In The
Court of Appeals
Ninth District of Texas at Beaumont
__________________
NO. 09-25-00044-CV __________________
CHI ST. LUKE’S COMMUNITY HEALTH SERVICES – THE WOODLANDS HOSPITAL, Appellant
V.
SHARON SMITH, Appellee
__________________________________________________________________
On Appeal from the 284th District Court Montgomery County, Texas Trial Cause No. 24-04-06465-CV __________________________________________________________________
MEMORANDUM OPINION
This is an interlocutory accelerated appeal from the trial court’s order
overruling the objections of Defendant CHI St. Luke’s Community Health Services
– The Woodlands Hospital (“Appellant” or “SLWH”) to Plaintiff Sharon Smith’s
(“Appellee” or “Smith”) second amended Chapter 74 expert report and denying
SLWH’s motion to dismiss Smith’s health care liability claim. See Tex. Civ. Prac.
& Rem. Code Ann. § 74.351; see also id. § 51.014(a)(9) (providing for interlocutory
1 appeal of an order denying relief under section 74.351). SLWH timely filed this
appeal, arguing that the trial court erred in overruling its objections and in failing to
dismiss Smith’s health care liability claim. We affirm.
Background
Allegations in Smith’s Petition
On April 24, 2024, Smith filed her Original Petition stating claims for
negligence and gross negligence against Defendants Katherine Luu, MD, Katherine
Luu, MD, PLLC, and Steven Ellis, DO,1 related to their care and treatment of Smith,
and claims against “St. Luke’s Community Health Services, St. Luke’s Health
System Corporation, and St. Luke’s The Woodlands Hospital”2 for negligence and
gross negligence under the doctrine of respondeat superior.
According to the petition, Smith was initially treated at SLWH on May 20,
2023, complaining of a headache, high blood pressure, and numbness and tingling
in the right side of her body. Dr. Luu evaluated Smith at 8:13 p.m., and Dr. Luu
noted that Smith had a sensory deficit to her right face, right arm, and right leg. Dr.
1 Defendants Katherine Luu, MD, Katherine Luu, MD, PLLC, and Steven Ellis, DO are not parties to this appeal. We only discuss those parties, Smith’s claims against those parties, and pleadings as to those parties as necessary to provide background and to address SLWH’s issue on appeal. 2 Defendant SLWH answered the suit acknowledging that it had been incorrectly named in the suit as “St. Luke’s Community Health Services, St. Luke’s Health System Corporation, and St. Luke’s The Woodlands Hospital[;]” therefore, we refer to the defendant hospital as SLWH when discussing the allegations in the petition. 2 Luu assigned Smith a score of “one” on the National Institutes of Health Stroke Scale
(“NIHSS”) and “ordered a CT brain, CT angiogram (CTA) brain, and CTA carotid,
noting the indication for these studies as hypertensive emergency and right-sided
numbness.” The petition states that Dr. Luu ordered hydralazine 10mg IV for
Smith’s hypertension, which was administered at 8:34 p.m., and the CT scans were
completed at 9:48 p.m. According to the petition, at 11:01 p.m., Dr. James Reese
reported that the CT studies reflected “no acute intracranial abnormality or large
vessel occlusion.” Dr. Luu reassessed Smith at 11:47 p.m., documenting that Smith
continued to have right-sided numbness, but that it had improved since Smith’s
arrival at the hospital. Dr. Luu diagnosed Smith with hypertensive emergency and
right-sided numbness and ordered her to be discharged. In her discharge instructions,
Dr. Luu advised Smith that her CT scans did not show evidence of a stroke and that
her symptoms were likely related to high blood pressure. Smith left the hospital’s
emergency department at 11:45 p.m.
The petition states that on May 21, 2023, at 12:12 p.m., Smith returned to the
SLWH emergency department, and Smith was examined by Dr. Steven Ellis. Dr.
Ellis noted that Smith reported that at 4:00 a.m. she started having slurred speech,
right-sided weakness, and right facial droop. Dr. Ellis noted that Smith had right-
sided facial droop, right arm and leg weakness, and slurred speech, and he assigned
her a score of “five” on the NIHSS. Dr. Ellis noted that he reviewed Smith’s CT
3 scans from May 20th, and Smith was admitted to the hospital with a diagnosis of
facial droop, slurring speech, right arm weakness, and right leg weakness.
The petition states that later Dr. Lucy Buencamino evaluated Smith and noted
that Smith was unable to have an MRI secondary to neck hardware and documented
a plan to consult neurology on the morning of May 22nd if Smith’s symptoms
persisted. At approximately 11:50 p.m. on May 21st, Smith and her family signed
Smith out of SLWH against medical advice from the emergency department noting
on the AMA form that “care here is less than standard[.]”
Smith presented to Houston Methodist Hospital at 12:25 a.m. on May 22nd
and was examined by Dr. Aric Bakshy at 12:52 a.m. According to the petition, Dr.
