Center.  This is below the standard of care.  Proper Nursing Care would include: (1) assess the patient from head to toe, (2) document any potential problems including skin condition, (3) use protection and padding to prevent tissue abrasion and prevent problems with hydration, nutrition, and hygiene.  The skin should be inspected at least once a day.  A patient should be repositioned every hour if unable to do it themselves.  Mainland Medical Center did not meet these standards of care and was negligent.  As a result the patient developed a Decubitus Ulcer that required treatment.

CHCA Mainland then filed a motion to dismiss, challenging the adequacy of Dr. Hyman=s report.  CHCA Mainland argued that Dr. Hyman=s report did not constitute an objective good-faith effort to comply with the requirements for an expert report under Chapter 74; therefore, dismissal of Dickie=s claims was warranted, because (1) the report was conclusory regarding CHCA Mainland=s breach of the applicable standard of care and proximate causation; and (2) the report failed to demonstrate that Dr. Hyman was qualified to render an expert opinion regarding the issues in Dickie=s lawsuit.  The trial court denied the motion to dismiss, and CHCA Mainland filed this interlocutory appeal under section 51.014(a)(9) of the Civil Practice and Remedies Code.

Issues on Appeal

In three issues, CHCA Mainland contends that Dr. Hyman=s report does not constitute a good-faith effort to comply with the expert report requirements of section 74.351, and therefore the trial court abused its discretion in denying the motion to dismiss.  In its first issue, CHCA Mainland argues that Dickie did not demonstrate that Dr. Hyman is qualified under section 74.401 to offer an expert opinion in this case.  In its second and third issues, CHCA Mainland asserts that Dr. Hyman=s report is conclusory on the elements of proximate causation and breach of the applicable standard of care.  We analyze CHCA Mainland=s issues in the order presented in its brief.^[1]

Analysis of CHCA Mainland=s Issues

I.        Standard of Review and Applicable Law.

When a trial court rules on a defendant health care provider=s motion to dismiss a health care liability claim, we review the ruling for an abuse of discretion. See Am. Transitional Care Ctrs. of Tex., Inc. v. Palacios, 46 S.W.3d 873, 877B78 (Tex. 2001); Rittmer v. Garza, 65 S.W.3d 718, 721 (Tex. App.BBHouston [14th Dist.] 2001, no pet.).  We apply the same standard of review to a trial court=s determination that an expert is qualified to offer an expert opinion regarding the elements of a plaintiff=s health care liability claim. See Mem=l Hermann Healthcare Sys. v. Burrell, 230 S.W.3d 755, 757 (Tex. App.CHouston [14th Dist.] 2007, no pet.) (citing Broders v. Heise, 924 S.W.2d 148, 151B52 (Tex. 1996); Group v. Vicento, 164 S.W.3d 724, 727 (Tex. App.CHouston [14th Dist.] 2005, pet. denied)).

An abuse of discretion occurs when the trial court acts in an unreasonable or arbitrary manner, without reference to any guiding rules or principles. Walker v. Gutierrez, 111 S.W.3d 56, 62 (Tex. 2003).  A trial court will be deemed to have acted arbitrarily and unreasonably if the trial court could have reached only one decision, yet reached a different one. See Teixeira v. Hall, 107 S.W.3d 805, 807 (Tex. App.BBTexarkana 2003, no pet.).  To that end, a trial court abuses its discretion when it fails to analyze or apply the law correctly. In re Sw. Bell Tel. Co., 226 S.W.3d 400, 403 (Tex. 2007) (citing In re Kuntz, 124 S.W.3d 179, 181 (Tex. 2003)).  However, to the extent resolution of the issues presented requires interpretation of the statute, we review the ruling under a de novo standard. See Buck v. Blum, 130 S.W.3d 285, 290 (Tex. App.CHouston [14th Dist.] 2004, no pet).

A plaintiff asserting a health care liability claim must provide each defendant physician and health care provider with an expert report no later than the 120th day after filing suit. See Tex. Civ. Prac. & Rem. Code _ 74.351(a).^[2]  AExpert report@ is statutorily 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.

Id. _ 74.351(r)(6).  If a plaintiff furnishes the required report within the time permitted, the defendant may file a motion challenging the adequacy of the report. See id. _ 74.351(b), (l).

