Paul James, M.D. and Metropolitan Houston Surgery Associates, PLLC v. Angie Sam

• Court: Court of Appeals of Texas
• Decided: August 3, 2021
• Docket: 01-20-00260-CV
• Status: Published

Opinion

Opinion issued August 3, 2021

In The

Court of Appeals For The

First District of Texas ———————————— NO. 01-20-00260-CV ——————————— GEORGE T. KUHN, M.D., GEORGE T. KUHN M.D., P.A. D/B/A WOMEN’S HEALTHCARE ASSOCIATES, PAUL JAMES, M.D., METROPOLITAN HOUSTON SURGERY ASSOCIATES, PLLC, ADAM MORALES, M.D., WEST HOUSTON RADIOLOGY ASSOCIATES, L.L.P., AND SINGLETON ASSOCIATES, P.A. D/B/A RADIOLOGY PARTNERS GULF COAST, Appellants V. ANGIE SAM, Appellee

On Appeal from the 151st District Court Harris County, Texas Trial Court Case No. 2019-45200

MEMORANDUM OPINION In this interlocutory appeal,1 appellants, George T. Kuhn, M.D., George T.

Kuhn M.D., P.A., doing business as Women’s Healthcare Associates (“Women’s

Healthcare”), Paul James, M.D., Metropolitan Houston Surgery Associates, PLLC

(“Metropolitan Houston”), Adam Morales, M.D., West Houston Radiology

Associates, L.L.P. (“West Houston Radiology”), and Singleton Associates, P.A.,

doing business as Radiology Partners Gulf Coast (“Radiology Partners”)

(collectively, “appellants”), challenge the trial court’s order overruling their

objections and denying their motions to dismiss the health care liability claims2

brought against them by appellee, Angie Sam, in her suit for negligence. In multiple

issues, appellants contend that the trial court erred in overruling their objections and

denying their motions to dismiss Sam’s claims against them.3

We affirm.

Background

In her petition, Sam alleges that on April 12, 2018, she was admitted to St.

Joseph Hospital with pelvic pain, uterine fibroids, and a right ovarian cyst. Sam

underwent an exploratory laparotomy,4 a lysis of adhesions, a right

1 See TEX. CIV. PRAC. & REM. CODE ANN. § 51.014(a)(9). 2 See id. § 74.001(a)(13) (defining “[h]ealth care liability claim” (internal quotations omitted)). 3 See id. § 74.351 (governing expert reports). 4 A “laparotomy” is a “surgical incision of the abdominal wall.” Laparotomy, MERRIAM-WEBSTER’S COLLEGIATE DICTIONARY (11th ed. 2014).

2 salpingo-oophorectomy,5 and a supracervical hysterectomy.6 The friable adhesions

found during surgery required “sharp and cautery dissection to free the uterus and

right [fallopian] tube and ovary for removal.” Sam experienced excessive blood loss

due to the adhesions which required an “inter-operative blood transfusion.” “[A]

decision to stop with a supra[cervical] hysterectomy was made.” Extensive cautery

and suturing were required “to obtain hemostasis.” According to Sam, “[t]he frozen

section on the ovarian cyst was benign and cystoscopy was normal prior to [the]

closing [of her] abdomen.” (Internal quotations omitted.)

Soon after surgery, Sam developed pain, fever, nausea, and vomiting. A

computed tomography (“CT”) scan of Sam’s abdomen was done on the third day

after her surgery. The CT scan showed “a collection of fluid and [a] probable blood

clot in [Sam’s] pelvis.” A drain was placed by the interventional radiology

department, which “noted that 50 cc of brown and bloody fluid was obtained from

[Sam’s] pelvis at th[e] time.” Sam continued to experience pain and fever and

5 A “[s]alpingo-oophorectomy” is the “[surgical] excision of a fallopian tube and an ovary.” See Young v. Pinto, No. 09-08-299-CV, 2008 WL 4998346, at *8 n.3 (Tex. App.—Beaumont Nov. 26, 2008, no pet.) (mem. op.) (internal quotations omitted). 6 A “supracervical hysterectomy” is the “surgical removal of the uterus.” See Tex. Tech Univ. of Health Scis. Ctr. v Lozano, 570 S.W.3d 740, 743 n.1 (Tex. App.—El Paso 2018, pet. denied); see also Young, 2008 WL 4993846, at 8 n.3.

3 leukocytosis.7 On the sixth day after Sam’s surgery, another CT scan was taken, and

it showed “air, fluid, and contrast leakage within the peritoneal cavity.”8 After Sam

was diagnosed with a bowel perforation, “with evidence of wide spread [sic]

peritoneal cavity involvement,” a decision was made to treat Sam’s bowel

perforation conservatively by draining the area even though there was “fluid and

bowel gas . . . throughout the peritoneal cavity.” This course of treatment continued

for the next four days, and Sam’s condition continued to deteriorate.

On the tenth day after Sam’s initial surgery, Sam underwent an exploratory

laparotomy, a repair of her bowel perforation, and a diverting ileostomy. 9 The

ileostomy was required because of a “marked inflammatory reaction to bowel

leakage” that had occurred for an extended length of time. After Sam’s second

7 “[L]eukocytosis” is “an increase in the number of white blood cells in the circulating blood.” Leukocytosis, MERRIAM-WEBSTER’S COLLEGIATE DICTIONARY (11th ed. 2014). 8 The “peritoneal cavity” is “the space within a person’s abdomen that contains the intestines, stomach, and liver.” Univ. of Tex. M.D. Anderson Cancer Ctr. v. McKenzie, 578 S.W.3d 506, 510 n.2 (Tex. 2019). 9 An “ileostomy” is “a surgical operation in which a damaged part is removed from the ileum,” the third portion of the small intestine, “and the cut end [is] diverted to an artificial opening in the abdominal wall.” Ileostomy, OXFORD DICTIONARY OF ENGLISH (2d ed. 2009); see also Thetford v. State, No. 02-18-00488-CR, 2021 WL 278913, at *1 n.3 (Tex. App.—Fort Worth Jan. 28, 2021, pet. filed) (mem. op., not designated for publication) (physician described ileostomy as follows: “[W]e essentially brought the small intestine to the skin and bypassed the large intestine, essentially tak[ing] it out of the equation so the small intestine just empties to a bag instead of going through the large intestine.” (second alteration in original) (internal quotations omitted)).

4 surgery, she suffered peritonitis and sepsis. Sam’s condition slowly improved, and

she was discharged from St. Joseph Hospital on April 29, 2018.

Sam brings health care liability claims against appellants, alleging that Sam

was their patient and appellants had a duty to act as reasonably prudent health care

providers. Drs. Kuhn, James, and Morales breached the applicable standards of care

required for treating and caring for Sam in many ways, including, but not limited to,

failing to recognize her bowel perforation, failing to diagnose her bowel perforation

until the sixth day after her initial surgery, and failing to consult about immediately

exploring Sam’s abdomen to repair her bowel perforation upon its diagnosis. Sam

also alleges that Women’s Healthcare, Metropolitan Houston, West Houston

Radiology, and Radiology Partners are vicariously liable for the acts and omissions

of Drs. Kuhn, James, and Morales. Sam requests damages for past and future

physical pain and suffering, past and future mental anguish, past and future physical

impairment, past and future medical expenses, past and future disfigurement, loss of

earnings, future lost earning capacity, exemplary damages, and interest.

To support her claim, Sam timely served appellants with an initial expert

report authored by J.M. Paine, M.D., F.A.C.O.G.10 Appellants objected to the initial

10 Dr. Paine attached his curriculum vitae (“CV”) to his expert report.

5 expert report, and the trial court signed an agreed order allowing Sam thirty days to

supplement or amend Dr. Paine’s initial expert report.11

Sam timely served appellants with a supplemental expert report authored by

Dr. Paine. Dr. Paine’s supplemental expert report states that it is “intended sole[ly]

to supplement[] [and] not to replace[] [his] prior report.”12

In his expert reports, Dr. Paine states that he is a licensed physician and is

board certified in obstetrics and gynecology. He has been practicing in the field of

obstetrics and gynecology for thirty-five years. Currently, he is a member of the

teaching faculty as an associate professor in the department of obstetrics and

gynecology at the University of Texas Health Science Center in San Antonio, Texas.

In his position as an associate professor, he trains residents and students in obstetrics

and gynecology. He is also actively practicing medicine in the field of obstetrics

and gynecology.

Dr. Paine states that he has extensive experience in the field of obstetrics and

gynecology, and he has performed thousands of hysterectomies during his career.

He has knowledge of the accepted standards of medical and surgical care required

for patients needing hysterectomies. This includes knowledge of the standards of

11 See TEX. CIV. PRAC. & REM. CODE ANN. § 74.351(c). 12 Dr. Paine attached his CV to his supplemental expert report.

6 pre-operative, inter-operative, and post-operative care required for patients who

have hysterectomies.

When Dr. Paine treats patients requiring hysterectomies, he provides

pre-operative, inter-operative, and post-operative care to his patients. Post-operative

care includes “following [a] patient after [a] surgery is complete[] to diagnose and

treat any complications that may arise from the surgical procedure.” According to

Dr. Paine, this case involves the purported failure of Drs. Kuhn, James, and Morales

to appropriately care for and treat Sam after a hysterectomy, and Dr. Paine is familiar

with the type of post-operative care a patient, such as Sam, should receive and how

post-operative complications, like those experienced by Sam, should be managed

and treated.

In his expert reports, Dr. Paine states that on April 12, 2018, Sam was admitted

to St. Joseph Hospital with pelvic pain, uterine fibroids, and a right ovarian cyst.

She underwent an exploratory laparotomy, lysis of adhesions, right

salpingo-oophorectomy, and supracervical hysterectomy. The friable adhesions

found during surgery required “sharp and cautery dissection to free the uterus and

right [fallopian] tube and ovary [for] removal.” Sam experienced excessive blood

loss due to the adhesions which required an “inter-operative blood transfusion”; thus,

“a decision to stop with a supra[cervical] hysterectomy was made.” Extensive

cautery and suturing were required “to obtain hemostasis.” “The frozen section on

7 the ovarian cyst was benign and cystoscopy was normal prior to [the] closing [of

her] abdomen.” (Internal quotations omitted.)

Soon after surgery, Sam developed pain, fever, nausea, and vomiting. A CT

scan of Sam’s abdomen was done on her third day after her surgery. The CT scan

showed “a collection of fluid and [a] probable blood clot in [Sam’s] pelvis.” A drain

was placed by the interventional radiology department, which “noted that 50 cc of

brown and bloody fluid was obtained from [Sam’s] pelvis at th[e] time.” Sam

continued to experience pain and fever and leukocytosis. On the sixth day after her

surgery, another CT scan was taken, and it showed “air, fluid, and contrast leakage

within the peritoneal cavity.” After Sam was diagnosed with a bowel perforation,

“with evidence of wide spread [sic] peritoneal cavity involvement,” a decision was

made to treat Sam’s condition conservatively by draining the area even though there

was “fluid and bowel gas . . . throughout the peritoneal cavity.” This course of

treatment continued for the next four days, and Sam’s condition continued to

deteriorate.

On the tenth day after her initial surgery, Sam was taken back to the operating

room for an exploratory laparotomy, a repair of her bowel perforation, and a

diverting ileostomy. The ileostomy was required because of a “marked

inflammatory reaction to bowel leakage” that had occurred for an extended length

of time. Had an exploratory laparotomy and repair of the bowel perforation been

8 performed at the time Sam was diagnosed with the bowel perforation, “with

evidence of wide spread [sic] peritoneal cavity involvement,” a colostomy13 would

have been possible. After Sam’s second surgery, Sam suffered peritonitis and sepsis.

Sam slowly improved and was discharged seventeen days after she was first

admitted to the hospital.

As to the standard of care and breach of the standard of care for Dr. Kuhn, Dr.

Paine states that bowel injuries, like a bowel perforation, are a well-known

complication of a hysterectomy. On average they occur in one out of every 700

cases. But if a hysterectomy is performed when adhesions are present and when an

extensive bowel dissection is also required, the rate of bowel injuries increases. A

bowel perforation should be diagnosed three days after a hysterectomy. Given the

difficulties with Sam’s hysterectomy and the extensive bowel dissection that was

required during her surgery, Dr. Kuhn, Sam’s gynecologist, should have considered

and suspected a bowel perforation by the third day after Sam’s surgery, when Sam

was experiencing pain, fever, nausea, and vomiting and a CT scan showed “a

collection of fluid and [a] probable blood clot in [her] pelvis.” The standard of care

required Dr. Kuhn to suspect, recognize, and diagnose a bowel perforation by the

13 A “colostomy” is “where the bowel is diverted to exit the abdomen. A colostomy bag is then attached that permits the [person] to pass stool into the bag, which must be drained by the [person], instead of the normal waste elimination process.” Centocor, Inc. v. Hamilton, 310 S.W.3d 476, 481–82 (Tex. App.—Corpus Christi– Edinburg 2010), rev’d on other grounds, 372 S.W.3d 140 (Tex. 2012).