Bakshy noted that Smith “exhibited right arm and leg weakness, right arm numbness,
dysarthric speech, and right-sided facial 3 numbness and weakness[,]” and that her
symptoms were consistent with a stroke. The stroke team was contacted at 1:05 a.m.
and, as part of her stroke evaluation, Smith underwent a “CT head [and] CTA
head/neck[.]” The testing indicated Smith suffered “a stroke involving the left
thalamocapsular region and a severe stenosis of the P2 segment of the left posterior
cerebral artery (PCA).” The petition states that the providers at Houston Methodist
concluded that Smith was not a candidate for thrombolytic therapies because her
symptoms were “outside the 4.5 hour window.” Smith was hospitalized until May
28, 2023, when she was discharged to TIRR Memorial Hermann inpatient rehab.
4 The petition asserts that Smith still suffers from symptoms from her stroke which
impede her personal and work life.
Smith’s petition alleges that Dr. Luu’s and Dr. Ellis’s treatment of Smith fell
below the standard of care and that they breached the standard of care “by failing to
follow the necessary protocols required for any patient exhibiting potential stroke
symptoms.” The petition also alleges that SLWH is liable for Dr. Luu’s and Dr.
Ellis’s actions to the extent SLWH was an employer or was in control of “any of the
systems by which these doctors made their decisions for Ms. Smith,” and that
Katherine Luu, MD, PLLC, is liable to Smith to the extent that Dr. Luu was operating
as an agent or employee of Katherine Luu, MD, PLLC. Smith’s petition asserts that
the acts and omissions of the defendants proximately caused Smith’s injuries.
Specifically as to Dr. Luu, Smith alleged that Dr. Luu breached the standard
of care by:
• [f]ailing to initiate stroke protocol[;] • [f]ailing to consult a neurologist and/or stroke team when Ms. Smith presented complaining of stroke symptoms[;] • [f]ailing to ensure the CT of the head and CTA brain/carotid was ready timely in compliance with acute stroke protocol by ordering the studies for indication of hypertensive emergency and right sided numbness which resulted in their completion 1 hour and 45 minutes later and their interpretation 2 hours and 58 minutes after Ms. Smith arrived to the emergency room[;] • [f]ailing to offer or recommend thrombolytics to Ms. Smith, who was an appropriate candidate[;and] • [f]ailing to diagnose Ms. Smith with an acute stroke and admitting her to the hospital.
5 As to Dr. Ellis, in the petition Smith alleged that Dr. Ellis breached the
standard of care by:
• [f]ailing to diagnose Ms. Smith with a stroke[;] • [f]ailing to obtain a repeat CT when he found Ms. Smith’s NIHSS score increased[;and] • [f]ailing to admit Ms. Smith under a stroke protocol, thereby not ensuring she was evaluated by neurology and instead had her admitted under hospitalist service.
Additionally, Smith alleged that SLWH had the right to control “the means
and details” of doctors with whom it contracts, like Dr. Luu and Dr. Ellis, to provide
emergency medicine at its facility, and that it was negligent in failing to ensure that
Dr. Luu and Dr. Ellis were sufficiently following the appropriate standard of care.
According to Smith, at the time of their improper care of Smith, Dr. Luu and Dr.
Ellis were acting within the course and scope of employment and as agents of
SLWH.
Smith contends that the defendants were grossly negligent in treating Smith
by failing to follow the stroke protocol for a comprehensive stroke center. In the
petition, Smith further alleges that Smith presented to SLWH with “symptoms
indicative of a stroke and was a candidate for thrombolytics” but Dr. Luu and Dr.
Ellis failed to formally diagnose Smith with a stroke, initiate a stroke protocol, and
timely consult neurology. According to Smith, the defendants “robb[ed] her of a
chance at the best possible outcome when she presented to the emergency
department with alarming and then worsening symptoms.” 6 Smith sought damages for physical pain and suffering, mental pain and
suffering, loss of consortium, physical impairment, physical disfigurement,
inconvenience, loss of enjoyment of life, reasonable and necessary past and future
medical bills, lost wages and lost earning capacity. Attached to the petition is an
expert report from Dr. Brian Pisula along with his curriculum vitae.
SLWH’s Answer and Objections to Dr. Pisula’s Initial and First Amended Expert Report
SLWH filed an Answer, stating it was incorrectly named as “St. Luke’s
Community Health Services, St. Luke’s Health System Corporation, and St. Luke’s
The Woodlands Hospital[,]” and generally denying Smith’s allegations and asserting
affirmative defenses. SLWH also filed Objections to Plaintiff’s Chapter 74 Report
of Brian Pisula, MD. In response, Smith filed the First Amended Chapter 74 Report
of Brian Pisula, MD. SLWH filed Objections to Plaintiff’s First Amended Chapter
74 Report of Brian Pisula, MD and Motion to Dismiss. Smith filed a response to the
objections and motion to dismiss, and SLWH filed a reply to Smith’s response.
After a hearing on SLWH’s Objections to Plaintiff’s First Amended Chapter
74 Report of Brian Pisula, MD and Motion to Dismiss, on November 14, 2024, the
trial court and the parties signed an Agreed Order. The Agreed Order states that the
trial court sustained SLWH’s objections in part because Pisula’s first amended report
did not comply with section 74.351 because his opinion as to causation is speculative
and conclusory. The court granted Smith a thirty-day extension to cure the defects. 7 See Tex. Civ. Prac. & Rem. Code Ann. § 74.351(c). The trial court denied SLWH’s
Motion to Dismiss.
