Texas San Marcos Treatment Center, L.P. D/B/A San Marcos Treatment Center v. Veronica Payton

Opinion

ACCEPTED 03-14-00726-CV 4089429 THIRD COURT OF APPEALS AUSTIN, TEXAS 2/10/2015 12:09:14 PM JEFFREY D. KYLE CLERK NO. 03-14-00726-CV

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FILED IN 3rd COURT OF APPEALS IN THE COURT OF APPEALS FOR THE AUSTIN, TEXAS THIRD DISTRICT OF TEXAS 2/10/2015 12:09:14 PM

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JEFFREY D. KYLE Clerk TEXAS SAN MARCOS TREATMENT CENTER, L.P. d/b/a SAN MARCOS TREATMENT CENTER Appellant

v.

VERONICA PAYTON Appellee

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On Appeal from Hays County, Texas, 428th Judicial District Court Trial Court Case Number: 13-2658

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BRIEF FOR APPELLEE

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Adam S. Ward Texas Bar No. 00788615 Keely Allison Ward Texas Bar No. 00790220 Allison & Ward 2001 North Lamar Blvd. Austin, Texas 78705 Telephone: (512) 474-8153 Facsimile: (512) 474-9703 Email: allison-ward@sbcglobal.net

Attorneys for Appellee, Veronica Payton

ORAL ARGUMENT RESPECTFULLY REQUESTED

I. IDENTITY OF PARTIES AND COUNSEL

In accordance with Rule 38.1(a) of the Texas Rules of Appellate Procedure, Appellee provides the following complete list of all parties and counsel to the trial court’s order that forms the basis of this appeal.

Trial and Appellate Counsel for Appellee Veronica Payton: Adam S. Ward Texas Bar No. 00788615 Keely Allison Ward Texas Bar No. 00790220 Aaron Allison Texas Bar No. 24055098 Allison & Ward 2001 North Lamar Blvd. Austin, Texas 78705-4907 Telephone: (512) 474-8153 Facsimile: (512) 474-9703 Email: allison-ward@sbcglobal.net Email: keely@allisonwardllp.com Email: aaron@allisonwardllp.com

Trial and Appellate Counsel for Appellate Counsel for Appellant Texas San Marcos Treatment Center, L.P. d/b/a San Marcos Treatment Center:

Ryan L. Clement Texas Bar No. 24036371 SERPE JONES ANDREWS CALLENDER & BELL, PLLC 2929 Allen Parkway, Suite 1600 Houston, Texas 77019 Telephone: (713) 452-4400 Facsimile: (713) 452-4499 Emails: rclement@serpejones.com

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II. TABLE OF CONTENTS Page IDENTITY OF PARTIES AND COUNSEL………………………………………ii TABLE OF CONTENTS……………………….…………………………………iii TABLE OF AUTHORITIES………………………………………………………iv STATEMENT OF THE CASE…………………………………………………….2 ISSUES PRESENTED……………………………………………………………..3 STATEMENT OF FACTS…………………………………………………………4 SUMMARY OF THE ARGUMENT……………………………………………..11 ARGUMENT & AUTHORITY…………………………………………………..12 A. STANDARD OF REVIEW…………………………………………12 B. The Trial Court Did Not Abuse Its Discretion When Finding Dr. Reid’s Report Satisfied the Requirements of Chapter 74 And Denying Appellant’s Motion to Dismiss……………………14

1. Section 74.351 Requires Only a “Good Faith”

“Fair Summary” of an Expert’s Opinions……………..14

2. Dr. Reid’s Report Provides A “Good Faith”

“Fair Summary” of Ms. Payton’s Claims Against San Marcos Treatment Center……………………...…17

C. Dr. Reid’s Expert Report Satisfies the Legislative Purpose of Chapter 74’s Expert Report Requirement………………………….38

Conclusion & Prayer……………………………………………………………...39

Certificate of Compliance………………………………………………………...41

Certificate of Service……………………………………………………………..42

Appendix A. Expert report and curriculum vitae of Dr. William H. Reid, M.D. M.P.H. B. Cases

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III. TABLE OF AUTHORITIES

Cases Am. Transitional Care Ctrs. Of Tex. Inc. v. Palacios, 46 S.W. 3d 873 (Tex. 2001)………………………………………………….passim

Apodaca v. Russo, 228 S.W.3d 252 (Tex. App. – Austin 2007, no pet)………………………………16

Baylor All Saints Medical Center v. Martin, 340 S.W.3d 529 (Tex. App. – Fort Worth 2011, no pet)…………….………..20, 21

Certified EMS, Inc. v. Potts, 392 S.W.3d 625 (Tex. 2013)…………………………………………………passim

Chadha, M.D. v. Rothert, No. 03-13-00153-CV, 2014 WL 538815 (Tex. App. – Austin Feb. 5, 2014, no pet.)………………………………………38

Christian Care Center, Inc. v. Golenko, 328 S.W.3d 637 (Tex. App. – Dallas 2011, pet denied)…………………………36

Christus Spohn Health Sys. Corp. v. Sanchez, 299 S.W. 3d 868, 877-78 (Tex. App. – Corpus Christi 2009, pet. denied)…..37, 38

Downer v. Aquamarine Operators, Inc., 701 S.W.2d 238 (Tex. 1985)……………………………………………………...12

Flores v. Fourth Court of Appeals, 777 S.W.2d 38 (Tex. 1989)……………………………………………………….12

Herbert v. Hopkins, 395 S.W.3d 884 (Tex. App. – Austin 2013, no pet.)……………………………...13

Jelenek v. Casas, 328 S.W.3d 526 (Tex. 2010)……………………………………………………...35

Kingwood Pines Hospital, LLC. V. Gomez, 362 S.W.3d 740 (Tex. App. – Houston [14th Dist.] 2011, no pet.)…………....20, 21 iv

Kloeris v. Stockdale, No. 01-09-00711-CV, 2010 WL 1241305 (Tex. App. - Houston [1st Dist.] 2010, no pet.)……………………………….25, 26

Kocurek v. Colby, No. 03-13-00057, 2014 WL 4179454 (Tex. App. – Austin Aug. 22, 2014, no pet.)…………………………….………..35

Methodist Hosp. v. Shepherd-Sherman, 296 S.W.3d 193 (Tex. App. Houston [14th Dist] 2009, no pet.)…………………..25

Nexion Health at Garland, Inc. v. Treybig, No. 05-14-00498-CV, 2014 WL 7499373 (Tex. App. – Dallas, Dec. 31, 2014, no pet.)………………………………….19, 37

Presbyterian Cmty. Hosp. of Denton v. Smith, 314 S.W.3d 508 (Tex. App. – Fort Worth 2010, no pet.)…………………………19

Shenoy v. Jean, No. 01-10-01116-CV, 2011 WL 6938538 (Tex. App. – Houston [1st Dist.] Dec. 29, 2011, no pet.)………………….23, 25, 32

Smith v. Wilson, 368 S.W.3d 574 (Tex. App. – Austin 2012, no pet.)……………………………..35

Texarkana Nursing & Healthcare Center, LLC v. Lyle, 388 S.W.3d 314 (Tex. App. – Texarkana 2012, no pet.)…………….……….20, 36

Texas West Oaks Hosp. L.P. v. Williams, 371 S.W.3d 171 (Tex. 2012)………………………………………………………2

TTHR Ltd. P’ship v. Moreno, 401 S.W. 3d 41 (Tex. 2013)………………………………………………12, 15, 23

UHS of Timberlawn, Inc. v. S.B., 281 S.W.3d 207, (Tex. App. – Dallas 2009, pet. denied)…………………………34

Wissa v. Voosen, 243 S.W.3d 165 (Tex. App. – San Antonio 2007, no pet.)………………...…25, 26

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Statutes

Tex. Civ. Prac. Rem. Code §74.351………….………………………………passim

Tex. Civ. Prac. Rem. Code §74.351(a)……………………………………………14

Tex. Civ. Prac. Rem. Code §74.351(b)………………………………………passim

Tex. Civ. Prac. Rem. Code §74.351(c).........................................................…...3, 41

Tex. Civ. Prac. Rem. Code §74.351(l)……………………………………………14

Tex. Civ. Prac. Rem. Code §74.351(r)(6)…………………………………….12, 14

Tex. Civ. Prac. Rem. Code §74.351(s)……………………………………………16

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NO. 03-14-00726-CV

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IN THE COURT OF APPEALS FOR THE THIRD DISTRICT OF TEXAS

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TEXAS SAN MARCOS TREATMENT CENTER, L.P. d/b/a SAN MARCOS TREATMENT CENTER Appellant

v.

VERONICA PAYTON Appellee

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On Appeal from Hays County, Texas, 428th Judicial District Court Trial Court Case Number: 13-2658

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BRIEF FOR APPELLEE

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TO THE HONORABLE JUSTICES OF THE THIRD COURT OF APPEALS:

Appellee Veronica Payton (“Veronica Payton”, “Ms. Payton” or “Appellee”)

files this brief in response to Appellant’s, Texas San Marcos Treatment Center,

L.P. d/b/a San Marcos Treatment Center (“San Marcos Treatment Center”,

“SMTC” or “Appellant”) appeal from an order denying Appellant’s motion to

dismiss pursuant to section 74.351(b) of the Texas Civil Practices and Remedies

Code in Trial Court Case Number 13-2658; Veronica Payton v. Texas San Marcos

Treatment Center, L.P. d/b/a/ San Marcos Treatment Center, in the 428th Judicial

District Court of Hays County, Texas, before the Honorable R. Bruce Boyer.

IV. STATEMENT OF THE CASE

Nature of the Case:

This is a negligence case brought by Ms. Veronica Payton against her

employer, San Marcos Treatment Center L.P. d/b/a San Marcos Treatment Center.

San Marcos Treatment Center L.P. d/b/a San Marcos Treatment Center (“SMTC”)

is a nonsubscriber to the Texas Workers’ Compensation Act. SMTC is a health

care provider and pursuant to Texas West Oaks Hosp. L.P. v. Williams, 371 S.W.3d

171 (Tex. 2012), this is a health care liability claim. (CR 4-14).

Trial Court Proceeding and Disposition:

This case was originally filed on December 18, 2013. (CR 4). On January

27, 2014, Ms. Payton timely served the 120-day expert report and Curriculum

Vitae of Mr. William H. Reid, M.D., M.P.H. (“Dr. Reid”) pursuant to Tex. Civ.

Prac. Rem. Code § 74.351. (CR 22). Appellant filed objections to the report on

February 18, 2014 (CR 22). Appellant also objected to discovery based on its

objections to the report. (RR 10, 18, 20). Appellant filed its motion to dismiss

pursuant to 74.351(b) on July 9, 2014. (CR 22). Ms. Payton filed her response to

Appellant’s motion to dismiss and filed a motion for sanctions against Appellant

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on July 29, 2014. (CR 92-107). A hearing on Appellant’s objections and Ms.

Payton’s motion for sanctions was held on September 22, 2014, before the

Honorable Judge R. Bruce Boyer. (CR 127; RR 1-26). Judge Boyer overruled

Appellant’s objections and denied its Motion to Dismiss and denied Ms. Payton’s

motion for sanctions in an order dated October 30, 2014. (CR 118). Appellant’s

Notice of Appeal was filed on November 19, 2014. (CR 119-121).

Requested Disposition from this Court:

Ms. Veronica Payton requests that Judge R. Bruce Boyer’s order dated

October 30, 2014, be affirmed. In the alternative, should this Court find that the

trial court abused its discretion by holding that Ms. Payton’s expert report was

sufficient, Ms. Payton requests that this Court remand the case to the trial court

concerning Ms. Payton’s request for a 30-day extension to cure pursuant to Tex.

Civ. Prac. & Rem. Code 74.351(c). Ms. Payton requested such relief from the trial

court below, but the trial court did not address the request because it found that Ms.

Payton’s expert report was sufficient. (RR 21).

V. ISSUE PRESENTED

Did the trial court abuse its discretion by holding that Ms. Payton’s expert

report was sufficient, overruling Appellant’s objections to the report, and denying

Appellant’s Motion to Dismiss?

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VI. STATEMENT OF FACTS

This is an interlocutory appeal arising from an expert report challenge in a

health care liability case. San Marcos Treatment Center (“SMTC”) is a facility

licensed by the State of Texas to provide behavioral health care and treatment to

adolescent patients. (CR 5). San Marcos Treatment Center is divided into units,

providing care and services to patients based upon, among other things, gender and

treatment needs. (CR 5). At all relevant times Veronica Payton was an employee

of San Marcos Treatment Center working as an aide on a boys unit. (CR 5, 36).

On December 7, 2011, a patient, Mr. Leroy Simon, was admitted to SMTC. (CR

5). Mr. Simon was a 17 year old, “stocky”, male patient with a long history of

assaultive behavior, sex offenses, fights, borderline intellectual function or mild

retardation, and chronic symptoms of intermittent explosive disorder, lack of

impulse control, oppositional defiant disorder, and other mental and behavioral

problems. (CR 36). Mr. Simon also had an extensive criminal history, including

out of state theft and assault charges and drug abuse. (CR 6). On December 12,

2011 and December 13, 2011, Mr. Simon was evaluated at SMTC by, among

others, T. Walter Harrell, PH.D. acting on behalf of SMTC. (CR 6). The

evaluation occurred in conjunction with a treatment plan for Mr. Simon’s potential

admission to SMTC (CR 6). Mr. Simon was admitted to SMTC with the diagnoses

of severe impulsivity or explosive expression of anger; severe defiant, disruptive or

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destructive behavior; dangerous self-injurious or unsafe behaviors; severe

deterioration of function in family, school, and or community; cognitive/processing

disturbance interfering with social adaption and learning; sexual reactive or

offending behavior; and sexual behavior problems (CR 6). Mr. Simon was housed

on the boys unit to which Ms. Payton was assigned. (CR 36). On January 2, 2012,

Ms. Payton and another female employee were responsible for 17 patients on the

unit. (CR 6, 36). Many, perhaps all, the patients, other than Mr. Simon were

younger than Mr. Simon, aged 11 years and up, and smaller than Mr. Simon. (CR

34, 35, 36). On January 2, 2012, Mr. Simon asked to do his laundry in preparation

for classes the following day. (CR 6). The laundry facility was located off the boys

unit in an unoccupied section of SMTC, because the laundry equipment located on

the boys unit had been broken for some time. (CR 7, 36). Ms. Payton escorted Mr.

Simon to the functioning laundry. (CR 36). Mr. Simon was not under any

particular monitoring or containment order or special supervision. (CR 34). Ms.

Payton was not notified or otherwise advised that Mr. Simon was potentially

assaultive or otherwise dangerous, or that escorting him off the unit to the laundry

alone was unsafe. (CR 33). If Ms. Payton had been aware that Mr. Simon was

potentially assaultive or otherwise dangerous, she would not have escorted him to

the laundry alone. (CR 35). If there had been one more capable staff person on the

unit, Ms. Payton would not have believed it necessary to accompany Mr. Simon to

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the laundry alone. (CR 35). If there had been one more staff member who was

male on the boys unit, Ms. Payton would not have been a sole female alone with

Mr. Simon in the laundry. (CR 35). Ms. Payton received no training from SMTC

regarding her safety in the workplace, and particularly none related to recognizing

potentially dangerous patients, recognizing potentially assaultive patients or

protecting herself from patient assault and no training regarding the dangers of

escorting patients such as Mr. Simon off-unit alone. (CR 33, 35). If Ms. Payton

had received adequate training regarding the dangers of escorting patients such as

Mr. Simon off-unit alone, she would not have escorted him alone to the laundry

room. (CR35). While returning to the boys unit, Mr. Simon attacked Ms. Payton.

(CR 7). Mr. Simon suddenly and violently assaulted Ms. Payton, quickly

overpowering her, choking her, knocking or otherwise forcing her to the ground,

hitting and kicking her, and forcing her head into a wall. (CR 36). Ms. Payton

could not call for help because she could not breathe. (CR 7). Mr. Simon threw

Ms. Payton to the ground while maintaining the choke hold on her. (CR 7). Ms.

Payton realized she was not going to get away from Mr. Simon so she “played

dead”. (CR 7). When Ms. Payton “played dead” Mr. Simon loosened his hold on

her. (CR 7). Ms. Payton grabbed her writing pen and began trying to stab Mr.

Simon by thrusting her arm next to her head in an attempt to strike Mr. Simon in

the face and make him release his strangle hold. (CR 7). Mr. Simon tightened his

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hold on Ms. Payton’s neck and she lost consciousness. (CR 7, 36). Once Ms.

Payton was unconscious, Mr. Simon released the choke hold. (CR 7). Ms. Payton

regained consciousness to find Mr. Simon was still there. (CR 7). Ms. Payton then

struck out at Mr. Simon and he began hitting and kicking her. (CR 7, 36). Then,

Mr. Simon ripped Ms. Payton’s keys, which she wore on a necklace, off her neck

and ran out of the area. (CR 7, 36). As Mr. Simon ran away, Ms. Payton was able

to yell for help and other staff members came to her aide. (CR 7, 36). The assault

was recorded on an unmonitored video camera. (CR 7). SMTC staff called 911.

(CR 36). Mr. Simon used Ms. Payton’s keys to flee SMTC’s facility. (CR 7). Mr.

Simon ran to a residence a few blocks away from SMTC and told the resident that

he (Mr. Simon) had been assaulted by a group home employee and needed help.

(CR 7-8, 36). San Marcos Police Department apprehended Mr. Simon and after

determining that Mr. Simon’s story was false, arrested him. (CR 8, 36). Mr. Simon

was indicted for aggravated assault with a deadly weapon (his fists and arms). (CR

8, 36). Ms. Payton was transported by ambulance to Central Texas Medical Center

(“CTMC”) from SMTC. (CR 7, 36). Ms. Payton received medical follow-up from

her primary care physician, Dr. Chris Larson. (CR 36). Dr. Larson quickly

recognized symptoms of acute and chronic stress disorder due to the assault. (CR

36). Ms. Payton was evaluated by psychiatrist Andrew Brylowski and

psychologist Dr. Edward Kotin. (CR 36). Dr. Brylowski found very significant

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anxiety and depression and diagnosed “acute stress reaction” and major depressive

disorder. (CR 36). Video of the assault, emergency room records, and outpatient

general medical records all indicate injuries, including neck and back injuries and

concussion as well as both acute and chronic post-traumatic mental symptoms,

including post traumatic stress disorder. (CR 34).

In order to contradict or correct the “facts” in Appellant’s brief regarding

Ms. Payton’s allegations against SMTC, Appellee states the following allegations

from her original petition lettered A-E in this statement of facts. On December 18,

2013 Ms. Payton filed suit against San Marcos Treatment Center alleging

negligence on the part of SMTC for SMTC’s failure to meet five standards of care.

(CR 9-11). A) SMTC failed to meet the duty/standard for adequate staffing when

it failed to provide adequate staffing to meet foreseeable needs for patient care and

staff and patient safety. (CR 9). Staffing was inadequate on Ms. Payton’s unit on

January 2, 2012, and was lower than that required by plans of correction and/or

other agreements with the Texas Department of Family and Protective Services

(“DFPS”). (CR 10). The unit in question was supposed to have had at least three

staff on the shift during which the assault occurred (but instead only had two) and

that at least one of the staff was supposed to be male (not the case on the January 2,

2012, evening shift). (CR 10-11). B) SMTC failed to meet the relevant

duty/standard regarding training when it failed to provide Ms. Payton with

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adequate training regarding safety in a workplace which contained foreseeable

threats to staff safety. (CR10). Ms. Payton never received any SMTC training

regarding her safety in the workplace related to recognizing potentially dangerous

patients, recognizing potentially assaultive patients, or protecting herself from

patient assault. (CR 10). C) SMTC failed to meet the relevant duty/standard

regarding adequate notification when it failed to provide Ms. Payton with

information or notification that Mr. Simon was likely to be assaultive or otherwise

dangerous to staff and/or patients. (CR 10). SMTC knew that Mr. Simon had a pre-

admission history of, among other things, “severe impulsivity or explosive

expression of anger”, yet Ms. Payton was not notified or otherwise advised that he

was potentially assaultive or otherwise dangerous, or that her escorting him alone

was unsafe. (CR 10). D) SMTC failed to meet the relevant duty/standard regarding

Mr. Simon’s admission when it admitted, allowed to be admitted, and/or allowed

housing on the children’s unit without adequate containment and/or supervision,

Mr. Simon was a 17 year old “stocky” male sex offender with a substantial history

of aggression, fights with staff and peers, criminal assault, severe problems with

physical and sexual conduct, conduct disorder, poor impulse control and/or

frequent inability to resist aggressive an sexual impulses, which had manifested

themselves both in and outside of residential treatment settings. (CR 10-11).

SMTC knew that Mr. Simon had a pre-admission history of, among other things,

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“severe impulsivity or explosive expression of anger” and other dangerous

behaviors and symptoms. (CR 11). SMTC was well aware, or should have been

aware, that Mr. Simon was inappropriate for admission to SMTC and/or was not

suited, in terms of staff and patient safety, for housing on the unit on which he was

housed, without special supervision or containment. (CR 11). E) SMTC failed to

meet the relevant duty/standard regarding amelioration or elimination of risks

when it failed to adequately contain, supervise, and/or monitor Mr. Simon to

ameliorate his danger to others and protect staff and patients on and before January

2, 2012. (CR 11). Mr. Simon was not under any particular monitoring or

containment order, special supervision, or the like, which should have been

commensurate with his known history and behavioral/mental conditions. (CR 11).

SMTC knew or reasonable should have known that Mr. Simon was dangerous or

assaultive and should have been physically contained and/or supervised by more

than one female staff person. (CR 11). SMTC did nothing physically or clinically

to ameliorate the danger from Mr. Simon to staff and other patients. (CR 11).

Appellee also made other allegations in its original petition not addressed by

Appellant in its statement of facts. (CR 4-14).

Also in response to Appellant’s statement of the “facts”, Dr. Reid’s report

contains relevant facts concerning the staffing on January 2, 2012; the education

and training or lack thereof provided to Ms. Payton, the information or lack thereof

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shared with health care staff concerning the patient’s condition and propensities,

factual information concerning the admission of Mr. Simon and placement on unit,

supervision and monitoring provided, and efforts to reduce the risk of danger and

protect patients and/or staff. (CR 32-39).

On October 30, 2014, the trial court overruled Appellant’s motion to dismiss

pursuant to 74.351(b). (CR 118). Appellant filed its notice of appeal on November

19, 2014 and this interlocutory appeal ensued. (CR 119).

VII. SUMMARY OF THE ARGUMENT

The expert report by Dr. Reid very clearly and specifically sets forth five

standards of care as they apply to San Marcos Treatment Center and specifically

details how those standards of care were breached. Dr. Reid’s report informs San

Marcos Treatment Center of the specific conduct called into question, notifying it

as to what it should have done differently. Dr. Reid’s report also describes how the

breaches in the standard of care led to Ms. Payton’s assault and subsequent

injuries. Appellant is asking this Court to hold Dr. Reid’s expert report to a much

higher standard than the “fair summary” standard mandated by Chapter 74.

Appellant wants the report to marshal all the evidence in detail without the benefit

of discovery of Appellant’s records and without any depositions. The law is clear

that Dr. Reid’s report must only provide a “good faith” “fair summary” of his

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opinions. Tex. Civ. Prac. Rem. Code §74.351(r)(6); Am. Transitional Care Ctrs. Of

Tex. Inc. v. Palacios, 46 S.W. 3d 873 (Tex. 2001); Certified EMS, Inc. v. Potts,

392 S.W.3d 625 (Tex. 2013). Dr. Reid’s report provides a “good faith” “fair

summary” of his opinions and satisfies the Legislative goal of Chapter 74 to “deter

baseless claims, not to block earnest ones”. Id. The trial court did not abuse its

discretion by finding Dr. Reid’s report sufficient and overruling Appellant’s

motion to dismiss pursuant to 74.351(b).

IIX. ARGUMENT & AUTHORITY

A. Standard of Review

This Court reviews a trial court’s ruling on a §74.351 motion to dismiss

under an abuse of discretion standard of review. Am. Transitional Care Ctrs. of

Tex. Inc. v. Palacios, 46 S.W.3d 873, 875 (Tex. 2001); TTHR Ltd. P’ship v.

Moreno, 401 S.W. 3d 41, 44 (Tex. 2013). A trial court abuses its discretion if it

acts in an arbitrary or unreasonable manner without reference to any guiding rules

or principles. Downer v. Aquamarine Operators, Inc., 701 S.W.2d 238, 241-42

(Tex. 1985). When reviewing matters committed to the trial court’s discretion, a

court of appeals may not substitute its own judgment for the trial court’s judgment.

Flores v. Fourth Court of Appeals, 777 S.W.2d 38, 41 (Tex. 1989). This Court

described the abuse of discretion standard as it applied to a trial court’s ruling on a

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§74.351 motion to dismiss in Herbert v. Hopkins, 395 S.W.3d 884, 891 (Tex. App.

– Austin 2013, no pet.). This Court stated,

We do not, in other words, examine the contents of Dr. White’s reports and make our own de novo determination as to whether he has provided sufficient information, with respect to his opinions regarding standard of care, breach, and causation, to (1) inform appellees of the specific conduct the Heberts have called into question; and (2) provide a basis for the district court to conclude that the claims have merit. See Jelinek, 328 S.W.3d at 538-40 & n. 9; Wright, 79 S.W.3d at 52; Palacios, 46 S.W.3d at 878-79. Instead we determine only whether the district court acted arbitrarily, unreasonably, and without reference to guiding rules and principles in determining that the reports failed to provide that information. See Wright, 79 S.W.3d at 52; see also Jelinek, 328 S.W.3d at 542 (Jefferson, C.J., dissenting) (“The dividing line between a sufficient and an inadequate report is impossible to draw precisely. We have said, therefore, that the determination must be made in the first instance by the trial court, and review of that decision asks not how an appellate court would have resolved that issue, but instead whether the trial court abused its discretion.”)(citing Jernigan v. Langley, 195 S.W.3d 91, 93 (Tex. 2006); Walker v. Gutierrez, 111 S.W.3d 56, 63 (Tex. 2003)).

The trial court did not abuse its discretion in finding that Dr. Reid’s report satisfied

the requirement of Chapter 74 and in denying Appellant’s Motion to Dismiss,

because Dr. Reid’s report provides a “good faith” “fair summary” of Ms. Payton’s

claims against Appellant.

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B. The Trial Court Did Not Abuse Its Discretion When Finding Dr. Reid’s Report Satisfied the Requirements of Chapter 74 and Denying Appellant’s Motion to Dismiss

1. Section 74.351 Requires Only a “Good Faith” “Fair Summary” of an Expert’s Opinions

Section 74.351 requires a plaintiff asserting a health care liability claim to

submit an expert report, along with the expert’s curriculum vitae no later than the

120th day after filing suit. Tex. Civ. Prac. & Rem. Code Ann. §74.351(a). The Act

describes an expert report as a written report providing “a fair summary of the

expert’s opinions as of the date of the report regarding applicable standards of care,

the manner in which the care rendered by the physician or health care provider

failed to meet the standards, and the causal relationship between that failure and

the injury, harm, or damages claimed.” Tex. Civ. Prac. & Rem. Code Ann.

§74.351(r)(6).

If the report filed constitutes a good faith effort to provide a fair summary of

the expert’s opinions regarding the plaintiff’s claims, a §74.351(b) motion to

dismiss must be denied. Tex. Civ. Prac. & Rem. Code Ann. §74.351(l). A

“good-faith” effort only requires that the report discuss the elements of the

plaintiff’s claims with sufficient specificity to inform the defendant of the conduct

the plaintiff has called into question and to provide a basis for the trial court to

conclude that the claims have merit. Am. Transitional Care Ctrs. of Tex. Inc. v.

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Palacios, 46 S.W.3d 873, 875 (Tex. 2001). The plaintiff is not required to marshal

all its evidence. Palacios at 879. The plaintiff is not required to present evidence

in the report as if it were actually litigating the merits. Certified EMS, Inc. v. Potts,

392 S.W.3d 625, 631 (Tex. 2013) citing Palacios at 879. Rather, the report can be

informal in that the information in the report does not have to meet the same

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

Id.

A report that satisfies the elements as to only one theory of liability, entitles

the claimant to proceed with a suit against the physician or health care provider.

Potts at 630. For a particular liability theory the report must sufficiently describe

the defendant’s alleged conduct. Id. Such a report both informs a defendant of the

behavior in question and allows the trial court to determine if the allegations have

merit. Id. If the trial court decides that a liability theory is supported, then the

claim is not frivolous, and the suit may proceed. Id.; TTHR Limited P’ship v.

Moreno, 401 S.W.3d 41 (Tex. 2013).

The Texas Supreme Court described its reasoning in Certified EMS, Inc. v.

Potts, 392 S.W.3d 625, at 632 by stating, “The expert report requirement is a

threshold mechanism to dispose of claims lacking merit. . . while a full

development of all liability theories may be required for pretrial motions or to

convince a judge or jury during trial, there is no such requirement at the expert

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report stage.” An expert report is not required to prove defendant’s liability, but

rather to provide notice of what conduct forms the basis for the plaintiff’s

complaints. Apodaca v. Russo, 228 S.W.3d 252, 255 (Tex. App. – Austin 2007, no

pet.). The Act requires the expert report to summarize the expert’s opinions as of

the date of the report recognizing that those opinions are subject to further

refinement Potts, 392 S.W.3d at 632.

Applying a less stringent standard at the Chapter 74 report stage versus at

summary judgment or trial makes sense when one considers the timing of Chapter

74 reports. Section 74.351(s) provides that until a plaintiff has served its expert

report(s) and curriculum vitae of its expert all discovery is stayed except for the

acquisition by the plaintiff of information related to the plaintiff’s health care

through written discovery, depositions on written questions, and discovery from

non-parties. Tex. Civ. Prac. & Rem. Code §74.351(s). Thus, expert reports are

generally produced before the defendant has been deposed, and even before any

oral depositions have been taken in the case. Requiring an expert to know all the

facts of the case exactly as they happened at this early stage of the lawsuit would

place an impossible burden upon plaintiff’s expert that could never be met. See

Potts, 392 S.W.3d at 632. This is why the statute requires only a “fair summary” of

the plaintiff’s claims. Dr. Reid’s report is a “fair summary” of his opinions as of

the date of the report regarding the applicable standard of care, the manner in

17

which the care rendered by San Marcos Treatment Center failed to meet the

standard and the causal relationship between the failure and the injury, harm or

damages claimed.

2. Dr. Reid’s Report Provides A “Good Faith” “Fair Summary” of Ms. Payton’s Claims Against San Marcos Treatment Center

Dr. Reid’s report specifically states five separate standards of care,

specifically states how Appellant breached each of the standards of care and how

the breach of the standard of care caused harm to Ms. Payton. Dr. Reid’s report

satisfies the requirements of informing the defendant of the conduct the plaintiff

has called into question providing a basis for the trial court to conclude that the

claims have merit. See Am. Transitional Care Ctrs. of Tex. Inc. v. Palacios, 46

S.W.3d 873, 875 (Tex. 2001). Appellant’s arguments that Dr. Reid’s report failed

to identify any of the standards of care, failed to advise Appellant as to what it

should have done, and failed to link the breaches to the harm suffered by Mr.

Payton because Dr. Reid failed to link any facts to his opinions and therefore his

opinions are conclusory are incorrect.

Dr. Reid states five standards of care that were breached by Appellant and

links facts to his conclusions for each standard of care and breach. For the first

18

standard Dr. Reid states in relevant part,

That employer (SMTC) by itself and through its various parts or assigns, had duties to its unit employee Ms. Payton which included… adequate staffing and staff support in her work environment sufficient to meet reasonable levels of staff safety, as well as patient safety and care.

(CR 32). Dr. Reid also states that SMTC failed to meet this standard when it

“failed to provide adequate staffing to meet the foreseeable needs for patient care

and staff and patient safety”. (CR 33). Dr. Reid continues his opinion with details

as to how SMTC breached the standard stating,

[The] evening shift staffing was inadequate on Ms. Payton’s unit on January 2, 2012, and was lower than that required by plans of corrections and/or other agreements with the Texas Department of Family and Protective Services (DFPS). Specific staffing data from SMTC is not yet available to me; materials from DFPS, however, indicate a number of recent (to 1/02/2012) agency findings of inadequate staffing on the clinical units, as well as agreed upon DFPS specifications for correcting unit staffing deficiencies. It is my understanding (and this opinion is predicated on the accuracy of that understanding) that the unit in question was supposed to have had at least 3 staff persons on the shift on which the assault occurred (but instead only had 2) and that at least one of the staff was supposed to be male (not the case in the 1/02/2012, evening shift).

(CR 33). In discussing causation Dr. Reid states,

SMTC’s failures to meet the applicable standards…foreseeably led to (i.e., were a significant cause of) damages to Ms. Payton…But for one or more of the breaches by SMTC…it is more likely than not that the January 2, 2012, assault would not have occurred, and thus …damages to Ms. Payton, would not have occurred. Specifically, if staffing had been adequate (that

19

is, at least one more capable staff person on the 17-patient unit), Ms. Payton would not have believed it necessary to accompany Leroy Simon to the laundry alone… if there had been adequate male staffing on the boy’s unit, Ms. Payton would not have been in the position of being a sole female vulnerable to attack by a physically stronger, younger male.

(CR 34-35). These statements by Dr. Reid regarding adequate staffing are not

conclusory but provide specific facts upon which his opinions are based and tell

the Appellant specifically what it should have done but failed to do and without

which the assault and injuries suffered by Ms. Payton would not have occurred.

Dr. Reid explains the basis of his statements and links his conclusions to the

facts. Appellant mischaracterizes Dr. Reid’s report by simply citing the first page

of the report without including all the statements regarding the five standards,

breach, and causal nexus contained in the rest of the report as evidence that his

opinions are conclusory concerning the applicable standard of care. See

Appellant’s Brief at 16. The whole report, not just a few statements, determine if

the report is a “fair summary” of the expert’s opinions. Nexion Health at Garland,

Inc. v. Treybig, No. 05-14-00498-CV, 2014 WL 7499373, (Tex. App. – Dallas,

Dec. 31, 2014, no pet.); Presbyterian Cmty. Hosp. of Denton v. Smith, 314 S.W.3d

508, 514 (Tex. App. – Fort Worth 2010, no pet.)(in defining expert report rejected

a hospital’s argument that “several individual statements in [the expert’s] report

[were] insufficient” because the “report as a whole, provide[d] a ‘fair summary’ of

[the expert’s] opinions”). Dr. Reid’s report as a whole is a “good faith” “fair

20

summary” his of opinions on each standard of care, breach and the causal nexus

between the breach and the harm, injuries or damages suffered by Ms. Payton.

Appellant claims Dr. Reid’s statements concerning the standards of care

“mirror” those found in other assault cases wherein the expert’s report was found

to be deficient citing Texarkana Nursing & Healthcare Center, LLC v. Lyle, 388

S.W.3d 314 (Tex. App. – Texarkana 2012, no pet.); Baylor All Saints Medical

Center v. Martin, 340 S.W.3d 529 (Tex. App. – Forth Worth 2011, no pet.); and

Kingwood Pines Hospital, LLC. V. Gomez, 362 S.W.3d 740 (Tex. App. – Houston

[14th Dist.] 2011, no pet.). See Appellant’s Brief at 17. The report in Texarkana

was found to be deficient because the expert report only stated, “Texarkana

Nursing failed to provide ‘a safe and secure environment for its residents, allowing

the documented assault of Ms. Vest by one of its own employees’.” Texarkana at

319. The Texarkana Court of Appeals found this single statement by itself and

without any additional statements to inform the defendant as to what it should have

done differently did not advise the defendant of what should have been done in

order to prevent its employee from assaulting a patient. Texarkana at 320-21. In

contrast, Dr. Reid’s report goes well beyond a single statement like the one in

Texarkana and details exactly what SMTC should have done to prevent Ms.

Payton from being assaulted. For example, Dr. Reid’s statements regarding

adequate staffing do not “mirror” those found Texarkana. Dr. Reid makes clear

21

what SMTC should have done regarding staffing: SMTC should have had one

more capable staff person on the 17 patient unit because they should have had 3

staff members but only had 2 and at least one of the staff members should have

been male, which was not the case.

Appellant’s reliance on Baylor All Saints Medical Center v. Martin, 340

S.W. 3d 529 (Tex. App.- Fort Worth 2011, no pet.) is also misplaced. In Baylor,

the court found the report to be insufficient because the report stated there must be

policies in place to safeguard patients from assault including employing a

sufficient number of security personnel. Baylor at 534. The court found the expert

report failed to indicate what specific policies and safeguards should have been in

place and the number of security personnel needed was not described. Id. Clearly

Dr. Reid’s report is more specific than the report in Baylor and does not “mirror”

the language of the expert report in Baylor. For example, regarding adequate

staffing Dr. Reid specifically states the number of staff members Appellant should

have had on the unit in which Ms. Payton was working when she was assaulted.

The Kingwood case cited by Appellant is likewise distinguishable. In

Kingwood, the expert stated a failure “to ensure that there were appropriately

trained and adequate staffing and milieu structure such that a young girl … would

not be sexually molested” the report stated the standard of care was breached when

the physician failed to insure her patient’s safety using “any number of measures

22

available”, by failing to “provided additional supervision” and not affording the

patient “the most basic supervision”. Kingwood at 748. The court found that the

report did not provide information about how the physician was to insure that the

hospital was adequately staffed and that staff members were appropriately trained

or what measures were available to insure the patient’s safety. Id. The expert’s

report in Kingwood did not indicate what kind of supervision by the hospital was

sufficient to provide a secure environment for the patient. Kingwood at 750. Dr.

Reid’s report clearly informs SMTC as to what it should have done but did not.

For example, regarding staffing, Dr. Reid does state specifically how many staff

members SMTC should have had on the unit at the time of the assault but did not.

(CR 33-36). Clearly Dr. Reid’s report is more specific than the one the court

considered in Kingwood and does not “mirror” the statements of the expert report

in Kingwood.

Appellant argues that Dr. Reid’s opinions regarding adequate staffing are

conclusory because Dr. Reid states that “specific staffing data from SMTC is not

yet available to me”. See Appellant’s Brief at 26. The fact that Dr. Reid has not yet

seen staffing data from Appellant does not make his statements conclusory. The

Texas Supreme Court stated in Certified EMS, Inc. v. Potts, 392 S.W.3d 625, 632

(Tex. 2013), “The Act requires the expert report to summarize the expert’s

opinions as of the date of the report recognizing that those opinions are subject to

23

further refinement”. Additional facts may give rise to additional theories of

liability and change theories of liability which are allowed. Id. Requiring an

expert to know all the facts of the case exactly as they happened at this early stage

of the lawsuit would place an impossible burden upon plaintiff’s expert that could

never be met. Id. The court accepts the factual statement for purpose of

sufficiency of expert report inquiry. Shenoy v. Jean, No. 01-10-01116-CV, 2011

WL 6938538 (Tex. App. – Houston [1st Dist.] Dec. 29, 2011, no pet.). Dr. Reid’s

opinions are based upon the facts known at the time of the report which he links to

his opinions regarding the standard of care, breach and causation and his opinions

are neither speculative nor conclusory.

It is necessary to address the additional four standards of care, breach and

causal nexus beyond adequate staffing that Dr. Reid discusses in his report because

if any of the five standards and their breach and causal nexus described in Dr.

Reid’s report represents a “good faith” “fair summary” of Dr. Reid’s opinions, then

the trial court did not abuse its discretion and the case proceeds on all theories of

liability against Appellant. See Potts at 630; TTHR Limited P’ship v. Moreno, 401

S.W.3d 41 (Tex. 2013).

The second standard of care breached by SMTC relates to adequate training.

24

Dr. Reid states in relevant part,

SMTC… had duties to its unit employee Ms. Payton which included...adequate training with regard to recognizing, and managing situations that might arise in which her safety could be compromised…SMTC failed to meet the relevant duty/standardper 1(b), above-when it failed to provide Ms. Payton with adequate training regarding safety in a workplace which contained foreseeable threats to staff safety. Review of Ms. Payton’s SMTC personnel file and relevant portions of the SMTC Employee Handbook reveals no indication that Ms. Payton received any SMTC training regarding her safety in the workplace, and particularly none related to recognizing potentially dangerous patients, recognizing potentially assaultive patients, or protecting herself from patient assault…SMTC’s failures to meet the applicable standards, individually and collectively, …foreseeably let to (i.e., were a significant cause of) damages to Ms. Payton …But for one or more of the breaches by SMTC, …it is more likely than not that the January 2, 2012, assault would not have occurred, and thus the …damages to Ms. Payton, would not have occurred. Specifically, if Ms. Payton had received adequate training regarding the dangers of escorting patients such as Leroy Simon off-unit alone, she would not have escorted him alone to the laundry room.

(CR 32-35). These statements in Dr. Reid’s report clearly identify the standard of

care, detail what an reasonably prudent healthcare provider would have done and

states what the Appellant needed to do and how the breach gave rise to Ms.

Payton’s harm, injuries, or damages. Dr. Reid states the specific type of training

required, training related to recognizing potentially dangerous patients, recognizing

potentially assaultive patients, or protecting herself from patient assault and

25

training regarding the dangers of escorting patients such as Leroy Simon off-unit

alone. (CR 33-35).

Appellant was clearly put on notice as to what it should have done but did

not do, because Appellant responded to the allegation of inadequate training in its

brief with facts to argue against that allegation. See Appellant’s Brief at 21. This

Court should not consider these facts because they are not part of the trial court’s

record and because this Court is limited in its determination of whether the trial

court abused its discretion in finding Dr. Reid’s report was a “good faith” “fair

summary” of his opinions to the “four corners” of the expert report. Am.

Transitional Care Ctrs. of Tex. Inc. v. Palacios, 46 S.W.3d 873, 878 (Tex. 2001).

The facts within the expert report are taken as true in a Chapter 74 review of the

expert’s report. Jean v. Shenoy, No. 01-10-01116-CV, 2011 WL 6938538 (Tex.

App. – Houston [1st Dist.] Dec. 29, 2011, no pet.).

The report of an expert under Chapter 74 is not reviewed like the evidence in

a summary judgment proceeding. Kloeris v. Stockdale, No. 01-09-00711-CV, 2010

WL 1241305 (Tex. App. - Houston [1st Dist.] 2010, no pet.); Methodist Hosp. v.

Shepherd-Sherman, 296 S.W.3d 193, 199 n. 2 (Tex. App. Houston [14 th Dist]

2009, no pet.); Wissa v. Voosen, 243 S.W.3d 165, 169 (Tex. App. – San Antonio

2007, no pet.). Whether an expert’s opinions are correct is an issue for summary

judgment, not a Chapter 74 motion to dismiss. Kloeris at 7. “A Motion to dismiss

26

seeks to demonstrate that plaintiff has not satisfied the procedural requirements of

Chapter 74, while a motion for summary judgment seeks to demonstrate that the

substance of the claim lacks merit”. Wissa at 169. Dr. Reid’s expert report

provided a “good faith” “fair summary” of the standard of care applicable to

SMTC, how SMTC breached that standard and how the breach led to Ms. Payton’s

assault and injuries which is the focus of the Court in a Chapter 74 review, not

whether Dr. Reid is ultimately correct in his opinions. See Kloeris at 7. Dr. Reid’s

report is a “good faith” “fair summary” of his opinions related to adequate training

at the time his report was written.

Dr. Reid’s expert report is also a “good faith” “fair summary” of his

opinions relating to the third standard, adequate notification, its breach and the

causal nexus. Dr. Reid states in his report,

SMTC…had duties to its unit employee Ms. Payton, which included…adequate notification of work situations or persons in her work environment that could reasonably present a danger to her or others…SMTC failed to meet the relevant duty/standard.. when it failed to provide Ms. Payton with information or notification that patient Leroy Simon was likely to be assaultive or otherwise dangerous to staff and/or patients. SMTC knew that Mr. Simon had a pre-admission history of, among other things, “severe impulsivity or explosive expression of anger” (See Dr. Harrell’s December, 2011, evaluation). Nevertheless, review of materials associated with the January 2, 2012, assault upon Ms. Payton reveals no indication that Ms. Payton or other unit staff had been notified or otherwise advised that Mr. Simon was potentially assaultive or otherwise dangerous, or that her escorting him off the unit to the laundry alone was

27

unsafe…SMTC’s failures to meet the applicable standards, individually and collectively,…foreseeably led to (i.e., were a significant cause of) damages to Ms. Payton…But for one or more of the breaches by SMTC …it is more likely than not that the January 2, 2012, assault would not have occurred, and thus the … damages to Ms. Payton, would not have occurred. Specifically, if Ms. Payton had been adequately informed by SMTC of Mr. Simon’s past history of such things as violence, impulsive and assaultive behavior, other behaviors noted above, and his pre-admission history of “sever impulsivity or explosive expression of anger” (cf. Dr. Harrell’s pre-incident evaluation, December 12-13, 2011), she would not have escorted him to the laundry room alone.

(CR 32-35). These statements regarding adequate notification detail the standard

of care, breach and causal nexus with facts underlying the breach and causal nexus

that inform Appellant of what it should have done but did not do, and allow the

court to determine the claims are not frivolous.

Appellant complains that Dr. Reid’s opinions regarding notification are

conclusory because they do not state what SMTC’s methods of informing staff

about patient behaviors were or should have been. See Appellant’s Brief at 22. The

type of notification was not at issue because Ms. Payton received no notification, it

was the subject matter of the notification that mattered, because if Ms. Payton had

been adequately informed of the subject matter of the notification, she would not

have escorted Leroy Simon off the unit alone. Dr. Reid’s explanation of the

standard and breach are based upon Appellant’s complete failure to notify Ms.

Payton and specifically state the subject matter of what Ms. Payton should have

28

been informed of regarding the patient who assaulted her. These opinions are not

conclusory and provide a “good faith” “fair summary” of Dr. Reid’s opinions.

Appellant’s argument again fails because the expert’s opinions for purposes of a

Chapter 74 review are based upon the facts known to the expert at the time of the

report. Certified EMS, Inc. v. Potts, 392 S.W.3d 625, 631 (Tex. 2013). Dr. Reid’s

report provides a “good faith” “fair summary” of his opinions regarding the

standard of adequate notification of work situations, or persons in Ms. Payton’s

work environment, that could reasonably present a danger to her or others. Dr.

Reid’s opinion regarding adequate notification clearly identifies the standard of

care, states what Appellant should have done but did not and how the breach led to

Ms. Payton’s harm and ties those opinions to the facts known to Dr. Reid at the

time of the report.

The fourth standard regarding admission of Mr. Simon to SMTC also

provides a “good faith” “fair summary” of Dr. Reid’s opinions. Dr. Reid states in

relevant part,

SMTC by itself and through its various parts or assigns, had duties to its unit employee Ms. Payton which included… adequate care in avoiding or declining admission of patients/clients who are inappropriate for the unit on which she worked… SMTC failed to meet the relevant duty/standard… when it admitted, allowed to be admitted, and/or allowed housing on the children’s unit without adequate containment and/or supervision, Leroy Simon, a 17 year-old, “stocky” (per 911 call) male sex offender with a substantial history of

29

aggression, fights with staff (Dr. Coons, 3/14/2012, p. 2) and peers, criminal assault (cf. 1/2/2012 Hays County criminal complaint), severe problems with physical and sexual conduct, conduct disorder, poor impulse control and/or frequent inability to resist aggressive and sexual impulses, which had manifested themselves both in and outside residential treatment settings. SMTC knew that Mr. Simon had a pre-admission history of, among other things, “sever impulsivity or explosive expression of anger” (See Dr. Harrell’s December, 2011, evaluation), as well as other behaviors and symptoms enumerated above and below. Review of Mr. Simon’s pre and post-incident evaluation (with notes about his history prior to his assault on Ms. Payton) by Dr. Richard Coons and Dr. Walter Harrell (one performed white he was at SMTC, 18 days before the assault) indicates that SMTC was well aware, or should have been aware, that Simon was inappropriate for admission to SMTC and/or was not suited—in terms of staff and patient safety—for housing on the boys’ unit on which he was housed on January 2, 2012, (the date of the assault), without special supervision or containment. SMTC’s failures to meet the applicable standards, individually and collectively,…foreseeably let to (i.e., were a significant cause of) damages to Ms. Payton…But for one or more of the breaches by SMTC,…it is more likely than not that the January 2, 2012, assault would not have occurred, and thus the … damages to Ms. Payton, would not have occurred. Specifically, If Mr. Simon had not been admitted to SMTC and housed on Ms. Payton’s boys’ unit (to the extent that he was negligently admitted and housed; see above) Ms. Payton would not have been assaulted and injured by him on January 2, 2012.

(CR 32-35). Dr. Reid identifies the standard of care, states how Appellant breached

that duty, states what Appellant should have done and states how the breach led to

the assault and damages to Ms. Payton.

Dr. Reid discusses the supervision or containment of the patient further in

30

his fifth standard of care where he states in relevant part,

SMTC, by itself and through its various parts or assigns, had duties to its unit employee Ms. Payton which included, but may not have been limited to elimination or amelioration of reasonably known risks to Ms. Payton and other staff or patients created by patients/clients who are admitted to and housed on the unit on which she worked…SMTC failed to meet the relevant duty/standard…when it failed to adequately contain, supervise, and/or monitor Leroy Simon to ameliorate his danger to others and protect staff and patients on and before January 2, 2012. Review of materials associated with the January 2, 2012, assault upon Ms. Payton reveal no indication that Mr. Simon was under any particular monitoring or containment order, special supervision, or the like, which should have been commensurate with his known history and behavioral/mental condition (see above and below). SMTC knew or reasonably should have known that Leroy Simon was dangerous or assaultive, and should have been physically contained and/or supervised by more than one, female, staff person. There is no indication in the records available to me that SMTC did anything, physically or clinically, to ameliorate the danger from Leroy Simon to staff and other patients. (Many, perhaps all, other patients on the boys’ unit were apparently much younger and smaller than Mr. Simon)…SMTC’s failures to meet the applicable standards, individually and collectively,…foreseeably let to (i.e., were a significant cause of) damages to Ms. Payton…But for one or more of the breaches by SMTC…it is more likely than not that the January 2, 2012, assault would not have occurred, and thus the above damages to Ms. Payton, would not have occurred. Specifically… If Mr. Simon had been placed on adequate safety precautions, such as with the containment and/or supervision reasonably required given his past history, Ms. Payton would not have escorted him to the laundry room alone.

31

(CR 32, 33-34). Dr. Reid’s opinions regarding adequate containment/supervision

clearly identifies the standard of care, the breach and causation. Dr. Reid informs

Appellant about the specific conduct about which Appellee complains.

Appellant argues that Dr. Reid’s statements regarding supervision by more

than one female staff person are conclusory because Dr. Reid stated in his report

that specific staffing data from Appellant was not yet available to him. See

Appellants Brief at 22. This is not the case because the facts reviewed by Dr.

Reid clearly reflect Ms. Payton was the only one supervising the assaultive patient

at the time she was assaulted. This argument by Appellant also fails for the same

reasons its argument fails regarding the standard of adequate staffing. The court is

limited in its review of whether the expert report makes a “good faith” effort to

“fairly summarize” the experts opinions by looking only at the “four corners” of

the report. Palacios, at 878.

The fact that Dr. Reid has not yet seen staffing data from Appellant does not

make his statements conclusory. The Texas Supreme Court has stated, “The Act

requires the expert report to summarize the expert’s opinions as of the date of the

report recognizing that those opinions are subject to further refinement”. Potts,

392 S.W.3d at 632. Additional facts may give rise to additional theories of liability

and change theories of liability which are allowed. Id. Requiring an expert to

know all the facts of the case exactly as they happened at this early stage of the

32

lawsuit would place an impossible burden upon plaintiff’s expert that could never

be met. Id. The court accepts the factual statement for purpose of sufficient of an

expert report inquiry. Jean v. Shenoy, No. 01-10-01116-CV, 2011 WL 6938538

(Tex. App. – Houston [1st Dist.] Dec. 29, 2011, no pet.). Dr. Reid’s opinions are

based upon the facts known at the time of the report which he links to his opinions

regarding the standard of care, breach and causation are not speculative or

conclusory.

Dr. Reid’s report provides a “good faith” “fair summary” of the standard to

use adequate care in avoiding or declining admission of patients/clients who are

inappropriate for the unit on which Mr. Payton worked. Dr. Reid provides factual

details of the patient who assaulted Ms. Payton, “Leroy Simon, a 17 year-old,

“stocky” (per 911 call) male sex offender with a substantial history of aggression,

fights with staff (Dr. Coons, 3/14/2012, p. 2) and peers, criminal assault (cf.

1/2/2012 Hays County criminal complaint), severe problems with physical and

sexual conduct, conduct disorder, poor impulse control and/or frequent inability to

resist aggressive and sexual impulses, which had manifested themselves both in

and outside residential treatment settings. (CR 33-34). Dr. Reid details how or

why SMTC knew that Mr. Simon had a pre-admission history of, among other

things, “severe impulsivity or explosive expression of anger” (See Dr. Harrell’s

December, 2011, evaluation), as well as other behaviors and symptoms. (CR 32-

33

35). Dr. Reid bases his opinion in part on the preadmission history taken by

Appellant 18 days before the assault and states it indicates that, “SMTC was well

aware, or should have been aware, that Simon was inappropriate for admission to

SMTC and/or was not suited—in terms of staff and patient safety—for housing on

the boys’ unit on which he was housed on January 2, 2012, without special

supervision or containment”. (CR 34). Dr. Reid then states what Appellant failed

to do, “Review of materials associated with the January 2, 2012, assault upon Ms.

Payton reveal no indication that Mr. Simon was under any particular monitoring or

containment order, special supervision, or the like, which should have been

commensurate with his known history and behavioral/mental condition (see above

and below). (CR 34). Appellant knew or reasonably should have known that Leroy

Simon was dangerous or assaultive, and should have been physically contained

and/or supervised by more than one, female, staff person. (CR 34). There is no

indication in the records available to me that SMTC did anything, physically or

clinically, to ameliorate the danger from Leroy Simon to staff and other patients.

(Many, perhaps all, other patients on the boys’ unit were apparently much younger

and smaller than Mr. Simon)”. (CR 34). These statements reflect a “good faith”

“fair summary” of Dr. Reid’s opinions. Appellant’s complaints regarding these

standards is another example of Appellant arguing the facts of the case, which

clearly shows it has notice of what the expert is saying it should have done but

34

failed to do. Simply because SMTC does not like the facts does not make the

opinions of the expert conclusory.

Dr. Reid’s report specifically states the standards of care required, details

how those standards were breached and informs Appellant what is should have

done but failed to do and allows the trial court to determine the case is not

frivolous for all five theories of negligence in Dr. Reid’s report. Dr. Reid’s report

provides a “good faith” “fair summary” of his opinions on the elements required by

Chapter 74.

Appellant also criticizes Dr. Reid’s report on the element of causation. See

Appellant’s Brief at 27-28. Dr. Reid’s report provides a “good faith” “fair

summary” of his opinions on the element of causation. Assault is not a medical

condition. UHS of Timberlawn, Inc. v. S.B., 281 S.W.3d 207, (Tex. App. – Dallas

2009, pet. denied). Assault cases are different from those cases in which the

injury, harm, or damages claimed flow from the existence of a medical condition

that itself resulted from the breach and require not only explanation as to how

standard was breached but also how the breach gave rise to the medical condition.

Assault cases are also different from healthcare liability claims alleging that

breaches of a standard of care caused an exacerbation of a preexisting medical

condition, or hindered or prevented effective treatment of such a condition. Id.

Identifying the causal relationship in those cases may well require an expert to

35

opine as to the existence, extent, and prognosis of a pre-existing medical condition

as well as how the breach aggravated, impeded, or prohibited treatment and

otherwise affected patient’s prognosis. Id.

Several cases cited by Appellant in his brief on the causation element are not

assault cases but rather those types of healthcare liability claims differentiated from

assault cases by the court in Timberlawn. See Jelenek v. Casas, 328 S.W.3d 526

(Tex. 2010)(discussing causation required for prescription lapse to cause infection

causing additional pain and suffering beyond what plaintiff would have otherwise

experienced when other causes of infection are equally possible); Smith v. Wilson,

368 S.W.3d 574 (Tex. App. – Austin 2012, no pet.) (discussing statement that a

correlation exists between fluoxetine and suicide in adolescents as not supplying a

causal link between drug and suicide when plaintiff was not an adolescent);

Kocurek v. Colby, No. 03-13-00057, 2014 WL 4179454 (Tex. App. – Austin Aug.

22, 2014, no pet.) (discussing the insufficiency of the expert’s report on the

element of causation when plaintiff was claiming worsening of pain and numbness

because failed to specify how any injury would have been prevented or lessened

had plaintiff received “appropriate care” sooner and statement that referral to

specialist “might have made a difference”).

In assault cases the expert report should link the defendant’s negligence with

36

the alleged harm, the assault. Christian Care Centers, Inc., v. Golenko, 328 S.W.

3d 637, 648 (Tex. App. – Dallas 2011, pet. denied) citing Timberlawn. In the case

of Texarkana Nursing & Healthcare Center, LLC v. Lyle 338 S.W.3d 314, 323

(Tex. App. – Texarkana 2012, no pet.), the court held that if the expert report is

insufficient on the standard of care and breach and does not advise the defendant of

what it should have done differently then causation should be described in terms of

the specific shortcomings that created a situation in which assault could occur. Dr.

Reid’s report is sufficient on the standard of care and breach because it advises the

defendant of what it should have done differently and causation is also described in

terms of the specific shortcomings that created the situation in which the assault

occurred. Dr. Reid’s report links all the breaches of the standard of care to the

circumstances allowing assault. Dr. Reid’s report describes the damages Ms.

Payton suffered as a result of the assault and the facts leading to his opinion that

the assault caused those damages. (CR 34-35). He also describes the standards and

breaches in further detail and gives his opinion that but for one or more breaches it

is more likely than not that the January 2, 2012 assault would not have occurred,

and thus the damages to Ms. Payton described in his report would not have

occurred. (CR 35).

Dr. Reid’s expert report is at least as specific regarding the standard of care,

37

breach and causation as the report found sufficient on those elements in Nexion v.

Treybig, No. 05-14-00498-CV, 2014 WL 7499373 (Tex. App. – Dallas, Dec. 31,

2014, no pet.) where the court found the standard of care articulated as,

the facility must provide a safe environment for its patients such as securing qualified personnel, adequately supervising therapy sessions, providing proper equipment and facilities for all treatments necessary to meet the patient’s needs, and following up with the patient to verify the success of all procedures and treatments. . . The standard is not met when nursing home fails to properly investigate, treat and document the patient’s pain complaints over the course of time. The instance of Defendant’s failure to investigate and treat the patient’s back pain was during the therapy session when the therapists ignored Mr. Treybig’s cries of pain and requests to stop the session, continuing to push and pull using their combined bodyweight…reasonable investigation, documentation and treatment would have signified the danger in forceful hamstring stretches on a double below the knee amputee, and prevent fracture.

Dr. Reid’s report is also more specific than the assault case of Christus Spohn

Health Sys. Corp. v. Sanchez, 299 S.W. 3d 868, 877-78 (Tex. App. – Corpus

Christi 2009, pet. denied) in which the court concluded the expert reports

sufficiently linked the patient’s assault to the hospital’s failure to protect her from

the assaultive conduct of its employees, the report stated the hospital had a duty to

provide a safe recovery environment, described the alleged conduct of the

employees, and concluded that the fact that the patient was vulnerable, unable to

protect herself, and felt as if her person was violated has caused her to now have

symptoms of Major Depression and Post Traumatic Stress Disorder. All five of

38

the standards, breaches and causal nexus articulated in Dr. Reid’s report are more

specific than the report in Spohn. Dr. Reid’s report is also as specific as the one

this Court found sufficient in Chadha, M.D. v. Rothert, No. 03-13-00153-CV, 2014

WL 538815 (Tex. App. – Austin Feb. 5, 2014, no pet.) In Chadha, the expert

report stated the standard of care, “required that Dr. Chadha follow-up with the

patient regarding the elevated sedimentation rate in 2010”. The expert report then

detailed the breach, “should have called [Sharon] and had her return for a follow-

up”. The expert then gave facts as to support his opinion on the breach, and

connected the breach to the harm, vision loss by the patient. Dr. Reid’s report

likewise provides the standard of care, the breach, and the causal nexus with facts

to support his opinions. Dr. Reid’s entire expert report is a “good faith” “fair

summary” of his opinions regarding the standard of care, breach of the standard of

care and causation and is not conclusory. Therefore, the trial court did not abuse

its discretion in denying Appellants motion to dismiss.

C. Dr. Reid’s Expert Report Satisfies the Purpose of Chapter 74’s Expert Report Requirement

Appellants argue that the purpose of the Texas Legislature in enacting

Chapter 74 would be thwarted unless this Court finds the trial court abused its

discretion in finding Dr. Reid’s report to be a “good faith” “fair summary” of his

opinions. This argument is simply incorrect. The Texas Supreme Court recently

39

discussed the purpose of the Legislature in enacting Chapter 74 in Certified Ems,

Inc. V. Potts, 392 S.W.3d 625, 631-32 (Tex. 2013). There, the Texas Supreme

Court stated, “In amending the Act, the Legislature sought to reduce ‘the excessive

frequency and severity of …claims’, but to ‘do so in a manner that will not unduly

restrict a claimant’s rights any more than necessary to deal with the crisis’ (citing

the act)…In accordance with this goal…we have also stated that the purpose of

evaluating expert reports is to ‘deter frivolous claims, not to dispose of claims

regardless of their merits’ Scoresby v. Sullivan, 346 S.W.3d 546, 554 (Tex. 2011).”

The Texas Supreme Court continued stating, “If a healthcare liability claim

contains at least one viable liability theory, as evidenced by an expert report

meeting the statutory requirements, the claim cannot be frivolous. The

Legislature’s goal was to deter baseless claims, not to block earnest ones.” Id. Dr.

Reid’s expert report meets the statutory requirements as to all five of the

negligence theories Ms. Payton claims. So Ms. Payton’s claims cannot be

frivolous. The Legislative goal of Chapter 74 to “deter baseless claims, not to

block earnest ones” is satisfied with Dr. Reid’s report.

CONCLUSION & PRAYER

In conclusion, the expert report by Dr. Reid very clearly and specifically sets

forth five standards of care as they apply to San Marcos Treatment Center and

specifically details how those standards of care were breached. Dr. Reid’s report

40

informs San Marcos Treatment Center of the specific conduct called into question,

notifying it as to what it should have done differently. Dr. Reid’s report also

describes how the breaches in the standards of care led to Ms. Payton’s assault and

subsequent injuries. Appellant is asking this Court to hold Dr. Reid’s expert report

to a much higher standard than the “fair summary” standard mandated by Chapter

74. Appellant wants the report to marshal all the evidence in detail without the

benefit of discovery of Appellant’s records and without any depositions. The law

is clear that Dr. Reid’s report must only provide a “good faith” “fair summary” of

his opinions. Tex. Civ. Prac. Rem. Code §74.351(r)(6); Am. Transitional Care

Ctrs. of Tex. Inc. v. Palacios, 46 S.W. 3d 873 (Tex. 2001); Certified EMS, Inc. v.

Potts, 392 S.W.3d 625 (Tex. 2013). Dr. Reid’s report provides just such a “good

faith” “fair summary” of his opinions and satisfies the Legislative goal of Chapter

74 to “deter baseless claims, not to block earnest ones”. Id. The trial court did not

abuse its discretion by finding Dr. Reid’s report sufficient and overruling

Appellant’s motion to dismiss pursuant to 74.351(b).

Ms. Veronica Payton respectfully requests this Court affirm the trial court’s

order overruling San Marcos Treatment Centers’ motion to dismiss pursuant to

74.351(b). In the alternative, should this Court find the trial court abused its

discretion by finding Dr. Reid’s report sufficient, Ms. Payton prays this Court

remand the case to the trial court for a determination of whether to grant Ms.

41

Payton a 30-day extension to cure under Tex. Civ. Prac. & Rem. Code §74.351(c).

Appellee also requests reasonable attorney’s fees and costs and all other relief to

which she may be entitled.

Respectfully submitted,

Allison & Ward

By: /s/ Adam S. Ward Adam S. Ward Texas Bar No. 00788615 allison-ward@sbcglobal.net 2001 North Lamar Blvd. Austin, Texas 78705 Telephone: (512) 474-8153 Facsimile: (512) 474-9703

Attorneys for Appellee, Veronica Payton

CERTIFICATE OF COMPLIANCE

I hereby certify that the foregoing Brief for Appellee is computer generated, has been prepared in a conventional typeface no smaller than 14-point text and 12- point for footnotes, contains 9762 words according to word count function of the computer program used to prepare this Brief, excluding any parts exempted by Tex. R. App. P. 9.4(i)(1), and otherwise complies with Texas Rule of Appellate Procedure 9.4.

/s/ Adam S. Ward Adam S. Ward

42

CERTIFICATE OF SERVICE I hereby certify that a true and correct copy of the above and foregoing instrument has been forwarded to all known counsel of record in accordance with the Texas Rules of Appellate Procedure on this the 10th day of February, 2015. Ryan L. Clement Serpe Jones Andrews Callender & Bell, PLLC 2929 Allen Parkway, Suite 1600 Houston, Texas 77019 Telephone: (713) 452-4400 Facsimile: (713) 452-4499 Email: rclement@serpejones.com

/s/ Adam S. Ward Adam S. Ward

APPENDIX A

EXPERT REPORT AND CURRICULUM VITAE OF DR. WILLIAM H. REID, M.D. M.P.H.

A

000032 000033 000034 000035 000036 000037 000038 000039 000040 000041 000042 000043 000044 000045 000046 000047 000048 000049 000050 000051 000052 000053 000054 000055 000056 000057 000058 000059 000060 000061 000062 000063 000064 000065 000066 000067 000068 000069 000070 000071 000072 000073 000074 000075 000076 000077 000078 000079 000080 000081 000082 000083 000084 000085 000086 000087 000088

APPENDIX B

CASES

B 46 S.W.3d 873, 44 Tex. Sup. Ct. J. 720 (Cite as: 46 S.W.3d 873)

mony 198Hk821(1) k. In general. Most Supreme Court of Texas. Cited Cases AMERICAN TRANSITIONAL CARE CENTERS (Formerly 299k18.80(6.1) Physicians and Sur-

OF TEXAS, INC. d/b/a American Transitional geons)

Hospital, Petitioner, Expert testimony is necessary in medicalv . malpractice cases. Vernon's Ann.Texas Civ.St. art.

Teofilo PALACIOS and Maria Palacios, individu- 4590i, § 13.01(d). ally and a/n/f of Gloria Janeth Palacios and Rocio Daniela Palacios, minors, Maria Angelica Palacios, [2] Appeal and Error 30 960(1) and Sentry Insurance, a mutual company, Respondents . 30 Appeal and Error 30XVI Review No. 99–1311. 30XVI(H) Discretion of Lower Court Argued Dec. 6, 2000. 30k960 Rulings on Motions Relating to Decided May 10, 2001. Pleadings Rehearing Overruled June 28, 2001. 30k960(1) k. In general. Most Cited Cases Medical malpractice action was brought against (Formerly 198Hk809, 299k18.130 Physicians hospital to recover for injuries patient allegedly and Surgeons) suffered in fall at hospital. The 280th District A trial court's determination about the ad- Court, Harris County, Tony Lindsay, J., dismissed equacy of an expert report under the Medical Liabcase for failure to file expert report, as required by ility and Insurance Improvement Act is reviewed Medical Liability and Insurance Improvement Act. under an abuse-of-discretion standard. Vernon's Patient appealed. The Houston Court of Appeals, Ann.Texas Civ.St. art. 4590i, § 13.01(l), (r)(6). First District, reversed and remanded, 4 S.W.3d 857. On petition for review, the Supreme Court, [3] Appeal and Error 30 984(1) Hankinson, J., held that: (1) trial court's determination about adequacy of expert report under Act is 30 Appeal and Error reviewed under abuse-of-discretion standard, and 30XVI Review (2) expert's report did not provide fair summary of 30XVI(H) Discretion of Lower Court standard of care and how it was breached. 30k984 Costs and Allowances 30k984(1) k. In general. Most Cited Court of Appeals' judgment reversed. Cases Sanctions are generally reviewed under an ab-

West Headnotes use-of-discretion standard.

