Fourth Court of Appeals San Antonio, Texas MEMORANDUM OPINION
No. 04-17-00728-CV
METHODIST HEALTHCARE SYSTEM OF SAN ANTONIO, LTD., L.L.P. d/b/a Northeast Methodist Hospital, Sarah I. Back, R.N., and Ismael Tres Sosa, M.D., Appellants
v.
Rita REMINGTON, Individually and as Independent Executor of the Estate of Alvin Charles Hall, Deceased, and Karl Hall, Individually, Appellees
From the 57th Judicial District Court, Bexar County, Texas Trial Court No. 2016-CI-11703 Honorable Karen H. Pozza, Judge Presiding
Opinion by: Marialyn Barnard, Justice
Sitting: Sandee Bryan Marion, Chief Justice Marialyn Barnard, Justice Rebeca C. Martinez, Justice
Delivered and Filed: August 15, 2018
REVERSED AND REMANDED
This is an accelerated appeal in which the trial court denied appellants, Methodist
Healthcare System of San Antonio, Ltd., L.L.P. d/b/a Northeast Methodist Hospital, Sarah I. Back,
R.N., and Ismael Tres Sosa, M.D.’s motions to dismiss health care liability claims filed by
appellees, Rita Remington, Individually and as Independent Executrix of the Estate of Alvin
Charles Hall, Deceased, and Karl Hall, Individually. On appeal, appellants contend the trial court
abused its discretion in denying the motions to dismiss because the expert report submitted by Rita 04-17-00728-CV
and Karl is conclusory and speculative as to the causation element of their health care liability
claims. We reverse the trial court’s orders denying the motions to dismiss and remand the cause
for further proceedings consistent with this opinion.
BACKGROUND
Alvin Charles Hall went to the emergency room at Northeast Methodist Hospital
complaining of nausea and vomiting. After the emergency room staff conducted an initial
examination, Dr. Sosa was contacted to provide medical care and treatment. The record reflects
that throughout the night and early morning hours, Alvin continued to experience distress and
discomfort. A naso-gastric tube was ultimately ordered and inserted into Alvin’s stomach to drain
gastric fluid; however, Alvin did not experience any relief. The next morning, Alvin’s cannister
of accumulated fluid was changed by Nurse Back. Approximately thirty minutes later, Alvin
“coded” and ultimately passed away without ever being examined by Dr. Sosa. It was ultimately
determined Alvin died of cardiac arrest.
After his death, Alvin’s children, Rita and Karl, sued Northeast Medical Hospital, Nurse
Back, and Dr. Sosa for the care Alvin received at the hospital. According to Rita and Karl, Nurse
Back was negligent in her treatment of Alvin because at no point did she perform a comprehensive
nursing assessment, make an accurate nursing diagnosis, develop a plan of care, or implement
nursing care. Rita and Karl further alleged Northeast Medical Hospital was vicariously liable for
Nurse Back’s actions. With respect to Dr. Sosa, Rita and Karl asserted Dr. Sosa was negligent in
failing to timely examine Alvin and provide proper medical care and treatment.
Rita and Karl then served an initial expert report prepared by Lige B. Rushing, Jr., M.D.
on the hospital, Nurse Back, and Dr. Sosa pursuant to section 74.351(a) of the Texas Civil Practice
and Remedies Code (“the Code”). See TEX. CIV. PRAC. & REM. CODE ANN. § 74.351(a) (West
2017). Dr. Rushing’s report included his qualifications as an expert, provided a timeline of Alvin’s
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care at the hospital, and included sections discussing the standards of care, alleged breaches, and
causation elements of the theories of liability alleged in Rita and Karl’s petition. The hospital,
Nurse Back, and Dr. Sosa filed objections to Dr. Rushing’s report and motions to dismiss. See id.
§ 74.351(a), (b). The trial court found Dr. Rushing’s report insufficient as to the element of
causation, but granted Rita and Karl a thirty-day extension to cure the deficiency. See id.