Dr. Pisula’s Second Amended Chapter 74 Report3
In the Second Amended Chapter 74 Report of Dr. Pisula, a board-certified
emergency doctor, Dr. Pisula described his qualifications for rendering his expert
opinions in this case, described the factual and medical background in the case, and
offered the following opinions and conclusions:
Opinions
The standard of care for emergency physicians in initially evaluating patients with stroke symptoms is to promptly determine the patient’s “last known well” time and perform a comprehensive neurological examination. If the examination is consistent with a stroke and symptom onset is within 4.5 hours of presentation to the emergency department, a “code stroke” protocol must be activated. Code stroke protocols consist of rapid consultation of a neurologist and/or stroke team, rapidly obtaining a CT without contrast of the head with expedited interpretation of the CT results, and administration of a thrombolytic medication if the patient is determined to be a candidate.
The American Heart Associat[ion] St[r]oke Target guidelines as well as the National Institute of Neurological Disorders and Stroke recommend the following targets for [a] patient presenting with stroke symptoms presenting within 4.5 hours of symptom onset: ≤ 10 minutes to initial physician evaluation, ≤ 15 minutes to stroke team/neurology consultation, ≤ 25 minutes to head CT, ≤ 45 minutes to interpretation of neurological imaging, ≤ 60 minutes to initiation of thrombolytic therapy.
3 The trial court ultimately dismissed Smith’s claims against Steven Ellis, DO, without prejudice, and therefore Smith’s vicarious liability claims against SLWH cannot be based on Smith’s allegations against Dr. Ellis, so we omit any further analysis of Dr. Pisula’s second amended report relating to Dr. Ellis. 8 Ms. Smith presented to [SLWH] on May 20, 2023 at 8:03 pm. Dr. Luu evaluated Ms. Smith at 8:13pm and documented that Ms. Smith’s symptoms of right-sided numbness had started one hour prior to arrival. Dr. Luu performed a neurological examination, documenting that Ms. Smith had objective numbness in her right arm, leg, and face. Despite documenting that Ms. Smith’s symptoms had started within one hour of presentation to the E[mergency] D[epartment] and that she had objective sensory loss to the right-side of her body, Dr. Luu did not activate a code stroke protocol. Dr. Luu did not consult a neurologist and/or a stroke team to evaluate Ms. Smith. While Dr. Luu did order a CT of the head as well as CTA brain/carotid, she ordered these studies for the indication of hypertensive emergency and right-sided numbness, not as part of an acute stroke protocol. As a result, these studies were not completed until 9:48 pm, 1 hour and 45 minutes after Ms. Smith’s presentation to the ED, and were not interpreted until 11:01pm, 2 hours and 58 minutes after Ms. Smith’s arrival to the ED. Dr. Luu’s failure to order Ms. Smith’s CT scans as acute stroke protocols to ensure timely completion and interpretation was a breach of the standard of care. Additionally, Dr. Luu’s failure to promptly consult a neurologist and/or stroke team was a breach of the standard of care.
Dr. Luu ultimately discharged Ms. Smith from the ED at 11:45pm with a diagnosis of hypertensive emergency and right-sided numbness, not an acute stroke. While Dr. Luu noted that she offered admission to Ms. Smith for blood pressure monitoring and neurological checks, she never offered or recommended administration of thrombolytics. Ms. Smith was an appropriate candidate for thrombolytic therapy. She presented within 4.5 hours of symptom onset, had a measurable neurological deficit as evidence[d] by her score of 1 on Dr. Luu’s NIHSS, her CT scan did not show hemorrhage or evidence of irreversible injury, and although her initial blood pressure was significantly elevated at 223/98, it reduced briskly to 162/64 by 9:00pm after receiving a dose of hydralazine 10mg IV. Dr. Luu breached the standard of care by failing to diagnose Ms. Smith with an acute stroke, failing to offer thrombolytic therapy, and failing to admit Ms. Smith to the hospital.
Additionally, Dr. Luu advised Ms. Smith in her discharge papers that her symptoms were likely related to elevated blood pressure. Notably, Ms. Smith’s blood pressure had significantly lowered during her time in the ED and was down to 153/96 at 10:30 pm. However, despite this 9 reduction in blood pressure, Dr. Luu documented on reassessment that Ms. Smith still had, albeit improved, right-sided numbness. The continued presence of right-sided numbness despite a substantial reduction in Ms. Smith’s blood pressure was exclusionary of her symptoms being definitely related to her blood pressure. Moreover, if Ms. Smith had actually been suffering from a hypertensive emergency with associated neurological deficits, the appropriate management would have been for her to be admitted to an ICU setting for blood pressure management, repeated neurological checks, neurology consultation, and MRI imaging of the brain. Dr. Luu breached the standard of care by inappropriately reassuring Ms. Smith that her symptoms were related to hypertension rather than an acute stroke.