With respect to such a motion, Chapter 74 provides that the trial court Ashall 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 definition of an expert report in Subsection (r)(6).@ Id. _ 74.351(l).  When determining whether the expert report represents a good-faith effort, the trial court=s inquiry is limited to the four corners of the report itself, and inferences are not permitted. See Bowie Mem=l Hosp. v. Wright, 79 S.W.3d 48, 53 (Tex. 2002) (citing Palacios, 46 S.W.3d at 878); see also Patel v. Williams ex rel. Estate of Mitchell, 237 S.W.3d 901, 904 (Tex. App.CHouston [14th Dist.] 2007, no pet.).

To constitute a good-faith effort, the report must discuss the standard of care, breach, and causation with sufficient specificity (1) to inform the defendant of the specific conduct the plaintiff has called into question and (2) to provide a basis for the trial court to conclude that the claims have merit. See Palacios, 46 S.W.3d at 879.  Although an expert report need not marshal and present all of the plaintiff=s proof, a report that omits any of the elements required by the statute does not constitute a good-faith effort. Id. at 878B79.  Moreover, an expert report by a person who is not qualified to testify under section 74.402 regarding the standard of care does not represent an objective good-faith effort to comply with the definition of an expert report in section 74.351. See Tex. Civ. Prac. & Rem. Code _ 74.351(l), (r)(5)B(6); see also Foster v. Zavala, 214 S.W.3d 106, 116 (Tex. App.CEastland 2006, pet. denied) (citing In re Windisch, 138 S.W.3d 507, 511 (Tex. App.CAmarillo 2004, orig. proceeding) (interpreting predecessor statute to section 74.351)).

II.       Dr. Hyman Has Not Established That He Is Qualified to Offer an Expert Opinion in This Case.

In its first issue, CHCA Mainland argues that Dickie did not demonstrate that Dr. Hyman is qualified to offer an expert opinion in this case.^[3]  Specifically, CHCA Mainland asserts that Dr. Hyman=s report and curriculum vitae do not show that he has any experience in the care and treatment of decubitus ulcers, or any specialized knowledge about the cause of that particular medical condition.  CHCA Mainland further asserts that Dr. Hyman=s report fails to explain how his knowledge, skill, experience, training, and education as an internist qualified him to render an expert opinion on causation and treatment of decubitus ulcers.

As explained below, we agree with CHCA Mainland that Dr. Hyman=s expert report and curriculum vitae do not demonstrate that he is qualified to offer an expert opinion in this case.

A.      Qualifications to Offer an Expert Opinion

An expert providing opinion testimony regarding whether a health care provider departed from the accepted standards of health care must satisfy the requirements set forth in section 74.402. Tex. Civ. Prac. & Rem. Code _ 74.351(r)(5)(B).  That section provides:

(b) 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:

(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.

Id. _ 74.402(b).  In determining whether a particular witness is qualified Aon the basis of training or experience,@ the trial court must consider whether that witness (1) is certified by one or more state licensing agencies or a national professional certifying agency, or has Aother substantial training or experience@ in an area of health care relevant to the claim; and (2) is Aactively practicing health care@ in rendering health care services relevant to the claim. Id. _ 74.402(c)(1)B(2).

CHCA Mainland apparently challenges Dr. Hyman=s qualifications under sections 74.402(b)(2) and (b)(3).  Before we turn to CHCA Mainland=s specific arguments, we will examine the contents of Dr. Hyman=s report and curriculum vitae.

B.      We Consider the Contents of Both Dr. Hyman=s Report and His Curriculum Vitae

In its brief, CHCA Mainland suggests that our analysis of Dr. Hyman=s qualifications to offer an expert opinion in this case is limited to the four corners of his report.  Contrary to CHCA Mainland=s contention, our analysis of the qualifications of an expert under section 74.351 is limited to the four corners of the expert=s report and curriculum vitae. See Burrell, 230 S.W.3d at 758 (citing Palacios, 46 S.W.3d at 878); see also Windisch, 138 S.W.3d at 511.  Accordingly, we will consider the contents of both documents. 