[1] Health 198H 821(1) [4] Health 198H 804

198H Health 198H Health 198HV Malpractice, Negligence, or Breach of 198HV Malpractice, Negligence, or Breach of Duty Duty 198HV(G) Actions and Proceedings 198HV(G) Actions and Proceedings 198Hk815 Evidence 198Hk804 k. Affidavits of merit or merit-

198Hk821 Necessity of Expert Testi- orious defense; expert affidavits. Most Cited Cases

© 2015 Thomson Reuters. No Claim to Orig. US Gov. Works.

46 S.W.3d 873, 44 Tex. Sup. Ct. J. 720 (Cite as: 46 S.W.3d 873)

(Formerly 299k18.20 Physicians and Surgeons) 198H Health In determining the adequacy of an expert report 198HV Malpractice, Negligence, or Breach of under the Medical Liability and Insurance Improve- Duty ment Act, the trial court should look no further than 198HV(G) Actions and Proceedings the report. Vernon's Ann.Texas Civ.St. art. 4590i, § 198Hk804 k. Affidavits of merit or merit- 13.01(l). orious defense; expert affidavits. Most Cited Cases (Formerly 299k18.20 Physicians and Surgeons)

[5] Health 198H 804 A report that merely states the expert's conclusions about the standard of care, breach, and causa-

198H Health tion does not constitute a good-faith effort under 198HV Malpractice, Negligence, or Breach of the Medical Liability and Insurance Improvement Duty Act. Vernon's Ann.Texas Civ.St. art. 4590i, § 198HV(G) Actions and Proceedings 13.01(l), (r)(6).

198Hk804 k. Affidavits of merit or meritorious defense; expert affidavits. Most Cited Cases [8] Health 198H 804 (Formerly 299k18.20 Physicians and Surgeons) For an expert's report to satisfy the require- 198H Health ments of the Medical Liability and Insurance Im- 198HV Malpractice, Negligence, or Breach of provement Act, the report need not marshal all the Duty plaintiff's proof, but it must include the expert's 198HV(G) Actions and Proceedings opinion on each of the elements identified in the 198Hk804 k. Affidavits of merit or meritstatute . Vernon's Ann.Texas Civ.St. art. 4590i, § orious defense; expert affidavits. Most Cited Cases 13.01(l). (Formerly 299k18.20 Physicians and Surgeons)

An expert's report that omits any of the stat-

[6] Health 198H 804 utory requirements does not constitute a good-faith effort under the Medical Liability and Insurance 198H Health Improvement Act. Vernon's Ann.Texas Civ.St. art.

198HV Malpractice, Negligence, or Breach of 4590i, § 13.01(l), (r)(6).

Duty 198HV(G) Actions and Proceedings [9] Health 198H 804 198Hk804 k. Affidavits of merit or meritorious defense; expert affidavits. Most Cited Cases 198H Health (Formerly 299k18.20 Physicians and Surgeons) 198HV Malpractice, Negligence, or Breach of For an expert's report to constitute a good-faith Duty effort under the Medical Liability and Insurance 198HV(G) Actions and Proceedings Improvement Act, the report must provide enough 198Hk804 k. Affidavits of merit or meritinformation to fulfill two purposes: first, the report orious defense; expert affidavits. Most Cited Cases must inform the defendant of the specific conduct (Formerly 299k18.20 Physicians and Surgeons) the plaintiff has called into question; second, and To avoid dismissal due to inadequacy of an exequally important, the report must provide a basis pert's report under the Medical Liability and Insurfor the trial court to conclude that the claims have ance Improvement Act, a plaintiff need not present merit. Vernon's Ann.Texas Civ.St. art. 4590i, § evidence in the report as if it were actually litigat- 13.01(l), (r)(6). ing the merits. Vernon's Ann.Texas Civ.St. art.

4590i, § 13.01(l), (r)(6).

[7] Health 198H 804 [10] Health 198H 804

© 2015 Thomson Reuters. No Claim to Orig. US Gov. Works.

46 S.W.3d 873, 44 Tex. Sup. Ct. J. 720 (Cite as: 46 S.W.3d 873)

198H Health faith effort under the Medical Liability and Insur-

198HV Malpractice, Negligence, or Breach of ance Improvement Act if it simply states that he or Duty she knows the standard of care and that it was or 198HV(G) Actions and Proceedings was not met. Vernon's Ann.Texas Civ.St. art. 4590i, 198Hk804 k. Affidavits of merit or merit- § 13.01(l), (r)(6).

orious defense; expert affidavits. Most Cited Cases (Formerly 299k18.20 Physicians and Surgeons) *875 Matthew T. McCracken, John C. Marshall, The expert's report in a medical malpractice ac- James C. Marrow, Dee L. Dawson, Marshall & Mction can be informal in that the information in the Craken, Houston, for Petitioner. report does not have to meet the same requirements D. John Leger, Leger & Coplen, Levon G. Hovas the evidence offered in a summary-judgment natanian, Martin Disiere & Jefferson, Houston, proceeding or at trial. Vernon's Ann.Texas Civ.St.

Mickey C. Shyrock, Law Office of Mickey C.

art. 4590i, § 13.01(l), (r)(6).

Shyrock, Athens, for Respondents.

[11] Health 198H 804 Justice HANKINSON delivered the opinion of the 198H Health Court.

198HV Malpractice, Negligence, or Breach of In this medical-malpractice case we determine Duty the standards for reviewing an expert report under 198HV(G) Actions and Proceedings section 13.01 of the Medical Liability and Insur-

198Hk804 k. Affidavits of merit or meritance Improvement Act. TEX.REV.CIV. STAT.

orious defense; expert affidavits. Most Cited Cases ANN.. art. 4590i, § 13.01. The trial court dismissed (Formerly 198Hk961, 204k8 Hospitals)

the Palacioses' medical-malpractice claims against Conclusory statement in expert's report that de-

American Transitional Care Centers, Inc., d/b/a fendant hospital did not use precautions to prevent American Transitional Hospital, because it determpatient 's fall was not good-faith effort to provide ined that the Palacioses' expert report did not show fair summary of standard of care and how it was a good-faith effort to provide a fair summary of the breached, and thus, dismissal of medical malpracexpert 's opinions about the standard of care, breach, tice action was warranted under Medical Liability and causation, as required by section 13.01. See id.

and Insurance Improvement Act; it could not be de-

§ 13.01(d), (e), (l), (r)(6). The court of appeals, termined from that statement if expert believed that after evaluating the trial court's decision as it would standard of care required hospital to have mona summary-judgment decision, reversed, holding itored patient more closely, restrained him more sethat the report did meet the statutory requirements.

curely, or done something else entirely. Vernon's 4 S.W.3d 857, 860.

Ann.Texas Civ.St. art. 4590i, § 13.01(l), (r)(6).

We hold that a trial court's decision to dismiss [12] Health 198H 804 a case under section 13.01(e) is reviewed for abuse 198H Health of discretion. We further hold that to constitute a 198HV Malpractice, Negligence, or Breach of good-faith effort to provide a fair summary of an Duty expert's opinions under section 13.01(l ), an expert 198HV(G) Actions and Proceedings report must discuss the standard of care, breach, 198Hk804 k. Affidavits of merit or merit- and causation with sufficient specificity to inform orious defense; expert affidavits. Most Cited Cases the defendant of the conduct the plaintiff has called (Formerly 299k18.20 Physicians and Surgeons) into question and to provide a basis for the trial An expert's report does not constitute a good- court to conclude that the claims have merit. In this

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46 S.W.3d 873, 44 Tex. Sup. Ct. J. 720 (Cite as: 46 S.W.3d 873)

case, the trial court did not abuse its discretion in defendant. concluding that the challenged report does not meet the statutory requirements and in dismissing with After 180 days passed from the date the Palaciprejudice the claims against American Transitional. oses filed suit, American Transitional moved to dis- Accordingly, we reverse the court of appeals' judg- miss the case against it because the Palacioses did ment and dismiss with prejudice the Palacioses' not file an expert report and curriculum vitae, or claims. nonsuit the claims against American Transitional, as section 13.01(d) of the Act requires. Id. § Teofilo Palacios suffered brain damage and 13.01(d), (e). The Palacioses moved for an extenother severe injuries following a two-story fall at sion of time to file the report, which the trial court work. After almost a year in an intensive rehabilita- granted. See id. § 13.01(f), (g). The Palacioses then tion program, he was transferred to American filed a report prepared by Dr. Catherine F. Bontke, Transitional Hospital for further rehabilitation. Al- who treated Palacios at the first rehabilitation hosthough Palacios at that time was able to *876 com- pital. American Transitional again moved to dismunicate with others and respond to simple com- miss under section 13.01(e), claiming that the remands , he required assistance with most daily tasks. port did not satisfy the statutory requirements. See In addition, due to the severity of his brain damage, id. § 13.01(l), (r)(6). The trial court granted the mo- Palacios' physicians prescribed bed restraints for tion, dismissed with prejudice the claims against him. Nevertheless, while a patient at American American Transitional, and severed those claims to Transitional, Palacios fell from his bed and required make the judgment against American Transitional additional medical care for his injuries. His family final. See id. § 13.01(e). claims that this fall caused him to sustain further brain injury, which impaired his ability to commu- The Palacioses appealed, and with one justice nicate with others and to assist them in his care. dissenting, the court of appeals reversed and remanded after using summary-judgment review Palacios and his family sued American Trans- standards to evaluate the sufficiency of the expert itional and the treating doctors, respectively, for report. 4 S.W.3d at 860. After indulging every reasnegligently failing to prevent the fall and negli- onable inference in the Palacioses' favor and elimgently treating him after the fall. After ninety days inating any deference to the trial court's decision, passed from the date the Palacioses filed suit, the court of appeals concluded that the trial court American Transitional, along with the other defend- erred in dismissing the case because the Palacioses ants, moved to require the Palacioses to file a made a good-faith effort to provide a report that $7,500 cost bond, as required by section 13.01(b) of met the requirements of section 13.01(r)(6). Id. at the Medical Liability and Insurance Improvement 862–63. American Transitional petitioned for re- Act. See TEX.REV.CIV. STAT. ANN.. art. 4590i, view challenging both the standard of review ap- § 13.01(b) (authorizing a trial court to order a plied by the court of appeals and the sufficiency of plaintiff to file a $7,500 cost bond for each defend- the Palacioses' report. ant physician or health-care provider if the plaintiff has not complied with the expert-report or $5,000 [1] Texas courts have long recognized the necost -bond requirement in section 13.01(a)); id. § cessity of expert testimony in medical-malpractice 13.01(a) (requiring the plaintiff to file either an ex- cases. E.g., Hart v. Van Zandt, 399 S.W.2d 791, pert report or a $5,000 cost bond for each defendant 792 (Tex.1965); Bowles v. Bourdon, 148 Tex. 1, physician or health-care provider within ninety 219 S.W.2d 779, 782 (1949). “There can be no othdays of filing suit). The trial court granted the mo- er guide [than expert testimony], and where want of tion, and the Palacioses filed a cost bond for each skill and attention is not thus shown by expert evidence applied to the facts, there is no evidence of it

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46 S.W.3d 873, 44 Tex. Sup. Ct. J. 720 (Cite as: 46 S.W.3d 873)

proper to be submitted to the jury.” Hart, 399 American Transitional contends that a trial S.W.2d at 792. Because expert testimony is crucial court's determination about the adequacy of an exto a medical-malpractice case, *877 knowing what pert report should be reviewed under an abusespecific conduct the plaintiff's experts have called of-discretion standard. The Palacioses respond that into question is critical to both the defendant's abil- whether a report meets the requirements of subsecity to prepare for trial and the trial court's ability to tions 13.01(l) and (r)(6) is a question of law. They evaluate the viability of the plaintiff's claims. This suggest that a trial court's decision on the adequacy makes eliciting an expert's opinions early in the lit- of a report should be reviewed as a court would reigation an obvious place to start in attempting to re- view a summary-judgment decision: that is, by induce frivolous lawsuits. See HOUSE COMM. ON dulging every reasonable inference and resolving CIV. PRAC., BILL ANALYSIS, Tex. H.B. 971, any doubts in the nonmovant's favor, and eliminat- 74th Leg., R.S. (1995). ing any deference to the trial court's decision. We agree with American Transitional.

Accordingly, in section 13.01, the Legislature requires medical-malpractice plaintiffs, within 180 [2][3] The plain language of section 13.01 days of filing suit, either to provide each defendant leads to the conclusion that abuse of discretion is physician and health-care provider with an expert the proper standard. First, the statute directs the trireport and the expert's curriculum vitae, or to non- al court to grant a motion challenging the adequacy suit the claims. TEX.REV.CIV. STAT. ANN.. art. of an expert report if it “appears to the court” that 4590i, § 13.01(d). If the plaintiff fails within the the plaintiffs did not make a good-faith effort to time allowed either to provide the expert reports meet the statutory requirements. Id. § 13.01(l). This and curriculum vitae, or to nonsuit the case, the tri- language plainly vests the trial court with discreal court must sanction the plaintiff by dismissing tion. See TEX. GOV'T CODE § 312.002. (“[W]ords the case with prejudice, awarding costs and attor- shall be given their ordinary meaning.”). Second, ney's fees to the defendant, and ordering the forfeit- the statute states that dismissal under section ure of any applicable cost bond necessary to pay 13.01(e) is a sanction: If the requirements of secthat award. Id. § 13.01(e). If the plaintiff does tion 13.01(d) are not met, the court must “enter an timely file a report, the defendant may move to order as sanctions” dismissing the case and granting challenge the adequacy of the report, and the trial the defendant its costs and attorneys' fees. court must grant the motion if “it appears to the TEX.REV.CIV. STAT. ANN .. art. 4590i, § court ... that the report does not represent a good 13.01(e). Sanctions are generally reviewed under an faith effort to comply with the definition of an ex- abuse-of-discretion standard. Koslow's v. Mackie, pert report.” Id. § 13.01(l). The statute defines an 796 S.W.2d 700, 704 (Tex.1990). And we presume expert report as “a written report by an expert that the Legislature was aware of the standard of review provides a fair summary of the expert's opinions ... ordinarily applied in sanctions cases when it expliregarding applicable standards of care, the manner citly identified a court's dismissal under section in which the care rendered ... failed to meet the 13.01(e) as a sanction. *878 See McBride v. standards, and the causal relationship between that Clayton, 140 Tex. 71, 166 S.W.2d 125, 128 (1943) failure and the injury, harm, or damages claimed.” ( “All statutes are presumed to be enacted by the le- Id. § 13.01(r)(6). If a trial court determines that an gislature with full knowledge of the existing condiexpert report does not meet these statutory require- tion of the law and with reference to it.”). ments and the time for filing a report has passed, it must then dismiss with prejudice the claims against Nevertheless, the court of appeals concluded the defendant who has challenged the report. Id. § that the usual standard of review for sanctions 13.01(e). should not apply here. The court reasoned that the

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46 S.W.3d 873, 44 Tex. Sup. Ct. J. 720 (Cite as: 46 S.W.3d 873)

provisions of article 4590i at issue here were inten- quiry—whether the report evidences a good-faith ded to discourage frivolous lawsuits, while sanc- effort to provide a fair summary of the expert's tions, in contrast, are a response to litigation mis- opinions. According to the Palacioses, the trial conduct. We disagree with this distinction. court does not have to make any factual determinations because the only relevant information is in the Filing a frivolous lawsuit can be litigation mis- report itself. We agree with the Palacioses that a triconduct subject to sanction. See TEX.R. CIV. P. 13 al court should look no further than the report in (imposing sanctions for filing groundless motions, conducting a section 13.01(l ) inquiry. pleadings, or other papers in bad faith or for the purposes of harassment). And one purpose of the The issue for the trial court is whether “the reexpert -report requirement is to deter frivolous port” represents a good-faith effort to comply with claims. HOUSE COMM. ON CIV. PRAC., BILL the statutory definition of an expert report. Id. § ANALYSIS, Tex. H.B. 971, 74th Leg., R.S. (1995). 13.01(l ). That definition requires, as to each de- The Legislature has determined that failing to fendant, a fair summary of the expert's opinions timely file an expert report, or filing a report that about the applicable standard of care, the manner in does not evidence a good-faith effort to comply which the care failed to meet that standard, and the with the definition of an expert report, means that causal relationship between that failure and the the claim is either frivolous, or at best has been claimed injury. Id. § 13.01(r)(6). Because the statbrought prematurely. See id. This is exactly the ute focuses on what the report discusses, the only type of conduct for which sanctions are appropriate. information relevant to the inquiry is within the See TransAmerican Natural Gas Corp. v. Powell, four corners of the document. 811 S.W.2d 913, 918 (Tex.1991) (holding that “death-penalty” sanctions are appropriate when a [5][6] Under subsections 13.01(l ) and (r)(6), party's discovery abuse justifies a presumption that the expert report must represent only a good-faith its claims lack merit). For these reasons, we hold effort to provide a fair summary of the expert's that an abuse-of-discretion standard of review ap- opinions. A report need not marshal all the plies to a trial court's decision to dismiss a case un- plaintiff's proof, but it must include the expert's der section 13.01(e). opinion on each of the elements identified in the statute. See *879Hart v. Wright, 16 S.W.3d 872, [4] We next consider whether the trial court ab- 877 (Tex.App.—Fort Worth 2000, pet. denied). In used its discretion in dismissing the Palacioses' setting out the expert's opinions on each of those claims against American Transitional. The parties elements, the report must provide enough informadisagree about how to determine a report's ad- tion to fulfill two purposes if it is to constitute a equacy under section 13.01(l ). American Trans- good-faith effort. First, the report must inform the itional argues that the trial court must engage in a defendant of the specific conduct the plaintiff has two-step process: (1) the trial court must determine called into question. Second, and equally important, whether the report constitutes a fair summary of the the report must provide a basis for the trial court to expert's opinions, TEX.REV.CIV. STAT. ANN.. conclude that the claims have merit. See 4 S.W.3d art. 4590i, § 13.01(r)(6); and (2) if the trial court at 865 (Taft, J. dissenting); Wood v. Tice, 988 concludes that the report is not a fair summary, it S.W.2d 829, 830 (Tex.App.—San Antonio 1999, must then look outside the report at the plaintiff's pet. denied) (noting that one of the purposes of artconduct to determine whether the plaintiff made a icle 4590i is to deter frivolous claims). good-faith effort to meet the statutory requirements, id. § 13.01(l ). The Palacioses, on the other hand, [7][8][9][10] A report that merely states the exargue that the statute requires only one in- pert's conclusions about the standard of care, breach, and causation does not fulfill these two pur-

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46 S.W.3d 873, 44 Tex. Sup. Ct. J. 720 (Cite as: 46 S.W.3d 873)

poses. Nor can a report meet these purposes and his restraints and precautions to prevent his fall thus constitute a good-faith effort if it omits any of were not properly utilized. the statutory requirements. See, e.g., Hart, 16 S.W.3d at 877 (holding that a report was inadequate .... because it stated that the patient had a heart attack All in all, Mr. Palacios sustained a second brain and the doctor breached the standard of care, injury with a left subdural hematoma while he without describing the standard of care); Wood, 988 was an inpatient at [the Hospital].... [I]n my opin-

S.W.2d at 831–32 (holding that an expert report did ion, the medical care rendered to Mr. Palacios at not meet the statutory requirements because it did the time of his second brain injury was below the not name the defendants, state how the defendants accepted and expected standard of care which he breached the standard of care, demonstrate causacould expect to receive. Moreover, this [sic] betion and damages, or include a curriculum vitae).

low the accepted standard of care extends to both However, to avoid dismissal, a plaintiff need not the cause of the second injury as well as the subpresent evidence in the report as if it were actually sequent treatment....

litigating the merits. The report can be informal in that the information in the report does not have to The Palacioses rely mostly on one sentence in meet the same requirements as the evidence offered the report to establish the standard of care: “Mr. in a summary-judgment proceeding or at trial. See, Palacios had a habit of *880 trying to undo his ree .g., TEX.R. CIV. P. 166(f) (setting out the require- straints and precautions to prevent his fall were not ments for the form and content of affidavits offered properly utilized.” They argue that the inference as summary-judgment proof); TEX.R. EVID. 802 can be made from that sentence, along with the (stating that most hearsay is inadmissible). statement that “[i]t is unclear how he could untie all four of the restraints from the bed frame in under [11] American Transitional contends that Dr.

ten minutes,” that Dr. Bontke believes American Bontke's report does not meet the statutory require-

Transitional's staff should have tied the restraints to ments because it does not represent a good-faith efthe bed more securely.

fort to provide a fair summary of her opinion on the standard of care and how American Transitional [12] The standard of care for a hospital is what breached that standard. The Palacioses respond that an ordinarily prudent hospital would do under the the following parts of Dr. Bontke's report establish same or similar circumstances. See Birchfield v. these elements: Texarkana Mem'l Hosp., 747 S.W.2d 361, 366 (Tex.1987). Identifying the standard of care is crit-

Based on the available documentation I was ical: Whether a defendant breached his or her duty able to conclude that: Mr. Palacios fell from his to a patient cannot be determined absent specific inbed on 5/14/94 while trying to get out of it on his formation about what the defendant should have own. The nursing notes document that he was obdone differently. “While a ‘fair summary’ is served by nursing on the hour for two hours prior something less than a full statement of the applicto the fall. In addition, ten minutes before the able standard of care and how it was breached, even fall, the nursing notes documents [sic] the his a fair summary must set out what care was expecwrist /vest restraints were on. Yet, at the time of ted, but not given.” 4 S.W.3d at 865 (Taft, J. dishis fall he was found on the floor with his vest/ senting). The statement the Palacioses rely wrist restraints on but not tied to the bed. It is unupon —that precautions to prevent Palacios' fall clear how he could untie all four of the restraints were not properly used—is not a statement of a from the bedframe in under ten minutes. Obvistandard of care. Neither the trial court nor Americously , Mr. Palacios had a habit of trying to undo an Transitional would be able to determine from

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46 S.W.3d 873, 44 Tex. Sup. Ct. J. 720 (Cite as: 46 S.W.3d 873)

this conclusory statement if Dr. Bontke believes that the standard of care required American Transitional to have monitored Palacios more closely, restrained him more securely, or done something else entirely. “It is not sufficient for an expert to simply state that he or she knows the standard of care and concludes it was [or was not] met.” See Chopra v. Hawryluk, 892 S.W.2d 229, 233 (Tex.App.—El Paso 1995, writ denied). Knowing only that the expert believes that American Transitional did not take precautions to prevent the fall might be useful if American Transitional had an absolute duty to prevent falls from its hospital beds. But as a general rule, res ipsa loquitur does not apply in medical- malpractice cases. TEX.REV.CIV. STAT. ANN.. art. 4590i, § 7.01 (limiting res ipsa loquitur in medical malpractice to the limited classes of cases to which it applied as of August 29, 1977); Haddock v. Arnspiger, 793 S.W.2d 948, 951 (Tex.1990).

When the expert report's conclusory statements do not put the defendant or the trial court on notice of the conduct complained of, section 13.01(l ) affords the trial court no discretion but to conclude, as the trial court did here, that the report does not represent a good-faith effort to provide a fair summary of the standard of care and how it was breached, as section 13.01(r)(6) requires. And because the statutory 180 day time period had passed when the trial court here made that determination, section 13.01(e) required the court to dismiss with prejudice the Palacioses' claims against American Transitional. See TEX.REV.CIV. STAT. ANN.. art. 4590i, § 13.01(e). Accordingly, we reverse the court of appeals' judgment and dismiss with prejudice the Palacioses' claims.

Tex.,2001. American Transitional Care Centers of Texas, Inc. v. Palacios 46 S.W.3d 873, 44 Tex. Sup. Ct. J. 720

END OF DOCUMENT

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228 S.W.3d 252 (Cite as: 228 S.W.3d 252)

74.351(b).

Court of Appeals of Texas, [2] Appeal and Error 30 946 Austin.

Barbara APODACA, Individually and on behalf of 30 Appeal and Error the Estate of Claudia J. McAulay, Appellant, 30XVI Review v. 30XVI(H) Discretion of Lower Court Dr. Penni RUSSO, Appellee. 30k944 Power to Review 30k946 k. Abuse of discretion. Most No. 03–06–00258–CV. Cited Cases May 2, 2007. A trial court abuses its discretion if it acts in an arbitrary or unreasonable manner or without refer-

Background: Estate of patient, who died from pul- ence to any guiding rules and principles. monary embolism, brought action against doctor, alleging that doctor negligently failed to timely im- [3] Health 198H 804 plement precautions against pulmonary emboli and anti-coagulant therapy. The District Court, Travis 198H Health County, 200th Judicial District, Darlene Byrne, J., 198HV Malpractice, Negligence, or Breach of granted doctor's motion to dismiss, and estate ap- Duty pealed. 198HV(G) Actions and Proceedings 198Hk804 k. Affidavits of merit or merit-

Holding: The Court of Appeals, Jan P. Patterson, orious defense; expert affidavits. Most Cited Cases J., held that expert report filed by patient's estate Expert report need not marshal all of the meddid not constitute a good faith effort to comply with ical malpractice plaintiff's proof, but it must include requirements of medical liability statute and, there- the expert's opinion on each of the elements identifore , constituted “no report” as to doctor. fied in the statute. V.T.C.A., Civil Practice & Remedies Code § 74.351(r)(6).

Affirmed.

[4] Health 198H 804 West Headnotes 198H Health [1] Appeal and Error 30 960(1) 198HV Malpractice, Negligence, or Breach of Duty 30 Appeal and Error 198HV(G) Actions and Proceedings 30XVI Review 198Hk804 k. Affidavits of merit or merit-

30XVI(H) Discretion of Lower Court orious defense; expert affidavits. Most Cited Cases 30k960 Rulings on Motions Relating to For expert's report to constitute a good-faith ef-

Pleadings fort under medical liability statute, the report must 30k960(1) k. In general. Most Cited inform the defendant of the specific conduct called Cases into question and provide a basis for the trial court (Formerly 198Hk809)

to determine that the claims have merit, and report Appellate courts review a trial court's ruling on does not fulfill these purposes if it fails to address a motion to dismiss medical malpractice action for the standard of care, breach of the standard, and failure to file expert report for an abuse of discrecausation , or if it only states the expert's conclution . V.T.C.A., Civil Practice & Remedies Code § sions regarding these elements. V.T.C.A., Civil

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228 S.W.3d 252 (Cite as: 228 S.W.3d 252)

Practice & Remedies Code § 74.351(r)(6). 198HV Malpractice, Negligence, or Breach of Duty [5] Health 198H 804 198HV(G) Actions and Proceedings 198Hk804 k. Affidavits of merit or merit-

198H Health orious defense; expert affidavits. Most Cited Cases 198HV Malpractice, Negligence, or Breach of (Formerly 198Hk809)

Duty The only information relevant to whether an 198HV(G) Actions and Proceedings expert report represents a good faith effort to com-

198Hk804 k. Affidavits of merit or meritply with the requirements in medical liability statorious defense; expert affidavits. Most Cited Cases ute is the report itself, and therefore, appellate Expert report in medical malpractice action can courts must consider whether the information withbe informal in that the information in the report in the four corners of the expert report demonstrates does not have to meet the same requirements as the a good faith effort to comply with the statutory reevidence offered in a summary-judgment proceedquirements . V.T.C.A., Civil Practice & Remedies ing or at trial. V.T.C.A., Civil Practice & Remedies Code § 74.351(r)(6).

Code § 74.351(r)(6).

[8] Health 198H 804 [6] Health 198H 804 198H Health 198H Health 198HV Malpractice, Negligence, or Breach of 198HV Malpractice, Negligence, or Breach of Duty Duty 198HV(G) Actions and Proceedings 198HV(G) Actions and Proceedings 198Hk804 k. Affidavits of merit or merit-

198Hk804 k. Affidavits of merit or meritorious defense; expert affidavits. Most Cited Cases orious defense; expert affidavits. Most Cited Cases Expert report filed by patient's estate did not In medical malpractice action, expert report is constitute a good faith effort to comply with renot required to prove the defendant's liability, but quirements of medical liability statute and, thererather to provide notice of what conduct forms the fore, constituted “no report” as to doctor; although basis for the plaintiff's complaints. V.T.C.A., Civil estate sued only doctor, other health-care providers Practice & Remedies Code § 74.351(r)(6).

were implicated by the facts set forth in the expert [7] Appeal and Error 30 840(4) report, the report failed to mention doctor at all, and the report did not inform doctor of the specific con-

30 Appeal and Error duct she allegedly performed that formed the basis 30XVI Review of the action. V.T.C.A., Civil Practice & Remedies 30XVI(A) Scope, Standards, and Extent, in Code § 74.351(r)(6).

General 30k838 Questions Considered [9] Health 198H 804 30k840 Review of Specific Questions 198H Health and Particular Decisions 198HV Malpractice, Negligence, or Breach of 30k840(4) k. Review of questions Duty of pleading and practice. Most Cited Cases 198HV(G) Actions and Proceedings (Formerly 198Hk809)

198Hk804 k. Affidavits of merit or merit-

Health 198H 804 orious defense; expert affidavits. Most Cited Cases If expert report fails to address the defendant 198H Health physician, it constitutes no report as to that defend-

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228 S.W.3d 252 (Cite as: 228 S.W.3d 252)

ant under medical liability statute, and the trial from Brackenridge Hospital Emergency Departcourt may not grant a 30–day extension. V.T.C.A., ment to Healthsouth Rehabilitation Hospital, and Civil Practice & Remedies Code § 74.351(r)(6). then transferred back to Brackenridge Hospital for an evaluation of her altered mental state and a urin-

*253 Thomas C. Hall, Law Office of Thomas C. ary tract infection. Hall, P.C., San Antonio, for appellant.

Dr. Penni Russo is a licensed physician who Emily J. Davenport, Robert L. Hargett, Davis & specializes in general surgery. At some point, Wilkerson, P.C., Austin, for appellee. Russo evaluated Ms. McAulay for an inferior vena cava (IVC) filter, which allows intravenous access Before Justices PATTERSON, PEMBERTON and to prevent a blood clot from causing a pulmonary WALDROP. embolism or stroke. No IVC filter was inserted. On October 29, Ms. McAulay had a cardiopulmonary arrest, and health care providers were unable to re-

OPINION suscitate her. The certificate of death showed that JAN P. PATTERSON, Justice. the cause of death was pulmonary embolism.

This interlocutory appeal arises from a health-

care liability claim filed by appellant Barbara Apo- As a representative of the estate, appellant filed daca, individually and on behalf of the estate of suit on October 31, 2005, alleging that Dr. Russo Claudia J. McAulay, against Penni Russo, M.D. negligently failed to timely implement precautions The issue is whether Apodaca's expert report suffi- against “pulmonary emboli, and anti-coagulant FN1 ciently meets the requirements of section 74.351 of therapy.” On February 17, 2006, appellant the civil practice and remedies code so as to allow filed the expert report and curriculum vitae of Dr. her to receive an extension of time. See Tex. Civ. Leslie S. Zun pursuant to section 74.351 of the civil Prac. & Rem.Code Ann. § 74.351(a)-(c) (West practice and remedies code. See id. § 74.351(a).

FN2 Supp.2006). Apodaca contends that the district Appellant provided no other report before the FN3 court erred by granting Dr. Russo's motion to dis- expiration of the expert report deadline. Dr. miss the lawsuit without first granting Apodaca an Russo filed a motion to dismiss under section extension of time to cure her expert report's defi- 74.351(b), asserting that appellant had failed to file ciencies. See id. § 74.351(c). Because the district an expert report addressing the care and treatment court did not abuse its discretion in granting Dr. provided by Dr. Russo. See id. § 74.351(b). The Russo's motion to dismiss and denying an extension district court granted the motion to dismiss, finding of time to file an additional report, we affirm the that appellant had failed to provide a proper expert order. report and further that she was not entitled to an extension of time to cure the report's inadequacies.

FACTUAL AND PROCEDURAL BACK- See id. § 74.351(c). This interlocutory appeal fol-

GROUND lowed.

After she was involved in a serious automobile accident on October 22, 2003, in which she sus- FN1. At the hearing, Dr. Russo's attorney tained trauma to her head and multiple orthopedic argued that Dr. Russo's “sole involvement injuries, Claudia McAulay was admitted to Brack- with this patient was on the 28th when she enridge Hospital. From October 24 to October 27, got called by a nurse to come and evaluate she was under the care of Dr. Thomas Coopwood, the patient for an IVC filter.” an internal medicine physician, and others. During the course of her treatment, according to her ex- FN2. Although Dr. Zun provided a second pert's report,*254 Ms. McAulay was transferred report dated March 22, 2006, which is in-

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228 S.W.3d 252 (Cite as: 228 S.W.3d 252)

cluded in the appendix to appellant's brief, 74.351(a). An “expert report” is: the report was not before the trial court at the time of the hearing, the trial court did a written report by an expert that provides a fair not grant leave for appellant to file the summary of the expert's opinions as of the date of second report, and it is not a part of the re- the report regarding applicable standards of care, cord on appeal. See Tex.R.App. P. 34. the manner in which the care rendered by the physician or health care provider failed to meet FN3. Section 74.351(a) required Apodaca the standards, and the causal relationship between to file expert reports within 120 days of fil- that failure and the injury, harm, or damages ing her original petition. See Tex. Civ. claimed. Prac. & Rem.Code Ann. § 74.351(a) (West Supp.2006). Thus, Apodaca's deadline to Id. § 74.351(r)(6). Failure to serve an adequate file expert reports was February 28, 2006. expert report mandates dismissal with prejudice. Id.

§ 74.351(b). A report need not marshal all of the ANALYSIS plaintiff's proof, but it must include the expert's In her single issue on appeal, Apodaca argues opinion on each of the elements identified in the that dismissal was improper and that she is entitled statute. Palacios, 46 S.W.3d at 878. To constitute a to an extension of time to file an expert report. Ap- good faith effort, the report must inform the depellant urges that the district court erred in not fendant of the specific conduct called into question granting an extension of time to file an expert re- and provide a basis for the trial court to determine port to cure any deficiency in her expert's first re- that the claims have merit. Id. at 879. A report does port. Dr. Russo responds that because the report not fulfill these purposes if it fails to address the fails to mention her name or address any care she standard of care, breach of the standard, and causaprovided to the patient, the report is “no report” as tion, or if it only states the expert's conclusions reto her and appellant is not entitled to an extension. garding these elements. Id.

[1][2] We review a trial court's ruling on a mo- [5][6] The supreme court has stated that “to tion to dismiss under section 74.351(b) for an abuse avoid dismissal, a plaintiff need not present evidof discretion. American Transitional Care Ctrs. of ence in the report as if it were actually litigating the Tex., Inc. v. Palacios, 46 S.W.3d 873, 877–78 merits. The report can be informal in that the in- (Tex.2001). A trial court abuses its discretion if it formation in the report does not have to meet the acts in an arbitrary or unreasonable manner or same requirements as the evidence offered in a without reference to any guiding rules and prin- summary-judgment proceeding or at trial.” Id. The ciples. Downer v. Aquamarine Operators, Inc., 701 expert report is not required to prove the defend- S.W.2d 238, 241–42 (Tex.1985). When reviewing ant's liability, but rather to provide notice of what matters committed to the trial court's discretion, we conduct forms the basis for the plaintiff's commay not substitute our own judgment for that of the plaints. Longino v. Crosswhite ex rel. Crosswhite, trial court. *255 Walker v. Gutierrez, 111 S.W.3d 183 S.W.3d 913, 916 (Tex.App.-Texarkana 2006, 56, 63 (Tex.2003). no pet.).

The expert report requirement Dr. Zun's report [3][4] In a health-care liability claim, the To comply with the expert report requirement, claimant must provide each defendant with one or appellant served Dr. Russo with a two-page report more expert reports, including a curriculum vitae from Dr. Zun setting forth the medical care Ms. for each expert, within 120 days of filing the origin- McAulay received. It does not mention Russo's al petition. Tex. Civ. Prac. & Rem.Code Ann. § name; it identifies another physician and otherwise

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228 S.W.3d 252 (Cite as: 228 S.W.3d 252)

fails to specify the identity of any other health care The report then specified “the deviations from provider involved in Ms. McAulay's treatment. the standard of care”: After recounting the patient's initial treatment by Dr. Thomas Coopwood and her return to Bracken- (1) Lack of treatment for DVT prophylaxis ridge Hospital on October 28 for evaluation, the re-

Deep venous thrombosis prevention was not port observed:

properly addressed. It is essential that prophylax-

The physician order sheet of 10/28/03 at 1350 is for DVTs be given to patients in order to prestates to stop the lovenox. In the same order sheet vent pulmonary embolism and death. Heparin or dated 10/28/03, an order to place a temporary low molecular weight heparins are indication for IVC filter was to be placed today. Patient was prevention of DVT. Based on the medical record, noted to be restless and agitated the night of it is unclear whether the patient received heparin 10/28/03. On 10/28/03, the internal medicine or lovenox during all of the days of all the hospitconsultant assessment stated, “the patient much al stays to prevent DVT. Asprin [sic] is not conless responsive that records report and there was sidered adequate prophylaxis for DVT. If there a concern about delirium from alcoholism, head was a concern about heparin induced thrombocyttrauma ”. His evaluation included STAT CT scan openia, lepirudin (Refludan) is the drug of choice of the head, holding narcotics and monitoring for for these patients. There was no finding that this worsening symptoms. In this same report, the in- medication was ever considered or given by the ternal medicine consultant recommended that physicians carrying [sic] for the patient. stopping the heparin was not a good option. It (2) Lack of IVC filter insertion was recommended that the patient receive an immediate IVC filter. The medication administra- The other option for DVT prophylaxis is the intion record for 10/29/03 at 9am did not document sertion of an IVC filter. Until IVC filters are any medication for DVT prophylaxis. On placed some other form of DVT prophylaxis 10/29/03 at 9:30am, the patient had a cardiopul- needs to be initiated. In this case, the IVC filter monary arrest. Resuscitation *256 was attempted was not placed in a timely fashion nor was the but the patient did not survive. patient given DVT prophylaxis until the filter was placed. It is uncertain why the IVC filter was Deep venous thrombosis (DVT) prophylaxis as ordered and then cancelled.

per Dr. Coopwood's note was aspirin and plexipulse foot pump. The medication adminis- (3) Inadequate evaluation of the patient's altered tration report from Brackenridge Hospital did not mental status note any heparin or lovenox being given to the patient from 10/23–10/27. The patient was dis- The patient's altered mental status was not propcharged to Healthsouth Rehabilitation hospital on erly addressed. One of the likely causes for lovenox. altered mental status and agitation is pulmonary embolism. Evaluation of altered mental status in After noting that the lovenox was discontinued this patient focused around medications and head on October 28 and the medication administration trauma. The appropriate evaluation would have report stated that stopping the heparin was “not a included assessment of the respiratory status ingood option for DVT prophylaxis and recommen- cluding pulse oximetry, blood gas analysis, and ded that the patient get an IVC filter,” Dr. Zun's re- chest radiograph. If the patient's altered mental port observed that “[a] note in the chart stated that status was properly evaluated, the pulmonary eman IVC filter was to be placed and an order to hold bolism would have been discovered prior to carthe IVC filter was noted on 10/28/03.”

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228 S.W.3d 252 (Cite as: 228 S.W.3d 252)

diac arrest. Appropriate treatment for pulmonary to whether a report represents a good faith effort to embolism could have started prior to the fatal comply with the statutory requirements is the report embolism and thereby prevented the patient's de- itself. Bowie Mem'l Hosp. v. Wright, 79 S.W.3d 48, mise. 53 (Tex.2002). We must, therefore, consider whether the information within the four corners of the ex-

(4) The patient's respiratory status was not ad- pert report demonstrates a good faith effort to comequately monitored ply with the statutory requirements.

The patient's pulmonary status was not properly Section 74.351(r)(6) requires that an expert readdressed . Pulse determinations are one means to port explain how the care rendered by the physician determine whether a patient has pulmonary prob- failed to meet the applicable standard of care and lems. Low pulse oxygenation readings in a post the causal relationship between that failure and the surgical, post trauma patient would necessitate injury suffered by the claimant. See Tex. Civ. Prac. that the patient be evaluated for pulmonary em- & Rem.Code Ann. § 74.351(r)(6); Palacios, 46 bolism. Identification of pulmonary problem S.W.3d at 878. from pulmonary embolisms would have prompted immediate treatment that would have saved [8] Although appellant has sued only Dr. her life. Russo, other doctors and health-care providers are implicated by the facts set forth in the report. The Zun concluded that “[e]ach of these four devi- report references other providers as well as their ations from the standard of care, alone *257 or in conduct and refers to another doctor by name, but combination, could have prevented the death of Ms. fails to mention Dr. Russo at all. The report does McAuley's.” not discuss how the care rendered by Dr. Russo failed to meet the applicable standard of care or [7] In considering whether an expert report rephow Dr. Russo's failure caused Ms. McAulay to resents an objective good faith effort, the supreme suffer injury, harm or damages. Thus, the report did court has established that a trial court is limited to a not inform Dr. Russo of the specific conduct she alreview of the report itself:

legedly performed that forms the basis of the peti-

The issue for the trial court is whether “the re- tion. port” represents a good-faith effort to comply [9] If a report fails to address the defendant with the statutory definition of an expert report.

physician, it constitutes no report as to that defend-

[former Tex.Rev.Civ. Stat. Ann. art. 4590i] § ant, and the trial court may not grant a 30–day ex-

13.01(l ). That definition requires, as to each detension . Garcia v. Marichalar, 185 S.W.3d 70, 74 fendant, a fair summary of the expert's opinions (Tex.App.-San Antonio 2005, no pet.). The quesabout the applicable standard of care, the manner tion is whether the trial court abused its discretion in which the care failed to meet that standard, and in determining that the report failed to provide Dr.

the causal relationship between that failure and Russo a proper expert report and that it constituted the claimed injury. Id. § 13.01(r)(6). Because the “no report” so as to preclude an extension of time statute focuses on what the report discusses, the to cure any deficiency. Tex. Civ. Prac. & only information relevant to the inquiry is within Rem.Code Ann. § 74.351(a)-(c).

the four corners of the document.

In support of her contention that Apodaca's re-

Palacios, 46 S.W.3d at 878; see also Horizon/ port did not satisfy the statutory requirements so as CMS Healthcare Corp. v. Fischer, 111 S.W.3d 67, to allow an extension of time to cure any defi-

68 (Tex.2003). The only information, then, relevant ciency, Dr. Russo relies upon Garcia, 185 S.W.3d

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228 S.W.3d 252 (Cite as: 228 S.W.3d 252)

70. In Garcia, the plaintiff filed suit against three trial court's denial of Dr. Longino's motion to disdoctors , two nurses, and a hospital. Garcia v. miss). Marichalar, 198 S.W.3d 250, 252 (Tex.App.-San Antonio 2006, no pet.) (later proceeding). The After reviewing the report in its entirety, we plaintiff served two expert reports, but neither re- cannot conclude that the trial court abused its disport mentioned Dr. Garcia. Id. The court concluded cretion in determining that the report fails to represthat the trial court had no authority to grant an ex- ent a good faith effort to address the conduct of Dr. tension because the report was not merely deficient, Russo and constitutes no report as to Dr. Russo. but constituted no report as to Dr. Garcia. Garcia, CONCLUSION 185 S.W.3d at 74. The court further held that Because we conclude that the district court did “neither report informed Dr. Garcia of the specific not abuse its discretion in finding that the report did conduct he allegedly performed that [the *258 not constitute a good faith effort to comply with the plaintiff] had called into question,” and, thus, the statutory requirements and therefore constitutes “no expert reports did not constitute a good faith effort report” as to Dr. Russo, we affirm the district to comply with the statutory requirements. Garcia, court's order.

198 S.W.3d at 255.

Tex.App.–Austin,2007.

As in Garcia, in this case, the report refers to Apodaca v. Russo the conduct and care provided by several providers.

228 S.W.3d 252 But unlike Garcia, in this case, appellant has filed a lawsuit complaining of the actions of only one doc- END OF DOCUMENT tor, Dr. Russo. Appellant seeks to distinguish Garcia because she has sued only Dr. Russo. In Garcia, the plaintiffs made a similar argument, claiming that the report applied to Dr. Garcia because he was involved in the single incident made the basis of that suit. Id. at 254–55. The court concluded that the report must identify the physician's specific conduct, as well as the causal relationship to represent a good faith effort to comply with section 74.351. See id. The report does not satisfy section 74.351(a) for a specific defendant merely because he or she is a defendant; the report must specifically identify the defendant and apply the statutory elements to that defendant. See Jernigan v. Langley, 195 S.W.3d 91, 93–94 (Tex.2006) (affirming a dismissal under the prior statute, Tex.Rev.Civ. Stat. Ann. art. 4590i, § 13.03, because although the report made passing mention of Dr. Jernigan, it failed to state how he breached the standard of care or how his alleged breach caused injury); Longino, 183 S.W.3d at 917–18 (finding that the expert report did not represent a good faith effort because it failed to differentiate between Dr. Longino and another physician, and reversing the

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340 S.W.3d 529 (Cite as: 340 S.W.3d 529)

30XVI(H) Discretion of Lower Court 30k944 Power to Review Court of Appeals of Texas, 30k946 k. Abuse of discretion. Most Fort Worth. Cited Cases BAYLOR ALL SAINTS MEDICAL CENTER, Ap- A trial court has no discretion in determining pellant, what the law is, or in applying the law to the facts, v. and thus a clear failure by the trial court to analyze Pamela MARTIN and John Martin, Appellees. or apply the law correctly will constitute an abuse of discretion.

No. 02–10–00402–CV.

April 14, 2011. [2] Health 198H 804 Background: Patient sued hospital for negligence 198H Health based on alleged sexual assault on patient in her 198HV Malpractice, Negligence, or Breach of hospital room. Hospital objected to sufficiency of Duty patient's expert report, moved to dismiss, and re- 198HV(G) Actions and Proceedings quested attorney fees. Following a hearing, the 17th 198Hk804 k. Affidavits of merit or merit- District Court, Tarrant County, Melody Wilkinson, orious defense; expert affidavits. Most Cited Cases J., overruled hospital's objections and denied mo- The purpose of the expert report requirement in tion and request for attorney fees. Hospital ap- health care liability claims is to inform the defendpealed . ant of the specific conduct the plaintiff has called into question and to provide a basis for the trial Holding: The Court of Appeals, Bob McCoy, J., court to conclude that the claims have merit.

held that patient's expert report was deficient in es-

V.T.C.A., Civil Practice & Remedies Code § tablishing appropriate standard of care for the hos-

74.351.

pital and the breach of that standard.

[3] Health 198H 804 Reversed and remanded.

198H Health West Headnotes 198HV Malpractice, Negligence, or Breach of [1] Appeal and Error 30 941 Duty 198HV(G) Actions and Proceedings 30 Appeal and Error 198Hk804 k. Affidavits of merit or merit-

30XVI Review orious defense; expert affidavits. Most Cited Cases 30XVI(H) Discretion of Lower Court Because the statute governing sufficiency of an 30k940 Nature and Extent of Discretion- expert report in a health care liability claim focuses ary Power on what the report discusses, the only information 30k941 k. In general. Most Cited relevant to the inquiry is within the four corners of Cases the document. V.T.C.A., Civil Practice & Remedies Code § 74.351.

Appeal and Error 30 946 [4] Health 198H 804 30 Appeal and Error 30XVI Review 198H Health 198HV Malpractice, Negligence, or Breach of

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340 S.W.3d 529 (Cite as: 340 S.W.3d 529)

Duty 198H Health 198HV(G) Actions and Proceedings 198HV Malpractice, Negligence, or Breach of 198Hk804 k. Affidavits of merit or merit- Duty orious defense; expert affidavits. Most Cited Cases 198HV(C) Particular Procedures Alleged sexual assault on patient in her hospit- 198Hk655 Hospitals in General al room following surgery was covered, in negli- 198Hk656 k. In general. Most Cited gence action against hospital, by the expert report Cases requirement for health care liability claims. The standard of care for a hospital on a health V.T.C.A., Civil Practice & Remedies Code § care liability claim is what an ordinarily prudent 74.351. hospital would do under the same or similar circumstances .

[5] Health 198H 804 [8] Health 198H 804 198H Health 198HV Malpractice, Negligence, or Breach of 198H Health Duty 198HV Malpractice, Negligence, or Breach of 198HV(G) Actions and Proceedings Duty 198Hk804 k. Affidavits of merit or merit- 198HV(G) Actions and Proceedings orious defense; expert affidavits. Most Cited Cases 198Hk804 k. Affidavits of merit or merit-

An expert report served by plaintiff in a health orious defense; expert affidavits. Most Cited Cases care liability action need not marshal all the Identifying the standard of care is critical in an plaintiff's proof. V.T.C.A., Civil Practice & Remed- expert report served by plaintiff in a health care liies Code § 74.351. ability action is critical: whether a defendant breached his or her duty to a patient cannot be de-

[6] Health 198H 804 termined absent specific information about what the defendant should have done differently. V.T.C.A., 198H Health Civil Practice & Remedies Code § 74.351.

198HV Malpractice, Negligence, or Breach of Duty [9] Health 198H 804 198HV(G) Actions and Proceedings 198Hk804 k. Affidavits of merit or merit- 198H Health orious defense; expert affidavits. Most Cited Cases 198HV Malpractice, Negligence, or Breach of While plaintiff's expert report in a health care Duty liability action must do more than simply state the 198HV(G) Actions and Proceedings expert's conclusions about the standard of care, 198Hk804 k. Affidavits of merit or meritbreach , and causation, to avoid dismissal a plaintiff orious defense; expert affidavits. Most Cited Cases need not present evidence in the report as if it were While a fair summary of expert's opinions, as actually litigating the merits, and report can be in- required in an expert report served by plaintiff in a formal in that information in report does not have health care liability action, is something less than a to meet same requirements as the evidence offered full statement of the applicable standard of care and in a summary judgment proceeding or at trial. how it was breached, even a fair summary must set V.T.C.A., Civil Practice & Remedies Code § out what care was expected, but not given. 74.351. V.T.C.A., Civil Practice & Remedies Code § 74.351.

[7] Health 198H 656 [10] Health 198H 804

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340 S.W.3d 529 (Cite as: 340 S.W.3d 529)

198H Health expert report, except for discovery of information 198HV Malpractice, Negligence, or Breach of related to plaintiff's health care, did not limit dis-

Duty covery by patient of information relating to alleged 198HV(G) Actions and Proceedings sexual assault on her in her hospital room following 198Hk804 k. Affidavits of merit or merit- surgery; provision only stated that information reorious defense; expert affidavits. Most Cited Cases lated to a plaintiff's health care “included” medical Patient's expert report was deficient in negli- and billing records. V.T.C.A., Civil Practice & gence action against hospital arising from an al- Remedies Code § 74.351(s). leged sexual assault on patient in her hospital room following surgery, in establishing appropriate *531 Cantey Hanger LLP, Stephen L. Tatum, Carol standard of care for the hospital and the breach of J. Traylor and David Speed, Fort Worth, TX, for that standard; while report opined that there must Appellant. be policies in place to safeguard patients from as-

King Law Office, P.C. and Russell W. King, Stephsault and that hospital must employ sufficient seenville , TX, for Appellee.

curity personnel, it did not state what specific policies and safeguards should have been in place, state the number of security personnel required, or PANEL: LIVINGSTON, C.J.; McCOY and GABestablish the training that hospital staff should have RIEL, JJ. received in identifying persons not authorized to enter patients' rooms. V.T.C.A., Civil Practice & OPINION Remedies Code § 74.351.

BOB McCOY, Justice.

[11] Health 198H 804 I. Introduction In one issue, Appellant Baylor All Saints Med-

198H Health ical Center asserts that the trial court erred when it 198HV Malpractice, Negligence, or Breach of determined that the expert report filed by the Ap-

Duty pellees Pamela and John Martin met the require-

198HV(G) Actions and Proceedings ments of section 74.351 of the civil practice and 198Hk804 k. Affidavits of merit or merit- remedies code. See Tex. Civ. Prac. & Rem.Code orious defense; expert affidavits. Most Cited Cases Ann. § 74.351 (Vernon 2011). We reverse and re-

Mere conclusions about the standard of care in mand.

a plaintiff's expert report are insufficient in a health care liability action. V.T.C.A., Civil Practice & II. Factual and Procedural History Remedies Code § 74.351. The Martins sued Baylor for negligence, alleging that Pamela was sexually assaulted in her [12] Pretrial Procedure 307A 39 hospital room as she recovered from surgery. In support of their claim, the Martins served Baylor 307A Pretrial Procedure with Dr. John C. Shershow, M.D.'s expert report 307AII Depositions and Discovery and curriculum vitae. Baylor objected to the report's 307AII(A) Discovery in General sufficiency, moved to dismiss the Martins' claim, 307Ak36 Particular Subjects of Disclos- and requested attorney's fees. The trial court overure ruled Baylor's objections after a hearing and denied 307Ak39 k. Facts known and opinions Baylor's motion to dismiss and request for attorheld by experts. Most Cited Cases ney's fees. This appeal followed.

Statutory provision that stayed discovery in a health care liability claim until service of plaintiff's III. Expert Report

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340 S.W.3d 529 (Cite as: 340 S.W.3d 529)

Baylor appeals the trial court's order overruling (c) If an expert report has not been served within its objections that the Martins' expert witness report the period specified by Subsection (a) because does not comply with section 74.351, arguing that elements of the report are found deficient, the the report failed to adequately set forth the standard court may grant one 30–day extension to the of care applicable to Baylor and how that standard claimant in order to cure the deficiency.... was breached.

....

A. Standard of Review [1] We review a trial court's denial of a motion (l ) A court shall grant a motion challenging the to dismiss for an abuse of discretion. Jernigan v. adequacy of an expert report only if it appears to Langley, 195 S.W.3d 91, 93 (Tex.2006); *532Maris the court, after hearing, that the report does not v. Hendricks, 262 S.W.3d 379, 383 (Tex.App.-Fort represent an objective good faith effort to comply Worth 2008, pet. denied); Ctr. for Neurological with the definition of an expert report in Subsec- Disorders, P.A. v. George, 261 S.W.3d 285, tion (r)(6). 290–91 (Tex.App.-Fort Worth 2008, pet. denied). A ....

trial court abuses its discretion when it acts in an arbitrary or unreasonable manner or without refer- (r) In this section:.... ence to any guiding rules or principles. Downer v. Aquamarine Operators, Inc., 701 S.W.2d 238, (6) “Expert report” means a written report by 241–42 (Tex.1985), cert. denied, 476 U.S. 1159, an expert that provides a fair summary of the 106 S.Ct. 2279, 90 L.Ed.2d 721 (1986). Merely be- expert's opinions as of the date of the report recause a trial court may decide a matter within its garding applicable standards of care, the mandiscretion in a different manner than an appellate ner in which the care rendered by the physician court would in a similar circumstance does not or health care provider failed to meet the standdemonstrate that an abuse of discretion has oc- ards, and the causal relationship between that curred. Id. However, a trial court has no discretion failure and the injury, harm, or damages in determining what the law is, or in applying the claimed. law to the facts, and thus “a clear failure by the trial court to analyze or apply the law correctly will con- (s) Until a claimant has served the expert report stitute an abuse of discretion.” Walker v. Packer, and curriculum vitae as required by Subsection 827 S.W.2d 833, 840 (Tex.1992) (orig. proceed- (a), all discovery in a health care liability claim is ing); Ehrlich v. Miles, 144 S.W.3d 620, 624 stayed except for the acquisition by the claimant (Tex.App.-Fort Worth 2004, pet. denied). of information, including medical or hospital records or other documents or tangible things, re-

B. Applicable Law lated to the patient's health care[.]

Section 74.351 of the civil practice and remedies code, entitled “Expert Report,” provides, Tex. Civ. Prac. & Rem.Code Ann. § 74.351.

(a) In a health care liability claim, a claimant [2][3] The purpose of the expert report requireshall , not later than the 120th day after the date ment is to inform the defendant of the specific conthe original petition was filed, serve on each duct the plaintiff has called into question and to party or the party's attorney one or more expert provide a basis for the trial court to conclude that reports, ... the claims have merit. Bowie Mem'l Hosp. v.

Wright, 79 S.W.3d 48, 52 (Tex.2002) (citing Am.

.... Transitional Care Ctrs. of Tex., Inc. v. Palacios, 46 S.W.3d 873, 879 (Tex.2001)). When a defendant

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340 S.W.3d 529 (Cite as: 340 S.W.3d 529)

moves to dismiss a plaintiff's claims for failure to Rubio, 185 S.W.3d 842, 853, 855 (Tex.2005) provide the required expert report, (holding that a patient's claim against a nursing home for negligence in failing to provide sufficient The issue for the trial court is whether “the re- staff and supervision to prevent her sexual assault port” represents a good-faith effort to comply by another patient is a health care liability claim). with the statutory definition of an expert report. That definition *533 requires, as to each defend- C. Analysis ant, a fair summary of the expert's opinions about [10] Baylor argues that Dr. Shershow's report the applicable standard of care, the manner in fails to adequately identify the standard of care and which the care failed to meet that standard, and that he does not include specific information about the causal relationship between that failure and what Baylor should have done differently. Dr. Sherthe claimed injury. Because the statute focuses on show's report presents the following as Baylor's what the report discusses, the only information standard of care under the facts of this case: relevant to the inquiry is within the four corners of the document. Standard of Care

Palacios, 46 S.W.3d at 878 (citations omitted). A hospital such as Baylor All Saints Medical [C]enter is expected to adhere to specific stand-

[4][5][6][7][8][9] An expert report “need not ards of care in regard to all of its patients. A bedmarshal all the plaintiff's proof.” Id. at 878–79. rock principal [sic] in providing care to its pa- While the report must do more than simply state the tients is the understanding that all of a hospital's expert's conclusions about the standard of care, patients by nature of their disease or injury are breach, and causation, to avoid dismissal “a potentially vulnerable and necessarily need to replaintiff need not present evidence in the report as ceive treatment in a safe and secure environment. if it were actually litigating the merits. The report The Joint Commission on Accreditation of Health can be informal in that the information in the report Care Organizations (JCAHO) has established in does not have to meet the same requirements as the its Hospital Standards that all healthcare organizevidence offered in a summary-judgment proceed- ations must have in place policies which safeing or at trial.” Id. at 879. guard patients from assault by hospital staff and by strangers that enter the hospital. The JCAHO [t]he standard of care for a hospital is what an or- requires that hospitals adequately implement dinarily prudent hospital would do under the these standards, and monitor this implementation. same or similar circumstances. Identifying the The JCAHO patient security and safety expectastandard of care is critical: Whether a defendant tions would require at a minimum that hospitals breached his or her duty to a patient cannot be should employ a sufficient number of security determined absent specific information about personal [sic] to insure that no unauthorized perwhat the defendant should have done differently. sons enter patients ['] rooms and physically as- “While a ‘fair summary’ is something less than a sault their patients. Additionally, the JCAHO full statement of the applicable standard of care standards would expect that all hospital staff and how it was breached, even a fair summary should be trained to identify persons that are not must set out what care was expected, but not giv- authorized to enter patients['] rooms and should en.” monitor and prevent unauthorized persons from *534 having access to patients receiving treat-

Id. at 880 (citations omitted). Assaults of the ment at the hospital.

type alleged by the Martins are covered by section 74.351. See, e.g., Diversicare Gen. Partner, Inc. v. The Martins reply that the trial court did not

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340 S.W.3d 529 (Cite as: 340 S.W.3d 529)

abuse its discretion by denying Baylor's motion to [12] And although the Martins specifically dismiss, claiming that Dr. Shershow's report was complain that section 74.351(s) only allows discovadequate . They alternatively argue that the medical ery of medical records and billing records, which records that section 74.351(s) allows them to dis- do not contain the circumstances surrounding the cover do not contain adequate information to estab- assault and hence provide no discovery as to whethlish the appropriate standard of care and breach er security standards were met, this is a misreading thereof, and hence, further discovery should be al- of the discovery allowed under section 74.351(s). lowed. Section 74.351(s) allows discovery “of information, including medical or hospital records or other doc-

We observe that the Martins were well aware, uments or tangible things, related to the patient's as set out in their petition, of the alleged facts of the health care.” See Tex. Civ. Prac. & Rem.Code Ann. assault. Hence, it was incumbent upon their expert § 74.351(s) (emphasis added). Furthermore, as asto articulate the standard of care applicable to the saults of the type here are covered by section hospital to prevent such an assault, which does not 74.351, see Rubio, 185 S.W.3d at 851, logically, require a factual inquiry into the measures taken by discovery of the hospital's policies and procedures the hospital to meet this standard of care. regarding the protection of patients from assault must be covered by section 74.351(s). See Tex. Civ.

Dr. Shershow's report opines (1) that Baylor is Prac. & Rem.Code Ann. § 74.351(s) (stating that all expected to adhere to “specific standards of care”

discovery is stayed except for acquisition by the for its patients, (2) that there must be policies in claimant of information related to the patient's place to safeguard patients from assault, including health care); see also Bogar v. Esparza, 257 employing “a sufficient number of security person-

S.W.3d 354, 371–72 (Tex.App.-Austin 2008, no al [sic] to insure that no unauthorized persons aspet .) (op. on reh'g) (noting that the plaintiff has the sault patients and training staff to identify persons burden to establish that section 74.351's discovery not authorized to enter patients['] rooms and prelimitations have in fact prevented her from satisfyvent them from doing so,” and (3) that these standing the statute's expert report requirements and purards must be adequately implemented. These opinsuing her claim). But cf. Simmons v. Texoma Med.

ions do not establish what specific policies and Ctr., 329 S.W.3d 163, 174 (Tex.App.-El Paso 2010, safeguards should have been in place. For example, no pet. h.) (interpreting section 74.351(s) to prethe “policies in place to safeguard patients” are not clude “[d]iscovery of issues such as financial inidentified ; neither are the number of security performation , insurance and indemnity agreements, sonnel required nor the training the staff should corporate organization, *535 and even bylaws, have received regarding identifying unauthorized policies, and procedures” until an expert report is persons. See Wright, 79 S.W.3d at 52 (stating that served).

the expert must explain the basis of his statements to link his conclusions to the facts). Therefore, we hold that with respect to the establishment of the appropriate standard of care for [11] Keeping in mind that mere conclusions Baylor and the breach of that standard, the Martins'

about the standard of care are insufficient, that the expert report was deficient, and the trial court abstandard is “what an ordinary prudent hospital used its discretion by finding otherwise. We sustain would do under the same or similar circumstances,” FN1 Baylor's sole issue.

and that “even a fair summary must set out what care was expected,” see Palacios, 46 S.W.3d at FN1. Based on our resolution, we do not 880, we cannot agree that Dr. Shershow's report reach Baylor's other arguments. See fulfills the required specificity. Tex.R.App. P. 47.1.

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340 S.W.3d 529 (Cite as: 340 S.W.3d 529)

IV. Conclusion Having sustained Baylor's sole issue, we reverse the trial court's order and remand this case to the trial court to consider whether to grant a thirty- day extension to cure the deficiency. See Tex. Civ. Prac. & Rem.Code Ann. § 74.351(c); Leland v. Brandal, 257 S.W.3d 204, 207 (Tex.2008); Foster v. Richardson, 303 S.W.3d 833, 845–46 (Tex.App.-Fort Worth 2009, no pet.).

Tex.App.–Fort Worth,2011. Baylor All Saints Medical Center v. Martin 340 S.W.3d 529

END OF DOCUMENT

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392 S.W.3d 625, 56 Tex. Sup. Ct. J. 298 (Cite as: 392 S.W.3d 625)

106VI(B) Courts of Particular States 106k247 Texas Supreme Court of Texas. 106k247(1) k. Appellate jurisdiction of CERTIFIED EMS, INC. d/b/a CPNS Staffing, Peti- Supreme Court in general. Most Cited Cases tioner, Conflicts between appellate courts over the exv . tent to which an expert report must examine every Cherie POTTS, Respondent. liability theory alleged in a case brought under the Texas Medical Liability Act provided Supreme No. 11–0517.

Court with jurisdiction over interlocutory appeal Argued Oct. 17, 2012.

brought by nurse staffing agency following denial Delivered Feb. 15, 2013.

of agency's motion to dismiss patient's action.

Rehearing Denied March 29, 2013.

V.T.C.A., Civil Practice & Remedies Code § Background: Patient brought vicarious liability 74.351; V.T.C.A., Government Code § 22.225(c). and direct liability action against nurse staffing [2] Health 198H 805 agency that employed contract nurse who assaulted patient while she was in hospital. The 270th Dis- 198H Health trict Court, Harris County, Brent C. Gamble, J., 198HV Malpractice, Negligence, or Breach of denied nurse staffing agency's motion to dismiss, Duty and nurse staffing agency filed interlocutory ap- 198HV(G) Actions and Proceedings peal. The Court of Appeals, 355 S.W.3d 683, af- 198Hk805 k. Sanctions for failing to file firmed. Staffing agency petitioned for review. affidavits; dismissal with or without prejudice.

Most Cited Cases Holding: Upon grant of review, the Supreme Dismissal of patient's claim against nurse staff-

Court, Jefferson, C.J., held that as long as patient's ing agency under the Medical Liability Act, which health care liability claim contained at least one vialleged both vicarious liability and direct liability, able liability theory, as evidenced by an expert rewas not warranted, even though expert reports subport meeting the statutory requirements, the entire mitted by patient only supported her vicarious liabcase was allowed to move forward, disapproving ility claims; as long as patient's health care liability MSHC the Waterton at Cowhorn Creek, LLC v.

claim contained at least one viable liability theory, Miller, 391 S.W.3d 551, Fung v. Fischer, 365 as evidenced by an expert report meeting the stat-

S.W.3d 507, Hendrick Med. Ctr. v. Miller, 2012 utory requirements, the entire case was allowed to WL 314062, River Oaks Endoscopy Ctrs., L.L.P. v.

move forward; disapproving MSHC the Waterton at Serrano, 2011 WL 303795, Beaumont Bone & Cowhorn Creek, LLC v. Miller, 391 S.W.3d 551, Joint, P.A. v. Slaughter, 2010 WL 730152, and Azle Fung v. Fischer, 365 S.W.3d 507, Hendrick Med.

Manor, Inc. v. Vaden, 2008 WL 4831408.

Ctr. v. Miller, 2012 WL 314062, River Oaks Endo-

Affirmed. scopy Ctrs., L.L.P. v. Serrano, 2011 WL 303795, Beaumont Bone & Joint, P.A. v. Slaughter, 2010 West Headnotes WL 730152, and Azle Manor, Inc. v. Vaden, 2008 WL 4831408. V.T.C.A., Civil Practice & Remedies [1] Courts 106 247(1) Code § 74.351.

