Opinion issued April 24, 2025
In The
Court of Appeals For The
First District of Texas ———————————— NO. 01-24-00674-CV ——————————— METHODIST HOSPITAL D/B/A HOUSTON METHODIST HOSPITAL, HEMANGSHU PODDER, MD, AND OKECHUKWU OKIDI, MD; LIFEGIFT ORGAN DONATION CENTER; K2 HOLISTIC HEALTH CARE SERVICES, INC AND JANE OGLE, RN (INCORRECTLY NAMED NURSE JANE); TEXAS CHILDREN’S HOSPITAL; BAYLOR COLLEGE OF MEDICINE, Appellants V. TAMMY GARNER, INDIVIDUALLY AND AS THE SURVIVING MOTHER OF DECEDENT J.G., A MINOR, Appellee
On Appeal from the 190th District Court Harris County, Texas Trial Court Case No. 2023-81037 MEMORANDUM OPINION
In this interlocutory appeal, appellants Methodist Hospital d/b/a Houston
Methodist Hospital, Hemangshu Podder, M.D., and Okechukwu Okidi, M.D.
challenge the trial court’s denial of their motions to dismiss the health care liability
claims brought against them by appellee, Tammy Garner, individually, and as the
surviving mother of decedent, J.G., in her suit for negligence, wrongful death, and
survival. In a single issue, they assert that Garner’s expert report—required by
statute to survive a motion to dismiss—is so deficient with regard to Houston
Methodist Hospital, Dr. Okidi, and Dr. Podder that it was equivalent to no report at
all. See, e.g., TEX. CIV. PRAC. & REM. CODE § 74.351(b). As such, appellants
argue, the trial court should have dismissed the claims against them rather than
granting a 30-day extension to cure the deficiencies in the report. See TEX. CIV.
PRAC. & REM. CODE § 74.351(b)–(c). If the trial court correctly granted the
extension to correct the deficiencies, this Court lacks jurisdiction. See TEX. CIV.
PRAC. & REM. CODE § 51.014(a)(9). If, instead, the deficient report is essentially
no report, and the trial court should have dismissed the claims per § 74.351(b)
instead of granting an extension, this Court has jurisdiction over the appeal. See id.
Because we agree with appellants that the extension was improperly granted with
regard to Dr. Okidi, we reverse the trial court’s order, render take-nothing
judgment in favor of Dr. Okidi, remand to the trial court for entry of an order that
2 both awards Dr. Okidi reasonable attorney’s fees and costs of court incurred by
him and dismisses Garner’s claims against him with prejudice. We conclude that
we lack jurisdiction over the appeal filed by Methodist Hospital and Dr. Podder,
and we dismiss their appeal from the trial court’s order for want of jurisdiction.
Background
Due to a complication at birth, J.G. required a tracheostomy to live. When he
was nine years old, a home health care provider unsuccessfully attempted to
change his tracheostomy tube, and J.G. tragically suffered an anoxic brain injury.
J.G. was taken by ambulance to Texas Children’s Hospital in The Woodlands,
where, a few days later, physicians informed his mother that he was “brain dead.”
After meeting with representatives of LifeGift Organ Donation Center
(“LifeGift”), Garner consented to the donation of J.G.’s organs. During the organ
procurement surgery, the surgical drape caught fire, burning J.G.’s head, face, ear,
shoulder, and chest. Garner later sued Texas Children’s Hospital, LifeGift, K2
Holistic Healthcare Services, Inc., Jane Ogle, Methodist Hospital, Dr. Hemangshu
Podder, Dr. Okechukwu Okidi, and Baylor College of Medicine, alleging claims
for negligence arising from the anoxic brain injury and the organ procurement
surgery. Garner alleged that Methodist Hospital was vicariously liable for the
actions of Dr. Podder and Dr. Okidi, who were Methodist Hospital employees, and
3 directly liable for: medical malpractice; negligent handling of a corpse; negligent
credentialing, hiring, training, monitoring, supervision, and retention.
Methodist Hospital, Dr. Podder, and Dr. Okidi timely objected to Garner’s
expert report on the grounds that it failed to implicate each of them, was not a fair
summary of the expert’s opinion on the applicable standard of care, and neither
fairly summarized how the care they each provided fell short of the standard of
care nor connected how the alleged failure caused the injury or damages claimed.