9 third day after Sam’s initial surgery and it required Dr. Kuhn to take Sam to surgery

“to look for and treat the injury.” Dr. Kuhn did not do such things, and thus,

breached the standard of care.

Additionally, on the sixth day after Sam’s surgery, when Sam’s bowel

perforation was actually diagnosed, the standard of care required Dr. Kuhn to

recommend surgery to Sam and to immediately perform surgery to repair the bowel

perforation. But Dr. Kuhn did not do either of those things. Instead, he decided to

“treat [Sam’s] condition conservatively,” by draining the fluid that was present.

(Internal quotations omitted.) There is no precedent for “conservative management”

of a bowel perforation when there is evidence of bowel contents and gas free in the

patient’s peritoneal cavity. (Internal quotations omitted.) Dr. Kuhn’s failure to take

any action to repair Sam’s bowel perforation, including a failure to consult with

someone from general surgery to explore Sam’s abdomen and repair the bowel

perforation, after the bowel perforation diagnosis on the sixth day following Sam’s

initial surgery was a breach of the standard of care. Further, Dr. Kuhn breached the

standard of care by waiting until the tenth day after Sam’s initial surgery to return

Sam to surgery to repair the bowel perforation because it should have been repaired

immediately upon its diagnosis.

As to the standard of care and breach of the standard of care for Dr. James,

Dr. Paine states that bowel injuries, like a bowel perforation, are a well-known

10 complication of a hysterectomy. On average they occur in one out of every 700

cases. But if a hysterectomy is performed when adhesions are present and when an

extensive bowel dissection is also required, the rate of bowel injuries increases. A

bowel perforation should be diagnosed three days after a hysterectomy.

According to Dr. Paine, Dr. James was the general surgeon

“following . . . Sam[] post-hysterectomy.” Because Dr. James was the general

surgeon “following” Sam after her surgery, once Sam’s bowel perforation was

diagnosed on the sixth day after her surgery, the standard of care required Dr. James

to immediately act upon the diagnosis by surgically repairing the bowel perforation

or at least recommending a surgical repair of the bowel perforation. But Dr. James

did not do so and instead joined in the “conservative” treatment plan with Dr. Kuhn.

(Internal quotations omitted.) There is no precedent for “conservative management”

of a bowel perforation when there is evidence of bowel contents and gas free in the

peritoneal cavity. (Internal quotations omitted.) By failing to recommend surgical

repair of Sam’s bowel perforation and by failing to surgically repair the bowel

perforation immediately, Dr. James breached the standard of care. Dr. James also

breached of the standard of care by waiting until the tenth day after Sam’s initial

surgery to return Sam to surgery to repair the bowel perforation because it should

have been repaired immediately upon its diagnosis.

11 As to the standard of care and breach of the standard of care for Dr. Morales,

Dr. Paine states that bowel injuries, like a bowel perforation, are a well-known

complication of a hysterectomy. On average they occur in one out of every 700

cases. But if a hysterectomy is performed when adhesions are present and when an

extensive bowel dissection is also required, the rate of bowel injuries increases. A

bowel perforation should be diagnosed three days after a hysterectomy.

According to Dr. Paine, Dr. Morales, an interventional radiologist, “drain[ed]

the peritoneal cavity” after Sam was diagnosed with a bowel perforation on the sixth

day after her surgery. But there is no precedent for “conservative management” of

a bowel perforation when there is evidence of bowel contents and gas free in the

peritoneal cavity. (Internal quotations omitted.) Based on Sam’s diagnosis of a

bowel perforation on the sixth day after her surgery, Dr. Morales should have

recommended immediate surgical exploration and repair of the bowel perforation.

Dr. Morales did not do this, and thus, breached the standard of care.

As to causation, Dr. Paine states that because of the aforementioned breaches

by Drs. Kuhn, James, and Morales, Sam’s condition worsened and endangered her

life. A bowel perforation is a surgical emergency that requires immediate

intervention. Immediate exploration, wash out of the peritoneal cavity, and repair

of the bowel perforation is required. Any course of action other than immediate

exploration, wash out, and repair, causes worsening peritonitis, sepsis, and possible

12 death. According to Dr. Paine, the physicians’ failure to timely diagnose the bowel

perforation, decision to pursue “conservative management” of Sam’s bowel

perforation after it was diagnosed on the sixth day after her initial surgery, failure to

recommend surgical exploration and repair of the bowel perforation upon its

diagnosis, failure to immediately repair the bowel perforation upon its diagnosis, and

decision to delay the repair of Sam’s bowel perforation until the tenth day after her

initial surgery, caused Sam’s condition to deteriorate and allowed for the continued

leakage of bowel contents into the peritoneal cavity. (Internal quotations omitted.)

Without a repair of the bowel perforation, bowel contents continued to flow into

Sam’s peritoneal cavity “with all the bacteria, chemicals[,] and irritants [that] allow[]

[an] infection to grow and worsen.” The bowel leakage caused severe damage to

Sam’s physiology and permanent residual damage. And because the infection was

allowed to grow, this led to a more complicated recovery process for Sam, a longer

hospital stay, and long-term damage. Sam could not recover from the bowel

perforation until it was actually repaired.

Dr. Paine also explains that during the surgery to repair Sam’s bowel

perforation, a diverting ileostomy had to be performed. According to Dr. Paine, the

ileostomy was required because of a marked inflammatory reaction to bowel leakage

for an extended length of time, i.e., four days after the bowel-perforation diagnosis

13 and ten days after Sam’s initial surgery. Had the bowel perforation been repaired at

the time it was diagnosed, a colostomy would have been possible.

Additionally, Dr. Paine states that peritonitis and sepsis, which are

life-threatening conditions, can arise from a bowel perforation, and in such cases,

they will not be resolved until the bowel perforation is repaired. Here, because of

appellants’ aforementioned breaches, Sam’s peritonitis and sepsis grew worse—

which is what happens when an infection is not properly treated and the source of

the infection is not appropriately and timely addressed.

Dr. Kuhn objected to Dr. Paine’s expert reports and requested that Sam’s

health care liability claim against him be dismissed.14 Dr. Kuhn asserted that Dr.

Paine’s expert reports do not provide a fair summary of the applicable standard of

care and do not explain how Dr. Kuhn breached the standard of care. The reports

also do not explain how any alleged breach by Dr. Kuhn caused or contributed to

cause Sam’s injury.

Dr. James objected to Dr. Paine’s expert reports and requested that Sam’s

health care liability claim against him be dismissed.15 Dr. James asserted that Dr.

Paine’s expert reports do not provide a fair summary of the applicable standard of

14 Women’s Healthcare joined Dr. Kuhn’s objection and requested that the trial court dismiss Sam’s vicarious liability health care liability claim against it. 15 Metropolitan Houston joined Dr. James’s objection and requested that the trial court dismiss Sam’s vicarious liability health care liability claim against it.

14 care and do not inform Dr. James of what he did to breach the standard of care. Dr.

Paine’s opinion on causation is speculative and conclusory, and the reports do not

state how Dr. James’s breach of the standard of care caused Sam harm. Dr. James

also asserts that Dr. Paine is not qualified to offer an opinion on the standard of care

and causation related to Dr. James.

Dr. Morales objected to Dr. Paine’s expert reports and requested that Sam’s

health care liability claim against him be dismissed.16 Dr. Morales asserted that Dr.

Paine is not qualified to offer an opinion on causation related to Dr. Morales.

After Sam responded to appellants’ objections and motions to dismiss, the

trial court overruled appellants’ objections to Dr. Paine’s expert reports and denied

appellants’ motions to dismiss the health care liability claims against them.

Standard of Review

We review a trial court’s decision on a motion to dismiss a health care liability

claim for an abuse of discretion. See Am. Transitional Care Ctrs. of Tex., Inc. v.

Palacios, 46 S.W.3d 873, 875 (Tex. 2001); Gray v. CHCA Bayshore L.P., 189

S.W.3d 855, 858 (Tex. App.—Houston [1st Dist.] 2006, no pet.). We apply the same

standard to a trial court’s determination that an expert is qualified. See Broders v.

Heise, 924 S.W.2d 148, 151–52 (Tex. 1996); San Jacinto Methodist Hosp. v.

16 West Houston Radiology and Radiology Partners joined Dr. Morales’s objection and requested that the trial court dismiss Sam’s vicarious liability health care liability claims against them.

15 Bennett, 256 S.W.3d 806, 811 (Tex. App.—Houston [14th Dist.] 2008, no pet.). A

trial court abuses its discretion if it acts in an arbitrary or unreasonable manner

without reference to guiding rules or principles. Jelinek v. Casas, 328 S.W.3d 526,

539 (Tex. 2010). When reviewing matters committed to a trial court’s discretion,

we may not substitute our own judgment for that of the trial court. Bowie Mem’l

Hosp. v. Wright, 79 S.W.3d 48, 52 (Tex. 2002). A trial court does not abuse its

discretion merely because it decides a discretionary matter differently than an

appellate court would in a similar circumstance. Harris Cty. Hosp. Dist. v. Garrett,

232 S.W.3d 170, 176 (Tex. App.—Houston [1st Dist.] 2007, no pet.). But a trial

court has no discretion in determining what the law is or in applying the law to the

facts. See Walker v. Packer, 827 S.W.2d 833, 840 (Tex. 1992). In conducting our

review, we always consider that the Legislature’s goal in requiring expert reports is

to deter baseless claims, not block earnest ones. Jackson v. Kindred Hosps. Ltd.

P’ship, 565 S.W.3d 75, 81 (Tex. App.—Fort Worth 2018, pet. denied); Gonzalez v.

Padilla, 485 S.W.3d 236, 242 (Tex. App.—El Paso 2016, no pet.); see also Scoresby

v. Santillan, 346 S.W.3d 546, 554 (Tex. 2011).

Under the Texas Medical Liability Act (“TMLA”), a plaintiff asserting a

health care liability claim must timely serve each defendant physician and health

16 care provider17 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 ANN. § 74.351(a), (i); see also Mangin v. Wendt, 480 S.W.3d 701, 705

(Tex. App.—Houston [1st Dist.] 2015, no pet.). The 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 damages claimed. TEX. CIV. PRAC. & REM. CODE

ANN. § 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 as to 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.

If a plaintiff fails to timely serve an expert report, then, on the motion of a

defendant physician or health care provider, the trial court must dismiss the pertinent

health care liability claim with prejudice and award attorney’s fees. TEX. CIV. PRAC.

& REM. CODE ANN. § 74.351(b); Baty v. Futrell, 543 S.W.3d 689, 692 (Tex. 2018).

17 See TEX. CIV. PRAC. & REM. CODE ANN. § 74.001(a)(12)(A) (defining “[h]ealth care provider” (internal quotations omitted)).

17 But if a plaintiff timely serves an expert report and a defendant physician or health

care provider files a motion challenging the adequacy of that report, then the trial

court may only grant the motion “if it appears to the court, after [a] hearing, that the

report does not represent an objective good faith effort to comply with the [TMLA’s]

definition of an expert report.” TEX. CIV. PRAC. & REM. CODE ANN. § 74.351(l);

Baty, 543 S.W.3d at 692–93; see also TEX. CIV. PRAC. & REM. CODE ANN.

§ 74.351(r)(6) (“[e]xpert report” means “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” (internal quotations

omitted)).

An expert report qualifies as an “objective good faith effort” to avoid

dismissal if it discusses each element with sufficient specificity so that it (1) informs

the defendant physician or health care provider of the specific conduct that the

plaintiff questions or about which the plaintiff complains and (2) provides a basis

for the trial court to conclude that the plaintiff’s health care liability claim has merit.

Miller v. JSC Lake Highlands Operations, LP, 536 S.W.3d 510, 513 (Tex. 2017);

see also Baty, 543 S.W.3d at 693–94. The expert report need not use any particular

18 words, and it may be informal, “but bare conclusions will not suffice.” Scoresby,

346 S.W.3d at 555–56.

In determining whether an expert report constitutes an “objective good faith

effort” to address each element, “a trial court may not draw inferences; instead, it

must exclusively rely upon the information contained within the four corners of the

report.” Puppala v. Perry, 564 S.W.3d 190, 197 (Tex. App.—Houston [1st Dist.]