106 Courts [3] Health 198H 804 106VI Courts of Appellate Jurisdiction

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392 S.W.3d 625, 56 Tex. Sup. Ct. J. 298 (Cite as: 392 S.W.3d 625)

198H Health Under the Medical Liability Act, an expert re-

198HV Malpractice, Negligence, or Breach of port that adequately addresses at least one pleaded Duty liability theory satisfies the statutory requirements, 198HV(G) Actions and Proceedings and the trial court must not dismiss in such a case.

198Hk804 k. Affidavits of merit or merit- V.T.C.A., Civil Practice & Remedies Code § orious defense; expert affidavits. Most Cited Cases 74.351.

An expert report that satisfies the statutory requirements under the Medical Liability Act, even if [6] Health 198H 804 as to only one theory of liability, entitles the 198H Health claimant to proceed with a suit against the physi-

198HV Malpractice, Negligence, or Breach of cian or health care provider. V.T.C.A., Civil Prac-

Duty tice & Remedies Code § 74.351(r)(6).

198HV(G) Actions and Proceedings [4] Health 198H 804 198Hk804 k. Affidavits of merit or meritorious defense; expert affidavits. Most Cited Cases 198H Health When a health care liability claim involves a 198HV Malpractice, Negligence, or Breach of vicarious liability theory, either alone or in combin-

Duty ation with other theories, an expert report that 198HV(G) Actions and Proceedings meets the statutory standards as to the employee is 198Hk804 k. Affidavits of merit or merit- sufficient to implicate the employer's conduct under orious defense; expert affidavits. Most Cited Cases the vicarious theory, and if any liability theory has An expert report filed pursuant to the Medical been adequately covered, the entire case may pro-

Liability Act must inform the defendant of the spe- ceed. V.T.C.A., Civil Practice & Remedies Code § cific conduct the plaintiff has called into question 74.351. and must provide a basis for the trial court to conclude that the claims have merit. V.T.C.A., Civil *626 Debra Ibarra Mayfield, Harris County Civil Practice & Remedies Code § 74.351(r)(6). Courts at Law # 1, Harris County Civil Courthouse, Houston, TX, Laura Denise Wilson Slay and Nath-

[5] Health 198H 804 an Montgomery Rymer, Rymer Moore Jackson & Echols, P.C., Houston, TX, for Certified EMS, Inc.

198H Health 198HV Malpractice, Negligence, or Breach of Clinton E. Wells Jr., John T. McDowell, McDowell Duty Wells LLP, Houston, TX, Vincent L. Marable III, 198HV(G) Actions and Proceedings Paul Webb PC, Wharton, TX, for Cherie Potts.

198Hk804 k. Affidavits of merit or meritorious defense; expert affidavits. Most Cited Cases Chief Justice JEFFERSON delivered the opinion of Health 198H 805 the Court.

A patient alleged that a hospital nurse, who 198H Health was temporarily placed with the hospital by a staff-

198HV Malpractice, Negligence, or Breach of ing service, assaulted her. The patient sued under Duty the Texas Medical Liability Act, asserting that the 198HV(G) Actions and Proceedings staffing service was directly and vicariously liable 198Hk805 k. Sanctions for failing to file for the nurse's conduct. The staffing service sought affidavits; dismissal with or without prejudice. dismissal because the patient's expert reports did Most Cited Cases not specify how the service was directly negligent.

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392 S.W.3d 625, 56 Tex. Sup. Ct. J. 298 (Cite as: 392 S.W.3d 625)

The service has not challenged, in this Court, the court gave Potts thirty days to cure the alleged defireports ' adequacy concerning its vicarious liability. ciencies. See id. § 74.351(c). In response, Potts supplemented Nurse Foster's original report and The trial court denied the motion to dismiss, provided a new one from Dr. Milton Altschuler, and the court of appeals affirmed. It held that be- M.D. cause the reports support a theory of vicarious liability against the staffing service, the lack of a de- The relevant portions of Nurse Foster's supplescription supporting direct liability is not fatal to mented report outline the appropriate standard of the claimant's maintaining her cause of action. We care for nurses and nursing agencies, describe the agree with the court of appeals, but for different steps that should have been taken by Hardin and reasons. Accordingly, we affirm the court of ap- Certified EMS to prevent the assaults, and conclude peals' judgment. that Hardin's and Certified EMS's failures caused Potts's injuries. Dr. Altschuler's report states that I. Background Hardin engaged in sexually inappropriate and in-

Cherie Potts was admitted to Christus St. Cath- trusive conduct, causing the injuries that Potts has erine's Hospital for treatment of a kidney infection. alleged. One of the nurses assigned to her care, Les Hardin, was referred to the hospital by a staffing service Certified EMS objected to the newly submitted owned by Certified EMS. Potts claims that Hardin reports and moved to dismiss on numerous grounds, assaulted her sexually and verbally during her hos- among them that the reports omitted any explicit pital stay. Potts alleges that the assaults caused her reference to Certified EMS's direct liability for anxiety and physical pain. She sued the hospital, Hardin's conduct.

FN1 Hardin, and Certified EMS.

The trial court denied the motion, and Certified FN1. Christus St. Catherine's Hospital and EMS appealed. See TEX. CIV. PRAC. & Les Hardin are not parties to this inter- REM.CODE § 51.014(a)(9) (allowing interlocutory locutory appeal. appeal of an order denying relief sought by motion under section 74.351(b) in certain circumstances).

Potts claimed that Certified EMS was directly The court of appeals affirmed, holding (as relevant liable for Hardin's conduct because it failed to here) that “if the claimant timely serves an expert properly train and oversee its staff, enforce applic- report that adequately addresses at least one liabilable standards of care, and employ protocols to en- ity theory against a defendant health care provider, sure quality patient care and adequate staff supervi- the suit can proceed, including discovery, without sion. Potts also alleged that Certified*627 EMS was the need for every liability theory to be addressed vicariously liable under the theory of respondeat FN2 in the report.” 355 S.W.3d 683, 693. We gransuperior . ted Certified EMS's petition for review, which raises a single issue: Must a claimant in a health Because Potts sued under the Texas Medical care liability suit provide an expert report for each Liability Act, she was required to serve each depleaded liability theory? 55 Tex. Sup. Ct. J. 461 fendant with an expert report that met certain stat-

(Mar. 30, 2012).

utory requirements. See TEX. CIV. PRAC. & REM.CODE § 74.351 (outlining requirements and FN2. The court of appeals also determined guidelines for expert reports in health care liability that the expert reports that Potts provided claims). Potts timely served reports from Nurse S. to Certified EMS sufficiently addressed Francis Scholl Foster and Dr. Kit Harrison, Ph.D. her vicarious liability theory, but failed to Certified EMS challenged the reports, and the trial address her direct liability theories. 355

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392 S.W.3d 625, 56 Tex. Sup. Ct. J. 298 (Cite as: 392 S.W.3d 625)

S.W.3d at 686. Neither party has chal- of action in order for the claimant to prolenged those conclusions. ceed with the entire cause of action against the defendant”); Nexion Health at Duncan-

II. Conflict Among the Courts of Appeals ville, Inc. v. Ross, 374 S.W.3d 619, 626 [1] Numerous appellate decisions have dis- (Tex.App.-Dallas 2012, pet. denied)

cussed the extent to which an expert report must ex- (holding that an expert report need “not adamine every liability theory alleged. The cases dress each ‘specific act of negligence’ reach varied results. Several courts of appeals, like pleaded by a plaintiff ... [to] satisfy the two the court of appeals in this case, have determined intended purposes of the expert report rethat a claimant's expert report(s) need address only quirement”); Univ. of Tex. Med. Branch at FN3 a single theory for the entire suit to proceed. Galveston v. Qi, 370 S.W.3d 406, 415–16 Some of those decisions rely on *628 Potts, either (Tex.App.-Houston [14th Dist.] 2012, no FN4 indirectly or explicitly. The Potts court focused pet.) (referencing the Potts court's reasonon the Act's plain language, specifically on the re- ing when it held that an expert report need quirement that an expert report be served “[i]n a not address “every act or omission menhealth care liability claim,” which the statute fur- tioned in the pleadings, so long as at least ther defines as a “cause of action.” See 355 S.W.3d one liability theory within each cause of at 690–92; see also TEX. CIV. PRAC. & action is sufficiently addressed”); Clear REM.CODE § 74.001(a)(13) ( “ ‘Health care liabil- Lake Rehab. Hosp., L.L.C. v. Karber, No. ity claim’ means a cause of action against a health 01–09–00883–CV, 2010 WL 987758, at *5 care provider or physician for treatment, lack of n. 7 (Tex.App.-Houston [1st Dist.] Mar. treatment, or other claimed departure from accepted 18, 2010, no pet.) (mem.op.) (suggesting standards of medical care, or health care, or safety that a report that is adequate as to one theor professional or administrative services directly ory of liability can move an entire cause of related to health care, which proximately results in action past the expert report stage). injury to or death of a claimant, whether the claimant's claim or cause of action sounds in tort or FN4. See, e.g., Laurel Ridge Treatment contract.”). Relying on our discussion of “cause of Ctr., 2012 WL 3731748, at *1; Nexion action” in In re Jorden, 249 S.W.3d 416 (Tex.2008) Health, 374 S.W.3d at 626–27. , the Potts court reasoned that the Act requires an expert report only for each set of operative facts Other courts insist that an expert report must FN5 that give rise to one or more bases for suing. 355 specifically address each liability theory. Un- S.W.3d at 691. Thus, if an expert report adequately supported theories must be dismissed. Those courts addresses a single liability theory within a cause of also look to the statute's language. Some interpret action, the entire case may proceed. Id. “health care liability claim” to mean a single*629 FN6 theory of liability. Thus, when the statute re-

FN3. See Laurel Ridge Treatment Ctr. v. quires that a “liability claim” be supported by an Garcia, No. 04–12–00098–CV, 2012 WL expert report, these courts reason that the report 3731748, at *1 (Tex.App.-San Antonio must address each liability theory. Other courts of Aug. 29, 2012, pet. filed) (mem.op.) appeals interpret “health care liability claim” to (holding that the trial court did not abuse mean a cause of action, or set of operative facts, its discretion when it denied defendant's like the Potts court did. But unlike the Potts court, motion to dismiss because an “expert re- they reason that different theories of liability must port is required to be adequate with regard be based on different sets of operative facts and to only one liability theory within a cause each, therefore, requires its own expert report. In

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392 S.W.3d 625, 56 Tex. Sup. Ct. J. 298 (Cite as: 392 S.W.3d 625)

that respect, several cases have held that direct and pet.) (mem. op.) (holding that a claimant vicarious liability theories involve different sets of alleging theories of direct and vicarious lioperative facts because “the facts required to estab- ability must provide an expert report that lish the defendant's vicarious liability, i.e., the acts addresses all theories so that the defendant of [the agent and his relationship] to [the principal], can be made aware of the specific conduct differ from the facts required to establish the ... de- being called into question); Beaumont fendant's direct liability, i.e., [its] provision of par- Bone & Joint, P.A. v. Slaughter, No. ticular policies and procedures.” Fung v. Fischer, 09–09–00316–CV, 2010 WL 730152, at 365 S.W.3d 507, 522 (Tex.App.-Austin 2012, no *3–4 (Tex.App.-Beaumont Mar. 4, 2010, pet.); see also MSHC the Waterton at Cowhorn pet. denied) (mem.op.) (holding that al- Creek, LLC v. Miller, 391 S.W.3d 551, 560 though vicarious liability claims were suf- (Tex.App.-Texarkana, no pet.) (“The facts required ficiently addressed in an expert report, dirto establish direct liability here are qualitatively ect liability claims were not, and should different from the facts necessary to establish ... vi- have been dismissed); Azle Manor, Inc. v. carious liability....”). Vaden, No. 2–08–115–CV, 2008 WL 4831408, at *10 (Tex.App.-Fort Worth FN5. See MSHC the Waterton at Cowhorn Nov. 6, 2008, no pet.) (mem.op.) (holding Creek, LLC v. Miller, 391 S.W.3d 551, 560 that although vicarious liability claims (Tex.App.-Texarkana, no pet.) (holding against two doctors were sufficiently adthat the claimant's expert reports must ad- dressed in two expert reports, the direct lidress vicarious and direct liability claims ability claims were not, and thus the trial separately because the theories were based court abused its discretion when it denied on two different sets of operative facts, the defendant doctors' motion to dismiss which were “qualitatively different from the direct liability claims). the facts necessary to establish [the employer 's] vicarious liability for the acts or FN6. See, e.g., Hendrick Med. Ctr., 2012 omissions of its staff”); Fung v. Fischer, WL 314062, at *3. 365 S.W.3d 507 (Tex.App.-Austin 2012, no pet.) (finding that because the Still other courts have addressed questions that claimant's theories of liability were both vary slightly from the one before us today. These vicarious and direct and thus based on dif- courts have engaged in analyses that demonstrate ferent sets of operative facts, the expert re- the need to definitively resolve the question of how port that only addressed the employee's expert reports treat multiple theories of liability.

FN7 conduct was not sufficient to impose direct liability on the employer); Hendrick Med.

FN7. See Marino v. Wilkins, No.

Ctr. v. Miller, No. 11–11–00141–CV, 2012 01–11–00835–CV, 2012 WL 749997, at WL 314062, at *3 (Tex.App.-Eastland Jan.

*8–10 (Tex.App.-Houston [1st Dist.] Mar.

26, 2012, no pet.) (mem. op.) (holding that 8, 2012, pet. denied) (holding, under the direct and vicarious liability claims must Potts reasoning, that a health care liability be evaluated separately to determine suit may proceed under one liability theory whether each claim was sufficiently supif the defendant does not move to dismiss ported by an expert report); River Oaks all theories of liability in his challenge to Endoscopy Ctrs., L.L.P. v. Serrano, No.

the expert reports); Petty v. Churner, 310 09–10–00201–CV, 2011 WL 303795, at *2 S.W.3d 131, 138 (Tex.App.-Dallas 2010, (Tex.App.-Beaumont Jan. 27, 2011, no no pet.) (concluding that the trial court

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392 S.W.3d 625, 56 Tex. Sup. Ct. J. 298 (Cite as: 392 S.W.3d 625)

properly dismissed direct liability claims theory, the trial court must dismiss those theories because the vicarious and direct liability that are unsupported by a report. Thus, if a theories were based on two different stand- plaintiff's allegations include both direct and vicariards of care, and an expert report that only ous liability claims, the report is deficient if it does addressed the vicarious theory did not meet not cover both. We are not persuaded. the statutory requirements); Obstetrical and Gynecological Assocs., P.A. v. McCoy, *630 Several courts of appeals rely on the stat- 283 S.W.3d 96, 105–06 ute's use of the term “cause of action” to decide this (Tex.App.-Houston [14th Dist.] 2009, pet. issue. When we discussed the phrase in In re denied) (deciding that a claimant need not Jorden, we noted that it “generally applies to facts, provide an expert report addressing an em- not filings.” Jorden, 249 S.W.3d at 421. We also ployer's conduct if the claimant only seeks looked to Black's Law Dictionary, which “defines to hold the employer liable under a vicari- ‘cause of action’ as [a] group of operative facts givous liability theory, noting that there is a ing rise to one or more bases for suing; a factual distinction between allegations of liability situation that entitles one person to obtain a remedy made against the employer based on the in court from another person.” Id. (quoting conduct of employees versus allegations of BLACK'S LAW DICTIONARY 235 (8th direct liability based on the conduct of the ed.2004)). From this, several appellate courts have employer entity itself); Methodist Charlton relied on “operative facts” to reach opposing res- Med. Ctr. v. Steele, 274 S.W.3d 47, 50–51 ults—either that an expert report must address FN9 (Tex.App.-Dallas 2008, pet. denied) every pleaded liability theory, or that it need FN10 (holding that because the claimant failed to not. The competing conclusions demonstrate timely serve expert reports related to the the pitfalls of this approach. direct liability claims against defendants FN9. See, e.g., MSHC the Waterton, 391 that were added in an amended petition, S.W.3d at 558–59.

those particular claims should have been dismissed; but, the vicarious liability FN10. See, e.g., Qi, 370 S.W.3d at 415–16. claims, based on the conduct of a nurse employee, were addressed in a timely re- The focus on operative facts raises more quesport and could move forward). tions than it answers. Are the “operative facts” underlying alleged liability for failure to train differ-

These conflicts give us jurisdiction over this in- ent from the underlying allegations of vicarious literlocutory appeal. TEX. GOV'T CODE § ability for medical malpractice? The court of ap-

FN8 FN11 22.225(c). peals here said no, but others would say yes.

FN12 Would each of Potts 's direct liability theories FN8. See also TEX. GOV'T CODE § against Certified EMS—for failing to train its em-

22.225(e) (noting that “one court holds difployees , failing to enforce accepted standards of ferently from another when there is inconcare , and failing to employ protocols to ensure sistency in their respective decisions that quality care for patients—require its own expert reshould be clarified to remove unnecessary port, because the facts underlying each allegation uncertainty in the law and unfairness to litmay differ? Will, as the cases suggest, the relevant igants”).

operative facts be disputed in every case, leading to III. Addressing Theories of Liability additional time, expense, and interlocutory appeals?

[2] Certified EMS contends that if a claimant's FN11. 355 S.W.3d at 690–92.

report does not adequately address each asserted

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392 S.W.3d 625, 56 Tex. Sup. Ct. J. 298 (Cite as: 392 S.W.3d 625)

FN12. See, e.g., MSHC the Waterton, 391 ence. Rather, “to avoid dismissal ... [t]he report can S.W.3d at 558–59; Fung, 365 S.W.3d at be informal in that the information in the report 522. does not have to meet the same requirements as the evidence offered in a summary-judgment proceed-

[3] We appreciate the courts of appeals' reason- ing or at trial.” Id. For the particular liability theory ing, but decline to follow that approach. No provi- addressed, the report must sufficiently describe the sion of the Act requires an expert report to address defendant's alleged conduct. Such a report both ineach alleged liability theory. The Act requires a forms a defendant of the behavior in question and claimant to file an expert report “[i]n a health care allows the trial court to determine if the allegations liability claim.” TEX. CIV. PRAC. & REM.CODE have merit. If the trial court decides that a liability § 74.351(a). Once an expert report is timely served theory is supported, then the claim is not frivolous, and properly challenged, the trial court: and the suit may proceed.

shall grant a motion challenging the adequacy of IV. Legislative Intent an expert report only if it appears to the court, This approach is consistent with the Legisafter hearing, that the report does not represent an lature's intent. See Molinet v. Kimbrell, 356 S.W.3d objective good faith effort to comply with the 407, 411 (Tex.2011) (“Our primary objective in definition of an expert report. construing statutes is to give effect to the Legislature 's intent.”). In amending the Act, the Legis-

Id. § 74.351(l ); see also Loaisiga v. Cerda, lature sought to reduce “the excessive frequency 379 S.W.3d 248, 260 (Tex.2012) (same). A valid and severity of ... claims,” but to “do so in a manexpert report has three elements: it must fairly sumner that will not unduly restrict a claimant's rights marize the applicable standard of care; it must exany more than necessary to deal with the crisis.”

plain how a physician or health care provider failed Act of June 11, 2003, 78th Leg., R.S., ch. 204, § to meet that standard; and it must establish the 10.11(b)(1), (3), 2003 Tex. Gen. Laws 847, 884. In causal relationship between the failure and the harm accordance with this goal, we have opined that one alleged. TEX. CIV. PRAC. & REM.CODE § purpose of the report requirement is “to expedi-

74.351(r)(6); see Scoresby v. Santillan, 346 S.W.3d tiously weed out claims that have no merit.”

546, 556 (Tex.2011). A report that satisfies these Loaisiga, 379 S.W.3d at 263. We have also stated requirements, even if as to one theory only, entitles that the purpose of evaluating expert reports is “to the claimant to proceed with a suit against the physdeter frivolous claims, not to dispose of claims reician or health care provider.

gardless of their merits.” Scoresby, 346 S.W.3d at [4] The report serves two functions. “First, the 554; see also Loaisiga, 379 S.W.3d at 258 report must inform the defendant of the specific (recognizing that the expert report “requirements conduct the plaintiff has called into question. are meant to identify frivolous claims and reduce Second, and equally important, the report must the expense and time to dispose of any that are provide a basis for the trial court to conclude that filed”); In re Jorden, 249 S.W.3d at 421. the claims have merit.” Am. Transitional Care Ctrs.

Our holding today satisfies these purposes. If a of Tex., Inc. v. Palacios, 46 S.W.3d 873, 879 health care liability claim contains at least one vi-

(Tex.2001).

able liability theory, as evidenced by an expert re-

A report need not cover every alleged liability port meeting the statutory requirements, the claim theory to make the defendant aware of the conduct cannot be frivolous. The Legislature's goal was to that is at issue. Palacios recognized that an expert deter baseless claims, not to block earnest ones. report *631 does not require litigation-ready evid- Potts demonstrated to the trial court that at least

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392 S.W.3d 625, 56 Tex. Sup. Ct. J. 298 (Cite as: 392 S.W.3d 625)

one of her alleged theories—vicarious liabil- It may be difficult or impossible for a claimant ity—had expert support. She cleared the first to know every viable liability theory within 120 hurdle, and the appeals court correctly recognized days of filing suit, and the Act reflects this reality. her right to have the entire case move forward. 355 It strictly limits discovery until expert reports have S.W.3d at 693. been provided, and we have held that the statute's plain language prohibits presuit depositions author-

V. Efficient and Practical Litigation ized under Rule 202 of the Texas Rules of Civil Certified EMS argues that this holding will Procedure. See TEX. CIV. PRAC. & REM.CODE § prolong litigation by forcing defendants to defend 74.351(s); TEX.R. CIV. P. 202; In re Jorden, 249 meritless claims. For two reasons, we disagree. S.W.3d at 418. The Act requires the expert report to First, if there is at least one valid theory, the de- summarize the expert's opinions “as of the date of fendant will be engaged in further litigation regard- the report,” recognizing that those opinions are subless of the merits of the remaining theories. De- ject to further refinement. Id. § 74.351(r)(6). Disfending those theories would not be unduly burden- covery can reveal facts supporting additional liabilsome . The converse is not true. To require an expert ity theories, and the Act does not prohibit a report for each and every theory would entangle the claimant from amending her petition accordingly. courts and the parties in collateral fights about in- Under Certified EMS's reasoning, a claimant would tricacies of pleadings rather than the merits of a have to serve an expert report each time a new thecause of action, creating additional expense and ory is discovered. Not only would that be impracdelay as trial and appellate courts parse theories tical, it would prohibit altogether those theories asthat could be disposed of more simply through oth- serted more than 120 days after the original petition er means as the case progresses. Cf. Scoresby, 346 was filed—effectively eliminating a claimant's abil- S.W.3d at 549 (applying a “lenient standard” to a ity to add newly discovered theories. See id. § plaintiff's right to cure a deficient report, noting 74.351(a) (requiring that expert report be filed “not that approach “avoids the expense and delay of later than the 120th day after the date the original multiple interlocutory appeals and assures a petition was filed”). We see no indication that the claimant a fair opportunity to demonstrate that his Legislature intended such a result. claim is not frivolous”).

[5] In sum, an expert report that adequately ad-

This leads to our second point. The expert re- dresses at least one pleaded liability theory satisfies port requirement is a threshold mechanism to dis- the statutory requirements, and the trial court must pose of claims lacking merit, but reports are not the not dismiss in such a case. To the extent other cases only means to address weak subsets of those hold differently, we disapprove of them. claims. *632 The original and amended petitions inform a defendant of the claims against it and limit VI. Gardner v. U.S. Imaging, Inc., 274 S.W.3d what a plaintiff may argue at trial. Discovery al- 669 (Tex. 2008) (per curiam) lows a claimant to refine her pleadings to abandon Finally, we address Certified EMS's argument untenable theories and pursue supported ones. Sum- that Gardner, precludes the result we reach today. mary judgment motions permit trial courts to dis- In Gardner, we stated that “[w]hen a party's alleged pose of claims that lack evidentiary support. But health care liability is purely vicarious, a report that while a full development of all liability theories adequately implicates the actions of that party's may be required for pretrial motions or to convince agents or employees is sufficient.” Gardner v. U.S. a judge or jury during trial, there is no such require- Imaging, Inc., 274 S.W.3d 669, 671–72 (Tex.2008) ment at the expert report stage. See Palacios, 46 (per curiam). Certified EMS argues that because S.W.3d at 879. Potts's theories are not purely vicarious, Gardner

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392 S.W.3d 625, 56 Tex. Sup. Ct. J. 298 (Cite as: 392 S.W.3d 625)

implies that each must be addressed in an expert report .

[6] We disagree that Gardner compels such a conclusion. Our statement distinguished between expert reports required for vicarious liability claims, in which merely implicating the agent's conduct is sufficient, and those required for direct ones, in which the employer's conduct must be implicated . But we did not address the effect of such a report in a claim involving both vicarious and direct liability. To clarify, when 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. And if any liability theory has been adequately covered, the entire case may proceed.

VII. Conclusion Because Potts's reports sufficiently addressed one liability theory, the trial court *633 correctly denied the motion to dismiss. We affirm the court of appeals' judgment. TEX.R.APP. P. 60.2(a).

Tex.,2013. Certified EMS, Inc. v. Potts 392 S.W.3d 625, 56 Tex. Sup. Ct. J. 298

END OF DOCUMENT

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Not Reported in S.W.3d, 2014 WL 538815 (Tex.App.-Austin) (Cite as: 2014 WL 538815 (Tex.App.-Austin))

Dr. Chadha told her to take prednisone to treat the Only the Westlaw citation is currently available. symptoms that she was experiencing in her hands, hips, and neck. Dr. Chadha also mentioned the el-

SEE TX R RAP RULE 47.2 FOR DESIGNATION evated sedimentation rate. At the end of the con- AND SIGNING OF OPINIONS. sultation, Dr. Chadha asked Sharon to call him and let him know how she was responding to the medic-

MEMORANDUM OPINION ation. Sharon did not call. Approximately one year Court of Appeals of Texas, later, Sharon went to the emergency room because Austin. she was experiencing vision loss. During her treat-

Anurekha CHADHA, M.D. and Austin Regional ment, Sharon was diagnosed with temporal arteritis.

Clinic, P.A., Appellants As a result of her condition, Sharon is now legally v. blind.

Sharon ROTHERT and Fred Rothert, Appellees.

Subsequent to Sharon receiving her diagnosis, No. 03–13–00153–CV. the Rotherts filed suit against Austin Regional.

Feb. 5, 2014. After the Rotherts filed an expert report, see Tex.

Civ. Prac. & Rem.Code § 74.351 (requiring From the District Court of Travis County, 201st Ju- claimant in health care claim to file expert report), dicial District, No. D–1–Gn–12–001752, Honorable Austin Regional asserted that the report was defi- Lora J. Livingston, Judge Presiding. cient and not a good faith effort to comply with the Michelle M. Cheng, William O. Whitehurst, Eu- governing statutory framework, id. § 74.351(c) gene W. Brees, II, Whitehurst, Harkness, Brees & (explaining that report may be challenged if ele- Cheng, P.C., Austin, TX, for appellee. ments of report are deficient). Accordingly, Austin Regional asked the district court to dismiss the Beth Harkins Miller, Ballard & Simmons, LLP, case. Id. § 74.351(b) (stating that if expert report Austin, TX, for appellant. has not been timely served, trial court must dismiss claim if defendant files motion seeking dismissal), ( Before Justices PURYEAR, ROSE, and GOOD- l ) (allowing court to grant motion challenging ad- WIN. equacy of report if “report does not represent good faith effort to comply with the definition of an expert report”). After considering Austin Regional's MEMORANDUM OPINION motion and the responses by the Rotherts, the dis-

DAVID PURYEAR, Justice. trict court overruled Austin Regional's objections to *1 Sharon and Fred Rothert filed a health- the report and denied its motion to dismiss. Austin care-liability claim against Anurekha Chadha, Regional appeals the order of the district court. See M.D., and Austin Regional Clinic, P.A. id. § 51.014(a)(9) (authorizing interlocutory appeal (cumulatively Austin Regional). In June 2010, of denial of motion to dismiss for failure to file ex- Sharon went to see Dr. Chadha regarding pain in pert report); Ogletree v. Matthews, 262 S.W.3d her hands, hips, and neck. In the course of treat- 316, 320–21 (Tex.2007) (discussing statutory proment , Dr. Chadha ordered an erythrocyte sediment- visions governing appeals of rulings challenging ation rate test for inflammation. The test revealed expert reports). that Sharon had an elevated sedimentation rate. Sharon returned to Dr. Chadha one month later, and In its appeal, Austin Regional challenges the district court's ruling regarding its objections to the

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Not Reported in S.W.3d, 2014 WL 538815 (Tex.App.-Austin) (Cite as: 2014 WL 538815 (Tex.App.-Austin))

adequacy of the expert report and its accompanying standard of care. Instead, Austin Regional limits its motion to dismiss. We review a trial court's ruling challenge to the causation element. regarding the adequacy of an expert report for an abuse of discretion. TTHR Ltd. P'ship v. Moreno, In his report, Dr. Rushing stated that the stand- 401 S.W.3d 41, 44 (Tex.2013); see also Bowie ard of care in these circumstances “required that Mem'l Hosp. v. Wright, 79 S.W.3d 48, 52 Dr. Chadha follow-up with the patient regarding the (Tex.2002) (describing abuse-of-discretion stand- elevated sedimentation rate in 2010.” Specifically, ard). the report opined that Dr. Chadha “should have called [Sharon] and had her return for a follow-up”

An expert report serves two purposes: it in- because “Dr. Chadha knew or should have known forms the defendant about the specific conduct that that a sedimentation rate of 52 mm in one hour is a the claimant believes to be improper, and it major abnormality and requires a comprehensive provides “ ‘a basis for the trial court to conclude evaluation to try to find the cause.” In fact, Dr. that the claims have merit.’ “ Certified EMS, Inc. v. Rushing related that Dr. Chadha should have per- Potts, 392 S.W.3d 625, 630 (Tex.2013) (quoting formed “a comprehensive workup to determine the American Transitional Care Ctrs. of Tex., Inc. v. cause of the elevated sedimentation rate, including Palacios, 46 S.W.3d 873, 879 (Tex.2001)). Under an examination of the temporal arteries; a thorough the governing statute, an expert report is “a written inquiry of [Sharon] regarding the presence of other report by an expert that provides a fair summary of symptoms signaling temporal arteritis”; and a temthe expert's opinions as of the date of the report re- poral artery biopsy “if necessary and if [Sharon]'s garding applicable standards of care, the manner in sedimentation rate continued to stay elevated.” Furwhich the care rendered by the physician or health thermore, Dr. Rushing explained that temporal arcare provider failed to meet the standards, and the teritis can be present for months and that the discausal relationship between that failure and the in- ease and symptoms can evolve over time. Accordjury , harm, or damages claimed.” Tex. Civ. Prac. & ingly, Dr. Rushing stated that the elevated sedi- Rem.Code § 74.351(r)(6). If a report satisfies these mentation rate was, in his opinion, an early symprequirements , “even if as to one theory only,” the tom of temporal arteritis. In light of the above, Dr. claimant may proceed with his “suit against the Rushing related that it “was more likely than not” physician or health care provider.” Potts, 392 that a thorough “workup ... would have revealed S.W.3d at 630. In determining whether the report is that the cause of the elevated sedimentation rate sufficient, courts “look no further than the report it- was temporal arteritis,” that a follow up would have self.” HEB Grocery Co., L.L.P. v. Farenik, 243 lead to a diagnosis of and treatment for temporal ar- S.W.3d 171, 174 (Tex.App.-San Antonio 2007, no teritis, and that it was “more likely than not” that pet.). Moreover, the report may be informal, mean- early treatment would have prevented Sharon from ing “that the information in the report does not have suffering any visual loss. Finally, Dr. Rushing to meet the same requirement as the evidence stated that Dr. Chadha's actions “proximately offered in a summary judgment proceeding,” id., caused” Sharon to suffer visual loss. and the report need not “rule out every possible cause of the injury, harm, or damages claimed,” Given the language of the report, we cannot Baylor Med. Ctr. v. Wallace, 278 S.W.3d 552, 562 conclude that the district court abused its discretion (Tex.App.-Dallas 2009, no pet.). by determining that the report provided the requisite causal relationship. See Farenik, 243 S.W.3d at *2 In this case, Austin Regional does not chal- 174 (explaining that report must explain basis of lenge the qualification of the expert preparing the expert's statements “to link his conclusions to the report, Dr. Life Rushing, and does not challenge the facts”). For that reason, we also cannot conclude

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Not Reported in S.W.3d, 2014 WL 538815 (Tex.App.-Austin) (Cite as: 2014 WL 538815 (Tex.App.-Austin))

that the district court abused its discretion by overruling Austin Regional's objections to the expert report or by denying Austin Regional's motion to dismiss . Accordingly, we overrule Austin Regional's issue on appeal and affirm the district court's order.

Tex.App.-Austin,2014. Chadha v. Rothert Not Reported in S.W.3d, 2014 WL 538815 (Tex.App.-Austin)

END OF DOCUMENT

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328 S.W.3d 637 (Cite as: 328 S.W.3d 637)

30XVI Review 30XVI(H) Discretion of Lower Court Court of Appeals of Texas, 30k960 Rulings on Motions Relating to Dallas. Pleadings CHRISTIAN CARE CENTERS, INC., Appellant, 30k960(1) k. In general. Most Cited v. Cases Jane GOLENKO, Jean Miller, and Judy Miller, In- Appellate court reviews a trial court's order on dividually and on Behalf of The Estate of Nell Con- a motion to dismiss a health care liability claim for nally, Deceased, Appellees. an abuse of discretion.

No. 05–09–01521–CV. [2] Appeal and Error 30 946 Nov. 4, 2010.

Rehearing Overruled Jan. 6, 2011. 30 Appeal and Error 30XVI Review Background: Estate of deceased nursing home res- 30XVI(H) Discretion of Lower Court ident, who died after hitting her head when pushed 30k944 Power to Review to the floor by another resident who had 30k946 k. Abuse of discretion. Most Alzheimer's disease, brought health care liability Cited Cases action against nursing home. The 192nd Judicial A trial court abuses its discretion when it acts District Court, Dallas County, Craig Smith, J., in an arbitrary or unreasonable manner without refdenied nursing home's motion to dismiss. Nursing erence to any guiding rules or principles. home filed interlocutory appeal.

[3] Appeal and Error 30 946 Holdings: The Court of Appeals, Fillmore, J., held that: 30 Appeal and Error (1) doctor was qualified to testify as an expert re- 30XVI Review garding assessment and care of individuals with 30XVI(H) Discretion of Lower Court Alzheimer's disease; 30k944 Power to Review (2) nurse was qualified to testify as an expert re- 30k946 k. Abuse of discretion. Most garding standard of care for nursing home staff; Cited Cases (3) nursing home administrator was qualified to A trial court abuses its discretion when it testify as an expert regarding standard of care for clearly fails to analyze and determine the law coradmission of a patient with Alzheimer's disease; rectly or applies the law incorrectly to the facts. (4) doctor was qualified to testify to causation; and (5) expert reports constituted good faith efforts to [4] Health 198H 804 comply with requirements for expert reports in 198H Health health care liability actions.

198HV Malpractice, Negligence, or Breach of Affirmed. Duty 198HV(G) Actions and Proceedings West Headnotes 198Hk804 k. Affidavits of merit or meritorious defense; expert affidavits. Most Cited Cases [1] Appeal and Error 30 960(1) In determining sufficiency of expert's report in health care liability action, the court may not look 30 Appeal and Error beyond the report itself because all information rel-

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328 S.W.3d 637 (Cite as: 328 S.W.3d 637)

evant to the inquiry should be contained with the Not every licensed doctor is automatically document's four corners. V.T.C.A., Civil Practice & qualified to testify on every medical question in a Remedies Code § 74.351. health care liability action. V.T.C.A., Civil Practice & Remedies Code § 74.402(b).

[5] Appeal and Error 30 714(5)

[8] Evidence 157 538 30 Appeal and Error 30X Record 157 Evidence 30X(N) Matters Not Apparent of Record 157XII Opinion Evidence 30k714 Matters Appearing Otherwise 157XII(C) Competency of Experts Than by Record 157k538 k. Due care and proper conduct 30k714(5) k. Briefs. Most Cited Cases in general. Most Cited Cases Appellate court cannot consider documents at- Expert qualifications should not be too nartached to a brief if they are not formally included in rowly drawn in health care liability litigation; the record on appeal. rather, the trial court should determine whether the proffered expert has knowledge, skill, experience, [6] Evidence 157 538 training, or education regarding the specific issue before the court which would qualify the expert to 157 Evidence give an opinion on that particular subject.

157XII Opinion Evidence V.T.C.A., Civil Practice & Remedies Code § 157XII(C) Competency of Experts 74.402(b).

157k538 k. Due care and proper conduct in general. Most Cited Cases [9] Evidence 157 538 Doctor licensed to practice medicine in the state and board certified in internal medicine, 157 Evidence rheumatology, and geriatrics was qualified to testi- 157XII Opinion Evidence fy as an expert regarding assessment and care of in- 157XII(C) Competency of Experts dividuals with Alzheimer's disease in health care li- 157k538 k. Due care and proper conduct ability action brought against nursing home by es- in general. Most Cited Cases tate of nursing home patient who died after hitting In determining qualifications to testify as an her head when pushed to the floor by another resid- expert in health care liability litigation, the focus is ent who had Alzheimer's disease; doctor had treated on whether the expert's expertise goes to the very patients with similar conditions and had been in- matter on which he is to give an opinion. V.T.C.A., volved in the assessment of such patients for trans- Civil Practice & Remedies Code § 74.402(b). fer and admission to various facilities, and doctor had also supervised nurses in the care and assess- [10] Evidence 157 538 ment of such patients. V.T.C.A., Civil Practice & 157 Evidence Remedies Code § 74.402(b).

157XII Opinion Evidence [7] Evidence 157 538 157XII(C) Competency of Experts 157k538 k. Due care and proper conduct 157 Evidence in general. Most Cited Cases 157XII Opinion Evidence Nurse certified in gerontological care and 157XII(C) Competency of Experts wound care was qualified to testify as an expert re-

157k538 k. Due care and proper conduct garding the standard of care applicable to nursing in general. Most Cited Cases staff at nursing home in health care liability action

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328 S.W.3d 637 (Cite as: 328 S.W.3d 637)

brought against nursing home by estate of nursing tion brought against nursing home by estate of home patient who died after hitting her head when nursing home patient who died after hitting her pushed to the floor by another resident who had head when pushed to the floor by another resident Alzheimer's disease; although nurse had never been who had Alzheimer's disease. V.T.C.A., Civil Praca full-time employee of a nursing home, nurse had tice & Remedies Code §§ 74.351(r)(5)(C), worked as a nurse and nursing supervisor and edu- 74.403(a). cated students about caring for Alzheimer's patients , administering medication, transcribing or- [13] Evidence 157 544 ders, supervising residents, and notifying physi-

157 Evidence cians of resident behaviors.

157XII Opinion Evidence [11] Evidence 157 538 157XII(C) Competency of Experts 157k544 k. Cause and effect. Most Cited 157 Evidence Cases 157XII Opinion Evidence Doctor licensed to practice medicine in the 157XII(C) Competency of Experts state and board certified in internal medicine, 157k538 k. Due care and proper conduct rheumatology, and geriatrics was qualified to testiin general. Most Cited Cases fy regarding causation in health care liability action Certified nursing home administrator was qual- brought against nursing home by estate of nursing ified to testify as an expert regarding the standard home patient who died after hitting her head when of care for the admission of a patient with pushed to the floor by another resident who had Alzheimer's disease to a nursing facility in health Alzheimer's disease; doctor regularly engaged in care liability action brought against nursing home the diagnosis and treatment of patients with by estate of nursing home patient who died after Alzheimer's disease, doctor had had patients with hitting her head when pushed to the floor by anoth- violent behavior who represented a threat to others er resident who had Alzheimer's disease; although as well as themselves, and doctor had knowledge of administrator was not a licensed health care pro- the admission assessment process and the care vider and did not practice health care, administrator needed for these patients. V.T.C.A., Civil Practice was licensed in nursing home administration and & Remedies Code §§ 74.351(r)(5)(C), 74.403(a); managed a nursing home for eight years, adminis- Rules of Evid., Rule 702. trator had knowledge of rules and regulations applicable to nursing facilities, and administrator [14] Health 198H 804 taught and performed consulting work in the field 198H Health of long-term care. V.T.C.A., Civil Practice & Rem-

198HV Malpractice, Negligence, or Breach of edies Code § 74.402.

Duty [12] Evidence 157 544 198HV(G) Actions and Proceedings 198Hk804 k. Affidavits of merit or merit-

157 Evidence orious defense; expert affidavits. Most Cited Cases 157XII Opinion Evidence To constitute a good faith effort to comply with 157XII(C) Competency of Experts the statutory requirements for expert reports in 157k544 k. Cause and effect. Most Cited health care liability actions, an expert report must Cases inform the defendant of the specific conduct called Nurse and nursing home administrator who into question and provide a basis for the trial court were not physicians were not qualified to render an to determine that the claims have merit; it does not opinion about causation in health care liability ac- need to marshal all of the plaintiff's proof, but it

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328 S.W.3d 637 (Cite as: 328 S.W.3d 637)

must include a fair summary of the expert's opinion 198H Health on each of the elements identified in the statute, 198HV Malpractice, Negligence, or Breach of i.e., the applicable standard of care, the breach or Duty deviation from the standard of care, and the causal 198HV(G) Actions and Proceedings relationship between the breach and the injury. 198Hk804 k. Affidavits of merit or merit- V.T.C.A., Civil Practice & Remedies Code § orious defense; expert affidavits. Most Cited Cases 74.351. Doctor's expert report's opinion on causation was not improperly conclusory in health care liabil-

[15] Health 198H 804 ity action brought against nursing home by estate of nursing home patient who died after hitting her 198H Health head when pushed to the floor by another resident 198HV Malpractice, Negligence, or Breach of who had Alzheimer's disease; report stated that oth-

Duty er resident was allegedly aggressive prior to and 198HV(G) Actions and Proceedings after being admitted to nursing home, standard of 198Hk804 k. Affidavits of merit or meritcare required nursing home to properly assess and orious defense; expert affidavits. Most Cited Cases report other resident's condition and properly super-

Expert filing expert report in health care liabilvise him, despite foreseeable risk, nursing home adity action must explain the basis of his statements mitted other resident and failed to supervise him, to link his conclusions to the facts. V.T.C.A., Civil and while other resident was unsupervised, he in-

Practice & Remedies Code § 74.351.

jured decedent and caused her death. V.T.C.A., [16] Health 198H 804 Civil Practice & Remedies Code § 74.351.

198H Health *640 Delta Sue Best, Allison L. Spruill, Best & 198HV Malpractice, Negligence, or Breach of Spruill, P.C., Austin, TX, Appellant.

Duty Michael Tate Barkley, Sugar Land, TX, Susan Cas-

198HV(G) Actions and Proceedings sidy Cooley, Schell, Mitchell & Cooley LLP, Ad-

198Hk804 k. Affidavits of merit or meritdison , TX, Roger Arash Farahmand, Farahmand orious defense; expert affidavits. Most Cited Cases Law Firm, P.C., Dallas, TX, R. Alan York, Good-

Expert reports filed by estate of nursing home win Pappas Langley Ronquillo, LLP, Houston, TX, resident, in action against nursing home when resfor Appellees.

ident died after hitting her head when pushed to the floor by another resident who had Alzheimer's disease , adequately informed nursing home of the spe- Before Justices FITZGERALD, MURPHY, and cific conduct called into question and provided a FILLMORE. basis for trial court to determine that the claims had merit; experts identified nursing home's failure to OPINION properly assess condition of other resident and to Opinion By Justice FILLMORE.

properly assess, supervise, medicate, and care for This interlocutory appeal follows the trial such patient, and doctor testified that nursing court's refusal to dismiss the health care liability home's failure to properly care for resident with claims of appellees Jane Golenko, Jean Miller, and Alzheimer's disease presented a danger to and Judy Miller, Individually and on behalf of the Escaused death of deceased resident. V.T.C.A., Civil tate of Nell Connally, against Christian Care Cen-

Practice & Remedies Code § 74.351.

ters, Inc. Christian Care complains the trial court [17] Health 198H 804 erred by denying its motion to dismiss because ap-

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328 S.W.3d 637 (Cite as: 328 S.W.3d 637)

pellees' experts are not qualified to render opinions render opinions concerning the applicable standard contained in their reports and the reports do not of care and causation and the expert reports do not constitute good faith efforts to comply with chapter constitute good faith efforts to meet the require- 74 of the civil practice and remedies code. We af- ments of section 74.351 of the civil practice and firm the trial court's order. remedies code. The trial court denied the motion to dismiss, and Christian Care brought this inter-

Background locutory appeal.

Jay Haberman suffered from early-onset Alzheimer's disease. After having a seizure at Standard of Review home, Haberman was admitted to Centennial Med- [1][2][3] We review a trial court's order on a ical Center. While he was hospitalized, Haberman motion to dismiss a health care liability claim for allegedly exhibited aggressive and combative beha- an abuse of discretion. Am. Transitional Care Ctrs. vior that required restraints and supervision by a of Tex., Inc. v. Palacios, 46 S.W.3d 873, 877 personal attendant. Haberman was subsequently (Tex.2001). A trial court abuses its discretion when transferred to Christian Care's Alzheimer's Unit. it acts in an arbitrary or unreasonable manner Haberman allegedly continued to exhibit aggressive without reference to any guiding rules or principles. behavior at *641 Christian Care. Appellees assert Bowie Mem'l Hosp. v. Wright, 79 S.W.3d 48, 52 that the day following his admission to Christian (Tex.2002) (per curiam). A trial court abuses its Care, Haberman was unsupervised in the dining discretion when it clearly fails to analyze and deroom of the facility. Nell Connally, a resident of termine the law correctly or applies the law incor- Christian Care, was also in the dining room using rectly to the facts. Petty v. Churner, 310 S.W.3d her “merry walker,” which is a walker that includes 131, 134 (Tex.App.-Dallas 2010, no pet.) a seat for the user. Haberman allegedly grabbed the walker and turned it over, causing Connally to hit Analysis her head on the floor. Connally later died from a [4] Within 120 days of filing a health care liabsubdural hematoma caused by the fall. ility claim, a plaintiff must serve an expert report with the expert's curriculum vitae on each defend-

Appellees brought a wrongful death action ant against whom a liability claim is asserted. TEX.

against Haberman. In their second amended peti- CIV. PRAC. & REM.CODE ANN. § 74.351(a) tion, appellees also asserted health care liability (West Supp. 2010). An “expert report” is a: claims against Christian Care. Appellees alleged Christian Care was negligent in its care of Connally written report by an expert that provides a fair by failing to properly evaluate Haberman prior to summary of the expert's opinions as of the date of admitting him to Christian Care, failing to manage, the report regarding applicable standards of care, restrain, and evaluate Haberman following his ad- the manner in which the care rendered by the mission, and failing to protect Connally from physician failed to meet the standards, and the Haberman. Appellees timely served Christian Care causal relationship between that failure and the with expert reports by Dr. Lige Rushing, a physi- injury, harm, or damages claimed. cian who is board certified in internal medicine, Id. § 74.351(r)(6). The trial court is required to rheumatology, and geriatrics, Suzanne Frederick, a grant a motion challenging the adequacy of a report registered nurse, and Sid Gerber, a licensed nursing only if the report does not constitute an objective home administrator.

good faith effort to comply with the statutory re-

Christian Care objected to the expert reports quirements. Id. § 74.351(b)(2), (l ). In determining and moved to dismiss appellees' claims on the a report's sufficiency, the court may not look beygrounds that appellees' experts are not qualified to ond the report itself because all information relev-

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328 S.W.3d 637 (Cite as: 328 S.W.3d 637)

ant to the inquiry should be contained with the doc- asserts that, although Dr. Rushing is board certified ument's four corners. Palacios, 46 S.W.3d at 878. in internal medicine and geriatrics, he does not have the “nursing home experience” to testify as to *642 Standard of Care the standard of care applicable to nurses and nurses Christian Care first argues that appellees' ex- aides employed in nursing facilities. Finally, Chrisperts are not qualified to render an opinion as to the tian Care contends Dr. Rushing has never worked standard of care applicable to Christian Care. An for a nursing home screening patients for admission expert is qualified to render an opinion regarding to a certified Alzheimer's unit and, therefore, is not whether a health care provider departed from the qualified to opine about Christian Care's decision to accepted standards of care if the expert: admit Haberman.

(1) is practicing health care in a field of practice [5] Christian Care asserts we should consider that involves the same type of care or treatment deposition testimony given by Dr. Rushing in anas that delivered by the defendant health care other case to “disqualify” him from opining about provider, if the defendant health care provider is issues relating to nursing care in a certified an individual, at the time the testimony is given Alzheimer's unit. We question whether a defendant or was practicing that type of health care at the can rely on evidence not contained within the extime the claim arose; pert's reports to attack the expert's qualifications.

See Mem'l Hermann Healthcare Sys. v. Burrell, 230 (2) has knowledge of accepted standards of care S.W.3d 755, 758 (Tex.App.-Houston [14th Dist.]

for health care providers for the diagnosis, care or 2007, no pet.) (declining to consider excerpts from treatment of the illness, injury, or condition inexpert 's deposition in other cases, affidavit of anvolved in the claim; and other doctor, and standards promulgated by Infec-

(3) is qualified on the basis of training or experi- tious Diseases Society of America because ence to offer an expert opinion regarding those “analysis of the qualifications of an expert under accepted standards of health care. section 74.351 is limited to the four corners of the expert's report and curriculum vitae”); In re TEX. CIV. PRAC. & REM.CODE ANN. § Windisch, 138 S.W.3d 507, 511 74.402(b) (West 2005). To assist the court in mak- (Tex.App.-Amarillo 2004, orig. proceeding) ing a determination as to whether the expert is qual- (declining to consider expert's testimony given at ified on the basis of training or experience, the trial hearing on motion to dismiss because determination court must consider whether, at the time the claim of expert's “qualifications to provide an expert rearose or at the time the testimony is given, the wit- port must be made on the basis of the contents of ness: (1) is certified by a licensing agency or a pro- the report and curriculum vitae”); see also Mosely fessional certifying agency, or has other substantial v. Mundine, 249 S.W.3d 775, 779 (Tex.App.-Dallas training or experience, in the area of health care rel- 2008, no pet.) (analysis of expert's qualifications evant to the claim; and (2) is actively practicing limited to expert's report and curriculum vitae). health care in rendering health care services relev- However, we need not reach the issue because the ant to the claim. Id. § 74.402(c). testimony relied*643 upon by Christian Care, while attached to its brief, is not in the record. We cannot Dr. Rushing consider documents attached to a brief “if they are Christian Care contends Dr. Rushing is not not formally included in the record on appeal.”

qualified to testify about the applicable standard of Cantu v. Horany, 195 S.W.3d 867, 870 care because he is not actively practicing health (Tex.App.-Dallas 2006, no pet.). care in an area relevant to the claim. Christian Care

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328 S.W.3d 637 (Cite as: 328 S.W.3d 637)

[6] We, therefore, turn to whether Dr. Rush- records and assess his condition. Dr. Rushing quesing 's report and curriculum vitae demonstrate he is tions the nursing staffs' failure to provide onequalified to opine about the applicable standard of on-one supervision of Haberman, including the failcare . Dr. Rushing is licensed to practice medicine ure to adequately supervise Haberman in the dining in Texas and is board certified in internal medicine, room at the time he turned over Connally's walker, rheumatology, and geriatrics. He is actively en- and failure to report Haberman's clinical status and gaged in the practice of these three specialties and behavior to the director of nurses or the adminisis an attending physician at Presbyterian Hospital in trator of the facility. Dallas. He has “served as a primary care physician for more than 10,000 patients in hospitals, nursing [7][8][9] Not every licensed doctor is automathomes , assisted living facilities, and patients who ically qualified to testify on every medical question. had Alzheimer's disease.” He regularly engages in Broders v. Heise, 924 S.W.2d 148, 152 (Tex.1996). the diagnosis and treatment of patients with However, “expert qualifications should not be too Alzheimer's disease. He has had patients with viol- narrowly drawn.” Larson v. Downing, 197 S.W.3d ent behavior similar to Haberman's behavior who 303, 305 (Tex.2006) (per curiam). Rather, the trial represented a threat to others as well as themselves court should determine whether the proffered exand patients who required geriatric psychiatric care. pert has “knowledge, skill, experience, training, or He has “worked closely with and written orders for, education regarding the specific issue before the and supervised the execution of these orders for the court which would qualify the expert to give an care and treatment of [his] patients and supervised opinion on that particular subject.” Broders, 924 the nurses (registered nurses, licensed vocational S.W.2d at 153–54; see Chester v. El–Ashram, 228 nurses, and [certified nursing assistants] ), who S.W.3d 909, 912 (Tex.App.-Dallas 2007, no pet.). have been assigned to provide nursing care, includ- The focus is on whether the expert's expertise goes ing assessment for transfer and admission assess- to the very matter on which he is to give an opinments for [his] patients under similar circum- ion. Broders, 924 S.W.2d at 153. stances” as Haberman. As a result, he is “intimately *644 The essential claim in this case involves familiar with the specific standards of care that are the standard of care applicable to the assessment required of the facilities and caregivers and the and care of individuals with Alzheimer's disease.

physicians who provide care and treatment for pa-

Thus, the relevant question is not the narrow issue tients” such as Haberman.

of whether Dr. Rushing has worked in a nursing According to Dr. Rushing, the standard of care home or served on a committee evaluating potential required Christian Care and its staff to “properly as- patients for admission to a nursing home. Rather, it sess Mr. Haberman's needs prior to his admission to is the broader issue of whether Christian Care and be certain that they indeed could meet his needs.” its staff should have recognized Haberman's condi- Dr. Rushing specifically questions Christian Care's tion was such that Christian Care could not provide “failure to properly assess Mr. Haberman prior to the care Haberman needed or could not protect its accepting him for transfer” and opines that if “a other residents from Haberman. Dr. Rushing's reproper assessment had been done, it would have port and curriculum vitae show he is certified in been obvious that the Christian Care Center could geriatrics and internal medicine. He has treated panot meet Mr. Haberman's needs i.e. one-on-one su- tients with conditions similar to Haberman's condipervision , restraints, and intensive psychiatric care tion and has been involved in the assessment of and treatment that Mr. Haberman required.” Fur- these patients for transfer and admission to various ther, after Haberman's transfer, the nursing staff facilities. He has also supervised nurses in the care had the opportunity to review Haberman's medical and assessment of his patients. The trial court did

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328 S.W.3d 637 (Cite as: 328 S.W.3d 637)

not abuse it discretion by finding Dr. Rushing is his admission. Because Dr. Rushing and Gerber are qualified to testify about the standard of care ap- qualified to opine about the standard of care applicplicable to assessing a patient with a condition sim- able to Christian Care in deciding to admit Haberilar to Haberman's for admission into a particular man into the facility, we need not decide whether facility and the needs of the patient once admitted. Frederick was also qualified to do so. See See Baylor Med. Ctr. at Waxahachie v. Wallace, TEX.R.APP. P. 47.1. Turning to the nursing staff, 278 S.W.3d 552, 558 (Tex.App.-Dallas 2009, no Frederick opined that the standard of care required pet.) (physician who stated he was familiar with the nurses at Christian Care to accurately transcribe standard of care for nurses and for prevention and Haberman's medications onto the physician's ortreatment of injury involved in claim qualified to ders, have a verification system to ensure the accuropine about standard of care for nurses); IHS Ac- acy of the orders and the medication administration quisition No. 140 Inc. v. Travis, No. record, administer only the medications prescribed 13–07–00481–CV, 2008 WL 1822780, at *5 by the physician, contact the physician to verify the (Tex.App.-Corpus Christi 2008, pet. denied) (mem. orders as written on the medication profile report, op.) (doctor specializing in geriatrics qualified to *645 notify the physician of Haberman's behavior, opine about standard of care applicable to nursing and adequately assess and supervise Haberman. home).

Issues relating to administering medication, as-

Suzanne Frederick sessing a patient's condition, and contacting a phys-

[10] Christian Care next argues Frederick is not ician about a patient's medication and condition are qualified to testify about the applicable standard of not unique to the care of residents in a nursing care because she has never been a full-time em- home. Frederick's curriculum vitae demonstrates ployee of a nursing home, never held a job that en- she has worked as a nurse and nursing supervisor tailed admitting patients into a nursing home, and and educated students about caring for Alzheimer's does not actively practice health care in a nursing patients, administering medication, transcribing orhome . Frederick is a board certified gerontological ders, supervising residents, and notifying physinurse and a certified wound care nurse. She has a cians of resident behaviors. We conclude the trial master of science degree in nursing administration. court did not abuse its discretion in finding Freder- She teaches nursing students at McLennan Com- ick was qualified to testify about the standard of munity College and educates nursing students in care applicable to the nursing staff at Christian nursing home and hospital settings, including Care. caring for Alzheimer's patients, administering medication , transcribing orders, supervising residents, Sidney Gerber and notifying physicians of residents' behaviors. [11] Christian Care contends Gerber, a licensed From 2003 through 2005, she taught a nursing ad- nursing home administrator, is not qualified to ministration class at the University of Texas at Ar- opine about the standard of care applicable to lington. She has worked as a nursing supervisor and Christian Care because he is not a licensed health a staff nurse at a hospital and served as the Sub- care provider and does not practice health care in acute Program Director/Staff RN at a nursing home an area relevant to appellees' claims. In determining for seven years. whether an expert is qualified on the basis of training and experience to render an opinion about the Frederick opined on the standard of care ap- standard of care, a trial court must consider whethplicable to Christian Care for the admission of er, at the time the claim arose or at the time the ex- Haberman to Christian Care and the care of Haber- pert gave his opinion, that person (1) is certified by man by the Christian Care nursing staff following a licensing agency or a professional certifying

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328 S.W.3d 637 (Cite as: 328 S.W.3d 637)

agency, or has other substantial training or experi- safety, professional, or administrative services ence, in the area of health care relevant to the provided by nursing facilities at an accredited educlaim ; and (2) is actively practicing health care in cation institution, (2) is serving as a consultant in rendering health care services relevant to the claim. safety, professional, or administrative services rel- TEX. CIV. PRAC. & REM.CODE § 74.402(c). evant to nursing facilities, or (3) is licensed, certi- However, the factors in section 74.402(c) are not fied, or *646 registered relating to the provision of mandatory elements that must be proved before a safety, professional, or administrative services by witness is qualified as an expert. Heritage Gardens nursing facilities. See id. § 74.402(a). Healthcare Ctr. v. Pearson, No. 05–07–00772–CV, 2008 WL 3984053, at *5 (Tex.App.-Dallas 2008, Appellees claim Christian Care failed to propno pet.) (mem. op.). Whether Gerber is certified by erly assess Haberman's condition prior to admitting a licensing agency or a professional certifying him into Christian Care's facility. Gerber is licensed agency or is actively practicing health care are only as a nursing facility administrator in Texas and has two factors to be considered in determining whether eight years of experience managing and operating Gerber is qualified on the basis of training and ex- nursing home facilities. He has knowledge of the perience to offer the opinions contained in his re- state and federal regulations governing nursing port. Id. home facilities. As a nursing home administrator, he worked closely with nursing home management Further, for purposes of determining whether and staff. He is currently a consultant in the field of an expert witness is qualified to opine about the long-term care management and provides quality standard of care applicable to a health care pro- assurance monitoring and inspection of facilities on vider, “practicing health care” includes: behalf of the facilities' management. He also assists families of nursing home residents with long-term (1) training health care providers in the same care planning and management support, including field as the defendant health care provider at an the verification of care compliance, care coordinaaccredited educational institution; or tion, and review of care with physicians and long-

term care facilities. He teaches classes in long-term (2) serving as a consulting health care provider care management and administration to nursing and being licensed, certified, or registered in the home administrator candidates at the University of same field as the defendant health care provider.

Texas Health Science Center and San Jacinto Col-

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

74.402(a). “Health care” includes any act In Gerber's opinion, the standard of care for a “performed or furnished, or that should have been nursing facility includes an assessment of the properformed or furnished” by the health care provider spective resident at the hospital prior to admission.

for, to, or on behalf of the patient. Id. § The purpose of this assessment is for a nursing fa-

74.001(a)(10). A “health care liability claim” incility professional to thoroughly and accurately ascludes a cause of action against the health care prosess a prospective resident's medical or mental convider for a departure from the standard of care for ditions to determine whether the placement is ap-

“safety or professional or administrative services propriate, the nursing facility's capabilities to directly related to health care, which proximately provide the necessary care, and the safety risks to results in injury to or death of a claimant.” Id. § both the resident and other residents. The standard 74.001(a)(13). Christian Care's provision of safety, of care requires the facility to admit “only residents professional, or administrative services to Connally who it can assure that it has the abilities to provide constitutes health care. Gerber is “practicing health adequate and sufficient care by competent staff, care” if he (1) is educating health care providers in

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328 S.W.3d 637 (Cite as: 328 S.W.3d 637)

owners, operators, and administration based on the physician and is otherwise qualified to render opincare needs of the individual resident and in compli- ions on that causal relationship under the Texas ance with all standards that regulate the nursing fa- Rules of Evidence.” TEX. CIV. PRAC. & cility.” REM.CODE §§ 74.351(r)(5)(C); 74.403(a) (West 2005). Neither Frederick nor Gerber is a physician Gerber opined that Christian Care failed to and, therefore, neither is qualified to render an comply with the applicable standards of care by not opinion about causation. See Petty, 310 S.W.3d at adequately assessing Haberman prior to admission. 135. In Gerber's opinion, if Christian Care had sent a nurse to evaluate Haberman prior to admission, it [13] Christian Care argues Dr. Rushing is not would have “had a much greater understanding of qualified to opine about causation “for the same the significant risk of admitting Mr. Haberman into reasons” he is not qualified to opine about the the general population with other residents at the standard of care. Under rule of evidence 702, the facility, would have been prepared to manage his expert must have knowledge, skill, experience, aggression and violent behavior, would have taken training, or education regarding the specific issue steps to protect other residents from potential harm before the court. See TEX.R. EVID. 702. As set out inflicted by Mr. Haberman, could have refused his above, Dr. Rushing is licensed to practice medicine admission and acceptance to the nursing facility, in Texas. He is board certified in internal medicine and ultimately could have prevented Ms. Connally's and geriatrics and is actively engaged in the pracdeath .” Finally, in Gerber's opinion, Christian Care tice of these specialties. He regularly engages in the failed to adhere to its own policies and procedure diagnosis and treatment of patients with for evaluating Haberman for placement and, if it Alzheimer's disease. He has had patients with violhad done so, Haberman would not have been ent behavior like Haberman's behavior and who deemed appropriate for admission under Christian represented a threat to others as well as themselves. Care's criteria. He has knowledge of the admission assessment process and the care needed for these patients. In his Gerber is licensed in nursing home administra- opinion, it was reasonably foreseeable that Christition and managed a nursing home for eight years. an Care could not meet Haberman's needs and that He has knowledge of rules and regulations applic- Haberman's behavior would likely result in injury able to nursing facilities. He teaches and performs to himself or others. We conclude the trial court did consulting work in the field of long-term care. The not err by concluding Dr. Rushing was qualified to trial court did not abuse its discretion by finding opine about causation. Gerber is qualified to opine about the standard of care for the admission of a patient with Alzheimer's Good Faith Effort disease to a nursing facility. Christian Care finally argues the trial court erred by denying the motion to dismiss because ap-

Causation pellees' expert reports do not constitute good faith [12] Christian Care next argues that appellees' efforts to comply with chapter 74. Specifically, experts are not qualified to address causation be- Christian Care asserts all three reports pertain only cause Gerber and Frederick are not licensed physi- to its care of Haberman, not its care of Connally, cians and Dr. Rushing is not qualified on the very and that Dr. Rushing's opinions about causation are matter *647 at issue in this case. “[A] person may conclusory. qualify as an expert witness on the issue of the causal relationship between the alleged departure [14][15] To constitute a good faith effort to from accepted standards of care and the injury, comply with the statutory requirements, an expert harm, or damages claimed only if the person is a report must inform the defendant of the specific

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328 S.W.3d 637 (Cite as: 328 S.W.3d 637)

conduct called into question and provide a basis for mary, the care and treatment rendered to Jay Haberthe trial court to determine that the claims have man by Centennial Medical Center and its staff, the merit. Palacios, 46 S.W.3d at 879. It does not need Christian Care Center and its staff, and Dr. Swathi to marshal all of the plaintiff's proof, but it must in- Bayya fell below the accepted standard of care for clude a fair summary of the expert's opinion on the reasons described in this report and proximately each of the elements identified in the statute: the caused the death of Nell D. Connally.” Christian applicable standard of care, the breach or deviation Care claims this statement shows a lack of differenfrom the standard of care, and the causal relation- tiation between the health care providers and does ship between the breach and the injury. Id. at 878. not address viable treatment options for Connally. The report cannot merely state the expert's conclusions about these elements. Id.; Petty, 310 S.W.3d The issue is whether Dr. Rushing's report, not at 134. The expert must explain the basis of his the one statement relied upon by Christian Care, arstatements to link his conclusions to the facts. ticulated a causal relationship between Christian Bowie Mem'l Hosp., 79 S.W.3d at 52; Petty, 310 Care's alleged failure to meet the applicable stand- S.W.3d at 134. ards of care and Connally's death. See TEX.CIV.PRAC. & REM.CODE 74.351(r)(6). This [16] Contrary to Christian Care's argument, its required Dr. Rushing to link Christian Care's alalleged failure to properly care for Haberman is rel- leged negligence with appellees' alleged harm—the evant to whether it breached the standard of care assault on Connally by Haberman. See UHS of Timowed to Connally. See Diversicare Gen. Partner, berlawn, Inc. v. S.B., 281 S.W.3d 207, 213–14 Inc. v. Rubio, 185 S.W.3d 842, 850 (Tex.2005) (Tex.App.-Dallas 2009, pet. denied) (expert report (nursing home as a heath care provider had duty to sufficiently linked health care provider's negligence protect resident and patient population from harm- to sexual assault of complainant by another paing themselves and each other). Dr. Rushing, Fred- tient). Haberman was allegedly aggressive and erick, and Gerber identified the conduct of Christi- combative prior to being admitted to Christian Care an Care that was called into question—the failure to and required physical restraints and supervision by properly assess Haberman's condition and needs a personal attendant. His aggressive behavior alprior to his admission, to correctly administer med- legedly continued at Christian Care. According to ication to Haberman after admission, and to prop- Dr. Rushing, the standard of care required Christian erly assess, supervise, and care for *648 Haberman Care to properly assess Haberman's condition prior after admission. In Dr. Rushing's opinion, Christian to admitting him to Christian Care and required the Care's failure to properly care for Haberman nursing staff at Christian Care to report Haberman's presented a danger to Connally and caused her condition following his admission and to properly death. The trial court did not abuse its discretion by supervise Haberman. Dr. Rushing opined that, even finding appellees' expert reports informed Christian though it was reasonably foreseeable that Haber- Care of the specific conduct called into question man was a danger to himself or others, he was adand provided a basis for the trial court to determine mitted to the Christian Care facility and was not that the claims have merit. properly cared for or supervised. While Haberman was unsupervised in the dining room at Christian [17] Christian Care also asserts Dr. Rushing's Care, he injured Connally by turning over her walkreport does not constitute a good faith effort to er, leading to her death. We conclude the trial court comply with section 74.351 because his opinions did not abuse its discretion by finding Dr. Rushing's about causation are conclusory. In claiming the re- report articulated the required causal relationship. port is deficient as to causation, Christian Care focuses on Dr. Rushing's statement that, “In sum- We overrule Christian Care's sole issue and af-

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328 S.W.3d 637 (Cite as: 328 S.W.3d 637)

firm the trial court's order.