Methodist Hospital, Dr. Podder, and Dr. Okidi also objected that the expert, Dr.
Juliet Emamaullee, was not qualified to address the standard of care and causation
in this case. The defendants filed motions to dismiss under Chapter 74 of the Texas
Medical Liability Act (“TMLA”). See TEX. CIV. PRAC. & REM. CODE § 74.351.
The expert report, entitled “Summary of Organ Procurement Events,” has
only three paragraphs. The first paragraph of this report talks generally about the
“Joint Commission[’s]” considerations about surgical fires and how to prevent
them.
According to The Joint Commission, surgical fires represent a sentinel event in the operating room. They have identified several contributing factors, including 1) a lack of communication among surgical team members before and during the procedure, 2) insufficient ‘time out’ to assess fire risk, and equipment malfunction, among others (Sentinel Event Alert, Issue 68, 10/18/2023). They indicate that surgical fires can be prevented by creating awareness and carefully monitoring elements of the ‘fire triangle’ which include oxygen, ignition sources (i.e. electricity from a cautery device), and fuel (i.e. paper drapes). Factors contributing to surgical fires includes use of alcohol-based 4 skin preparation materials, failure to allow alcohol-based skin preparations to dry completely, use of oxygen greater than 21% (especially during head and neck procedures), and failure to use proper precautions when using electrosurgical devices like the cautery. The Joint Commission recommends that a Fire Risk Assessment be performed by the operating room team during the ‘time out’ to address risks that are present. Next, they recommend that the anesthetist maintain local oxygen concentration, 30% where possible, along with stopping or reducing the use of supplemental oxygen to the minimum required for at least one minute before the use of electrocautery devices for head, neck, and upper chest procedures.
The second paragraph summarizes the medical records leading up to and
including the organ procurement surgery.
....
When the patient was taken to the operating room, the tracheostomy in place was the 3.5 uncuffed tube per the anesthesia record. (Garner TCH record 000001, page 1662). The records indicate that the procurement surgeon, Dr. Podder, requested that the gauze around the tracheostomy tube be removed prior to skin preparation. The operating room record for the procedure indicates that the skin was cleansed using povidine solution, which is usually not alcohol[-]based (Garner TCH 000001, page 1652). The incision was made at 9:01 am on 12/4/21. According to the anesthesia record, oxygen was being administered via the tracheostomy tube at 2.3 L/min (89% FiO2) at the start of the procedure (Garner TCH 000001, page 1671). Shortly after starting the procedure, the drapes ignited, resulting in an operating room fire. Dr. Williamson, an ENT, was called for an intraoperative consult. . . . [S]he was able to replace the 3.5 uncuffed tracheostomy tube with a 3.5 cuffed pediatric Shiley tracheostomy tube. . . . The operative note for the organ procurement does not document the events surrounding the surgical fire (LifeGift record page 162). In the free text section for the question ‘were there any significant thoracic/abdominal cavity intraoperative findings/abnormalities? Yes or No? If yes please describe’ Dr. Podder wrote ‘sever adhesions, extensive lysis of adhesions done.’ There is no mention of the surgical fire or burn injuries to the decedent. When
5 reviewing the images of the burn injuries that occurred prior to organ procurement, it is evidence that the surgeon began the sternotomy incision at the sternal notch, adjacent to the tracheostomy tube. (LifeGift records, page 251).
The third paragraph notes the absence of evidence of specific preventative
measures and the expert’s opinions about what, if anything could have been done
to reduce the risk of a surgical fire:
There are several factors in this case that are consistent with established risks for surgical fires as reported by The Joint Commission. This patient had an uncuffed tracheostomy tube, which can lead to air leaking around the tube while on positive pressure ventilation. At the start of the procedure, the patient was being maintained on high levels of oxygen (89%), and the procurement surgeon started the sternotomy within close proximity to this tracheostomy tube. This resulted in a surgical fire where the drapes ignited, leading to partial thickness burns on the chest, neck, shoulder, and face of the decedent. There is no documentation that there was a discussion of preventative measures for surgical fires, including tracheostomy exchange to a cuffed tube, which would reduce the risk of air leak, prior to the organ procurement operation. This was not performed until after the surgical fire, and afterwards, the surgery proceeded without incident. Thus, it is reasonable to believe that this could have been performed prior to the procurement surgery. There is no documentation that a discussion was had during the ‘time out’ to discuss the uncuffed tracheostomy and high oxygen levels being administered, nor is there documentation that ventilation was held around the time of the incision to reduce the risk of fire per The Joint Commission recommendations outlined above. It is my opinion that these circumstances increased the risk of surgical fire in this case.