Here, Dr. Hyman=s report and curriculum vitae reflect that he is licensed to practice medicine in the state of Texas, is board certified in Internal Medicine, and has been both practicing and teaching inpatient and outpatient medicine in Texas for over seventeen years.  At the time of the report, Dr. Hyman was an associate professor of medicine in the Section of General Internal Medicine at the Baylor College of Medicine in Houston, as well as an associate professor of Family and Community Medicine there.  He formerly served as the Chief of the General Medicine Section at Baylor College of Medicine in late 1996 and early 1997, and has authored one article on abused and neglected elders treated by an interdisciplinary geriatric team that was published in the Journal of Elder Abuse and Neglect.  In addition, Dr. Hyman has participated in three presentations to Meetings of the American Geriatric Society:  (1) ACancer care for the elderly in a public hospital: A descriptive survey@; (2) ACaring for the frail elderly outpatient in a public system@; and (3) AGeriatric emergency care in an urban hospital system.@  Finally, Dr. Hyman=s curriculum vitae indicates that he is involved in clinical supervision at Ben Taub Hospital in Ainpatient attending@ three months per year, he teaches an evidence-based medicine seminar in the Family Medicine rotation at Baylor College of Medicine, and he is the course director of a APrinciples of Prevention@ course for physician assistants at Baylor College of Medicine.

C.      The Trial Court Abused Its Discretion in Concluding That Dr. Hyman=s Report and Curriculum Vitae Established That He Is Qualified to Offer an Expert Opinion in this Case

1.       Dr. Hyman=s Report and Curriculum Vitae Do Not Show That He Has Any Experience in the Care and Treatment of Decubitus Ulcers, or Any Specialized Knowledge About the Cause of That Particular Medical Condition

CHCA Mainland first argues that Dr. Hyman=s report and curriculum vitae do not show that he has any experience in the care and treatment of decubitus ulcers, or any specialized knowledge about the cause of that particular medical condition.  We agree.  The trial court=s analysis of Dr. Hyman=s qualifications was limited to the four corners of his report and curriculum vitae, and neither document demonstrates that he has the requisite experience with decubitus ulcers or knowledge of the applicable standard of care that would qualify him to offer an expert opinion in this case. See Burrell, 230 S.W.3d at 758.

First, it is not evident from the four corners of either document that Dr. Hyman has any experience in the treatment and prevention of decubitus ulcers.  While his report and curriculum vitae indicate that he (1) is board certified in internal medicine, (2) has seventeen years= experience in practicing and teaching both inpatient and outpatient medicine, (3) has experience in an inpatient hospital setting, where he supervises Ainpatient attending@ three months per year, and (4) is course director of a preventive medicine course for physician assistants, Dr. Hyman failed to set forth his experience with decubitus ulcers anywhere in his report or curriculum vitae.  While Dr. Hyman might have acquired experience with decubitus ulcers in his seventeen years of practice and teachingCthrough, for example, treating patients with decubitus ulcers, or training medical personnel on the treatment and prevention of that particular medical conditionCthe contents of his report and curriculum vitae do not demonstrate that he has any experience whatsoever in diagnosing and caring for patients with decubitus ulcers.^[4]

Nor do Dr. Hyman=s report and curriculum vitae demonstrate that he has the  requisite knowledge of the accepted standard of care for the diagnosis, care, or treatment of decubitus ulcers.  Dr. Hyman vaguely references his familiarity with the applicable standard of care  through his conclusory statements in the initial paragraph of his report, AI am a Board Certified Internist and am fully licensed in the State of Texas.  I have been both practicing and teaching inpatient and outpatient medicine here for 17 years.  I feel I am very much in position to comment on appropriate standards of care.@  Notably, Dr. Hyman never states anywhere in his report that he has any familiarity whatsoever with the standard of care as it pertains to the treatment and prevention of decubitus ulcers, and his curriculum vitae does not present any basis for the trial court to have concluded that he has the requisite knowledge of the applicable standard of care.^[5]

In short, while it might be reasonable to infer from the contents of these documents that Dr. Hyman might have acquired experience in the treatment and care of decubitus ulcers in his seventeen years of practice and teaching, or that, through his training of physician assistants, he might have knowledge of the standard of care applicable to the diagnosis, care or treatment of decubitus ulcers, the trial court is not allowed to make any inferences regarding Dr. Hyman=s qualifications to offer an expert opinion in this case. See Wright, 79 S.W.3d at 53; Patel, 237 S.W.3d at 904.