2018, no pet.) (internal quotations omitted). And when the issue of adequacy hinges

on an expert’s qualifications, the trial court may also consider the “four corners” of

the expert’s CV. Id.; Mangin, 480 S.W.3d at 706. Courts must view the report in

its entirety, rather than isolating specific portions or sections, to determine whether

it is sufficient. See Baty, 543 S.W.3d at 694; see, e.g., Van Ness v. ETMC First

Physicians, 461 S.W.3d 140, 144 (Tex. 2015); see also Austin Heart, P.A. v. Webb,

228 S.W.3d 276, 282 (Tex. App.—Austin 2007, no pet.) (“The form of the report

and the location of the information in the report are not dispositive.”). In reviewing

the adequacy of an expert report, a trial court may not consider an expert’s

credibility, the data relied on by the expert, or the documents that the expert failed

to consider at this pre-discovery stage of the litigation. See Mettauer v. Noble, 326

S.W.3d 685, 691–92 (Tex. App.—Houston [1st Dist.] 2010, no pet.); Gonzalez, 485

S.W.3d at 245.

19 Multiple expert reports may be considered together in determining whether a

plaintiff has provided a report meeting the statutory requirements. See TEX. CIV.

PRAC. & REM. CODE ANN. § 74.351(i); Salias v. Tex. Dep’t of Aging & Disability

Servs., 323 S.W.3d 527, 534 (Tex. App.—Waco 2010, pet. denied); Walgreen Co.

v. Hieger, 243 S.W.3d 183, 186 n.2 (Tex. App.—Houston [14th Dist.] 2007, pet.

denied). A single report addressing both liability and causation issues related to a

defendant physician or health care provider is not required. See TEX. CIV. PRAC. &

REM. CODE ANN. § 74.351(i); Gannon v. Wyche, 321 S.W.3d 881, 896 (Tex. App.—

Houston [14th Dist.] 2010, pet. denied). When an expert report has been

supplemented, a court considers both the original expert report and the supplemental

expert report when reviewing their adequacy. See Scherer v. Gandy, No.

07-18-00341-CV, 2019 WL 988174, at *2 n.4 (Tex. App.—Amarillo Feb. 28, 2019,

no pet.) (mem. op.); see also Packard v. Guerra, 252 S.W.3d 511, 527 (Tex. App.—

Houston [14th Dist.] 2008, pet. denied). The multiple expert reports, when read

together, 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 damages

claimed. See TEX. CIV. PRAC. & REM. CODE ANN. § 74.351(i), (r)(6); see also

Gannon, 321 S.W.3d at 896.

20 Dr. Kuhn and Women’s Healthcare

In his sole issue, Dr. Kuhn argues that the trial court erred in overruling his

objections to Dr. Paine’s expert reports and denying his motion to dismiss Sam’s

health care liability claim against him because Dr. Paine’s expert reports do not

adequately address the standard of care and causation as it relates to Dr. Kuhn. In

its sole issue, Women’s Healthcare argues that the trial court erred in overruling its

objections to Dr. Paine’s expert reports and denying its motion to dismiss Sam’s

vicarious liability health care liability claim against it because Dr. Paine’s expert

reports do not adequately address the standard of care and causation as it relates to

Dr. Kuhn.

A. Standard of Care Related to Dr. Kuhn

In a portion of his sole issue, Dr. Kuhn argues that Dr. Paine’s expert reports

do not adequately address the standard of care as it relates to him because the expert

reports do not “provide Dr. Kuhn with specific information about what he should

have done differently.”

Identifying the standard of care in a health care liability claim is critical.

Palacios, 46 S.W.3d at 880. To adequately identify the standard of care, an expert

report must set forth “specific information about what the defendant [physician]

should have done differently.” Abshire v. Christus Health Se. Tex., 563 S.W.3d 219,

226 (Tex. 2018) (internal quotations omitted). Thus, related to standard of care and

21 breach, the expert report must explain what the defendant physician should have

done under the circumstances and what the physician did instead. Palacios, 46

S.W.3d at 880; see also Kline v. Leonard, No. 01-19-00323-CV, 2019 WL 6904720,

at *7 (Tex. App.—Houston [1st Dist.] Dec. 19, 2019, pet. denied) (mem. op.) (“[A]n

expert report must provide a fair summary of the expert’s opinion regarding the

applicable standard of care and the manner in which the care rendered by the health

care provider failed to meet the standard.” (internal quotations omitted)). It is not

sufficient for the expert to simply state that he knows the standard of care and

concludes that it was or was not met. Palacios, 46 S.W.3d at 880.

As to the applicable standard of care related to Dr. Kuhn, Dr. Paine, in his

expert reports, states that bowel injuries, like a bowel perforation, are a well-known

complication of a hysterectomy. On average they occur in one out of every 700

cases. But if a hysterectomy is performed when adhesions are present and when an

extensive bowel dissection is also required, the rate of bowel injuries increases. A

bowel perforation should be diagnosed three days after a hysterectomy. Given the

difficulties with Sam’s hysterectomy and the extensive dissection that was required

during her initial surgery, Dr. Kuhn, Sam’s gynecologist, should have considered

and suspected a bowel perforation by the third day after Sam’s surgery, when Sam

was experiencing pain, fever, nausea, and vomiting and a CT scan showed “a

collection of fluid and [a] probable blood clot in [her] pelvis.” The standard of care

22 required Dr. Kuhn to suspect, recognize, and diagnose a bowel perforation by the

third day after Sam’s surgery and also required him to take Sam to surgery “to look

for and treat the injury.” Additionally, on the sixth day after surgery, when Sam’s

bowel perforation was actually diagnosed, the standard of care required Dr. Kuhn to

recommend surgery to Sam and to immediately perform surgery to repair her bowel

perforation. See Baty, 543 S.W.3d at 694 (courts must view report in its entirety,

rather than isolating specific portions or sections, to determine whether it is

sufficient); Webb, 228 S.W.3d at 282 (“The form of the report and the location of

the information in the report are not dispositive.”).

Dr. Paine’s statements about the applicable standard of care for Dr. Kuhn are

not vague or conclusory. Rather, the expert reports identify the specific actions that

should have been taken by Dr. Kuhn but were not. See Abshire, 563 S.W.3d at 226–

27; see also Baty, 543 S.W.3d at 695 (report not conclusory where it did not require

one to infer what defendant physician should have done differently); Keepers v.

Blessett, No. 01-18-01020-CV, 2019 WL 1523368, at *5 (Tex. App.—Houston [1st

Dist.] Apr. 9, 2019, no pet.) (mem. op.) (expert report is adequate where it informs

defendant physician of expert’s opinion on what defendant should have done and

what the defendant did instead). The stated standard of care need not be complicated

for it to be sufficient. See, e.g., Baty, 543 S.W.3d at 697; see also Keepers, 2019

WL 1523368, at *5–6 (“At times, the standard of care can be fairly basic.” (internal

23 quotations omitted)). Dr. Paine clearly identifies the applicable standard of care

related to Dr. Kuhn. The expert reports provide “enough information” for the trial

court to have concluded that they constitute a good-faith effort to set forth the

applicable standard of care related to Dr. Kuhn.18 See Miller, 536 S.W.3d at 515–

17; see also New Med. Horizons, II, Ltd. v. Milner, 575 S.W.3d 53, 60, 64 (Tex.

App.—Houston [1st Dist.] 2019, no pet.); Mettauer, 326 S.W.3d at 691 (not court’s

role to determine truth or falsity of expert’s opinion, or truth or falsity of facts upon

which expert bases such opinions, but only to act as gatekeeper in evaluating

sufficiency of report itself).

We conclude that the trial court could have reasonably determined that Dr.

Paine’s expert reports represent an “objective good faith effort” to inform Dr. Kuhn

of the specific conduct called into question, the standard of care that should have

been followed, and what Dr. Kuhn should have done differently. Thus, we hold that

the trial court did not err in overruling Dr. Kuhn’s objections and denying Dr. Kuhn’s

18 To the extent Dr. Kuhn asserts that Dr. Paine has not accurately stated the standard of care, that complaint does not support a dismissal at this stage of the litigation. See Aggarwal v. Trotta, No. 01-19-00012-CV, 2019 WL 2426172, at *4 n.5 (Tex. App.—Houston [1st Dist.] June 11, 2019, no pet.) (mem. op.) (“To the extent [that the defendant physician] disputes that [the expert] has accurately stated the standard of care, his complaint does not support a Chapter 74 dismissal.”); Engh v. Reardon, No. 01-09-00017-CV, 2010 WL 4484022, at *8 (Tex. App.—Houston [1st Dist.] Nov. 10, 2010, no pet.) (mem. op.) (“The [physicians] also challenge the accuracy of [the expert’s] opinions with respect to [the] standard of care. Whether [the expert’s] opinions regarding the applicable standard[] of care are correct, however, is an issue for summary judgment, not a motion to dismiss under Chapter 74.”).

24 motion to dismiss Sam’s health care liability claim against him on the ground that

Dr. Paine’s expert reports do not adequately address the standard of care as to Dr.

Kuhn.

We overrule this portion of Dr. Kuhn’s sole issue.

B. Causation Related to Dr. Kuhn

In the remaining portion of his sole issue, Dr. Kuhn argues that Dr. Paine’s

expert reports do not adequately address causation as it relates to him because the

expert reports do not establish a causal link between Dr. Kuhn’s conduct and Sam’s

injuries, the reports contain analytical gaps between Dr. Kuhn’s alleged breach of

the standard of care and Sam’s alleged injury, and Dr. Paine’s causation opinion is

conclusory.

An expert report must provide a “fair summary” of the expert’s opinion on the

causal relationship between the failure of a defendant physician to provide care in

accord with the applicable standard of care and the plaintiff’s claimed injury, harm,

or damages. TEX. CIV. PRAC. & REM. CODE ANN. § 74.351(r)(6); see also Potts, 392

S.W.3d at 630. The expert report must explain how and why the defendant

physician’s breach of the standard of care proximately caused the plaintiff’s injury.

Columbia Valley Healthcare Sys., L.P. v. Zamarripa, 526 S.W.3d 453, 459–60 (Tex.

2017). An expert report need not marshal all the plaintiff’s proof necessary to

establish causation at trial, and it need not anticipate or rebut all possible defensive

25 theories that may ultimately be presented to the trial court. Wright, 79 S.W.3d at 52;

Cornejo v. Hilgers, 446 S.W.3d 113, 123 (Tex. App.—Houston [1st Dist.] 2014, pet.

denied). But an expert cannot simply opine that the breach caused the injury.

Jelinek, 328 S.W.3d at 539.

Causation consists of two components: (1) cause-in-fact and

(2) foreseeability. Gunn v. McCoy, 554 S.W.3d 645, 658 (Tex. 2018). A defendant

physician’s breach was a cause-in-fact of the plaintiff’s injury if the breach was a

substantial factor in bringing about the harm, and absent the breach the harm would

not have occurred. Id. Even if the harm would not have occurred absent the

defendant physician’s breach, “the connection between the defendant and the

plaintiff’s injuries simply may be too attenuated” for the breach to qualify as a

substantial factor. Allways Auto Grp., Ltd. v. Walters, 530 S.W.3d 147, 149 (Tex.

2017) (internal quotations omitted). A breach is not a substantial factor if it “does

no more than furnish the condition that makes the plaintiff’s injury possible.” Id. A

defendant physician’s breach is a foreseeable cause of the plaintiff’s injury if

physician of ordinary intelligence would have anticipated the danger caused by the

negligent act or omission. Puppala, 564 S.W.3d at 197.

As to standard of care and breach of the standard of care, Dr. Paine, in his

expert reports, states that bowel injuries, like a bowel perforation, are a well-known

complication of a hysterectomy. On average they occur in one out of every 700

26 cases. But if a hysterectomy is performed when adhesions are present and when an

extensive bowel dissection is also required, the rate of bowel injuries increases. A

bowel perforation should be diagnosed three days after a hysterectomy. Given the

difficulties with Sam’s hysterectomy and the extensive dissection that was required

during her initial surgery, Dr. Kuhn, Sam’s gynecologist, should have considered

and suspected a bowel perforation by the third day after Sam’s surgery, when Sam

was experiencing pain, fever, nausea, and vomiting and a CT scan showed “a

collection of fluid and [a] probable blood clot in [her] pelvis.” The standard of care

required Dr. Kuhn to suspect, recognize, and diagnose a bowel perforation by the

third day after Sam’s surgery and take Sam to surgery “to look for and treat the

injury.” Dr. Kuhn, by not doing either of those things, breached the standard of care.