The trial court considered the objections, responses, and motions to dismiss,
and ruled that “Plaintiff is entitled to a (30) day leave to cure their expert report.”
This appeal followed.
6 Dismissals
Three appellants sought voluntary dismissal of their appeals: LifeGift, Texas
Children’s Hospital, and Baylor College of Medicine. We grant those uncontested
motions and dismiss their appeals. See TEX. R. APP. P. 42.1(a)(1).
K2 Holistic Health Care Services, Inc. and Jane Ogle, RN (incorrectly
named Nurse Jane) failed to timely file an appellate brief. See TEX. R. APP. P.
38.6(a) (governing time to file brief). On November 5, 2024, the Clerk of this
Court notified K2 Holistic Health Care Services, Inc. and Jane Ogle, RN that the
time for filing a brief had expired and the Court would dismiss the appeal unless
the parties filed a brief, or a motion to extend time to file a brief, within ten days of
the notice. See TEX. R. APP. P. 38.8(a) (governing failure of appellant to file brief),
42.3(b) (allowing involuntary dismissal of appeal for want of prosecution), 42.3(c)
(allowing involuntary dismissal of case for failure to comply with notice from
Clerk of Court). Despite the notice, appellant did not respond. Accordingly, we
dismiss the appeal filed by K2 Holistic Health Care Services, Inc. and Jane Ogle,
RN for want of prosecution. See TEX. R. APP. P. 42.3(b), (c); 43.2(f).
Analysis
On appeal, Methodist Hospital, Dr. Podder, and Dr. Okidi argue that Dr.
Emamaullee’s expert report amount to “no report,” and, therefore, the trial court
erred by granting a 30-day extension of time to cure the deficiencies in the report.
7 Because Appellee purportedly filed no report “at all,” Appellants argue the trial
court’s only option was to dismiss her claims. Appellants seek reversal of the order
and remand for determination of attorney’s fees and entry of judgment of dismissal
of Garner’s claims. We reverse in part.
I. TMLA Requires an Expert Report.
Under the Texas Medical Liability Act (“TMLA”), a plaintiff asserting a
health care liability claim must timely serve each defendant physician and health
care provider with at least one expert report, with a CV for the expert whose
opinion is offered, to substantiate the merits of the plaintiff’s claim. TEX. CIV.
PRAC. & REM. CODE § 74.351(a), (i); see also US Anesthesia Partners v. Robinson,
No. 01-21-00572-CV, 2022 WL 4099835, at *7–8 (Tex. App.—Houston [1st Dist.]
Sept. 8, 2022, pet. denied) (mem. op.). The purpose of the expert report
requirement is to weed out unmeritorious claims, not to dispose of potentially
meritorious claims. See E.D. by & through B.O. v. Tex. Health Care, P.L.L.C., 644
S.W.3d 660, 664 (Tex. 2022); Abshire v. Christus Health Se. Tex., 563 S.W.3d
219, 223 (Tex. 2018); Scoresby v. Santillan, 346 S.W.3d 546, 554 (Tex. 2011).
An expert report must provide a “fair summary” of the expert’s opinions on
(1) the applicable standard of care, (2) the manner in which the care rendered by
the defendant physician or health care provider failed to meet the standard of care,
and (3) the causal relationship between that failure and the injury, harm, or
8 damages claimed. TEX. CIV. PRAC. & REM. CODE § 74.351(r)(6); see also Certified
EMS, Inc. v. Potts, 392 S.W.3d 625, 630 (Tex. 2013). A “fair summary” of the
expert’s opinions means that, at the least, the report must state more than the
expert’s mere conclusions on the standard of care, breach, and causation; it must
instead explain the basis of the expert’s opinion so as to link the conclusions to the
facts of the case. See Jelinek, 328 S.W.3d at 539; Wright, 79 S.W.3d at 52.