2.       Dr. Hyman=s Report Fails to Explain How His Knowledge, Skill, Experience, Training, and Education as an Internist Qualified Him to Offer an Expert Opinion in This Case

CHCA Mainland further argues that Dr. Hyman=s report fails to explain how his knowledge, skill, experience, training, and education as an internist qualified him to render an expert opinion in this case regarding the statutory requisites of Dickie=s claim.  Again, we agree. In his report, Dr. Hyman failed to link his experience in his medical specialtyCinternal medicineCto decubitus ulcers.  Although his report indicates that he has seventeen years= experience in practicing and teaching inpatient and outpatient medicine, and that he is board certified in Internal Medicine, as noted above, he fails to state in his report that over the course of his career in internal medicine that he has either treated patients with decubitus ulcers, or that he has trained nurses, physician assistants, or other medical personnel in the proper techniques to treat and prevent decubitus ulcers.^[6]  And, the contents of Dr. Hyman=s curriculum vitae did not provide an independent basis for the trial court to conclude that Dr. Hyman=s background in internal medicine furnished him any relevant experience with the treatment or prevention of decubitus ulcers, or any knowledge of the applicable standard of care.  Again, while it might be reasonable to infer from Dr. Hyman=s skill, experience, training, and education as an internist that he has knowledge of the standard of care for the treatment and prevention of decubitus ulcers, the trial court was not permitted to make such an inference. See Wright, 79 S.W.3d at 53; Patel, 237 S.W.3d at 904.

          Under section 74.402(b)(2), Dickie had the burden to demonstrate that Dr. Hyman has knowledge of the accepted standards of care for the diagnosis, care, or treatment of decubitus ulcers. See Tex. Civ. Prac. & Rem. Code _ 74.402(b)(2).  Because Dr. Hyman=s report and curriculum vitae failed to demonstrate that he had any knowledge of the standard of care applicable to the treatment and prevention of decubitus ulcers, we conclude that his report and curriculum vitae do not satisfy the requirements of section 74.402(b)(2).  We next examine the requirements of section 74.402(b)(3).

3.       Dr. Hyman Has Not Established That He Is Qualified on the Basis of Training or Experience to Offer an Expert Opinion in This Case

Under section 74.402(b)(3), Dickie had the burden to demonstrate that Dr. Hyman is qualified on the basis of training or experience to offer an expert opinion regarding the accepted standards of care for the diagnosis, care, or treatment of decubitus ulcers. See Tex. Civ. Prac. & Rem. Code _ 74.402(b)(3).  To determine whether Dr. Hyman is qualified under this section, we consider whether Dr. Hyman is (1) certified by a licensing agency or has substantial experience relevant to the claim; and (2) whether he is actively practicing health care in rendering health care services relevant to the claim. See id. _ 74.402(c)(1)B(2); see also Burrell, 230 S.W.3d at 760.

Dr. Hyman=s report and curriculum vitae indicate that he is board certified in internal medicine, that he has seventeen years= experience in practicing and teaching inpatient and outpatient medicine, that he supervises Ainpatient attending@ at Ben Taub Hospital, and that he instructs physician assistants on preventive medicine.  Although internal medicine is an area of health care with potential relevance to Dickie=s claimCsuch that Dr. Hyman=s board certification in that specialty would satisfy the requirements of section 74.402(c)(1)Cneither Dr. Hyman=s report nor his curriculum vitae demonstrates that his background in internal medicine furnished him any relevant experience with the treatment or prevention of decubitus ulcers, or any knowledge of the applicable standard of care.  And, Dr. Hyman did not make any attempt in his report to explain that (1) internal medicine is an area of health care relevant to Dickie=s claim; or (2) his seventeen years of experience in practicing and teaching inpatient and outpatient medicine is in an area relevant to Dickie=s claim.  In fact, as we explained above, Dr. Hyman failed to state anywhere in his report that he has either trained personnel on the prevention and treatment of decubitus ulcers, or that he has treated patients with decubitus ulcers over the course of his practice as a doctor of internal medicine. Furthermore, we have already concluded that Dr. Hyman=s report did not sufficiently explain how his knowledge, skill, experience, training, and education as an internist qualified him to render an expert opinion in this case.

Based on the contents of Dr. Hyman=s report and curriculum vitae, we cannot conclude that Dr. Hyman=s board certification in internal medicine is in an area of health care relevant to Dickie=s claim, or that he has substantial training or experience in an area of health care relevant to Dickie=s claim.  Thus, Dr. Hyman was not shown to be qualified under section 74.402(c)(1), and therefore his report and curriculum vitae do not satisfy the requirements of section 74.402(b)(3).^[7] See Tex. Civ. Prac. & Rem. Code _ 74.402(b)(3), (c)(1). 