Tex.App.–Dallas,2010. Christian Care Centers, Inc. v. Golenko 328 S.W.3d 637

END OF DOCUMENT

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299 S.W.3d 868 (Cite as: 299 S.W.3d 868)

Affirmed.

Court of Appeals of Texas, Corpus Christi–Edinburg. West Headnotes CHRISTUS SPOHN HEALTH SYSTEM COR-

[1] Appeal and Error 30 893(1)

PORATION d/b/a Christus Spohn Hospital Corpus Christi–Shoreline, Appellant, 30 Appeal and Error v. 30XVI Review Sandra SANCHEZ and Omar Aleman, Appellees. 30XVI(F) Trial De Novo Edwin DeJesus and Alain Njoh, Appellants, 30k892 Trial De Novo v. 30k893 Cases Triable in Appellate Sandra Sanchez and Omar Aleman, Appellees. Court 30k893(1) k. In general. Most Cited Nos. 13–09–00055–CV, 13–09–00092–CV.

Cases Oct. 29, 2009.

Whether a claim is a health care liability claim Background: Patient brought action against hospit- within meaning of statute requiring plaintiff to al, alleging negligent hiring, supervision, training, provide an expert's report is a question of law and and retention of employees, as well as vicarious li- is reviewed de novo. V.T.C.A., Civil Practice & ability for employees' conduct, and against employ- Remedies Code § 74.351. ees in their individual capacities for assault and in-

[2] Health 198H 800 tentional infliction of emotional distress. The County Court at Law, Nueces County, Jon Martinez 198H Health , J., denied motion to dismiss for failure to file an 198HV Malpractice, Negligence, or Breach of adequate expert report, and hospital and employees Duty appealed. 198HV(G) Actions and Proceedings 198Hk800 k. In general. Most Cited Cases Holdings: The Court of Appeals, Rodriguez, held A cause of action alleges a departure from acthat :

cepted standards of medical care or health care, and (1) claims based on conduct of hospital employees requires submission of expert report, if act or omistowards patient was not a “health care liability sion complained of is an inseparable part of rendiclaim ” which required expert report;

tion of medical services. V.T.C.A., Civil Practice & (2) claim against hospital based on negligence in Remedies Code § 74.001(a)(13).

hiring, training, supervising and retaining employees was a “health care liability claim;” [3] Health 198H 800 (3) underlying nature of patient's common law vicarious liability claim was a “health care liability 198H Health claim;” 198HV Malpractice, Negligence, or Breach of (4) nurse's expert report adequately set forth hospit- Duty al's standard of care or safety and its breach as re- 198HV(G) Actions and Proceedings quired; and 198Hk800 k. In general. Most Cited Cases (5) expert physician's report on hospital's duty of Standards of safety directly related to health care, its breach, and resulting damages adequately care implicate claimants' exposure to unreasonably established causation element. dangerous or defective conditions or things in the

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299 S.W.3d 868 (Cite as: 299 S.W.3d 868)

course of their care, for purposes of determining care provider are indeed health care liability claims whether claim is a health liability claim requiring which require submission of expert report, court is an expert report. V.T.C.A., Civil Practice & Rem- not bound by form of pleading, and nature of claim edies Code § 74.001(a)(13). is not determined simply by status of defendant or place of injury. V.T.C.A., Civil Practice & Remed-

[4] Health 198H 804 ies Code §§ 74.001(a)(13), 74.351.

198H Health [7] Assault and Battery 37 19 198HV Malpractice, Negligence, or Breach of Duty 37 Assault and Battery 198HV(G) Actions and Proceedings 37I Civil Liability 198Hk804 k. Affidavits of merit or merit- 37I(B) Actions orious defense; expert affidavits. Most Cited Cases 37k19 k. Grounds and conditions preced-

Necessity of expert testimony to establish rel- ent. Most Cited Cases evant standard of care and whether it was deviated from is an important factor in determining whether Health 198H 804 a plaintiff's claim against a health care provider is 198H Health inseparable from rendition of health care, and thus, 198HV Malpractice, Negligence, or Breach of a “health care liability claim” subject to statutory Duty requirement of an expert report. V.T.C.A., Civil 198HV(G) Actions and Proceedings Practice & Remedies Code §§ 74.001(a)(13), 198Hk804 k. Affidavits of merit or merit-

74.351(a).

orious defense; expert affidavits. Most Cited Cases [5] Health 198H 800 Conduct of registered nurse and certified nurse's assistant toward patient was not related to 198H Health health care being provided to patient nor did it in-

198HV Malpractice, Negligence, or Breach of volve their professional judgment; thus, patient ac-

Duty tion against those hospital employees for assault 198HV(G) Actions and Proceedings and intentional infliction of emotional distress was 198Hk800 k. In general. Most Cited Cases not a “health care liability claim” which required an In determining whether claims against a health expert report on standard of care, failure to meet it, care provider are indeed health care liability claims and resulting damages, where their alleged conduct which require submission of expert report, courts consisted of making comments and unwanted sexufocus on gravamen, or underlying nature, of claim. al advances while they were undressing her, trying V.T.C.A., Civil Practice & Remedies Code § to lie down with her, and writing personal messages 74.001(a)(13). on the white board in her room. V.T.C.A., Civil Practice & Remedies Code §§ 74.001(a)(13), [6] Health 198H 804 74.351.

198H Health [8] Assault and Battery 37 19 198HV Malpractice, Negligence, or Breach of Duty 37 Assault and Battery 198HV(G) Actions and Proceedings 37I Civil Liability 198Hk804 k. Affidavits of merit or merit- 37I(B) Actions orious defense; expert affidavits. Most Cited Cases 37k19 k. Grounds and conditions preced-

In determining whether claims against a health ent. Most Cited Cases

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299 S.W.3d 868 (Cite as: 299 S.W.3d 868)

Health 198H 804 sional judgment; it follows that proper staffing for care and protection of patients is related to and part 198H Health of rendition of health care, for purposes of determ-

198HV Malpractice, Negligence, or Breach of ining whether a claim regarding the decisions is a Duty health care liability claim which requires an expert 198HV(G) Actions and Proceedings report. V.T.C.A., Civil Practice & Remedies Code 198Hk804 k. Affidavits of merit or merit- §§ 74.001(a)(13), 74.351.

orious defense; expert affidavits. Most Cited Cases When a claim is based on injurious actions of [11] Health 198H 800 an individual unrelated to provision of health care, that individual cannot hide behind procedural safe- 198H Health guards of statute requiring an expert report when 198HV Malpractice, Negligence, or Breach of there is a health liability claim merely because he Duty or she was also a health care provider at time of as- 198HV(G) Actions and Proceedings sault or other harmful conduct. V.T.C.A., Civil 198Hk800 k. In general. Most Cited Cases Practice & Remedies Code §§ 74.001(a)(13), Determining appropriate number, training, and 74.351. certifications of medical professionals necessary to care for and protect patients in weakened conditions [9] Health 198H 804 requires health care expertise, which is but another indicator that staffing decisions are inseparable 198H Health from provision of health care; thus, when a patient 198HV Malpractice, Negligence, or Breach of is injured because of an alleged lapse in this profes-

Duty sional decision-making, the lawsuit complaining of 198HV(G) Actions and Proceedings that injury is a “health care liability claim” which 198Hk804 k. Affidavits of merit or merit- requires an expert report. V.T.C.A., Civil Practice orious defense; expert affidavits. Most Cited Cases & Remedies Code §§ 74.001(a)(13), 74.351.

Patient's claims against hospital for alleged negligence in hiring, training, supervising and re- [12] Health 198H 804 taining two employees who allegedly assaulted her was essentially a claim that hospital did not care for 198H Health her within accepted standards of care and safety by 198HV Malpractice, Negligence, or Breach of protecting her from alleged unwanted sexual ad- Duty vances and was thus a “health care liability claim” 198HV(G) Actions and Proceedings which required patient to provide an expert report. 198Hk804 k. Affidavits of merit or merit- V.T.C.A., Civil Practice & Remedies Code §§ orious defense; expert affidavits. Most Cited Cases 74.001(a)(13), 74.351. Underlying nature of patient's common law vicarious liability claim against hospital, arising from [10] Health 198H 800 alleged sexual assault on her by a registered nurse and a certified nurse's assistant, was that through 198H Health lapses in professional judgment and treatment hos-

198HV Malpractice, Negligence, or Breach of pital negligently breached standards of care and Duty safety owed patient by failing to protect her from 198HV(G) Actions and Proceedings alleged assault, was actually a “health care liability 198Hk800 k. In general. Most Cited Cases claim” and, as such, was subject to statutory re-

Decisions regarding protection of patients and quirement that patient furnish an expert report on supervision and monitoring of staff involve profes- standard of care, failure to meet it, and resulting

© 2015 Thomson Reuters. No Claim to Orig. US Gov. Works.

299 S.W.3d 868 (Cite as: 299 S.W.3d 868)

damages. V.T.C.A., Civil Practice & Remedies Nurse's expert report adequately set forth a Code §§ 74.001(a)(13), 74.351. hospital's standard of care or safety and its breach as required in patient's action against hospital, a re-

[13] Health 198H 804 gistered nurse and a certified nurse's assistant, arising out of alleging unwanted sexual advances 198H Health by the nurse and assistant; report stated that stand-

198HV Malpractice, Negligence, or Breach of ard of care required hospital and nursing staff to Duty provide adequate supervision to certified nursing 198HV(G) Actions and Proceedings assistants and licensed nursing personnel, that hos-

198Hk804 k. Affidavits of merit or meritpital and nursing staff were to protect patients from orious defense; expert affidavits. Most Cited Cases sexual harassment and abuse, and that they failed to In its review of expert report on medical prodo so by their specific actions. V.T.C.A., Civil vider's standard of care, failure to meet it, and res-

Practice & Remedies Code § 74.351(i).

ulting damages, courts are limited to four corners of report in determining whether report manifests a [16] Health 198H 804 good-faith effort to comply with statutory definition of an expert report. V.T.C.A., Civil Practice & 198H Health Remedies Code §§ 74.001(a)(13), 74.351. 198HV Malpractice, Negligence, or Breach of Duty [14] Health 198H 804 198HV(G) Actions and Proceedings 198Hk804 k. Affidavits of merit or merit-

198H Health orious defense; expert affidavits. Most Cited Cases 198HV Malpractice, Negligence, or Breach of Expert physician's report on hospital's duty of Duty care, its breach, and resulting damages adequately 198HV(G) Actions and Proceedings established causation element required in connec-

198Hk804 k. Affidavits of merit or merittion with a “health care liability claim” as asserted orious defense; expert affidavits. Most Cited Cases by patient in action against hospital arising out of Statutorily required expert reports in health alleged unwanted sexual advances by hospital emcare liability actions, detailing medical provider's ployees; report opined at length about alleged constandard of care, failure to meet it, and resulting duct of employees and described psychological damages, need not marshal all of patient's proof; if symptoms patient suffered following her stay at expert report puts medical provider on notice of hospital, and observed that patient was unable to specific conduct complained of and provides trial protect herself, and felt vulnerable and harassed by court a basis on which to conclude claims have people who were supposed to be caring for her, merit, report represents a good-faith effort to comwhich linked report to other expert's report on hosply with statute. V.T.C.A., Civil Practice & Remedpital 's duty to provide a safe recovery environment.

ies Code § 74.351(i).

V.T.C.A., Civil Practice & Remedies Code § [15] Health 198H 804 74.351(i).

198H Health *871 David R. Iler, Erin L. Leeser, Warren Szutse 198HV Malpractice, Negligence, or Breach of Huang, Fulbright & Jaworski, Houston, for Appel-

Duty lant in No. 13-09-00055-CV.

198HV(G) Actions and Proceedings Stephen J. Chapman, F. Edward Barker, The Chap-

198Hk804 k. Affidavits of merit or meritman Law Firm, Corpus Christi, for appellants in orious defense; expert affidavits. Most Cited Cases No. 13-09-00092-CV.

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299 S.W.3d 868 (Cite as: 299 S.W.3d 868)

Kevin W. Grillo, Robert C. Hilliard, Hilliard Mun- that during these physical contacts, Njoh and DeJeoz Guerra, L.L.P., Corpus Christi, for Appellees. sus were making sexual overtures and comments and that the improper conduct continued until she was discharged from the hospital a few days later.

Before Chief Justice VALDEZ and Justices RODRIGUEZ and GARZA. In February 2008, appellees sued Spohn–Shoreline for negligent hiring, supervision, OPINION training, and retention of its employees and vicari-

Opinion by Justice RODRIGUEZ. ous liability for the conduct of Njoh and DeJesus.

This consolidated appeal involves the alleged Appellees timely served the expert report and cursexual assault of a patient by nursing staff in a hos- riculum vitae of Laura Burchell–Henson, a re-

FN1 FN2 pital intensive care unit (ICU). Appellants gistered nurse. TEX. CIV. PRAC. & Christus Spohn Health System Corporation d/b/a REM.CODE ANN. § 74.351(a). Spohn–Shoreline Christus Spohn Hospital Corpus Christi–Shoreline filed objections to the report and a motion to dis- *872 (Spohn–Shoreline), Edwin DeJesus, and Alain miss appellees' lawsuit on the basis that their expert Njoh challenge the trial court's denial of their mo- report did not constitute a good-faith effort to comtions to dismiss a lawsuit filed by appellees Sandra ply with the requirements of the statute. Appellees Sanchez and Omar Aleman for failure to serve an responded to the motion, arguing that their claims adequate expert report as required by section were not health care liability claims subject to sec- 74.351. See TEX. CIV. PRAC. & REM.CODE tion 74.351 and that the expert report requirement ANN. § 74.351(a)-(b) (Vernon Supp. 2009). By was unconstitutional under the United States and three issues on appeal, appellants argue that: (1) ap- Texas Constitutions. In August 2008, appellees pellees' claims are health care liability claims; (2) amended their petition to add causes of action appellees' expert reports did not constitute a good- against DeJesus and Njoh, in their individual capafaith effort to comply with the statute and were cities, for assault and intentional infliction of emofatally deficient; and (3) section 74.351's expert re- tional distress. After the trial court granted apport requirement is constitutional under the United pellees an extension of time to amend their expert States and Texas Constitutions. We affirm. report, appellees filed a report by George S. Glass, M.D. Spohn–Shoreline filed objections to the FN1. This opinion consolidates the Court's second report and all appellants filed motions to analysis of both appeals. See TEX.R.APP. dismiss the suit for failure to file an adequate expert P. 47.1. report. The trial court denied both motions to dismiss , and these appeals ensued. See TEX. CIV.

I. BACKGROUND PRAC. & REM.CODE ANN. § 51.014(a)(9)

In October 2007, Sanchez underwent spinal fu- (Vernon 2008) (authorizing an interlocutory appeal sion surgery at Spohn–Shoreline. She was recover- of the denial of a motion to dismiss filed under secing in the ICU when she alleges that Njoh and tion 74.351(b)). DeJesus, a registered nurse and a certified nurse's assistant, entered her room and made unwanted FN2. Appellees maintain that their claims sexual advances toward her. Sanchez alleges that are not health care liability claims and that one of the men undressed her and exposed her body they served an expert report in an for the other to see. She claims that they turned her “abundance of caution” to preserve their over using their hands instead of a turning pad and, rights to proceed with the lawsuit. while they were moving her from the bed to a chair in her room, they danced with her. Sanchez alleges II. DISCUSSION A. Health Care Liability Claims

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299 S.W.3d 868 (Cite as: 299 S.W.3d 868)

By the first issue, appellants assert that ap- FN3. The statute's definition of health care pellees' claims are health care liability claims gov- provider includes hospitals, registered erned by chapter 74 of the civil practice and remed- nurses, and employees acting in the course ies code. Specifically, appellants argue that the un- and scope of their employment with the derlying nature of appellees' claims is that appel- health care provider. See TEX. CIV. lants *873 breached the standards of care and safety PRAC. & REM.CODE ANN. § 74.001 owed to Sanchez. With regard to appellees' claims (a)(11)(G), (12)(A)(i), (12)(B)(ii) (Vernon against Spohn–Shoreline, we agree. However, we 2005). cannot so conclude with respect to appellees' claims against Njoh and DeJesus in their individual capa- [5][6] In determining whether appellees' claims cities. are indeed health care liability claims, we focus on the “gravamen,” or underlying nature, of the claim.

1. Standard of Review and Applicable Law Id. “[W]e are not bound by the form of the plead-

[1][2][3][4] “[W]hether a claim is a health care ing,” and the nature of the claim is not determined liability claim pursuant to section 74.351 is a ques- simply by the status of the defendant or the place of tion of law and is reviewed de novo.” Valley injury. Id.; see Marks, 2009 WL 2667801, at *8. In- Baptist Med. Ctr. v. Stradley, 210 S.W.3d 770, 773 stead, “it is the cause of the injury and its relation- (Tex.App.-Corpus Christi 2006, pet. denied). A ship to medical or professional judgment that dehealth care liability claim is defined as: termines” the nature of the claim and the applicability of the health care liability statute. Marks, 2009 [A] cause of action against a health care provider WL 2667801, at *8. ... for treatment, lack of treatment, or other claimed departure from accepted standards of 2. Claims against Njoh and DeJesus medical care, or health care, or safety or profes- Njoh and DeJesus argue that appellees' claims sional or administrative services directly related against them for assault and intentional infliction of to health care, which proximately results in injury emotional distress actually center on their rendering to or death of a claimant, whether the claimant's of health care services to Sanchez. They contend claim or cause of action sounds in tort or con- that Sanchez's allegations—that they undressed her tract. so they could view her naked body, moved her with their hands instead of a turning pad, and danced TEX. CIV. PRAC. & REM.CODE ANN. § with her while they were moving her from the bed FN3 74.001(a)(13) (Vernon 2005). “A cause of ac- to a chair—are all subjective interpretations of tion alleges a departure from accepted standards of what, in reality, were specific tasks routinely permedical care or health care if the act or omission formed by nursing staff, i.e. changing her clothes in complained of is an inseparable part of the rendi- preparation for the doctor, turning her over in her tion of medical services.” Diversicare Gen. Part- bed, and helping her to the chair in her room. Njoh ner, Inc. v. Rubio, 185 S.W.3d 842, 848 (Tex.2005) and DeJesus argue that Sanchez's differing percep- . Standards of safety implicate claimants' “exposure tion of the conduct does not take her claims outside to unreasonably dangerous or defective conditions the confines of the health care liability statute. We or things” in the course of their care. Marks v. St. disagree. Luke's Episcopal Hosp., No. 07–0783, 2009 WL 2667801, at *8 (Tex. Aug. 28, 2009). The necessity *874 [7] Although we acknowledge that the of expert testimony is an important factor in de- previously described tasks may be part and parcel termining whether the plaintiff's claim is insepar- of the care given to hospital patients by nursing able from the rendition of health care. Diversicare, staff, we do not view the conduct challenged by ap- 185 S.W.3d at 848. pellees in isolation from the surrounding circum-

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299 S.W.3d 868 (Cite as: 299 S.W.3d 868)

stances, as do Njoh and DeJesus. Because in addi- assault to occur, but rather, that the doctor injured tion to describing the undressing, turning over, and the plaintiff “by his own actions”). Appellees' moving of Sanchez, appellees also allege that Njoh claims against Njoh and DeJesus in their individual and DeJesus made sexual overtures toward Sanchez capacities are, therefore, not health care liability in the process of performing these tasks. Appellees claims, and we overrule the first issue as it applies FN4 claim that Njoh and DeJesus commented to Sanc- to Njoh and DeJesus. hez about her body while they were undressing her and allegedly danced with her and, at one point, FN4. Having decided that appellees' claims even tried to climb in the bed with her. Appellees against Njoh and DeJesus are not health further allege that one of the two wrote “I love you” care liability claims, we need not reach on the white board in Sanchez's room. We would be Njoh and DeJesus's contentions regarding remiss to conclude that such conduct was related to the adequacy of appellees' expert reports or the health care being provided to Sanchez or some- concerning the constitutionality of the exhow involved the professional judgment of Njoh pert report requirement. See TEX.R.APP. and DeJesus. See Jones v. Khorsandi, 148 S.W.3d P. 47.1. 201, 206 (Tex.App.-Eastland 2004, pet. denied)

3. Claims against Spohn–Shoreline (holding that allegations of sexual assault against a [9] Similarly, Spohn–Shoreline contends that doctor did not involve “a breach of the applicable the underlying nature of appellees' claims is that it standards of care for health care providers”).

did not care for Sanchez within the accepted stand-

[8] Appellees' amended petition alleges causes ards of care and safety. However, unlike appellees'

of action against Njoh and DeJesus for assault and claims against Njoh and DeJesus, appellees' claims intentional infliction of emotion distress, and we against Spohn–Shoreline are based on negligence, conclude that the underlying nature of appellees' implicate the standards of care and safety contemclaims , indeed, rests squarely in these intentional plated by chapter 74, and directly relate to its renactions that had “nothing to do with a health care dering of health care to Sanchez. See TEX. CIV. provider's lapse in professional judgment or failure PRAC. & REM.CODE ANN. § 74.001(a)(13); see to protect a patient due to an absence of supervision also Stradley, 210 S.W.3d at 775. In their amended or monitoring.” Holguin v. Laredo Reg'l Med. Ctr., petition, appellees allege that Spohn–Shoreline L.P., 256 S.W.3d 349, 354 (Tex.App.-San Antonio *875 owed a duty to Sanchez “to provide a reason- 2008, no pet.); see Jones, 148 S.W.3d at 206. “It ably safe recovery environment free from offensive would defy logic to suggest that a sexual assault ‘is contact” and that Spohn–Shoreline “breached this an inseparable part of the rendition of medical care’ duty by failing to properly hire, supervise, train, or a departure from accepted standards of care.” and retain its employees.” In other words, ap- Holguin, 256 S.W.3d at 353 (citing Diversicare, pellees' claims are that Spohn–Shoreline failed to 185 S.W.3d at 848). When a claim is based on the protect her from the alleged unwanted sexual adinjurious actions of an individual unrelated to the vances made by Njoh and DeJesus. provision of health care, that individual cannot hide [10][11] Decisions regarding the protection of behind the procedural safeguards of chapter 74 patients and the supervision and monitoring of staff merely because he or she was also a health care involve professional judgment, see Diversicare, provider at the time of the assault or other harmful 185 S.W.3d at 851, and “[i]t follows that proper conduct. See id. (reasoning that the plaintiff's claim staffing for the care and protection of patients is rethat his doctor sexually assaulted him was not a lated to and part of the rendition of health care.”

health care liability claim because the allegation Holguin, 256 S.W.3d at 356. Moreover, determinwas not that the doctor had negligently allowed the ing “the appropriate number, training, and certifica-

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299 S.W.3d 868 (Cite as: 299 S.W.3d 868)

tions of medical professionals necessary to care for against Spohn–Shoreline therefore constituted and protect patients in weakened conditions” re- health care liability claims subject to the expert requires health care expertise, which is but another port requirement of section 74.351. See id.; see also indicator that staffing decisions are inseparable TEX. CIV. PRAC. & REM.CODE ANN. § 74.351 from the provision of health care. Diversicare, 185 (a). We sustain the first issue as it applies to S.W.3d at 848, 851. Thus, as here, when a patient is Spohn–Shoreline. injured because of an alleged lapse in this professional decision-making, the lawsuit complaining of B. Expert Reports that injury is a health care liability claim. See id. at In the second issue, Spohn–Shoreline argues 851. that appellees' expert reports were fatally deficient.

FN5 [12] Appellees respond that their claim against Spohn–Shoreline for vicarious liability, in particu- FN5. By a sub-issue, Spohn–Shoreline lar, is not a health care liability claim subject to the complains that the trial court erred in expert report requirement. However, Texas courts granting appellees' request for a thirty-day have clearly held that a plaintiff cannot circumvent extension to amend the report of Nurse the expert report requirement by artfully pleading Burchell–Henson. Spohn–Shoreline argues her health care liability claim based upon the negli- that because the only expert report served gence of the health care provider as some other by appellees within the 120–day deadline cause of action, such as vicarious liability. See Gar- was authored by a nurse who, under the land Cmty. Hosp. v. Rose, 156 S.W.3d 541, 543 express terms of the statute, cannot offer (Tex.2004); NCED Mental Health, Inc. v. Kidd, 214 an opinion regarding causation, appellees S.W.3d 28, 34–35 (Tex.App.-El Paso 2006, no pet.) effectively failed to serve any expert report ; Oak Park, Inc. v. Harrison, 206 S.W.3d 133, on Spohn–Shoreline within the time frame 140–41 (Tex.App.-Eastland 2006, no pet.). Ap- required by section 74.351. See TEX. CIV. pellees' claim is not that Spohn–Shoreline, through PRAC. & REM.CODE ANN. § 74.351(c) its employees, committed the sexual assault. In- (“If an expert report has not been served stead, despite the recasting of their claim as com- within the period specified ... because elemon law vicarious liability, the underlying nature ments of the report are found deficient, the of appellees' claim is, nonetheless, that “through court may grant one thirty-day extension to lapses in professional judgment and treatment the claimant in order to cure the defi- [Spohn–Shoreline] negligently allowed the sexual ciency.”). In other words, Spohn–Shoreline assault to occur.” Diversicare, 185 S.W.3d at 851; argues that the report by Nurse see Harrison, 206 S.W.3d at 141. We are, there- Burchell–Henson was not merely deficient fore, unpersuaded by appellees' vicarious liability but, rather, no report at all and that, even if argument. they were entitled to a thirty-day extension , appellees could use the extension We conclude that the “gravamen” of appellees' only to amend the Burchell–Henson report, claims is that Spohn–Shoreline breached the stand- not to file a new report by a separate exards of care and safety owed to Sanchez by failing pert. However, the Texas Supreme Court to protect her from the allegedly assaultive conduct has held that objections to a nurse's qualiof its nursing staff. See Marks, 2009 WL 2667801, fications to act as an expert in a health care at *8. The complained-of conduct was an insepar- liability claim go to the sufficiency of the able part of the care provided to Sanchez as a pa- report and not to its existence. Ogletree v. tient at Spohn–Shoreline, and appellees' claims Matthews, 262 S.W.3d 316, 322

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299 S.W.3d 868 (Cite as: 299 S.W.3d 868)

(Tex.2007). Moreover, appellees were well are limited to the four corners of the report in dewithin their rights to supplement Nurse termining whether the report manifests a good-faith Burchell–Henson's report with a report on effort to comply with the statutory definition of an causation by Dr. Glass, because deficien- expert report. Palacios, 46 S.W.3d at 878; see TEX. cies in an expert report can be cured during CIV. PRAC. & REM.CODE ANN. § 74.351(l ) the thirty-day extension period by serving (requiring that the trial court “grant a motion chala report by a separate expert. Lewis v. Fun- lenging the adequacy of the expert report only if derburk, 253 S.W.3d 204, 208 (Tex.2008). appears to the court, after hearing, that the report As such, we are unpersuaded by does not represent an objective good faith effort to Spohn–Shoreline's argument and overrule comply” with the statutory definition). “Nothing in the second issue to the extent that it chal- [section 74.351] should be construed to mean that a lenges the trial court's decision to grant ap- single expert report must address all liability and pellees a thirty-day extension. causation issues....” TEX. CIV. PRAC. & REM.CODE. ANN. § 74.351(i). Moreover, the re-

*876 1. Standard of Review and Applicable Law ports “need not marshal all the plaintiff's proof.”

We review a trial court's decision on a motion Palacios, 46 S.W.3d at 878; see Jernigan, 195 to dismiss under section 74.351 of the civil practice S.W.3d at 93. If the expert report puts the defendant and remedies code for abuse of discretion. Jernigan on notice of the specific conduct complained of and v. Langley, 195 S.W.3d 91, 93 (Tex.2006); Am. provides the trial court a basis on which to con- Transitional Care Ctrs. of Tex., Inc. v. Palacios, 46 clude the claims have merit, the report represents a S.W.3d 873, 878 (Tex.2001). The trial court abuses *877 good-faith effort to comply with the statute. its discretion if it acts unreasonably or arbitrarily or Palacios, 46 S.W.3d at 879. without reference to any guiding rules or principles. Walker v. Gutierrez, 111 S.W.3d 56, 62 (Tex.2003). 2. Analysis The trial court's ruling is arbitrary and unreasonable [15] Spohn–Shoreline first argues that Nurse only if “the appellant establishes that the trial court Burchell–Henson's report did not adequately set could reasonably have reached only one decision.” forth the standard of care and/or safety and breach Taylor v. Christus Spohn Health Sys. Corp., 169 because the report is conclusory, speculative, and S.W.3d 241, 244 (Tex.App.-Corpus Christi 2004, does not differentiate between the standards of care no pet.). applicable to Spohn–Shoreline as opposed to the individual defendants. See Taylor, 169 S.W.3d at 244 Under section 74.351 of the Texas Civil Prac- (“An expert report may not assert that multiple detice and Remedies Code, a claimant must “serve on fendants are all negligent for failing to meet the each party or the party's attorney” an expert report standard of care without providing an explanation and curriculum vitae “not later than the 120th day of how each defendant specifically breached the after the date the original petition was filed.” See standard....”). Spohn–Shoreline further argues that TEX. CIV. PRAC. & REM.CODE ANN. § 74.351 the report does not provide specific information (a). An expert report is “a written report by an ex- about what it should have done differently. See pert that provides a fair summary of the expert's Palacios, 46 S.W.3d at 880 (holding that a “fair opinions ... regarding applicable standards of care, summary” of the applicable standard of care and the manner in which the care rendered ... failed to breach identifies the type of care expected but not meet the standards, and the causal relationship rendered). We disagree. between that failure and the injury, harm, or damages claimed.” Id. § 74.351(r)(6). Nurse Burchell–Henson's report states that the “standard of care requires that the hospital and its [13][14] In our review of the expert report, we

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299 S.W.3d 868 (Cite as: 299 S.W.3d 868)

nursing staff provide adequate supervision to their (Tex.2002) (holding that an expert report “cannot certified nursing assistants and licensed nursing merely state the expert's conclusions” regarding personnel.” The report further states that the causation; rather, the basis of the expert's state- “standard of care requires that the hospital and its ments must link his conclusions to the facts). Spenursing staff protect their patients from sexual har- cifically, Spohn–Shoreline contends that Dr. Glass's assment and abuse.” It is clear to this Court that, al- report is conclusory, does not show that though she references the “nursing staff” in these Spohn–Shoreline's conduct caused the events upon articulated standards of care, Nurse which appellees' claims are based, and does not dif- Burchell–Henson is describing the duties owed by ferentiate*878 between the conduct of Spohn–Shoreline to its patients. See Univ. of Tex. Spohn–Shoreline, versus that of Njoh and DeJesus, Sw. Med. Ctr. v. Dale, 188 S.W.3d 877, 879 as the cause of injury. Again, we disagree. (Tex.App.-Dallas 2006, no pet.) (holding that an expert report need not explicitly refer to the hospit- In his report, Dr. Glass opines at length about al employer by name where a plaintiff is asserting the alleged conduct of Njoh and DeJesus and devicarious , and not direct, liability, and where it is scribes the depression, severe anxiety, panic, nightclear that the conduct of the hospital employer is mares, and social isolation that Sanchez suffered implicated). By specifying that the hospital is to ad- following her stay at Spohn–Shoreline. Dr. Glass equately supervise its “certified nursing assistants observes that Sanchez was “unable to care [sic] and and licensed nursing personnel,” Nurse protect herself [sic] felt vulnerable, harassed by the Burchell–Henson effectively differentiates between people who were supposed to be caring for her in Spohn–Shoreline and the individual defendants. the hospital ICU.” He then concludes that: “The fact that [Sanchez] was vulnerable, unable to pro-

Moreover, we conclude that Nurse tect herself, and felt as if her person was violated Burchell–Henson identified the care that was ex- has caused her to now have symptoms of Major Depected but not rendered under the applicable stand- pression and Post Traumatic Stress Disorder.” ard of care. She states that Spohn–Shoreline “[f]ailed to provide adequate supervision to the Dr. Glass's emphasis on Sanchez's vulnerable CNA [DeJesus] and the RN [Njoh],” “[f]ailed to condition, in particular, puts Spohn–Shoreline on protect Ms. Sanchez from sexual harassment and notice of the conditions called into question by apsexual abuse,” and “[f]ailed to provide safety to pellees' claims. See Palacios, 46 S.W.3d at 879; Ms. Sanchez in her immediate post operative [sic] Wright, 79 S.W.3d at 53 (agreeing that plaintiffs when the CNA lifted Ms. Sanchez up and began are not required to use any sort of magic words to dancing with her.” She explains the specific tasks meet the section 74.351 expert report obligation). and responsibilities required of Spohn–Shoreline Read in combination with Nurse Burchell–Henson's and notes that it failed to perform as such. In short, report on the standard of care, which provided that the report put Spohn–Shoreline on notice of the Spohn–Shoreline had a duty to provide a safe respecific complained-of conduct, and we cannot say covery environment for its vulnerable post-opthat the trial court abused its discretion in finding erative patients, we conclude that Dr. Glass suffithat the report sufficiently set forth the standard of ciently linked Sanchez's assault to care and breach. See Palacios, 46 S.W.3d at 879. Spohn–Shoreline's failure to protect her from the assaultive conduct of Njoh and DeJesus. See TEX.

[16] Spohn–Shoreline next complains that the CIV. PRAC. & REM.CODE ANN. § 74.351(i)

report of Dr. Glass did not establish the causation (allowing standard of care and causation to be eselement required under the statute. See Bowie tablished in separate reports); see also Wright, 79 Mem'l Hosp. v. Wright, 79 S.W.3d 48, 52 S.W.3d at 52. The trial court did not abuse its dis-

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299 S.W.3d 868 (Cite as: 299 S.W.3d 868)

cretion in finding the report sufficient as to causation . See TEX. CIV. PRAC. & REM.CODE ANN. § 74.351(r)(6).

Based on the foregoing, we conclude that the expert reports of Nurse Burchell–Henson and Dr. Glass adequately set forth the standard of care, identified how Spohn–Shoreline breached the standard, and explained how the breach caused the injuries claimed by appellees. See Palacios, 46 S.W.3d at 878. The reports constituted a good faith effort to comply with the statute because they put Spohn–Shoreline on notice of the specific conduct complained of and provided the trial court with a basis on which to conclude appellees' claims have merit. See TEX. CIV. PRAC. & REM.CODE ANN. § 74.351(l ); Palacios, 46 S.W.3d at 879. We over-

FN6 rule the second issue.

FN6. Having concluded that appellees' expert reports met the requirements of section 74.351 and that the trial court did not err in denying Spohn–Shoreline's motion to dismiss, we need not reach its third issue regarding appellees' argument that the expert report requirement is unconstitutional. See TEX.R.APP. P. 47.1.

III. CONCLUSION The orders of the trial court denying appellants'

motions to dismiss are affirmed.

Tex.App.–Corpus Christi,2009. Christus Spohn Health System Corp. v. Sanchez 299 S.W.3d 868

END OF DOCUMENT

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701 S.W.2d 238 (Cite as: 701 S.W.2d 238)

ition, where president testified he was in complete charge of all operations of the company. Vernon's Supreme Court of Texas. Ann.Texas Rules Civ.Proc., Rule 215a(c) Ida E. DOWNER, Petitioner, (Repealed).

v.

AQUAMARINE OPERATORS, INC., Respondent. [2] Pretrial Procedure 307A 748

No. C–4141. 307A Pretrial Procedure Dec. 4, 1985. 307AV Pretrial Conference Rehearing Denied Jan. 15, 1986. 307Ak747 Order and Record or Report 307Ak748 k. Amendment or modifica-

Wife of deceased seaman brought action for tion. Most Cited Cases damages against shipowner. Trial court struck Trial court's plenary jurisdiction gives it not shipowner's answer as discovery abuse sanction and only authority but responsibility to review any presigned interlocutory default judgment as to liability. trial order upon proper motion, and in doing so, it is Jury trial on issue of damages was had in the 334th presumed that court is familiar with entire record of District Court, Harris County, Ken Harrison, J. case up to and including motion to be considered. Shipowner appealed. The Court of Appeals, 689 S.W.2d 472, reversed judgment of trial court. Wife [3] Pretrial Procedure 307A 225 appealed. The Supreme Court, Wallace, J., held that: (1) trial court had authority under rule regard- 307A Pretrial Procedure ing failure of party to appear at oral deposition to 307AII Depositions and Discovery strike answer of shipowner; (2) trial court correctly 307AII(C) Discovery Depositions imposed discovery sanction of striking shipowner's 307AII(C)6 Failure to Appear or Testify; answer; and (3) trial court correctly refused to ad- Sanctions mit evidence of contributory negligence. 307Ak225 k. Striking pleadings. Most Cited Cases Judgment of Court of Appeals reversed and judgment of trial court affirmed. Pretrial Procedure 307A 226

West Headnotes 307A Pretrial Procedure 307AII Depositions and Discovery [1] Pretrial Procedure 307A 101 307AII(C) Discovery Depositions 307AII(C)6 Failure to Appear or Testify;

307A Pretrial Procedure Sanctions 307AII Depositions and Discovery 307Ak226 k. Dismissal or default 307AII(C) Discovery Depositions judgment. Most Cited Cases 307AII(C)1 In General In refusing to grant new trial and reinstate 307Ak96 Persons Who May Be Ex- party's answer which had been struck at prior hearamined ing on Motion for Sanctions as discovery sanction, 307Ak101 k. Corporate officers, trial court could consider evidence introduced subagents , and employees. Most Cited Cases sequent to original sanctions hearing. Vernon's President of company which was party to ac- Ann.Texas Rules Civ.Proc., Rule 215a(c)

tion was a “party” within meaning of Rule 215a(c) (Repealed). regarding failure of party to appear at oral depos-

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701 S.W.2d 238 (Cite as: 701 S.W.2d 238)

[4] Appeal and Error 30 946 have to fly to another city to take depositions on following day, and shipowner failed to produce 30 Appeal and Error president of shipowner and immediate supervisor of 30XVI Review captain for deposition and did not explain this fail-

30XVI(H) Discretion of Lower Court ure. Vernon's Ann.Texas Rules Civ.Proc., Rule 30k944 Power to Review 215a(c) (Repealed).

30k946 k. Abuse of discretion. Most Cited Cases [6] Appeal and Error 30 1045(2)

Test for whether trial court abused its discretion is whether court acted without reference to any 30 Appeal and Error guiding rules and principles, i.e., whether the act 30XVI Review was arbitrary or unreasonable, and mere fact that 30XVI(J) Harmless Error trial judge may decide matter within his discretion- 30XVI(J)6 Interlocutory and Preliminary ary authority in different manner than appellate Proceedings judge in similar circumstance does not demonstrate 30k1045 Selection and Impaneling of that an abuse of discretion has occurred. Jurors 30k1045(2) k. Sustaining challenge [5] Pretrial Procedure 307A 225 or excusing juror. Most Cited Cases Alleged error of trial court in refusing to strike 307A Pretrial Procedure a juror for cause did not result in harm, where chal-

307AII Depositions and Discovery lenged juror was a spare.

307AII(C) Discovery Depositions 307AII(C)6 Failure to Appear or Testify; [7] Damages 115 203 Sanctions 307Ak225 k. Striking pleadings. Most 115 Damages Cited Cases 115X Proceedings for Assessment 115k193 Inquest on Default or Interlocutory Pretrial Procedure 307A 226 Judgment 115k203 k. Scope of issues and questions 307A Pretrial Procedure considered. Most Cited Cases 307AII Depositions and Discovery Trial court correctly refused to admit evidence 307AII(C) Discovery Depositions of contributory negligence in trial to determine 307AII(C)6 Failure to Appear or Testify; damages, where defendant's answer had been struck Sanctions and default judgment rendered as to liability and 307Ak226 k. Dismissal or default defendant had no pleading to support contributory judgment. Most Cited Cases negligence.

Trial court correctly imposed discovery sanction of striking defendant's answer and signing in- [8] Appeal and Error 30 221 terlocutory default judgment as to liability under Rule 215a(c)(Repealed) regarding failure of party 30 Appeal and Error to appear at oral deposition, where shipowner vol- 30V Presentation and Reservation in Lower untarily sent crew to sea rather than producing them Court of Grounds of Review for depositions as agreed on two occasions, attor- 30V(B) Objections and Motions, and Rulings ney for wife of deceased seaman stated shipowner's Thereon attorney waited until one hour past deposition time 30k221 k. Amount of recovery or extent to advise wife's attorney that wife's attorney would of relief. Most Cited Cases

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701 S.W.2d 238 (Cite as: 701 S.W.2d 238)

Alleged error of trial court in awarding pre- of Edward Downer's personnel file. On June 1, judgment interest was not presented to trial court Aquamarine notified Downer that the crew was at and was thus waived on appeal. sea and would not appear. Aquamarine at that time agreed to produce the requested persons on June 22.

*239 John O'Quinn, Frank M. Staggs, Jr., O'Quinn On June 21, Aquamarine again notified Downer & Hagans, Houston, for petitioner. that the crew was at sea and would not appear. It agreed to produce them on July 5.

Terry P. Ayre and Thomas A. Brown, Brown, Sims, Wise & White, Houston, for respondent. Downer filed written Notice of Intent to Take Depositions of the same individuals for July 5. On WALLACE, Justice. that date, the requested deponents did not appear, This is an appeal from a judgment for damages whereupon Downer filed a Motion for Sanctions. A in a suit brought under the Jones Act and under ad- hearing on the Motion for Sanctions was set for Aumiralty law. The trial dealt only with damages be- gust 22. Aquamarine made no appearance at the cause the trial court struck the defendant's answer hearing; the trial court granted the Motion for Sancas a discovery abuse sanction and signed an inter- tions and signed an Order Striking Aquamarine's locutory default judgment as to liability. The court Answer. of appeals reversed the trial court judgment, hold-

Downer filed a Motion for Interlocutory Deing that the action of *240 that court was an error fault Judgment to which Aquamarine responded.

of law and an abuse of discretion. 689 S.W.2d 472.

The response contained Aquamarine's reasons for We reverse the judgment of the court of appeals not producing the requested individuals for deposand affirm the judgment of the trial court.

itions and its failure to appear at the sanctions hear-

The issues before us are whether ing.

TEX.R.CIV.P. 215a(c), as it existed prior to the The reason offered for the first two occasions amendment effective August 1, 1984, authorized was that work for the FOUR POINT IV was scarce the trial court to strike defendant's answer, and, if and, when work was available, it was necessary to so, whether the exercise of that authority constisend the vessel and crew to sea rather than produce tuted an abuse of discretion.

them for depositions. On the third occasion, the Edward P. Downer was a seaman aboard the vessel was in port at New Iberia, Louisiana, but vessel Four Point IV. He drowned while attempting Coast Guard regulations required a skeleton crew to to free a line that had fouled the vessel's propeller. be kept aboard at all times. Aquamarine's attorney Ida E. Downer, his widow, brought this action stated that he notified Downer's attorney on July 1 against Aquamarine Operators, Inc., the owner and of the necessity to take the depositions in New Iberoperator of the vessel. The case was filed in the ia. Downer's attorney stated that he first learned 151st District Court of Harris County. Both Downer that the individuals would not appear as noticed and Aquamarine are residents of Harris County, when Aquamarine's attorney called him an hour Texas. after the depositions were scheduled to commence.

Both agreed that Aquamarine requested that the de-

Downer filed Notice of Intent to Take the De- positions be taken in New Iberia on July 6.

positions of All Members of The Crew on June 1. However, Downer's attorney stated that he could The notice identified each crew member, including not do so because he was preferentially set for trial the captain, Chester P. Dalfrey, by name only. in Houston starting at 9:00 a.m. on July 6. Downer also requested depositions of the immediate supervisor of Chester Dalfrey and the custodian The reason given by Aquamarine for not ap-

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701 S.W.2d 238 (Cite as: 701 S.W.2d 238)

pearing at the sanctions hearing was that Hurricane operations. Mr. Clark Ivans testified that he was Alicia had struck La Porte, the residence of Mr. president of Aquamarine at all times pertinent to Ayres, Aquamarine's lead counsel, four days previ- this case, and that as such, he was the immediate ously. Mr. Ayres was involved in cleaning up after supervisor of Chester Dalfrey. the hurricane and mitigating the damages to his home. Also, he had a hearing set in federal court in [1] We now address the issue of whether the Beaumont on the following day and was directing trial court had authority under Rule 215a(c) to all of his available attention to that matter. strike Aquamarine's answer. That rule stated in pertinent part:

To his Motion to Reconsider the Sanctions, Mr.

Ayres attached an affidavit from his secretary, If a party or an officer or managing agent of a which stated that she had called the clerk of the party, except for good cause shown, fails to apcourt on July 7, and had advised her that Mr. Ayres pear before the officer who is to take his oral dehad to make a docket call in Angleton on August position ... the court in which the action is 22. She understood the clerk to say that the sanc- pending on motion and notice may strike out all tions hearing would be reset for September 6. In re- or any part of the pleading of that party or dissponse to this motion, Downer's attorney advised miss the action or proceeding or any part therethe court by letter of his version of the circum- of.... stances leading up to the non-appearance on July 5, As noted above, Ivans testified that as president and the time when he was first advised *241 that of Aquamarine he was in complete charge of all opthe named individuals would not appear. Attached erations of the company. Thus he was a party as to this letter to the court was a copy of a letter dated contemplated by Rule 215a(c).

July 28, written by Mr. Bales, an associate of Mr. Ayres, which confirmed that the sanctions hearing [2][3] The next question is whether the trial was set for August 22. court, in refusing to grant a new trial and reinstate Aquamarine's answer, could consider the evidence With the above information before it, the trial introduced subsequent to the original sanctions court overruled Aquamarine's Motion to Reconsider hearing. Aquamarine contends that the trial court, the Sanctions and to reinstate its answer. The court in imposing sanctions, could consider only the signed an order granting an interlocutory default evidence before it at the time of the sanctions hearjudgment as to liability. Aquamarine filed a Motion ing, and not any evidence subsequently produced.

to Set Aside the Default Judgment. The motion A trial court's plenary jurisdiction gives it not only contained practically the same information as the the authority but the responsibility to review any Motion to Reconsider Sanctions set out above. The pre-trial order upon proper motion. In doing so, it is trial court considered this motion and overruled it.

presumed that the court is familiar with the entire On April 16, 1984, the case was preferentially set record of the case up to and including the motion to for trial for June 4, and the trial court refused to be considered. The plenary jurisdiction of the trial consider Aquamarine's Second Motion to Set Aside court in this case continued through the final judgthe Interlocutory Default Judgment and Reinstate ment and overruling of Aquamarine's motion for Defendant's Pleadings.

new trial. When considering the motion for new tri-

A jury trial was had in a different court, the al, the court had before it the reasons advanced by 334th District, on the issue of damages. At the trial, Aquamarine for not appearing for depositions or the Chester Dalfrey testified that he was captain of the sanctions hearing; Downer's response to Aquamar- FOUR POINT IV and as such he was in complete ine's motions; and the evidence produced at the trial charge of the vessel with authority over all of its on damages. Thus, the court of appeals erred in

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701 S.W.2d 238 (Cite as: 701 S.W.2d 238)

holding that the trial court did not have authority 215. The use of sanctions by trial courts to prevent under Rule 215a(c) to strike Aquamarine's answer. discovery abuse has developed steadily over the past several years. These changes reflect the con-

We now turn to the court of appeals holding tinuing pattern both to broaden the discovery prothat the trial court abused its discretion in striking cess and to encourage sanctions for failure to com- Aquamarine's answer. The court of appeals con- ply. cluded its review of the abuse of discretion issue by stating: “The facts of the case simply do not, in our The United States Supreme Court in National opinion, show this to be an appropriate case to im- Hockey League v. Metropolitan Hockey Club, Inc., pose the ultimate sanctions of striking the pleadings 427 U.S. 639, 96 S.Ct. 2778, 49 L.Ed.2d 747 and entering default judgment.” We interpret that (1976) approved the use of sanctions not only to asstatement to mean that the court of appeals dis- sure compliance with the discovery process but also agreed with the decision of the two trial judges who to deter those who might be tempted to abuse disreviewed the matter. covery in the absence of a deterrent.

[4] The test for abuse of discretion is not This court and various courts of appeals have whether, in the opinion of the reviewing court, the also followed this progression. See, e.g., Dyson v. facts present an appropriate case for the trial court's Olin Corp., 692 S.W.2d 456 (Tex.1985), (Kilgarlin, action. Rather, it is a question of whether the court J., concurring) (unnamed witness not permitted to acted without reference to any guiding rules and testify); Jarrett v. Warhola, 695 S.W.2d 8 *242 principles. Craddock v. Sunshine Bus Lines, (Tex.App.—Houston [14th Dist.] 1985, writ ref'd), 134 Tex. 388, 133 S.W.2d 124, 126 (plaintiff's cause of action dismissed); City of Hous- (Tex.Comm.App.—1939, opinion adopted). Anoth- ton v. Arney, 680 S.W.2d 867 (Tex.App.—Houston er way of stating the test is whether the act was ar- [1st Dist.] 1984, no writ) (defendant's answer struck bitrary or unreasonable. Smithson v. Cessna Air- for failure to answer interrogatories); Southern Pacraft Co., 665 S.W.2d 439, 443 (Tex.1984); Landry cific Transportation v. Evans, 590 S.W.2d 515 v. Travelers Insurance Co., 458 S.W.2d 649, 651 (Tex.Civ.App.—Houston [1st Dist.] 1979, writ ref'd (Tex.1970). The mere fact that a trial judge may de- n.r.e.) (defendant's answer struck and interlocutory cide a matter within his discretionary authority in a default judgment rendered as to liability), cert. different manner than an appellate judge in a simil- denied, 449 U.S. 994, 101 S.Ct. 531, 66 L.Ed.2d ar circumstance does not demonstrate that an abuse 291 (1980). of discretion has occurred. Southwestern Bell Telephone Co. v. Johnson, 389 S.W.2d 645, 648 In various speeches and law review articles, (Tex.1965); Jones v. Strayhorn, 159 Tex. 421, 321 different members of this court have encouraged S.W.2d 290, 295 (Tex.1959). trial judges to use sanctions to the degree necessary to assure compliance with discovery procedures and To determine the trial judge's guiding rules and deter abuse of the process. Barrow and Henderson, principles in imposing sanctions for discovery ab- 1984 Amendments to the Texas Rules of Civil Prouse , we must look to the Texas Rules of Civil Pro- cedure Affecting Discovery, 15 ST. MARY'S L.J. cedure as promulgated and amended by this Court 713 (1984) (presented to the Texas College of the as well as the decisions of appellate courts of this Judiciary Nov. 29, 1984); Kilgarlin and Jackson, State and of the United States. The Texas Rules of Sanctions for Discovery Abuse Under New Rule Civil Procedure pertaining to discovery and sanc- 215, 15 ST. MARY'S L.J. 767 (1984); Pope and tions for noncompliance have been amended sever- McConnico, Practicing Law With the 1981 Texas al times, culminating in Rule 215a as it existed at Rules, 32 BAYLOR L.REV. 457 (1981); Spears, the time of this case, and now embodied in Rule The Rules of Civil Procedure: 1981 Changes In

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701 S.W.2d 238 (Cite as: 701 S.W.2d 238)

Pretrial Discovery, 12 ST. MARY'S L.J. 633 short statement of the cause of action sufficient to (1981). give fair notice of the claim involved. Our rules do not require pleadings to contain evidence or factual The trial court in this case was free to examine detail. That point is overruled.

the factors before it to determine whether to levy sanctions. Among these were the following: (1) [6] The second point was that the trial court whether voluntarily sending the crew to sea rather improperly refused to strike a juror for cause. After than producing them for depositions as agreed on the court had ruled on challenges for cause, there two occasions was in conscious disregard of this were 26 names left on the jury list. Each party was court's rules; (2) whether the contradictory state- given six jury strikes, so, after making those strikes, ments of both attorneys indicated that Aquamarine's 14 names remained on the list. The challenged juror attorney did in fact wait until one hour past the was Number 14 and was thus a spare. There was no scheduled time for depositions on July 5, to advise harm in refusing to dismiss him for cause. Downer's attorney that he would have to fly to New Iberia and take depositions on the following day; [7] The third point was that the trial court im- (3) whether Aquamarine's attorney consciously dis- properly refused to admit evidence of Downer's regarded the sanctions hearing in preference to his contributory negligence. Contributory negligence is personal needs and the federal court case set the an affirmative defense which must be pleaded. following day; (4) whether the information con- Aquamarine's answer had been struck and default tained in the secretary's affidavit as to the date of judgment rendered as to liability. Thus, defendant the sanctions hearing conflicted with the letter from had no pleading to support contributory negligence, an attorney *243 in that law firm confirming that so the court did not err in refusing to admit the rethe hearing was set on August 22; and (5) the unex- quested evidence. plained failure of Aquamarine to produce for de-

[8] Aquamarine's remaining point before the positions on any of the occasions in question Clark court of appeals was that the trial court erred in Ivans, the immediate supervisor of Chester Dalfrey awarding prejudgment interest in a Jones Act case and the president of Aquamarine.

tried to a jury. This point was not presented to the [5] The record contains no indication that the trial court and was thus waived.

trial court was capricious, arbitrary, or unreason-

Aquamarine's points of error presented to the able. Thus, the court of appeals erred in holding court of appeals but not considered by that court that the trial court abused its discretion.

concerned questions of law over which we have jur-

In determining whether to reverse and render isdiction. There is no merit to these points so it is this cause or to remand it to the court of appeals, not necessary for this cause to be remanded to the we must look to the four points of error raised by court of appeals. Aquamarine before the court of appeals but not ad-

The judgment of the court of appeals is redressed by that court. If those points raise questions versed and the judgment of the trial court is afof law, as opposed to questions of fact, they can be firmed.

addressed by this court.

Tex.,1985.

The first point was that Downer's First Downer v. Aquamarine Operators, Inc.

Amended Original Petition was insufficient to sup-

701 S.W.2d 238 port the judgment. The contention is that the facts supporting the cause of action were not pleaded. END OF DOCUMENT TEX.R.CIV.P. 47 requires that a petition contain a

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777 S.W.2d 38 (Cite as: 777 S.W.2d 38)

(Formerly 413k1167)

Term “litigation,” as used in rule governing Supreme Court of Texas. party communications privilege, refers only to court George FLORES, Relator, proceedings and does not encompass proceedings v. before Industrial Accident Board. Vernon's The FOURTH COURT OF APPEALS, Respondent. Ann.Texas Rules Civ.Proc., Rule 166b, subd. 3, par. d.

No. C–7815. June 28, 1989. [2] Pretrial Procedure 307A 35 Rehearing Denied Oct. 11, 1989.

307A Pretrial Procedure Claimant brought writ of mandamus to compel 307AII Depositions and Discovery vacation of order of Court of Appeals, 751 S.W.2d 307AII(A) Discovery in General 551, directing trial court to vacate order requiring 307Ak35 k. Work-Product Privilege. city to produce accident report in workers' com- Most Cited Cases pensation suit. The Supreme Court, Mauzy, J., held (Formerly 307Ak33) that: (1) report was not protected by party commu- Determination of whether there is good cause nications privilege, and (2) trial court was within its to believe suit will be filed, so that investigation is authority in ordering discovery of report. done in anticipation of litigation for purposes of party communication privilege, requires considera-

Writ issued with conditions.

tion of outward manifestations which indicate litig-

Gonzales, J., dissented and filed opinion in ation is imminent, and consideration of whether which Phillips, C.J., and Cook, J., joined. party opposing discovery had a good-faith belief that litigation would ensue. Vernon's Ann.Texas West Headnotes Rules Civ.Proc., Rule 166b, subd. 3, par. d.

[1] Administrative Law and Procedure 15A [3] Administrative Law and Procedure 15A 466 466

15A Administrative Law and Procedure 15A Administrative Law and Procedure 15AIV Powers and Proceedings of Administrat- 15AIV Powers and Proceedings of Administrative Agencies, Officers and Agents ive Agencies, Officers and Agents 15AIV(D) Hearings and Adjudications 15AIV(D) Hearings and Adjudications 15Ak466 k. Discovery. Most Cited Cases 15Ak466 k. Discovery. Most Cited Cases

Workers' Compensation 413 1703.5 Workers' Compensation 413 1703.5

413 Workers' Compensation 413 Workers' Compensation 413XVI Proceedings to Secure Compensation 413XVI Proceedings to Secure Compensation 413XVI(P) Hearing or Trial 413XVI(P) Hearing or Trial 413XVI(P)2 Production and Reception of 413XVI(P)2 Production and Reception of Evidence and Examination of Witnesses Evidence and Examination of Witnesses 413k1703.5 k. Privileges. Most Cited 413k1703.5 k. Privileges. Most Cited Cases Cases (Formerly 413k1167)

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777 S.W.2d 38 (Cite as: 777 S.W.2d 38)

Report relating to workers' compensation hold that the trial court did not abuse its discretion, claim, of kind prepared in every case set for pre- we conditionally grant the writ of mandamus. hearing conference before Industrial Accident Board, was prepared in usual and customary course *39 In the underlying action, Flores filed a of business and not in preparation of litigation, and workers' compensation suit against the City of San therefore was not protected by party communica- Antonio, which is selfinsured. As part of his pretrial tions privilege. Vernon's Ann.Texas Rules discovery, he propounded a set of interrogatories Civ.Proc., Rule 166b, subd. 3, par. d. and requests for production of documents to the City. The City objected to two interrogatories and a [4] Workers' Compensation 413 1167 request for production that sought discovery of any investigations conducted by or on behalf of the City 413 Workers' Compensation after Flores' injury. The City asserted that such in-

413XVI Proceedings to Secure Compensation vestigations were privileged under rule 166b(3)(d).

413XVI(A) In General Flores filed a motion to compel answers to the in-

413k1167 k. Proceedings Before Boards, terrogatories and request for production, and the Commissions, or Arbitrators. Most Cited Cases City responded by filing a motion for protective or-

District court was within its authority in order- der.

ing production of investigative report prepared after notice of injury was filed with Industrial Accident The judge of the 73rd District Court of Bexar Board but before appeal to a district court. Vernon's County conducted a hearing on both motions which Ann.Texas Rules Civ.Proc., Rule 166b, subd. 3, included an in camera inspection of the documents par. d. and testimony from George Vasill, a claims supervisor employed by an independent adjusting firm *38 Roy D. Quillian, III, Susan Stone, San Antonio, hired by the City. Vasill had become involved in for relator. the case after Flores filed his claim for compensation with the Industrial Accident Board. After in-

Charles S. Frigerio, Hector X. Saenz, San Antonio, vestigating Flores' claim, he filed a prehearing refor respondent.

port.

MAUZY, Justice. The trial judge granted Flores' motion to com-

At issue in this mandamus proceeding is pel and ordered that the prehearing report prepared whether the trial court in the underlying workers' by Vasill be produced. The City petitioned the compensation case abused its discretion by ordering Fourth Court of Appeals for a writ of mandamus the production of an investigative report prepared which was conditionally granted. Flores now seeks after notice of injury was filed with the Industrial a writ of mandamus in this court contending that Accident Board but before an appeal to a district the court of appeals abused its discretion by grantcourt . The Court of Appeals for the Fourth District ing the City's writ and ordering the trial court to vaof Texas held that the trial court abused its discre- cate its order. tion and that the information obtained in the post-

Rule 166b(3)(d) sets out the party communicaaccident investigation was privileged under rule FN1 tions privilege. At the heart of the controversy 166b(3)(d) of the Texas Rules of Civil Procedure.

is the language in the rule which states that a com-

The court of appeals directed the trial court to vamunication is privileged if it is prepared “in anticate its order. 751 S.W.2d 551. Relator George cipation of the prosecution or defense of the claims Flores seeks mandamus from this court directing made a part of the pending litigation.” Tex.R.Civ.P.

the court of appeals to vacate its order. Because we 166b(3)(d). The City claims that the report prepared

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777 S.W.2d 38 (Cite as: 777 S.W.2d 38)

by Vasill is privileged because it was prepared in appeals agreed, and accordingly held that litigation anticipation of litigation. commenced when Flores filed his claim for compensation , and that the report subsequently prepared FN1. Rule 166b(3)(d) states: was privileged. 751 S.W.2d at 554.

3. Exemptions. The following matters [1] The court of appeals also held that the are protected from disclosure by priv- terms “litigation,” “suit,” and “lawsuit,” as used in ilege: rule 166b(3)(d), encompassed proceedings before the Industrial Accident Board and thus extended the ....

definition of litigation to include proceedings bed . Party Communications. With the ex- fore an administrative agency having quasi-judicial ception of discoverable communications powers and employing quasi-judicial procedures.

FN2 prepared by or for experts, and other dis- Id. We cannot sanction*40 this expansive coverable communications, between definition. Therefore, we hold that the term agents or representatives or the employ- “litigation” refers only to court proceedings, which ees of a party to the action or communic- in this case commenced when Flores filed suit in FN3 ations between a party and that party's the district court. Other states have recognized agents, representatives or employees, that a proceeding before workers' compensation when made subsequent to the occurrence agencies does not constitute litigation. Bearns v. or transaction upon which the suit is Department of Indus., Labor & Human Relations, based, and in anticipation of the prosecu- 102 Wis.2d 70, 306 N.W.2d 22 (1981) (litigation tion or defense of the claims made a part refers only to proceedings after the filing of a petiof the pending litigation. For the purpose tion in district court); Kochinsky v. Independent of this paragraph, a photograph is not a Pier Co., 157 Pa.Super. 15, 41 A.2d 409 (1945) communication. (proceedings before the workers' compensation agency are not litigation).

Tex.R.Civ.P. 166b(3)(d).

FN2. As support for its definition of litiga-

The City, as the party resisting discovery, has tion, the court of appeals cites to G. & C.

the burden of producing evidence to establish the Merriam Co., Webster's Third New Interprivilege . McKinney v. National Union Fire Ins. national Dictionary 1322 (1961) which Co., 772 S.W.2d 72 (Tex.1989); Turbodyne Corp. defines “litigation” as “a controversy inv . Heard, 720 S.W.2d 802, 804 (Tex.1986); Giffin volving adverse parties before an executive v. Smith, 688 S.W.2d 112, 114 (Tex.1985). The governmental agency having quasi-judicial City can only invoke the privilege if Vasill pre- powers and employing quasi-judicial propared the report after there was good cause to be- cedures.” However, Black's Law Dictionlieve suit would be filed or after the institution of a ary 814 (5th ed. 1979) defines litigation as lawsuit. Stringer v. Eleventh Court of Appeals, 720 “[a] lawsuit. Legal action, including all S.W.2d 801, 802 (Tex.1986); Allen v. Humphreys, proceedings therein. Contest in a court of 559 S.W.2d 798, 802 (Tex.1977). law for the purpose of enforcing a right or seeking a remedy. A judicial contest, a ju-

The first inquiry is whether filing a notice of dicial controversy, a suit at law.”

claim for workers' compensation commences litigation . The City contends that when a worker files a FN3. Rule 166b(3)(e) states: claim for compensation with the Industrial Accident Board litigation has commenced. The court of 3. Exemptions. The following matters

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777 S.W.2d 38 (Cite as: 777 S.W.2d 38)

are protected from disclosure by priv- tion commences, but concerned the issue of whethilege : er the attorney general could intervene in utility rate cases before the Public Utility Commission.

....

Judicial review of a workers' compensation e. Other Privileged Information. Any case is vastly different from a utility rate case. A matter protected from disclosure by any workers' compensation claim differs from other other privilege. matters considered by administrative agencies because the Industrial Accident Board is a “way sta-

Upon a showing that the party seeking tion” a party must pass through to reach the trial discovery has substantial need of the macourt . Either party, including the City as a selfterials and that the party is unable insured entity, can appeal the board's award and dewithout undue hardship to obtain the mand a trial by jury.

substantial equivalent of the materials by other means, a party may obtain discov- A party or intervenor appealing from an adery of the materials otherwise exempted verse decision of the Public Utility Commission is from discovery by subparagraphs c and d only entitled to a review under the substantial evidof this paragraph 3. Nothing in this para- ence rule. It may not remake the record at the trial graph 3 shall be construed to render non- court level and cannot contest issues of fact found discoverable the identity and location of by the Commission. Tex.Rev.Civ.Stat.Ann. art. any potential party, any person having 1446c, § 69 (Vernon Supp.1989); knowledge of relevant facts, any expert Tex.Rev.Civ.Stat.Ann. art. 6252–13a, § 19 (Vernon who is expected to be called as a witness Supp.1989); see Railroad Comm'n v. Entex, Inc., in the action, or of any consulting expert 599 S.W.2d 292 (Tex.1980). In contrast, a party apwhose opinions or impressions have pealing an Industrial Accident Board award is not been reviewed by a testifying expert. bound by the record made at the agency level and can make a new record at the trial court level, Tex.R.Civ.P. 166b(3)(e).

where the jury determines contested issues of fact.

Based upon the theory that in State v. Thomas, Tex.Rev.Civ.Stat.Ann. art. 8307, § 5 (Vernon 766 S.W.2d 217 (Tex.1989), we elevated a Supp.1989). “contested case” before a utility rate agency to the [2] Since we have concluded that litigation did level of an action “in the courts,” the dissent connot commence when Flores' filed his notice of cludes that proceedings before the Industrial Acciclaim , the next inquiry is whether the report was dent Board constitute litigation. This analysis is prepared in anticipation of litigation. Determining severely flawed. Unlike the Public Utility Commiswhether there is good cause to believe a suit will be sion, the Industrial Accident Board is not an agency filed, so that an investigation is done in anticipation which determines “contested cases” within the of litigation, requires a two-prong analysis. The meaning of the Administrative Procedure and Texas first prong requires *41 an objective examination of Register Act. Tex.Rev.Civ.Stat.Ann. art. 6252–13a, the facts surrounding the investigation. Considera-

§ 3(1) (Vernon Supp.1989).

tion should be given to outward manifestations Our holding, that proceedings before the Indus- which indicate litigation is imminent. The second trial Accident Board do not constitute litigation, prong utilizes a subjective approach. Did the party does not conflict with our holding in Thomas. opposing discovery have a good faith belief that lit- Thomas did not address discovery or when litiga- igation would ensue? There cannot be good cause to believe a suit will be filed unless elements of

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777 S.W.2d 38 (Cite as: 777 S.W.2d 38)

both prongs are present. Looking at the totality of interlocutory matter is ordinarily quite broad, the circumstances surrounding the investigation, the whereas the discretion exercised by an appellate trial court must then determine if the investigation court possessing mandamus power is much more was done in anticipation of litigation. Unless there confined.” Johnson v. Fourth Court of Appeals, 700 is an abuse of discretion, the trial court's ruling S.W.2d 916, 917 (Tex.1985). A writ of mandamus should not be disturbed. is only issued to correct a clear abuse of discretion or the violation of a duty imposed by law when [3] In the present case, the report was printed there is no adequate remedy by appeal. State v.

on a standard form and contained the following in- Walker, 679 S.W.2d 484, 485 (Tex.1984). The formation: (1) whether there was a question of cov- court of appeals abuses its discretion when it grants erage, claimant's employment, compensable injury, relief absent these circumstances. Johnson, 700 whether the injury occurred in the course and scope S.W.2d at 917. of employment; (2) the average weekly wage on the date of the accident; (3) amount of temporary total By contrast, a trial court abuses its discretion disability paid claimant; (4) any advance payments; when it reaches a decision so arbitrary and unreas- (5) whether the claim had been previously heard at onable that it results in a clear and prejudical error a prehearing conference; (6) summary of medical of law. The relator must establish that the law and findings; (7) whether claimant had returned to the facts of the case only allow the trial court to work; (8) calculations of the claimant's injuries; (9) reach one decision, since mandamus will not issue current indemnity reserves; (10) attorney for the to control the action of a trial court in a matter inclaimant ; and (11) claims examiner. volving discretion. Johnson, 700 S.W.2d at 917.