§ 74.351(c). Thereafter, Rita and Karl served the hospital, Nurse Back, and Dr. Sosa with a
supplemental expert report by Dr. Rushing. The hospital, Nurse Back, and Dr. Sosa again filed
objections to the supplemental report and moved to dismiss, asserting the supplemental report was
still deficient with regard to the element of causation. See id. § 74.351(a). The trial court overruled
the objections and denied the motions to dismiss. Appellants subsequently perfected this
interlocutory, accelerated appeal. See id. § 51.014(a)(9) (stating person may appeal interlocutory
order that denies all or part of motion under Section 74.351(b), except appeal may not be taken
from order granting extension).
ANALYSIS
On appeal, appellants argue the trial court erred in denying the motions to dismiss, which
challenged the sufficiency of Dr. Rushing’s expert report. Specifically, appellants contend the
expert report is insufficient because it is conclusory and speculative as to the causation element of
the asserted health care liability claims.
Standard of Review
We review a trial court’s decision to grant or deny a motion to dismiss a health care liability
lawsuit brought under Chapter 74 of the Texas Civil Practice and Remedies Code for an abuse of
discretion. Hill Country San Antonio Mgmt. Servs., Inc. v. Trejo, 424 S.W.3d 203, 208 (Tex.
App.—San Antonio 2014, pet. dism’d) (citing Bowie Mem’l Hosp. v. Wright, 79 S.W.3d 48, 52
(Tex. 2002); Am. Transitional Care Ctrs. of Tex., Inc. v. Palacios, 46 S.W.3d 873, 875 (Tex.
-3- 04-17-00728-CV
2001)); Peterson Regional Med. Ctr. v. O’Connell, 387 S.W.3d 889, 892 (Tex. App.—San Antonio
2012, pet. denied). Under this standard, we may not substitute our judgment for that of the trial
court with regard to factual matters. See Bowie, 79 S.W.3d at 52. “An abuse of discretion occurs
when the trial court acts in an arbitrary or unreasonable manner and without reference to any
guiding rules or principles.” Peterson Regional Med. Ctr., 387 S.W.3d at 892; see also Bowie, 79
S.W.3d at 52. A trial court also abuses its discretion if it fails to analyze or apply the law correctly.
Bowie, 79 S.W.3d at 52; Peterson Regional Med. Ctr., 387 S.W.3d at 892.
Applicable Law
Expert Report Requirements
Section 74.351(a) of the Code requires a plaintiff to serve each physician or health care
provider against whom a health care liability claim is asserted an expert report and curriculum
vitae of each expert within a specified time. TEX. CIV. PRAC. & REM. CODE ANN. § 74.351(a). The
purpose of the report is: (1) to inform the defendant of the specific conduct called into question
and (2) to provide a basis for the trial court to determine if the plaintiff’s claims have merit. Bowie,
79 S.W.3d at 52; Palacios, 46 S.W.3d at 879. The statute defines a valid expert report 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
Free access — add to your briefcase to read the full text and ask questions with AI
Fourth Court of Appeals San Antonio, Texas MEMORANDUM OPINION
No. 04-17-00728-CV
METHODIST HEALTHCARE SYSTEM OF SAN ANTONIO, LTD., L.L.P. d/b/a Northeast Methodist Hospital, Sarah I. Back, R.N., and Ismael Tres Sosa, M.D., Appellants
v.