Dr. Luu also advised Ms. Smith that her CT scans did not show[] signs of a stroke. However CT imaging in the setting of [] acute stroke symptoms is not utilized to diagnose or exclude a stroke. Rather, the initial head CT is used to screen for alter[n]ative causes of the patient’s symptoms and for exclusion criteria for thrombolytic therapy. Dr. Luu breached the standard of care by inappropriately relying on a normal CT of the head to exclude acute stroke and inappropriately reassuring Ms. Smith that a negative CT of the head could be utilized to exclude acute stroke.
....
[SLWH] is a facility equipped to treat stroke patients. Hospitals that hold themselves out to be stroke centers must have a stroke protocol in place to ensure that the standard of care is met for patients presenting with acute stroke. The hospital staff must also have the appropriate training, information, and resources to ensure that the protocol is followed. [SLWH] either failed to have an appropriate stroke protocol in place, or it was inadequate in that it failed to properly ensure the appropriate recognition and treatment of Ms. Smith’s stroke.
The breaches in the standard of care enumerated above caused a delay in diagnosis and treatment of Ms. Smith’s stroke. By failing to ensure that a code stroke protocol was activated, Ms. Smith did not undergo a CT head until 1 hour and 45 minutes after arrival and it was not interpreted until almost 3 hours after her arrival. The standard of care dictates that a head CT should be completed within 25 minutes and 10 interpreted by radiology within 45 minutes of arrival to the Emergency Department in a patient presenting with stroke symptoms. Rapidly obtaining the CT allows clinicians to determine if a patient has any exclusion criteria to treatment with thrombolytic therapy which, if the patient is eligible, must be administered within 4.5 hours of the patient’s “last known well” time. In this case, due to the failure of the providers to follow the stroke protocol timeline, Ms. Smith lost her opportunity to be given thrombolytic therapy during the time period that was appropriate. Ms. Smith presented with acute stroke symptoms with a last known normal of one hour prior to ED presentation. Rapid CT head imaging should have obtained within 25 minutes to rule-out exclusion criteria for thrombolytic therapy. Additionally, neurology should have been emergently consulted to evaluate Ms. Smith for treatment with thrombolytic therapy. Dr. Luu failed to ensure that the CT of the head was obtained and interpreted in the appropriate timeframe and failed [to] ensure that Ms. Smith was evaluated for treatment with thrombolytics. These breaches caused Ms. Smith to lose the opportunity to [be] treated with thrombolytics in a timely fashion. Had Dr. Luu followed the standard of care for patients presenting to the emergency department with acute stroke symptoms, Ms. Smith would have likely received thrombolytic therapy and had an improved neurological outcome.
. . . The failure to accurately diagnose Ms. Smith with an acute stroke and activate a stroke protocol also resulted in a delay in neurology consultation and initiation of standard post-stroke care including aspirin, blood pressure monitoring and treatment, and risk factor modification.
The Houston Methodist Hospital records show that the stroke team was activated rapidly upon Ms. Smith’s presentation to the ED. This allowed the providers to obtain lab work, imaging, and prompt neurology consultation. Although Ms. Smith was no longer a candidate for thrombolytic therapy, a code stroke protocol was properly initiated based on her focal neurological deficits.
Conclusion
It is my opinion that Dr. Luu breached the standard of care in her evaluation and management of Ms. Smith for her stroke symptoms. Dr. 11 Luu’s failure to properly diagnose Ms. Smith’s stroke and initiate a code stroke protocol resulted in Ms. Smith losing her best chance at preventing progression of her stroke.
. . . Ms. Smith did not receive an accurate diagnosis and neurology consult until two days after symptom onset, when she presented to the Houston Methodist emergency department, wherein appropriate symptom management began by initiating a code stroke protocol.
These breaches were the proximate cause of the delay in diagnosis of Ms. Smith’s stroke. Ms. Smith’s damages could have been prevented and/or mitigated had she been timely diagnosed with an acute stroke and a code stroke protocol initiated promptly.
I hold these opinions to a reasonable degree of medical probability. I also reserve the right to amend them should additional information be provided to me.
SLWH’s Objections to Plaintiff’s Second Amended Report and Motion to Dismiss
SLWH filed Objections to Plaintiff’s Second Amended Chapter 74 Report of
Brian Pisula, MD and Motion to Dismiss. SLWH objected to Dr. Pisula’s second
amended expert report, arguing that the report remains speculative and conclusory,
fails to sufficiently explain the causal relationship between Dr. Luu’s alleged
negligent actions and Smith’s injuries, remains silent on any injuries caused by
SLWH’s alleged negligence, and is not a good faith effort to comply with the
requirements of section 74.351.4 According to SLWH, Dr. Pisula fails to identify the
4 SLWH also argued “out of an abundance of caution[]” that, although Smith brought vicarious liability claims against SLWH, Dr. Pisula’s second amended report fails to adequately address the standard of care and breach of the standard of care as to SLWH. Because on appeal SLWH only challenges the report’s sufficiency on causation for purposes of Smith’s vicarious liability claims against SLWH, we 12 injuries Smith suffered from the alleged stroke and how the alleged delay in
diagnosis and treatment caused Smith’s injuries. SLWH contends that the report is
silent on the actual neurological deficits Smith allegedly suffered from the alleged
breaches of the standard of care and does not identify what thrombolytic therapy is,
how it works to treat a stroke, or how it would have improved Smith’s outcome.