During the hearing on the City's motion for [4] To determine whether the court of appeals protective order, Vasill testified that it was usual abused its discretion we must make an independent and customary to prepare such a report and that this inquiry as to whether the trial court's order was so was done in every case that was set for a prehearing arbitrary and unreasonable that it resulted in a clear conference. Other than his own conclusion that lit- and prejudicial error of law. If determination of the igation would ensue, he observed no outward mani- matter lies within the discretion of the trial court, festation of litigation until he received the notice of its ruling will not be disturbed unless there has been intention to appeal. Flores' counsel stated he sought a clear abuse of discretion. Johnson, 700 S.W.2d at only statements that dealt with the facts of the case 917. and that he was not interested in any evaluations made by Vasill or the indemnity reserves. The City The scope of discovery and the admission of made no specific attempt to protect the indemnity evidence is principally within the discretion of the reserves from disclosure. trial court. Ginsberg v. Fifth Court of Appeals, 686 S.W.2d 105, 108 (Tex.1985). In the present case, From the circumstances surrounding its prepar- the trial judge held a hearing on the City's motion ation, this report was clearly prepared in the usual for protective order and an in camera inspection and customary course of business. Vasill's subject- pursuant to rule 166b(4) of the Texas Rules of Civil ive conclusion that Flores would file suit was un- Procedure. Tex.R.Civ.P. 166b(4); see *42Peeples v. supported by any objective indications that litiga- Honorable Fourth Supreme Judicial Dist., 701 tion was imminent; in fact, Vasill himself testified S.W.2d 635 (Tex.1985). Our review of the record there were no outward manifestations of litigation. reveals that the trial court did not reach a decision “so arbitrary and unreasonable as to amount to a We have previously recognized that “[t]he dis- clear and prejudicial error of law.” Johnson, 700 cretion exercised by a trial court when ruling on an S.W.2d at 917. The trial court was properly within

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777 S.W.2d 38 (Cite as: 777 S.W.2d 38)

its discretion when it deemed the investigative re- (3) Trial Preparation: Materials. Subject port discoverable. Accordingly, we hold that the tri- to the provisions of subdivision (b)(4) of al court did not abuse its discretion by granting this rule, a party may obtain discovery of Flores' motion to compel and ordering the prehear- documents and tangible things otherwise ing report be produced. discoverable under subdivision (b)(1) of this rule and prepared in anticipation of Besides an absence of abuse of discretion, we litigation or for trial by or for another have another reason to uphold the trial court's rul- party or by or for that other party's reping . In 1988 rule 166b(3)(e) was amended; a sen- resentative (including the other party's tence was added to allow one seeking information attorney, consultant, surety, indemnitor, that was otherwise privileged under rule 166b(3)(d) insurer, or agent) only upon a showing , to obtain such discovery by showing that party's that the party seeking discovery has subsubstantial need for materials and inability without stantial need of the materials in the preundue hardship to obtain the substantial equivalent paration of the party's case and that the of the materials by other means. Although not ad- party is unable without undue hardship dressed by the parties and often overlooked by to obtain the substantial equivalent of those seeking discovery of privileged materials, the materials by other means. In ordering section (3)(e) is the proper vehicle to alleviate discovery of such materials when the remuch of the bench's and bar's struggle over what in- quired showing has been made, the court vestigations will be deemed in anticipation of litig- shall protect against disclosure of the ation. mental impressions, conclusions, opinions , or legal theories of an attorney or Similarly, under rule 26(b)(3) of the Federal FN4 other representative of a party concern-

Rules of Civil Procedure, a party may obtain ing the litigation.

discovery of documents and tangible things prepared in anticipation of litigation upon a showing of A party may obtain without the required both substantial need and an inability absent undue showing a statement concerning the achardship to obtain the substantial equivalent from tion or its subject matter previously other means. This rule also directs the court to made by that party. Upon request, a per- “protect against disclosure of mental impressions, son not a party may obtain without the conclusions, opinions, or legal theories of an attor- required showing a statement concerning ney or other representative of a party.” The utiliza- the action or its subject matter prevition of this rule in the federal courts has greatly ously made by that person. If the request furthered the purpose of discovery—to prevent trial is refused, the person may move for a by ambush. In Texas, the bar could be similarly court order. The provisions of Rule well-served by utilizing section (3)(e) during dis- 37(a)(4) apply to the award of expenses covery. incurred in relation to the motion. For purposes of this paragraph, a statement FN4. Rule 26(b)(3) states:

previously made is (A) a written state-

(b) Discovery Scope and Limits. Unless ment signed or otherwise adopted or apotherwise limited by order of the court in proved by the person making it, or (B) a accordance with these rules, the scope of stenographic, mechanical, electrical, or discovery is as follows: other recording, or a transcription thereof , which is a substantially verbatim re-

.... cital of an oral statement by the person

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777 S.W.2d 38 (Cite as: 777 S.W.2d 38)

making it and contemporaneously recor- garding documents the City claimed were privded . ileged, with the exception of one document entitled, “Pre–Hearing Conference Preliminary Report.” The Fed.R.Civ.P. 26(b)(3). pre-hearing report had been prepared by a claims supervisor after Flores filed his workers' compensa-

For the above reasons, we hold that the trial tion claim to the IAB and it contained, among other court's ruling should not have been disturbed and things, information regarding the indemnity rethat the court of appeals abused its discretion by serves.

granting the City's writ and ordering the trial court to vacate its order. We conditionally grant Flores' The City successfully sought a writ of mandapetition for writ of mandamus. The writ will issue mus to the court of appeals to compel the trial court only if the court of appeals refuses to rescind its or- to vacate part of the order compelling discovery of der. the pre-hearing report. For the following reasons, I agree that the report was privileged information and GONZALEZ, J., files a dissenting opinion in which therefore warranted the shield of a protective order.

PHILLIPS, C.J., and COOK, J., join.

The party communications privilege is embod-

GONZALEZ, Justice, dissenting.

ied in Tex.R.Civ.P. 166b(3)(d), which provides:

Ordinarily, I would agree with any decision of this court according greater deference to trial courts 3. Exemptions. The following matters are protecin pre-trial matters. See e.g., Loftin v. Martin, 776 ted from disclosure by privilege: S.W.2d 145 (Tex.1989) (Hecht, J., dissenting). However,*43 under the peculiar facts of this case, d. Party Communications. With the exception the court should not hide behind a false deference of discoverable communications prepared by or to judicial discretion, but should announce a simple for experts, and other discoverable communicarule which most parties can understand and follow. tions, between agents or representatives or the By failing to propound such a rule, the court has employees of a party to the action or communicaleft both the bench and the bar adrift. In order to re- tions between a party and that party's agents, repduce the hemorrhaging of delay, uncertainty, and resentatives or employees, when made subexpense in this muddled area of the law, I would sequent to the occurrence or transaction upon adopt a bright line rule in cases where an agency which the suit is based, and in anticipation of the determination must precede litigation and hold that prosecution or defense of the claims made a part the filing of a claim with the agency constitutes of the pending litigation. For the purpose of this commencement of litigation. Because I agree with paragraph, a photograph is not a communication. the court of appeals that litigation commenced when Flores filed his workers' compensation claim, It is undisputed that the report is a communica- I would deny the writ of mandamus. tion between representatives of the City and was prepared subsequent to Flores' injury which gave George Flores appealed the Industrial Accident rise to this suit. However, there is a dispute as to Board's (IAB) ruling of his workers' compensation whether the report was prepared in anticipation of claim in district court. He served his employer, the litigation. This privilege protects “[o]nly informa- City of San Antonio, with interrogatories and a re- tion obtained by a party after there is good cause to quest for production seeking discovery of any in- believe a suit will be filed or after the institution of vestigations conducted by or on behalf of the City a lawsuit.” Stringer v. Eleventh Court of Appeals, subsequent to Flores' injury. The trial court granted 720 S.W.2d 801, 802 (Tex.1986); see also Turboa motion for a protective order filed by the City re- dyne Corp. v. Heard, 720 S.W.2d 802, 804

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777 S.W.2d 38 (Cite as: 777 S.W.2d 38)

FN1 (Tex.1986). hearing report was privileged and it was not within the discretion of the trial court to order its produc-

FN1. This is not the first time this court tion. has had difficulty in determining when a communication is made in connection with Also, the two-prong analysis suggested by the anticipation of litigation. We have been court is unworkable. How can a party establish or a criticized, and rightfully so, that when trial court decide whether an investigation made there is a collision between two freight prior to an IAB award was made “with good cause trains of different railroads resulting in ser- to believe” that the claim would later proceed to litious injury or death, any “fool” would igation? It is no longer enough for a party to estabknow that a suit would be filed. Stringer lish this in his or her own state of mind with reand Turbodyne, were per curiam opinions, gards to another party's conduct, which was diffiand up to now, our court has not allowed cult enough. To succeed, a party must now not only dissents in per curiam opinions. demonstrate that it possessed clairvoyant knowledge of the IAB's future reaction to the claim and Flores contends that the report is not privileged the parties response to that reaction (subjective apbecause it was made prior to his filing suit in dis- proach), but it must also demonstrate how others in trict court, and therefore, was not in anticipation of the same or similar circumstances would react to litigation. The report was made after the workers' the claim (objective approach). I submit that today's compensation claim was filed. Although the IAB is decision requires litigants and judges to accomplish not a court, it nonetheless entertains formal adjudic- the impossible. ative proceedings in which it performs quasi-judicial functions. Vestal v. Texas Employers' Ins. For the above reasons, I dissent. Ass'n, 285 S.W. 1041, 1044 (Tex. Comm'n App.1926, judgm't adopted); Moore v. Means, 549 PHILLIPS, C.J. and COOK, J., join in this dissent- S.W.2d 417, 418 (Tex.Civ.App.—Beaumont 1977, ing opinion. writ ref'd n.r.e.). The IAB may order *44 claimants Tex.,1989.

to submit to physical examinations, subpoena wit-

Flores v. Fourth Court of Appeals nesses, administer oaths, inquire into matters of fact 777 S.W.2d 38 and punish for contempt in the same manner and to the same degree as a district court. END OF DOCUMENT Tex.Rev.Civ.Stat.Ann. art. 8307, § 4 (Vernon Supp.1988). Therefore, in light of these functions, I agree with the court of appeals that the term “litigation” contemplated by Rule 166b(3)(d) should be read to encompass proceedings before the IAB. This conclusion is consistent with this court's recent holding in State v. Thomas, 766 S.W.2d 217, 219 (Tex.1989), wherein the court equated a “contested case” to being the same as an action “in the courts,” thereby allowing the Attorney General to intervene under its constitutional authority to take action “in the courts.” Thus, I would hold that the filing of a claim with the IAB constitutes the commencement of a lawsuit. Therefore, the pre-

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395 S.W.3d 884 (Cite as: 395 S.W.3d 884)

West Headnotes

Court of Appeals of Texas, [1] Health 198H 804 Austin.

Richard HEBERT and Janet Hebert, Appellants 198H Health v. 198HV Malpractice, Negligence, or Breach of Timothy E. HOPKINS, M.D., and Shannon Clinic, Duty Appellees. 198HV(G) Actions and Proceedings 198Hk804 k. Affidavits of merit or merit-

No. 03–11–00419–CV. orious defense; expert affidavits. Most Cited Cases March 1, 2013. To constitute a “good faith effort” to comply with statutory definition of the expert report re-

Background: Patient filed health care liability quired for a health care liability claim (HCLC), the claim (HCLC) against neurosurgeon and clinic in report must include the expert's opinion on each of connection with spinal-fracture surgery that pur- the three main elements, i.e., standard of care, portedly rendered patient a quadriparetic. The Dis- breach, and causation, and must provide enough intrict Court, Tom Green County, 391st Judicial Dis- formation to fulfill two purposes with respect to trict, Thomas J. Gossett, J., dismissed claim after each element: (1) it must inform the defendant of concluding patient had failed to serve an expert re- the specific conduct the plaintiff has called into port meeting statutory requirements. Patient ap- question; and (2) it must provide a basis for the trial pealed. court to conclude that the claims have merit.

V.T.C.A., Civil Practice & Remedies Code § Holdings: The Court of Appeals, Bob Pemberton, 74.351(l ), (r)(6).

J., held that: (1) trial court did not abuse its discretion in con- [2] Health 198H 804 cluding that patient's expert report did not adequately describe standard of care or alleged breach 198H Health thereof; 198HV Malpractice, Negligence, or Breach of (2) statutory requirements applicable to expert re- Duty ports in support of HCLCs were rationally related 198HV(G) Actions and Proceedings to legitimate state purpose and therefore did not vi- 198Hk804 k. Affidavits of merit or meritolate equal protection based on disparate treatment orious defense; expert affidavits. Most Cited Cases of health care liability claimants and other litigants; Although statutory provisions relating to the (3) those requirements did not violate separation- adequacy of an expert report served in support of of-powers principles; and health care liability claim (HCLC) do not require a (4) patient failed to demonstrate that those require- plaintiff to marshal all of his or her proof or to ments, as applied to him, violated open-courts pro- present expert testimony in a form that would be vision of Texas constitution. admissible at trial, they do necessitate that the expert must explain the basis for his statements to link Affirmed. his conclusions to the facts and not merely state conclusions. V.T.C.A., Civil Practice & Remedies J. Woodfin Jones, C.J., filed a dissenting opin- Code § 74.351(l ), (r)(6).

ion [3] Appeal and Error 30 1024.1

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395 S.W.3d 884 (Cite as: 395 S.W.3d 884)

30 Appeal and Error 198H Health 30XVI Review 198HV Malpractice, Negligence, or Breach of 30XVI(I) Questions of Fact, Verdicts, and Duty Findings 198HV(G) Actions and Proceedings 30XVI(I)6 Questions of Fact on Motions 198Hk804 k. Affidavits of merit or meritor Other Interlocutory or Special Proceedings orious defense; expert affidavits. Most Cited Cases 30k1024.1 k. In general. Most Cited Trial court did not abuse its discretion, when Cases dismissing health care liability claim (HCLC)

against neurosurgeon for spinal-fracture surgery Health 198H 804 that purportedly rendered patient a quadriparetic, in concluding that patient's expert report did not ad-

198H Health equately describe standard of care or alleged breach 198HV Malpractice, Negligence, or Breach of thereof; while report suggested anterior-only plate/ Duty screw fixation was inconsistent with standard of 198HV(G) Actions and Proceedings care, it also stated there could be “clinical situ-

198Hk804 k. Affidavits of merit or meritations ” in which anterior-only fixation and suppleorious defense; expert affidavits. Most Cited Cases mental protection such as external braces or activity The only information relevant to determining limits would meet standard of care, and it did not whether an expert report served in support of a address whether neurosurgeon met the standard health care liability claim (HCLC) complies with through use of such supplemental protection.

statutory requirements as to adequacy is that con-

V.T.C.A., Civil Practice & Remedies Code § tained within “the four corners” of the report itself, 74.351(l ), (r)(6).

and, consequently, neither the trial court nor the appellate court may infer additional opinions or un- [6] Appeal and Error 30 333 derlying facts to fill in gaps that the report itself leaves open. V.T.C.A., Civil Practice & Remedies 30 Appeal and Error Code § 74.351(l ), (r)(6). 30VI Parties 30k331 Death [4] Appeal and Error 30 960(1) 30k333 k. Pending appeal or writ of error.

Most Cited Cases 30 Appeal and Error Appellate court would address argument, asser-

30XVI Review ted by patient and his wife on appeal from dismissal 30XVI(H) Discretion of Lower Court of their health care liability claim (HCLC) for fail-

30k960 Rulings on Motions Relating to ure to serve adequate expert report, that statutory Pleadings requirements relating to expert reports in support of 30k960(1) k. In general. Most Cited an HCLC violated state constitution's open-courts Cases provision as applied to patient, though his death The Court of Appeals reviews for abuse of disduring pendency of claim may have terminated his cretion a trial court's determination as to whether an open-courts claim, as substance of open-courts arexpert report served in support of a health care liabgument implicated due-process and dueility claim (HCLC) meets statutory requirements course-of-law concerns also raised on appeal.

for adequacy. V.T.C.A., Civil Practice & Remedies U.S.C.A. Const.Amend. 14; Vernon's Ann.Texas Code § 74.351(l ), (r)(6).

Const. Art. 1, §§ 13, 19; V.T.C.A., Civil Practice & [5] Health 198H 804 Remedies Code § 74.351(l ), (r)(6).

[7] Constitutional Law 92 2314

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92 Constitutional Law 92k4418 Torts and Personal Injuries 92XIX Rights to Open Courts, Remedies, and 92k4422 k. Professional malprac-

Justice tice. Most Cited Cases 92k2313 Conditions, Limitations, and Other Statutory requirements for expert reports in Restrictions on Access and Remedies support of health care liability claims (HCLCs), as 92k2314 k. In general. Most Cited Cases challenged on due process and equal protection Wrongful-death and survival claimants cannot grounds, would be evaluated to determine whether establish an open-courts violation because they those requirements bore a rational relationship to a have no common law right to bring either claim. legitimate state interest and whether legislature had Vernon's Ann.Texas Const. Art. 1, § 13. a rational basis in differentiating between health care liability claimants and other litigants; require-

[8] Constitutional Law 92 3847 ments did not impinge on a fundamental or important right, and they were facially neutral and applied 92 Constitutional Law to any party asserting an HCLC. U.S.C.A.

92XXVII Due Process Const.Amend. 14; Vernon's Ann.Texas Const. Art.

92XXVII(A) In General 1, § 19; V.T.C.A., Civil Practice & Remedies Code 92k3847 k. Relationship to other constitu-

§ 74.351.

tions. Most Cited Cases While the Texas constitution is textually differ- [10] Constitutional Law 92 3877 ent from federal constitution in that it refers to “due course” rather than “due process,” Texas courts re- 92 Constitutional Law gard those terms as without substantive distinction 92XXVII Due Process unless and until a party demonstrates otherwise. 92XXVII(B) Protections Provided and U.S.C.A. Const.Amend. 14; Vernon's Ann.Texas Deprivations Prohibited in General Const. Art. 1, § 19. 92k3877 k. Reasonableness, rationality, and relationship to object. Most Cited Cases [9] Constitutional Law 92 3754 Under federal and state guarantees of due process , legislation that does not affect a fundamental 92 Constitutional Law right or interest is valid if it bears a rational rela-

92XXVI Equal Protection tionship to a legitimate state interest. U.S.C.A.

92XXVI(E) Particular Issues and Applica-

Const.Amend. 14; Vernon's Ann.Texas Const. Art.

tions 1, § 19.

92XXVI(E)17 Tort or Financial Liabilities [11] Constitutional Law 92 3053 92k3750 Personal Injuries 92k3754 k. Medical malpractice. 92 Constitutional Law Most Cited Cases 92XXVI Equal Protection 92XXVI(A) In General Constitutional Law 92 4422 92XXVI(A)6 Levels of Scrutiny 92k3052 Rational Basis Standard;

92 Constitutional Law Reasonableness 92XXVII Due Process 92k3053 k. In general. Most Cited 92XXVII(G) Particular Issues and Applica-

Cases tions Constitutional guarantee of equal protection re-

92XXVII(G)19 Tort or Financial Liabilitquires only that disparate treatment of different ies classifications be rationally related to a legitimate

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395 S.W.3d 884 (Cite as: 395 S.W.3d 884)

state purpose, unless the classification impinges on 92XXVI(E)17 Tort or Financial Liabilitthe exercise of a fundamental right or distinguishes ies between people on a “suspect” basis, such as race 92k3750 Personal Injuries or national origin. U.S.C.A. Const.Amend. 14. 92k3754 k. Medical malpractice.

Most Cited Cases [12] Constitutional Law 92 3062 Health 198H 604 92 Constitutional Law 92XXVI Equal Protection 198H Health 92XXVI(A) In General 198HV Malpractice, Negligence, or Breach of 92XXVI(A)6 Levels of Scrutiny Duty 92k3059 Heightened Levels of Scru- 198HV(A) In General tiny 198Hk601 Constitutional and Statutory 92k3062 k. Strict scrutiny and com- Provisions pelling interest in general. Most Cited Cases 198Hk604 k. Validity. Most Cited Classifications that impinge upon the exercise Cases of a fundamental right or distinguish between Statutory requirements applicable to expert repeople on a suspect basis, i.e., race, national origin, ports in support of health care liability claims and alienage, are subject to strict scrutiny on an (HCLCs) were rationally related to legitimate state equal protection challenge and will be sustained purpose of ensuring that medical practitioners were only if they are suitably tailored to serve a compel- not being placed in the situation of defending ling state interest. U.S.C.A. Const.Amend. 14. frivolous claims at a high cost to the health care system and therefore did not violate equal protec-

[13] Constitutional Law 92 3061 tion based on disparate treatment of health care liability claimants and other litigants. U.S.C.A.

92 Constitutional Law Const.Amend. 14; V.T.C.A., Civil Practice & Rem-

92XXVI Equal Protection edies Code § 74.351.

92XXVI(A) In General 92XXVI(A)6 Levels of Scrutiny [15] Constitutional Law 92 3057 92k3059 Heightened Levels of Scrutiny 92 Constitutional Law 92k3061 k. Intermediate scrutiny in 92XXVI Equal Protection general. Most Cited Cases 92XXVI(A) In General When a statute burdens a sensitive class or im- 92XXVI(A)6 Levels of Scrutiny pinges on an important right, the statute is subject 92k3052 Rational Basis Standard; on an equal protection challenge to an intermediate Reasonableness level of scrutiny, which requires a showing that the 92k3057 k. Statutes and other writstatute is substantially related to an important state ten regulations and rules. Most Cited Cases interest. U.S.C.A. Const.Amend. 14.

Constitutional Law 92 3877 [14] Constitutional Law 92 3754 92 Constitutional Law 92 Constitutional Law 92XXVII Due Process 92XXVI Equal Protection 92XXVII(B) Protections Provided and 92XXVI(E) Particular Issues and Applica- Deprivations Prohibited in General tions 92k3877 k. Reasonableness, rationality,

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395 S.W.3d 884 (Cite as: 395 S.W.3d 884)

and relationship to object. Most Cited Cases an award of attorney fees upon dismissal for non-

It is not a court's place to question the legis- compliance, did not violate separation-of-powers lature's policy decisions when conducting a rational principles; they imposed a threshold procedural rebasis review of a statute challenged on due process quirement aimed at filtering out meritless or premaor equal protection grounds. U.S.C.A. ture lawsuits from proceeding until a claimant made Const.Amend. 14; Vernon's Ann.Texas Const. Art. a good-faith effort to demonstrate that at least one 1, § 19. expert believes that a breach of applicable standard of care caused claimed injury, and courts retained [16] Constitutional Law 92 2357 judicial power to determine whether a timely served report was adequate in that regard and to render a 92 Constitutional Law decision accordingly. Vernon's Ann.Texas Const.

92XX Separation of Powers Art. 2, § 1, Art. 5, § 1; V.T.C.A., Civil Practice & 92XX(B) Legislative Powers and Functions Remedies Code § 74.351(a-c), (l ), (r)(6).

92XX(B)2 Encroachment on Judiciary 92k2357 k. Remedies and procedure in [17] Constitutional Law 92 2350 general. Most Cited Cases 92 Constitutional Law Constitutional Law 92 2380 92XX Separation of Powers 92XX(B) Legislative Powers and Functions 92 Constitutional Law 92XX(B)2 Encroachment on Judiciary 92XX Separation of Powers 92k2350 k. In general. Most Cited 92XX(B) Legislative Powers and Functions Cases 92XX(B)2 Encroachment on Judiciary 92k2377 Costs and Fees Constitutional Law 92 2623 92k2380 k. Attorney fees. Most Cited Cases 92 Constitutional Law 92XX Separation of Powers Costs 102 194.48 92XX(D) Executive Powers and Functions 92k2622 Encroachment on Judiciary 102 Costs 92k2623 k. In general. Most Cited 102VIII Attorney Fees Cases 102k194.48 k. On dismissal, nonsuit, default, Only when the executive or legislative branch or settlement. Most Cited Cases interferes with the functioning of the judicial pro-

Health 198H 604 cess in a field constitutionally committed to the control of the courts does a constitutional separa-

198H Health tion-of-powers problem arise. Vernon's Ann.Texas 198HV Malpractice, Negligence, or Breach of Const. Art. 2, § 1, Art. 5, § 1.

Duty 198HV(A) In General [18] Constitutional Law 92 2314 198Hk601 Constitutional and Statutory 92 Constitutional Law Provisions 92XIX Rights to Open Courts, Remedies, and 198Hk604 k. Validity. Most Cited Justice Cases 92k2313 Conditions, Limitations, and Other Statutory requirements concerning adequacy Restrictions on Access and Remedies and timely service of expert reports in support of 92k2314 k. In general. Most Cited Cases health care liability claims (HCLCs), and requiring

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395 S.W.3d 884 (Cite as: 395 S.W.3d 884)

Health 198H 604 92XIX Rights to Open Courts, Remedies, and Justice 198H Health 92k2313 Conditions, Limitations, and Other 198HV Malpractice, Negligence, or Breach of Restrictions on Access and Remedies Duty 92k2314 k. In general. Most Cited Cases 198HV(A) In General Open-courts provision of Texas constitution is 198Hk601 Constitutional and Statutory premised on the rationale that the legislature has no Provisions power to make a remedy by due course of law con-

198Hk604 k. Validity. Most Cited tingent upon an impossible condition. Vernon's Cases Ann.Texas Const. Art. 1, § 13.

Patient whose health care liability claim (HCLC) against neurosurgeon was dismissed for [21] Constitutional Law 92 2314 noncompliance with statutory requirements governing expert reports failed to demonstrate that those 92 Constitutional Law requirements, as applied to him, violated open- 92XIX Rights to Open Courts, Remedies, and courts provision of Texas constitution; patient did Justice not prove how the statutory provisions, as opposed 92k2313 Conditions, Limitations, and Other to his own failure to provide an adequate report, Restrictions on Access and Remedies prevented him from pursuing his claims, or show 92k2314 k. In general. Most Cited Cases that expert-report requirement was unreasonable or To prove that a statute violates the open-courts arbitrary when balanced with purpose of ensuring provision of Texas constitution, the claimant must that medical practitioners were not being placed in show that: (1) a cognizable common law cause of the situation of defending frivolous claims at a high action is being restricted, and (2) the restriction is cost to the health care system. Vernon's Ann.Texas unreasonable or arbitrary when balanced with the Const. Art. 1, § 13; V.T.C.A., Civil Practice & statute's purpose and basis. Vernon's Ann.Texas Remedies Code § 74.351. Const. Art. 1, § 13.

[19] Constitutional Law 92 2315 [22] Constitutional Law 92 2314

92 Constitutional Law 92 Constitutional Law 92XIX Rights to Open Courts, Remedies, and 92XIX Rights to Open Courts, Remedies, and Justice Justice 92k2313 Conditions, Limitations, and Other 92k2313 Conditions, Limitations, and Other Restrictions on Access and Remedies Restrictions on Access and Remedies 92k2315 k. Time for proceedings. Most 92k2314 k. In general. Most Cited Cases Cited Cases A claimant bringing an as-applied open-courts Open-courts provision of Texas constitution challenge to statutory requirements governing exprotects a person from having his or her right to sue pert reports in support of health care liability claims cut off by a legislative act before the individual has (HCLCs) must show that the requirements actually been afforded a reasonable opportunity to discover prevented him from bringing his claims. Vernon's the wrong and bring suit. Vernon's Ann.Texas Ann.Texas Const. Art. 1, § 13; V.T.C.A., Civil Const. Art. 1, § 13. Practice & Remedies Code § 74.351.

[20] Constitutional Law 92 2314 [23] Constitutional Law 92 2315

92 Constitutional Law 92 Constitutional Law

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395 S.W.3d 884 (Cite as: 395 S.W.3d 884)

92XIX Rights to Open Courts, Remedies, and The right to a jury trial is not an absolute right Justice in civil cases, but is subject to certain procedural 92k2313 Conditions, Limitations, and Other rules.

Restrictions on Access and Remedies 92k2315 k. Time for proceedings. Most [26] Jury 230 31.2(1)

Cited Cases 230 Jury Health 198H 604 230II Right to Trial by Jury 230k30 Denial or Infringement of Right 198H Health 230k31.2 Rights of Action and Procedure 198HV Malpractice, Negligence, or Breach of in Civil Cases Duty 230k31.2(1) k. In general. Most Cited 198HV(A) In General Cases 198Hk601 Constitutional and Statutory Dismissal of a health care liability claim Provisions (HCLC) for failing to serve an adequate expert re-

198Hk604 k. Validity. Most Cited port as required by statute does not violate an asser-

Cases ted right to jury trial on the merits; such a dismissal The statutory expert-report requirement for a is not based on the merits, but merely operates to health care liability claim (HCLC) does not violate dismiss the case on a procedural requirement which the open-courts provision of Texas Constitution by is directly related to statute's purpose of limiting the requiring an expert report sooner rather than later in number of frivolous suits. V.T.C.A., Civil Practice the litigation. Vernon's Ann.Texas Const. Art. 1, § & Remedies Code § 74.351(l ), (r)(6). 13; V.T.C.A., Civil Practice & Remedies Code § 74.351(a, c). *888 Dana D. Banks, Smith Rose Finley, P.C., San Angelo, TX, for appellee.

[24] Courts 106 85(1)

William E. Zook, Jr., David W. Townend, Ted B.

106 Courts Lyon & Associates, P.C., Mesquite, TX, for appel-

106II Establishment, Organization, and Proced- lant.

ure 106II(F) Rules of Court and Conduct of Before Chief Justice JONES, Justices PEMBER-

Business TON and ROSE.

106k85 Operation and Effect of Rules 106k85(1) k. In general. Most Cited Cases OPINION When a rule of procedure conflicts with a stat- BOB PEMBERTON, Justice.

ute, the statute prevails unless the rule has been Richard Hebert and his wife, Janet Hebert, appassed subsequent to the statute and repeals the peal from a district court judgment dismissing, for statute. failure to serve the expert report required by chapter 74 of the civil practice and remedies code, a [25] Jury 230 9 health care liability claim they asserted against FN1 Timothy Hopkins, M.D., and Shannon Clinic.

230 Jury The Heberts bring two issues, urging respectively 230II Right to Trial by Jury that (1) the district court abused its discretion in 230k9 k. Nature and scope in general. Most concluding that they failed to serve an expert report Cited Cases complying with chapter 74; and (2) chapter 74's ex-

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395 S.W.3d 884 (Cite as: 395 S.W.3d 884)

pert-report requirement violates various constitu- bases of, opinions regarding the applicable standard tional protections. We will overrule these conten- of care for Hebert in light of his underlying medical tions and affirm the district court's judgment. conditions, the manner in which Hopkins's care had failed to meet that standard, or a causal linkage to FN1. The parties have advised us that FN3 the fusion failure and Richard's injuries. By Richard Hebert died shortly after the now, the 120–day period for serving an “expert re- Heberts perfected their appeal. As contem- port” had expired, so appellees also moved to displated by rule 7.1 of the rules of appellate miss the Heberts' suit with prejudice and sought a procedure, the parties have proceeded on FN4 mandatory award of attorney's fees. Both sides appeal as if all parties are alive, and so submitted briefing on the merits of appellees' objechave we. See Tex.R.App. P. 7.1(a)(1). tions. Following a hearing at which the parties presented argument, the district court sustained ap-

BACKGROUND pellees' objections but granted the Heberts a thirty-

The Heberts filed the underlying suit alleging FN5 day extension to cure any deficiencies.

that Dr. Hopkins, a neurosurgeon, committed professional negligence in performing spinal surgery FN2. See Tex. Civ. Prac. & Rem.Code on Richard Hebert at Shannon in September 2008 Ann. § 74.351(a) (West 2011) (“In a health after Richard broke his neck in a fall. Specifically, care liability claim, a claimant shall, not they pled that Richard had presented with a fracture later than the 120th day after the date the of the cervical 6(C6) vertebra that was “very un- original petition was filed, serve on each stable” due to a preexisting condition known as an- party or the party's attorney one or more kylosing spondylitis that had self-fused his spinal expert reports, with a curriculum vitae of vertebrae on either side of the fracture; that the each expert listed in the report for each standard of care in such circumstances had required physician or health care provider against Hopkins to perform “an anterior and posterior fu- whom a liability claim is asserted.”). sion surgery” to ensure stability; that Hopkins had performed “an anterior fusion with plates and In the absence of material intervening screws at C4–C7 but took no appropriate surgical substantive changes, we have cited the measures to stabilize the fusion posteriorly;” and current version of chapter 74 for conthat the anterior-only fusion had subsequently venience. “failed as one or more of the screws had pulled out causing the vertebral segments to move and com- FN3. See id. (“Each defendant physician or press the spinal cord at C4–C7,” rendering Richard health care provider whose conduct is ima quadriparetic (i.e., paralyzed in all four limbs). plicated in a report must file and serve any The Heberts asserted that Shannon was vicariously objection to the sufficiency of the report liable for Hopkins's negligence by virtue of Hop- not later than the 21st day after the date it kins's status as a “partner or member” of the clinic. was served, failing which all objections are waived.”).

Within 120 days thereafter, in an attempt to comply with chapter 74's expert-report requirement, FN4. See id. § 74.351(b) (“If, as to a dethe Heberts served a report from P. Merrill White, fendant physician or health care provider, FN2 an expert report has not been served within M.D., along with Dr. White's curriculum vitae. Hopkins*889 and Shannon timely objected to the the period specified by Subsection (a), the sufficiency of Dr. White's report, asserting that the court, on the motion of the affected physireport had failed to adequately set forth, and was cian or health care provider, shall ... enter “conclusory” with respect to the underlying factual an order that: (1) awards to the affected

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395 S.W.3d 884 (Cite as: 395 S.W.3d 884)

physician or health care provider reason- are well established. Chapter 74 defines an “expert able attorney's fees and costs of court in- report” as “a fair summary of the expert's opinion curred by the physician or health care pro- as of the date of the report regarding applicable vider; and (2) dismisses the claim with re- standards of care, the manner in which the care spect to the physician or health care pro- rendered by the physician or health care provider vider, with prejudice to the refiling of the failed to *890 meet the standards, and the causal reclaim .”); see also id. § 74.351(c) lationship between that failure and the injury, harm, FN8 (recognizing that “an expert report has not or damages claimed.” “A court shall grant a been served within the period specified by motion challenging the adequacy of an expert re- Subsection (a)” when “elements of the re- port only if it appears to the court, after hearing, port are found deficient”). that the report does not represent an objective good faith effort to comply” with this definition of FN5. See id. § 74.351(c). FN9 “expert report.” To constitute a “good faith effort ,” as the Texas Supreme Court has explained, Within the extension period, the Heberts served the report must include the expert's opinion on a supplemental report from White. Contending that “each of the three main elements: standard of care, White's supplemental report had failed to cure the breach, and causation,” and must provide enough deficiencies in his original report, appellees again information to fulfill two purposes with respect to moved to dismiss the Heberts' suit with prejudice. FN6 each element: (1) it must inform the defendant of The Heberts filed a response joining issue rethe specific conduct the plaintiff has called into garding the sufficiency of the two reports and also question; and (2) it must provide a basis for the trial asserting that chapter 74's expert-report requirecourt to conclude that the claims have merit. See ment violates various protections of the U.S. or Jelinek v. Casas, 328 S.W.3d 526, 538–40 & n. 9 Texas constitutions. Following a hearing, the dis-

(Tex.2010); Bowie Mem'l Hosp. v. Wright, 79 trict court granted appellees' motion to dismiss.

S.W.3d 48, 52 (Tex.2002) (per curiam); American Subsequently, after hearing evidence, the district Transitional Care Ctrs. of Tex., Inc. v. Palacios, 46 court awarded appellees attorney's fees as required FN7 S.W.3d 873, 878–79 (Tex.2001). Although these by chapter 74, and this order also served to requirements do not require a plaintiff to marshal make the court's prior dismissal order final. The all of his or her proof or to present expert testimony Heberts then timely perfected this appeal.

in a form that would be admissible at trial, see FN6. See id. § 74.351(b), (c). Jelinek, 328 S.W.3d at 539–40 & n. 9, they do necessitate that “the expert must explain the basis for FN7. See id. § 74.351(b)(1). his statements to link his conclusions to the facts”

and not merely state conclusions. Id. (quoting ANALYSIS Wright, 79 S.W.3d at 52 (quoting Earle v. Ratliff, Sufficiency of expert reports 998 S.W.2d 882, 890 (Tex.1999))); see also id. at In their first issue, the Heberts urge that the 539–40 (observing, with respect to the causation district court abused its discretion in holding that element, “the expert must ... explain, to a reason- Dr. White's report, either in its original form or as able degree, how and why the breach caused the insupplemented , did not represent an objective good jury based on the facts presented”). This is so, in faith effort to comply with the statutory definition the supreme court's view, because “ ‘[a] report that of an expert report. merely states the expert's conclusions about the standard or care, breach, and causation’ does not [1][2] The standards governing the contents of fulfill the two purposes of a good-faith effort.” Id.

the expert report or reports required by chapter 74 at 539 (quoting Palacios, 46 S.W.3d at 879); see

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395 S.W.3d 884 (Cite as: 395 S.W.3d 884)

also id. at 540 (expert “must include sufficient de- the court ....”) (emphasis added). But the linchpin tail” regarding how breach caused plaintiff's injur- determination that controls which of these two alies “to allow the trial court to determine if the claim ternative sets of mandatory duties applies—whether has merit”). “it appears to the court” that the report does not comply with the requirements—has been commit-

FN8. See id. § 74.351(r)(6). Chapter 74 ted to the trial court's sound discretion by the Legisalso imposes requirements regarding the lature. See Palacios, 46 S.W.3d at 877–78. Conqualifications of the “expert” who may sequently, we review the trial court's determination prepare an “expert report,” see id. § for abuse of that discretion. See Wright, 79 S.W.3d 74.351(r)(5), but appellees have not dis- at 52 (citing Palacios, 46 S.W.3d at 878). puted that White meets those standards here. A trial court abuses its discretion when it acts in an arbitrary or unreasonable manner without ref-

FN9. Id. § 74.351(l ). erence to any guiding rules or principles. See id.

(citing Downer v. Aquamarine Operators, Inc., 701 [3] Importantly, the only information relevant S.W.2d 238, 241–42 (Tex.1985)). “When reviewing to determining whether an expert report complies matters committed to the trial court's discretion, a with these requirements is that contained within court of appeals may not substitute its own judg-

“the four corners” of the report itself. Palacios, 46 ment for the trial court's judgment.” Id. (citing S.W.3d at 878. Consequently, neither the trial court Flores v. Fourth Court of Appeals, 777 S.W.2d 38, nor this Court may infer additional opinions or un-

41 (Tex.1989)). We do not, in other words, examine derlying facts to fill in gaps that the report itself the contents of Dr. White's reports and make our leaves open. See Wright, 79 S.W.3d at 53; see also own de novo determination as to whether he has Austin Heart, P.A. v. Webb, 228 S.W.3d 276, 279 provided sufficient information, with respect to his (Tex.App.-Austin 2007, no pet.) (this requirement opinions regarding standard of care, breach, and “precludes a court from filling gaps in a report by causation, to (1) inform appellees of the specific drawing inferences or guessing as to what the exconduct the Heberts have called into question; and pert likely meant or intended” (citing Wright, 79 (2) provide a basis for the district court to conclude S.W.3d at 53)).

that the claims have merit. See Jelinek, 328 S.W.3d [4] Our standard of review is likewise limited. at 538–40 & n. 9; Wright, 79 S.W.3d at 52; Pala-

Chapter 74 imposes a mandatory duty on a trial cios, 46 S.W.3d at 878–79. Instead, we determine court to grant a motion challenging the adequacy of only whether the district court acted arbitrarily, unan expert report “if it appears to the court” that the reasonably, and without reference to guiding rules report does not meet the above-described require- and principles in determining that the reports failed ments. See Tex. Civ. Prac. & Rem.Code Ann. § to provide that information. See Wright, 79 S.W.3d 74.351(l ) (“A court shall grant a motion challen- at 52; see also Jelinek, 328 S.W.3d at 542 ging the adequacy of an expert report only if it ap- (Jefferson, C.J., dissenting) (“The dividing line pears to the court ... that the report does not repres- between a sufficient and an inadequate report is iment an objective good faith effort to comply with possible to draw precisely. We have said, therefore, the definition of an expert report in Subsection that the determination must be made in the first in- (r)(6).”) (emphasis added). *891 Conversely, the stance by the trial court, and review of that decision trial court is prohibited from granting such a motion asks not how an appellate court would have reunless such noncompliance “appears to the court.” solved that issue, but instead whether the trial court Id. (“A court shall grant a motion challenging the abused its discretion.”) (citing Jernigan v. Langley, adequacy of an expert report only if it appears to 195 S.W.3d 91, 93 (Tex.2006); Walker v. Gutier-

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395 S.W.3d 884 (Cite as: 395 S.W.3d 884)

rez, 111 S.W.3d 56, 63 (Tex.2003)). method, Richard ended up with “increased neurological deficit (quadriparesis).”

[5] Applying this deferential abuse-

of-discretion standard of review, we cannot con- The medical records, as summarized by White, clude that the district court acted arbitrarily, unreas- additionally reflected that Richard had a history of onably, and without guiding rules and principles in “coronary artery disease treated with cardiac stints, determining that Dr. White's reports did not supply Plavix, and aspirin; cerebrovascular accident [ (i.e., it sufficient information regarding his opinions con- a stroke) ] on two occasions with residual left hand cerning standard of care and breach, as they relate paraesthesias [ (tingling or prickling sensations) ] to the underlying facts, to enable it to determine treated with Plavix and aspirin; and hypertension,” whether the Heberts' claims had merit. as well as “ankylosing spondylitis,” a degenerative condition of the spine that causes both brittleness of In his initial report, White summarized medical bones and self-fusion of vertebrae.

records reflecting that Richard Hebert sought treatment at Shannon in the early morning hours of Although he did not indicate whether or how September 7, 2008, following a fall in which he in- Richard's other medical conditions impacted the jured his neck, and that Richard was placed under standard of care, White emphasized his opinion that Hopkins's care. According to White, CT scans and a patient with ankylosing spondylitis warranted other evaluations revealed that Richard had special precautions when performing surgery to adsuffered “a trace traumatic subarachnoid hemor- dress spinal fracture: rhage ” (i.e., bleeding on the brain) and a “fracture through the superior vertebral body of C6 with a In the surgical treatment of cervical spine fracfracture extending through the posterior elements of tures complicating ankylosing spondylitis, the C5–6.” The injury “was initially managed in a cer- prudent spine surgeon must recognize the unvical collar which was changed to a Philadelphia stable nature of these fractures. The instability is collar and spinal precautions were ordered” within contributed to by the long level arms cranial and about five hours. That same evening, White indic- caudal to the fracture site resulting from the mulated , Hopkins performed a surgical procedure in tilevel autofusion and poor bone quality associwhich the neurosurgeon *892 fused Richard's ated with ankylosing spondylitis. These two C5–C6 vertebrae and implanted “C4 through C7 an- factors result in increased susceptibility to spine terior instrumentation”—a plate over or along the fractures as a result of relatively minor trauma, front of Richard's spine, attached by screws to his greater instability, and a greater likelihood of bone—to provide stability and support while the neurologic deficit resulting from a cervical fracfracture healed. On the following day, White con- ture than found in patients with cervical spine tinued, the medical records indicated that Richard fractures and otherwise normal spinal anatomy. had showed signs of recovery progress and that The prudent spine surgeon should design a sur-

“[c]ervical collar is discontinued per Dr. Hopgical plan of care allowing decompression of the kins'[s] order.” But four days later, during the afterspinal cord, reduction of the traumatic deformity, noon of September 12, Richard had a decline in and immediate stabilization of the spinal column neurological function and subsequent CT scans to protect the spinal cord and to facilitate mobil-

“confirm[ed] failure of implant fixation at C6 and ization and nursing care to the patient in the short C7” and injury to the spinal cord. Although another term and healing of the spinal fusion in the longer neurosurgeon, Dr. Duarte, operated on Richard term.

thereafter to remove the failed anterior instrumentation and implement a different type of fixation As for the standard of care regarding the spe-

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395 S.W.3d 884 (Cite as: 395 S.W.3d 884)

cific means by which these objectives should be breached an applicable standard. Consistent with achieved, White initially suggested that anterior- the first portion of his explanation of the standard only internal instrumentation was inconsistent with of care, White began by asserting that Hopkins the standard of care and that some form of posterior breached the standard by utilizing “anterior only internal instrumentation, either additionally or as an plate/screw fixation”: alternative to anterior instrumentation, would instead be preferable: Dr. Timothy Hopkins'[s] choice of anterior only Over the recent years, the debate of the spinal plate/screw fixation fails to meet the applicable community has been in which circumstances fu- standard of care. Constrained anterior cervical sion with posterior only fixation or fusion with plates function as tension band devices and reanterior and posterior fixation is appropriate. An- quire relative stability of the posterior elements. terior instrumentation only is predictably inad- In extension these devices resist distraction of the equate in a fracture pattern with gross anterior anterior column. These devices do not effectively and posterior column instability such as Mr. resist flexion forces and require stable posterior Hebert's. Adequate treatment of Mr. Herbert's elements to limit deformity resulting from flexion [sic] fracture requires anterior and posterior in- forces. In the absence of adequate posterior stastrumentation in order to meet the standard of bility, anterior plate/screw constructs typically care. fail in flexion by plate breakage or, as in this case, by screw pullout. Mr. Herbert's [sic] frac-

In Mr. Herbert's [sic] situation, the standard of ture resulted in significant instability of both the care requires fixation stable *893 enough to al- anterior and posterior elements at the C5–6 level. low mobilization of the patient without loss of Anterior only plate/screw fixation, in this setting, fixation resulting in increased neurological defi- is predictably doomed to failure. cits. This goal is more likely to be achieved by multilevel posterior internal fixation in addition But in the next sentence, White seemed to alto at least single level anterior internal fixation lude to his previously expressed view that a surwith fusion at appropriate levels. geon could act within the standard of care by “supplementing” otherwise “inadequate internal However, in the next sentence, within the same fixation” with some form of “external bracing and/ paragraph, White acknowledged that “clinical situ- or activity limitations” as an alternative to posterior ations” could arise in which anterior-only instru- surgical fixation: mentation, coupled with “supplemental protection” The prudent spine surgeon must recognize the other than posterior implementation, would be con- limitations of the various internal fixation consistent with the standard of care: structs available and if necessary must com-

If the clinical situation in which the surgeon finds pensate for the predictable weaknesses by adhimself and the patient allows only inadequate in- equate external bracing and/or activity limitation. ternal fixation, the surgeon is obligated to protect the patient supplementing the internal fixation Then White ended his discussion of breach with external bracing and/or activity limitations. with the following conclusion: The supplemental protection should continue un- The standard of care for the surgical treatment of til the patient can be returned to the operating this fracture requires a multilevel posterior fixaroom for additional internal fixation or the frac- tion and a fusion in conjunction with anterior fixture becomes stable through healing. ation and fusion with or without supplemental external fixation as was ultimately performed by Following these statements regarding standard Dr. Duarte on September 12, 2008.

of care, White turned to whether or how Hopkins

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395 S.W.3d 884 (Cite as: 395 S.W.3d 884)

White then offered the following opinions as to court was within its discretion also to consider causation, now referencing perceived inadequacies White's recognition of an apparent exception, qualiin internal and external fixation without elaborating fication, or limitation to his broader criticisms of as to the nature or identity of any of the latter cat- anterior fixation: “the clinical situation in which the egory: surgeon finds himself and the patient” may “allow[ ] only inadequate internal fixation,” in which case The failure to choose the internal and external the standard of care could be met by fixation construct capable of providing stability “supplementing the internal fixation with external to allow mobilization of the patient, prevent spin- bracing and/or activity limitations.” Along with al displacement, and protect the spinal cord is the White's recognition of this aspect of the standard of proximate cause of Mr. Herbert's [sic] *894 in- care, the court also could have reasonably concreased neurologic deficit (quadriparesis). This sidered that White never elaborated on the nature or occurred as a result of the constrained anterior type of “clinical situation” that would “allow [ ] plate/screw construct's predictable inability to only inadequate internal fixation” or whether such a neutralize flexion forces resulting in screw pul- situation did or did not exist in regard to Richard, a lout at C6 and C7 levels followed by displace- patient who, as White acknowledged in his report, ment of the spinal column through the C5–6 frac- had a history of coronary artery disease, two ture/allograft site with subsequent spinal cord in- strokes, and hypertension, not to mention bleeding jury and deterioration of neurologic function. on the brain from his fall. The court likewise could reasonably have viewed White's references to Among their objections to the sufficiency of “external bracing” or “activity limitations” as an al-

White's initial report, appellees urged that the reternative to further internal fixation as begging the port did not represent an objective good faith atquestion as to whether the unspecified “spinal pretempt to comply with chapter 74's requirecautions ” Hopkins had ordered, the cervical collar ments—i.e., that it discussed the standard of care, Richard wore following surgery, or other “external breach, and causation with sufficient specificity to bracing” or “activity limitations” Hopkins imposed (1) inform them of the conduct called into question had or had not satisfied the standard of care.

and (2) provide a basis for the district court to determine that the claims have merit—because it was In short, we cannot conclude that the district internally inconsistent as to the standard of care court acted arbitrarily, unreasonably, or without rethat applied and did not address whether or not gard to guiding principles in determining that Hopkins complied with the standard of care through White's initial report fell short of describing the apthe use of the “external bracing and/or activity lim- plicable standard or care or breach thereof, as apitation ” White had contemplated. And these asser- plicable to the underlying facts, with sufficient speted deficiencies, appellees further suggested, in turn cificity to provide the court a basis to determine undermined any factual bases underlying White's that White's claims have merit. See Jelinek, 328 assertions that the standard of care either required S.W.3d at 538–40 & n. 9; Wright, 79 S.W.3d at 52; Hopkins's use of anterior-only internal fixation or Palacios, 46 S.W.3d at 878–79. And in the face of was breached by his choice not to use posterior in- such deficiencies regarding standard of care and terior fixation. breach, the district court would have acted within its discretion in determining that any assertions by In arguing that the district court abused its dis-

White to the effect that anterior-only internal fixacretion in sustaining appellees' objections, the tion breaches the standard of care or that only pos-

Heberts emphasize the portions of White's initial terior internal fixation can suffice lack an underlyreport focusing on the relative merits of anterior ing factual basis—*895 i.e., are “conclusory”—and versus posterior internal fixation. But the district

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395 S.W.3d 884 (Cite as: 395 S.W.3d 884)

fail to satisfy chapter 74. See Wright, 79 S.W.3d at expert-report requirement: (1) the fixed deadline of 52 (“the expert must explain the basis of his state- 120 days to serve an expert report, subject to a ments to link his conclusions to the facts” (quoting single 30–day extension; (2) the requirements fo- Earle, 998 S.W.2d at 890)). cusing judicial analysis of a report's sufficiency solely on the “four corners” of the report and pro-

The Heberts urge us to indulge a “fair reading” hibiting courts from considering extrinsic evidence that White's opinions regarding unspecified of a claim's merits; and (3) the mandatory require- “clinical situations” refers to a surgeon who is at- ment that courts dismiss health care liability claims tempting to perform a combined anterior and pos- with prejudice for failing to serve an adequate exterior procedure but gets interrupted by “surgical pert report and also award attorney's fees. The complications such as delays or blood loss,” and Heberts contend that these mechanisms unfairly that no such complications arose here. The dissent “single out” health care liability claimants for unsimilarly relies on inferences or implications that constitutional “disparate treatment,” deprive courts such “extraordinary circumstances” were not of judicial discretion in violation of the separationpresent . But the problem with these arguments is of-powers protections of the Texas Constitution, that White never actually says any of this in his ini- and deprive claimants of access to the courts in vitial report, and the established rule is that the report olation of due-process or open-courts protections. must stand or fall on the contents within its “four FN10 corners.” Palacios, 46 S.W.3d at 878. This requirement , again, “precludes a court from filling gaps in FN10. The Heberts acknowledge that a report by drawing inferences or guessing as to Richard's death during the pendency of this what the expert likely meant or intended.” Austin appeal may have terminated his open- Heart, P.A., 228 S.W.3d at 279 (citing Wright, 79 courts claim. “[W]rongful-death and sur- S.W.3d at 53). vival claimants cannot establish an open-

courts violation because they ‘have no Nor did the district court abuse its discretion in common law right to bring either.’ ” Horiholding that such deficiencies were not cured by zon/CMS Healthcare Corp. v. Auld, 34 White's supplemental report. In his supplement, al- S.W.3d 887, 903 (Tex.2000) (quoting Bala though White reiterates and emphasizes at length v. Maxwell, 909 S.W.2d 889, 893 his conclusions and assertions regarding anterior (Tex.1995)). The Texas Supreme Court versus posterior fixation generally, nowhere does also has declined to rule on an open-courts he address the deficiencies concerning the standard argument in a similar situation when the of care and breach that the district court could have claimant died during the pendency of the perceived in his initial report. appeal. Kallam v. Boyd, 232 S.W.3d 774, 776 (Tex.2007) (per curiam). While we We overrule the Heberts' first issue.

have similar reservations, we will address Constitutional claims the Heberts' open-courts argument to the [6][7] In their second issue, the Heberts bring extent its substance implicates due-process forward constitutional challenges to chapter 74's and due-course-of-law protections they expert-report requirement. While not appearing to have also raised. See, e.g., Bogar v. Esparquarrel with the general concept that the Legis- za, 257 S.W.3d 354, 370 n. 6 lature can validly impose some form of threshold (Tex.App.-Austin 2008, no pet.) (noting report requirement for asserting health care liability open-court protections not directly implicclaims or other types of civil claims, the Heberts ated in statutory wrongful-death and surcomplain about three basic features of chapter 74's vivor action before conducting similar due-

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395 S.W.3d 884 (Cite as: 395 S.W.3d 884)

process analysis). 196972, at *6 (Tex.App.-Corpus Christi Jan.21, 2010, no pet.) (mem. op.) (rejecting due-process *896 When reviewing the constitutionality of a and due-course-of-law challenges); Bogar v. Esparstatute , we begin with a presumption that it is con- za, 257 S.W.3d 354, 372–73 (Tex.App.-Austin stitutional. Herrera v. Seton Nw. Hosp., 212 2008, no pet.) (same); Wilson–Everett v. Christus S.W.3d 452, 460–61 (Tex.App.-Austin 2006, no St. Joseph, 242 S.W.3d 799, 802–04 pet.) (citing Walker, 111 S.W.3d at 66); see also (Tex.App.-Houston [14th Dist.] 2007, pet. denied) Tex. Gov't Code Ann. § 311.021(1) (West 2005). (rejecting separation-of-powers challenge); The wisdom or expediency of the law is the Legis- Ledesma v. Shashoua, No. 03–05–00454–CV, 2007 lature's prerogative, not ours. Smith v. Davis, 426 WL 2214650, at *9 (Tex.App.-Austin Aug. 3, 2007, S.W.2d 827, 831 (Tex.1968). We presume that the pet. denied) (mem. op.) (rejecting due-process and Legislature has not acted unreasonably or arbitrar- open-courts challenges); Thoyakulathu v. Brennan, ily. Sax v. Votteler, 648 S.W.2d 661, 664 192 S.W.3d 849, 855–56 (Tex.App.-Texarkana (Tex.1983) (quoting Davis, 426 S.W.2d at 831). 2006, no pet.) (due process does not require The party challenging a statute's constitutionality “exceptions [to the expert-report requirement] that has the burden of proving that the statute fails to would encompass any conceivable complication in meet constitutional requirements. Walker, 111 order to pass constitutional muster”); Herrera, 212 S.W.3d at 66. A party must show that a statute is S.W.3d at 461–62 (rejecting equal-protection, dueunconstitutional either on its face or as applied to process, due-course-of-law, and open-courts chalthat party. Texas Workers' Comp. Comm'n v. Gar- lenges). Texas courts also uniformly rejected concia , 893 S.W.2d 504, 518 n. 16 (Tex.1995); see stitutional challenges to an expert-report requirealso City of Corpus Christi v. Public Util. Comm'n, ment under chapter 74's predecessor statute, article 51 S.W.3d 231, 240–41 (Tex.2001) (per curiam) 4590i. See, e.g., Strom v. Memorial Hermann Hosp. (Owen, J., concurring). To sustain a facial chal- Sys., 110 S.W.3d 216, 227 (Tex.App.-Houston [1st lenge, the party must show that the statute, by its Dist.] 2003, pet. denied) (rejecting due-process, terms, always operates unconstitutionally. Garcia, equal-protection, and jury-trial challenges); Villa v. 893 S.W.2d at 528 n. 16. To sustain an as-applied Hargrove, 110 S.W.3d 74, 81 (Tex.App.-San Antochallenge , the party must show that the statute is nio 2003, pet. denied) (rejecting due-process and unconstitutional when applied to that particular per- equal-protection challenges); Walker, 111 S.W.3d son or set of facts. Id. at 66 (rejecting due-process challenge); *897Perry v. Stanley, 83 S.W.3d 819, 825 We note at the outset that the Heberts face an (Tex.App.-Texarkana 2002, no pet.) (rejecting uphill battle because every court that has conopen -courts challenge); Mocega v. Urquhart, 79 sidered similar challenges to chapter 74's expert-re-

S.W.3d 61, 64 (Tex.App.-Houston [14th Dist.]

port requirement, including this Court, has rejected 2002, pet. denied) (same); Gill v. Russo, 39 S.W.3d them. See, e.g., Stockton v. Offenbach, 336 S.W.3d 717, 718–19 (Tex.App.-Houston [1st Dist.] 2001, 610, 618 (Tex.2011) (denying open-courts chalpet . denied) (same); Knie v. Piskun, 23 S.W.3d 455, lenge); Hightower v. Baylor Univ. Med. Ctr., 348 467 (Tex.App.-Amarillo 2000, pet. denied)

S.W.3d 512, 521–22 (Tex.App.-Dallas 2011, pet.

(rejecting equal-protection, due-process, opendenied ) (rejecting special-law, vagueness, duecourts and free-speech challenges); Schorp v.

course-of-law, and separation-of-powers chal-

Baptist Mem'l Health Sys., 5 S.W.3d 727, 736–38 lenges); Broxterman v. Carson, 309 S.W.3d 154, (Tex.App.-San Antonio 1999, no pet.) (rejecting 159 (Tex.App.-Dallas 2010, pet. denied) (rejecting due-process, open-courts, and jury-trial challenges).

due-process challenge); Gulf Coast Med. Ctr., LLC FN11 v. Temple, No. 13–09–00350–CV, 2010 WL

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FN11. In their reply brief, the Heberts at- authorization for the court to summarily dismiss the tempt to distinguish some of these cases on case based on the deficiencies in the language of the basis that they involved “a complete the report.” They also contend that parties opposing failure to file an expert report,” instead of an article 4590i expert report had to “satisfy sum- “addressing the legislature's restriction mary judgment procedures to secure a dismissal placed on the courts in deciding the issue” with prejudice.” To the contrary, a court considerof a report's sufficiency. However, Texas ing the sufficiency of an expert report under article courts, including this Court, have rejected 4590i, as under chapter 74, was limited to the “four constitutional challenges where, as here, an corners” of the report. See Palacios, 46 S.W.3d at expert report was served, but found defi- 878. Likewise, if a claimant failed to serve a report, cient. See, e.g., Hightower v. Baylor Univ. or served a report that the trial court concluded did Med. Ctr., 348 S.W.3d 512, 520 (Tex. not represent a good faith effort to comply with the App.-Dallas 2011, pet. denied) (upholding statutory definition of expert report, the trial court dismissal of deficient reports); Ledesma v. was required to dismiss the case with prejudice and Shashoua, No. 03–05–00454–CV, 2007 award costs and attorney's fees to the opposing WL 2214650, at *7–8 (Tex.App.-Austin party. See former art. 4590i, § 13.01(e), (l ), (r)(6); Aug. 3, 2007, pet. denied) (mem. op.) see also Palacios, 46 S.W.3d at 877. (same).

“Disparate treatment ”

The Heberts acknowledge the constitutional [8] The Heberts contend that chapter 74 irravalidity of the expert-requirement in chapter 74's tionally singles them out for disparate treatment in predecessor statute, article 4590i, but attempt to violation of their rights to due process and equal distinguish it as “less draconian.” See Act of May protection. The due-course-of-law guarantee of the 5, 1995, 74th Leg., R.S., ch. 140, § 1, sec. 13.01, Texas Constitution provides: “No citizen of this 1995 Tex. Gen. Laws 985, 985–88, repealed and State shall be deprived of liberty, property, privrecodified as amended by Act of June 2, 2003, 78th ileges or immunities, or in any manner disenfran- Leg., R.S., ch. 204, § 10.01, sec. 74.351, 2003 Tex. chised, except by due course of the law of the Gen. Laws 847, 875–77 (amended 2005) (current land.” Tex. Const. art. I, § 19. Similarly, the federal version at Tex. Civ. Prac. & Rem.Code Ann. § due-*898 process clause provides: “No state shall 74.351). They emphasize differences in the dead- make or enforce any law which shall abridge the lines article 4590i imposed for serving expert re- privileges or immunities of the citizens of the ports and the extent of discretion vested in trial United States; nor shall any State deprive any percourts to extend deadlines. Specifically, article son of life, liberty, or property, without due process 4590i allowed claimants to either serve an expert of law;....” U.S. Const. amend. XIV, § 1. While the report within 90 days of filing suit or file a cost Texas Constitution is textually different in that it bond. See former art. 4590i, § 13.01(a). An expert refers to “due course” rather than “due process,” report was required within 180 days of suit, though Texas courts regard these terms as without subthe court could grant a 30–day extension if the fail- stantive distinction unless and until a party demonure to serve was not intentional or the result of con- strates otherwise, and the Heberts suggest no reason scious indifference, but was the result of an acci- to construe them differently here. See University of dent or mistake. Id. § 13.01(d), (g). Tex. Med. Sch. at Houston v. Than, 901 S.W.2d 926, 929 (Tex.1995) (citing Mellinger v. City of The Heberts also assert that “4590i did not Houston, 68 Tex. 37, 3 S.W. 249, 252–53 (1887)).

mandate what had to be included in the contents of the report,” and that “there was no requirements or [9][10][11][12][13] Under federal and state

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guarantees of due process, legislation that does not ant state interest. Id. at 440–41, 105 S.Ct. affect a fundamental right or interest is valid if it 3249. bears a rational relationship to a legitimate state interest . Rylander v. B & A Mktg. Co. ex rel. Atl. In enacting chapter 74, the Legislature made a Richfield Co., 997 S.W.2d 326, 333–34 number of findings about the state of the health (Tex.App.-Austin 1999, no pet.) (citing Williamson care system in Texas. See Act of June 2, 2003, 78th v. Lee Optical, 348 U.S. 483, 491, 75 S.Ct. 461, 99 Leg., R.S., ch. 204, § 10.11, 2003 Tex. Gen. Laws L.Ed. 563 (1955); Garcia, 893 S.W.2d at 525). 847, 884–85. Specifically, it found the frequency of Similarly, the constitutional guarantee of equal pro- claims and the amounts paid out by insurers in tection requires only that disparate treatment of dif- judgments and settlements had risen inordinately ferent classifications be rationally related to a legit- since 1995, which created a public problem in the imate state purpose, unless the classification im- availability and affordability of adequate medical pinges on the exercise of a fundamental right or professional liability insurance. Id. § 10.11(a)(1), distinguishes between people on a “suspect” basis, (3), (4). This “crisis” increased costs to physicians, FN12 hospitals, patients, and the public. Id. § 10.11(a)(5), such as race or national origin. The Heberts have not demonstrated that chapter 74 impinges on (7). As a result, the Legislature concluded the a fundamental or important right or a suspect class. “adoption of certain modifications in the medical, By its terms, chapter 74 is facially neutral and ap- insurance and legal systems” would “have a positplies to any party asserting a health care liability ive effect on the rates charged by insurers for medclaim . Consequently, in addressing the Heberts' ical professional liability insurance.” Id. § due-process and equal-protection claims, we must 10.11(a)(12). In enacting various measures, includdetermine whether chapter 74 bears a rational rela- ing chapter 74, the Legislature intended to reduce tionship to a legitimate state interest and whether the frequency and severity of health care liability the Legislature had a rational basis in differentiat- claims, decrease costs of claims, and ensure*899 ing between health care liability claimants and oth- that awards were rationally related to costs, but “do er litigants. “In so doing, we must uphold the law if so in a manner that will not unduly restrict a we can conceive of any rational basis for the Legis- claimant's rights any more than necessary to deal lature's action.” Owens Corning v. Carter, 997 with the crisis.” Id. § 10.11(b)(1), (2), (3). S.W.2d 560, 581 (Tex.1999).

In Smalling v. Gardner, the Fourteenth Court FN12. Classifications that impinge upon of Appeals recognized that the “legislature has the exercise of a fundamental right or dis- broad authority to create classifications for legislattinguish between people on a suspect basis ive purposes, so long as they have a reasonable (i.e., race, national origin, and alienage) basis and operate equally on all persons within the “are subject[ ] to strict scrutiny and will be class.” 203 S.W.3d 354, 371 (Tex.App.-Houston sustained only if they are suitably tailored [14th Dist.] 2005, pet. denied) (addressing specialto serve a compelling state interest.” City law challenge to constitutionality of article 4590i).