Rita REMINGTON, Individually and as Independent Executor of the Estate of Alvin Charles Hall, Deceased, and Karl Hall, Individually, Appellees
From the 57th Judicial District Court, Bexar County, Texas Trial Court No. 2016-CI-11703 Honorable Karen H. Pozza, Judge Presiding
Opinion by: Marialyn Barnard, Justice
Sitting: Sandee Bryan Marion, Chief Justice Marialyn Barnard, Justice Rebeca C. Martinez, Justice
Delivered and Filed: August 15, 2018
REVERSED AND REMANDED
This is an accelerated appeal in which the trial court denied appellants, Methodist
Healthcare System of San Antonio, Ltd., L.L.P. d/b/a Northeast Methodist Hospital, Sarah I. Back,
R.N., and Ismael Tres Sosa, M.D.’s motions to dismiss health care liability claims filed by
appellees, Rita Remington, Individually and as Independent Executrix of the Estate of Alvin
Charles Hall, Deceased, and Karl Hall, Individually. On appeal, appellants contend the trial court
abused its discretion in denying the motions to dismiss because the expert report submitted by Rita 04-17-00728-CV
and Karl is conclusory and speculative as to the causation element of their health care liability
claims. We reverse the trial court’s orders denying the motions to dismiss and remand the cause
for further proceedings consistent with this opinion.
BACKGROUND
Alvin Charles Hall went to the emergency room at Northeast Methodist Hospital
complaining of nausea and vomiting. After the emergency room staff conducted an initial
examination, Dr. Sosa was contacted to provide medical care and treatment. The record reflects
that throughout the night and early morning hours, Alvin continued to experience distress and
discomfort. A naso-gastric tube was ultimately ordered and inserted into Alvin’s stomach to drain
gastric fluid; however, Alvin did not experience any relief. The next morning, Alvin’s cannister
of accumulated fluid was changed by Nurse Back. Approximately thirty minutes later, Alvin
“coded” and ultimately passed away without ever being examined by Dr. Sosa. It was ultimately
determined Alvin died of cardiac arrest.
After his death, Alvin’s children, Rita and Karl, sued Northeast Medical Hospital, Nurse
Back, and Dr. Sosa for the care Alvin received at the hospital. According to Rita and Karl, Nurse
Back was negligent in her treatment of Alvin because at no point did she perform a comprehensive
nursing assessment, make an accurate nursing diagnosis, develop a plan of care, or implement
nursing care. Rita and Karl further alleged Northeast Medical Hospital was vicariously liable for
Nurse Back’s actions. With respect to Dr. Sosa, Rita and Karl asserted Dr. Sosa was negligent in
failing to timely examine Alvin and provide proper medical care and treatment.
Rita and Karl then served an initial expert report prepared by Lige B. Rushing, Jr., M.D.
on the hospital, Nurse Back, and Dr. Sosa pursuant to section 74.351(a) of the Texas Civil Practice
and Remedies Code (“the Code”). See TEX. CIV. PRAC. & REM. CODE ANN. § 74.351(a) (West
2017). Dr. Rushing’s report included his qualifications as an expert, provided a timeline of Alvin’s
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care at the hospital, and included sections discussing the standards of care, alleged breaches, and
causation elements of the theories of liability alleged in Rita and Karl’s petition. The hospital,
Nurse Back, and Dr. Sosa filed objections to Dr. Rushing’s report and motions to dismiss. See id.
§ 74.351(a), (b). The trial court found Dr. Rushing’s report insufficient as to the element of
causation, but granted Rita and Karl a thirty-day extension to cure the deficiency. See id.
§ 74.351(c). Thereafter, Rita and Karl served the hospital, Nurse Back, and Dr. Sosa with a
supplemental expert report by Dr. Rushing. The hospital, Nurse Back, and Dr. Sosa again filed
objections to the supplemental report and moved to dismiss, asserting the supplemental report was
still deficient with regard to the element of causation. See id. § 74.351(a). The trial court overruled
the objections and denied the motions to dismiss. Appellants subsequently perfected this
interlocutory, accelerated appeal. See id. § 51.014(a)(9) (stating person may appeal interlocutory
order that denies all or part of motion under Section 74.351(b), except appeal may not be taken
from order granting extension).
ANALYSIS
On appeal, appellants argue the trial court erred in denying the motions to dismiss, which
challenged the sufficiency of Dr. Rushing’s expert report. Specifically, appellants contend the
expert report is insufficient because it is conclusory and speculative as to the causation element of
the asserted health care liability claims.