Additionally, on the sixth day after her initial surgery, when Sam’s bowel

perforation was actually diagnosed, the standard of care required Dr. Kuhn to

recommend surgery to Sam and to immediately perform surgery to repair the bowel

perforation. But Dr. Kuhn did not do either of those things. Instead, he decided to

“treat [Sam’s] condition conservatively,” by draining the fluid that was present.

There is no precedent for “conservative management” of a bowel perforation when

there is evidence of bowel contents and gas free in the peritoneal cavity. (Internal

quotations omitted.) Dr. Kuhn’s failure to take any action to repair Sam’s bowel

perforation, including his failure to consult with someone from general surgery to

27 explore Sam’s abdomen and repair the bowel perforation, after the bowel perforation

diagnosis on the sixth day following Sam’s initial surgery was a breach of the

standard of care. Further, Dr. Kuhn breached the standard of care by waiting until

the tenth day after Sam’s initial surgery to return Sam to surgery to repair the bowel

perforation because it should have been repaired immediately upon its diagnosis.

As to causation, Dr. Paine, in his expert reports, states that because of the

aforementioned breaches by Dr. Kuhn, Sam’s condition worsened and endangered

her life. Dr. Paine explained that a bowel perforation is a surgical emergency that

requires immediate intervention. Immediate exploration, wash out of the peritoneal

cavity, and repair of the bowel perforation is required. Any course of action other

than immediate exploration, wash out, and repair, causes worsening peritonitis,

sepsis, and possible death. According to Dr. Paine, Dr. Kuhn’s failure to timely

diagnose the bowel perforation, decision to pursue “conservative management” of

Sam’s bowel perforation after it was diagnosed on the sixth day after her initial

surgery, failure to recommend surgical exploration and repair of the bowel

perforation upon diagnosis, failure to not immediately repair the bowel perforation

upon diagnosis, and decision to delay the repair of Sam’s bowel perforation until the

tenth day after her initial surgery, caused Sam’s condition to deteriorate and allowed

for the continued leakage of bowel contents into the peritoneal cavity. (Internal

quotations omitted.) Without a repair of Sam’s bowel perforation, bowel contents

28 continued to flow into Sam’s peritoneal cavity “with all the bacteria, chemicals[,]

and irritants [that] allow[] [an] infection to grow and worsen.” The bowel leakage

caused severe damage to Sam’s physiology and permanent residual damage. And

because the infection was allowed to grow, this led to a more complicated recovery

process for Sam, a longer hospital stay, and long-term damage. Sam could not

recover from the bowel perforation until it was actually repaired.

Further, during the surgery to repair Sam’s bowel perforation, a diverting

ileostomy had to be performed. According to Dr. Paine, the ileostomy was required

because of a marked inflammatory reaction to bowel leakage for an extended length

of time, i.e., four days after the bowel-perforation diagnosis and ten days after Sam’s

initial surgery. Had the bowel perforation been repaired at the time it was diagnosed,

a colostomy would have been possible.

Dr. Paine also explains that peritonitis and sepsis, which are life-threatening

conditions, can arise from a bowel perforation, and in such cases, they will not be

resolved until the bowel perforation is repaired. Here, because of Dr. Kuhn’s

aforementioned breaches, Sam’s peritonitis and sepsis grew worse—which is what

happens when an infection is not properly treated and the source of the infection is

not appropriately and timely addressed. Sam’s condition worsened and endangered

her life.

29 In determining whether an expert’s causation opinion is conclusory, we must

remain mindful that expert-report challenges are made at an early, pre-discovery

stage in the litigation, not when the merits of the health care liability claim are being

presented to the fact finder to determine liability. Puppala, 564 S.W.3d at 198. To

provide more than a conclusory statement on causation, an expert report must

include an “explanation tying the conclusion to the facts” and showing “how and

why the breach caused the injury based on the facts presented.” Jelinek, 328 S.W.3d

at 539–40; see also Puppala, 564 S.W.3d at 197. The expert report need only

provide some basis that the defendant physician’s act or omission proximately

caused injury. Owens v. Handyside, 478 S.W.3d 172, 187–88 (Tex. App.—Houston

[1st Dist.] 2015, pet. denied); see also Palacios, 46 S.W.3d at 879 (explaining “a

plaintiff need not present evidence in the report as if it were actually litigating the

merits. . . . [T]he information in the report does not have to meet the same

requirements as the evidence offered in a summary-judgment proceeding or at

trial”).

Here, Dr. Paine’s causation opinion is in line with those found sufficient in

other health-care-liability cases at this stage of the litigation where experts have

opined that had the defendant physician not breached the standard of care, a proper

diagnosis and medical intervention would have been achieved and the plaintiff’s

injury, harm, or damages would have been avoided. See, e.g., Whitmire v. Feathers,

30 No. 01-19-00094-CV, 2020 WL 4983321, at *15–16 (Tex. App.—Houston [1st

Dist.] Aug. 25, 2020, no pet.) (mem. op.); Puppala, 564 S.W.3d at 198–202; Owens,

478 S.W.3d at 187–91. An expert may show causation by explaining a chain of

events that begins with the defendant physician’s negligence and ends in injury to

the plaintiff. See Whitmire, 2020 WL 4983321, at *16; Owens, 478 S.W.3d at 189;

McKellar v. Cervantes, 367 S.W.3d 478, 485–86 (Tex. App.—Texarkana 2012, no

pet.); see also Christus Spohn Health Sys. Corp. v. Hinojosa, No. 04-16-00288-CV,

2016 WL 7383819, at *6 (Tex. App.—San Antonio Dec. 21, 2016, no pet.) (mem.

op.) (expert report specified signs and symptoms that should have prompted

defendant physician to admit patient to hospital for treatment; expert then opined

that if patient had been admitted at least two things would have occurred). Here, Dr.

Paine’s expert reports explain the connection between Dr. Kuhn’s alleged negligent

conduct and the claimed injury, harm, or damages. See THN Physicians Ass’n v.

Tiscareno, 495 S.W.3d 599, 614 (Tex. App.—El Paso 2016, no pet.) (“[T]he expert

must at a minimum explain the connection between [the physician’s] conduct and

the injury to the patient.”); see also Whitmire, 2020 WL 4983321, at *16; Owens,

478 S.W.3d at 189 (expert may show causation by explaining chain of events that

begins with defendant physician’s negligence and ends in injury to plaintiff);

McKellar, 367 S.W.3d at 485–86.

31 Finally, we note that Dr. Kuhn asserts that Dr. Paine’s expert reports “do not

address whether treating conservatively, by treating the symptoms of [the] infection

without treating the source, might have reasonably ke[pt] . . . Sam’s condition from

worsening.” But an expert report need not address all hypothetical scenarios. See

Whitmire, 2020 WL 4983321, at *16; VHS San Antonio Partners LLC v. Garcia,

No. 04-09-00297-CV, 2009 WL 3223178, at *6 (Tex. App.—San Antonio Oct. 7.

2009, pet. denied) (mem. op.). And although the law requires an expert report to

link the expert’s conclusion on causation with the alleged breach of the standard of

care, nothing requires the expert report to address or rule out all other possible

scenarios. See Whitmire, 2020 WL 4983321, at *16; Garcia, 2009 WL 3223178, at

*6; see also Owens, 478 S.W.3d at 187 (report “need not anticipate or rebut all

possible defensive theories that may ultimately be presented” in case). The

correctness of Dr. Paine’s opinion is not at issue in this stage of the litigation. See

Potts, 392 S.W.3d at 632; Whitmire, 2020 WL 4983321, at *16.

We conclude that the trial court could have reasonably determined that Dr.

Paine’s expert reports represent an “objective good faith effort” to inform Dr. Kuhn

of the causal relationship between Dr. Kuhn’s purported failure to provide care in

accord with the appliable standard of care and the claimed injury, harm, or damages.

See Zamarripa, 526 S.W.3d at 460 (as long as report makes “a good-faith effort to

explain, factually, how proximate cause is going to be proven,” it satisfies TMLA’s

32 threshold requirement); Kelly v. Rendon, 255 S.W.3d 665, 679 (Tex. App.—Houston

[14th Dist.] 2008, no pet.) (emphasizing expert reports “are simply a preliminary

method to show a plaintiff has a viable cause of action that is not frivolous or without

expert support”). Thus, we hold that the trial court did not err in overruling Dr.

Kuhn’s objections and denying Dr. Kuhn’s motion to dismiss Sam’s health care

liability claim against him on the ground that Dr. Paine’s expert reports do not

adequately address causation as to Dr. Kuhn.

We overrule the remaining portion of Dr. Kuhn’s sole issue.19

C. Vicarious Liability Related to Women’s Healthcare

In its sole issue, Women’s Healthcare argues that the trial court erred in

overruling its objections to Dr. Paine’s expert reports and denying its motion to

dismiss Sam’s vicarious liability health care liability claim against it because Dr.

Paine’s expert reports do not adequately address the standard of care and causation

as it relates to Dr. Kuhn.

In her petition, Sam alleges that Women’s Healthcare is vicariously liable for

the conduct of Dr. Kuhn. Generally, when a plaintiff brings health care liability

claims against more than one defendant physician or health care provider, the expert

report must set forth the standard of care and breach of the standard of care as to

19 Due to our disposition, we need not address Dr. Kuhn’s request for attorney’s fees and costs. See TEX. R. APP. P. 47.1.

33 each defendant and explain the causal relationship between each defendant’s

individual acts or omissions and the claimed injury. See TEX. CIV. PRAC. & REM.

CODE ANN. § 74.351(a), (r)(6); Seton Family of Hosps. v. White, 593 S.W.3d 787,

792 (Tex. App.—Austin 2019, pet. denied); Pharmacy Healthcare Sols., Ltd. v.

Pena, 530 S.W.3d 169, 175 (Tex. App.—Eastland 2015, pet. denied). Yet, when a

plaintiff brings a health care liability claim based on a vicarious liability theory

against a defendant health care provider, an expert report that adequately implicates

the actions of that party’s agent or employee is sufficient as to the defendant health

care provider. Gardner v. U.S. Imaging, Inc., 274 S.W.3d 669, 671–72 (Tex. 2008);

Seton Family, 593 S.W.3d at 792; see also Owens, 478 S.W.3d at 191 (“[W]hen a

health care liability claim involves a vicarious liability theory, either alone or in

combination with other theories, an expert report that meets the statutory standards

as to the employee is sufficient to implicate the employer’s conduct under the

vicarious theory.” (alteration in original) (internal quotations omitted)). In other

words, 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

an agent or employee is sufficient to implicate the health care provider’s conduct.

Potts, 392 S.W.3d at 632; Seton Family, 593 S.W.3d at 792; see also Owens, 478

S.W.3d at 191–92 (expert report that is sufficient as to employee or agent, on whose

34 alleged negligent conduct vicarious liability claim was based, is also sufficient as to

employer health care provider).

Having held that the trial court did not err in overruling Dr. Kuhn’s objections

to Dr. Paine’s expert reports and denying Dr. Kuhn’s motion to dismiss Sam’s direct

liability health care liability claim against him because Dr. Paine’s expert reports

meet the requirements of chapter 74 related to Dr. Kuhn, we hold that Sam may also

proceed on the vicarious liability health care liability claim against Women’s

Healthcare which is based on the conduct of Dr. Kuhn. See Potts, 392 S.W.3d at

632; Gardner, 274 S.W.3d at 671–72; Owens, 478 S.W.3d at 191–92; see also Ctr.

for Neurological Disorders, P.A. v. George, 261 S.W.3d 285, 295 (Tex. App.—Fort

Worth 2008, pet. denied) (“[I]f the expert report is sufficient as to the claims against

Dr. Ward, and we have held that it is[,] . . . then the report is sufficient as to [the]

claims against CND that are based on Dr. Ward’s alleged negligence.”).

We overrule Women’s Healthcare’s sole issue.

Dr. James and Metropolitan Houston

In his sole issue, Dr. James argues that the trial court erred in overruling his

objections to Dr. Paine’s expert reports and denying his motion to dismiss Sam’s

health care liability claim against him because Dr. Paine is not qualified to offer an

opinion on the standard of care and causation related to Dr. James and Dr. Paine’s

expert reports do not adequately address causation as it relates to Dr. James. In its

35 sole issue, Metropolitan Houston argues that the trial court erred in overruling its

objections to Dr. Paine’s expert reports and denying its motion to dismiss Sam’s

vicarious liability health care liability claim against it because Dr. Paine is not

qualified to offer an opinion on the standard of care and causation related to Dr.