FN13 of Cleburne v. Cleburne Living Ctr. Inc., The expert report is required only for claims 473 U.S. 432, 440, 105 S.Ct. 3249, 87 against healthcare providers for departures from ac- L.Ed.2d 313 (1985) (plurality opinion). cepted standards of medical or health care or safety. When a statute burdens a sensitive class or Id. Accordingly, the expert-report requirement apimpinges on an important right, the statute plies equally to all physicians and health care prois subject to an intermediate level of scru- viders and rationally relates to the interests of the tiny, which requires a showing that the State “in ensuring that medical practitioners were statute is substantially related to an import- not ‘being placed in the situation of defending

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395 S.W.3d 884 (Cite as: 395 S.W.3d 884)

frivolous claims at a high cost’ to the health care acted to curb frivolous medical malpractice claims system.” Id. (quoting Schorp, 5 S.W.3d at 737). Re- by enacting article 4590i, its subsequent enactment cently, the Dallas Court of Appeals adopted the of chapter 74 reflects intent to “single out medical Smalling analysis and applied it to chapter 74. See malpractice claimants for special and harsh treat- Hightower, 348 S.W.3d at 521. ment by making it so onerous to file and prosecute [a claim] that they or their counsel will not take the FN13. Though the Heberts did not expli- case, or once it is filed, to make it so difficult to citly claim chapter 74 was an unconstitu- prosecute the case that they or their counsel will tional special law prohibited by the Texas just give up.” The Heberts likewise complain that Constitution, many of their complaints chapter 74 strips them “of all the rights accorded to track arguments raised by parties who have other litigants in the Texas Rules of Civil Procedraised such claims. Accordingly, we find ure,” but does not place similar restrictions on cases addressing special-law challenges in- “major corporations like insurance companies and structive. banks suing for breach of contract, or on individual or corporate clients suing attorneys,*900 account-

While Smalling and Hightower dealt with speants , bankers and brokers.” According to the cial-law challenges, we previously rejected an Heberts, no compelling state interest or rational equal-protection challenge to chapter 74's predebasis supports this “arbitrary” classification.

cessor for similar reasons. Fields v. Metroplex Hosp. Found., No. 03–04–00516–CV, 2006 WL [14][15] We find no merit in the Heberts' argu- 2089171, at *4 (Tex.App.-Austin July 28, 2006, no ment that the Legislature, evaluating the impact of pet.) (mem. op.) (“[T]he legislature determined that 4590i, could not have rationally concluded that a medical liability plaintiffs should be treated differ- problem had nonetheless persisted in the cost and ently because of the negative effects of the numbers availability of health care due to the prevalence of and cost of their lawsuits had on the provision of medical-malpractice suits. To the extent the Heberts health care.”). In that case, the claimant failed to challenge the underlying policies of chapter 74, it is show article 4590i's expert-report requirement was not our place to question the Legislature's policy not rationally or substantially related to the govern- decisions when conducting a rational basis review. ment's interest in reducing the aggregate costs of See Bell v. Low Income Women of Tex., 95 S.W.3d defending against frivolous costs and reducing the 253, 264 (Tex.2002) (“The restriction clearly serves costs of insurance and medical care to all. Id.; see [the act's] purposes, and it is not for us to secondalso Bogar, 257 S.W.3d at 373 (in addressing due- guess the Legislature's policy choices.”). The process challenge to chapter 74: “We disagree that Heberts fail to demonstrate that the Legislature it is irrational, in light of the legislature's goal of lacked any rational basis in differentiating between curtailing frivolous health care liability claims, for health care liability claimants and other litigants. it to require that appellees serve an expert report Accordingly, we reject the Heberts' “disparate treatexplaining why or how this outcome was actually ment” constitutional challenges. caused by the conduct of [the defendant], as opposed to some other person or health care pro- Separation of powers vider.”). [16][17] For similar reasons, the Heberts' other constitutional challenges fail. They claim the Legis-

The Heberts challenge the Legislature's ra- lature has impermissibly interfered with the judicial tionale as “pre-textual, not supported by empirical branch through chapter 74. The Texas Constitution data and refuted by surveys showing there aren't ex- vests the judicial power of the State in the courts. cessive frivolous medical malpractice suits.” They Tex. Const. art. V, § 1. The separation-of-powers reason that because the Legislature had previously

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395 S.W.3d 884 (Cite as: 395 S.W.3d 884)

requirement prohibits one branch of government to the contrary. Accordingly, we reject the *901 from exercising a power inherently belonging to an- Heberts' separation-of-powers constitutional chalother branch. Id. art. II, § 1; Wilson–Everett, 242 lenge. S.W.3d at 802 (citing General Servs. Comm'n v. Little–Tex Insulation Co., 39 S.W.3d 591, 600 Right of access (Tex.2001)). Only when the executive or legislative [18][19][20][21] Finally, the Heberts argue branch interferes with the functioning of the judi- chapter 74 violates their right of access to the cial process in a field constitutionally committed to courts and due course of law. The open-courts prothe control of the courts does a constitutional prob- vision of the Texas Constitution guarantees litigants lem arise. Wilson–Everett, 242 S.W.3d at 802. the right to redress their grievances. Tex. Const. art.

I, § 13; LeCroy v. Hanlon, 713 S.W.2d 335, 341 Chapter 74's expert report imposes a threshold (Tex.1986). It protects a person from having his or procedural requirement aimed at filtering out merit- her right to sue cut off by a legislative act before less or premature lawsuits from proceeding until a the individual has been afforded a reasonable opclaimant makes a good-faith effort to demonstrate portunity to discover the wrong and bring suit. Shah that at least one expert believes that a breach of the v. Moss, 67 S.W.3d 836, 842 (Tex.2001). It is applicable standard of care caused the claimed in- premised on the rationale that the Legislature has jury. Id. at 802–04 (rejecting argument that chapter no power to make a remedy by due course of law 74 “interefere[d] with the judiciary's constitutional contingent upon an impossible condition. power to decide when and how to render judg- Hightower, 348 S.W.3d at 522 (citing Moreno v. ments” (citing Murphy v. Russell, 167 S.W.3d 835, Sterling Drug, Inc., 787 S.W.2d 348, 355 838 (Tex.2005) (per curiam); Walker, 111 S.W.3d (Tex.1990)); see also Stockton, 336 S.W.3d at 618 at 66). Though the Heberts contend chapter 74 (rejecting open-courts challenge based on chapter “prohibits the courts from using the rules of proced- 74's 120–day deadline). To prove that the statute viure and directs the courts in every respect,” in actu- olates the open-courts provision, the Heberts must ality, the courts retain the judicial power to determ- show that: (1) a cognizable common law cause of ine whether a timely served report is adequate in action is being restricted, and (2) the restriction is this regard and to render a decision accordingly. unreasonable or arbitrary when balanced with the See Tex. Civ. Prac. & Rem.Code Ann. § 74.351(l ), statute's purpose and basis. Sax, 648 S.W.2d at 666. (r)(6); see also Carrick v. Summers, 294 S.W.3d 886, 891 (Tex.App.-Beaumont 2009, no pet.) [22] A claimant bringing an as-applied open- (“[I]mposing a strict, non-discretionary time limit courts challenge to chapter 74 must show that the on serving the expert report does not restrict the tri- expert-report requirements actually prevented him al court's power to hear evidence, determine the from bringing his claims. Herrera, 212 S.W.3d at facts of a case and the rights of the parties, apply 461; McGlothlin v. Cullington, 989 S.W.2d 449, the law to the facts and to enter a judgment appro- 453 (Tex.App.-Austin 1999, pet. denied). The priate to the case, any more than a statute of limita- Heberts failed to prove how the provisions of tions does.”). The same is true of chapter 74's re- chapter 74, as opposed to their own failure to quirement that courts award attorney's fees upon provide an adequate report, prevented them from dismissal. Hightower, 348 S.W.3d at 522 (rejecting pursuing their claims. See Ledesma, 2007 WL separation-of-powers challenge based on attorneys' 2214650, at *9 (rejecting open-courts challenge fees provision because “court still retains its consti- when plaintiff failed to serve sufficient reports); see tutional authority to determine the reasonable fees also Stockton, 336 S.W.3d at 618–19 (rejecting asbased on the law and the evidence presented by the applied open-courts challenge when plaintiff failed parties”). The Heberts offer no persuasive authority to exercise due diligence in serving expert report on

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395 S.W.3d 884 (Cite as: 395 S.W.3d 884)

defendant physician). 90 was approved in 1940 and amended in 1980. Thus, to the extent chapter 74 and [23][24] As discussed above, the Heberts have rule 90 conflict, chapter 74 controls. See also failed to show chapter 74 is unreasonable or Mitchell v. Berry, No. 05–06–01328–CV, arbitrary when balanced with the statute's purpose 2007 WL 4111923, at *4 (Tex.App.-Dallas and basis. Health care liability claims require expert Nov. 20, 2007, pet. denied) (mem. op.) testimony at trial. See Smalling, 203 S.W.3d at 371. (rejecting argument Tex. Civ. Prac. & The expert-report requirement “ ‘does not violate Rem.Code Ann. § 13.001 allowing for disthe open-courts provision by requiring an expert re- missal in inability-to-pay cases was a genport sooner rather than later in the litigation.’ ” Id. eral demurrer in contravention of Rule 90); (addressing article 4590i (quoting Mocega, 79 see also Smalling v. Gardner, 203 S.W.3d S.W.3d at 64)); see also Gill, 39 S.W.3d at 718–19 354, 367 n. 8 (Tex.App.-Houston [14th (article 4590i expert-report requirement did not vi- Dist.] 2005, pet. denied) (distinguishing olate open-courts provision because plaintiff raising dismissal under general demurrer from dismedical negligence claim required to prove claim missal for failure to serve expert report). by competent expert testimony to avoid summary judgment and/or prevail at trial); Bankhead v. *902 [25][26] The Heberts have failed to Spence, 314 S.W.3d 464, 466 (Tex.App.-Waco demonstrate a constitutional defect in chapter 74's FN15 2010, pet. denied) (“This Court and others have de- expert-report requirement. Accordingly, we FN16 termined that the expert-report requirement itself overrule their second issue. does not violate the open-courts guarantee because it ‘is rationally related to the purpose of the statute FN15. The Heberts make passing reference to discourage frivolous malpractice suits.’ ” to infringement of their right to trial by (quoting Powell v. Clements, 220 S.W.3d 138, 140 jury, but provide no authority or argument (Tex.App.-Waco 2007, pet. denied))); Fields, 2006 in support of any challenge based on that WL 2089171, at *4 (holding report requirement not provision that is distinct from their other so onerous that it “effectively deprived the litigant arguments. To the extent the Heberts inten-

FN14 ded to advance a distinct challenge based of access to the court”).

on their right to jury trial, it too would fail.

FN14. The Heberts also argue that chapter The right to a jury trial is not an absolute 74 “effectively revives the general demur- right in civil cases, but is subject to certain rer practice which permitted judges to dis- procedural rules. Schorp v. Baptist Mem'l miss cases on the pleadings.” They argue Health Sys., 5 S.W.3d 727, 738 that summary judgment is the preferred (Tex.App.-San Antonio 1999, no pet.) method for defendants to obtain a dis- (citing Wooten v. Dallas Hunting & Fishmissal on the merits. Our rules of proced- ing Club, Inc., 427 S.W.2d 344, 346 ure prohibit the use of general demurrers. (Tex.Civ.App.-Dallas 1968, no writ)). Tex.R. Civ. P. 90. However, “[w]hen a “Imposing the requirement to file an expert rule of procedure conflicts with a statute, report and the failure to meet that requirethe statute prevails unless the rule has been ment allows the trial court to dismiss the passed subsequent to the statute and re- case. This dismissal is not based on the peals the statute....” Johnstone v. State, 22 merits, but merely operates to dismiss the S.W.3d 408, 409 (Tex.2000) (per curiam). case on a procedural requirement which is The current version of chapter 74 was directly related to the statute's purpose of passed in 2003 and amended in 2005; rule limiting the number of frivolous suits.” Id.

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395 S.W.3d 884 (Cite as: 395 S.W.3d 884)

(addressing article 4590i (citing Buckholts S.W.3d 799, 803 (Tex.App.-Houston [1st Indep. Sch. Dist. v. Glaser, 632 S.W.2d Dist.] 2007, pet. denied) (rejecting argu- 146, 149 (Tex.1982) (holding that failure ment that chapter 74 “interfere[d] with the of plaintiff to fulfill bonding requirement judiciary's constitutional power to decide for challenging school board election did when and how to render judgments”). In not deny taxpayer right to jury trial on any event, cases from other jurisdictions merits))). have no precedential value for this Court.

Instead, we are bound to follow the Su-

FN16. The Heberts point to decisions from preme Court of Texas and our own precedother jurisdictions that, in their view, ent, as well as the persuasive cases of our struck down expert-report requirements sister courts. Texas authorities have consimilar to chapter 74 based on constitution- sistently rejected constitutional challenges al provisions analogous to the protections similar to those advanced by the Heberts. on which they rely here. See, e.g., Putman v. Wenatchee Valley Med. Ctr., 166 CONCLUSION Wash.2d 974, 216 P.3d 374, 378–79 Having overruled the Heberts' issues on appeal, (2009) (law requiring certificate of merit we affirm the district court's judgment. from expert at time of filing violated separation of powers and right of access as it cut *903 Jones, C.J., dissent. off rights of discovery and abrogated J. WOODFIN JONES, Chief Justice, dissenting.

pleading requirements in rules of proced-

Because I believe the expert report in this case ure); Wimley v. Reid, 991 So.2d 135, 138 represents a good-faith effort to comply with the (Miss.2008) (law requiring certificate of statutory definition of an expert report, I respectmerit violated separation of powers); Sumfully dissent.

merville v. Thrower, 369 Ark. 231, 253 S.W.3d 415, 421 (2007) (law requiring ex- The three significant Texas Supreme Court pert affidavit within 30 days of suit viol- opinions that address the issue of determining the ated separation of powers); Zeier v. Zim- adequacy of an expert report are American Transmer , Inc. 152 P.3d 861, 873 (Okla.2006) itional Care Centers of Texas, Inc. v. Palacios, 46 (law requiring affidavit of merit with peti- S.W.3d 873 (Tex.2001); Bowie Memorial Hospital tion barred right of access). They also ac- v. Wright, 79 S.W.3d 48 (Tex.2002); and Jelinek v. knowledge that courts in at least two juris- Casas, 328 S.W.3d 526 (Tex.2010). Together, those dictions upheld laws similar to chapter 74. three cases describe and clarify the standards by See McAlister v. Schick, 147 Ill.2d 84, 167 which courts are to evaluate an expert report. Be- Ill.Dec. 1021, 588 N.E.2d 1151, 1157–58 cause those standards are appropriately set forth in (1992); Mahoney v. Doerhoff Surgical the majority opinion, I will not repeat them all. But Servs. Inc., 807 S.W.2d 503, 512–13 it is crucial to remember that all that is necessary to (Mo.1991). Additionally, they favorably avoid dismissal is that the report represent a “good cite cases from other jurisdictions that up- faith effort” to comply with the statutory definition held similar laws “so long as the Legis- of an expert report, which in turn requires only that lature [does] not direct[ ] the Courts how the report provide “a fair summary of the expert's to decide the legitimacy of the case.” opinions” regarding standard of care, breach, and Texas decisions regarding chapter 74 are causation. Most important, the supreme court has consistent with that reasoning. See, e.g., defined “good faith effort” as “one that provides in- Wilson–Everett v. Christus St. Joseph, 242 formation sufficient to (1) ‘inform the defendant of

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395 S.W.3d 884 (Cite as: 395 S.W.3d 884)

the specific conduct the plaintiff has called into • “Dr. Hopkins performed an anterior (front) only question,’ and (2) ‘provide a basis for the trial court plate and screw fixation.... The standards of care to conclude that the claims have merit.’ ” Jelinek, governing a prudent surgeon require that he not 328 S.W.3d at 539 (quoting Wright, 79 S.W.3d at perform anterior only fixation with plate and 52). I believe the report in the present case easily screws....” meets that test.

• “The standards of care governing a prudent sur-

The first prong of the good-faith test is that the geon require that he perform a multilevel posterireport must “inform the defendant of the specific or instrumented fusion alone or in conjunction conduct the plaintiff has called into question.” In with an anterior instrumented fusion....” this regard, the expert report in this case could not be clearer: the standard of care requires that a spin- *904 • “My opinion is that Dr. Hopkins breached al fracture complicated by pre-existing ankylosing the standard of care by performing a multi-level spondylitis must be treated by posterior internal fix- anterior only fusion and fixation with plate/ ation, either alone or in combination with anterior screws without also performing a multi-level posinternal fixation, not by anterior fixation alone, as terior fusion and fixation with instrumentation.” was done by the defendant physician here. By my • “The factual basis for this opinion is that a count, the medical expert's report contains no less prudent surgeon following the standards of care than nine separate statements and/or explanations would not have performed an anterior only fusion of this requirement, four in his original report and with instrumentation to attempt to stabilize this five more in his supplemental report.

very unstable fracture but would have performed • “Anterior instrumentation only is predictably an anterior instrumented fusion with plates/ inadequate in a fracture pattern with gross anteri- screws and a multilevel posterior instrumented or and posterior column instability such as Mr. fusion or a multilevel posterior instrumented fu- Hebert's. Adequate treatment of Mr. Herbert's sion alone.” fracture requires anterior and posterior instru-

• “[P]erforming an anterior only fusion with inmentation in order to meet the standard of care.”

strumentation without also performing the pos-

• “Dr. Timothy Hopkins' choice of anterior only terior fusion and fixation was a breach of the plate/screw fixation fails to meet the applicable standard of care because the standards of care restandard of care.” quire performing both procedures to adequately stabilize the very unstable fracture and anterior • “In the absence of adequate posterior stability, only surgery was doomed to fail....” anterior plate/screw constructs typically fail in flexion by plate breakage or, as in this case, by There can be no doubt what conduct is being screw pullout.... Anterior only plate/screw fixa- called into question. tion, in this setting, is predictably doomed to fail-

The second prong of the supreme court's goodure .”

faith definition is that the report must “provide a • “The standard of care for the surgical treatment basis for the trial court to conclude that the claims of this fracture requires a multilevel posterior fix- have merit.” Here, the expert report goes into great ation and a fusion in conjunction with anterior detail in explaining the standard of care, why the fixation and fusion with or without supplemental actions of the defendant physician constituted a external fixation....” breach of the standard, and “how and why the breach caused the injury based on the facts presen-

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395 S.W.3d 884 (Cite as: 395 S.W.3d 884)

ted.” Jelinek, 328 S.W.3d at 539–40. The report *905 with external bracing and/or activity limitadoes not contain mere conclusions of the expert. tions. Quite the contrary. As to causation, for example, the report explains at length the process by which There are several things to note about this senthe breach of the standard of care resulted in the tence. First, it does not say that anterior only internplaintiff 's paralysis: al fixation could ever meet the standard of care in treating a patient with the conditions existing here.

My opinion is that performing an anterior only Indeed, the sentence does not explicitly reference fusion with instrumentation without also per- anterior internal fixation at all. It is simply a generforming a multilevel posterior instrumented fu- al reference to a hypothetical situation in which sion caused permanent and irreversible spinal “inadequate internal fixation” is, temporarily, the cord injury when the screw predictably pulled out only available option under some presumably exin the post perioperative period.... When the traordinary circumstances. Second, whatever the screw pulled out of the vertebral segments of C–6 general references to “clinical situation” and and C–7, the C–5 vertebral body was allowed to “inadequate internal fixation” mean, the report goes move on C–6 resulting in cord compression. The on to specify that the defendant breached the standscrew predictably failed because the anterior only ard of care in this case, as to this patient. This is an approach was insufficient in the absence of inher- implicit statement that, to the best of the expert's ent or surgically created posterior element stabil- knowledge, there were no extraordinary circumity , to stabilize the fracture and resist deformation stances in this case. Third, and perhaps most imdue to flexion forces. When the screws failed, the portant, the possible existence of extraordinary cirvertebral segments moved resulting in cord com- cumstances that might—or might not—justify the pression. As a result, Mr. Hebert is now a quadra- defendant physician's temporary use of anterior paretic, meaning he is nearly completely para- only internal fixation is a matter to be fleshed out lyzed from the chest down. If, instead of the an- during discovery and possibly trial, not as part of a terior only surgery, Dr. Hopkins had performed gatekeeper effort to deter frivolous lawsuits. This is an anterior and posterior instrumented fusion, especially true in light of the fact that the medical like Dr. Duarte did on 9/12/08, it is highly prob- records available to the expert in preparing his reable the anterior implants would not have failed port may not have reflected whether any such exas they did, the resulting cord compression would traordinary circumstances existed at the time of the FN1 have been avoided and Mr. Hebert would not surgery. To require a report to negate possible have sustained his spinal cord injury and paralys- defenses at this stage of the litigation creates an exis . tra-statutory burden and is unfair to both the plaintiff and the medical expert.

In the face of the expert report's highly detailed explanation of all of the elements required by Pala- FN1. Medical issues, like legal ones, are cios, Wright, and Jelinek, the majority holds that a seldom black and white. One can imagine single sentence from the original report was so a hypothetical conversation between a “internally inconsistent” as to the applicable stand- plaintiff's attorney and the plaintiff's medard of care that all of the report's detailed explana- ical expert, in which the expert says tions and opinions were vitiated: something like, “In the overwhelming majority of cases like this, the standard of If the clinical situation in which the surgeon finds care is X. But I have to be candid: in a himself and the patient allows only inadequate in- very small percentage of such cases, external fixation, the surgeon is obligated to protect traordinary circumstances may call for a the patient supplementing the internal fixation

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395 S.W.3d 884 (Cite as: 395 S.W.3d 884)

different treatment approach. Nothing in the medical records I have seen indicates that such extraordinary circumstances existed in this case, but I would not be completely honest if I did not at least mention that possibility.”

I believe the expert report in this case constituted a good-faith effort to comply with the definition of an expert report, as required by the applicable statutes and supreme court precedent. Accordingly , I respectfully dissent.

Tex.App.–Austin,2013. Hebert v. Hopkins 395 S.W.3d 884

END OF DOCUMENT

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328 S.W.3d 526, 54 Tex. Sup. Ct. J. 272 (Cite as: 328 S.W.3d 526)

Lehrmann, J., filed opinion dissenting in part.

Supreme Court of Texas.

Michael T. JELINEK, M.D. and Columbia Rio West Headnotes Grande Healthcare, L.P. d/b/a Rio Grande Regional [1] Health 198H 631 Hospital, Petitioners, v. 198H Health Francisco CASAS and Alfredo DeLeon, Jr., as Per- 198HV Malpractice, Negligence, or Breach of sonal Representatives of the Estate of Eloisa Casas, Duty Deceased, Respondents. 198HV(B) Duties and Liabilities in General 198Hk630 Proximate Cause No. 08–1066.

198Hk631 k. In general. Most Cited Argued Feb. 18, 2010.

Cases Decided Dec. 3, 2010.

At a trial concerning a medical malpractice Background: Patient's surviving family members claim, the plaintiff must establish two causal nexbrought medical malpractice action against hospital uses in order to be entitled to recovery: (1) a causal and physician, arising out of treatment of patient at nexus between the defendant's conduct and the hospital. Following non-suiting of physician, and event sued upon; and (2) a causal nexus between following jury trial, the 275th District Court, the event sued upon and the plaintiff's injuries. Hidalgo County, Juan R. Partida, J., entered judg-

[2] Appeal and Error 30 1001(3)

ment for family members. Hospital and physician appealed. The Corpus Christi Court of Appeals, 30 Appeal and Error 2008 WL 2894889, affirmed. Hospital and physi- 30XVI Review cian petitioned for review. 30XVI(I) Questions of Fact, Verdicts, and Findings Holdings: The Supreme Court, Guzman, J., held 30XVI(I)2 Verdicts that:

30k1001 Sufficiency of Evidence in (1) lay testimony of family members did not Support present some evidence in support of finding that 30k1001(3) k. Total failure of hospital's alleged negligence caused patient's addiproof . Most Cited Cases tional pain and suffering;

In a legal sufficiency review, when the evid-

(2) expert testimony did not present some evidence ence offered to prove a vital fact is so weak as to do in support of finding that hospital's alleged neglino more than create a mere surmise or suspicion of gence caused patient's additional pain and sufferits existence, the evidence is no more than a scining ; and tilla and, in legal effect, is no evidence.

(3) expert report was conclusory with regard to causation and, thus, was deficient. [3] Appeal and Error 30 1001(3)

Reversed and rendered in part; reversed and re- 30 Appeal and Error manded in part. 30XVI Review 30XVI(I) Questions of Fact, Verdicts, and Jefferson, C.J., dissented in part, and filed Findings opinion in which Green and Lehrmann, JJ., joined. 30XVI(I)2 Verdicts

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328 S.W.3d 526, 54 Tex. Sup. Ct. J. 272 (Cite as: 328 S.W.3d 526)

30k1001 Sufficiency of Evidence in 198H Health Support 198HV Malpractice, Negligence, or Breach of 30k1001(3) k. Total failure of Duty proof. Most Cited Cases 198HV(G) Actions and Proceedings In a legal sufficiency review, when the circum- 198Hk815 Evidence stances are equally consistent with either of two 198Hk823 Weight and Sufficiency, facts, neither fact may be inferred. Particular Cases 198Hk823(8) k. Diagnosis and [4] Appeal and Error 30 1002 treatment of cancer. Most Cited Cases Lay testimony of patient's surviving husband 30 Appeal and Error and son regarding patient's discomfort while obtain-

30XVI Review ing treatment for cancer in hospital did not present 30XVI(I) Questions of Fact, Verdicts, and some evidence in support of finding that hospital's Findings alleged negligence caused patient's additional pain 30XVI(I)2 Verdicts and suffering, in their medical malpractice action 30k1002 k. On conflicting evidence.

against hospital; testimony of husband and son Most Cited Cases raised no more than mere suspicion of causation, In a legal sufficiency review, when the evidinasmuch as they were unable to assert whether it ence equally supports two alternatives, the Supreme was cancer, surgery, other infections, or lapse in Court must view each piece of circumstantial evidmedication that caused such discomfort.

ence, not in isolation, but in light of all the known circumstances, and must consider not just favorable [7] Health 198H 821(3) but all the circumstantial evidence, and competing inferences as well. 198H Health 198HV Malpractice, Negligence, or Breach of [5] Health 198H 822(3) Duty 198HV(G) Actions and Proceedings 198H Health 198Hk815 Evidence 198HV Malpractice, Negligence, or Breach of 198Hk821 Necessity of Expert Testi-

Duty mony 198HV(G) Actions and Proceedings 198Hk821(3) k. Proximate cause.

198Hk815 Evidence Most Cited Cases 198Hk822 Weight and Sufficiency in General Health 198H 821(4)

198Hk822(3) k. Proximate cause.

Most Cited Cases 198H Health To meet the legal sufficiency standard in med- 198HV Malpractice, Negligence, or Breach of ical malpractice cases, plaintiffs are required to ad- Duty duce evidence of a reasonable medical probability, 198HV(G) Actions and Proceedings or reasonable probability, that their injuries were 198Hk815 Evidence caused by the negligence of one or more defend- 198Hk821 Necessity of Expert Testiants , meaning simply that it is more likely than not mony that the ultimate harm or condition resulted from 198Hk821(4) k. Gross or obvious such negligence. negligence and matters of common knowledge.

Most Cited Cases [6] Health 198H 823(8) Lay testimony may be used as evidence of

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328 S.W.3d 526, 54 Tex. Sup. Ct. J. 272 (Cite as: 328 S.W.3d 526)

causation in certain circumstances in medical mal- 198Hk821 Necessity of Expert Testipractice actions, but when expert testimony is re- mony quired, lay evidence supporting liability is legally 198Hk821(4) k. Gross or obvious insufficient. negligence and matters of common knowledge.

Most Cited Cases [8] Health 198H 821(3) Non-expert evidence alone is sufficient in a medical malpractice action to support a finding of 198H Health causation in limited circumstances where both the 198HV Malpractice, Negligence, or Breach of occurrence and conditions complained of are such Duty that the general experience and common sense of 198HV(G) Actions and Proceedings laypersons are sufficient to evaluate the conditions 198Hk815 Evidence and whether they were probably caused by the oc-

198Hk821 Necessity of Expert Testicurrence .

mony 198Hk821(3) k. Proximate cause. [11] Evidence 157 571(9)

Most Cited Cases A general rule in medical malpractice actions is 157 Evidence that expert testimony is necessary to establish caus- 157XII Opinion Evidence ation as to medical conditions outside the common 157XII(F) Effect of Opinion Evidence knowledge and experience of jurors. 157k569 Testimony of Experts 157k571 Nature of Subject [9] Health 198H 631 157k571(9) k. Cause and effect.

Most Cited Cases 198H Health 198HV Malpractice, Negligence, or Breach of Evidence 157 574 Duty 198HV(B) Duties and Liabilities in General 157 Evidence 198Hk630 Proximate Cause 157XII Opinion Evidence 198Hk631 k. In general. Most Cited 157XII(F) Effect of Opinion Evidence Cases 157k574 k. Conflict with other evidence.

Correlation does not necessarily imply causa- Most Cited Cases tion, for purposes of a medical malpractice action; evidence of an event followed closely by manifesta- Health 198H 823(6) tion of or treatment for conditions which did not 198H Health appear before the event raises suspicion that the 198HV Malpractice, Negligence, or Breach of event at issue caused the conditions, but suspicion Duty has not been and is not legally sufficient to support 198HV(G) Actions and Proceedings a finding of legal causation.

198Hk815 Evidence [10] Health 198H 821(4) 198Hk823 Weight and Sufficiency, Particular Cases 198H Health 198Hk823(6) k. Infections and in-

198HV Malpractice, Negligence, or Breach of fectious diseases. Most Cited Cases Duty Expert testimony did not present some evid-

198HV(G) Actions and Proceedings ence in support of finding that hospital's alleged 198Hk815 Evidence negligence through lapse in medication caused pa-

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328 S.W.3d 526, 54 Tex. Sup. Ct. J. 272 (Cite as: 328 S.W.3d 526)

tient's additional pain and suffering, in medical ences from the evidence and state that “in medical malpractice action by patient's surviving family probability” the injury was caused by the defendmembers against hospital; competing explanations ant's negligence; rather, the expert must explain existed for presence of negligence-induced infec- why the inferences drawn are medically preferable tion, and expert did not explain why presence of to competing inferences that are equally consistent such infection was medically more probable than with the known facts, and thus, when the facts supcompeting explanations. port several possible conclusions, only some of which establish that the defendant's negligence [12] Evidence 157 555.10 caused the plaintiff's injury, the expert must explain to the fact finder why those conclusions are superi-

157 Evidence or based on verifiable medical evidence, not simply 157XII Opinion Evidence the expert's opinion.

157XII(D) Examination of Experts 157k555 Basis of Opinion [14] Health 198H 822(3)

157k555.10 k. Medical testimony.

Most Cited Cases 198H Health 198HV Malpractice, Negligence, or Breach of Trial 388 105(3) Duty 198HV(G) Actions and Proceedings 388 Trial 198Hk815 Evidence 388IV Reception of Evidence 198Hk822 Weight and Sufficiency in 388IV(C) Objections, Motions to Strike Out, General and Exceptions 198Hk822(3) k. Proximate cause.

388k105 Effect of Failure to Object or Most Cited Cases Except The proof in a medical malpractice action must 388k105(3) k. Expert and other opinestablish causal connection beyond the point of ion evidence. Most Cited Cases conjecture; it must show more than a possibility.

If no basis for the expert opinion in a medical malpractice action is offered, or the basis offered [15] Health 198H 822(2) provides no support, the opinion is merely a conclusory statement and cannot be considered probat- 198H Health ive evidence, regardless of whether there is no ob- 198HV Malpractice, Negligence, or Breach of jection; a claim will not stand or fall on the mere Duty ipse dixit of a credentialed witness. 198HV(G) Actions and Proceedings 198Hk815 Evidence [13] Evidence 157 555.10 198Hk822 Weight and Sufficiency in General 157 Evidence 198Hk822(2) k. Degree of proof.

157XII Opinion Evidence Most Cited Cases 157XII(D) Examination of Experts Verdicts in a medical malpractice action must 157k555 Basis of Opinion rest upon reasonable certainty of proof.

157k555.10 k. Medical testimony.

Most Cited Cases [16] Appeal and Error 30 1001(1)

When the only evidence of a vital fact is circumstantial , an expert witness in a medical mal- 30 Appeal and Error practice action cannot merely draw possible infer- 30XVI Review

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328 S.W.3d 526, 54 Tex. Sup. Ct. J. 272 (Cite as: 328 S.W.3d 526)

30XVI(I) Questions of Fact, Verdicts, and 102k1 Nature and Grounds of Right Findings 102k2 k. In general. Most Cited Cases 30XVI(I)2 Verdicts 30k1001 Sufficiency of Evidence in Health 198H 804 Support 198H Health 30k1001(1) k. In general. Most 198HV Malpractice, Negligence, or Breach of Cited Cases Duty Trial 388 140(1) 198HV(G) Actions and Proceedings 198Hk804 k. Affidavits of merit or merit-

388 Trial orious defense; expert affidavits. Most Cited Cases 388VI Taking Case or Question from Jury Expert report was conclusory with regard to 388VI(A) Questions of Law or of Fact in causation, and thus, was deficient, in medical mal-

General practice action by patient's surviving family mem-

388k140 Credibility of Witnesses bers against physician arising out of treatment of 388k140(1) k. In general. Most Cited patient, so as to entitle physician to award of attor-

Cases ney fees and costs in action; report offered no more Courts should not usurp the jury's role as fact than bare assertion that physician's alleged breach finder, nor should they question the jury's right to resulted in increased pain and suffering as well as believe one witness over another; but when review- prolonged hospital stay, but did not offer explanaing a verdict for sufficiency of the evidence, courts tion of how breach caused injury. Vernon's need not, indeed, must not, defer to the jury's find- Ann.Texas Civ.St. art. 4590i, § 13.01(e) ings when those findings are not supported by cred- (Repealed). ible evidence.

[19] Health 198H 804 [17] Appeal and Error 30 1001(3)

198H Health 30 Appeal and Error 198HV Malpractice, Negligence, or Breach of 30XVI Review Duty 30XVI(I) Questions of Fact, Verdicts, and 198HV(G) Actions and Proceedings Findings 198Hk804 k. Affidavits of merit or merit-

30XVI(I)2 Verdicts orious defense; expert affidavits. Most Cited Cases 30k1001 Sufficiency of Evidence in If a plaintiff in a medical malpractice action Support timely files an expert report and the defendant 30k1001(3) k. Total failure of moves to dismiss because of the report's inadproof . Most Cited Cases equacy, the trial court must grant the motion only if When the evidence compels the jury to guess if it appears to the court, after a hearing, that the rea vital fact exists, a reviewing court does not under- port does not represent a good faith effort to commine the jury's role by sustaining a no-evidence ply with the definition of an expert report in the challenge. governing statute. Vernon's Ann.Texas Civ.St. art.

4590i, § 13.01(l ), (r)(6) (Repealed).

[18] Costs 102 2 [20] Health 198H 804 102 Costs 102I Nature, Grounds, and Extent of Right in 198H Health General 198HV Malpractice, Negligence, or Breach of

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328 S.W.3d 526, 54 Tex. Sup. Ct. J. 272 (Cite as: 328 S.W.3d 526)

Duty ground of a deficient expert report under the abuse-

198HV(G) Actions and Proceedings of-discretion standard. Vernon's Ann.Texas Civ.St.

198Hk804 k. Affidavits of merit or merit- art. 4590i, § 13.01(e) (Repealed).

orious defense; expert affidavits. Most Cited Cases All information needed for an inquiry into [23] Appeal and Error 30 946 whether a good-faith effort was made to comply 30 Appeal and Error with expert report requirements in the governing 30XVI Review statute is found within the four corners of the expert 30XVI(H) Discretion of Lower Court report, which need not marshal all the plaintiff's 30k944 Power to Review proof, but must include the expert's opinion on each 30k946 k. Abuse of discretion. Most of the three main elements: standard of care, Cited Cases breach, and causation. Vernon's Ann.Texas Civ.St.

A district court abuses its discretion if it acts in art. 4590i, § 13.01(l ), (r)(6) (Repealed).

an arbitrary or unreasonable manner without refer-

[21] Health 198H 804 ence to any guiding rules or principles.

198H Health *529 Ronald G. Hole, Ida Cecilia Garza, Hole & 198HV Malpractice, Negligence, or Breach of Alvarez, L.L.P., McAllen, for Michael T. Jelinek, Duty M.D.

198HV(G) Actions and Proceedings John N. Mastin, San Antonio, Francisco J. Rodrig-

198Hk804 k. Affidavits of merit or merituez , Rodriguez Tovar & Lopez, LLP, McAllen, for orious defense; expert affidavits. Most Cited Cases Francisco Casas.

An expert report in a medical malpractice action cannot merely state the expert's conclusions Mike A. Hatchell, Sarah B. Duncan, Elissa Gail about the elements of standard of care, breach, and Underwood, Locke Lord Bissell & Liddell, LLP, causation, but must explain the basis of the state- Austin, Raul Javier Guerra, Green, DuBois & ments to link the conclusions to the facts; a report Guerra, San Antonio, Susan A. Kidwell, Locke that merely states the expert's conclusions about the Lord Bissell & Liddell, LLP, Austin, for Columbia elements does not fulfill the purposes of a good- Rio Grande Healthcare, L.P. faith effort in complying with the expert report requirements in the governing statute. Vernon's Ann.Texas Civ.St. art. 4590i, § 13.01(l ), (r)(6) Justice GUZMAN delivered the opinion of the (Repealed). Court, in which Justice HECHT, Justice WAIN-

WRIGHT, Justice MEDINA, Justice JOHNSON, [22] Appeal and Error 30 960(1) and Justice WILLETT joined, and in which Chief Justice JEFFERSON, Justice GREEN, and Justice 30 Appeal and Error LEHRMANN joined as to Parts I and II.A.

30XVI Review When circumstantial evidence is consistent 30XVI(H) Discretion of Lower Court with several possible medical conclusions, only one 30k960 Rulings on Motions Relating to of which establishes that the defendant's negligence Pleadings caused the plaintiff's injury, an expert witness must 30k960(1) k. In general. Most Cited explain why, based on the particular facts of the Cases case, that conclusion is medically superior to the The Supreme Court reviews the trial court's others. If the expert fails to give any reason beyond grant or denial of a motion for sanctions and dis- an unsupported opinion, the expert's testimony is missal of a medical malpractice action on the legally insufficient evidence of causation. In this

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328 S.W.3d 526, 54 Tex. Sup. Ct. J. 272 (Cite as: 328 S.W.3d 526)

case, we determine whether legally sufficient evid- *530 I. Background ence supports the jury's verdict in favor of the es- In 2000, Eloisa Casas was diagnosed with FN1 tate of Eloisa Casas against Rio Grande Re- colon cancer and underwent surgery, radiation, and FN2 gional Hospital (the Hospital). Following her chemotherapy. A year later, doctors told her that admission to the Hospital with abdominal pain, the cancer appeared to be in remission, and she doctors placed Casas on antibiotics used to treat thought she was cured. But on July 10, 2001, she and prevent certain intra-abdominal infections. Two was admitted to the Hospital with abdominal pains; days later she underwent major abdominal surgery she also had a fever and a mildly elevated whiteand continued on the antibiotics for another five blood-cell count, potentially indicating an infection. days, but the Hospital allowed the prescriptions to To treat this possible infection, her surgeon and lapse for four-and-a-half days. The Hospital admits primary physician, Dr. Carlos Garcia–Cantu, conit should have continued the antibiotics but denies sulted with an infectious disease specialist at the that the lapse caused Casas any additional pain. We Hospital, Dr. Michael Jelinek, who on July 11 prehold that the Casases failed to present legally suffi- scribed two medications, Maxipime (a broadcient evidence that Casas suffered from an infection spectrum antibiotic), and Flagyl (an antibiotic used the omitted antibiotics would have treated. Accord- to treat anaerobic bacteria). ingly, we reverse the court of appeals' judgment and render judgment that the Casases take nothing. The Hospital performed several diagnostic FN3 tests, which revealed abnormal collections of fluid in Casas's abdomen. On July 13, she underwent ma-

FN1. Francisco Casas and Alfredo DeLeon jor abdominal surgery during which Dr. Gar- Jr., Casas's husband and son, respectively, cia–Cantu discovered that “fairly extensive” metaserve as personal representatives of her es- static cancer had perforated Casas's colon and altate . We refer to them collectively as “the lowed material to leak into her abdominal cavity, Casases.” causing an intra-abdominal abscess. Dr. Garcia –Cantu drained the abscess, repaired Casas's FN2. Columbia Rio Grande Regional colon, and inserted a Jackson–Pratt drain to prevent Healthcare, L.P., d/b/a/ Rio Grande Re- further problems. Following the surgery, Dr. Gargional Hospital. cia–Cantu continued the Maxipime and Flagyl prescriptions , and a culture of the removed abscess re-

FN3. Because we conclude legally insuffivealed an E. coli infection, which is effectively cient evidence supports the jury's verdict, treated with Maxipime. Casas received Maxipime we do not reach the Hospital's second isand Flagyl for another five days, but hospital staff sue—whether the Hospital preserved error inadvertently failed to place a prescription renewal regarding its proposed unavoidable acciform on Casas's chart, resulting in a fourdent instruction.

and-a-half-day period between July 18 and 23 dur-

In a separate petition, Dr. Michael Jelinek, one ing which Casas did not receive either medication.

of Casas's treating physicians sued by the Casases, Even so, Casas never tested positive for E. coli argues that the trial court should have granted his again and a culture of the incision site on July 18 motion for sanctions and dismissal because the Cas- instead grew Candida (a fungus) for which Diflucan ases' expert report was deficient. We agree and hold (an antifungal) was prescribed. Then, on July 21, a that an award of attorney's fees is proper. There- second culture from a blood sample grew coagufore , we reverse and remand to the trial court for an lase-negative staph, for which Vancomycin was FN4 award of attorney's fees and costs. prescribed. Neither Maxipime nor Flagyl would have treated the Candida or coagulase-negat-

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328 S.W.3d 526, 54 Tex. Sup. Ct. J. 272 (Cite as: 328 S.W.3d 526)

ive staph infection. to Casas and that within “reasonable medical probability ” this negligence resulted in a prolonged hos-

FN4. There was a several-day lag between pital stay and increased pain and suffering. Dr. taking the culture and ordering the pre- Jelinek later filed a motion for sanctions and disscription , presumably to allow the culture missal under article 4590i § 13.01(e), alleging that to grow and to transmit the results to the the expert report was deficient because, among othtreating physicians. Thus, the Diflucan was er things, it failed to explain any causal connection prescribed on July 21 and the Vancomycin between the negligence and the purported injury. on July 23. The trial court denied the motion. Before trial began, however, the Casases nonsuited Dr. Jelinek On July 23, Dr. Garcia–Cantu noted an abscess and Dr. Garcia–Cantu.

in the wound, which he drained by removing the staples and opening the wound. The next day, re- FN5. See Act of May 5, 1995, 74th Leg., cords indicate that a foul smell was emanating from R.S., ch. 140, § 1, 1995 Tex. Gen. Laws the wound site, and hospital staff brought fans into 985, 986, amending the Medical Liability the room to dissipate the odor. When Dr. Jelinek and Insurance Improvement Act of Texas, learned of the lapsed prescription on July 23, he in- Act of May 30, 1977, 65th Leg., R.S., ch. formed Casas and then prescribed different antibi- 817, 1977 Tex. Gen. Laws 2039, 2041, reotics , Levaquin and Vancomycin. On July 25, after pealed by Act of June 2, 2003, 78th Leg., a CAT scan showed no abscess, Dr. Garcia–Cantu R.S., ch. 204, § 10.09, 2003 Tex. Gen. removed the drain. Casas left the Hospital on Au- Laws 847, 884. Former article 4590i § gust 23, but she returned in early September and 13.01 was replaced by Texas Civil Practice died two months later. and Remedies Code § 74.351, as amended.

In May 2003, several members of Casas's fam- At trial, Dr. Daller testified as the Casases'

ily, including her husband and son, filed suit medical expert. During direct examination, he anaagainst the Hospital, Dr. Garcia–Cantu, and Dr. lyzed the Hospital's daily patient notes regarding Jelinek. The plaintiffs claimed that the defendants' Casas and identified the significant events. He negligence caused Eloisa Casas to “suffer grievous noted changes in Casas's vital signs on July 21 and embarrassment and humiliation, as well as excruci- 22, such as increased heart rate and temperature, inating pain the remainder of her life which she flammation, and tenderness of the surgery site. Dr. would not have suffered to such degree or extent if Daller stated that “in medical probability” there properly diagnosed, treated and cared for.” The was an infection in the abdomen, but on crossplaintiffs sought to recover damages for Casas's in- examination he admitted that “there was no objectjuries and mental anguish. They twice amended ive evidence present to demonstrate that intratheir petition, ultimately leaving the Casases as the abdominal infection.” When reviewing the patient sole plaintiffs. notes for July 24, which noted the presence of a foul smell, he suggested that the smell was consist-

*531 As required by former article 4590i § ent with an anaerobic infection that would be diffi-

13.01 of the Medical Liability and Insurance Imcult to culture because anaerobic bacteria die when provement Act, see TEX.REV.CIV. STAT. art.

FN5 exposed to air. Dr. Carl Berkowitz, the Hospital's 4590i § 13.01, the Casases filed an expert reexpert , offered several other explanations for the port within 180 days of filing the original petition.

smell, such as the Candida infection or dying tissue.

In the report, Dr. John Daller opined that Dr. Garcia –Cantu and Dr. Jelinek were negligent in failing The Casases also called Casas's relatives to to discover that the antibiotics were not being given testify about her condition. Consistent with Dr.

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328 S.W.3d 526, 54 Tex. Sup. Ct. J. 272 (Cite as: 328 S.W.3d 526)

Daller's testimony, Casas's son linked the smell appeal: the legal sufficiency of the causation evidwith the opening of the wound to drain the abscess: ence and the sufficiency of the Casases' expert re- “The odor that I noticed was after they had taken port. out the staples on her incision, and one day that I went to see her as soon as they opened the door the A. Sufficiency of the Evidence whiff of this putrid smell just engulfed me.” He [1] The facts of this case are unfortunate: a woalso testified that Casas was upset upon learning man with advanced colon cancer underwent surgery that she had not received the antibiotics but was to repair her cancer-perforated and infected colon, even more upset when the incision had to be and in the course of treatment for her many sympopened and drained: “Well, after she was told and I toms the Hospital failed to renew her antibiotic prewas told that she wasn't getting antibiotics, like I scriptions for a four-and-a-half-day period. The said, she was upset. What really upset her more was Hospital admits it should have continued the antibiwhen they had to—they had to take out the staples otics. Even so, the plaintiff bears the burden to out of her incision, and they had to open her in- prove that the negligence caused an injury: “[A]t cision up again.” Casas's husband testified that, trial the plaintiff must establish two causal nexuses while she was upset and did not trust the nurses or in order to be entitled to recovery: (a) a causal nexdoctors after learning of the lapsed prescription, us between the defendant's conduct and the event “she was still fighting. She ... wanted to beat this sued upon; and (b) a causal nexus between the cancer she had.” The son testified that Casas did event sued upon and the plaintiff's injuries.” Mornot lose hope until she witnessed the events of gan v. Compugraphic Corp., 675 S.W.2d 729, 731 September 11, 2001, following her re-admission to (Tex.1984). Only the second nexus is at issue here. the Hospital: “That's why I remember that day so [2][3][4] In City of Keller v. Wilson, we convividly in my mind because that was the turning sidered at length the parameters of legal sufficiency point in my mom. She seemed to just give up, not review, quoting with approval Chief Justice Calfight , not want to fight anymore like she used to.

vert's seminal article on the topic:

And that was a very, very sad day.”

“No evidence” points must, and may only, be *532 The jury found that the negligence of the sustained when the record discloses one of the Hospital, Dr. Jelinek, and Dr. Garcia–Cantu proxfollowing situations: (a) a complete absence of imately caused Casas's injury. The jury apportioned evidence of a vital fact; (b) the court is barred by ninety percent of the negligence to the Hospital, rules of law or of evidence from giving weight to five percent to Dr. Jelinek, and five percent to Dr.

the only evidence offered to prove a vital fact; (c)

Garcia–Cantu. It awarded $250,000 in damages to the evidence offered to prove a vital fact is no the Casases as compensation for Casas's pain and more than a mere scintilla; (d) the evidence esmental anguish.

tablishes conclusively the opposite of the vital The Hospital appealed, arguing that the evid- fact.

ence was legally and factually insufficient to prove 168 S.W.3d 802, 810 (Tex.2005) (quoting causation or damages for mental anguish. Dr.

Robert W. Calvert, “ No Evidence” and Jelinek also appealed, challenging the trial court's “Insufficient Evidence” Points of Error, 38 TEX.

denial of his motion for sanctions and dismissal.

L.REV. 361, 362–63 (1960)). “When the evidence The court of appeals affirmed on all issues. ––– offered to prove a vital fact is so weak as to do no S.W.3d ––––.

more than create a mere surmise or suspicion of its II. Analysis existence, the evidence is no more than a scintilla We address in turn the two issues raised in this and, in legal effect, is no evidence.” Kindred v.

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328 S.W.3d 526, 54 Tex. Sup. Ct. J. 272 (Cite as: 328 S.W.3d 526)

Con/Chem, Inc., 650 S.W.2d 61, 63 (Tex.1983). circumstantial evidence and make proper inferences The same is true when the evidence equally sup- from it. In reviewing the record, we initially decide ports two alternatives: “ ‘When the circumstances if jurors can determine causation under these facts are equally consistent with either of two facts, unaided by expert testimony—that is, whether lay neither fact may be inferred.’ ” City of Keller, 168 testimony regarding causation is legally sufficient. S.W.3d at 813 (quoting Tubelite, a Div. of Indal, Inc. v. Risica & Sons, Inc., 819 S.W.2d 801, 805 1. Lay Testimony of Causation (Tex.1991)). When considering such cases, “we [6][7][8][9] Lay testimony may be used as must ‘view each piece of circumstantial evidence, evidence of causation in certain circumstances, but not in isolation, but in light of all the known cir- “[w]hen expert testimony is required, lay evidence cumstances,’ ” id. at 813–14 (quoting Lozano v. supporting liability is legally insufficient.” City of Lozano, 52 S.W.3d 141, 167 (Tex.2001) (per curi- Keller, 168 S.W.3d at 812. In medical malpractice am)), and we “must consider not just favorable but cases, expert testimony regarding causation is the all the circumstantial evidence, and competing in- norm: “The general rule has long been that expert ferences as well.” Id. at 814. testimony is necessary to establish causation as to medical conditions outside the common knowledge [5] To meet the legal sufficiency standard in and experience of jurors.” Guevara v. Ferrer, 247 medical malpractice cases “plaintiffs are required to S.W.3d 662, 665 (Tex.2007); see also Bowles v. adduce evidence of a *533 ‘reasonable medical Bourdon, 148 Tex. 1, 219 S.W.2d 779, 782 (1949) probability’ or ‘reasonable probability’ that their (“It is definitely settled with us that a patient has no injuries were caused by the negligence of one or cause of action against his doctor for malpractice, more defendants, meaning simply that it is ‘more either in diagnosis or recognized treatment, unless likely than not’ that the ultimate harm or condition he proves by a doctor of the same school of practice resulted from such negligence.” Kramer v. Lewis- as the defendant: (1) that the diagnosis or treatment ville Mem'l Hosp., 858 S.W.2d 397, 399–400 complained of was such as to constitute negligence (Tex.1993) (citations omitted). Thus, we examine and (2) that it was a proximate cause of the patient's the record to determine if the Casases presented injuries.”). We have allowed lay evidence to establegally sufficient evidence that “in reasonable med- lish causation “in those cases in which general exical probability” the Hospital's negligence caused perience and common sense will enable a layman to Casas additional pain and suffering. determine, with reasonable probability, the causal relationship between the event and the condition.”

When distilled to its essence, the Casases' Morgan, 675 S.W.2d at 733 (citing Lenger v. Physiclaim is predicated on the presence of an infec- cian's Gen. Hosp., Inc., 455 S.W.2d 703, 706 tion—treatable by the lapsed antibiotics—that (Tex.1970)). Care must be taken to avoid the post caused Casas pain and mental anguish above and hoc ergo propter hoc fallacy, that is, finding an beyond that caused by the cancer, the surgery, and earlier event caused a later event merely because it the other known infections. The absence of an in- occurred first. Stated simply, correlation does not fection treatable by Maxipime and Flagyl would necessarily imply causation. As we noted in undermine the Casases' claim, for then the prescrip- Guevara, “[e]vidence of an event followed closely tion lapse would amount to an unfortunate, but by manifestation of or treatment for conditions harmless, occurrence. The Hospital argues that the which did not appear before the event raises suspi- Casases presented no evidence that the Hospital's cion that the event at issue caused the conditions. negligence caused such an infection. The Casases' But suspicion has not been and is not legally suffiexpert admitted there is no direct evidence of an an- cient to support a finding of legal causation.” 247 aerobic infection, leaving the jury to consider the S.W.3d at 668.

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328 S.W.3d 526, 54 Tex. Sup. Ct. J. 272 (Cite as: 328 S.W.3d 526)

[10] When lay testimony is credited as evid- the prescription lapse to an infection causing addience of causation, it usually highlights a connection tional pain and suffering beyond what she would between two events that is apparent to a casual ob- otherwise have experienced. See Kaster v. Woodserver . In Morgan, for example, a previously son, 123 S.W.2d 981, 983 (Tex.Civ.App.-Austin healthy employee, upon exposure to leaking chem- 1938, writ ref'd) (“What is an infection and from icals, suffered watering of the eyes, blurred *534 whence did it come are matters determinable only vision, headaches, and swelling of the breathing by medical experts.”); see also Hart v. Van Zandt, passages. 675 S.W.2d at 733. In such a circum- 399 S.W.2d 791, 792 (Tex.1966) (“In determining stance, lay testimony sufficed to connect the specif- negligence in a case such as this, which concerns ic injury to the negligence with no evidence of the highly specialized art of treating disease, the causation beyond the leaking chemicals. Id. Like- court and jury must be dependent on expert testiwise in Guevara, we stated that determining causa- mony. There can be no other guide, and where want tion of “certain types of pain, bone fractures, and of skill and attention is not thus shown by expert similar basic conditions” following an automobile evidence applied to the facts, there is no evidence accident was within the competence of lay jurors. of it proper to be submitted to the jury.”). 247 S.W.3d at 668. But we held that expert testimony was required to prove that a patient's medical The Casases point to testimony by Casas's husexpenses resulted from the accident, noting that band and son to support their argument that she de- “[p]atients in hospitals are often treated for more teriorated rapidly after discovering she did not rethan one condition brought on by causes independ- ceive the antibiotics. But this characterization overent of each other.” Id. at 669. These cases illustrate states the evidence. While Casas's husband testified this basic premise: “[N]on-expert evidence alone is she was upset and did not trust her doctors followsufficient to support a finding of causation in lim- ing the discovery, she was still determined to fight ited circumstances where both the occurrence and her cancer. The son also observed Casas's anger and conditions complained of are such that the general lack of trust but testified that the opening of her experience and common sense of laypersons are wound, which occurred the same day she learned of sufficient to evaluate the conditions and whether the lapse, upset her even more. As Dr. Daller adthey were probably caused by the occurrence.” Id. mitted, Candida likely caused the abscess that reat 668. quired Dr. Garcia–Cantu to drain the wound. Further , based on his experience at Casas's bedside, her The present case does not fall within this rule. son pinpointed the tragic events of September 11, Unlike in Morgan, an otherwise healthy person did 2001, and their effect on his mother as the turning not suddenly experience health difficulties follow- point in her mental state. The latter event was some ing the defendant's negligent conduct when the seven weeks after discovery of the lapsed prescripplaintiff 's symptoms were reasonably attributable to tions and after Casas's discharge from and rethe negligence and to nothing else. Rather, a patient admission to the Hospital. This evidence does not with terminal colon cancer did not receive antibiot- bear out the Casases' claim of a marked shift in Caics for four-and-a-half days following major ab- sas's mental resilience following the omission of dominal surgery and after having received the med- the medications. ications for eight days. There is no direct evidence that she suffered from an infection treatable by the *535 More importantly, Casas's husband and omitted antibiotics, but there is evidence that she son were unable to precisely identify the cause of had two other infections that accounted for all of her suffering. While they could accurately describe her symptoms during that time. Given Casas's med- her discomfort, they were unable to say if it was the ical condition, expert testimony was crucial to link cancer, the surgery, the other infections, or the

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328 S.W.3d 526, 54 Tex. Sup. Ct. J. 272 (Cite as: 328 S.W.3d 526)

lapse that caused it. Even testimony that Casas day, two days, three days, I cannot say suffered after learning of the omission raises no that. What I would say from a scientific more than a mere suspicion of causation, and that is standpoint is that for four and a half days not enough, see Guevara, 247 S.W.3d at 668, par- she did not receive appropriate therapy. ticularly in light of the evidence that Casas thought Had she received the appropriate therapy she was cured of cancer before the surgery and then then you would expect her length of stay learned that not only was it “back with a ven- to be shortened somewhat. To quantitate geance,” it was terminal. The testimony of Casas's that, I could not do that. husband and son is evidence of her suffering, but not of its cause. Thus, we hold that the lay testi- .... mony presented by the Casases is legally insuffi-

A. Obviously, not receiving antibiotics is cient to establish that the Hospital's negligence not going to shorten your stay. Therecaused Casas additional pain and suffering.

fore, if it impacted the stay it must have 2. Expert Testimony lengthened it. (emphases added).

[11] The Casases also presented expert testi-

Q. Now, Candida, infection of a wound like mony regarding causation. The Casases' expert, Dr.

this, they can cause high temperatures. Correct?

Daller, testified that the Hospital's negligence “in medical probability” caused Casas additional pain A. Fungal infections can cause a high temperatand suffering. He based this opinion on the pres- ure, yes. ence of an intra-abdominal infection that could have been treated using Maxipime and Flagyl. Ad- Q. It can cause increased heart rate? mitting that no direct evidence indicated such an infection , Dr. Daller pointed to various circumstantial A. That is correct. indicators that suggested an infection. These indic-

Q. And inflammation?

ators were primarily Casas's changed vital signs, such as fever and increased heart rate: “Well, given A. That is correct. the fact that two to three days after the antibiotics had been mistakingly [sic] stopped her fever curve Q. Pain? went up and her heart rate went up, to me that sug-

FN6 A. That is correct.

gests the presence of on going [sic] infection.” But on cross-examination, he conceded these data Q. How about an abscess?

were equally consistent with two other infections cultured from Casas's incision and blood—Candida A. It caused or is part of the abscess in that and coagulase—negative staph—neither of which is wound that was present, that wound infection that treatable by Maxipime or Flagyl: needed to be opened.

FN6. When asked if the lapsed prescrip- Q. So when Doctor Garcia went in on 7/23 ... tions affected Casas's hospital stay, Dr. and drained that wound at bedside that abscess Daller equivocated: was within a reasonable degree of medical probability caused by the Candida?

A. I think that it certainly did impact it. However, I cannot quantitate that be- *536 A. That was one of the organisms that cause there are multiple variables that was there. It was the organism that was cultured. are present in a clinical condition. That is correct. Whether it lengthened her stay by one

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328 S.W.3d 526, 54 Tex. Sup. Ct. J. 272 (Cite as: 328 S.W.3d 526)

.... more probable or less probable.”). When the only evidence of a vital fact is circumstantial, the expert Q. ... This coagulase negative staph causes cannot merely draw possible inferences from the fever? evidence and state that “in medical probability” the injury was caused by the defendant's negligence.

A. Correct.

The expert must explain why the inferences drawn Q. Increased heart rate? are medically preferable to competing inferences that are equally consistent with the known facts.

A. The fever will cause increased heart rate. Thus, when the facts support several possible conclusions , only some of which establish that the de-

.... fendant's negligence caused the plaintiff's injury, the expert must explain to the fact finder why those Q. It can cause pain?

conclusions are superior based on verifiable medic-

A. Depending upon the site. Correct. al evidence, not simply the expert's opinion. See Lenger, 455 S.W.2d at 707 (“[E]xpert testimony Q. Okay. All of these things can be caused by that the event is a possible cause of the condition coagulase negative staph and Candida, which we cannot ordinarily be treated as evidence of reasonknow were present 7/18 through 7/23, the time able medical probability except when, in the abperiod she did not get antibiotics? sence of other reasonable causal explanations, it becomes more likely than not that the condition did A. That's correct. result from the event.”); Hart, 399 S.W.2d at 792 (“The burden of proof is on the plaintiff to show Q. Neither one would have been killed by that the injury was negligently caused by the de-

Maxipime or Flagyl?

fendant and it is not enough to show the injury to-

A. That's correct. gether with the expert opinion that it might have occurred from the doctor's negligence and from oth-

[12][13] It is not enough for an expert simply er causes not the fault of the doctor. Such evidence to opine that the defendant's negligence caused the has no tendency to show that negligence did cause plaintiff's injury. The expert must also, to a reason- the injury.”). able degree of medical probability, explain how and why the negligence caused the injury. We have re- By conceding that Casas's symptoms were conjected expert opinions not grounded in a sound sistent with infections not treatable by Maxipime or evidentiary basis: “[I]f no basis for the opinion is Flagyl, Dr. Daller undermined his conclusion that offered, or the basis offered provides no support, an undetected infection was also present. While it is the opinion is merely a conclusory statement and possible that Casas did have such an infection, its cannot be considered probative evidence, regardless presence can only be inferred from facts that are of whether there is no objection. ‘[A] claim will not equally consistent with the Candida and coagulasestand or fall on the mere ipse dixit of a credentialed negative staph infections. “ ‘When the circumwitness .’ ” City of San Antonio v. Pollock, 284 stances are *537 equally consistent with either of S.W.3d 809, 818 (Tex.2009) (quoting Burrow v. two facts, neither fact may be inferred.’ ” City of Arce, 997 S.W.2d 229, 235 (Tex.1999)); see also Keller, 168 S.W.3d at 813 (quoting Tubelite, 819 Whirlpool Corp. v. Camacho, 298 S.W.3d 631, 637 S.W.2d at 805). Here, objective data—the cul- (Tex.2009) ( “Conclusory or speculative opinion tures—support the Candida and staph infections but FN7 testimony is not relevant evidence because it does not the supposed anaerobic infection. not tend to make the existence of material facts

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328 S.W.3d 526, 54 Tex. Sup. Ct. J. 272 (Cite as: 328 S.W.3d 526)

FN7. Admittedly, anaerobic bacteria are A. When you have foul smelling, it suggests hard to culture because they are averse to that the organism is an anaerobe. In other words, oxygen. one of those bacteria that didn't need oxygen in order to grow that, for example, Flagyl would [14][15] Based on the record evidence, an an- treat.

aerobic infection cannot be proved or disproved. It is equally plausible that Casas had such an infection Q. Okay. Does that give you clinical evidence or that she did not. Dr. Daller opined that she did, that had she been continued on Maxipime and but he did not explain why that opinion was superi- Flagyl that they would have had some effect with or to the opposite view. Such evidence raises no regards to the condition as we see it on the 24th? more than a possibility of causation, which is insufficient . As we said in Bowles v. Bourdon, “ ‘[t]he A. Well, like I said, most anaerobes are sensitproof must establish causal connection beyond the ive or susceptible to Flagyl. And she had previpoint of conjecture. It must show more than a pos- ously been on Flagyl and at this time she is not. sibility. Verdicts must rest upon reasonable cer- So I would have expected that that would be an tainty of proof. Where the proof discloses that a appropriate antibiotic that would have covered given result may have occurred by reason of more the organism that's causing that foul smell. than one proximate cause, and the jury can do no Dr. Berkowitz, the Hospital's expert, offered more than guess or speculate as to which was, in several other explanations for the smell, including fact, the efficient cause, the submission of such necrotic tissue, dead cancer tissue, and the Candida choice to the jury has been consistently condemned FN8 infection. As *538 noted, Casas's son noticed by this court and by other courts.’ ” 219 S.W.2d at the smell after the incision was opened to drain the 785 (quoting Ramberg v. Morgan, 209 Iowa 474, abscess, which Dr. Daller admitted was likely 218 N.W. 492, 498–99 (1928)).

caused by Candida.

The Casases argue that the foul smell, which is FN8. Dr. Berkowitz testified:

consistent with an anaerobic infection, is strong evidence of such an infection. Looking at the pa- I think that there are a number of things tient notes for July 24, Dr. Daller commented on that can cause things smelling bad bethe smell: sides just infection. Tissue that dies doesn't smell good. There's bacteria and A. The text says something about drainage to products released by the dead tissue that the abdomen with moderate amount of drainage.

don't smell good.

And it says that it is foul smelling.

And we know based on the pathology re-

....

port of the cancer that they took out of Q. The [previous notes] that I remember that her abdomen, that this had grown we have gone over didn't say anything about foul enough that it was dying. In other words, smelling? it was probably outgrowing it's [sic]

blood supply and was starting to die.

A. That's correct. They were just described as I That in and of itself can smell bad. Then recall as being purulent and looking like puss you have a wound that is infected; al- [sic]. though Candida itself does not typically smell bad, not like something dead. It Q. What does that mean when it says “foul smells funky and people don't like the smelling”?

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way it smells. The wound itself when it prescriptions caused a painful infection. But the wasn't healing was probably having Casases shouldered that burden and must prove the some necrotic tissue, as well, or dead tis- causal link with reasonable certainty. In that quest, sue that is in the wound. I'm sure that the Casases offered the testimony of Dr. Daller, but smelled bad, as well. And they were nev- he did not explain why an undetected, anaerobic iner able to completely get rid of all that fection is medically more probable than one based dead cancer tissue that was in her abdo- on the known infections and the dying tissue, leavmen . ing the jury to guess if the lapsed prescriptions caused additional pain and suffering. Without pro-

I think there's a number of reasons why bative medical testimony that the lapse caused—by she would have had a bad smell, none of means of an infection treatable by Maxipime and which can be explained by four or five Flagyl—more pain than the cancer, the surgery, and days of not getting Flagyl [or] the other infections already inflicted, there is no Maxipime. legally sufficient evidence of causation. Dr. Daller did not provide that causal link; accordingly, we [16][17] Here again, there are competing exhold that his testimony is legally insufficient to planations for the smell, which amounts to no more support the jury's verdict. Because the Casases than circumstantial evidence of some kind of infecfailed to prove causation, we reverse the judgment tion or possibly dying tissue. Because there is no of the court of appeals and render judgment that the direct evidence of the infection and the circumstan-

Casases take nothing.

tial evidence is meager, we “must consider not just favorable but all the circumstantial evidence, and B. Adequacy of the Expert Report competing inferences as well.” City of Keller, 168 [18][19] In his petition, Dr. Jelinek raises a S.W.3d at 814. Courts should not usurp the jury's single issue: whether the trial court abused its disrole as fact finder, nor should they question the cretion by denying his motion for sanctions and disjury 's right to believe one witness over another. But missal because the Casases' expert report was defiwhen reviewing a verdict for sufficiency of the cient under former article 4590i § 13.01, the statute evidence, courts need not—indeed, must not—defer in effect at the time. See TEX.REV.CIV. STAT. art. to the jury's findings when those findings are not 4590i § 13.01. Article 4590i required the report to supported by credible evidence. When the evidence provide “a fair summary of the expert's opinions as compels the jury to guess if a vital fact exists, a re- of the date of the report regarding applicable standviewing court does not undermine the jury's role by ards of care, the manner in which the care rendered sustaining a no-evidence challenge. The evidence in by the physician or health care provider failed to this case—being consistent with an anaerobic infec- meet the standards, and the causal relationship tion that was treatable by Flagyl, a fungal infection between that *539 failure and the injury, harm, or that was not, or even with dying tissue, cancerous damages claimed.” Id. § 13.01(r)(6). “If a plaintiff or otherwise—did not provide the jury a reasoned timely files an expert report and the defendant basis from which to infer the presence of a negli- moves to dismiss because of the report's inadgence —induced infection. Because the jury could equacy, the trial court must grant the motion ‘ only not reasonably infer an infection caused by the if it appears to the court, after hearing, that the re- Hospital's negligence, we agree with the Hospital port does not represent a good faith effort to comthat no evidence supports the jury's verdict. ply with the definition of an expert report in Subsection (r)(6) of this section.’ ” Bowie Mem'l Hosp.

We understand the Casas family's predicament v. Wright, 79 S.W.3d 48, 51–52 (Tex.2002) (per and frustration at the Hospital's conduct, and we recuriam ) (quoting § 13.01(l )). Dismissal for failure cognize the difficulty of proving that the lapsed

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328 S.W.3d 526, 54 Tex. Sup. Ct. J. 272 (Cite as: 328 S.W.3d 526)

to serve an adequate expert report also carried man- prolonged hospital course and increased pain and datory sanctions, requiring an award to the defend- suffering being experienced by Ms. Casas.” Aside ant of his costs and attorney's fees against the from repeating essentially the same phrase twice plaintiff or the plaintiff's attorney. See Am. Trans- more, the report says nothing more regarding causitional Care Ctrs. of Tex., Inc. v. Palacios, 46 ation. The Casases argue this statement is sufficient S.W.3d 873, 877 (Tex.2001) (citing § 13.01(e)). to meet the good-faith requirement. We disagree.