Standard of Review
We review a trial court’s decision to grant or deny a motion to dismiss a health care liability
lawsuit brought under Chapter 74 of the Texas Civil Practice and Remedies Code for an abuse of
discretion. Hill Country San Antonio Mgmt. Servs., Inc. v. Trejo, 424 S.W.3d 203, 208 (Tex.
App.—San Antonio 2014, pet. dism’d) (citing Bowie Mem’l Hosp. v. Wright, 79 S.W.3d 48, 52
(Tex. 2002); Am. Transitional Care Ctrs. of Tex., Inc. v. Palacios, 46 S.W.3d 873, 875 (Tex.
-3- 04-17-00728-CV
2001)); Peterson Regional Med. Ctr. v. O’Connell, 387 S.W.3d 889, 892 (Tex. App.—San Antonio
2012, pet. denied). Under this standard, we may not substitute our judgment for that of the trial
court with regard to factual matters. See Bowie, 79 S.W.3d at 52. “An abuse of discretion occurs
when the trial court acts in an arbitrary or unreasonable manner and without reference to any
guiding rules or principles.” Peterson Regional Med. Ctr., 387 S.W.3d at 892; see also Bowie, 79
S.W.3d at 52. A trial court also abuses its discretion if it fails to analyze or apply the law correctly.
Bowie, 79 S.W.3d at 52; Peterson Regional Med. Ctr., 387 S.W.3d at 892.
Applicable Law
Expert Report Requirements
Section 74.351(a) of the Code requires a plaintiff to serve each physician or health care
provider against whom a health care liability claim is asserted an expert report and curriculum
vitae of each expert within a specified time. TEX. CIV. PRAC. & REM. CODE ANN. § 74.351(a). The
purpose of the report is: (1) to inform the defendant of the specific conduct called into question
and (2) to provide a basis for the trial court to determine if the plaintiff’s claims have merit. Bowie,
79 S.W.3d at 52; Palacios, 46 S.W.3d at 879. The statute defines a valid expert report as “a written
report by an expert that provides a fair summary of the expert’s opinions as of the date of the report
regarding applicable standards of care, the manner in which the care rendered by the physician or
health care provider failed to meet the standards, and the causal relationship between that failure
and the injury, harm, or damages claimed.” TEX. CIV. PRAC. & REM. CODE ANN. § 74.351(r)(6);
see Bowie, 79 S.W.3d at 52; Palacios, 46 S.W.3d at 879.
If the report does not constitute a good faith effort to comply with the statutory
requirements, then the trial court must grant the motion challenging the report and dismiss the
claim with prejudice. TEX. CIV. PRAC. & REM. CODE ANN. § 74.351(1); Jernigan v. Langley, 195
S.W.3d 91, 93 (Tex. 2006); Bowie, 79 S.W.3d at 52; Palacios, 46 S.W.3d at 879. To determine
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whether a report constitutes a good faith effort, courts consider only the information within the
four corners of the report and is prohibited from filling gaps by making inferences or guessing
what the expert likely meant. Rodriguez v. Walgreen Co., No. 03-14-00765-CV, 2016 WL
368772, at *2 (Tex. App.—Austin Jan. 27, 2016, no pet.) (mem. op.). The report need not
encompass all of the plaintiff’s proof, but it must include an opinion on each of the three elements
identified by the statute: standard of care, breach and causal relationship. Bowie, 79 S.W.3d at 52;
Jones v. King, 255 S.W.3d 156, 159 (Tex. App.—San Antonio 2008, pet. denied). The report
cannot merely state the expert’s conclusions about these elements, but must contain explanations
of the basis of the expert’s statements and link the expert’s conclusions to the facts. Jelinek v.
Casas, 328 S.W.3d 526, 539–40 (Tex. 2010) (citing Bowie, 79 S.W.3d at 52; Palacios, 46 S.W.3d
at 878).