Specifically, SLWH argues that the report does not identify Smith’s current
neurological deficits or the expected improvements she would have benefited from
with thrombolytic therapy. SLWH also moved to dismiss Smith’s healthcare liability
claim as to SLWH with prejudice on the basis that Dr. Pisula’s second amended
expert report is insufficient to fulfill the requirements of Chapter 74 as to SLWH.
Defendants Katherine Luu, MD, Katherine Luu, MD, PLLC, and Steven Ellis,
DO, also filed objections to Dr. Pisula’s second amended expert report. Because they
are not parties to this appeal, we do not discuss herein their objections or Smith’s
responses to those objections.
Smith’s Response to SLWH’s Objections to Second Amended Report and Second Motion to Dismiss
In her response in the trial court, Smith alleges that the expert report is not
required to marshal all the evidence as if it were litigating the merits, Dr. Pisula’s
second amended report details how the breaches of the standard of care caused and
do not include a discussion of SLWH’s arguments about its standard of care and alleged breach of that standard. 13 contributed to Smith’s injury, and that the report is a good faith effort to adequately
explain that the case has merit. According to Smith, Dr. Pisula describes in the report
Smith’s symptoms (numbness, slurring of speech, right facial droop) in order to
explain how those symptoms should have triggered a code stroke protocol but they
are also key to understanding how the failure to follow the standard of care prevented
Smith’s chance at stopping the eventual stroke and/or the progression of those
symptoms, the timely use of thrombolytic therapy is to try and eliminate a clot before
it can lead to a major stroke, and Smith was a candidate for that therapy. Smith
argues that the report identifies her injuries suffered by the alleged stroke by stating
that “These breaches were the proximate cause of the delay in diagnosis of Ms.
Smith’s stroke. Ms. Smith’s damages could have been prevented and/or mitigated
had she been timely diagnosed with an acute stroke and a code stroke protocol
initiated promptly.” Smith contends that, in other words, the stroke itself is the
damage suffered by Smith due to the breach of the standard of care, and that the
report explains that Pisula’s report explains that code stroke protocol should occur
as soon as possible and does not necessitate that the stroke have happened already.
Smith explains that Pisula’s “thorough explanation of the code stroke protocol shows
how imperative it is to determine whether a patient is a candidate for thrombolytic
therapy before they have a stroke if they present timely, as Ms. Smith did.” Smith
also argues that Chapter 74 requires opinions only as to liability and causation and
14 does not require an explanation of all the harm that flows from a plaintiff’s injury.
As for SLWH’s argument that Dr. Pisula’s report has not identified a direct liability
theory as to SLWH, Smith argues that this argument was addressed in her responsive
motion to SLWH’s first Motion to Dismiss and at the subsequent hearing, that the
Texas Supreme Court “has regularly addressed this issue[,]” and that so long as her
expert report complies with Chapter 74’s expert report requirements for a viable
liability theory, the report is sufficient as to Smith’s claims for vicarious liability as
to SLWH.
SLWH’s Reply to Smith’s Response
In its Reply to Smith’s Response, SLWH argues that Smith has
mischaracterized Dr. Pisula’s report by claiming that Dr. Pisula’s explanation of the
stroke protocol demonstrates that it is imperative to timely determine whether a
patient is a candidate for thrombolytic therapy. According to SLWH, Dr. Pisula’s
report does not state that the defendants’ actions caused Smith to have a stroke, but
instead states that Pisula believes a patient must be diagnosed with or have a stroke
before the stroke protocol can be activated and thrombolytic therapy administered,
and the breaches in the standard of care set out in the report caused a delay in the
diagnosis and treatment of Smith’s stroke and that the claim is essentially that she
lost her opportunity to be given thrombolytic therapy during an appropriate time.
SLWH argues that although Dr. Pisula is not required to marshal all proof or detail
15 the harm that flowed from Smith’s alleged injury, he has failed to identify any injury
beyond the loss of chance of an improved outcome by the alleged failure to timely
diagnose and treat the alleged stroke with thrombolytic therapy. According to
SLWH, Dr. Pisula generally claims that Smith’s damages could have been mitigated
if she were timely diagnosed, and if Dr. Luu had ordered and followed the stroke
protocol, Smith “likely” would have received thrombolytic therapy and would have
had an improved neurological outcome. According to SLWH, these statements
amount to nothing more than mere conjecture, and Dr. Pisula’s opinion on causation
is wholly deficient because he fails to identify any injury suffered by Smith that was
caused by Dr. Luu or SLWH. SLWH also argues that, as to Dr. Pisula’s opinion that
the alleged breaches of standard of care caused Smith to lose the opportunity to
receive thrombolytic therapy, Texas does not recognize a common law cause of
action for the “loss of chance” in medical malpractice claims. SLWH contends that
recovery for a loss of chance requires proof that at the time of the alleged negligent
action there was less than a 50% chance the claimed injuries would have occurred
without the negligence, and Dr. Pisula’s report does not show that Smith had a less
than 50% chance of an injury without the alleged delay in diagnosing an acute stroke
and initiation of thrombolytic therapy. SLWH further argues that Pisula, in stating
that Dr. Luu’s failure to properly diagnose a stroke resulted in Smith losing her
“best” chance at preventing the progression of a stroke with the use of thrombolytic
16 therapy, does not define what is meant by “best” and does not address the percentage
of patients who benefit from thrombolytic therapy or address the risks of the therapy.