James and Dr. Paine’s expert reports do not adequately address causation as it relates

to Dr. James.

A. Dr. Paine’s Qualifications Related to Standard of Care

In a portion of his sole issue, Dr. James argues that Dr. Paine is not qualified

to offer an opinion on the standard of care related to Dr. James because Dr. Paine’s

expert reports and CV do not “reflect that he is qualified . . . to opine on the standard

of care for a consulting surgeon such as Dr. James with respect to surgical

post-operative management of a patient who has undergone a hysterectomy with a

bowel perforation.” Dr. James further asserts that his practice area is general

surgery, while Dr. Paine’s practice area is obstetrics and gynecology, and “the fact

that Dr. Paine is familiar with post-operative care for hysterectomy patients does not

mean that he is knowledgeable about the standard of care applicable to a general

surgeon . . . who is consulted in the circumstances presented in this case.”

An expert report by a person not qualified to testify does not constitute a

good-faith effort to comply with the TMLA’s definition of an expert report and

warrants dismissal. See Mettauer, 326 S.W.3d at 693; Hendrick Med. Ctr. v.

36 Conger, 298 S.W.3d 784, 789 (Tex. App.—Eastland 2009, no pet.) (where expert

not qualified to offer opinion, expert report is rendered deficient); see also TEX. CIV.

PRAC. & REM. CODE ANN. § 74.351(l), (r)(6). Whether an expert witness is qualified

to offer an expert opinion lies within the sound discretion of the trial court. Cornejo,

446 S.W.3d at 121. The expert’s qualifications must appear in the four corners of

the expert report or in the expert’s accompanying CV. Puppala, 564 S.W.3d at 197,

202; see also Cornejo, 446 S.W.3d at 121.

In a suit involving a health care liability claim against a physician, a person is

qualified as an expert on the issue of whether the physician departed from the

accepted standard of care, if the expert is a physician who:

1. is practicing medicine[20] at the time such testimony is given or was practicing medicine at the time the claim arose;

2. has knowledge of accepted standards of medical care for the diagnosis, care, or treatment of the illness, injury, or condition involved in the claim; and

3. is qualified on the basis of training or experience to offer an expert opinion regarding those accepted standards of medical care.

20 “[P]racticing medicine . . . includes, but is not limited to, training residents or students at an accredited school of medicine or osteopathy or serving as a consulting physician to other physicians who provided direct patient care, upon the request of such other physicians.” TEX. CIV. PRAC. & REM. CODE ANN. § 74.401(b) (internal quotations omitted).

37 TEX. CIV. PRAC. & REM. CODE ANN. § 74.401(a); see also id. § 74.351(r)(5)(A)

(“[e]xpert” means “with respect to a person giving opinion testimony regarding

whether a physician departed from accepted standards of medical care, an expert

qualified to testify under the requirements of [s]ection 74.401” (internal quotations

omitted); Methodist Hosp. v. Addison, 574 S.W.3d 490, 503 (Tex. App.—Houston

[14th Dist.] 2018, no pet.). In determining whether a witness is “qualified on the

basis of training or experience” to offer an expert opinion about the applicable

standard of medical care,

the court shall consider whether, at the time the claim arose or at the time the testimony is given, the witness: (1) is board certified or has other substantial training or experience in an area of medical practice relevant to the claim; and (2) is actively practicing medicine in rendering medical care services relevant to the claim.

TEX. CIV. PRAC. & REM. CODE ANN. § 74.401(c).

A physician serving as an expert need not be a specialist in the particular area

of the profession for which his testimony is offered. See Owens, 478 S.W.3d at 185;

Rittger v. Danos, 332 S.W.3d 550, 558–59 (Tex. App.—Houston [1st Dist.] 2009,

no pet.); see also Bailey v. Amaya Clinic Inc., 402 S.W.3d 359, 363–64 (Tex. App.—

Houston [14th Dist.] 2013, no pet.) (orthopedic surgeon qualified to opine about

standard of care applicable to dermatologist who was treating plaintiff for weight

loss with liposuction); Blan v. Ali, 7 S.W.3d 741, 745–46 (Tex. App.—Houston

[14th Dist.] 1999, no pet.) (“Despite the fact that we live in a world of niche medical

38 practices and multilayer specializations, there are certain standards of medical care

that apply to multiple schools of practice and any medical [physician]. To

categorically disqualify a physician from testifying as to the standard of care solely

because he is from a different school of practice than the [physicians] charged with

malpractice ignores the criteria set out in [TMLA] and [Texas] Rule [of Evidence]

702.”). The plain language of the TMLA does not focus on the physician’s area of

expertise, but on the particular condition or circumstances involved in the plaintiff’s

claim. See TEX. CIV. PRAC. & REM. CODE ANN. § 74.401(a)(2); Rittger, 332 S.W.3d

at 558; see also Lee v. Le, No. 01-18-00309-CV, 2018 WL 4923938, at *4 (Tex.

App.—Houston [1st Dist.] Oct. 11, 2018, no pet.) (mem. op.) (“[T]he applicable

standard of care and an expert’s ability to opine on it are dictated by the medical

condition involved in the claim and the expert’s familiarity and experience with that

condition.” (internal quotations omitted)). The critical inquiry is whether the

expert’s expertise goes to the very matter on which he is to give an opinion. See

Broders, 924 S.W.2d at 152–53; Mangin, 480 S.W.3d at 707. It is Sam’s burden to

show that Dr. Paine is qualified to opine on the applicable standard of care as to Dr.

James. See Rittger, 332 S.W.3d at 558–59; Mem’l Hermann Healthcare Sys. v.

Burrell, 230 S.W.3d 755, 757, 762 (Tex. App.—Houston [14th Dist.] 2007, no pet.).

Dr. Paine’s expert reports and CV show that he is a licensed physician and is

board certified in obstetrics and gynecology. He has been practicing medicine in the

39 field of obstetrics and gynecology for thirty-five years. Currently, he is a member

of the teaching faculty as an associate professor in the department of obstetrics and

gynecology at the University of Texas Health Science Center in San Antonio. In his

position as an associate professor, he trains residents and students in obstetrics and

gynecology. He is actively practicing medicine in the field of obstetrics and

gynecology, and he was practicing medicine at the time Sam’s claims arose. See

TEX. CIV. PRAC. & REM. CODE ANN. § 74.401.

Dr. Paine has extensive experience in the field of obstetrics and gynecology,

and he has performed thousands of hysterectomies during his career. He has

knowledge of the accepted standards of medical and surgical care required for

patients needing hysterectomies. This includes knowledge of the standards of

pre-operative, inter-operative, and post-operative care required for patients who

When Dr. Paine treats patients requiring hysterectomies, he provides

pre-operative, inter-operative, and post-operative care to his patients. Post-operative

care includes “following [a] patient after [a] surgery is complete[] to diagnose and

treat any complications that may arise from the surgical procedure.” This case

involves the purported failure of appellants, including Dr. James, to appropriately

care for and treat Sam after a hysterectomy, and Dr. Paine is familiar with the type

of post-operative care a patient, such as Sam, should receive and how post-operative

40 complications, like those experienced by Sam, should be managed and treated. See

Broders, 924 S.W.2d at 152–53 (focus is on “whether the expert’s expertise goes to

the very matter on which he . . . is to give an opinion”); Baylor Univ. Med. Ctr. v.

Biggs, 237 S.W.3d 909, 916 (Tex. App.—Dallas 2007, pet. denied) (“[T]he focus is

on the fit between the subject matter at issue and the expert’s familiarity with it, not

on a comparison of the expert’s title or specialty with that of the defendant . . . .”

(internal quotations omitted)); see also Owens, 478 S.W.3d at 186–87 (specific issue

in case was whether defendant physicians failed to timely and appropriately

diagnose and treat plaintiff’s condition and expert report showed that expert had

experience treating patients with condition suffered by plaintiff and he was familiar

with the standard of care applicable to physicians who care for patients with same

condition with which plaintiff presented).

We note that as to the standard of care and breach of the of the standard of

care for Dr. James, Dr. Paine, in his expert reports, states that bowel injuries, like a

bowel perforation, are a well-known complication of a hysterectomy. On average

they occur in one out of every 700 cases. But if a hysterectomy is performed when

adhesions are present and when an extensive bowel dissection is also required, the

rate of bowel injuries increases. A bowel perforation should be diagnosed three days

after a hysterectomy.

41 According to Dr. Paine, Dr. James was the general surgeon

“following . . . Sam[] post-hysterectomy.” Because Dr. James was the general

surgeon “following” Sam after her surgery, once Sam’s bowel perforation was

diagnosed on the sixth day after her surgery, the standard of care required Dr. James

to act upon the diagnosis by surgically repairing the bowel perforation immediately

or at least recommending surgical repair of the bowel perforation. But Dr. James

did not do so, and instead joined in the “conservative” treatment plan with Dr. Kuhn.

(Internal quotations omitted.) There is no precedent for “conservative management”

of a bowel perforation when there is evidence of bowel contents and gas free in the

peritoneal cavity. (Internal quotations omitted.) By failing to recommend surgical

repair of Sam’s bowel perforation and by failing to surgically repair the bowel

perforation immediately, Dr. James breached the standard of care. Further, Dr.

James breached the standard of care by waiting until the tenth day after Sam’s initial

surgery to return Sam to surgery to repair the bowel perforation because it should

Here, we conclude that Sam has met her burden of establishing that Dr. Paine

is qualified to offer an opinion on the standard of care related to Dr. James. See TEX.

CIV. PRAC. & REM. CODE ANN. § 74.401(a) (expert meets requirements of Texas

Civil Practice and Remedies Code [section] 74.401 if he (1) is practicing medicine,

(2) has knowledge of accepted standard of care for diagnosis, care, or treatment of

42 illness, injury, or condition involved in claim, and (3) is qualified on basis of training

or experience to offer expert opinion about accepted standard of care); Lee, 2018

WL 4923938, at *4 (“[T]he applicable standard of care and an expert’s ability to

opine on it are dictated by the medical condition involved in the claim and the

expert’s familiarity and experience with that condition.” (internal quotations

omitted)). The Texas Supreme Court has cautioned reviewing courts from drawing

expert qualifications too narrowly, as Dr. James has requested us to do in this case,

and we reemphasize that a proffered expert need not practice in the same specialty

as the defendant physician to qualify as an expert in the case. See Larson v.

Downing, 197 S.W.3d 303, 305 (Tex. 2006); Roberts v. Williamson, 111 S.W.3d

113, 122 (Tex. 2003); see also Owens, 478 S.W.2d at 186; Blan, 7 S.W.3d at 745

(general surgeon qualified to testify about standard of care for post-operative

procedures performed by gynecologist because post-operative procedures are

common to both fields).

We hold that the trial court did not err in overruling Dr. James’s objections

and denying Dr. James’s motion to dismiss Sam’s health care liability claim against

him on the ground that Dr. Paine is not qualified to offer an opinion on the standard

of care related to Dr. James.

We overrule this portion of Dr. James’s sole issue.

43 B. Dr. Paine’s Qualifications Related to Causation

In another portion of his sole issue, Dr. James argues that Dr. Paine is not

qualified to offer an opinion on causation related to Dr. James because Dr. Paine’s

expert reports and CV do not show that Dr. Paine has “experience in handling

patients with peritonitis and sepsis secondary to a bowel perforation” or that he has

the qualifications “to opine on the cause of [Sam’s] alleged damages” and the

ramifications of the “alleged four[-]day delay in [the] surgical repair of [Sam’s]

bowel perforation.”

To be qualified to opine on the causal relationship between a defendant

physician’s alleged failure to meet an applicable standard of care and the plaintiff’s

claimed injury, harm, or damages, the author of an expert report must be a physician

who is qualified to render opinions on such causal relationships under the Texas

Rules of Evidence. See TEX. CIV. PRAC. & REM. CODE ANN. § 74.403(a); see id.

§ 74.351(r)(5)(C) (“[e]xpert” means “with respect to a person giving opinion

testimony about the causal relationship between the injury, harm, or damages

claimed and the alleged departure from the applicable standard of care in any health

care liability claim, a physician who is otherwise qualified to render opinions on

such causal relationship under the Texas Rules of Evidence” (internal quotations

omitted)); Cornejo, 446 S.W.3d at 120.