II. Early Dismissal Under the TMLA
A defendant may seek dismissal of the plaintiff’s claims when no report is
served within 120 days after the defendant’s original answer is filed or when the
elements of the served report are deficient. See TEX. CIV. PRAC. & REM. CODE
§ 74.351(b), (c). When a plaintiff fails to timely serve an expert report, on the
defendant’s motion, the trial court must dismiss the health care liability claim with
prejudice and award attorney’s fees. TEX. CIV. PRAC. & REM. CODE § 74.351(b);
Baty v. Futrell, 543 S.W.3d 689, 692 (Tex. 2018).
When a defendant challenges a plaintiff’s expert report as deficient, the
TMLA provides the trial court with two options: grant an extension of time to
allow the plaintiff to cure the deficiencies in the report or grant the motion to
dismiss. See TEX. CIV. PRAC. & REM. CODE § 74.351(c) (“If an expert report has
not been served within the period specified by Subsection (a) because elements of
the report are found deficient, the court may grant one 30-day extension to the
9 claimant in order to cure the deficiency.”); id. § 74.351(l) (“A court shall 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).”).
It bears repeating that “[t]he purpose of the expert report requirement is to
deter frivolous claims, not to dispose of claims regardless of their merits.”
Scoresby, 346 S.W.3d at 554. “The Legislature has determined that failing to
timely file an expert report, or filing a report that does not evidence a good-faith
effort to comply with the definition of an expert report, means that the claim is
either frivolous, or at best has been brought prematurely.” Am. Transitional Care
Ctrs. of Tex., Inc. v. Palacios, 46 S.W.3d 873, 878 (Tex. 2001). But “when an
expert report can be cured in thirty days, the claim is not frivolous.” Scoresby, 346
S.W.3d at 554. And the Texas Supreme Court has noted that “there are
constitutional limitations upon the power of courts . . . to dismiss an action without
affording a party the opportunity for a hearing on the merits of his cause, and those
limitations constrain the Legislature no less in requiring dismissal.” Id. at 554 & n.
45 (quoting TransAmerican Natural Gas Corp. v. Powell, 811 S.W.2d 913, 918
(Tex. 1991) (citations omitted)). Thus, the Texas Supreme Court has held that
“trial courts should be lenient in granting thirty-day extensions and must do so if
deficiencies in an expert report can be cured within the thirty-day period.” Id.; see
10 Ogletree v. Matthews, 262 S.W.3d 316, 320–21 (Tex. 2007) (holding that trial
court has discretion to grant 30-day extension when report is deemed not served
because it is deficient). “[A] thirty-day extension to cure deficiencies in an expert
report may be granted if the report is served by the statutory deadline, if it contains
the opinion of an individual with expertise that the claim has merit, and if the
defendant’s conduct is implicated.” Scoresby, 346 S.W.3d at 557 (describing this
as “minimal standard”). “All deficiencies, whether in the expert’s opinions or
qualifications, are subject to being cured before an appeal may be taken from the
trial court’s refusal to dismiss the case.” Id.
III. Interlocutory Appellate Jurisdiction
“Appellate courts have jurisdiction to consider immediate appeals of
interlocutory orders only if a statute explicitly provides such jurisdiction.” Tex. A
& M Univ. Sys. v. Koseoglu, 233 S.W.3d 835, 840 (Tex. 2007). Interlocutory
orders denying a motion to dismiss under section 74.351 are immediately
appealable and are reviewed for an abuse of discretion. TEX. CIV. PRAC. & REM.
CODE § 51.014(a)(9); Abshire, 563 S.W.3d at 226. However, under section
51.014(a)(9), a movant may not appeal an order that grants a 30-day extension.
TEX. CIV. PRAC. & REM. CODE § 51.014(a)(9); see Ogletree, 262 S.W.3d at 321
(“[T]he statute plainly prohibits interlocutory appeals of orders granting extensions
. . . .”).