4.       The AGood Reason@ Exception of Section 74.402(d) Is Not Applicable Here

In a final attempt to avoid dismissal of her claim, Dickie asserts that the trial court could have concluded that Dr. Hyman is qualified to offer an expert opinion in this case under the Agood reason@ exception of section 74.402(d).  That provision provides:

The court shall apply the criteria specified in Subsections (a), (b), and (c) in determining whether an expert is qualified to offer expert testimony on the issue of whether the defendant health care provider departed from accepted standards of health care but may depart from those criteria if, under the circumstances, the court determines that there is good reason to admit the expert=s testimony.  The court shall state on the record the reason for admitting the testimony if the court departs from the criteria.

Tex. Civ. Prac. & Rem. Code _ 74.402(d).  However, neither the transcript of the hearing on CHCA Mainland=s motion to dismiss nor the trial court=s order denying the motion to dismiss states that the trial court departed from the criteria of section 74.402(a)B(c).  Accordingly, the Agood reason@ exception of section 74.402(d) is not applicable to the facts of this case. See id. (AThe court shall state on the record the reason for admitting the testimony if the court departs from the criteria.@); see also Group, 164 S.W.3d at 729 (noting that the Agood reason@ exception of section 74.402(d) was not applicable because the order denying the defendant physician=s motion to dismiss did not state that the trial court departed from the criteria of section 74.402); cf. Packard v. Guerra, 252 S.W.3d 511, 529B32 (Tex. App.CHouston [14th Dist.] 2008, pet. filed) (concluding that the trial court properly applied section 74.402(d) when it stated on the record the reason for resorting to the Agood reason@ exception).

From the foregoing, we conclude that Dr. Hyman=s report and curriculum vitae do not demonstrate that he is qualified to offer an expert opinion in this case.  The trial court abused its discretion in concluding otherwise.  We therefore sustain CHCA Mainland=s first issue.

III.      Dr. Hyman=s Report is Conclusory on the Elements of Proximate Causation and Breach of the Applicable Standard of Care.

In its second and third issues, CHCA Mainland contends that Dr. Hyman=s expert report is conclusory on the elements of proximate causation and breach of the applicable standard of care.  Specifically, CHCA Mainland asserts that an expert report must explain the basis for the expert=s conclusions, and link the conclusions to the facts of the case.  CHCA Mainland argues that Dr. Hyman=s report is deficient because it does not provide any explanation for his conclusion, AAs a result the patient developed a decubitus ulcer that required treatment.@  CHCA Mainland further asserts that an expert report must include Aspecific information about what the defendant should have done differently,@ and argues that Dr. Hyman=s report is deficient because it does not include specific factual allegations setting forth the actual conduct of the nurses that is being called into question.  Again, we agree with CHCA Mainland.

A.      Expert Reports Must Contain More Than Conclusory Statements  Regarding Breach of the Applicable Standard of Care and Causation

Not only must the expert report and curriculum vitae demonstrate that the expert is qualified to offer an expert opinion in the case, the report must also contain a discussion of the standard of care, breach, and causation with sufficient specificity (1) to inform the defendant of the conduct the plaintiff has called into question and (2) to provide a basis for the trial court to conclude that the claims have merit. See Palacios, 46 S.W.3d at 879.  A report that merely states the expert=s conclusions about the standard of care, breach, and causation does not fulfill these two purposes. Palacios, 46 S.W.3d at 879; see Wright, 79 S.W.3d at 52B53.  Rather, the expert must explain the basis of his statements to link his conclusions to the facts. Wright, 79 S.W.3d at 52 (citing Earle v. Ratliff, 998 S.W.2d 882, 890 (Tex. 1999)); Patel, 237 S.W.3d at 904.

B.      Dr. Hyman=s Report Fails to Explain the Basis of His Statements to Link His Conclusions to the Facts

Here, the parties do not dispute that Dr. Hyman=s report fairly summarizes the alleged standard of care owed to Dickie. See Tex. Civ. Prac. & Rem. Code _ 74.351(r)(6).  CHCA Mainland only contests whether the report fairly summarizes the manner in which it allegedly breached the standard of care, and the causal relationship between its alleged breach and Dickie=s injury.