44 An expert witness may be qualified on the basis of knowledge, skill,

experience, training, or education to testify on scientific, technical, or other

specialized subjects if the testimony would “assist the trier of fact” in understanding

the evidence or determining a fact issue. Cornejo, 446 S.W.3d at 121 (internal

quotations omitted); see TEX. R. EVID. 702. Thus, a plaintiff must show that her

expert has “knowledge, skill, experience, training, or education” about the specific

issue before the court that would qualify the expert to give an opinion on that

particular subject. Broders, 924 S.W.2d at 153–54 (internal quotations omitted); see

also Cornejo, 446 S.W.3d at 121.

Not every licensed physician is qualified to testify on every medical question.

See Broders, 942 S.W.2d at 152–53; Cornejo, 446 S.W.3d at 121. Yet, a physician

need not practice in the particular field about which he is testifying so long as he can

demonstrate that he has knowledge, skill, experience, training, or education about

the specific issue before the court that would qualify him to give an opinion on that

subject. Cornejo, 446 S.W.3d at 121. Simply put, what is required is that the

physician demonstrate that he is qualified to opine on the specific issue before the

court. Puppala, 564 S.W.3d at 202.

Here it is asserted that Dr. James was the general surgeon

“following . . . Sam[] post-hysterectomy.” Because Dr. James was the general

surgeon “following” Sam after her surgery, once Sam’s bowel perforation was

45 diagnosed on the sixth day after her surgery, Dr. James should have acted upon the

diagnosis by surgically repairing the bowel perforation immediately or at least

recommending surgical repair of the bowel perforation. Instead, Dr. James joined

in the “conservative” treatment plan with Dr. Kuhn, although there is no precedent

for “conservative management” of a bowel perforation when there is evidence of

bowel contents and gas free in the peritoneal cavity. (Internal quotations omitted.)

By failing to recommend surgical repair of Sam’s bowel perforation and by failing

to surgically repair the bowel perforation immediately, Dr. James breached the

standard of care. Dr. James also breached the standard of care by waiting until the

tenth day after Sam’s initial surgery to return Sam to surgery to repair the bowel

perforation because it should have been repaired immediately upon its diagnosis.

It is also asserted that Dr. James’s breaches of the standard of care caused

Sam’s condition to worsen and endangered her life. A bowel perforation is a surgical

emergency that requires immediate intervention. Immediate exploration, wash out

of the peritoneal cavity, and repair of the bowel perforation is required. Any course

of action other than immediate exploration, wash out, and repair, causes worsening

peritonitis, sepsis, and possible death. Dr. James’s failure to recommend surgical

exploration and repair of Sam’s bowel perforation upon its diagnosis, to not

immediately repair the bowel perforation upon its diagnosis, and to not repair Sam’s

bowel perforation until the tenth day after her initial surgery caused Sam’s condition

46 to deteriorate and allowed for the continued leakage of bowel contents into the

peritoneal cavity. Without a repair of Sam’s bowel perforation, bowel contents

continued to flow into Sam’s peritoneal cavity “with all the bacteria, chemicals[,]

and irritants [that] allow[] [an] infection to grow and worsen.” The bowel leakage

caused severe damage to Sam’s physiology and permanent residual damage, and it

allowed for Sam’s peritonitis and sepsis to grow worse. And because Sam’s

infection was allowed to grow, this led to a more complicated recovery process for

Sam, a longer hospital stay, and long-term damage. Sam could not recover from the

bowel perforation until it was actually repaired.

Further, during the surgery to repair Sam’s bowel perforation, a diverting

ileostomy had to be performed. The ileostomy was required because of a marked

inflammatory reaction to bowel leakage for an extended length of time, i.e., four

days after the bowel-perforation diagnosis and ten days after Sam’s initial surgery.

Had the bowel perforation been repaired at the time it was diagnosed, a colostomy

would have been possible.

Sam has the burden of establishing that Dr. Paine has “knowledge, skill,

experience, training, or education” about whether Dr. James’s breaches of the

standard of care—by failing to recommend surgical exploration and repair of Sam’s

bowel perforation upon its diagnosis, not immediately repairing the bowel

perforation upon its diagnosis, and not repairing Sam’s bowel perforation until the

47 tenth day after Sam’s initial surgery—caused Sam’s claimed injury, harm, or

damages. See Matagorda v. Nursing & Rehab. Ctr., L.L.C. v. Brooks, No.

13-16-00266-CV, 2017 WL 127867, at *6 (Tex. App.—Corpus Christi–Edinburg

Jan. 12, 2017, no pet.) (mem. op.) (internal quotations omitted); Diagnostic

Research Grp. v. Vora, 473 S.W.3d 861, 869–70 (Tex. App.—San Antonio 2015,

no pet.); see also Cornejo, 446 S.W.3d at 121 (plaintiffs required to establish expert

qualified on basis of knowledge, skill, experience, training, or education to offer

opinion concerning causal link between alleged breaches of standard of care and

injuries suffered); Burrell, 230 S.W.3d at 757, 762 (party offering witness as expert

must establish witness is qualified).

In his expert reports, Dr. Paine states that he is a licensed physician and is

board certified in obstetrics and gynecology. He has been practicing in the field of

obstetrics and gynecology for thirty-five years. Currently, he is a member of the

teaching faculty as an associate professor in the department of obstetrics and

gynecology at the University of Texas Health Science Center in San Antonio. In his

position as an associate professor, he trains residents and students in obstetrics and

gynecology.

Dr. Paine is actively practicing medicine in the field of obstetrics and

gynecology, and he was practicing medicine at the time Sam’s claims arose. Dr.

Paine has extensive experience in the field of obstetrics and gynecology, and he, as

48 part of his medical practice, has performed thousands of hysterectomies during his

career. He has knowledge of the accepted standards of medical and surgical care

required for patients needing hysterectomies. This includes knowledge of the

standards of pre-operative, inter-operative, and post-operative care required for

patients who have hysterectomies.

When Dr. Paine treats patients requiring hysterectomies, he provides

pre-operative, inter-operative, and post-operative care to his patients. Post-operative

care includes “following [a] patient after [a] surgery is complete[] to diagnose and

treat any complications that may arise from the surgical procedure.” This case

involves the purported failure of appellants, including Dr. James, to appropriately

care for and treat Sam after a hysterectomy, and Dr. Paine is familiar with the type

of post-operative care a patient, such as Sam, should receive and how post-operative

complications, like those experienced by Sam, should be managed and treated.

We conclude that Dr. Paine’s expert reports and CV demonstrate that he is

qualified to offer an opinion on the causal link between Dr. James’s alleged breaches

while providing post-operative care after Sam’s hysterectomy and Sam’s injuries,

harm, and damages. See Jassin v. Bennett, No. 10-12-00053-CV, 2012 WL

5974020, at *5 (Tex. App.—Waco Nov. 29, 2012, no pet.) (mem. op.) (“We cannot

say that the trial court abused its discretion in . . . finding that Dr. Branch is qualified

to provide an expert report on causation for the complications that allegedly arose

49 from Dr. Jassin’s post-operative care following a sinus surgery that Dr. Branch says

he has performed approximately 200 times, along with providing the follow-up care

for those surgeries.”); Sloman-Moll v. Chavez, No. 04-06-00589-CV, 2007 WL

595134, at *3–4 (Tex. App.—San Antonio Feb. 28, 2007, pet. denied) (mem. op.)

(“It is axiomatic that a physician trained to perform a surgery is also trained to

manage surgical complications.”); Keo v. Vu, 76 S.W.3d 725, 733 (Tex. App.—

Houston [1st Dist.] 2002, pet. denied) (holding physician who regularly performed

surgery on head and neck was qualified to give opinion about issues common to all

surgeries, including treatment of post-operative infections); see also Columbia N.

Hills Hosp. Subsidiary, L.P. v. Alvarez, 382 S.W.3d 619, 630 (Tex. App.—Fort

Worth 2012, pet. denied) (“[A] physician needs only to show how he is qualified to

opine on the cause of the plaintiff’s injury.”).

Further, because we have concluded that that the trial court properly

determined that Dr. Paine is qualified to offer an opinion on the standard of care as

to Dr. James, it would have been reasonable for the trial court to also conclude that

Dr. Paine is qualified to offer an opinion on Dr. James’s failure to meet the standard

of care and the resulting harm. See Healy v. Mowat-Cudd, No. 04-20-00479-CV,

2021 WL 603369, at *2 n.1 (Tex. App.—San Antonio Feb. 17, 2021, no pet.) (mem.

op.); Legend Oaks-S. San Antonio, LLC v. Molina ex rel. Estates of Rocamontes, No.

04-14-00289-CV, 2015 WL 693225, at *5 (Tex. App.—San Antonio Feb. 18, 2015,

50 no pet.) (mem. op.); Jassin, 2012 WL 5974020, at *5; Hillcrest Baptist Med. Ctr. v.

Payne, No. 10-11-00191-CV, 2011 WL 5830469, at *7 (Tex. App.—Waco Nov. 16,

2011, pet. denied) (mem. op.); Whisenant v. Arnett, 339 S.W.3d 920, 927–28 (Tex.

App.—Dallas 2011, no pet.).

We hold that the trial court did not err in overruling Dr. James’s objections

and denying Dr. James’s motion to dismiss Sam’s health care liability claim against

him on the ground that Dr. Paine is not qualified to offer an opinion on causation

related to Dr. James.

C. Causation Related to Dr. James

In the remaining portion of his sole issue, Dr. James argues that Dr. Paine’s

expert reports do not adequately address causation as it relates to him because the

expert reports do not establish a causal link between Dr. James’s conduct and Sam’s

injuries, Dr. Paine’s causation opinion is conclusory and speculative, and “Dr. Paine

fails to establish that ‘but for’ Dr. James’[s] alleged negligence, Sam’s outcome

would have been any different.”

An expert report must provide a “fair summary” of the expert’s opinion about

the causal relationship between the failure of a defendant physician to provide care

in accord with the applicable standard of care and the plaintiff’s claimed injury,

harm, or damages. TEX. CIV. PRAC. & REM. CODE ANN. § 74.351(r)(6); see also

51 Potts, 392 S.W.3d at 630. The expert report must explain how and why the

defendant physician’s breach of the standard of care proximately caused the

plaintiff’s injury. Zamarripa, 526 S.W.3d at 459–60. An expert report need not

marshal all the plaintiff’s proof necessary to establish causation at trial, and it need

not anticipate or rebut all possible defensive theories that may ultimately be

presented to the trial court. Wright, 79 S.W.3d at 52; Cornejo, 446 S.W.3d at 123.

But an expert cannot simply opine that the breach caused the injury. Jelinek, 328

S.W.3d at 539.

(2) foreseeability. McCoy, 554 S.W.3d at 658. A defendant physician’s breach was

a cause-in-fact of the plaintiff’s injury if the breach was a substantial factor in

bringing about the harm, and absent the breach the harm would not have occurred.

Id. Even if the harm would not have occurred absent the defendant physician’s

breach, “the connection between the defendant and the plaintiff’s injuries simply

may be too attenuated” for the breach to qualify as a substantial factor. Allways Auto

Grp., 530 S.W.3d at 149 (internal quotations omitted). A breach is not a substantial

factor if it “does no more than furnish the condition that makes the plaintiff’s injury

possible.” Id. A defendant physician’s breach is a foreseeable cause of the

plaintiff’s injury if a physician of ordinary intelligence would have anticipated the

danger caused by the negligent act or omission. Puppala, 564 S.W.3d at 197.

52 As to standard of care and breach of the standard of care related to Dr. James,

Dr. Paine, in his expert reports, states that bowel injuries, like a bowel perforation,

are a well-known complication of a hysterectomy. On average they occur in one out

of every 700 cases. But if a hysterectomy is performed when adhesions are present

and when an extensive bowel dissection is also required, the rate of bowel injuries

increases.

Because Dr. James was the general surgeon “following . . . Sam[]

post-hysterectomy,” once Sam’s bowel perforation was diagnosed on the sixth day

after surgery, the standard of care required Dr. James to act upon the diagnosis by

surgically repairing the bowel perforation immediately or at least recommending

surgical repair of the bowel perforation. But James did not do so. Instead, he joined

in the “conservative” treatment plan with Dr. Kuhn. (Internal quotations omitted.)

There is no precedent for “conservative management” of a bowel perforation when

there is evidence of bowel contents and gas free in the peritoneal cavity. (Internal

quotations omitted.) By failing to recommend surgical repair of Sam’s bowel

perforation and failing to surgically repair the bowel perforation immediately after

its diagnosis, Dr. James breached the standard of care. Dr. James also breached the

standard of care by waiting until the tenth day after Sam’s initial surgery to return

Sam to surgery to repair the bowel perforation because it should have been repaired

53 As to causation, Dr. Paine, in his expert reports, states that because of the

aforementioned breaches of the standard of care by Dr. James, Sam’s condition

worsened and endangered her life. Dr. Paine explained that a bowel perforation is a

surgical emergency that requires immediate intervention. Immediate exploration,

wash out of the peritoneal cavity, and repair of the bowel perforation is required.