Trial Court’s Order
After a hearing on January 17, 2025, the trial court signed an Order on
Motions to Dismiss wherein the trial court dismissed any and all direct liability
claims asserted by Smith against SLWH and stated that Smith’s vicarious liability
claims against SLWH “remain pending[.]” The Order on Motions to Dismiss also
dismissed any or all of Smith’s claims against Dr. Ellis, but denied the Motion to
Dismiss filed by Katherine Luu, MD and Katherine Luu, MD, PLLC. SLWH filed a
notice of interlocutory appeal. Dr. Luu did not file a notice of appeal.
Issue on Appeal
In a single issue on appeal, SLWH argues the trial court abused its discretion
in failing to dismiss Smith’s vicarious liability claims against SLWH. SLWH
contends that Dr. Pisula’s Second Amended Expert Report inadequately addresses
the cause of Smith’s injuries. Specifically, SLWH argues that for Smith to maintain
a vicarious liability claim against SLWH, Dr. Pisula’s report must adequately
address causation against Dr. Luu because the trial court dismissed Smith’s claims
against Dr. Ellis. SLWH also asserts that Dr. Luu was not an employee of SLWH at
the time of Smith’s care and SLWH did not train, educate, instruct, supervise or
control Dr. Luu’s medical decisions at the time of Smith’s care. According to
17 SLWH, Dr. Pisula’s causation opinion as to Dr. Luu is speculative and conclusory
and contains analytical gaps, making the report deficient as to Smith’s vicarious
liability claims against SLWH. SLWH also argues that under Kramer v. Lewisville
Memorial Hospital,5 Texas does not recognize a common law cause of action for
loss of chance in a healthcare liability claim and that, like the expert report in Varkey
v. Melhem,6 Dr. Pisula’s expert report does not show that Smith had less than a 50%
chance of suffering an injury without negligence. SLWH does not challenge Dr.
Pisula’s qualifications or the standard of care or the alleged breach of that standard.
In response, Smith maintains that Texas law does not require a separate report
when vicarious liability is at issue and that expert doctors are not required to opine
regarding business relationships at this preliminary stage. Smith asserts that she has
not pled a loss of chance theory, and this case is distinguishable from Varkey, the
case that SLWH relies on in arguing otherwise. According to Smith, Dr. Pisula’s
report explains the conduct of Dr. Luu which is being criticized and why Dr. Luu’s
inaction was the cause of Smith’s damage, and the report includes a thorough
breakdown of how Dr. Luu breached the standard of care and details the escalation
of Smith’s symptoms after being seen by Dr. Luu. Smith argues that she has shown
she has a meritorious claim, she complied with Chapter 74’s expert report
5 858 S.W.2d 397, 400 (Tex. 1993). 6 No. 14-20-00186-CV, 2022 Tex. App. LEXIS 5665 (Tex. App.—Houston [14th Dist.] Aug. 9, 2022, no pet.) (mem. op.). 18 requirements, and that this is not the appropriate time for SLWH’s arguments that
are defenses beyond the scope of the initial expert report stage.
Standard of Review
In health care liability cases, we review a trial court’s ruling on a motion to
dismiss based on the adequacy of an expert report for an abuse of discretion. See
Abshire v. Christus Health Se. Tex., 563 S.W.3d 219, 223 (Tex. 2018) (per curiam);
Van Ness v. ETMC First Physicians, 461 S.W.3d 140, 142 (Tex. 2015) (per curiam);
Am. Transitional Care Ctrs. of Tex., Inc. v. Palacios, 46 S.W.3d 873, 877-78 (Tex.
2001). “A trial court abuses its discretion if it acts in an arbitrary or unreasonable
manner without reference to any guiding rules or principles.” Bowie Mem’l Hosp. v.
Wright, 79 S.W.3d 48, 52 (Tex. 2002) (per curiam). A trial court’s ruling does not
constitute an abuse of discretion simply because the appellate court would have ruled
differently under the circumstances. See id. A trial court also abuses its discretion if
it fails to analyze or apply the law correctly. See In re Prudential Ins. Co. of Am.,
148 S.W.3d 124, 135 (Tex. 2004) (citing Walker v. Packer, 827 S.W.2d 833, 840
(Tex. 1992)).
In reviewing a report’s sufficiency under this standard, “we consider only the
information contained within the four corners of the report.” Abshire, 563 S.W.3d at
223 (citing Palacios, 46 S.W.3d at 878). In determining whether the report contains
the requisite information, we view the entirety of the report rather than isolating
19 specific portions or sections. See Baty v. Futrell, 543 S.W.3d 689, 694 (Tex. 2018);
Van Ness, 461 S.W.3d at 144.