Dr. Hyman=s report contains only one statement regarding CHCA Mainland=s alleged breach of the standard of care owed to Dickie:  AMainland Medical Center did not meet these standards of care and was negligent.@  It does not include specific factual allegations setting forth the conduct that Dickie has called into question.  In fact, the report does not discuss at all what actions were actually taken by CHCA Mainland in Dickie=s treatment, much less what actions it failed to take.  Identifying whether the standard of care has been breached cannot be determined absent specific information about what should have been done differently. Palacios, 46 S.W.3d at 880.  It is not sufficient for an expert to simply state that he knows the standard of care and conclude that it was not met. See id.  Thus, Dr. Hyman=s report does not fairly summarize the manner in which CHCA Mainland allegedly breached the standard of care owed to Dickie. See id.; Hardy v. Marsh, 170 S.W.3d 865, 869B70 (Tex. App.CTexarkana 2005, no pet.).

Nor does Dr. Hyman=s report provide a fair summary of the causal relationship between CHCA Mainland=s alleged breach and Dickie=s injury.  Dr. Hyman=s report contains only one statement regarding causation:  AAs a result the patient developed a Decubitus Ulcer that required treatment.@  Dr. Hyman=s report does not contain any causal facts, much less explain how CHCA Mainland=s conduct caused injury to Dickie. See Wright, 79 S.W.3d at 53; cf. Patel, 237 S.W.3d at 905B06 (concluding expert report not conclusory on element of causation; report sufficiently outlined required causal facts, presenting chain of events that ultimately culminating in patient=s death).  Instead, the report merely states Dr. Hyman=s conclusion on causation.  This is insufficient. See Palacios, 46 S.W.3d at 879; see also Wright, 79 S.W.3d at 52B53 (concluding expert report conclusory on element of causation; report merely stated expert=s conclusion on causation, and did not provide information linking defendant=s actions to patient=s injuries); Longino v. Crosswhite, 183 S.W.3d 913, 918 (Tex. App.CTexarkana 2006, no pet.) (same); Costello v. Christus Santa Rosa Health Care Corp., 141 S.W.3d 245, 249 (Tex. App.CSan Antonio 2004, no pet.) (same); Lopez v. Montemayor, 131 S.W.3d 54, 59B60 (Tex. App.CSan Antonio 2003, pet. denied) (same); Barko v. Genzel, 123 S.W.3d 457, 460B61 (Tex. App.CEastland 2003, no pet.) (same).

Therefore, we conclude that Dr. Hyman=s report is conclusory on the elements of breach of the applicable standard of care and causation.  The trial court abused its discretion in concluding otherwise.  We sustain CHCA Mainland=s second and third issues.

IV.      We Remand to the Trial Court to Consider Whether Granting a Thirty-Day Extension Under Section 74.351(c) is Appropriate.

Section 74.351(c) affords the trial court discretion to grant claimants one thirty-day extension to cure any deficiencies in an expert report. See Tex. Civ. Prac. & Rem. Code _ 74.351(c).  Because the trial court denied CHCA Mainland=s motion to dismiss, it did not have the opportunity to consider whether Dickie is entitled to a thirty-day extension to cure deficiencies in Dr. Hyman=s report.  We therefore remand the case for the trial court to exercise its discretion under section 74.351(c).

Conclusion

For the foregoing reasons, we hold that the trial court abused its discretion in concluding (1) Dr. Hyman=s report and curriculum vitae established that he is qualified to offer an expert opinion in this case; and (2) Dr. Hyman=s report is not conclusory on the elements of breach of the applicable standard of care and causation.  We therefore reverse the order of the trial court denying CHCA Mainland=s motion to dismiss, and remand to the trial court for consideration of whether Dickie is entitled to a thirty-day extension under section 74.351(c) to cure the deficiencies.

/s/      Wanda McKee Fowler

Justice

Judgment rendered and Memorandum Opinion filed August 21, 2008.

Panel consists of Justices Fowler, Frost, and Seymore.