11 In Ogletree, the Supreme Court held that when a trial court denies a motion
to dismiss under the TMLA but grants a 30-day extension because a timely served
expert report is deficient but curable, the order is not subject to appellate review.
262 S.W.3d at 320–21. In certain situations, however, the served report can be so
deficient that it essentially constitutes no report at all. See Loaisiga v. Cerda, 379
S.W.3d 248, 260 (Tex. 2012) (“[I]f a report does not meet the standard set in
Scoresby, it is not an expert report under the statute, and the trial court must
dismiss the plaintiff’s claims if the defendant has properly moved for dismissal.”);
see also Scoresby, 346 S.W.3d at 557 (holding that, at minimum, expert report
must contain opinion of individual with expertise that claim has merit and must
implicate defendant’s conduct). In such a case, a movant may immediately appeal
the denial of his motion to dismiss, “whether or not the trial court grants an
extension of time.” Badiga v. Lopez, 274 S.W.3d 681, 685 (Tex. 2009).
In the present appeal, the trial court granted Garner an extension of time to
cure the served expert report, thus implicitly denying Appellants’ motion to
dismiss challenging the adequacy of the expert report and asserting it was no report
at all as to Methodist Hospital, Dr. Okidi, and Dr. Podder. See Methodist Hosps. of
Dallas v. Nieto, No. 05-18-01073-CV, 2019 WL 6044550, at *7 (Tex. App.—
Dallas Nov. 15, 2019, pet. denied) (mem. op.) (trial court’s grant of extension to
file report was implicit denial of section 74.351 motion to dismiss); PM Mgmt.-
12 Windcrest NC, LLC v. Sanchez, 256 S.W.3d 396, 397 (Tex. App.—San Antonio
2008, no pet.) (same).1
If we conclude that the timely served report failed to comply with the TMLA
“because elements of the report [were] found deficient,” then the trial court had
discretion to grant a 30-day extension in order cure the deficiency. See TEX CIV.
PRAC. & REM. CODE § 74.351(c). In that situation, we would dismiss this appeal
for want of jurisdiction because section 51.014(a)(9) expressly prohibits an
interlocutory appeal from an order granting an extension of time to cure a deficient
expert report. On the other hand, if we find that the report failed to meet the
minimal Scoresby standard, then we would conclude that the report was so
deficient that it was no report at all mandating dismissal of Garner’s claims. In that
situation, we would hold that we have interlocutory jurisdiction under section
51.014(a)(9), and we would reverse the trial court’s order, and remand with
instructions to dismiss the claims and determine an appropriate award of costs and
attorney’s fees. See Badiga, 274 S.W.3d at 684 (“The exception to section
51.014(a)(9) prohibiting appeal from an order granting an extension under section
74.351 does not apply when no expert report has been served.”).
1 But see Meridian Ltc, Ltd. v. Byers, No. 07-13-00343-CV, 2015 WL 525001, at *2 n.4 (Tex. App.—Amarillo Feb. 9, 2015, no pet.) (mem. op.) (declining to find that extension of time to file expert report was implicit denial of motion to dismiss). 13 IV. No Report Implicated Dr. Okidi
Dr. Okidi asserts that the report, which does not mention him, does not
satisfy the minimal Scoresby standard, meaning it is no report at all as to him. We
agree. The report does not identify Dr. Okidi at all. Garner argues that it need not
identify Dr. Okidi by name. She asserts that a report does not fail to implicate a
defendant’s conduct solely because the defendant is not identified by name. See
Ogletree, 262 S.W.3d at 317, 321–22 (expert report “implicated” a defendant’s
conduct because it was directed solely to the defendant physician’s care “although
it did not mention him by name”); Troeger v. Myklebust, 274 S.W.3d 104, 105,
110 (Tex. App.—Houston [14th Dist.] 2008, pet. denied) (health care liability
claim against one provider). But in each of those cases, there was only one
defendant, so even if the defendant was not named individually, the statements in
the expert report could still easily identify the defendant. See Ogletree, 262 S.W.
3d at 322; Troeger, 274 S.W.3d at 110.