Expert Report Under Chapter 74
Chapter 74 of the Civil Practice and Remedies Code, also known as the Texas
Medical Liability Act (“the Act”), requires health care liability claimants to serve an
expert report upon each defendant not later than 120 days after that defendant’s
answer is filed. Tex. Civ. Prac. & Rem. Code Ann. § 74.351(a). The purpose of the
expert report requirement is to weed out frivolous malpractice claims in the early
stages of litigation, not to dispose of potentially meritorious claims. Abshire, 563
S.W.3d at 223 (citing Palacios, 46 S.W.3d at 877); see also Loaisiga v. Cerda, 379
S.W.3d 248, 258 (Tex. 2012) (“[Expert report] requirements are meant to identify
frivolous claims and reduce the expense and time to dispose of any that are filed.”)
In accordance with that purpose, the Act provides a mechanism for dismissal of the
claimant’s suit in the event of an untimely or deficient report. Tex. Civ. Prac. &
Rem. Code Ann. § 74.351(b).
An expert report is sufficient under the Act if it “provides a fair summary of
the expert’s opinions . . . regarding applicable standards of care, the manner in which
the care [that was] rendered . . . failed to meet the standards, and the causal
relationship between that failure and the injury[.]” Tex. Civ. Prac. & Rem. Code
Ann. § 74.351(r)(6); see Jelinek v. Casas, 328 S.W.3d 526, 538-40 (Tex. 2010);
20 Jernigan v. Langley, 195 S.W.3d 91, 93 (Tex. 2006); Palacios, 46 S.W.3d at 875,
879. The trial court need only find that the report constitutes an “objective good faith
effort” to comply with the statutory requirements. Tex. Civ. Prac. & Rem. Code Ann.
§ 74.351(l); see also Abshire, 563 S.W.3d at 223; Palacios, 46 S.W.3d at 878. The
Texas Supreme Court has held that an expert report demonstrates a “good faith
effort” when it “(1) inform[s] the defendant of the specific conduct called into
question and (2) provid[es] a basis for the trial court to conclude the claims have
merit.” Baty, 543 S.W.3d at 693-94. A report “‘need not marshal all the claimant’s
proof,’ but ‘a report that merely states the expert’s conclusions about the standard of
care, breach, and causation’” is insufficient. Abshire, 563 S.W.3d at 223 (quoting
Palacios, 46 S.W.3d at 878-79). In determining the adequacy of an expert report, a
court reviews the pleadings to determine the claims alleged and whether the report
addresses those claims. See Christus Health Se. Tex. v. Broussard, 306 S.W.3d 934,
938 (Tex. App.—Beaumont 2010, no pet.) (citing Windsor v. Maxwell, 121 S.W.3d
42, 51 (Tex. App.—Fort Worth 2003, pet. denied)). The report must “explain, to a
reasonable degree, how and why the breach caused the injury based on the facts
presented.” Jelinek, 328 S.W.3d at 539-40.
Analysis
SLWH’s primary challenge to the second amended report pertains to
causation. SLWH argues that Dr. Pisula’s report is inadequate as to causation
21 because his opinion as to Dr. Luu is speculative and conclusory and contains
analytical gaps, making the report deficient as to Smith’s vicarious liability claims
against SLWH. Specifically, SLWH contends that Pisula completely fails to opine
that it was “more likely than not” that if Smith would have received thrombolytic
therapy she would not have sustained injuries from her stroke or that she would have
had an improved neurological outcome with initiation of thrombolytic therapy by
Dr. Luu, and that speculative phrases such as “los[s] [of] opportunity” and “would
have likely” as used in Pisula’s report are insufficient to meet the requirements of
Chapter 74. SLWH also argues that Dr. Pisula’s report does not link Dr. Luu’s
alleged failure to initiate a code stroke protocol to Smith’s ultimate harm, that the
report concludes Smith was an appropriate candidate for thrombolytic medication
without identifying the criteria that makes a patient a candidate; and that the report
fails to explain thrombolytic therapy and how it would have improved Smith’s
neurological outcome.
The Act requires an expert report to address causation—“how and why” the
alleged negligence caused the injury in question. See Tex. Civ. Prac. & Rem. Code
Ann. § 74.351(r)(6); Abshire, 563 S.W.3d at 224 (quoting Jelinek, 328 S.W.3d at
536). A conclusory statement of causation is inadequate, and the expert must explain
the basis of his statements and link conclusions to specific facts. Abshire, 563
S.W.3d at 224; Jelinek, 328 S.W.3d at 539; see also Columbia Valley Healthcare
22 Sys., L.P. v. Zamarripa, 526 S.W.3d 453, 461 (Tex. 2017) (“[W]ithout factual
explanations, the reports are nothing more than the ipse dixit of the experts, which
. . . are clearly insufficient.”). In satisfying this “how and why” requirement, the
expert need not prove the entire case or account for every known fact, and the report
is sufficient if it makes “‘a good-faith effort to explain, factually, how proximate
cause is going to be proven.’” Abshire, 563 S.W.3d at 224 (quoting Zamarripa, 526
S.W.3d at 460).
Applying the standard outlined above, we cannot say that Dr. Pisula’s
explanation fails to provide a sufficient preliminary link between Dr. Luu’s alleged
breach of the standard of care and Smith’s injuries. See Abshire, 563 S.W.3d at 225.