[20][21] We have defined a “good-faith effort” An expert cannot simply opine that the breach as one that provides information sufficient to (1) caused the injury. Stated so briefly, the report fails “inform the defendant of the specific conduct the the second Palacios element—it does not give the plaintiff has called into question,” and (2) “provide trial court any reasonable basis for concluding that a basis for the trial court to conclude that the claims the lawsuit has merit. See 46 S.W.3d at 879. An exhave merit.” Wright, 79 S.W.3d at 52 (citing Pala- pert's conclusion that “in medical probability” one cios, 46 S.W.3d at 879). All information needed for event caused another differs little, without an exthis inquiry is found within the four corners of the planation tying the conclusion to the facts, from an expert report, which need not “marshal all the ipse dixit, which we have consistently criticized. plaintiff's proof” but must include the expert's opin- See Pollock, 284 S.W.3d at 818 (citing Burrow, 997 ion on each of the three main elements: standard of S.W.2d at 235); Earle, 998 S.W.2d at 890 (“An excare , breach, and causation. Id. Importantly for this pert's simple ipse dixit is insufficient to establish a case, the “report cannot merely state the expert's matter; rather, the expert must explain the basis of conclusions about these elements,” but “ ‘the expert his statements to link his conclusions to the facts.”). must explain the basis of his statements to link his Instead, the expert must go further and explain, to a conclusions to the facts.’ ” Id. (quoting Earle v. reasonable degree,*540 how and why the breach Ratliff, 998 S.W.2d 882, 890 (Tex.1999)). “A report caused the injury based on the facts presented. that merely states the expert's conclusions about the While we have said that no “magical words” need standard of care, breach, and causation” does not be used to meet the good-faith requirement, mere fulfill the two purposes of a good-faith effort. Pala- invocation of the phrase “medical probability” is cios, 46 S.W.3d at 879. likewise no guarantee that the report will be found adequate. See Wright, 79 S.W.3d at 53.

[22][23] We review the trial court's grant or denial of a motion for sanctions and dismissal un- Under these standards, the Casases' report is der the abuse-of-discretion standard. Palacios, 46 conclusory on causation. It offers no more than a S.W.3d at 877–78. A district court “abuses its dis- bare assertion that Dr. Jelinek's breach resulted in cretion if it acts in an arbitrary or unreasonable increased pain and suffering and a prolonged hosmanner without reference to any guiding rules or pital stay. Beyond that statement, the report offers principles.” Wright, 79 S.W.3d at 52 (citing Down- no explanation of how the breach caused the injury. er v. Aquamarine Operators, Inc., 701 S.W.2d 238, Again, the plaintiff need not marshal all of his 241–42 (Tex.1985)). proof in the report, but he must include sufficient detail to allow the trial court to determine if the Dr. Jelinek argues that the Casases' report is claim has merit. Because the Casases' report lacks deficient in two ways, failing (1) to state the applic- any explanation linking the expert's conclusion to able standard of care, and (2) to provide more than the relevant facts, we hold that the trial court abconclusory statements of causation. We focus on used its discretion by denying Dr. Jelinek's motion the latter. Dr. Daller's report concluded that Dr. and the court of appeals erred by affirming that rul- Jelinek's breach of the appropriate standard of care FN9 ing. See id. at 52. Accordingly, we remand the in “reasonable medical probability, resulted in a

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328 S.W.3d 526, 54 Tex. Sup. Ct. J. 272 (Cite as: 328 S.W.3d 526)

case to the trial court for an award of attorney's fees lief that was not sought); Fed. Sign v. Tex.

FN10 and costs under former article 4590i § S. Univ., 951 S.W.2d 401, 410 (Tex.1997) 13.01(e) against the Casases and their counsel. (noting that ordinarily, failure to brief an FN11 argument waives error on appeal); TEX.R.APP. P. 38.1(h).

FN9. In his dissent, CHIEF JUSTICE JEF- FERSON argues that an expert report need FN11. We briefly note that under former not meet the legal sufficiency requirements article 4590i a trial court's order denying a necessary to support a judgment and sug- motion to dismiss premised on an inadgests that we hold it must. We agree that equate expert report was not immediately an expert report need not “meet the same appealable, as it now is under Texas Civil requirements as the evidence offered in a Practice and Remedies Code §§ 51.014 and summary-judgment proceeding or at trial.” 74.351. Nor did we definitively say that Palacios, 46 S.W.3d at 879. But, as we mandamus review was appropriate for such stated earlier, the report must provide more orders until almost four years after the trial than conclusory statements concerning ap- court denied Dr. Jelinek's motion for displicable standards of care, breach of those missal and sanctions. See In re McAllen standards, and causation. See id. An expert Med. Ctr., Inc., 275 S.W.3d 458, 461–62 report must instead, within its four corners, (Tex.2008). Thus, we do not fault Dr. provide some explanation as to each of Jelinek for waiting until final judgment to these elements. TEX.REV.CIV. STAT. art. seek review of the trial court's order. See 4590i § 13.01(r)(6); Wright, 79 S.W.3d at Hernandez v. Ebrom, 289 S.W.3d 316, 318 52. The report here offered only a conclus- (Tex.2009) (“Generally, appeals may only ory statement concerning causation with be taken from final judgments....”). no explanation as to how the lapse in antibiotic treatment resulted in longer hospital- We mention this point because we have ization, increased pain and suffering, or ul- since cautioned that a defendtimately Casas's death. ant—having foregone the interlocutory appeal now available—risks losing the FN10. In her dissent, JUSTICE LEHR- right to appeal following final judgment MANN indicates that (1) she would re- if, after a trial on the merits, the jury mand the case to allow the Casases an op- finds the defendant liable. See id. at 321. portunity to show that their failure to Even if the present statute applied here, present an adequate report was not inten- this caution would not bar Dr. Jelinek's tional or the result of conscious indiffer- appeal because he was not a party at trience , and (2) Dr. Jelinek should not be en- al, having been nonsuited earlier. We titled to attorney's fees and costs if the will not bar a nonsuited defendant's ap- Casases can make this showing and submit peal after final judgment because the an adequate report. We note that the Cas- jury finds him liable at a former codeases did not request a remand of this fendant's trial. Such a defendant did not nature, nor brief the attorney's fees issue. call or cross-examine witnesses, present See State v. Brown, 262 S.W.3d 365, 370 evidence, or otherwise participate at trial (Tex.2008) (observing that “[a] party gen- and should not be bound by what haperally is not entitled to relief it does not pens there. seek” and refusing to sua sponte grant re-

*541 III. Conclusion

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328 S.W.3d 526, 54 Tex. Sup. Ct. J. 272 (Cite as: 328 S.W.3d 526)

For the foregoing reasons, we reverse the court scriptions expired, Casas's surgical incision began of appeals' judgment, render judgment that the Cas- to emit a putrid odor. She developed several infecases take nothing, and remand to the trial court for tions in addition to E. coli, exacerbating her pain an award of Dr. Jelinek's attorney's fees and costs and extending her stay in the hospital. Casas died consistent with this opinion. two months after she was discharged.

Chief Justice JEFFERSON filed an opinion, dis- Casas's estate sued the Hospital and two of the senting in part, in which Justice GREEN and treating doctors, Dr. Garcia–Cantu and Dr. Jelinek, Justice LEHRMANN joined. for negligently causing Mrs. Casas “grievous em- Justice LEHRMANN filed an opinion, dissenting in barrassment and humiliation, as well as excruciatpart . ing pain the remainder of her life which she would not have suffered to such degree if properly dia-

Chief Justice JEFFERSON, joined by Justice gnosed, treated and cared for....” The trial court GREEN and Justice LEHRMANN, dissenting in denied Dr. Jelinek's motion to dismiss the case part. against him. Nevertheless, the estate nonsuited both We must decide whether an expert report gave doctors more than a year before Casas's claim a “fair summary” of the expert's opinions regarding against the Hospital was tried to a jury. At that trial, standard of care, failure to meet the standard, and the jury found the hospital 90% negligent, and each the link between that failure and the patient's dam- doctor 5% negligent. The trial court rendered judgages . We must consider the expert's opinions “as of ment against the hospital, and the court's order nonthe date of the report.” TEX.REV.CIV. STAT. art. suiting Dr. Jelinek “with prejudice” merged into 4590i § 13.01(r)(6) (repealed 2003). To do so, we that final judgment. must disregard today's holding that, at trial, there was no evidence linking the discontinuation of anti- Dr. Jelinek and the hospital appealed the trial biotics to increased suffering by Casas. The expert court's judgment. The hospital complained that the report submitted in this case gave fair notice of a evidence was legally insufficient to support the vermeritorious claim—that the doctor failed to ensure dict. Dr. Jelinek complained that the trial court imthat his patient received antibiotics, thereby in- properly denied him attorney's fees, as the expert creasing her pain and suffering. I would affirm the report was not a good faith effort to comply with court of appeals' judgment with respect to the doc- statutory requirements. The court of appeals aftor . firmed, 2008 WL 2894889, *9–*10, 2008 Tex.App.

LEXIS 5647, *28–*29 (Tex.App.-Corpus Christi I. Background July 29, 2008), and the appellants below are now Eloisa Casas, a patient recently diagnosed with petitioners here. I fully join the *542 Court's rendicolon cancer, was admitted to Rio Grande Hospital tion of judgment for the hospital. I disagree with for abdominal pain. The cancer had perforated her the Court's holding as to the doctor. colon, the contents of which leaked into her abdominal cavity, causing an abscess. After the doctor II. Good faith effort; fair summary drained and surgically removed the abscess, he dis- Former article 4590i provided that “[a] court covered that Casas had an E. coli infection, for shall grant a motion challenging the adequacy of an which the doctor prescribed two antibiotics. Al- expert report only if it appears to the court, after though those prescriptions were supposed to have hearing, that the report does not represent a good been renewed five days later, they lapsed. Casas faith effort to comply with the definition of an excontends this mistake occurred because the doctor pert report in [the statute].” TEX.REV.CIV. STAT. failed to ensure that hospital staff complied with his art. 4590i § 13.01(l ). “That definition requires, as renewal order. During the four days after the pre- to each defendant, a fair summary of the expert's

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328 S.W.3d 526, 54 Tex. Sup. Ct. J. 272 (Cite as: 328 S.W.3d 526)

opinions about the applicable standard of care, the to recognize that the antibiotics were not being admanner in which the care failed to meet that stand- ministered as ordered.” Dr. Daller concludes that ard, and the causal relationship between that failure “[t]his breach in the standard of care ..., within and the claimed injury.” Am. Transitional Care reasonable medical probability, resulted in a pro- Ctrs. of Tex., Inc. v. Palacios, 46 S.W.3d 873, 878 longed hospital course and increased pain and suf- (Tex.2001) (citing TEX.REV.CIV. STAT. art. fering....” 4590i § 13.01(r)(6)). Because an expert report is filed long before discovery is complete, we cannot IV. Dr. Daller gave a “fair summary” of the rejudge it according to what subsequent discovery re- quired standard of care and how the allegedly veals or how the evidence develops at trial. The inadequate care fell below that standard. question is whether the report fairly summarizes the The Court concludes that Dr. Daller's report malpractice elements before the case is tested in a lacks the detail necessary to conclude that the esfull adversary process. For that reason, “to avoid tate's lawsuit has merit. But the cases it cites as dismissal, a plaintiff need not present evidence in support involve situations in which a hindsight the report as if it were actually litigating the merits. view is entirely appropriate. Earle v. Ratliff, for ex- The report can be informal in that the information ample, is a summary judgment case; it presents the in the report does not have to meet the same re- higher evidentiary standard that Palacios rejected quirements as the evidence offered in a summary- for expert reports. Earle v. Ratliff, 998 S.W.2d 882, judgment proceeding or at trial.” Id. at 879. 890 (Tex.1999) (“Summary judgment can be granted on the affidavit of an interested expert *543 The report must also give the defendant notice witness, ... but the affidavit must not be conclusof the conduct the plaintiff challenges, and the trial ory.... [R]ather, the expert must explain the basis of court must have a basis to determine whether the his statements to link his conclusions to the facts.”). claim has merit. Id. The dividing line between a Similarly, the standard employed in City of San sufficient and an inadequate report is impossible to Antonio v. Pollock, 284 S.W.3d 809, 817–18 draw precisely. We have said, therefore, that the (Tex.2009), also cited by the Court, is inapplicable determination must be made in the first instance by here, since it examined an expert report under the the trial court, and review of that decision asks not “no evidence” standard of review. See ––– S.W.3d how an appellate court would have resolved the is- at ––––. sue, but instead whether the trial court abused its discretion. See, e.g., Jernigan v. Langley, 195 In Palacios we held that an expert report that S.W.3d 91, 93 (Tex.2006); Walker v. Gutierrez, failed to articulate a standard of care or explain 111 S.W.3d 56, 63 (Tex.2003). how the defendant hospital breached that standard was not a good faith effort to comply with the stat-

III. Dr. Daller's report utory requirements. Palacios, 46 S.W.3d at 880.

Dr. Daller is a physician and an expert on intra- The expert in that case blamed the hospital for takabdominal abscesses and infection. His report states ing no action to prevent a patient from falling out of that a doctor treating a patient like Casas must en- his bed, even though the patient “had a habit of trysure that the antibiotics he prescribes are actually ing to undo his restraints.” Id. at 879–880. The readministered . Despite that standard, Dr. Daller port, as such, was not a fair summary of the evidstates that antibiotics prescribed for Ms. Casas were ence because it neglected to articulate what actions not administered from July 17 through July 23, the hospital should have taken that it did not. Id. at even though “[t]here [wa]s no order to discontinue 880. Thus, the trial court did not abuse its discrethe antibiotic therapy.” He concluded that Dr. tion by dismissing the plaintiff's claim for lack of a Jelinek breached the standard of care by his “failure good faith effort to summarize the expert's opin-

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328 S.W.3d 526, 54 Tex. Sup. Ct. J. 272 (Cite as: 328 S.W.3d 526)

ions. offered in a summary-judgment proceeding or at trial”; therefore, an expert report does not fail the Subsequently, in Bowie Memorial Hospital v. good faith effort test merely because it may not Wright, we held that the trial court did not abuse its later prove legally sufficient to support a judgment. discretion in concluding that an expert report failed Id. at 879. So, here, whether the Casas estate ultito comply with the statute, as the report did not mately amassed sufficient proof in an adversarial “establish how any act or omission of employees of trial is beside the point; the claim itself was far Bowie Memorial Hospital caused or contributed to from frivolous. See id. at 878 (noting that “one pur- [the patient's] injuries.” See Bowie Mem'l Hosp. v. pose of the expert-report requirement is to deter Wright, 79 S.W.3d 48, 51–53 (Tex.2002) (quoting frivolous *544 claims”). The law imposes a penalty the expert in that case as speculating, “I do believe for filing a frivolous suit. Only by today's decree that it is reasonable to believe that if the x-rays does it also punish a claimant for failing to win an would have been correctly read and the appropriate arguably meritorious case. Cf. TransAmerican Natmedical personnel acted upon those findings then ural Gas Corp. v. Powell, 811 S.W.2d 913, 918 [the plaintiff] would have had the possibility of a (1991) (holding that “sanctions cannot be used to better outcome.”). We observed that a report must adjudicate the merits of a party's claims or defenses satisfy Palacios's two-part test. Id. at 52. Because unless a party's hindrance of the ... process justifies the report “lack[ed] information linking the expert's a presumption that its claims or defenses lack merconclusion (that [the plaintiff] might have had a it.”). better outcome) to [the defendant's] alleged breach (that it did not correctly read and act upon the x- I agree with the Court that the Estate failed to rays), the trial court could have reasonably determ- prove causation at trial; I disagree that, as to Dr. ined that the report was conclusory.” Id. at 53. Jelinek, the expert report was not a good faith attempt to comply with the statute. I respectfully dis-

In each of those cases, the trial court could not sent in part from the Court's judgment.

have evaluated the claim's merit without speculating about actions the defendant could have taken to Justice LEHRMANN, dissenting in part. prevent injury. No such speculation is required I fully join Chief Justice Jefferson's dissent. I here. Dr. Daller states that had the antibiotics been write separately, however, to highlight the inconadministered from July 17 through July 23, Eloisa gruity inherent in the Court's decision to remand the Casas would have suffered less. Dr. Daller could case for an award of attorney's fees and costs under have stated that conclusion in greater detail, of former article 4590i § 13.01(e), given this case's course, but “[a] report need not marshal all the circumstances. See TEX.REV.CIV. STAT. art.

FN1 plaintiff's proof.” Palacios, 46 S.W.3d at 878. Dal- 4590i § 13.01(e) (repealed 2003) . The Court ler's report includes his opinions on (1) the applic- presumes that Dr. Michael Jelinek is entitled to atable standard of care (to maintain vigilance over a torney's fees because the expert report filed by FN2 patient's treatment), (2) the manner in which the Eloisa Casas's estate was, on appeal, determcare failed to meet that standard (failing to ensure ined to be insufficient. But, after a pre-trial hearing the treatment he ordered was actually admin- was held on the defendant's motion to dismiss the istered), and (3) the causal connection between the lawsuit, the trial court rejected Dr. Jelinek's contenfailure and the claimed injury (without the antibiot- tion that the report was inadequate; consequently, ics, the patient's pain and suffering increased and the Casases had no opportunity to rectify any defishe required additional hospitalization). ciencies as the statute and our precedent would have allowed.

A “good faith effort” does not require that the report “meet the same requirements as the evidence FN1. See Act of May 5, 1995, 74th Leg.,

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328 S.W.3d 526, 54 Tex. Sup. Ct. J. 272 (Cite as: 328 S.W.3d 526)

R.S., ch. 140, § 1, 1995 Tex. Gen. Laws Casases may have been in a better position *545 985, 986, amending the Medical Liability than they are now if the trial court had found that and Insurance Improvement Act of Texas, the report was inadequate; they might have had an Act of May 30, 1977, 65th Leg., R.S., ch. opportunity to eliminate any deficiencies. 817, 1977 Tex. Gen. Laws 2039, 2041, repealed by Act of June 2, 2003, 78th Leg., I agree fully with Chief Justice Jefferson that R.S., ch. 204, § 10.09, 2003 Tex. Gen. the report represents a good-faith effort to comply Laws 847, 884. For ease of reference, I with section 13.01. Even if it did not, however, I will refer to the relevant provisions as they would remand the case to allow the Casases an opwere identified in article 4590i. portunity to show that their failure to present an adequate report was not intentional or the result of FN2. I refer to the estate, which was rep- conscious indifference. See City of DeSoto v. White, resented by Casas's husband and son, as 288 S.W.3d 389, 401 (Tex.2009) (remanding in the “the Casases.” interest of justice sua sponte to allow police officer “to make an appellate election with full knowledge Section 13.01(e) of article 4590i provided for of his appellate rights and with knowledge of” the an order awarding attorney's fees and costs if a guidance provided in Court's opinion). In my view, health care claimant failed to supply an expert re- the Casases should not be assessed attorney's fees port within the time required under subsection and costs if they can make the showing section (d)—180 days. But the statute provided several av- 13.01(g) requires and then submit a report complyenues for health care claimants to obtain an exten- ing with the statute. For these reasons, as well as sion of the 180–day deadline, including section those expressed by Chief Justice Jefferson, I re- 13.01(g). That provision required the trial court to spectfully dissent in part. grant a thirty-day extension of the statutory deadline if a claimant's failure to provide an expert re- Tex.,2010. port was not intentional or the result of conscious Jelinek v. Casas indifference. And we have expressly held that “a 328 S.W.3d 526, 54 Tex. Sup. Ct. J. 272 party who files a timely but inadequate expert report may seek relief under the grace period provi- END OF DOCUMENT sions of section 13.01(g).” Walker v. Gutierrez, 111 S.W.3d 56, 62 (Tex.2003). Thus, health care claimants could receive an opportunity to rectify deficiencies in a report if they could show that they did not intentionally, or with conscious indifference , submit an inadequate report.

Here, the Casases never had the chance to request an opportunity to cure any deficiencies in their report because the trial court determined that the report adequately complied with section 13.01(d). In Gutierrez, we were guided by our recognition that it would be “perverse” to allow a claimant who filed no report a second chance to comply with the statute's expert report requirement, while “punishing those who attempt to comply with the statute but fail.” Id. In this case, perversely, the

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362 S.W.3d 740 (Cite as: 362 S.W.3d 740)

30 Appeal and Error 30XVI Review Court of Appeals of Texas, 30XVI(H) Discretion of Lower Court Houston (14th Dist.). 30k960 Rulings on Motions Relating to KINGWOOD PINES HOSPITAL, LLC, Horizon Pleadings Health Corporation, Psychiatric Solutions, Inc. and 30k960(1) k. In general. Most Cited Yolanda Bassett, Appellants, Cases v. A trial court's denial of a motion to dismiss in a R. GOMEZ, Individually and a/n/f of V.G., Ap- health care liability action under the expert report pellee. statute is reviewed for abuse of discretion.

V.T.C.A., Civil Practice & Remedies Code § No. 14–11–00050–CV.

74.351.

Nov. 22, 2011.

[2] Appeal and Error 30 971(2)

Background: Mother, individually and as next friend of her daughter, brought negligence, aiding 30 Appeal and Error and abetting assault, assisting or encouraging as- 30XVI Review sault and medical malpractice action against physi- 30XVI(H) Discretion of Lower Court cian, counselor and hospital, where daughter was 30k971 Examination of Witnesses being evaluated for a psychiatric condition follow- 30k971(2) k. Competency of witness. ing a history of sexual abuse, after daughter was Most Cited Cases molested by another patient. The 127th District A trial court's determination of whether a phys- Court, Harris County, R.K. Sandill, J., denied de- ician is qualified to opine in a health care liability fendants' motion to dismiss based on an inadequate case is reviewed for an abuse of discretion standexpert report. Defendants filed interlocutory appeal. ard. V.T.C.A., Civil Practice & Remedies Code § 74.351.

Holdings: The Court of Appeals, Martha Hill Jamison , J., held that: [3] Health 198H 804 (1) trial court did not abuse its discretion by finding that mother's expert was qualified to give an opin- 198H Health ion; but 198HV Malpractice, Negligence, or Breach of (2) expert report did not adequately set forth the Duty standards of care and how those standards were 198HV(G) Actions and Proceedings breached; 198Hk804 k. Affidavits of merit or merit- (3) expert report did not adequately describe the orious defense; expert affidavits. Most Cited Cases causal relationship between defendants' failure to A trial court in a health care liability case meet the standards of care and daughter's injury; should err on the side of granting an extension to and cure an expert report and must grant it if the defi- (4) doctrine of res ipsa loquitur did not apply. ciencies are curable. V.T.C.A., Civil Practice & Remedies Code § 74.351.

Reversed and remanded.

[4] Health 198H 804 West Headnotes 198H Health [1] Appeal and Error 30 960(1) 198HV Malpractice, Negligence, or Breach of

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362 S.W.3d 740 (Cite as: 362 S.W.3d 740)

Duty meet that standard; and (3) the causal relationship 198HV(G) Actions and Proceedings between that failure and the injury, harm, or dam-

198Hk804 k. Affidavits of merit or merit- ages claimed. V.T.C.A., Civil Practice & Remedies orious defense; expert affidavits. Most Cited Cases Code § 74.351.

When determining if a good faith effort has been made to comply with the expert report statute [7] Health 198H 804 in a health care liability case, a trial court is limited 198H Health to the four corners of the report and cannot consider 198HV Malpractice, Negligence, or Breach of extrinsic evidence. V.T.C.A., Civil Practice & Duty Remedies Code § 74.351.

198HV(G) Actions and Proceedings [5] Health 198H 804 198Hk804 k. Affidavits of merit or meritorious defense; expert affidavits. Most Cited Cases 198H Health An expert report in a health care liability case 198HV Malpractice, Negligence, or Breach of must incorporate sufficient information to inform Duty the defendant of the specific conduct the plaintiff 198HV(G) Actions and Proceedings has called into question and provide a basis for the 198Hk804 k. Affidavits of merit or merit- trial court to conclude the claims have merit.

orious defense; expert affidavits. Most Cited Cases V.T.C.A., Civil Practice & Remedies Code § 74.351.

Health 198H 817 [8] Health 198H 804 198H Health 198HV Malpractice, Negligence, or Breach of 198H Health Duty 198HV Malpractice, Negligence, or Breach of 198HV(G) Actions and Proceedings Duty 198Hk815 Evidence 198HV(G) Actions and Proceedings 198Hk817 k. Presumptions. Most 198Hk804 k. Affidavits of merit or merit-

Cited Cases orious defense; expert affidavits. Most Cited Cases In a health care liability case, qualifications An expert report in a health care liability case must appear in the expert report and cannot be in- does not comply with the expert report statute by ferred. V.T.C.A., Civil Practice & Remedies Code merely containing the expert's conclusions about § 74.351. the standard of care, breach and causation.

V.T.C.A., Civil Practice & Remedies Code § [6] Health 198H 804 74.351.

198H Health [9] Health 198H 804 198HV Malpractice, Negligence, or Breach of Duty 198H Health 198HV(G) Actions and Proceedings 198HV Malpractice, Negligence, or Breach of 198Hk804 k. Affidavits of merit or merit- Duty orious defense; expert affidavits. Most Cited Cases 198HV(G) Actions and Proceedings An expert report in a health care liability case 198Hk804 k. Affidavits of merit or meritmust provide a fair summary of the expert's opin- orious defense; expert affidavits. Most Cited Cases ions regarding: (1) the applicable standard of care; An expert in an export report in a health care (2) the manner in which the care provided failed to liability case must explain the basis for his state-

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362 S.W.3d 740 (Cite as: 362 S.W.3d 740)

ments and must link his conclusions to the facts. by finding that mother's expert was qualified to V.T.C.A., Civil Practice & Remedies Code § render an opinion on the standard of care; expert 74.351. had practiced psychiatry for almost 35 years, was a clinical professor in the Department of Psychiatry [10] Health 198H 804 of a university for almost 35 years, was board certified in child and adolescent psychiatry and general 198H Health psychiatry, maintained a private practice, had been 198HV Malpractice, Negligence, or Breach of the clinical director of a psychiatric hospital, and Duty examined child psychiatrists for certification by the 198HV(G) Actions and Proceedings American Board of Psychiatry and Neurology for 198Hk804 k. Affidavits of merit or meritover ten years. V.T.C.A., Civil Practice & Remedorious defense; expert affidavits. Most Cited Cases ies Code § 74.402.

A plaintiff need not present all the evidence necessary to litigate the merits of his case, in an ex- [13] Health 198H 804 port report for a health care liability case. V.T.C.A., Civil Practice & Remedies Code § 74.351. 198H Health 198HV Malpractice, Negligence, or Breach of [11] Health 198H 804 Duty 198HV(G) Actions and Proceedings 198H Health 198Hk804 k. Affidavits of merit or merit-

198HV Malpractice, Negligence, or Breach of orious defense; expert affidavits. Most Cited Cases Duty Expert report submitted by mother, in health 198HV(G) Actions and Proceedings care liability action that mother brought against 198Hk804 k. Affidavits of merit or meritphysician , counselor and hospital, which had been orious defense; expert affidavits. Most Cited Cases evaluating her daughter who had a history of sexual An expert report in a health care liability case molestation for a psychiatric condition, after her may be informal in that the information need not daughter was sexually abused by a patient, did not fulfill the same requirements as the evidence adequately set forth the applicable standards of care offered in a summary judgment proceeding or at triand how the standards were breached, as required al. V.T.C.A., Civil Practice & Remedies Code § by expert report statute; expert's articulation of the 74.351.

standards of care was conclusory in that expert did [12] Health 198H 804 not specify how providing a safe and secure environment could be accomplished, and expert's articu-

198H Health lation of how the standards were breached was sim-

198HV Malpractice, Negligence, or Breach of ilarly conclusory in that the expert did not provide Duty specific information about what the defendants 198HV(G) Actions and Proceedings should have done differently. V.T.C.A., Civil Prac-

198Hk804 k. Affidavits of merit or merit- tice & Remedies Code § 74.351.

orious defense; expert affidavits. Most Cited Cases Trial court did not abuse its discretion, in [14] Health 198H 618 health care liability action that mother brought 198H Health against physician, counselor and hospital, which 198HV Malpractice, Negligence, or Breach of had been evaluating her daughter who had a history Duty of sexual molestation for a psychiatric condition, 198HV(B) Duties and Liabilities in General after her daughter was sexually abused by a patient, 198Hk617 Standard of Care

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362 S.W.3d 740 (Cite as: 362 S.W.3d 740)

198Hk618 k. In general. Most Cited 198Hk804 k. Affidavits of merit or merit-

Cases orious defense; expert affidavits. Most Cited Cases Standard of care in a health care liability case When a plaintiff sues more than one defendant is defined by what an ordinarily prudent health care in a health care liability case, the expert report must provider or physician would have done under the set forth the standard of care for each defendant and same or similar circumstances. V.T.C.A., Civil explain the causal relationship between each de- Practice & Remedies Code § 74.351. fendant's individual acts and the injury. V.T.C.A., Civil Practice & Remedies Code § 74.351.

[15] Health 198H 804 [18] Health 198H 804 198H Health 198HV Malpractice, Negligence, or Breach of 198H Health Duty 198HV Malpractice, Negligence, or Breach of 198HV(G) Actions and Proceedings Duty 198Hk804 k. Affidavits of merit or merit- 198HV(G) Actions and Proceedings orious defense; expert affidavits. Most Cited Cases 198Hk804 k. Affidavits of merit or merit-

Identifying the standard of care in an expert re- orious defense; expert affidavits. Most Cited Cases port for a health care liability case is critical; While it is possible that a single standard of whether a defendant breached his or her duty to a care may apply to several defendants in a health patient cannot be determined absent specific in- care liability case, generic statements in an expert formation about what the defendant should have report that the same standard of care attaches to done differently. V.T.C.A., Civil Practice & Rem- each defendant without further explanation are conedies Code § 74.351. clusory. V.T.C.A., Civil Practice & Remedies Code § 74.351.

[16] Health 198H 804 [19] Evidence 157 555.4(3)

198H Health 198HV Malpractice, Negligence, or Breach of 157 Evidence Duty 157XII Opinion Evidence 198HV(G) Actions and Proceedings 157XII(D) Examination of Experts 198Hk804 k. Affidavits of merit or merit- 157k555 Basis of Opinion orious defense; expert affidavits. Most Cited Cases 157k555.4 Sources of Data While a fair summary required by the expert 157k555.4(3) k. Hearsay or evidreport statute in a health care liability case is ence otherwise incompetent. Most Cited Cases something less than a full statement of the applic- An expert may rely on a statement that otherable standard of care and how it was breached, even wise would not be admissible in evidence in formua fair summary must set out what care was expec- lating his opinions. ted, but not given. V.T.C.A., Civil Practice & Remedies Code § 74.351. [20] Health 198H 804

[17] Health 198H 804 198H Health 198HV Malpractice, Negligence, or Breach of 198H Health Duty 198HV Malpractice, Negligence, or Breach of 198HV(G) Actions and Proceedings Duty 198Hk804 k. Affidavits of merit or merit-

198HV(G) Actions and Proceedings orious defense; expert affidavits. Most Cited Cases

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362 S.W.3d 740 (Cite as: 362 S.W.3d 740)

Expert report submitted by mother, in health of accident or injury. Most Cited Cases care liability action that mother brought against physician, counselor and hospital, which had been Negligence 272 1614 evaluating her daughter who had a history of sexual 272 Negligence molestation for a psychiatric condition, after her 272XVIII Actions daughter was sexually abused by a patient, did not 272XVIII(C) Evidence adequately describe the causal relationship between 272XVIII(C)3 Res Ipsa Loquitur defendants' failure to meet the standards of care and 272k1611 Elements or Conditions of daughter's injury, as required by expert report stat-

Application ute; expert did not explain how and why the failures 272k1614 k. Control or manageto meet the standards of care resulted in daughter's ment of instrumentality. Most Cited Cases molestation. V.T.C.A., Civil Practice & Remedies Res ipsa loquitur applies to situations in which Code § 74.351.

two factors are present: (1) the character of the ac-

[21] Negligence 272 1610 cident is such that it would not ordinarily occur in the absence of negligence, and (2) the instrumental-

272 Negligence ity causing the injury is shown to have been under 272XVIII Actions the management and control of the defendant.

272XVIII(C) Evidence 272XVIII(C)3 Res Ipsa Loquitur [23] Health 198H 818 272k1610 k. In general. Most Cited 198H Health Cases 198HV Malpractice, Negligence, or Breach of Negligence 272 1620 Duty 198HV(G) Actions and Proceedings 272 Negligence 198Hk815 Evidence 272XVIII Actions 198Hk818 k. Res ipsa loquitur. Most 272XVIII(C) Evidence Cited Cases 272XVIII(C)3 Res Ipsa Loquitur Res ipsa loquitur applies in a health care liabil-

272k1618 Operation and Effect of ity case only when the nature of the alleged mal-

Doctrine practice and injuries are plainly within the common 272k1620 k. Creation of inference knowledge of laypersons, requiring no expert testior presumption. Most Cited Cases mony.

Res ipsa loquitur is not a cause of action separate from negligence; rather, it is a rule of evidence [24] Health 198H 818 by which the jury may infer negligence.

198H Health [22] Negligence 272 1613 198HV Malpractice, Negligence, or Breach of Duty 272 Negligence 198HV(G) Actions and Proceedings 272XVIII Actions 198Hk815 Evidence 272XVIII(C) Evidence 198Hk818 k. Res ipsa loquitur. Most 272XVIII(C)3 Res Ipsa Loquitur Cited Cases 272k1611 Elements or Conditions of The three recognized areas in which res ipsa Application loquitur applies to health care claims are negligence 272k1613 k. Nature and character in the use of mechanical instruments, operating on

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362 S.W.3d 740 (Cite as: 362 S.W.3d 740)

the wrong body part, and leaving surgical instru- found the report deficient, and trial court had not ments or sponges inside the body. V.T.C.A., Civil ruled on the request for an extension. V.T.C.A., Practice & Remedies Code § 74.201. Civil Practice & Remedies Code § 74.351.

[25] Health 198H 818 *743 Ryan Lee Clement, Houston, for appellants.

198H Health David K. Mestemaker, Norman Louis Straub, 198HV Malpractice, Negligence, or Breach of Jonathan Brian Zumwalt, Houston, for appellee.

Duty 198HV(G) Actions and Proceedings Panel consists of Justices FROST, SEYMORE, and 198Hk815 Evidence JAMISON.

198Hk818 k. Res ipsa loquitur. Most Cited Cases Doctrine of res ipsa loquitur was not applicable OPINION in health care liability case that mother brought MARTHA HILL JAMISON, Justice. against psychiatric hospital, physician and coun- This is a health care liability case governed by FN1 selor after daughter, who was being evaluated for a the Medical Liability Act. Appellants bring an psychiatric condition after a history of sexual mo- interlocutory appeal from the trial court's order lestation, was sexually abused by a patient; though denying appellants' motions to dismiss based on the mother's claims, that defendants placed daughter in asserted inadequacy of an expert report served by a room with a known sexual abuser, might fall appellee R. Gomez, individually and as next friend within the common knowledge of laypersons, res of her daughter V.G. We reverse the trial court's oripsa loquitur could only be applied in health care li- der denying the motions to dismiss and remand this ability cases involving the negligent use of mechan- cause to the trial court to consider whether a ical instruments, operating on the wrong body part, 30–day extension of the deadline for serving the reor leaving surgical instruments or sponges inside port to allow Gomez to address deficiencies is apthe body. V.T.C.A., Civil Practice & Remedies propriate. Code §§ 74.201, 74.351.

FN1. Tex. Civ. Prac. & Rem.Code §§ [26] Appeal and Error 30 1178(1) 74.001 –.507. All references to the Act are to these provisions.

30 Appeal and Error 30XVII Determination and Disposition of Cause Background 30XVII(D) Reversal V.G., a minor, was admitted into Kingwood 30k1178 Ordering New Trial, and Direct- Pines Hospital for evaluation of a psychiatric coning Further Proceedings in Lower Court dition relating to her past history of being raped and 30k1178(1) k. In general. Most Cited subjected to sexual molestation in two separate in-

Cases cidents. As alleged, while in the care of Kingwood Health care liability case that mother brought Pines Hospital, V.G. was molested by another fe-

FN2 against hospital, physician and counselor, after male patient. According to Gomez's expert, daughter was sexually abused by a patient, would Dr. Mark Blotcky, Gomez asserted in an affidavit be remanded for the trial court to consider mother's that hospital staff knew the other patient was agmotion for an extension to cure deficiencies in her gressive, had been sexually abused, and had sexuexpert report, when the Court of Appeals reversed ally molested others, but allowed the two patients the trial court and found that the report deficient; to share a room and, accordingly,*744 did not premother had requested an extension if the trial court vent the other patient from having physical access

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362 S.W.3d 740 (Cite as: 362 S.W.3d 740)

FN3 to V.G. port was inadequate because Blotcky (1) did not establish his qualifications to opine regarding the FN2. The other patient, also a minor, al- standards of care for the admission, treatment, and legedly got into bed with V.G., “made out care of patients in a psychiatric facility; (2) failed with her,” touched her private parts, left to articulate a fair summary of his opinions regardvisual marks (hickeys) on her, and ing the applicable standards of care, the manner in threatened to beat her up if she told any- which those standards were breached by appellants, one. and the causal relationship between any breach and the injury and damages claimed; and (3) attempted FN3. The affidavit is not in the record, but to apply a single standard of care to multiple health the expert reported prepared by Dr. Mark care providers. After considering appellants' chal-

Blotcky describes the affidavit and states lenges to the expert report and supplemental report that Blotcky relied on the affidavit in and hearing arguments of the parties, the trial court reaching his conclusions.

entered an order denying appellants' motions to dis-

Gomez filed suit on February 24, 2010, against miss.

FN4 appellants and others, alleging that they failed FN5. The supplemental report was served to provide a reasonably safe environment for V.G.

on June 24, 2010, the 120th day after and the other patient by allowing them to share a Gomez filed suit, so both reports were room. Gomez asserted claims against appellants for timely under the Act. See Tex. Civ. Prac.

negligence, aiding and abetting assault, assisting or & Rem.Code § 74.351(a).

encouraging assault, and medical malpractice. She seeks actual and special damages. FN6. Kingwood Pines Hospital, Horizon Health Corporation, and Psychiatric Solu-

FN4. Gomez sued Kingwood Pines Hospittions , Inc. jointly filed their objections and al, LLC; Horizon Health Corporation; Psymotion to dismiss, and Bassett filed her chiatric Solutions, Inc.; Psychiatric Soluobjections and motion to dismiss separtions , P.C.; Fernando Guillermo Torres, ately. All of appellants' objections were M.D. and Yolanda Bassett. Gomez alleged based on the same grounds.

that Kingwood Pines Hospital is owned by the other corporate defendants. Only King- Discussion wood Pines Hospital, Horizon Health Cor- In two issues, appellants contend the trial court poration, Psychiatric Solutions, Inc., and abused its discretion in denying appellants' motions Bassett filed this appeal. to dismiss because the expert and supplemental reports neither establish Blotcky's qualifications to On May 28, 2010, Gomez served an expert rerender an opinion regarding licensed professional port and curriculum vitae prepared by Dr. Mark counselors, nursing staff, and hospital personnel Blotcky, a board certified psychiatrist, in support of nor include a fair summary of Blotcky's opinions in her claims. After appellants objected to the adconnection with the statutory elements required by equacy of the report, Gomez served a supplemental FN5 section 74.351—the applicable standards of care, expert report. Appellants objected to the adthe manner in which the care rendered failed to equacy of the supplemental report on the same meet those standards, and the causal relationship grounds as their former objections and moved to between the failure and the injury, harm, or damdismiss the claims with prejudice pursuant to the FN6 ages claimed. See id. Gomez contends the reports Act. See Tex. Civ. Prac. & Rem.Code § meet the standards required by section 74.351, but 74.351(b). Appellants contended that the initial reeven if they do not, an expert report was not re-

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362 S.W.3d 740 (Cite as: 362 S.W.3d 740)

quired because the doctrine of res ipsa loquitur ap- ing if a good faith effort has been made, the trial plies. court is limited to the four corners of the report and cannot consider extrinsic evidence. See Jelinek, 328 *745 A. Standard of Review and Applicable Law S.W.3d at 539; Palacios, 46 S.W.3d at 878.

[1][2] The Act entitles a defendant to dismissal of a health care liability claim if he is not served [5][6][7][8][9][10][11] An expert must estabwith an expert report showing that the claim has lish that he is qualified to provide an acceptable remerit within 120 days of the date suit was filed. port. Tex. Civ. Prac. & Rem.Code § Tex. Civ. Prac. & Rem.Code § 74.351(b); Scoresby 74.351(r)(5)(B). Qualifications must appear in the v. Santillan, 346 S.W.3d 546, 549 (Tex.2011). The expert report and cannot be inferred. Baylor Coll. of trial court's refusal to dismiss may be immediately Med. v. Pokluda, 283 S.W.3d 110, 117 appealed. Tex. Civ. Prac. & Rem.Code § (Tex.App.-Houston [14th Dist.] 2009, no pet.). Ad- 51.014(a)(9); Scoresby, 346 S.W.3d at 549. We re- ditionally, an expert report must provide a fair sumview a trial court's denial of a motion to dismiss un- mary of the expert's opinions regarding (1) the apder section 74.351 for abuse of discretion. Jelinek plicable standard of care; (2) the manner in which v. Casas, 328 S.W.3d 526, 539 (Tex.2010); Am. the care provided failed to meet that standard; and Transitional Care Ctrs. of Tex., Inc. v. Palacios, 46 (3) the causal relationship between that failure and S.W.3d 873, 875, 878 (Tex.2001); Group v. Vi- the injury, harm, or damages claimed. See Tex. Civ. cento, 164 S.W.3d 724, 727 (Tex.App.-Houston Prac. & Rem.Code § 74.351(r)(6); Palacios, 46 [14th Dist.] 2005, pet. denied). Similarly, we re- S.W.3d at 879. In compliance with these standards, view a trial court's determination of whether a the expert report must incorporate sufficient inphysician is qualified to opine in a health care liab- formation to inform the defendant of the specific ility case under an abuse of discretion standard. conduct the plaintiff has called into question and Larson v. Downing, 197 S.W.3d 303, 304–05 provide a basis for the trial court to conclude the (Tex.2006) (per curiam); Mem'l Hermann Health- claims have merit. Patel v. Williams, 237 S.W.3d care Sys. v. Burrell, 230 S.W.3d 755, 757 901, 904 (Tex.App.-Houston [14th Dist.] 2007, no (Tex.App.-Houston [14th Dist.] 2007, no pet.). A pet.) (citing Palacios, 46 S.W.3d at 879). A report trial court abuses its discretion if it acts in an un- may not merely contain the expert's conclusions reasonable or arbitrary manner or without reference about these elements. Jelinek, 328 S.W.3d at 539; to any guiding rules or principles. Larson, 197 Palacios, 46 S.W.3d at 879. The expert must ex- S.W.3d at 304–05; see also Jelinek, 328 S.W.3d at plain the basis for his statements and must link his 539. conclusions to the facts. Jelinek, 328 S.W.3d at 539. However, a plaintiff need not present all the [3][4] The Act specifies requirements for an evidence necessary to litigate the merits of his case.

adequate report and mandates “an objective good Palacios, 46 S.W.3d at 879; Patel, 237 S.W.3d at faith effort to comply” with the requirements. Tex. 904. The report may be informal in that the inform- Civ. Prac. & Rem.Code § 74.351(l ), (r)(6); ation need not *746 fulfill the same requirements as Scoresby, 346 S.W.3d at 549. It also authorizes a the evidence offered in a summary judgment protrial court to give a plaintiff who meets the 120–day ceeding or at trial. Palacios, 46 S.W.3d at 879; Padeadline an additional 30 days to cure any deficien- tel, 237 S.W.3d at 904. cies in the report. Tex. Civ. Prac. & Rem.Code § 74.351(c); Scoresby, 346 S.W.3d at 549. The trial B. Dr. Blotcky's Qualifications court should err on the side of granting the exten- Within their second issue, appellants argue that sion and must grant it if the deficiencies are cur- the expert and supplemental reports do not establish able. Scoresby, 346 S.W.3d at 549. When determin- that Blotcky was qualified to render an opinion re-

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362 S.W.3d 740 (Cite as: 362 S.W.3d 740)

FN7 garding a licensed professional counselor or Id. § 74.402(a). To determine whether an exnursing staff and hospital personnel. pert is “qualified on the basis of training or experience ,” a court must consider whether the expert:

FN7. Bassett is a licensed professional (1) is certified by a licensing agency of one or counselor. more states of the United States or a national professional certifying agency, or has other substan-

To be qualified to provide opinion testimony tial training or experience, in the area of health regarding whether a health care provider departed care relevant to the claim; and from the accepted standard of health care, an expert must satisfy section 74.402. See Tex. Civ. Prac. & (2) is actively practicing health care in rendering Rem.Code § 74.351(r)(5)(B). Section 74.402 lists health care services relevant to the claim. three specific qualifications an expert witness must possess to provide opinion testimony on how a Id. § 74.402(c). health care provider departed from accepted standards of health care. The expert must: [12] Blotcky has been a licensed physician for 40 years and has practiced psychiatry for almost 35 (1) [be] practicing health care in a field of prac- years. He also has been a clinical professor in the tice that involves the same type of care or treat- Department of Psychiatry of The University of ment as that delivered by the defendant health Texas Southwestern Medical Center at Dallas for care provider, if the defendant health care pro- almost 35 years. He is board certified in child and vider is an individual, at the time the testimony is adolescent psychiatry and general psychiatry. When given or was practicing that type of health care at the expert report was served, he maintained a the time the claim arose; private practice, and approximately 66% of his pa-

FN8 tients were children and adolescents. He previ-

(2) [have] knowledge of accepted standards of ously served on the managing board of directors of care for health care providers for the diagnosis, a psychiatric hospital, was director of the hospital's care, or treatment of the illness, injury, or condi- Child and Adolescent Psychiatry Residency Protion involved in the claim; and gram, and clinical director of the hospital. He examined *747 child psychiatrists for certification by (3) [be] qualified on the basis of training or exthe American Board of Psychiatry and Neurology perience to offer an expert opinion regarding for over ten years and served as Chair of the Comthose accepted standards of health care.

mittee for Certification of Child and Adolescent Id. § 74.402(b) (emphases added). Psychiatry for that board.

The above emphasized terms are specifically FN8. We assume this is still the case, but defined in subsections (a) and (c) of section 74.402. the record reflects only Blotcky's qualifica- “Practicing health care” includes: tions when the report was served.

(1) training health care providers in the same Based on Blotcky's education, training, and exfield as the defendant health care provider at an perience in treating patients similarly situated to accredited educational institution; or V.G.—an adolescent who was seeking treatment for her psychiatric conditions—and in working in a (2) serving as a consulting health care provider hospital setting, the trial court acted within its disand being licensed, certified, or registered in the cretion in concluding that Blotcky is qualified to same field as the defendant health care provider. render an opinion on the standard of care at issue in this case. See Pokluda, 283 S.W.3d at 120. Simil-

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362 S.W.3d 740 (Cite as: 362 S.W.3d 740)

arly, Blotcky's hospital experience qualifies him to explain the basis of his statements to link his conopine on the standards of care required for nursing clusions to the facts.”); Davis v. Spring Branch staff and hospital personnel. See Tex. Civ. Prac. & Med. Ctr., 171 S.W.3d 400, 406 Rem.Code § 74.402(c)(2); see also Pokluda, 283 (Tex.App.-Houston [14th Dist.] 2005, no pet.) S.W.3d at 118–19 (“The test is whether the report (“[T]he expert report has to set out, in nonconclusand curriculum vitae establish the witness's know- ory language, the expert's opinion about [the] three ledge, skill, experience, training, or education re- [statutorily required] elements of the claim.”). garding the specific issue before the court that would qualify the expert to give an opinion on that [14][15][16][17][18] Standard of care is particular subject.”). defined by what an ordinarily prudent health care provider or physician would have done under the We hold that the trial court acted within its dis- same or similar circumstances. Palacios, 46 S.W.3d cretion by denying appellants' motions to dismiss as at 880; Strom v. Mem'l Hermann Hosp. Sys., 110 to Blotcky's qualifications, and we overrule that S.W.3d 216, 222 (Tex.App.-Houston [1st Dist.] portion of appellants' second issue attacking the ex- 2003, pet. denied). Identifying the standard of care pert and supplemental reports on that basis. is critical: whether a defendant breached his or her duty to a patient cannot be determined absent spe-

C. Standard of Care and Breach cific information about what the defendant should [13] In both issues, appellants contend that the have done differently. Palacios, 46 S.W.3d at 880.

expert and supplemental reports do not adequately While a “fair summary” is something less than a address each element required by subsection full statement of the applicable standard of care and 74.351(r)(6) (standards of care, breach, causation how it was *748 breached, even a fair summary and damages) because the reports are conclusory as must set out what care was expected, but not given. to each element and do not represent an objective Id. When a plaintiff sues more than one defendant, good faith effort to comply with the statutory defin- the expert report must set forth the standard of care ition of an expert report. We first address whether for each defendant and explain the causal relationthe reports set forth the applicable standards of care ship between each defendant's individual acts and and how appellants breached these standards. We the injury. CHCA Mainland L.P. v. Burkhalter, 227 conclude that they do not. S.W.3d 221, 227 (Tex.App.-Houston [1st Dist.]

2007, no pet.). While it is possible that a single As set forth above, the two-fold purpose of an standard of care may apply to several defendants, expert report under section 74.351 is to inform the generic statements that the same standard of care defendants of the specific conduct the plaintiff has attaches to each defendant without further explanacalled into question and to provide the trial court tion are conclusory. See Gray v. CHCA Bayshore with a basis to determine whether or not the L.P., 189 S.W.3d 855, 859 (Tex.App.-Houston [1st plaintiff's claims have merit. Kelly v. Rendon, 255 Dist.] 2006, no pet.); see also Tenet Hosps. Ltd. v.

S.W.3d 665, 679 (Tex.App.-Houston [14th Dist.]

Love, 347 S.W.3d 743, 753 (Tex.App.-El Paso 2008, no pet.). A report that merely states the ex-

2011, no pet.) (“If the standard of care is the same pert's conclusions about the standard of care, for each defendant, then the report must state so.”).

breach, and causation does not fulfill these two purposes . Palacios, 46 S.W.3d at 879. Rather, the ex- [19] Blotcky's expert report addresses standpert must explain the basis of his statements to link ards of care and breach as follows: his conclusions to the facts. Jelinek, 328 S.W.3d at 539; see also Earle v. Ratliff, 998 S.W.2d 882, 890 • Kingwood Pines Hospital was required to (Tex.1999) (“An expert's simple ipse dixit is insuf- “supervise[ ] closely and house [ ] safely” any ficient to establish a matter; rather, the expert must “aggressive [or] sexually aggressive 14 year old

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362 S.W.3d 740 (Cite as: 362 S.W.3d 740)

girl with a history of being both sexually moles- issues as follows: ted and perpetrating sexual molestation herself so FN9 • While they “may each have different standards she could not harm another patient” and provide treatment of patients such as V.G. “in a of care in some areas,” Kingwood Pines Hospital, safe environment.” The hospital staff “breached Torres, and Bassett “share the most rudimentary both these standards of care—effective, careful responsibility for the safety and security of their supervision of a predator and careful, effective patients ... in whatever therapeutic milieu their protection of a molestation victim.” patient is being treated. The safety and security of any patient is always a most basic element in the standard of care.” The “treating team” must FN9. We note that Blotcky bases his opin- “provide additional supervision” to patients with ion on Gomez's affidavit stating that the histories “of hurting themselves and being vulpatient who allegedly molested V.G. “was nerable to being hurt by others.” Kingwood Pines known by the hospital staff to be aggress- Hospital, Torres, and Bassett breached this standive , to have been sexually abused and to be ard of care, as “[V.G.] was not afforded the most a sexual molester.” We assume without de- basic supervision under their care.” ciding the accuracy of this allegation because we are confined to the four corners • Kingwood Pines Hospital must not “allow any of the expert report in our consideration of harm to occur to any of its patients.” The standits adequacy. See Palacios, 46 S.W.3d at ard of care for the hospital “is to supervise the 878. While an expert may rely on a state- behavior*749 of each and every patient.” “Based ment that otherwise would not be admiss- on the facts contained in the medical records,” ible in evidence in formulating his opin- the hospital breached its standard of care by failions , see Gannon v. Wyche, 321 S.W.3d ing to provide “a safe and secure environment” 881, 890–91 (Tex.App.-Houston [14th and “allowing” V.G. “to be molested by another Dist.] 2010, pet. denied), it is unclear how patient.” Gomez obtained this information. Cf. id. at 892 (“[A]ll that is required is that [the] ex- • Bassett was required to “do anything necessary” pert report informs the defendants of the to “insure that any patient she treats in [the] hosspecific conduct the plaintiffs have called pital ... has been admitted to a safe and secure into question and provides a basis for the milieu” by “be[ing] aware of the treatment mitrial court to conclude that the claims have lieu, patient population, and the structure and merit.”). safety measures” in place. She breached the standard of care by failing to “insur[e] her pa-

FN10 • Dr. Torres and Bassett were required “to tient's basic safety using any number of measures ensure that there were appropriately trained and available.” adequate staffing and milieu structure” so that a “young” patient “would not be sexually moles- Appellants complain that Blotcky's articulation ted.” They breached “their duties to [V.G.]” by of the applicable standards of care is deficient in failing to do so. two regards, first, that Blotcky improperly applies a single standard of care to multiple health care pro-

FN10. As set forth above, Torres is a de- viders and second, that his articulation of the standfendant in the underlying case, but not an ard is conclusory. appellant.

Single Standard of Care Applied to Multiple The supplemental report further addresses these Health Care Providers. In the expert report,

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Blotcky applies a standard of care to Kingwood supervision of patients, and the prevention of harm Pines Hospital separate from the standard he ap- to patients, the reports do not indicate what an orplies to Bassett and Torres. He states that the hos- dinarily prudent health care provider would do unpital was required to supervise known sexually ag- der the same or similar circumstances. See Palagressive patients and protect molestation victims cios, 46 S.W.3d at 880. They merely include from aggressive patients. By contrast, he applies a Blotcky's conclusion that appellants did not provide single standard of care to Torres and Bassett—to a safe and secure environment for V.G., but do not insure that the hospital had properly trained and ad- specify how this should have been accomplished. equate staffing so that a patient would not be mo- They are thus deficient in this regard. See id. lested. In the supplemental report, Blotcky clarifies that, although “they may have different standards of *750 Breach of the Standard of Care. care in some areas,” the hospital, Torres, and Bas- Blotcky's statements regarding breach of the standsett all shared the same responsibility for the safety ard of care, such as Bassett's “failing to ensure that and security of their patients. He further articulates there were appropriately trained and adequate staffthe standard as to each party. The hospital was re- ing and milieu structure such that a young girl quired to supervise every patient. Torres was re- (about whom they were forewarned was vulnerable) quired to “admit patients only to ... facilit[ies] that would not be sexually molested” and “breach[ing] provide[ ] a safe and secure environment,” “work the standard of care by not insuring her patient's with the treatment team to understand his patient's safety using any of the number of measures availtreatment and other needs,” “consult with ... staff to able ” and appellants' failing to “provide additional insure ... his orders are understood and followed” supervision” and “not afford[ing] [V.G.] ... the most and “know the inpatient program and how it imple- basic supervision ” are similarly conclusory. ments a safe structure for patients who have been (Emphases added.) Whether a defendant breached either victims or perpetrators of sexual assault.” the standard of care cannot be determined without Similarly, Bassett was required to insure her pa- “specific information about what the defendant tients are being treated in a safe and secure environ- should have done differently.” Id. For example, the ment by being aware of the environment, patient reports do not provide information about how Baspopulation , and safety measures taken by the hos- sett was to insure that hospital staff were appropripital . ately trained and adequately staffed or what “measures” were available to her to insure her pa-

We conclude that Blotcky articulates a standard tient's safety. Nor do the reports indicate what kind of care for each appellant, although conclusorily, as of supervision by the hospital or Bassett was necesset forth below. In the supplemental report, he ad- sary or “basic” to provide a secure environment for FN11 equately explains why the standards of care overlap V.G. Blotcky, moreover, states that the hosas to the parties, which cures any deficiencies with pital breached its standard of care “[b]ased on the regard to his applying the same standard to Torres facts contained in the medical records,” but does and Bassett in the expert report. See Tenet, 347 not indicate on what “facts” he relies to reach that S.W.3d at 753. We thus find without merit appel- conclusion. lants' argument that Blotcky improperly applies the same standard of care to multiple health care pro- FN11. Gomez argues that this case is akin viders. to Russ v. Titus Hospital District, 128 S.W.3d 332 (Tex.App.-Texarkana 2004, Conclusory Articulation of Standard of Care. pet. denied), which held that an expert re-

Other than containing conclusory statements re- port was sufficient relating to a claim filed garding the provision of a secure environment, the by a mentally ill patient who was allowed

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362 S.W.3d 740 (Cite as: 362 S.W.3d 740)

access to an unsecured window out of (holding reports that merely state expert's concluwhich she fell. Id. at 344. But the expert sions about causation are deficient). report in that case specifically outlined that the standard of care required a suicidal pa- E. Res Ipsa Loquitur tient not to be placed in a room with un- Gomez also contends she was not required to locked windows and what steps the hospit- serve expert reports because the *751 negligence al, doctors, and nurses should have taken alleged in this case rises to the level of res ipsa to secure the windows, id. at 342, whereas loquitur. the reports in this case merely state that [21][22][23] Res ipsa loquitur is not a cause of V.G. should have been placed in a secure action separate from negligence; rather, it is a rule environment where patients were superof evidence by which the jury may infer negligence.

vised, without specifying how this should Losier v. Ravi, 362 S.W.3d 639, 642–43 have been accomplished.

(Tex.App.-Houston [14th Dist.] 2009, no pet.). It We conclude that Blotcky's reports are defi- applies to situations in which two factors are cient because they do not adequately describe ap- present: (1) the character of the accident is such plicable standards of care or breaches of those that it would not ordinarily occur in the absence of standards by each appellant. negligence, and (2) the instrumentality causing the injury is shown to have been under the management D. Causation and control of the defendant. Id. Further, the doc-

[20] Conclusory statements also plague trine applies only when the nature of the alleged Blotcky's efforts to satisfy the statutory element of malpractice and injuries are plainly within the comcausation . In the expert report, he simply states, “In mon knowledge of laypersons, requiring no expert medical probability, V.G. would be expected to suf- testimony. Id. fer significant psychological damage especially from sexual molestation occurring to her in a treat- [24] The legislature limited the applicability of ment setting. The proximate cause of this was the res ipsa loquitur in health care claims only to those hospital's failure as well as that of ... Ms. Bassett to instances in which the doctrine had been applied by meet the standard of care.” Likewise, he states in Texas appellate courts as of August 29, 1977. See the supplemental report that appellants' breaches of Tex. Civ. Prac. & Rem.Code § 74.201. The three the standards of care caused V.G.'s damages and recognized areas in which res ipsa loquitur applies “[h]ad [V.G.] and the other patients been properly to health care claims are negligence in the use of supervised, [V.G.] would not have been assaulted.” mechanical instruments, operating on the wrong body part, and leaving surgical instruments or These reports do not adequately describe the sponges inside the body. Losier, 362 S.W.3d at causal relationship between appellants' failures to 642–43 (citing Haddock v. Arnspiger, 793 S.W.2d meet the standards of care and V.G.'s injury: 948, 951 (Tex.1990)); Hector v. Christus Health Blotcky provided no explanation regarding how and Gulf Coast, 175 S.W.3d 832, 837 why these failures resulted in the alleged molesta- (Tex.App.-Houston [14th Dist.] 2005, pet. denied). tion. Rather, he provided bare assertions that appellants ' failure to “properly supervise” the patients [25] While the nature of Gomez's claims of resulted in V.G.'s damages. He did not attempt to malpractice and V.G.'s alleged injuries may be explain what constitutes proper supervision. Be- plainly within the common knowledge of laypercause the reports do not contain this required in- sons, Gomez would still have to show that her formation, they are deficient. See Jelinek, 328 claim fell within one of the pre–1977 categories of S.W.3d at 539–40; Palacios, 46 S.W.3d at 879 cases in order for res ipsa loquitur to apply. See Lo-

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sier, 362 S.W.3d at 642–43; Hector, 175 S.W.3d at motions to dismiss filed by appellants and remand 837. Because it does not, we find without merit this cause to the trial court to consider whether a Gomez's argument that she was not required to 30–day extension to allow Gomez to address the serve an expert report. deficiencies in the reports is appropriate.

We hold that the trial court abused its discre- Tex.App.–Houston [14 Dist.],2011.

tion by denying the motions to dismiss because Kingwood Pines Hosp., LLC v. Gomez they do not adequately describe the elements re- 362 S.W.3d 740 quired by subsection 74.351(r)(6). We thus sustain that portion of appellants' issues attacking the ad- END OF DOCUMENT equacy of the expert and supplemental reports because they are deficient.

F. Opportunity to Cure [26] In their second issue, appellants assert that because of the reports' deficiencies, no “expert report ” has been timely served and this case should be dismissed. As discussed above, Gomez's reports are deficient. But even with these deficiencies, the trial court still has discretion to grant Gomez a thirty-day extension under section 74.351(c). See Tex. Civ. Prac. & Rem.Code § 74.351(c); Scoresby, 346 S.W.3d at 554. Gomez requested such an extension in the trial court, and the trial court has not ruled on this request. The appellants have not shown that Gomez is not entitled to a ruling on her request for a thirty-day extension under section FN12 74.351(c). See Tex. Civ. Prac. & Rem.Code § 74.351(c); Scoresby, 346 S.W.3d at 554. Therefore, while we agree with appellants that the reports are deficient, we conclude that this case should be remanded for the trial court to consider granting a 30–day extension to cure the reports' deficiencies under *752section 74.351(c). Accordingly, we overrule appellants' second issue.

FN12. Even if appellants had argued that Gomez's reports amount to no report at all and even if it were appropriate to address that argument at this juncture, we would still conclude that the reports satisfy the minimal standard in Scoresby. See Scoresby, 346 S.W.3d at 557.

Conclusion We reverse the trial court's order denying the

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Not Reported in S.W.3d, 2010 WL 1241305 (Tex.App.-Hous. (1 Dist.)) (Cite as: 2010 WL 1241305 (Tex.App.-Hous. (1 Dist.)))

tion drug abuse, to learn of the patient's drug seek-

Only the Westlaw citation is currently available. ing behavior, to learn that the patient was married to the husband, or how the doctor should have SEE TX R RAP RULE 47.2 FOR DESIGNATION treated the patient for her complaints in those cir- AND SIGNING OF OPINIONS. cumstances. V.T.C.A., Civil Practice & Remedies Code § 74.351(l).

MEMORANDUM OPINION On Appeal from the 133rd District Court, Harris Court of Appeals of Texas, County, Texas, Trial Court Cause No.2008–10581.

Houston (1st Dist.).

T. Marc Calvert, for Steven Philip Kloeris and Steven Philip KLOERIS, M.D. and Rajeswari This-

Rajeswari Thisgara Rajan.

gara Rajan, M.D., Appellants v. Charles Alfred Sturm, for Charles and Jamie Stock-

Charles and Jamie STOCKDALE, Individually and dale, Individually and as Representatives of the Esas Representatives of the Estate of Charles William tate of Charles William Stockdale III, and James Stockdale III, and James and Toren Dukes, as Legal and Toren Dukes, as Legal Guardians Of Minor Guardians Of Minor Children, Allyson Lenora Children, Allyson Lenora Stockdale and Charles Stockdale and Charles William Stockdale, IV, Ap- William Stockdale, IV.

pellees.

No. 01–09–00711–CV. Panel consists of Justices JENNINGS, HANKS, April 1, 2010. and BLAND.

West KeySummaryHealth 198H 804 MEMORANDUM OPINION 198H Health JANE BLAND, Justice.

198HV Malpractice, Negligence, or Breach of *1 Charles (Chuck) and Jamie Stockdale, indi-

Duty vidually and as representatives of the estate of 198HV(G) Actions and Proceedings Charles Stockdale III, and James and Toren Dukes, 198Hk804 k. Affidavits of merit or merit- as legal guardians of Allyson and Charles Stockdale orious defense; expert affidavits. Most Cited Cases IV (collectively, the Stockdales), sued Dr. Steven Expert report regarding a witness for the estate Kloeris and Dr. Rajeswari Rajan for medical malof decedent did not represent an objective good- practice arising out of Charles's death from a prefaith effort to provide a fair summary of the stand- scription drug overdose. The trial court overruled ard of care applicable to a doctor who allegedly Dr. Kloeris and Dr. Rajan's objections to the sufficommitted malpractice. The report did not state ciency of the expert report and denied their motions what the standard of care specifically required the to dismiss the Stockdales' claims. See TEX. CIV. doctor to do to determine that her patient's husband, PRAC. & REM.CODE ANN. § 74.351(l ) (Vernon who was not her patient, was currently abusing pre- Supp.2009). In this interlocutory appeal, Dr. Kloerscription medication, and that the doctor should not is and Dr. Rajan contend that the trial court abused have prescribed those drugs to her patient who went its discretion by denying their motions to dismiss by a different last name in most of her medical re- because the expert report served by the Stockdales cords and who first presented to the doctor as an as- does not represent a good faith effort to comply sault victim. Report did not specify what the doctor with the statutory expert report requirements. See should have done to learn of the husband's prescrip- id. § 74.351(r)(6). We hold that the expert report

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Not Reported in S.W.3d, 2010 WL 1241305 (Tex.App.-Hous. (1 Dist.)) (Cite as: 2010 WL 1241305 (Tex.App.-Hous. (1 Dist.)))

provides a fair summary of the standard of care ap- scriptions from Dr. Kloeris and Dr. Rajan for hyplicable to Dr. Kloeris, how he breached that stand- drocodone, lorazepam, alprazolam, and Soma. On ard, and how his breach caused Charles Stockdale's December 16, 2005, one day after Charles's second death. We also hold that the expert report does not visit to Dr. Kloeris, he died of a prescription drug present a fair summary of the standard of care ap- overdose. The Harris County Medical Examiner lisplicable to Dr. Rajan and how she breached the ted Charles's official cause of death as “the toxic efstandard of care, and we therefore remand the case fects of Hydrocodone, Alprazolam, and Diazepam [ to the trial court to determine whether to grant the Valium].” Stockdales one thirty-day extension to cure the deficiencies of the report regarding Dr. Rajan's con- *2 Charles and Jamie Stockdale, Charles's parduct . ents, and James and Toren Dukes, the legal guardians of Charles's children, sued Dr. Kloeris and Dr.