Any course of action other than immediate exploration, wash out, and repair, causes

worsening peritonitis, sepsis, and possible death. According to Dr. Paine, Dr.

James’s failure to recommend surgical exploration and repair of Sam’s bowel

perforation upon its diagnosis, to not surgically repair the bowel perforation

immediately upon its diagnosis, and to not repair Sam’s bowel perforation until the

tenth day after her initial surgery caused Sam’s condition to deteriorate and allowed

for the continued leakage of bowel contents into the peritoneal cavity. Without a

repair of Sam’s bowel perforation, bowel contents continued to flow into Sam’s

peritoneal cavity “with all the bacteria, chemicals[,] and irritants [that] allow[] [an]

infection to grow and worsen.” The bowel leakage caused severe damage to Sam’s

physiology and permanent residual damage. And because the infection was allowed

to grow, this led to a more complicated recovery process for Sam, a longer hospital

stay, and long-term damage. Sam could not recover from the bowel perforation until

it was actually repaired.

54 Further, during the surgery to repair Sam’s bowel perforation, a diverting

ileostomy had to be performed. According to Dr. Paine, the ileostomy was required

because of a marked inflammatory reaction to bowel leakage for an extended length

of time, i.e., four days after the bowel-perforation diagnosis and ten days after Sam’s

initial surgery. Had the bowel perforation been repaired at the time it was diagnosed,

Dr. Paine also explains that peritonitis and sepsis, which are life-threatening

conditions, can arise from a bowel perforation, and in such cases, they will not be

resolved until the bowel perforation is repaired. Here, because of Dr. James’s

breaches of the standard of care, Sam’s peritonitis and sepsis grew worse—which is

what happens when an infection is not properly treated and the source of the

infection is not appropriately and timely addressed. Sam’s condition worsened and

endangered her life.

In determining whether an expert’s causation opinion is conclusory, we must

remain mindful that expert-report challenges are made at an early, pre-discovery

stage in the litigation, not when the merits of the health care liability claim are being

presented to the fact finder to determine liability. Puppala, 564 S.W.3d at 198. To

provide more than a conclusory statement on causation, an expert report must simply

include an “explanation tying the conclusion to the facts” and showing “how and

why the breach caused the injury based on the facts presented.” Jelinek, 328 S.W.3d

55 at 539–40; see also Puppala, 564 S.W.3d at 197. The expert report need only

provide some basis that the defendant physician’s act or omission proximately

caused injury. Owens, 478 S.W.3d at 187–88; see also Palacios, 46 S.W.3d at 879

(explaining “a plaintiff need not present evidence in the report as if it were actually

litigating the merits. . . . [T]he information in the report does not have to meet the

same requirements as the evidence offered in a summary-judgment proceeding or at

Here, Dr. Paine’s causation opinion is in line with those found sufficient in

other health-care-liability cases at this stage of the litigation where experts have

opined that had the defendant physician not breached the standard of care, a proper

diagnosis and medical intervention would have been achieved and the plaintiff’s

injury, harm, or damages would have been avoided. See, e.g., Whitmire, 2020 WL

4983321, at *15–16; Puppala, 564 S.W.3d at 198–202; Owens, 478 S.W.3d at 187–

91. An expert may show causation by explaining a chain of events that begins with

the defendant physician’s negligence and ends in injury to the plaintiff. See

Whitmire, 2020 WL 4983321, at *16; Owens, 478 S.W.3d at 189; McKellar, 367

S.W.3d at 485–86; see also Hinojosa, 2016 WL 7383819, at *6 (expert report

specified signs and symptoms that should have prompted defendant physician to

admit patient to hospital for treatment; expert then opined that if patient had been

admitted at least two things would have occurred). Dr. Paine’s expert reports explain

56 the connection between Dr. James’s alleged negligent conduct and the claimed

injury, harm, or damages. See Tiscareno, 495 S.W.3d at 614 (“[T]he expert must at

a minimum explain the connection between [the physician’s] conduct and the injury

to the patient.”); see also Whitmire, 2020 WL 4983321, at *16; Owens, 478 S.W.3d

at 189 (expert may show causation by explaining chain of events that begins with

defendant physician’s negligence and ends in injury to plaintiff); McKellar, 367

S.W.3d at 485–86.

Finally, we note that Dr. James asserts that Dr. Paine’s expert reports do not

establish that without Dr. James’s purported negligence “Sam’s outcome would have

been any different.” But an expert report need not address all hypothetical scenarios.

See Whitmire, 2020 WL 4983321, at *16; Garcia, 2009 WL 3223178, at *6. And

although the law requires an expert report to link the expert’s conclusion on

causation with the alleged breach of the standard of care, nothing requires the expert

report to address or rule out all other possible scenarios. See Whitmire, 2020 WL

4983321, at *16; Garcia, 2009 WL 3223178, at *6; see also Owens, 478 S.W.3d at

187 (report “need not anticipate or rebut all possible defensive theories that may

ultimately be presented” in case). The correctness of Dr. Paine’s opinion is not at

issue in this stage of the litigation. See Potts, 392 S.W.3d at 632; Whitmire, 2020

WL 4983321, at *16.

57 We conclude that the trial court could have reasonably determined that Dr.

Paine’s expert reports represent an “objective good faith effort” to inform Dr. James

of the causal relationship between Dr. James’s purported failure to provide care in

accord with the appliable standard of care and the claimed injury, harm, or damages.

See Zamarripa, 526 S.W.3d at 460 (as long as report makes “a good-faith effort to

explain, factually, how proximate cause is going to be proven,” it satisfies TMLA’s

threshold requirement); Kelly, 255 S.W.3d at 679 (emphasizing expert reports “are

simply a preliminary method to show a plaintiff has a viable cause of action that is

not frivolous or without expert support”). Thus, we hold that the trial court did not

err in overruling Dr. James’s objections and denying Dr. James’s motion to dismiss

Sam’s health care liability claim against him on the ground that Dr. Paine’s expert

reports do not adequately address causation as to Dr. James.

We overrule the remaining portion of Dr. James’s sole issue.21

D. Vicarious Liability Related to Metropolitan Houston

In its sole issue, Metropolitan Houston argues that the trial court erred in

overruling its objections to Dr. Paine’s expert reports and denying its motion to

dismiss Sam’s vicarious liability health care liability claim against it because Dr.

Paine is not qualified to offer an opinion on the standard of care and causation related

21 Due to our disposition, we need not address Dr. James’s request for attorney’s fees and costs. See TEX. R. APP. P. 47.1.

58 to Dr. James and Dr. Paine’s expert reports do not adequately address causation as

it relates to Dr. James.

In her petition, Sam alleges that Metropolitan Houston is vicariously liable for

the conduct of Dr. James. Generally, when a plaintiff brings health care liability

claims against more than one defendant physician or health care provider, the expert

report must set forth the standard of care and breach of the standard of care as to

each defendant and explain the causal relationship between each defendant’s

individual acts or omissions and the claimed injury. See TEX. CIV. PRAC. & REM.

CODE ANN. § 74.351(a), (r)(6); Seton Family, 593 S.W.3d at 792; Pena, 530 S.W.3d

at 175. Yet, when a plaintiff brings a health care liability claim based on a vicarious

liability theory against a defendant health care provider, an expert report that

adequately implicates the actions of that party’s agent or employee is sufficient as

to the defendant health care provider. Gardner, 274 S.W.3d at 671–72; Seton

Family, 593 S.W.3d at 792; see also Owens, 478 S.W.3d at 191 (“[W]hen a health

care liability claim involves a vicarious liability theory, either alone or in

combination with other theories, an expert report that meets the statutory standards

as to the employee is sufficient to implicate the employer’s conduct under the

vicarious theory.” (alteration in original) (internal quotations omitted)). In other

words, 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

59 an agent or employee is sufficient to implicate the health care provider’s conduct.

Potts, 392 S.W.3d at 632; Seton Family, 593 S.W.3d at 792; see also Owens, 478

S.W.3d at 191–92 (expert report that is sufficient as to employee or agent, whose

alleged negligent conduct vicarious liability claim was based, is also sufficient as to

Having held that the trial court did not err in overruling Dr. James’s objections

to Dr. Paine’s expert reports and denying Dr. James’s motion to dismiss Sam’s direct

liability health care liability claim against him because Dr. Paine’s expert reports

meet the requirements of chapter 74 related to Dr. James, we hold that Sam may also

proceed on the vicarious liability health care liability claim against Metropolitan

Houston which is based on the conduct of Dr. James. See Potts, 392 S.W.3d at 632;

Gardner, 274 S.W.3d at 671–72; Owens, 478 S.W.3d at 191–92; see also George,

261 S.W.3d at 295 (“[I]f the expert report is sufficient as to the claims against Dr.

Ward, and we have held that it is[,] . . . then the report is sufficient as to [the] claims

against CND that are based on Dr. Ward’s alleged negligence.”).

We overrule Metropolitan Houston’s sole issue.22

22 Due to our disposition, we need not address Metropolitan Houston’s request for attorney’s fees and costs. See TEX. R. APP. P. 47.1.

60 Dr. Morales, West Houston Radiology, and Radiology Partners

In his sole issue, Dr. Morales argues that the trial court erred in overruling his

objections to Dr. Paine’s expert reports and denying his motion to dismiss Sam’s

health care liability claim against him because Dr. Paine is not qualified to offer an

opinion on the standard of care and causation related to Dr. Morales and Dr. Paine’s

expert reports do not adequately address causation as it relates to Dr. Morales. In

their sole issues, West Houston Radiology and Radiology Partners argue that the

trial court erred in overruling their objections to Dr. Paine’s expert reports and

denying their motions to dismiss Sam’s vicarious liability health care liability claim

against them because Dr. Paine is not qualified to offer an opinion on the standard

of care and causation related to Dr. Morales and Dr. Paine’s expert reports do not

adequately address causation as it relates to Dr. Morales.

A. Preservation

In portions of their sole issues, Dr. Morales, West Houston Radiology, and

Radiology Partners argue that the trial court erred in overruling their objections to

Dr. Paine’s expert reports and in denying their motions to dismiss Sam’s health care

liability claims against them because Dr. Paine is not qualified to offer an opinion

on the standard of care related to Dr. Morales and Dr. Paine’s expert reports do not

61 To preserve a complaint for appellate review, the record must show that the

complaint was made to the trial court by a timely request, objection, or motion and

the trial court either ruled on the party’s request, objection, or motion, or refused to

rule, and the party objected to that refusal. TEX. R. APP. P. 33.1(a). If a party fails

to do this, error is not preserved, and the complaint is waived. Bushell v. Dean, 803

S.W.2d 711, 712 (Tex. 1991); see also Humble Surgical Hosp., LLC v. Davis, 542

S.W.3d 12, 21 (Tex. App.—Houston [14th Dist.] 2017, pet. denied) (“Rule 33.1

requires the appealing party to adequately raise issues before the trial court to give

the trial court notice of [the party’s] complaint.”).

Texas Civil Practice and Remedies Code section 74.351(a) states, in pertinent

part, that a defendant physician or health care provider “whose conduct is implicated

in a[n] [expert] report must file and serve any objection to the sufficiency of the

report not later than the 21st day after the date the report is served or the 21st day

after the date the defendant’s answer is filed” and the failure to do so waives the

defendant’s objections. See TEX. CIV. PRAC. & REM. CODE ANN. § 74.351(a). In the

trial court, Dr. Morales, West Houston Radiology, and Radiology Partners timely

objected to Dr. Paine’s expert reports and requested that Sam’s health care liability

claims against them be dismissed. In doing so, they only objected that Dr. Paine is

not qualified to offer an opinion on causation related to Dr. Morales. Dr. Morales,

West Houston Radiology, and Radiology Partners did not assert in their objections

62 and motions to dismiss that Dr. Paine is not qualified to offer an opinion on the

standard of care related to Dr. Morales or that Dr. Paine’s expert reports do not

Because Dr. Morales, West Houston Radiology, and Radiology Partners did

not raise in the trial court their complaints that Dr. Paine is not qualified to offer an

opinion on the standard of care and that Dr. Paine’s expert reports do not adequately

address causation, we hold that they have not preserved those complaints for our

review. See id.; TEX. R. APP. P. 33.1(a); Armenta v. Jones, No. 01-17-00439-CV,

2018 WL 1095388, at *2, *7 (Tex. App.—Houston [1st Dist.] Mar. 1, 2018, no pet.)

(mem. op.) (where defendant physician did not object to expert report “on the basis

of inadequacy of the report as to causation,” defendant’s complaint about causation

waived because it was not raised in trial court); Arnett, 339 S.W.3d at 925–26

(defendant physician’s complaint that expert report did not sufficiently address

causation because it did not rule out potential causes of wound infection and pain

not preserved when it was raised for first time on appeal); Williams v. Mora, 264

S.W.3d 888, 890–91 (Tex. App.—Waco 2008, no pet.) (defendant physician’s only

timely objection to expert report was that two statements were speculative; all other

complaints about expert report that were not raised in trial court were waived,

including complaints raised for the first time on appeal). We address the remaining

63 portions of the issues raised by Dr. Morales, West Houston Radiology, and

Radiology Partners that are preserved for our review.