The report draws a line directly from Dr. Luu’s failure to properly diagnose Smith’s
stroke and her alleged failure to initiate a code stroke protocol (which, among other
things, could result in the administration of thrombolytics to improve neurological
outcome), which Dr. Pisula opines then resulted in Smith no longer being a candidate
for thrombolytic treatment to prevent the progression of her stroke. Id. Dr. Pisula’s
report ties his conclusion to the underlying facts—that Dr. Luu’s failure to properly
diagnose Smith’s stroke and initiate a code stroke protocol proximately caused the
delay in diagnosis of Smith’s stroke, that Smith’s damages could have been
prevented or mitigated had she been timely diagnosed with an acute stroke and a
code stroke protocol initiated promptly, and that she did not receive an accurate
23 diagnosis and neurology consult until two days after symptom onset, when she
presented to another hospital’s emergency department and appropriate symptom
management began by initiating a code stroke protocol. See id. at 225-26. Dr. Pisula
explains “to a reasonable degree, how and why the breach caused the injury based
on the facts presented.” See Jelinek, 328 S.W.3d at 539-40. Because Dr. Pisula
explains the “how and why” Dr. Luu’s breach of the standard of care caused Smith’s
injury, his use of terms “los[s] [of] opportunity” and “would have likely” do not
render the report deficient. See, e.g., Monga v. Perez, No. 14-16-00961-CV, 2018
Tex. App. LEXIS 627, at **35-36 (Tex. App.—Houston [14th Dist.] Jan. 23, 2018,
pet. denied) (mem. op.) (concluding that expert report’s use of terms such as “likely
to occur” or “likely would not have occurred” did not amount to speculation and
conjecture making the report deficient but instead was sufficient because the expert
report did not use only words of mere possibility and explained “how and why” the
defendant’s breach of the standard of care caused the plaintiff’s injuries). The expert
report is not required to describe the causal relationship with “magical words[,]” but
it must do more than express a mere possibility. Bowie, 79 S.W.3d at 53. The trial
court could have reasonably rejected SLWH’s position that Dr. Pisula’s opinion on
causation was speculation or conjecture.
As to SLWH’s argument that SLWH cannot be vicariously liable in this case
because Dr. Luu was not an employee of SLWH at the time of Smith’s care and
24 SLWH did not train, educate, instruct, supervise or control Dr. Luu’s medical
decision making at the time of Smith’s care, Chapter 74 does not require a plaintiff
to provide an expert report that anticipates and rebuts all possible defensive theories
that ultimately may later be presented at trial or by a dispositive motion for summary
judgment. See Monga, 2018 Tex. App. LEXIS 627, at *29 (citing Fortner v. Hosp.
of the Sw., LLP, 399 S.W.3d 373, 383 (Tex. App.—Dallas 2013, no pet.)). At this
stage of the proceeding, we are not supposed to require a claimant to “present
evidence in the report as if it were actually litigating the merits.” See Palacios, 46
S.W.3d at 879. We cannot say that the trial court abused its discretion in reaching
the conclusion that Dr. Pisula’s second amended report constitutes a good faith effort
to comply with the Act’s requirement to provide a fair summary of his opinions with
respect to the causal relationship between Dr. Luu’s alleged breach and Smith’s
injury, and we cannot say that the amended report failed to inform SLWH of the
specific conduct called into question or that it fails to provide a basis for the trial
court to conclude the claims may have merit. See Abshire, 563 S.W.3d at 226 (citing
Tex. Civ. Prac. & Rem. Code Ann. § 74.351(l), (r)(6); Palacios, 46 S.W.3d at 879);
Baty, 543 S.W.3d at 693-94.
We also cannot say the trial court abused its discretion in rejecting SLWH’s
suggestion that Smith’s claim is nothing more than a “loss of chance” claim like the
claim that was rejected in Kramer. See 858 S.W.2d 397, 400 (Tex. 1993); see also
25 Columbia Rio Grande Healthcare, L.P. v. Hawley, 284 S.W.3d 851, 859-62 (Tex.
2009) (addressing Kramer and explaining that the Texas Supreme Court has rejected
the notion that the lost chance of survival or improved health is a distinct,
compensable injury). This Court addressed a similar argument in Deborah Rose
Eezzuduemhoi, PLLC v. Delli, No. 09-22-00053-CV, 2022 Tex. App. LEXIS 8452,
at **18-19 (Tex. App.—Beaumont Nov. 17, 2022, no pet.) (mem. op.), and noted
the following in concluding that the trial court in its discretion could have rejected
the defendant’s suggestion that the plaintiff’s claims were nothing more than “lost
chance” claims like what was rejected in Kramer:
At this stage of the litigation, the plaintiff is not required to marshal all evidence, and “the expert need not prove the entire case or account for every known fact[]” as long as it is a good-faith effort to explain factually how the plaintiff will prove proximate cause. Abshire, 563 S.W.3d at 224 (citing Zamarripa, 526 S.W.3d at 460).
Accordingly, we overrule Appellant’s issue, and we affirm the trial court’s
order.
AFFIRMED.
LEANNE JOHNSON Justice
Submitted on July 31, 2025 Opinion Delivered August 14, 2025
Before Golemon, C.J., Johnson and Wright, JJ.