Causation Requirement
The only element of Dr. Rushing’s expert report that appellants challenge on appeal is the
element of causation. According to appellants, Dr. Rushing’s opinion as to the causation element
of their claims is conclusory and speculative because none of Dr. Rushing’s statements explain
how or why Dr. Sosa or Nurse Back’s alleged breaches of the respective standards of care caused
Alvin’s death.
Recently, the Texas Supreme Court addressed the issue of causation in section 74.351(a)
expert reports, stating: “Unquestionably, a plaintiff asserting a health care liability claim based on
negligence, who cannot prove that her injury was proximately caused by the defendant’s failure to
meet applicable standards of care, does not have a meritorious claim.” Columbia Valley
Healthcare Sys., L.P. v. Zamarripa, 526 S.W.3d 453, 460 (Tex. 2017). As such, a plaintiff
asserting a health care liability claim must submit an expert report that sufficiently “explain[s],
based on facts set out in the report, how and why the breach caused the injury.” Van Ness v. ETMC
-5- 04-17-00728-CV
First Physicians, 461 S.W.3d 140, 142 (Tex. 2015); see Zamarripa, 526 S.W.3d at 460; Jelinek,
328 S.W.3d at 539. The report does not have to prove proximate cause, but the expert cannot
simply opine that the breach caused the injury. Zamarripa, 526 S.W.3d at 460; Van Ness, 461
S.W.3d at 142; Jelinek, 328 S.W.3d at 539. “Instead, the expert must go further and explain, to a
reasonable degree, how and why the breach caused the injury” by linking the defendant’s alleged
failures to the plaintiff’s injury. Jelinek, 328 S.W.3d at 539–40; see Costello v. Christus Santa
Rosa Health Care Corp., 141 S.W.3d 245, 249 (Tex. App.—San Antonio 2004, no pet.) (noting
expert report must explain causal connection between claimed omissions and injury). And
although there are no “magic words” to establish causation, “the expert report must make a good-
faith effort to explain, factually, how proximate cause is going to be proven.” Zamarripa, 526
S.W.3d at 460.
Application
Turning to Dr. Rushing’s supplemental report, the report begins by describing Alvin’s
condition when he arrived at the emergency room, stating that Alvin was vomiting. Dr. Rushing
highlights that Alvin “was morbidly obese [with] a history of hypertension, dyslipidemia, diabetes,
coronary artery disease with the placement of two stents and peripheral vascular disease.” Dr.
Rushing further opines that due to Alvin’s “morbidities,” Alvin should have been admitted to an
intensive care unit where he would have been placed on a cardiac monitor. According to Dr.
Rushing, Alvin “died from a cardiac rhythm disturbance,” such as ventricular fibrillation,
ventricular tachycardia, or cardiac arrest.
When describing Dr. Sosa’s conduct and how it allegedly caused Alvin’s death, Dr.
Rushing’s report speaks only in terms of possibilities, failing to explain how and why Dr. Sosa’s
alleged breach of the applicable standards of care caused Alvin’s death. According to Dr. Rushing,
Dr. Sosa breached the applicable standards of care by: (1) failing to personally examine and assess
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Alvin; (2) failing to ensure the correct placement and function of Alvin’s naso gastric tube; (3)
failing to confirm or eliminate abdominal distension or other abdominal abnormality; (4) failing
to monitor electrolytes in a timely manner; and (5) failing to admit Alvin to the intensive care unit.
When explaining these breaches, Dr. Rushing describes what he believed Dr. Sosa should have
done, concluding Alvin’s chances of survival would have been greater. For example, when
opining Alvin should have been admitted to the intensive care unit due to his “morbidities,” Dr.
Rushing speaks only in terms of possibilities, stating Alvin’s “chances of surviving a cardiac arrest
would have been greatly improved.” Opinions based on possibilities are insufficient. See, e.g.,
Bowie, 79 S.W.3d at 53 (holding expert’s opinion that plaintiffs “would have had the possibility
of a better outcome” did not meet standard); Hutchinson v. Montemayor, 144 S.W.3d 614, 617
(Tex. App.—San Antonio 2004, no pet.) (holding expert opinion that if arteriogram had been done,
there was “possibility” of correctable lesion such that amputation may have been avoided did not
meet standard).