Garner sued Dr. Okidi along with multiple other defendants who were also
health care providers. The expert report did not identify Dr. Okidi as part of a
surgical team or in any other manner, although it identified Dr. Podder, Dr. Ahuja
(an anesthesiologist), and Dr. Williamson (an ENT surgeon “called for an
intraoperative consult” after the fire). The trial court was not permitted to consider
any other document outside the four corners of the expert report to supply missing
14 information or determine whether Dr. Okidi was present during the operation or to
infer what role he played in the organ procurement operation. Puppala v. Perry,
564 S.W.3d 190, 197 (Tex. App.—Houston [1st Dist.] 2018, no pet.) (explaining
that court reviewing adequacy of expert report “may not draw inferences, instead it
must exclusively rely upon the information contained within the four corners of the
report”). The report did not implicate Dr. Okidi. Therefore, it did not meet the
minimal Scoresby standard. See Scoresby, 346 S.W.3d at 557.
Because the report did not meet Scoresby’s minimal standard, it was no
report at all as to Dr. Okidi, and the trial court should have granted his motion to
dismiss. See Loaisiga, 379 S.W.3d at 260 (holding that expert report can
sometimes be so deficient as to be considered no report at all); see also Scoresby,
346 S.W.3d at 557 (at minimum, expert report must contain opinion of individual
with expertise that claim has merit and implicate defendant’s conduct).
We further conclude that we have jurisdiction over the appeal of the trial
court’s denial of the motion to dismiss the claims against Dr. Okidi. See Badiga,
274 S.W.3d at 685. Because the trial court abused its discretion by denying Dr.
Okidi’s motion to dismiss, we reverse the trial court’s order as to Dr. Okidi.
V. The Deficient Report Implicated Dr. Podder.
Dr. Podder acknowledges that the expert report names him, but he argues
that the report does not implicate him because it does not state that he breached a
15 standard of care or that such breach caused harm. Garner maintains that the report
implicates Dr. Podder, arguing that Dr. Emamaullee opined that he: (1) failed to
assess the risk of fire properly; (2) failed to cuff the unstable, uncuffed
tracheostomy tube; (3) failed to conduct a “time out” to discuss the uncuffed
tracheostomy tube and oxygen being administered when he began the sternotomy
in close proximity to the tube; and (4) failed to properly report the surgical fire and
burns. In her brief, Garner also argues the Dr. Podder “began the sternotomy
within close proximity to the tracheostomy tube with the electrosurgical device,
which ignited the drapes, resulting in the surgical fire,” but it is unclear if she
asserts that this was included in Dr. Emamaullee’s report. Appellee’s Br. 9.
Dr. Emamaullee’s expert report identified Dr. Podder as the “procurement
surgeon,” and it stated that he “requested that the gauze around the tracheostomy
tube be removed prior to skin preparation.” The report also stated that Dr. Podder
included notes about adhesions in a free text section of the operative note for the
procurement, but he did not mention the surgical fire or J.G.’s burn injuries. The
report states that a fire ignited “shortly after starting the procedure,” and that “the
procurement surgeon started the sternotomy within close promixity” to J.G.’s
tracheostomy tube that was maintained at about 89% oxygen at the beginning of
the procedure. The report does not identify what tool was used to make the initial
incision.
16 The expert report explains what factors can contribute to the risk of a
surgical fire, which of those factors were present, and what preventative measures
can be taken to minimize the risk of a surgical fire. The report states that no
documentation indicates that “there was discussion of preventative measures for
surgical fires,” including measures that would have reduced the risk of an air leak
during the procurement operation.
The report fails to identify what the Joint Commission is, whether its
statements and recommendations are standards of care, and how Dr. Emamuallee’s
knowledge, skill, and experience allow her to opine that these are, in fact,
standards of care. The report is deficient, therefore, as to standard of care and
breach of the standard of care. The report also does not explain how the failure to
communicate before or during the procurement surgery caused Garner’s injuries.
And the report is deficient for failing to identify any conduct specific only to Dr.