B. Dr. Paine’s Qualifications to Opine on Causation

In the remaining portion of his sole issue, Dr. Morales argues that Dr. Paine

is not qualified to offer an opinion on causation related to Dr. Morales because Dr.

Paine “does not address his experience in caring for patients with peritonitis and

sepsis secondary to a bowel perforation” and Dr. Paine’s expert reports and CV “do

not reflect qualifications allowing him to opine on the cause of [Sam’s] alleged

damages” or the ramifications of the “alleged four[-]day delay in [the] surgical repair

of [Sam’s] bowel perforation.”

To be qualified to opine on the causal relationship between a defendant

physician’s alleged failure to meet an applicable standard of care and the plaintiff’s

claimed injury, harm, or damages, the author of an expert report must be a physician

who is qualified to render opinions on such causal relationships under the Texas

Rules of Evidence. See TEX. CIV. PRAC. & REM. CODE ANN. § 74.403(a); see id.

§ 74.351(r)(5)(C) (“[e]xpert” means “with respect to a person giving opinion

testimony about the causal relationship between the injury, harm, or damages

claimed and the alleged departure from the applicable standard of care in any health

care liability claim, a physician who is otherwise qualified to render opinions on

64 such causal relationship under the Texas Rules of Evidence” (internal quotations

An expert witness may be qualified on the basis of knowledge, skill,

experience, training, or education to testify on scientific, technical, or other

specialized subjects if the testimony would “assist the trier of fact” in understanding

the evidence or determining a fact issue. Cornejo, 446 S.W.3d at 121 (internal

quotations omitted); see TEX. R. EVID. 702. Thus, a plaintiff must show that her

expert has “knowledge, skill, experience, training, or education” about the specific

issue before the court that would qualify the expert to give an opinion on that

particular subject. Broders, 924 S.W.2d at 153–54 (internal quotations omitted); see

Not every licensed physician is qualified to testify on every medical question.

See Broders, 942 S.W.2d at 152–53; Cornejo, 446 S.W.3d at 121. Yet, a physician

need not practice in the particular field about which he is testifying so long as he can

demonstrate that he has knowledge, skill, experience, training, or education about

the specific issue before the court that would qualify him to give an opinion on that

subject. Cornejo, 446 S.W.3d at 121. Simply put, what is required is that the

physician demonstrate that he is qualified to opine on the specific issue before the

65 Here, it is asserted that Dr. Morales “drain[ed] the peritoneal cavity” after Sam

was diagnosed with a bowel perforation on the sixth day after her initial surgery.

Yet, there is no precedent for “conservative management” of a bowel perforation

when there is evidence of bowel contents and gas free in the peritoneal cavity.

(Internal quotations omitted.) Based on Sam’s diagnosis of a bowel perforation on

the sixth day after her surgery, Dr. Morales should have recommended immediate

surgical exploration and repair of the bowel perforation. Dr. Morales did not do this,

and thus, breached the standard of care.

It is also asserted that Dr. Morales’s breach of the standard of care caused

Sam’s condition to worsen and endangered her life. A bowel perforation is a surgical

emergency that requires immediate intervention. Immediate exploration, wash out

of the peritoneal cavity, and repair of the bowel perforation is required. Any course

of action other than immediate exploration, wash out, and repair, causes worsening

peritonitis, sepsis, and possible death. Dr. Morales’s failure to recommend surgical

exploration and repair of Sam’s bowel perforation upon its diagnosis caused Sam’s

condition to deteriorate and allowed for the continued leakage of bowel contents into

the peritoneal cavity. Without a repair of Sam’s bowel perforation, bowel contents

continued to flow into Sam’s peritoneal cavity “with all the bacteria, chemicals[,]

and irritants [that] allow[] [an] infection to grow and worsen.” The bowel leakage

caused severe damage to Sam’s physiology and permanent residual damage, and it

66 allowed for Sam’s peritonitis and sepsis to grow worse. And because Sam’s

infection was allowed to grow, this led to a more complicated recovery process for

Sam, a longer hospital stay, and long-term damage. Sam could not recover from the

Further, during the surgery to repair Sam’s bowel perforation, a diverting

ileostomy had to be performed. The ileostomy was required because of the marked

inflammatory reaction to bowel leakage for an extended length of time, i.e., four

days after the bowel-perforation diagnosis and ten days after Sam’s initial surgery.

Had the bowel perforation been repaired at the time it was diagnosed, a colostomy

Sam has the burden of establishing that Dr. Paine has “knowledge, skill,

experience, training, or education” about whether Dr. Morales’s breach of the

standard of care—by failing to recommend immediate surgical exploration and

repair of the bowel perforation upon its diagnosis on the sixth day after Sam’s

surgery—caused Sam’s claimed injury, harm, or damages. See Brooks, 2017 WL

127867, at *6 (internal quotations omitted); Vora, 473 S.W.3d at 869–70; see also

Cornejo, 446 S.W.3d at 121 (plaintiffs required to establish expert qualified on basis

of knowledge, skill, experience, training, or education to offer opinion concerning

causal link between alleged breaches of standard of care and injuries suffered);

67 Burrell, 230 S.W.3d at 757, 762 (party offering witness as expert must establish

witness is qualified).

In his expert reports, Dr. Paine states that he is a licensed physician and is

board certified in obstetrics and gynecology. He has been practicing in the field of

obstetrics and gynecology for thirty-five years. Currently, he is a member of the

teaching faculty as an associate professor in the department of obstetrics and

gynecology at the University of Texas Health Science Center in San Antonio. In his

position as an associate professor, he trains residents and students in obstetrics and

gynecology,

Dr. Paine is actively practicing medicine in the field of obstetrics and

gynecology, and he was practicing medicine at the time Sam’s claims arose. Dr.

Paine has extensive experience in the field of obstetrics and gynecology, and he, as

part of his medical practice, has performed thousands of hysterectomies during his

career. He has knowledge of the accepted standards of medical and surgical care

required for patients needing hysterectomies. This includes knowledge of the

standards of pre-operative, inter-operative, and post-operative care required for

When Dr. Paine treats patients requiring hysterectomies, he provides

pre-operative, inter-operative, and post-operative care to his patients. Post-operative

care includes “following [a] patient after [a] surgery is complete[] to diagnose and

68 treat any complications that may arise from the surgical procedure.” This case

involves the purported failure of appellants, including Dr. Morales, to appropriately

care for and treat Sam after a hysterectomy, and Dr. Paine is familiar with the type

of post-operative care a patient, such as Sam, should receive and how post-operative

complications, like those experienced by Sam, should be managed and treated.

We conclude that Dr. Paine’s expert reports and CV demonstrate that he is

qualified to offer an opinion on the causal link between Dr. Morales’s alleged breach

while providing post-operative care after Sam’s hysterectomy and Sam’s injuries,

harm, and damages. See Jassin, 2012 WL 5974020, at *5 (“We cannot say that the

trial court abused its discretion in . . . finding that Dr. Branch is qualified to provide

an expert report on causation for the complications that allegedly arose from Dr.

Jassin’s post-operative care following a sinus surgery that Dr. Branch says he has

performed approximately 200 times, along with providing the follow-up care for

those surgeries.”); Chavez, 2007 WL 595134, at *3–4 (”It is axiomatic that a

physician trained to perform a surgery is also trained to manage surgical

complications.”); Keo, 76 S.W.3d at 733 (holding physician who regularly

performed surgery on head and neck was qualified to give opinion about issues

common to all surgeries, including treatment of post-operative infections); see also

Alvarez, 382 S.W.3d at 630 (“[A] physician needs only to show how he is qualified

to opine on the cause of the plaintiff’s injury.”). Further, because Dr. Morales did

69 not dispute in the trial court that Dr. Paine is qualified to offer an opinion on the

standard of care as to Dr. Morales, it would have been reasonable for the trial court

to have concluded that Dr. Paine is qualified to offer an opinion on Dr. Morales’s

failure to meet the standard of care and the resulting harm. See Healy, 2021 WL

603369, at *2 n.1; Legend Oaks-S. San Antonio, 2015 WL 693225, at *5; Jassin,

2012 WL 5974020, at *5; Payne, 2011 WL 5830469, at *7; Arnett, 339 S.W.3d at

927–28.

We hold that the trial court did not err in overruling Dr. Morales’s objections

and denying Dr. Morales’s motion to dismiss Sam’s health care liability claim

against him on the ground that Dr. Paine is not qualified to offer an opinion on

causation related to Dr. Morales.

We overrule the remaining portion Dr. Morales’s sole issue.23

C. Vicarious Liability of West Houston Radiology and Radiology Partners

In the remaining portion of their sole issues, West Houston Radiology and

Radiology Partners argue that the trial court erred in overruling their objections to

Dr. Paine’s expert reports and denying their motions to dismiss Sam’s vicarious

liability health care liability claims against them because Dr. Paine is not qualified

to offer an opinion on causation related to Dr. Morales.

23 Due to our disposition, we need not address Dr. Morales’s request for attorney’s fees and costs. See TEX. R. APP. P. 47.1.

70 In her petition, Sam alleges that West Houston Radiology and Radiology

Partners are vicariously liable for the conduct of Dr. Morales. Generally, when a

plaintiff brings health care liability claims against more than one defendant

physician or health care provider, the expert report must set forth the standard of

care and breach of the standard of care as to each defendant and explain the causal

relationship between each defendant’s individual acts or omissions and the claimed

injury. See TEX. CIV. PRAC. & REM. CODE ANN. § 74.351(a), (r)(6); Seton Family,

593 S.W.3d at 792; Pena, 530 S.W.3d at 175. Yet, when a plaintiff brings a health

care liability claim based on a vicarious liability theory against a defendant health

care provider, an expert report that adequately implicates the actions of that party’s

agent or employee is sufficient as to the defendant health care provider. Gardner,

274 S.W.3d at 671–72; Seton Family, 593 S.W.3d at 792; see also Owens, 478

S.W.3d at 191 (“[W]hen a health care liability claim involves a vicarious liability

theory, either alone or in combination with other theories, an expert report that meets

the statutory standards as to the employee is sufficient to implicate the employer’s

conduct under the vicarious theory.” (alteration in original) (internal quotations

omitted)). In other words, 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 an agent or employee is sufficient to implicate the health

care provider’s conduct. Potts, 392 S.W.3d at 632; Seton Family, 593 S.W.3d at

71 792; see also Owens, 478 S.W.3d at 191–92 (expert report that is sufficient as to

employee or agent, whose alleged negligent conduct vicarious liability claim was

based, is also sufficient as to employer health care provider).

Having held that the trial court did not err in overruling Dr. Morales’s

objections to Dr. Paine’s expert reports and in denying Dr. Morales’s motion to

dismiss Sam’s direct liability health care liability claim against him because Dr.

Paine’s expert reports meet the requirements of chapter 74 related to Dr. Morales,

we hold that Sam may also proceed on the vicarious liability health care liability

claims against West Houston and Radiology Partners which are based on the conduct

of Dr. Morales. See Potts, 392 S.W.3d at 632; Gardner, 274 S.W.3d at 671–72;

Owens, 478 S.W.3d at 191–92; see also George, 261 S.W.3d at 295 (“[I]f the expert

report is sufficient as to the claims against Dr. Ward, and we have held that it

is[,] . . . then the report is sufficient as to [the] claims against CND that are based on

Dr. Ward’s alleged negligence.”).

We overrule the remaining portions of West Houston Radiology’s and

Radiology Partners’ sole issues.24

24 Due to our disposition, we need not address West Houston Radiology’s and Radiology Partners’ requests for attorney’s fees and costs. See TEX. R. APP. P. 47.1.

72 Conclusion

We affirm the order of the trial court.

Julie Countiss Justice

Panel consists of Chief Justice Radack and Justices Landau and Countiss.