Dr. Rushing completely fails to link Dr. Sosa’s alleged failures to Alvin’s death. See
Jelinek, 328 S.W.3d at 539–40; Costello, 141 S.W.3d at 249. Rather, we are left to fill in gaps by
drawing inferences as to what Dr. Rushing might have meant. See Bowie, 79 S.W.3d at 53. For
instance, Dr. Rushing opines Alvin’s vomiting should have been documented; however, nowhere
in the report does Dr. Rushing explain how such documentation would have resulted in Dr. Sosa
taking different actions, thereby preventing Alvin’s death. See id. (highlighting causation opinion
that contains gaps in chain of causation fails to meet statute’s requirements); Tenet Hospitals, Ltd.
v. Love, 347 S.W.3d 743, 755 (Tex. App.—El Paso 2011, no pet.) (holding expert statement that
hospital’s failure to provide on-call pulmonologist caused death without explanation of how that
might have altered course of treatment rendered causation opinion insufficient); Estorque v.
Schafer, 302 S.W.3d 19, 28 (Tex. App.—Fort Worth 2009, no pet.) (holding expert’s failure to
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explain how consult with urologist would have changed outcome rendered causation opinion
insufficient); Costello, 141 S.W.3d at 249 (holding expert’s claim that better monitoring of cardiac
patient would have prevented heart attack failed to explain how result would be different and was
therefore insufficient). Later in the report, Dr. Rushing states Alvin’s persistent vomiting
suggested Alvin had an intestinal obstruction; but again, Dr. Rushing does not explain how or why
Alvin’s intestinal obstruction was linked to his cardiac rhythm disturbance — the ultimate reason
Dr. Rushing believed Alvin died — or what additional actions Dr. Sosa could have taken to prevent
the cardiac rhythmic disturbance. See Jelinek, 328 S.W.3d at 539–40; Bowie, 79 S.W.3d at 53.
At another point in the report, Dr. Rushing states Alvin’s low magnesium levels left him
predisposed to ventricular arrhythmias, such as ventricular tachycardia or cardiac arrest. Dr.
Rushing opines that if Dr. Sosa would have ordered an immediate intravenous replacement of
magnesium, “it would have reduced [Alvin’s] risk for cardiac arrhythmia,” again, speaking in
terms of chances and leaving us to infer that Alvin’s risk for cardiac arrhythmia was linked to the
cardiac rhythm disturbance that caused his death. See Jelinek, 328 S.W.3d at 539–40; Bowie, 79
S.W.3d at 53. Finally, Dr. Rushing opines that Dr. Sosa should have examined Alvin for
abdominal distention, which he explains is one cause of cardiac arrest. According to Dr. Rushing,
if such an examination would have occurred, Dr. Sosa would have been able to reposition the naso
gastric tube, assuming it was not properly placed, and prevented abdominal distention, leaving us
to infer that the repositioning of the naso gastric tube would have prevented Alvin’s death. See
Bowie, 79 S.W.3d at 53.
Accordingly, we conclude Dr. Rushing’s report fails to clearly link how Dr. Sosa’s
omissions were a substantial factor in bringing about Alvin’s death. See Zamarripa, 526 S.W.3d
at 460; Jelinek, 328 S.W.3d at 539–40; Costello 141 S.W.3d at 249. Rather, the report speaks in
terms of chances and possibilities, leaving us to infer that absent Dr. Sosa’s omissions, Alvin’s
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death would not have occurred. See Zamarripa, 526 S.W.3d at 460; Bowie, 79 S.W.3d at 53.
Because the report requires inferences or guesses as to what Dr. Rushing likely meant, we hold the
report is insufficient as to the issue of causation with respect to Dr. Sosa. See Rodriguez, 2016
WL 368772, at *2.