Podder, if any, that breached the standard of care and caused the fire.2
The expert report also fails to explain what qualifies Dr. Emamaullee to
opine about the standard of care applicable to a procurement surgeon or any health
care provider in regard to prevention of a surgical fire. For example, while the
report states that the “Joint Commission” has identified several factors that
2 For example, the report arguably implies that Dr. Podder used electrocautery to make the incision, providing a spark to ignite the fire. But it does not actually state that he made the incision or what type of instrument he used. 17 contribute to operating room fires, the report does not explain who or what the
Joint Commission is, or how Dr. Emamuallee knows that the contributing factors
or recommendations from the Joint Commission are standards of care applicable to
Dr. Podder in this situation.
Despite the expert report’s failure to connect Dr. Emamaullee’s knowledge,
skills, and experience to the relevant standard of care in this case, her curriculum
vitae indicates that she is a person with expertise in the areas of surgery, organ
transplantation, research, and education. And despite the identified deficiencies in
the report, we conclude the report meets Scoresby’s minimal standard because it
includes an opinion of an individual with expertise that Garner’s claim has merit,
and it implicates Dr. Podder as one of the health care providers who was present
for the organ procurement surgery and allegedly failed to prevent the operative fire
by failing to adequately communicate with his colleagues about known and
obvious fire hazards. See Scoresby, 346 S.W.3d at 557; see also Potts, 392 S.W.3d
at 630 (“A report need not cover every alleged liability theory to make the
defendant aware of the conduct that is at issue.”). While Garner’s expert report is
deficient because it fails to include sufficient specificity, a poorly written expert
report is not necessarily an indication of a frivolous claim. See Scoresby, 346
S.W.3d at 557 (“[W]hen an expert report can be cured in thirty days, the claim is
18 not frivolous.”). Nor is the report an indication, in this case, that no report was filed
at all as to Dr. Podder.
We conclude that the trial court had discretion to grant an extension of time
to allow Garner to cure the report’s deficiencies as to Dr. Podder, and the exercise
of that discretion is not immediately reviewable by interlocutory appeal. See TEX.
CIV. PRAC. & REM. CODE § 51.014(a)(9). Therefore, we conclude that we lack
jurisdiction over Dr. Podder’s appeal.
VI. The Deficient Report Vicariously Implicated Methodist Hospital.
It is undisputed that the organ procurement surgery during which J.G. was
burned occurred at Texas Children’s Hospital and that Dr. Podder and Dr. Okidi
were employed by Methodist Hospital. Garner alleges that Methodist Hospital is
vicariously liable for the allegedly negligent conduct of both doctors. When a
health care liability claim against a defendant health care provider is based on
vicarious liability, an expert report that meets the statutory standards as to the
defendant health care provider’s employee is sufficient to implicate the health care
provider’s conduct. See Potts, 392 S.W.3d at 632; see also Gardner v. U.S.
Imaging, Inc., 274 S.W.3d 669, 671–72 (Tex. 2008) (“When a party’s alleged
health care liability is purely vicarious, a report that adequately implicates the
actions of that party’s agents or employees is sufficient.”). Similarly, when an
expert report is insufficient as to an employee, it is also insufficient as to the
19 employer health care provider for the purpose of vicarious liability. See US
Anesthesia Partners, 2022 WL 4099835, at *10 (collecting cases).
Methodist Hospital’s liability was based on a theory of vicarious liability for
the acts of Dr. Okidi and Dr. Podder. Because we have concluded that the expert
report satisfies the minimal Scoresby standard as to Dr. Podder, we hold that it
likewise satisfies the minimal Scoresby standard as to Methodist Hospital. See US
Anesthesia Partners, 2022 WL 4099835, at *10. We lack jurisdiction to consider
this challenge.
Conclusion
We dismiss the appeals of LifeGift, Texas Children’s Hospital, and Baylor
College of Medicine, K2 Holistic Health Care Services, Inc. and Jane Ogle, RN.
We reverse the order of the trial court denying Dr. Okidi’s motion to
dismiss, and we remand to the trial court for entry of an order that awards Dr.
Okidi reasonable attorney’s fees and costs of court incurred by him and dismisses
Garner’s claims against him with prejudice.
We dismiss the appeal of Dr. Podder and Methodist Hospital for want of
jurisdiction.
Susanna Dokupil Justice Panel consists of Justices Rivas-Molloy, Johnson, and Dokupil.