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^[1]  In her brief, Dickie asserts seven cross-points challenging the constitutionality of the expert report requirement of section 74.351.  However, Dickie did not raise any of these arguments in her response to CHCA=s motion to dismiss, or at the hearing on the motion to dismiss.  Because Dickie failed to assert these arguments in the trial court below, we do not consider them here. See Tex. R. App. P. 33.1(a); see also Dreyer v. Greene, 871 S.W.2d 697, 697 (Tex. 1993) (stating that constitutional arguments must be asserted in the trial court in order to be raised on appeal); Swink v. Alesi, 999 S.W.2d 107, 110 (Tex. App.CHouston [14th Dist.] 1999, no pet.) (concluding that appellees had waived cross-point on appeal by failing to raise argument in the trial court).  Dickie=s cross-points are waived.

^[2]  Because Dickie=s cause of action accrued before September 1, 2005, the former version of section 74.351(a) applies. See Act of May 18, 2005, 79th Leg., R.S., ch. 635, _ 2, 2005 Tex. Gen. Laws 1590, 1590.  That version stated that Aa claimant shall, not later than the 120th day after the date the claim was filed, serve on each party or the party=s attorney one or more expert reports, with a curriculum vitae of each expert listed in the report . . . .@ See id. _ 1 (emphasis added).  The current version of section 74.351(a) states that Aa claimant shall, not later than the 120th day after the date the original petition was filed, serve on each party or the party=s attorney one or more expert reports, with a curriculum vitae of each expert listed in the report . . . .@ See Tex. Civ. Prac. & Rem. Code _ 74.351(a) (emphasis added).

^[3]  In its brief, CHCA Mainland argues that A[Dickie] did not show that Dr. Hyman had the necessary qualifications as an expert under Sections 74.351(r)(5) and 74.401(a).@  While CHCA Mainland is correct in its assertion that Dickie has the burden to demonstrate that Dr. Hyman is qualified to offer an expert opinion on the elements of her claim, section 74.401 is applicable only to health care liability claims asserted against physicians. See Burrell, 230 S.W.3d at 757 (A[The plaintiff], as proponent of the expert, has the burden to show that the expert is qualified and the expert report satisfies the statutory requirements.@); see also Tex. Civ. Prac. & Rem. Code _ 74.401 (AQualifications of Expert Witness in Suit Against Physician@).  Because Dickie has sued a health care providerCand not a physicianCwe apply the analogous provisions of section 74.402 instead. See id. _ 74.402 (AQualifications of Expert Witness in Suit Against Health Care Provider@).

^[4]  Cf. Burrell, 230 S.W.3d at 759 (concluding that expert report was not conclusory and that it sufficiently set forth the expert=s experience with decubitus ulcers, where expert report provided that expert was Afamiliar with the standard of care as it pertains to prevention and treatment of decubitus ulcers,@ that he had Aexperience in instructing nurses and other personnel in the proper techniques to prevent decubitus ulcers,@ and that he had Atreated patients with decubitus ulcers over the course of [his] practice as an infectious disease internist and occupational doctor@).

^[5]  Cf. Burrell, 230 S.W.3d at 760 (concluding that expert report sufficiently demonstrated expert=s knowledge of the standard of care applicable to the prevention and treatment of decubitus ulcers, where expert stated in his report that he was familiar with the standard of care as it pertains to the prevention and treatment of decubitus ulcers); Group, 164 S.W.3d at 734 (holding a doctor=s statement that he has knowledge of the accepted standard of care for the injury or illness at issue satisfies section 74.402(b)(2)).

^[6]  Cf. Burrell, 230 S.W.3d at 760 (concluding that expert report sufficiently demonstrated expert=s knowledge of decubitus ulcers, where expert linked his experience in his medical specialitiesCinternal medicine, occupational medicine, and infectious diseaseCto decubitus ulcers by stating that, over the course of his career in each of these specialties, he treated patients with decubitus ulcers and trained nurses and other medical personnel in the proper techniques to prevent that medical condition).

^[7]  Cf. Burrell, 230 S.W.3d at 760B61 (concluding that expert had substantial training or experience in an area of health care relevant to the plaintiff=s claim, and was therefore qualified under section 74.402(c)(1), where expert report explained that expert had trained personnel on the prevention and treatment of decubitus ulcers and treated patients with decubitus ulcers over the course of his practice as a doctor of internal medicine, occupational medicine, and infectious disease, and expert=s curriculum vitae indicated that expert was board eligible in infectious disease, a fellow in infectious disease, and had Arelevant teaching experience@).