With respect to Nurse Back, we hold Dr. Rushing’s report is likewise conclusory and
speculative because it fails to explain how Nurse Back’s alleged negligence caused Alvin’s death
or what Nurse Back could have done to prevent Alvin’s death. In his report, Dr. Rushing explains
Nurse Back failed to properly assess Alvin’s status, recognize Alvin’s cardiac arrest in a timely
manner, call a code blue in a timely manner, and keep an appropriate clinical record. Dr. Rushing
states that when Nurse Back began her assessment of Alvin, she reported he was “snoring audibly
and had deep regular respirations,” but by the time she listened to his heart, she could not hear his
heart beating and therefore called a code blue. According to the expert report, “there was a 30
minute time interval from the beginning of her assessment until the code blue was called.”
According to Dr. Rushing, “it should have been obvious when [Alvin] stopped breathing.” Dr.
Rushing continues, stating “there was an inordinate delay time wise between [Alvin’s]
cardiorespiratory arrest and the initiation of CPR.” At no point does Dr. Rushing link these facts
and explain how Nurse Back’s omissions caused Alvin’s death. Rather, Dr. Rushing’s report falls
short, speculating that if Nurse Back had called a code blue more timely, Alvin would have a better
chance of surviving. We are then left to infer that Nurse Back should have recognized when Alvin
stopped breathing and initiated CPR, and that by initiating CPR in a more timely manner, Alvin
would not have died. See Craig v. Dearbonne, 259 S.W.3d 308, 313 (Tex. App.—Beaumont 2008,
no pet.) (holding expert report deficient because it failed to explain how different treatment would
have been effective if it had been started earlier); Jones v. King, 255 S.W.3d 156, 158, 159 (Tex.
App.—San Antonio, 2008, pet. denied) (holding expert’s opinion as to causation was conclusory
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because it failed to explain whether earlier treatment would have been effective). Accordingly,
because we conclude Dr. Rushing’s opinion as to causation is conclusory with respect to Nurse
Back, we hold the expert report is insufficient.
With regard to the hospital, Rita and Karl asserted it was liable based on respondeat
superior, i.e., the hospital was vicariously liable for the allegedly negligent actions of Dr. Sosa and
Nurse Back. They did not allege any direct negligence claims against the hospital, and Dr.
Rushing’s report does not include separate opinions with regard to any direct negligence by the
hospital. When a party’s alleged health care liability is purely vicarious, a report that inadequately
implicates the actions of that party’s agent or employees is likewise insufficient as to the party
alleged to be vicariously liable. See Gardner v. U.S. Imaging, Inc., 274 S.W.3d 669, 671–72 (Tex.
2008). Thus, because Dr. Rushing’s report is inadequate as to causation with regard to Dr. Sosa
and Nurse Back, it is likewise insufficient with regard to the claims of respondeat superior asserted
against Northeast Medical Hospital. See id.
CONCLUSION
Having determined Dr. Rushing’s report fails to sufficiently explain the causation element
with regard to any of Rita and Karl’s health care liability claims, we reverse the trial court’s orders
denying appellants’ motions to dismiss, and we remand the cause to the trial court for the
determination of attorney’s fees under section 74.251(b)(1) of the Code, and for entry of a final
order dismissing Rita and Karl’s claims against appellants. 1
Marialyn Barnard, Justice
1 The plain language of section 74.351 permits one thirty-day extension to cure a specified deficiency in an expert report. See TEX. CIV. PRAC. & REM. CODE ANN. § 74.351(c); see also Leland v. Brandal, 257 S.W.3d 204, 207 (Tex. 2008). Because Rita and Karl were previously granted a thirty-day extension to cure deficiencies in Dr. Rushing’s report, we have no authority to grant them another extension. See TEX. CIV. PRAC. & REM. CODE ANN. § 74.351(c); see also Leland, 257 S.W.3d at 207.
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