Background Rajan for negligence, gross negligence, and wrong-

Dr. Kloeris and Dr. Rajan both practice as part ful death. Within 120 days of filing suit, the Stockof the Texas Gulf Coast Medical Group. On dales served an expert report by Dr. Hugh Poindex- November 29, 2005, Charles Stockdale first visited ter pursuant to Section 74.351 of the Civil Practice Dr. Kloeris, complaining of severe anxiety and pan- and Remedies Code. See TEX. CIV. PRAC. & ic attacks. Charles informed Dr. Kloeris that he was REM.CODE ANN. § 74.351(a) (Vernon currently taking 25 milligrams (mg) of atenolol Supp.2009). Dr. Poindexter stated that he is board once per day, vicoprofen, as needed, for headaches, certified by the American Board of Family Mediand 2 mg of alprazolam (Xanax) twice per day. Dr. cine, he has been in private practice since 1977, Kloeris diagnosed Charles with generalized anxiety first in Huntsville until 1989, and then at the Keldisorder , panic disorder, and migraines, and pre- sey–Sebold clinic in The Woodlands, where he has scribed ninety tablets of alprazolam (2 mg) and been the managing physician since 1991, and he twenty-eight tablets of hydrocodone (Vicodin, 7.5 has treated “many patients with the same or similar mg). Charles returned to Dr. Kloeris on December diagnosis as Mr. Stockdale[, and is] familiar with 15, 2005, sixteen days later, to receive prescription and [has] prescribed the same medications prerefills and treatment for a staph infection. On this scribed to Mr. Stockdale by Dr. Kloeris, and to his occasion, Dr. Kloeris prescribed an additional wife Kristen by Dr. Rajan.” Dr. Poindexter reninety tablets of alprazolam and sixty tablets of hy- viewed Charles's autopsy report, the Texas Gulf drocodone (10 mg). Coast Medical Group's medical records for both Charles and Kristen, pharmacy records from six Charles' wife, Kristen, had been a patient of the different pharmacies for both Charles and Kristen, a Gulf Coast Medical Group for at least the previous prescription summary report, an affidavit from year and a half. Her chart included a statement that, plaintiff Chuck Stockdale, and the plaintiffs' originon January 24, 2005, she “confided to the nurse [at al petition. Clear Lake Regional Medical Center] that she regularly visits emergency rooms complaining of differ- Dr. Poindexter described Charles's two visits to ent areas of pain in order to get Vicodin [hydro- Dr. Kloeris and stated that Dr. Kloeris prescribed a codone] prescriptions for her husband.” Most of total of 180 tablets of alprazolam and eighty-eight Kristen's medical records refer to her by her maiden tablets of hydrocodone in a sixteen-day time period. name, Arsement; however, the records do occasion- Regarding Kristen, Dr. Poindexter noted that her ally contain references to her as “Kristen Stock- medical records included a statement from her that dale” and also mention her husband, Charles Stock- she routinely visited emergency rooms to obtain hydale . During December 2005, Kristen received pre- drocodone for her husband, and although both Dr.

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Not Reported in S.W.3d, 2010 WL 1241305 (Tex.App.-Hous. (1 Dist.)) (Cite as: 2010 WL 1241305 (Tex.App.-Hous. (1 Dist.)))

Kloeris and Dr. Rajan were aware or should have use.” Dr. Rajan should have recognized Charles's been aware of this statement in their own records, abuse and should not have prescribed hydrocodone they still prescribed excessive amounts of medica- and alprazolam to Kristen. According to Dr. Pointion to Kristen during November and December of dexter, “[h]ad Dr. Rajan not prescribed these drugs 2005, including hydrocodone and alprazolam. Dr. to Kristen, then, to a reasonable degree of medical Poindexter opined that, based on all the records he certainty, Mr. Stockdale would not have died.” reviewed, “Mr. Stockdale died as a result of the toxic effects of hydrocodone, alprazolam and Within twenty-one days of the filing of the exdiazepam prescribed by Dr. Kloeris and Dr. Rajan.” pert report, Dr. Kloeris and Dr. Rajan both objected to the sufficiency of the report, arguing that Dr.

According to Dr. Poindexter, “[b]ased on the Poindexter made conclusory assumptions, failed to frequent and excessive prescriptions for hydro- establish a causal link between the doctors' conduct codone and alprazolam to Kristen and Charles” and and Charles's death, and did not specify the stand- Kristen's admission that she procures prescription ard of care applicable to Dr. Rajan and how she medication for her husband, Dr. Kloeris “knew or breached that standard. The doctors then moved to should have known that Charles Stockdale was ab- dismiss the case with prejudice due to the insuffiusing prescription drugs.” The standard of care ciency of the report. The trial court overruled the “required Dr. Kloeris to recognize this addiction doctors' objections to the report and denied their and treat it” by either referring Charles to a sub- motions to dismiss. Dr. Kloeris and Dr. Rajan then stance abuse facility or lowering the amounts of filed this interlocutory appeal. See TEX. CIV. drugs prescribed. Dr. Poindexter then generally de- PRAC. & REM.CODE ANN. § 51.014(a)(9) scribed the characteristics and effects of alprazolam (Vernon 2008) (allowing interlocutory appeal when and hydrocodone, mentioning that both medications trial court “denies all or part of the relief sought by were potentially dangerous and that “[t]he quantity a motion under Section 74.351(b)”). of pills prescribed in such a short period of time shows that caution was not used.” Specifically, Dr. Discussion Kloeris prescribed more than the recommended Standard of Review daily dose of alprazolam. Charles only visited the We review the trial court's decision on a secpractice twice; however, “he was prescribed an ex- tion 74.351 motion to dismiss for abuse of discrecessive amount of medication over a very short tion. Am. Transitional Care Ctrs. of Tex., Inc. v. time span.” Dr. Poindexter concluded by opining Palacios, 46 S.W.3d 873, 878 (Tex.2001). The trial that “[i]f Dr. Kloeris had not prescribed excessive court abuses its discretion if it acts in an arbitrary quantities and dosages of these drugs to Charles, or or unreasonable manner without reference to any if he had referred him for drug abuse treatment, guiding rules or principles. Walker v. Gutierrez, then, to a reasonable degree of medical certainty, 111 S.W.3d 56, 62 (Tex.2003). When we review Mr. Stockdale would not have died.” matters within the trial court's discretion, we may not substitute our own judgment for that of the trial *3 Regarding Dr. Rajan, Dr. Poindexter stated court. Bowie Mem'l Hosp. v. Wright, 79 S.W.3d 48, that, based on the “frequent and excessive prescrip- 52 (Tex.2002) (per curiam). The trial court does not tions for hydrocodone and alprazolam ” to Kristen abuse its discretion merely because it decides a disby both doctors, and Kristen's admission that she cretionary matter differently than we would in simobtained prescription drugs for her husband's use, ilar circumstances. Downer v. Aquamarine Operat- Dr. Rajan “knew or should have known that ors, Inc., 701 S.W.2d 238, 241–42 (Tex.1985). Charles was abusing these drugs and that Kristen was attempting to get them for her husband's ab- Sufficiency of Expert Reports Dr. Kloeris and Dr. Rajan contend that the trial

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Not Reported in S.W.3d, 2010 WL 1241305 (Tex.App.-Hous. (1 Dist.)) (Cite as: 2010 WL 1241305 (Tex.App.-Hous. (1 Dist.)))

court abused its discretion by denying their motions breach, and causation. See id. Instead, the expert to dismiss because Dr. Poindexter's report is vague, must give, for each defendant, a “fair summary of conclusory, and does not represent a good faith ef- the expert's opinions about the applicable standard fort to comply with the expert report requirements of care, the manner in which the care failed to meet of section 74.351(r)(6). When a plaintiff brings a that standard, and the causal relationship between healthcare liability claim, section 74.351 of the that failure and the claimed injury.” Id. The report Civil Practice and Remedies Code requires the must explain the basis of the expert's statements to plaintiff to serve each health care provider defend- link his conclusions to the facts. Wright, 79 S.W.3d ant with an expert report within 120 days after the at 52 (quoting Earle v. Ratliff, 998 S.W.2d 882, 890 original petition is filed. See TEX. CIV. PRAC. & (Tex.1999)). Although the report must include the REM.CODE ANN. § 74.351(a) (Vernon expert's opinion on each of the elements enumer- Supp.2009); Harris County Hosp. Dist. v. Garrett, ated in section 74.351(r)(6), the expert report does 232 S.W.3d 170, 176 (Tex.App.-Houston [1st Dist.] not have to marshal all of the plaintiff's proof. 2007, no pet.). Section 74.351(r)(6) defines an Palacios, 46 S.W.3d at 878. The plaintiff also does “expert report” as a “written report by an expert not have to present evidence in the report as if he that provides a fair summary of the expert's opin- were actually litigating the merits of the claim, and ions as of the date of the report regarding applic- thus the report can be informal and the information able standards of care, the manner in which the care does not have to meet the same requirements as rendered by the physician or health care provider evidence offered in a summary judgment proceedfailed to meet the standards, and the causal relation- ing or a trial. Id. at 879. ship between that failure and the injury, harm, or damages claimed.” TEX. CIV. PRAC. & A. Sufficiency of Report Regarding Dr. Kloeris's REM.CODE ANN. § 74.351(r)(6). A defendant Conduct must file and serve any objections to the sufficiency Dr. Kloeris contends that Dr. Poindexter's reof the report not later than the twenty-first day after port fails to articulate how Dr. Kloeris breached the the date the report was served, failing which all ob- standard of care. The expert report must state the jections are waived. Id. § 74.351(a). The trial court applicable standard of care as well as the manner in shall grant a defendant's motion to dismiss only if, which the health care provider failed to meet that after a hearing, it appears to the court that the ex- standard of care. TEX. CIV. PRAC. & REM.CODE pert report does not represent an objective good- ANN. § 74.351(r)(6). Whether a defendant faith effort to comply with the definition of an ex- breached the standard of care cannot be determined pert report. Id. § 74.351(l ). “absent specific information about what the defendant should have done differently.” Palacios, 46 *4 In determining whether the expert report S.W.3d at 880. The expert is not required to give a represents an “objective good-faith effort” to com- full statement of the standard of care and how it ply with the statute, we look only to the four was breached, but he must “set out what care was corners of the report. Palacios, 46 S.W.3d at 878. expected, but not given.” Id. With respect to Dr. The expert report must fulfill two purposes to meet Kloeris, Dr. Poindexter's report stated the followthe “good-faith effort” requirement: (1) The report ing: must inform the defendant of the specific conduct that the plaintiff calls into question; and (2) The re- Based on the frequent and excessive prescriptions port must provide a basis for the trial court to con- for hydrocodone and alprazolam to Kristen and clude that the claims have merit. See id. The report Charles by Dr. Kloeris and Dr. Rajan, and the addoes not fulfill these purposes if it merely states the mission by Kristen that she frequented doctors to expert's conclusions about the standard of care, get hydrocodone for her husband, Dr. Kloeris

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Not Reported in S.W.3d, 2010 WL 1241305 (Tex.App.-Hous. (1 Dist.)) (Cite as: 2010 WL 1241305 (Tex.App.-Hous. (1 Dist.)))

knew or should have known that Charles Stock- Dr. Kloeris further contends that Dr. Poindexdale was abusing prescription drugs. The medical ter's report makes conclusory assumptions and fails standard of care required Dr. Kloeris to recognize to establish a causal link between his conduct and this addiction and treat it, either by referring Charles's death. An expert report must include a Charles to an abuse facility, or prescribing smal- fair summary of the causal relationship between the ler quantities and doses of hydrocodone and al- defendant's failure to meet the appropriate standard prazolam solely to prevent complications from of care and the injury, harm, or damages claimed. the sudden withdrawal of these drugs.... The TEX. CIV. PRAC. & REM.CODE ANN. § 74 quantity of pills prescribed in such a short period .351(r)(6). An expert cannot merely state his conof time shows that caution was not used. The clusions or “provide insight” about the plaintiffs' amount of alprazolam prescribed exceeds the re- claims, but must instead “explain the basis of his commended daily dose. Mr. Stockdale had only statements to link his conclusions to the facts.” had two visits for medical care to their clinic. Wright, 79 S.W.3d at 52. Dr. Kloeris relies on However, he was prescribed an excessive amount Wright for the contention that Dr. Poindexter's conof medication over a very short time span.... If clusion is based on speculation and conjecture. Dr. Kloeris had not prescribed excessive quantit- After Wright was in a car accident, a physician's asies and dosages of these drugs to Charles, or if he sistant at the hospital x-rayed Wright's foot and had referred him for drug abuse treatment, then, knee and diagnosed her with a fractured knee, but to a reasonable degree of medical certainty, Mr. did not discover that Wright also fractured her foot. Stockdale would not have died. Id. at 50. Another physician discovered this injury approximately one month later, after surgeons *5 Dr. Poindexter specifically stated that the already operated on Wright's knee. Id. Wright standard of care required Dr. Kloeris to recognize needed two additional surgeries to correct her foot Charles' addiction to prescription medication and injury. Id. The expert report stated only that “if the treat it, by either referring him to a treatment facil- x-rays would have been correctly read and the apity or lowering the quantities of drugs prescribed to propriate medical personnel acted upon those findavoid sudden withdrawal. He also stated that Dr. ings then Wright would have had the possibility of Kloeris prescribed an “excessive amount of medica- a better outcome.” Id. at 52–53. The Texas Sution over a very short time span,” more than the re- preme Court upheld the trial court's dismissal of commended daily dose of alprazolam, and Dr. Klo- Wright's claim, holding that the “report simply eris did not refer Charles to a substance abuse facil- opines that [Wright] might have had ‘the possibility ity. “Magic words” are not necessary to provide a of a better outcome’ without explaining how [the fair summary of the standard of care, breach of that hospital's] conduct caused injury to [Wright].” Id. standard, and causation. See Wright, 79 S.W.3d at at 54. The expert report lacked information that 53. In determining whether the expert complied linked the conclusion—that Wright might have had with the statute, we consider the “substance of the a better outcome—to the breach-the hospital's failopinions , not the technical words used.” Moore v. ure to correctly read and act on the x-rays. Id. Sutherland, 107 S.W.3d 786, 790 (Tex.App.-Texarkana 2003, pet. denied). Dr. Poin- *6 Here, Dr. Poindexter specifically stated that dexter's report gives fair notice to Dr. Kloeris that the standard of care required Dr. Kloeris to recoghe breached the standard of care by prescribing ex- nize and treat Charles's prescription drug addiction, cessive amounts of hydrocodone and alprazolam in and that Dr. Kloeris breached the standard of care a short period of time and by failing to refer by not referring Charles to a substance abuse facil- Charles to a substance abuse facility. ity and by prescribing excessive amounts of hydrocodone and alprazolam in a very short period of

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Not Reported in S.W.3d, 2010 WL 1241305 (Tex.App.-Hous. (1 Dist.)) (Cite as: 2010 WL 1241305 (Tex.App.-Hous. (1 Dist.)))

time. Specifically, Dr. Kloeris prescribed a total of pet.) (mem.op.) (“Both Dr. Lutz and Dr. Korn state 180 tablets of alprazolam and eighty-eight tablets in their respective reports that they reviewed of hydrocodone in a sixteen-day period. Dr. Poin- Melody's medical records; thus, in determining dexter concluded by stating that, “[i]f Dr. Kloeris whether their records represent a fair summary, the had not prescribed excessive quantities and dosages records that they referred to are within our purof these drugs to Charles, or if he had referred him view.”). In deciding that a review of the medical refor drug abuse treatment, then, to a reasonable de- cords is permissible, the Beaumont Court observed gree of medical certainty, Mr. Stockdale would not that although courts cannot look outside an expert's have died.” In contrast to Wright's expert, who did report to supply statutorily required information, not explain how the hospital's failure to meet the the challenge to the report in Reddy addressed standard of care caused Wright's injury, Dr. Poin- “whether the opinions in the expert reports are supdexter sufficiently links his conclusion, that Charles ported by the medical records that the experts repwould not have died from a prescription drug over- resented they reviewed.” Id. The Beaumont Court dose, to Dr. Kloeris's alleged breach, his failure to affirmed the trial court's denial of the doctors' morefer Charles to a substance abuse facility and his tion to dismiss, stating that even when it considered excessive prescription of hydrocodone and al- the medical records, it could not “conclude that the prazolam. See Wright, 79 S.W.3d at 53. Dr. Poin- medical records necessarily preclude the opinions dexter's statement of causation “is not a conclusion that were reached by Dr. Lutz and Dr. Korn.” Id. or a statement of mere possibility, as in the Wright Similarly, the medical and pharmacy records relied case, but is a positive statement of fact.” Moore, upon by Dr. Poindexter do not preclude the opin- 107 S.W.3d at 791. We hold that the trial court ions that he reached. could have reasonably determined that Dr. Poindexter 's report gave a fair summary of how Dr. Kloeris *7 Dr. Kloeris notes that Dr. Poindexter's recaused Charles's death and thus the trial court did port does not mention prescriptions written by other not abuse its discretion in denying Dr. Kloeris's doctors or the effects of these drugs on Charles, nor motion to dismiss. does Dr. Poindexter indicate how he arrived at the conclusion that only Dr. Kloeris and Dr. Rajan's According to Dr. Kloeris, although Dr. Poin- prescriptions caused Charles's death. A review of dexter stated that he reviewed medical and phar- Charles and Kristen's pharmacy records demonmacy records, he “clearly ignores” the records' in- strates that from the beginning of October 2005 to dication that numerous other doctors prescribed Charles's death on December 16, 2005, the Stocksimilar medication to Charles and Kristen during dales filled prescriptions for fifteen different prethe same time period. In determining whether an scription drugs from twenty-one different doctors. expert report constitutes a “good-faith effort” to In the month preceding Charles's death, Charles recomply with the requirements of section ceived a total of 118 tablets of Hydrocodone: 30 (5 74.351(r)(6), we look only to the four corners of the mg) from a Dr. Mougouris on December 14, 28 (5 report. Palacios, 46 S.W.3d at 878. Dr. Kloeris mg) from Dr. Kloeris on November 29, and 60 (10 cites the Beaumont Court of Appeals' unpublished mg) from Dr. Kloeris on December 15. During this decision in Reddy v. Seale for the proposition that same time period, Kristen received a total of 125 we may look beyond the four corners of the expert tablets of Hydrocodone: 23 total from Doctors report when the health care provider can show that Totz, Kung, and Le on November 19, 27, and 28, the expert's opinion is based on an inaccurate or in- respectively; 21 from Dr. Rajan on December 2; 21 complete reading of medical records. See No. from Dr. Rajan on December 8; and 60 from Dr. 09–07–00372–CV, 2008 Tex.App. LEXIS 2000, at Kloeris on December 12. Dr. Kloeris also pre- *9 n. 1 (Tex.App.-Beaumont Mar. 20, 2008, no scribed 90 tablets of Alprazolam to Charles on

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Not Reported in S.W.3d, 2010 WL 1241305 (Tex.App.-Hous. (1 Dist.)) (Cite as: 2010 WL 1241305 (Tex.App.-Hous. (1 Dist.)))

November 29, 60 tablets to Kristen on December of the standard of care applicable to Dr. Kloeris, 12, and 90 more to Charles on December 15. how Dr. Kloeris breached that standard, and how Charles died on December 16 from the “toxic ef- Dr. Kloeris's breach caused Charles' death, not fects of hydrocodone, alprazolam and diazepam.” whether Dr. Poindexter is ultimately correct in his Even though the medical and pharmacy records re- opinions and assertions. See id. at 169–70; see also flect that Charles and Kristen received large quant- Apodaca v. Russo, 228 S.W.3d 252, 255 ities of prescription drugs from multiple doctors, (Tex.App.-Austin 2007, no pet.) (“The expert rethe records also reflect that Dr. Kloeris prescribed port is not required to prove the defendant's liabilthe majority of the hydrocodone and alprazolam ity, but rather to provide notice of what conduct that Charles received in the month prior to his forms the basis for the plaintiff's complaints.”). death. Specifically, in the sixteen days leading up to Charles's death, Dr. Kloeris prescribed eighty-eight *8 Even though Dr. Poindexter did not address tablets of hydrocodone and 180 tablets of al- the prescriptions written by other doctors or the fact prazolam to Charles. We conclude that the phar- that Dr. Kloeris did not prescribe diazepam, in the macy records of Charles and Kristen do not pre- “History” section of his report, he detailed the clude Dr. Poindexter's opinion that Dr. Kloeris's ex- amount of hydrocodone and alprazolam prescribed cessive prescription of hydrocodone and alprazolam to Charles by Dr. Kloeris, as well as the short time caused Charles's death. period in which Dr. Kloeris prescribed that medication . Thus, this report linked Dr. Poindexter's con-

Dr. Kloeris further contends that Dr. Poindex- clusions on causation to the specific facts of this ter's expert report is speculative, conclusory, and case. See Wright, 79 S.W.3d at 52. This report fulinsufficient as a matter of law because he states that filled the twin purposes that Palacios requires to Charles died due to the “toxic effects of hydro- constitute an “objective good-faith effort” to comcodone , alprazolam, and diazepam prescribed by ply with Chapter 74:(1) it informed Dr. Kloeris of Dr. Kloeris and Dr. Rajan,” but neither of these the specific conduct the Stockdales called into doctors prescribed diazepam to Charles or Kristen. question; and (2) it provided a basis for the trial Whether an expert's opinions are correct is an issue court to conclude that the claim has merit. Palacios, for summary judgment, not a Chapter 74 motion to 46 S.W.3d at 879. The trial judge could have reasdismiss . Methodist Hosp. v. Shepherd–Sherman, onably determined that this report gave a fair sum- 296 S.W.3d 193, 199 n. 2 (Tex.App.-Houston [14th mary of each of the statutory requirements, and Dist.] 2009, no pet.). As the San Antonio Court of therefore did not abuse its discretion by denying Appeals noted, “[a] motion to dismiss seeks to Dr. Kloeris's motion to dismiss. demonstrate that a plaintiff has not satisfied the procedural requirements of Chapter 74, while a B. Sufficiency of Report Regarding Dr. Rajan's motion for summary judgment seeks to demonstrate Conduct that the substance of the claim lacks merit.” Wissa Dr. Rajan contends that Dr. Poindexter's report v. Voosen, 243 S.W.3d 165, 169 (Tex.App.-San does not articulate a specific standard of care ap- Antonio 2007, no pet.). An issue such as the fact plicable to her and contains a speculative concluthat neither Dr. Kloeris nor Dr. Rajan prescribed sion regarding causation without any supporting diazepam to Charles or Kristen but the Harris evidence. Dr. Poindexter's report states the follow- County Medical Examiner found that diazepam ing relating to Dr. Rajan: contributed to Charles's death is a substantive issue Based on the frequent and excessive prescriptions affecting the merits of the Stockdales' claim. Our for hydrocodone and alprazolam to Kristen by focus at this stage of the proceedings is whether Dr.

Dr. Kloeris and Dr. Rajan, and the admission by Poindexter's expert report provided a fair summary Kristen that she frequented doctors to get hydro-

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Not Reported in S.W.3d, 2010 WL 1241305 (Tex.App.-Hous. (1 Dist.)) (Cite as: 2010 WL 1241305 (Tex.App.-Hous. (1 Dist.)))

codone for her husband, Dr. Rajan knew or standard of care and how she breached that standshould have known that Charles was abusing ard sufficient to give Dr. Rajan notice of the specifthese drugs and that Kristen was attempting to ic conduct complained of by the Stockdales. See get them for her husband's abuse. Dr. Rajan Gray v. CHCA Bayshore L.P., 189 S.W.3d 855, should have recognized this abuse and not pre- 859–60 (Tex.App.-Houston [1st Dist.] 2006, no scribed Kristen hydrocodone and alprazolam. pet.). In this case, the trial court had no discretion Had Dr. Rajan not prescribed these drugs to but to conclude that the expert report does not rep- Kristen, then, to a reasonable degree of medical resent an “objective good-faith effort” to provide a certainty, Mr. Stockdale would not have died. fair summary of the standard of care applicable to Dr. Rajan and how she breached that standard as re-

The standard of care for a physician is what a quired by section 74.351(r)(6). See Palacios, 46 physician of ordinary prudence would do in the S.W.3d at 880. same or similar circumstance. Moore, 107 S.W.3d at 789. We cannot determine whether a defendant *9 Dr. Rajan requests that we reverse and breached her duty to a patient “absent specific in- render judgment that the trial court dismiss the formation about what the defendant should have Stockdales' claims against her with prejudice. The done differently.” Palacios, 46 S.W.3d at 880. We Civil Practice and Remedies Code provides, do not require a full statement of the standard of however, that “[i]f an expert report has not been care and how the defendant breached that standard, served within [120 days of the plaintiff filing suit] but the “fair summary” must state what “care was because elements of the report are found deficient, expected, but not given.” Id. the court may grant one 30–day extension to the claimant in order to cure the deficiency.” TEX.

Dr. Poindexter opines that Dr. Rajan “knew or CIV. PRAC. & REM.CODE ANN. § 74.351(c).

should have known” that Charles was abusing pre- According to the Texas Supreme Court, the plain scription drugs and that Kristen was obtaining these language of this section “permits one thirty-day exdrugs for her husband's use, and therefore Dr. Rajan tension when the court of appeals finds deficient a should not have prescribed hydrocodone and al- report that the trial court considered adequate.” Leprazolam to Kristen. Dr. Poindexter does not, land v. Brandal, 257 S.W.3d 204, 207 (Tex.2008). however, state what the standard of care specific- We have discretion to remand consideration of the ally required Dr. Rajan to do to determine that extension issue to the trial court. See id. at 208. We Charles Stockdale, who was not her patient, was therefore remand the case to the trial court to decurrently abusing prescription medication, and that termine whether to grant the Stockdales one thirtyshe should not prescribe these drugs to Kristen, day extension to cure the deficiencies of the report who went by a different last name in most of her regarding Dr. Rajan's conduct. medical records and who first presented to Dr. Rajan as an assault victim. The report does not, for ex- Sanctions for Frivolous Appeal ample, specify what Dr. Rajan should have done to The Stockdales request that we sanction Dr. learn of Charles's prescription drug abuse, what she Kloeris for filing a frivolous appeal pursuant to should have done to learn of Kristen's drug-seeking Rule 45 of the Texas Rules of Appellate Procedure. behavior, what she should have done to learn that See TEX.R.APP. P. 45 (“If the court of appeals de- Charles and Kristen were currently married, or how termines that an appeal is frivolous, it may ... award she should have treated Kristen, her patient, for her each prevailing party just damages.”). The Stockcomplaints in these circumstances. Without specific dales contend that Dr. Kloeris's appeal is “patently information of this nature, Dr. Poindexter's report frivolous,” since Dr. Kloeris agreed to be sancdoes not provide a fair summary of the applicable tioned by the Texas Medical Board (TMB) for,

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Not Reported in S.W.3d, 2010 WL 1241305 (Tex.App.-Hous. (1 Dist.)) (Cite as: 2010 WL 1241305 (Tex.App.-Hous. (1 Dist.)))

among other things, his treatment of Charles Stock- *10 We hold that Dr. Poindexter's expert report dale. An agreed order from the TMB is considered provides a fair summary of the standard of care apa settlement agreement under Rule 408 of the Texas plicable to Dr. Kloeris, how Dr. Kloeris breached Rules of Evidence. TEX. OCC.CODE ANN. § that standard, and how Dr. Kloeris's breach caused 164.002(d) (Vernon Supp.2009). Settlement agree- Charles Stockdale's death. We therefore affirm the ments are not admissible to prove liability or in- order of the trial court denying Dr. Kloeris's motion validity of the claim or amount, but may be admiss- to dismiss. We further hold that Dr. Poindexter's reible when “offered for another purpose.” TEX.R. port does not provide a fair summary of the stand- EVID. 408. Determining whether an appeal regard- ard of care applicable to Dr. Rajan and how her ing the sufficiency of an expert report is frivolous conduct breached that standard with respect to when the doctor has agreed to be sanctioned for the Charles Stockdale, who was not her patient. We conduct at issue does not relate to liability or valid- therefore remand the case to the trial court to deity of the claim or amount, and is therefore a per- termine whether to grant the Stockdales a thirty-day missible purpose for which a settlement agreement extension to cure the deficiencies in the expert recan be considered. port regarding Dr. Rajan's conduct.

When determining whether an appeal is frivol- Tex.App.-Houston [1 Dist.],2010.

ous, we “look at the record from the viewpoint of Kloeris v. Stockdale the advocate and decide whether he had reasonable Not Reported in S.W.3d, 2010 WL 1241305 grounds to believe the case could be reversed.” (Tex.App.-Hous. (1 Dist.)) Smith v. Brown, P.C., 51 S.W.3d 376, 381 (Tex.App.-Houston [1st Dist.] 2001, pet. denied); END OF DOCUMENT see also Goss v. Houston Cmty. Newspapers, 252 S.W.3d 652, 657 (Tex.App.-Houston [14th Dist.] 2008, no pet.) (“If an appellant's argument on appeal fails to convince us but has a reasonable basis in law and constitutes an informed, good-faith challenge to the trial court's judgment, sanctions are not appropriate.”). Dr. Kloeris's contention that Dr. Poindexter's report is insufficient centers around the fact that the report does not address records upon which Dr. Poindexter stated he relied but undermine his conclusion regarding causation. Although we hold that the medical and pharmacy records from other doctors, relied upon but not mentioned by Dr. Poindexter in his report, do not preclude his conclusions on causation, Dr. Kloeris asserted reasonable grounds for an appeal. See Reddy, 2008 Tex.App. LEXIS 2000, at *9 n. 1 (stating that appellate courts can consider additional records to determine whether the expert's opinions are supported by the records he reviewed). We decline to conclude that Dr. Kloeris's appeal is frivolous.

Conclusion

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Not Reported in S.W.3d, 2014 WL 4179454 (Tex.App.-Austin) (Cite as: 2014 WL 4179454 (Tex.App.-Austin))

peal as he did in the trial court proceed-

Only the Westlaw citation is currently available. ings.

SEE TX R RAP RULE 47.2 FOR DESIGNATION FACTUAL AND PROCEDURAL BACK- AND SIGNING OF OPINIONS. GROUND Colby was under Kocurek's care for approxim-

MEMORANDUM OPINION ately two months after sustaining injuries on the job; his primary medical complaints were numbness Court of Appeals of Texas, and pain in his left hip and tingling in his right Austin.

hand. According to Colby, Kocurek performed no Kristen KOCUREK, M.D., and Texas MedClinic, physical examination on him and instead had only Appellants oral conferences with him. Further, Kocurek indicv .

ated to him orally that she would refer him to a spe-

Anthony D. COLBY, Appellee.

cialist, but never did.

No. 03–13–00057–CV.

After receiving treatment from Kocurek, Colby Aug. 22, 2014.

moved out of state and transferred his care to an or-

From the District Court of Travis County, 419th Ju- thopedic specialist there. Shortly thereafter, dicial District No. D–1–GN–12–000186, Tim Sulak however, Colby returned to see Kocurek, claiming , Judge Presiding. new symptoms. According to Colby's petition, at Anthony D. Colby, Austin, TX, pro se appellee. that visit Kocurek again failed to examine him physically, ignored his symptoms, and displayed an Laura A. Macom, George F. Evans Jr., Brett B. inappropriate demeanor toward him. Rowe, Evans & Rowe, PC, San Antonio, TX, for appellant. Colby filed suit against Kocurek and Texas FN2 MedClinic, alleging departures from accepted standards of medical care that proximately resulted Before Chief Justice JONES, Justices GOODWIN in injuries to him. Colby alleged that Kocurek and FIELD. failed to meet the applicable standards of care in failing to (1) perform a thorough examination of MEMORANDUM OPINION him; (2) secure appropriate treatment for him; (3)

SCOTT K. FIELD, Justice. properly diagnose and treat him; (4) refer him to or *1 Appellants Kristen Kocurek, M.D., and consult with a specialist; and (5) monitor his condi-

Texas MedClinic appeal from the trial court's deni- tion. Colby also made a claim for fraudulent misal of their motion to dismiss appellee Anthony D. representation/common-law fraud relating to Ko-

FN1 curek's documentation of his injuries and treatment.

Colby's suit for medical malpractice based on Colby's alleged failure to provide an adequate ex- In addition, Colby claimed that Kocurek's actions pert report as required by chapter 74 of the Texas caused (1) a pinched nerve in his right hand to be- Civil Practice and Remedies Code. See Tex. Civ. come entrapped, (2) his left hip to develop bursitis Prac. & Rem.Code § 74.351. We will reverse the and soft-tissue nerve damage, (3) limited range of trial court's judgment and remand for dismissal and motion in his hip, as well as constant pain and a determination of attorneys' fees. nerve damage that will worsen with age, and (4) a need for surgery in his right hand due to numbness, FN1. Colby represents himself in this ap- tingling, and serious pain.

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Not Reported in S.W.3d, 2014 WL 4179454 (Tex.App.-Austin) (Cite as: 2014 WL 4179454 (Tex.App.-Austin))

FN2. Colby's claims against Texas Med- does not support Colby's position. In Andra, the de- Clinic were solely for vicarious liability fendant filed an interlocutory appeal of a denial of a arising from Kocurek's actions. motion to strike an expert report, not a motion to dismiss as in this case. Id. at 186. Because of the After filing suit, Colby served appellants with unique procedural posture in the Andra case, we the expert report of Dr. Ronald Devere, a neurolo- concluded that the motion for relief was a motion gist, to comply with the expert-report requirement under section 74.351(l ), for which there is no proof section 74.351 of the Texas Civil Practice and vision for an interlocutory appeal when denied. Id. Remedies Code. See id. Appellants then filed a mo- at 189; see Tex. Civ. Prac. & Rem.Code § tion to dismiss the suit, claiming that Devere's ex- 51.014(a)(10) (allowing interlocutory appeal of orpert report failed to satisfy the statutory elements der granting relief under section 74.351(1 )). That is under section 74.351. After a hearing, the trial court not the type of motion appellants filed in this case. agreed with appellants that Devere's expert report was deficient, but granted Colby a 30–day exten- Appellants filed a motion to dismiss and resion to cure the deficiencies. In response to the trial quest for attorneys' fees under section 74.351(b). court's ruling, Colby served appellants with an See Tex. Civ. Prac. & Rem.Code § 74.351(b) amended report from Devere. Appellants again (providing that physician provider may move to filed a motion to dismiss, contending that Devere's dismiss when sufficient expert report not served amended report remained deficient. After a hearing, and 120–day deadline has expired). The denial of a the trial court denied appellants' motion to dismiss. motion to dismiss and request for attorneys' fees FN3 Appellants then filed this interlocutory appeal. under section 74.351(b) is subject to interlocutory See id. § 51.014(a)(9). appeal under section 51.014(a)(9) of the Texas Civil Practice and Remedies Code. Lewis v. Fun-

FN3. The trial judge who denied appel- derburk, 253 S.W.3d 204, 208 (Tex.2008). Colby's lants' motion to dismiss Devere's amended jurisdictional complaint is overruled, and we now expert report was not the same trial judge turn to the merits of this appeal. who ruled that Devere's expert report was deficient in the context of appellants' first Sufficiency of Expert Report motion to dismiss. In a health-care-liability claim, a claimant must provide each defendant with an expert report and ANALYSIS curriculum vitae for each expert within 120 days of Jurisdiction filing suit. Tex. Civ. Prac. & Rem.Code § 74.351(a)

*2 In response to appellants' appeal, Colby . The expert report must summarize the expert's contends that this Court lacks jurisdiction over the opinions “regarding applicable standards of care, appeal. Colby appears to argue that once a trial the manner in which the care rendered by the physicourt grants a 30–day extension for a plaintiff to cian or health care provider failed to meet the file an amended report and the plaintiff files an standards, and the causal relationship between that amended report, no appeal may be taken with re- failure and the injury, harm, or damages claimed.” gard to the trial court's ruling on the adequacy of Id. § 74.351(r)(6). After an expert report is filed, the amended report. Colby argues that, in any the defendant may object to the sufficiency of the event, a party may not appeal the denial of a motion report and move to dismiss the plaintiff's claims. to dismiss relating to the adequacy of the expert re- See id. § 74.351(a), (b). In two appellate issues, apport . In support of his argument, Colby relies on pellants contend that the trial court abused its disthis Court's opinion in Academy of Oriental Med., cretion in denying their motion to dismiss because L.L.C. v. Andra, 173 S.W.3d 184 (Tex.App.-Austin (1) Devere is not a qualified expert to provide a re- 2005, no pet.). Our opinion in Andra, however,

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Not Reported in S.W.3d, 2014 WL 4179454 (Tex.App.-Austin) (Cite as: 2014 WL 4179454 (Tex.App.-Austin))

port in this case, and (2) Devere's report is conclus- care applicable to those complaints, and an opinion ory with regard to the element of causation. We as to whether Kocurek breached the applicable will begin with analysis of whether Devere's report standards of care. Devere's report, however, conadequately demonstrates causation. tains nearly no discussion of causation to link Colby's alleged harm to Kocurek's actions.

*3 When a party challenges the adequacy of an expert report, the trial court should sustain the ob- Looking only to the four corners of the report, jection only if it determines that the report does not the following are the only statements from Devere's represent an “objective good faith effort to comply report that could potentially be considered as touchwith the definition of an expert report.” Id. § ing on causation: 74.351(l ). To constitute a good-faith effort, the report must inform the defendant of the specific con- • “Based on Dr. Kocurek's failure to act, secure duct called into question and provide a basis for the treatment and properly execute a referral for Mr. trial court to determine whether the claims have Colby, his condition has worsened and he has merit. American Transitional Care Ctrs. of Tex., suffered tremendously and unnecessarily.” (from Inc. v. Palacios, 46 S.W.3d 873, 879 (Tex.2001). A Background Facts section of report) report does not fulfill these purposes if it fails to • “By not making this referral [to a specialist], address the standard of care, breach of the standard Defendant, Dr. Kocurek, deceived Mr. Colby, of care, and causation, or if it merely states the excreated anxiety in Mr. Colby by making him pert's conclusions regarding these elements. Id. The think that a referral to a specialist was coming expert must link his conclusions to the facts of the when it was not and resulted in a delay in Mr.

case. Bowie Mem'l Hosp. v. Wright, 79 S.W.3d 48, Colby receiving any needed care, treatment or 52 (Tex.2002). We review a trial court's denial of a therapy that might have been recommended by a motion to dismiss under section 74.351 under an specialist, if that referral had been made.” (from abuse-of-discretion standard. Palacios, 46 S.W.3d Application of Standard of Care section)

at 878. However, “if an expert report contains only conclusions about the statutory elements, the trial *4 • “In my expert opinion, the Defendant violcourt has ‘no discretion but to conclude ... that the ated the applicable standard of care for physireport does not represent a good-faith effort’ to sat- cian's [sic] operating in the State of Texas based isfy the statute.” Smith v. Wilson, 368 S.W.3d 574, on the reasons mentioned above. Based on her ac- 577 (Tex.App.-Austin 2012, no pet.) (quoting Pala- tions or failures to act, Mr. Colby suffered and cios, 46 S.W.3d at 877, 880). To perform its re- her actions or failures to act were a direct cause view, the trial court must look only to the four of worsening pain and numbness to Mr. Colby. corners of the report itself. Palacios, 46 S.W.3d at Her violations of the standard of care resulted in 878. a delay of Mr. Colby receiving appropriate care for his injuries, and the worsening of his symp-

Devere's eight-page report contains a paragraph toms.” (from the Conclusion section)

on his qualifications, lists the issues he is reviewing and the materials used in that review, and states the • “Based on these worsening injuries, Mr. Colby background facts. The report then turns to a discus- has endured and will continue to endure significsion of the standards of care for Kocurek's treat- ant pain, numbness and incapacity until he can ment of Colby and a discussion applying those receive the appropriate treatment to correct these standards of care to the facts presented. Finally, it conditions.” (from the Conclusion section) contains a conclusion section. The report contains some detail of Colby's complaints, the standards of The issue is whether these statements, which

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Not Reported in S.W.3d, 2014 WL 4179454 (Tex.App.-Austin) (Cite as: 2014 WL 4179454 (Tex.App.-Austin))

appear to be the only attempts made at establishing in Colby's condition—“treatment or therapy that causation in Devere's report, are sufficient to meet might have been recommended by a specialist, if the requirements of section 74.351. We conclude that referral had been made”—amounts to nothing they are not. more than speculation. See id. at 539 (concluding that statement in expert report that breach of stand-

The problem with Devere's report is that it fails ard of care “in reasonable medical probability resto show, within its four corners, what specific ac- ulted in [injury]” was insufficient). The report does tions Kocurek did or did not take, or could have not explain what treatment or therapy a specialist taken, that would have prevented Colby's symptoms would have provided had Colby been referred earlior injuries. See Tex. Civ. Prac. & Rem.Code § er or how such treatment or therapy would have 74.351(r)(5) (expert report must include “fair sum- prevented Colby's injuries. As a result, the statemary ” or expert's opinion as to “causal relation- ments in Devere's report regarding causation ship” between medical defendant's failure to meet amount to “no more than a bare assertion that standard of care and injury). Nowhere in the report [Kocurek's] breach resulted in increased pain and does Devere actually state what specific violation suffering.” See id. at 540. of which standard of care led to a particular health problem of Colby's. The report lists five standards *5 This Court has consistently required more of care that Kocurek allegedly violated in her treat- than what Devere has provided in terms of expert ment of Colby and the specific ways Devere be- testimony on causation in the context of section lieves Kocurek violated those standards of care. 74.351. See Smith, 368 S.W.3d at 577–78 (holding Devere, however, did not provide facts that would that expert report failed to show how doctor's alexplain a causal link between any of those alleged leged breach of standard of care caused patient to breaches of the standards of care to any one of commit suicide); Constancio v. Bray, 266 S.W.3d Colby's injuries. 149, 157–58 (Tex.App.-Austin 2008, no pet.)

(holding that expert report that alleged that breach An expert report must explain, to a reasonable of standard of care by doctor caused patient's death degree, how and why the alleged breach caused the is insufficient when report did not explain how ininjury based on the facts presented. See Jelinek v. creased monitoring of patient, detection of hypox- Casas, 328 S.W.3d 526, 539–40 (Tex.2010). The emia, and other actions would have prevented paclosest Devere's report comes to providing a causal tient's death); Perez v. Daughters of Charity Health link is in his statement that “[b]ased on [Kocurek's] Servs. of Austin, No. 03–08–00200–CV, 2008 WL actions or failures to act, Mr. Colby suffered and 4531558, at *4 (Tex.App.-Austin Oct. 10, 2008, no [Kocurek's] actions or failures to act were a direct pet.) (mem.op.) (concluding expert report insufficause of worsening pain and numbness to Mr. cient on causation because it did not link hospital's Colby. Her violations of the standard of care resul- actions to patient's death or any cause of death and ted in a delay of Mr. Colby receiving appropriate did not identify any specific injury that would have care for his injuries, and the worsening of his symp- been prevented had hospital complied with standard toms.” This statement, however, never identifies of care). To find Devere's report sufficient on causwhich breach of which standard of care by Kocurek ation, we would have to make inferences from beyled to a worsening of Colby's pain and numbness. ond the four corners of his report; this we are not Further, the statement fails to identify how any spe- allowed to do. cific injury sustained by Colby would have been prevented or lessened had he received “appropriate Based on the record before us and the four care” sooner. Devere's statement that referring corners of the expert report, we are left with no Colby to a specialist might have made a difference choice but to conclude that the report does not

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Not Reported in S.W.3d, 2014 WL 4179454 (Tex.App.-Austin) (Cite as: 2014 WL 4179454 (Tex.App.-Austin))

provide an adequate causal link between Kocurek's alleged shortcomings and Colby's symptoms or injuries . Because the report is insufficient as to Kocurek , it is also insufficient as to Texas MedClinic, which Colby sued solely on the basis of its alleged vicarious liability for Kocurek's actions. See Smith, 368 S.W.3d at 579. Accordingly, we sustain the ap-

FN4 pellants' second issue on appeal.

FN4. Because appellants' second issue is dispositive of this appeal, we need not reach appellants' first appellate issue challenging the trial court's conclusion that the expert report adequately demonstrated Devere's qualifications as an expert.

CONCLUSION We reverse the trial court's order denying appellants ' motion to dismiss. We remand the cause to the trial court for a determination of attorneys' fees, see Tex. Civ. Prac. & Rem.Code § 74.351(b), and for entry of a final order dismissing Colby's claims against appellants.

Tex.App.-Austin,2014. Kocurek v. Colby Not Reported in S.W.3d, 2014 WL 4179454 (Tex.App.-Austin)

END OF DOCUMENT

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296 S.W.3d 193 (Cite as: 296 S.W.3d 193)

198Hk804 k. Affidavits of merit or meritorious defense; expert affidavits. Most Cited Cases Court of Appeals of Texas, In providing the required expert report for a Houston (14th Dist.). health care liability claim, the claimant need not The METHODIST HOSPITAL, Appellant marshal his evidence or present sufficient evidence v. to avoid summary judgment. V.T.C.A., Civil Prac-

Beverley SHEPHERD–SHERMAN, Appellee. tice & Remedies Code § 74.351.

No. 14–08–01090–CV. [2] Health 198H 804 Aug. 20, 2009.

198H Health Background: Marfan syndrome patient brought 198HV Malpractice, Negligence, or Breach of negligence action against hospital arising from Duty heart surgery by surgeons who were not patient's 198HV(G) Actions and Proceedings normal surgeon who was a Marfan syndrome spe- 198Hk804 k. Affidavits of merit or meritcialist , alleging that stent was misplaced and that orious defense; expert affidavits. Most Cited Cases hospital's doctors and employees did not honor her The required expert report for a health care lirequest to have her surgeon treat her. The 113th ability claim must provide enough information to District Court, Harris County, 2008 WL 6654897, fulfill two purposes: (1) to inform the defendant of Patricia Ann Hancock, J., denied the hospital's mo- the specific conduct the plaintiff has called into tion to dismiss based on patient's alleged failure to question, and (2) to provide a basis for the trial meet the expert report requirement. Hospital ap- court to conclude the claims have merit. V.T.C.A., pealed. Civil Practice & Remedies Code § 74.351.

Holdings: The Court of Appeals, Leslie B. Yates, [3] Appeal and Error 30 960(1) J., held that: (1) expert was qualified to render standard of care 30 Appeal and Error opinion regarding hospital admissions procedures 30XVI Review for patients requesting a specific doctor; 30XVI(H) Discretion of Lower Court (2) expert report was sufficient as to the standard of 30k960 Rulings on Motions Relating to care and breach; Pleadings (3) expert report was sufficient as to causation; and 30k960(1) k. In general. Most Cited (4) hospital was not subject to sanction for frivol- Cases ous appeal. The appellate court reviews for an abuse of discretion a trial court's ruling on the adequacy of an Affirmed. expert report and a motion to dismiss based on a failure to meet the expert report requirement in a West Headnotes health care liability case. V.T.C.A., Civil Practice [1] Health 198H 804 & Remedies Code § 74.351.

198H Health [4] Health 198H 804 198HV Malpractice, Negligence, or Breach of 198H Health Duty 198HV Malpractice, Negligence, or Breach of 198HV(G) Actions and Proceedings Duty

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296 S.W.3d 193 (Cite as: 296 S.W.3d 193)

198HV(G) Actions and Proceedings viders based on experience working with or super-

198Hk804 k. Affidavits of merit or merit- vising them, then he can be qualified to render an orious defense; expert affidavits. Most Cited Cases opinion in the form of the required expert report.

In determining the qualifications of an expert V.T.C.A., Civil Practice & Remedies Code § to provide an expert report in a health care liability 74.402(b)(3), (c)(1). case, the court must analyze the expert's training and experience regarding the specific issue before [7] Health 198H 804 the court to ensure the expert is qualified to give an 198H Health opinion on that issue. V.T.C.A., Civil Practice & 198HV Malpractice, Negligence, or Breach of Remedies Code § 74.402(b)(3), (c)(1).

Duty [5] Health 198H 804 198HV(G) Actions and Proceedings 198Hk804 k. Affidavits of merit or merit-

198H Health orious defense; expert affidavits. Most Cited Cases 198HV Malpractice, Negligence, or Breach of Physician's expert report was sufficient as to Duty standard of care and breach even if report did not 198HV(G) Actions and Proceedings identify the specific conduct called into question by 198Hk804 k. Affidavits of merit or merit- each type of hospital employee involved, namely orious defense; expert affidavits. Most Cited Cases doctors, nurses, or admissions staff, in patient's Physician was qualified to render standard of negligence action against hospital arising from care opinion regarding hospital admissions proced- heart surgery performed by surgeons other than the ures for patients requesting a specific doctor in pa- Marfan syndrome specialist requested by patient; tient's negligence action against hospital arising report explained that the standard of care was the from surgery performed by surgeons other than one same for doctors and hospital staff when a patient requested by patient, where physician had experi- requested a specific doctor and report opined that ence with all aspects of the admissions process, the doctors and hospital staff all breached that having been involved in numerous admissions standard. V.T.C.A., Civil Practice & Remedies where either a patient had requested him as a doctor Code § 74.351. or a patient he was involved with requested another doctor. V.T.C.A., Civil Practice & Remedies Code [8] Health 198H 804 § 74.402(b)(3), (c)(1).

198H Health [6] Health 198H 804 198HV Malpractice, Negligence, or Breach of Duty 198H Health 198HV(G) Actions and Proceedings 198HV Malpractice, Negligence, or Breach of 198Hk804 k. Affidavits of merit or merit-

Duty orious defense; expert affidavits. Most Cited Cases 198HV(G) Actions and Proceedings Expert report in health care liability case may 198Hk804 k. Affidavits of merit or merit- not state a global standard of care without explainorious defense; expert affidavits. Most Cited Cases ing how that standard of care applies to the health A doctor serving as an expert in a health care care providers at issue and how they breached it.

liability case is not automatically disqualified from V.T.C.A., Civil Practice & Remedies Code § giving opinions regarding other types of health care 74.351. providers, even though the standard of care may be different for those providers; if doctor is familiar [9] Pretrial Procedure 307A 680 with the standard of care for other health care pro-

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296 S.W.3d 193 (Cite as: 296 S.W.3d 193)

307A Pretrial Procedure tion; rather, the expert must explain the basis for 307AIII Dismissal his statements and link his conclusions to the facts.

307AIII(B) Involuntary Dismissal V.T.C.A., Civil Practice & Remedies Code § 307AIII(B)6 Proceedings and Effect 74.351.

307Ak680 k. Fact questions. Most Cited Cases [12] Health 198H 804 Whether an expert's opinions in the required 198H Health expert report in a health care liability case are cor-

198HV Malpractice, Negligence, or Breach of rect is an issue for summary judgment, not a motion Duty to dismiss. V.T.C.A., Civil Practice & Remedies 198HV(G) Actions and Proceedings Code § 74.351.

198Hk804 k. Affidavits of merit or merit-

[10] Health 198H 804 orious defense; expert affidavits. Most Cited Cases Expert report in health care liability case must 198H Health provide supported opinions that are sufficient to 198HV Malpractice, Negligence, or Breach of give the trial court assurance that the claim has Duty merit. V.T.C.A., Civil Practice & Remedies Code § 198HV(G) Actions and Proceedings 74.351.

198Hk804 k. Affidavits of merit or meritorious defense; expert affidavits. Most Cited Cases [13] Costs 102 260(1)

Physician's expert report was sufficient as to 102 Costs causation in patient's negligence action against hos-

102X On Appeal or Error pital arising from heart surgery performed by sur-

102k259 Damages and Penalties for Frivolgeons other than the Marfan syndrome specialist reous Appeal and Delay quested by patient, even though chain of events 102k260 Right and Grounds leading from hospital's actions to patient's injuries 102k260(1) k. In general. Most Cited had many links; report described Marfan syndrome Cases and explained why the use of a stent was contradicted for Marfan syndrome patients, report opined Costs 102 261 that stent should not have been used on patient, and report repeatedly stated that no reasonable doctor, 102 Costs which presumably included the Marfan syndrome 102X On Appeal or Error expert, would have performed stent surgery under 102k259 Damages and Penalties for Frivolsuch circumstances. V.T.C.A., Civil Practice & ous Appeal and Delay Remedies Code § 74.351. 102k261 k. Discretion of court. Most Cited Cases [11] Health 198H 804 Whether to grant sanctions for a frivolous appeal is a matter of discretion that the appellate court 198H Health exercises with prudence and caution and only after 198HV Malpractice, Negligence, or Breach of careful deliberation in truly egregious circum-

Duty stances. Rules App.Proc., Rule 45.

198HV(G) Actions and Proceedings 198Hk804 k. Affidavits of merit or merit- [14] Costs 102 260(4)

orious defense; expert affidavits. Most Cited Cases An expert report in a health care liability case 102 Costs cannot be based on mere conclusions or specula- 102X On Appeal or Error

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296 S.W.3d 193 (Cite as: 296 S.W.3d 193)

102k259 Damages and Penalties for Frivol- claims of appellee Beverley Shepherd–Sherman ous Appeal and Delay (“Sherman”) based on her failure to meet the expert 102k260 Right and Grounds *196 report requirements of chapter 74 of the Texas 102k260(4) k. What constitutes frivol- Civil Practice and Remedies Code. Methodist ous appeal or delay. Most Cited Cases claims in four issues that the motion to dismiss If an appellant's argument on appeal fails to should have been granted because Sherman's expert convince the appellate court but has a reasonable was not qualified and because the report was insufbasis in law and constitutes an informed, good-faith ficient regarding the standard of care, breach of the challenge to the trial court's judgment, sanctions for standard of care, and causation. We conclude that a frivolous appeal are not appropriate. Rules the trial court did not abuse its discretion in deny- App.Proc., Rule 45. ing Methodists's motion to dismiss, and thus we affirm .

[15] Costs 102 260(5)

BACKGROUND 102 Costs Sherman suffers from Marfan syndrome, which 102X On Appeal or Error is a condition that damages connective tissue in the 102k259 Damages and Penalties for Frivol- body and can affect many bodily systems, including ous Appeal and Delay the cardiovascular system. Sherman was a long-

102k260 Right and Grounds term patient of Dr. Neal Kleiman, and he told her 102k260(5) k. Nature and form of that if she ever had chest pains, she should call him judgment, action, or proceedings for review. Most and go to an emergency room. Dr. Kleiman would Cited Cases then ensure that she was treated by Dr. Joseph Hospital's interlocutory appeal of denial of its Coselli, a surgeon and Marfan syndrome specialist.

motion to dismiss patient's health care liability In 2001, this scenario happened—Sherman expericlaims based on her alleged failure to meet expert enced chest pains and called Dr. Kleiman on the report requirements was not frivolous, and therefore way to the Methodist emergency room, and Dr. sanctions were not warranted, even though the ap- Kleiman contacted Dr. Coselli, who met her at the peal lacked merit. Rules App.Proc., Rule 45. hospital and performed heart surgery.

*195 Dwight Willis Scott Jr., Stephanie Laird In February 2006, Sherman again experienced Tolson, Houston, TX, Michael H. Rubin, Baton chest pains and called Dr. Kleiman on her way to Rouge, LA, for appellants. the Methodist emergency room. According to Sherman , this time Dr. Kleiman refused to call Dr.

Jimmy Williamson, Oscar Luis Delarosa, Kenneth Coselli, despite her repeated requests. Dr. Kleiman E. Broughton, Thomas P. Sartwelle, James R. Bocontacted Dr. Alan Lumsden instead. Sherman conston , Cindy M. Rusnak, Houston, TX, for appellees.

tinued to insist to various doctors and hospital employees that Dr. Coselli was her doctor and that she Panel consists of Chief Justice HEDGES and wanted him to be contacted, but she was told that Justices YATES and FROST. Dr. Coselli no longer worked for Methodist and that Dr. Lumsden had taken his place. Two days after being admitted to Methodist, Dr. Lumsden and Dr.

OPINION Michael Reardon performed aortic stent graft sur-

LESLIE B. YATES, Justice.

gery on Sherman. After the surgery, Sherman This is an interlocutory appeal of the trial tracked down Dr. Coselli, who transferred her to court's order denying appellant The Methodist Hosanother hospital and removed the stent. Sherman pital's motion to dismiss the health care liability

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296 S.W.3d 193 (Cite as: 296 S.W.3d 193)

suffered complications from the stent surgery, Care Ctrs. of Tex., Inc. v. Palacios, 46 S.W.3d 873, which required many subsequent surgeries and left 878–79 (Tex.2001). In providing the expert's opinher unable to work or care for herself alone. ions on these elements, the claimant need not marshal his evidence or present sufficient evidence to Sherman sued Methodist and Drs. Kleiman, avoid summary judgment. Palacios, 46 S.W.3d at Lumsden, and Reardon. She alleged, inter alia, that 878; Patel v. Williams, 237 S.W.3d 901, 904 the doctors were negligent because they misplaced (Tex.App.-Houston [14th Dist.] 2007, no pet.). the stent and because a stent is contraindicated for a Rather, the report must provide enough information Marfan syndrome patient. Sherman alleged that to fulfill two purposes: (1) to inform the defendant Methodist is liable because its doctors and employ- of the specific conduct the plaintiff has called into ees did not honor her requests to have Dr. Coselli question and (2) to provide a basis for the trial treat her and Dr. Coselli would not have inserted a court to conclude the claims have merit. Palacios, stent, thereby preventing all of her subsequent 46 S.W.3d at 879; Patel, 237 S.W.3d at 904. problems.

[3] We review a trial court's ruling on the ad-

Pursuant to chapter 74 of the Civil Practice and equacy of an expert report and a motion to dismiss Remedies Code, Sherman filed the expert report based on a failure to meet the expert report requireand curriculum vitae of Dr. Phillip Adams. The de- ment for an abuse of discretion. Palacios, 46 fendants all objected, and Sherman was given an S.W.3d at 877; San Jacinto Methodist Hosp. v. Benopportunity to file a supplemental report. The de- nett, 256 S.W.3d 806, 811 (Tex.App.-Houston fendants again objected to Sherman's supplemental [14th Dist.] 2008, no pet.). A trial court abuses its report and filed a motion to dismiss, which the trial discretion if it acts in an arbitrary or unreasonable court denied. Methodist is the only defendant ap- manner or without reference to any guiding rules or pealing the trial court's ruling. We consider the ini- principles. Bowie Mem'l Hosp. v. Wright, 79 tial and supplemental reports together in assessing S.W.3d 48, 52 (Tex.2002). Though we may not Sherman's compliance with chapter 74. substitute our judgment for that of the trial court, the trial court has no discretion in determining what ANALYSIS the law is or applying the law to the facts. Id.; San-

A. Legal Framework jar v. Turner, 252 S.W.3d 460, 463 [1][2] Section 74.351 of the Civil Practice and (Tex.App.-Houston [14th Dist.] 2008, no pet.).

Remedies Code requires a health care liability claimant to provide the defendant with an expert re- B. Qualifications port within 120 days after filing the petition. TEX. [4] In its first issue, Methodist challenges Dr. CIV. PRAC. & REM.CODE ANN. § 74.351(a) Adams's qualifications to render an opinion as to (Vernon Supp. 2008). A defendant may then file a the allegations against it. To be qualified to provide motion challenging the adequacy of the expert's an expert report under chapter 74, an expert must, *197 report, and the trial court “shall grant” the among other things, be “qualified on the basis of motion if it appears that the report does not repres- training or experience” to offer an opinion in the ent a good faith effort to comply with the statutory relevant area of health care. TEX. CIV. PRAC. & requirements. Id. § 74.351(a), (l ). A sufficient ex- REM.CODE ANN. § 74.402(b)(3), (c)(1) (Vernon pert report must provide a fair summary of the ex- 2005). We must analyze the expert's training and pert's opinions regarding the applicable standard of experience regarding the “specific issue” before the care, the manner in which the care provided failed court to ensure the expert is qualified to give an to meet that standard, and the causal relationship opinion on that issue. Thomas v. Alford, 230 between that breach and the injury, harm, or dam- S.W.3d 853, 857 (Tex.App.-Houston [14th Dist.] ages claimed. Id. § 74.351(r)(6); Am. Transitional

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296 S.W.3d 193 (Cite as: 296 S.W.3d 193)

2007, no pet.); see also In re Windisch, 138 S.W.3d Bennett, 256 S.W.3d at 813–14; Ragan, 187 S.W.3d 507, 512–13 (Tex.App.-Amarillo 2004, no pet.). at 563. Based on Dr. Adams's experience in hospital admissions and working with hospital personnel [5] Unlike her claims against the defendant in carrying out patient requests for specific doctors, doctors, Sherman's claims against Methodist are not we conclude Dr. Adams is qualified to render opinbased on the surgery itself but on Methodist's em- FN1 ions regarding the claims against Methodist.

ployees denying her access to her doctor of choice. See Wallace, 278 S.W.3d at 558–59 (concluding Thus, the specific issue before the court involves doctor qualified to provide standard of care for hospital admissions procedures when a patient re- medical center based on work with nurses, nurse quests a specific doctor. Methodist argues that al- practitioners, physician's assistants, and other docthough Dr. Adams may be qualified to give opin- tors); Bennett, 256 S.W.3d at 814 (finding doctor ions regarding Sherman's medical treatment, that qualified to state standard of care for professional does not establish his qualifications regarding the nurse in preventing bed sores based on previous standard of care for hospital admissions procedures work with nurses in such situations); Ragan, 187 and the conduct of non-physician hospital person- S.W.3d at 564 (stating that doctor was qualified to nel when a patient requests a specific doctor. provide standard of care for nurses based on experience working with nursing staff on the exact situ-

[6] According to Dr. Adams's report, he has exation at issue in the case). Accordingly, we determperience with all aspects of the admissions process, ine the trial court did not abuse its discretion in having been involved in numerous admissions denying Methodist's motion to dismiss based on Dr.

where either a patient has requested him as a doctor Adams's purported lack of qualifications, and we or a patient he was involved with requested another overrule its first issue.

doctor. He further states that he is familiar with the standard of care for *198 hospital personnel based FN1. It is this fact that distinguishes this on his work with admissions personnel and other case from Methodist's authority, in which hospital staff responsible for following hospital the doctor either never stated the standard policy. Methodist contends that this experience of care for the non-physician health care does not qualify Dr. Adams to opine on the stand- providers at issue or did not explain the ard of care applicable to non-physicians because his basis for any such knowledge. See, e.g., experience is based on his perspective as a doctor, Christus Health SE Tex. v. Broussard, 267 not, for example, as a nurse or admissions clerk. S.W.3d 531, 535–36 (Tex.App.-Beaumont We disagree. A doctor is not automatically disqual- 2008, no pet.); Simonson v. Keppard, 225 ified from giving opinions regarding other types of S.W.3d 868, 872–73 (Tex.App.-Dallas health care providers, even though the standard of 2007, no pet.); Methodist Health Care Sys. care may be different for those providers. See of San Antonio, Ltd. v. Rangel, No. Baylor Med. Ctr. at Waxahachie v. Wallace, 278 04–05–00500–CV, 2005 WL 3445994, at S.W.3d 552, 558 (Tex.App.-Dallas 2009, no pet.); *2–3 (Tex.App.-San Antonio Dec. 14, Bennett, 256 S.W.3d at 814; Manor Care Health 2005, pet. denied) (mem. op.); cf. Bennett, Servs., Inc. v. Ragan, 187 S.W.3d 556, 562 256 S.W.3d at 814 (distinguishing Simon- (Tex.App.-Houston [14th Dist.] 2006, pet. granted, son ). judgm't vacated, remanded by agr.). If the doctor is familiar with the standard of care for other health C. Standard of Care and Breach care providers based on experience working with or [7] In its second and third issues, Methodist arsupervising them, then he can be qualified to render gues that Sherman's expert report does not adan opinion. See Wallace, 278 S.W.3d at 558–59; equately identify and apply the standard of care and

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296 S.W.3d 193 (Cite as: 296 S.W.3d 193)

breach of the standard of care as to Methodist. Dr. type of breach, and analyzed causation in the same Adams states repeatedly in his report that when a way does not render his opinion inadequate.”); Sanpatient requests a specific doctor, the standard of jar, 252 S.W.3d at 466–67 (affirming trial court's care requires doctors and hospital employees to loc- refusal to dismiss based on expert report that apate and contact that doctor and request his instruc- plied same standard of care to multiple defendants). tions for the care and treatment of that patient. Ac- We conclude that Dr. Adams's report sufficiently cording to Dr. Adams, Methodist's employees explained why the standard of care and breach elebreached the standard of care because, despite ments were the same as to all the relevant health Sherman's repeated requests, no one attempted to care providers. Therefore, the trial court did not ablocate or contact Dr. Coselli and request his instruc- use its discretion in denying Methodist's motion to tions for her care. dismiss on this basis, and we overrule Methodist's second and third issues.

[8][9] Methodist contends that the report is inadequate as to the standard of care and breach be- FN2. Dr. Adams may be, as Methodist cause it does not identify the specific conduct suggests, incorrect in this conclusion, but called into question by each type of hospital em- whether an expert's opinions are correct is ployee involved, such as doctors, nurses, or admis- an issue for summary judgment, not a mosions staff. Methodist argues that a global standard tion to dismiss under chapter 74. See, e.g., *199 of care and assertion of breach for all actors is Sanjar, 252 S.W.3d at 467 n. 6 insufficient as a matter of law. Methodist is correct (concluding that doctor's arguments that he that an expert report may not state a global standard did not owe duty to patient as described in of care without explaining how that standard of expert report was an issue for summary care applies to the health care providers at issue and judgment rather than a motion to dismiss); how they breached it. See, e.g., Haddad v. Mar- Wissa v. Voosen, 243 S.W.3d 165, 169–70 roquin, No. 13–07–014–CV, 2007 WL 2429183, at (Tex.App.-San Antonio 2007, pet. denied) *4 (Tex.App.-Corpus Christi Aug. 29, 2007, pets. (same). denied) (mem. op.); Doades v. Syed, 94 S.W.3d 664, 671–72 (Tex.App.-San Antonio 2002, no pet.). D. Causation However, that is not what Dr. Adams's report does. [10] In its fourth issue, Methodist argues that Rather, in his report, Dr. Adams explains that in the Sherman's expert report is also insufficient as to context of this specific area of practice—that is, causation. Dr. Adams opines that the stent is the ulwhen a patient requests a specific doctor—the timate cause of all Sherman's injuries and that Dr. standard of care is the same for doctors and hospital Coselli would not have performed stent surgery. staff. He then opines that the doctors and hospital Thus, if Methodist had followed the standard of staff in this case all breached the standard of care care and contacted Dr. Coselli, Sherman would by failing to attempt to locate and contact Dr. never have received a stent, thereby avoiding her Coselli in response to Sherman's requests. There is injuries. Methodist asserts that this opinion is specnothing inherently impermissible about concluding ulative and conclusory because there is no basis for that different health care providers owed the same concluding what Dr. Coselli would have actually standard of care to Sherman and breached that duty done and that, at most, any negligence by Method-

FN2 ist merely created a condition that allowed another's in the same way. See Bennett, 256 S.W.3d at 817 (“Although [the expert]'s opinion for each de- negligence to cause an injury. Methodist stresses fendant is identical, he unquestionably provided an that its actions were administrative rather than opinion for each hospital. That he held each defend- treatment-oriented and that it was the allegedly deant to the same standard of care, found the same fective treatment that caused Sherman's injuries.

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296 S.W.3d 193 (Cite as: 296 S.W.3d 193)

[11][12] An expert report cannot be based on REM.CODE ANN. § 74.351(s), (u)

mere conclusions or speculation. See Bowie, 79 (Vernon Supp. 2008); In re Jorden, 249 S.W.3d at 52; Mosely v. Mundine, 249 S.W.3d 775, S.W.3d 416, 418, 420–24 (Tex.2008) (orig. 781 (Tex.App.-Dallas 2008, no pet.). Rather, the proceeding); In re Lumsden, 291 S.W.3d expert must explain the basis for his statements and 456, 461 (Tex.App.-Houston [14th Dist.] link his conclusions to the facts. Bowie, 79 S.W.3d 2009, orig. proceeding); In re Huag, 175 at 52; Sanjar, 252 S.W.3d at 465, 467–68. Dr. S.W.3d 449, 456 (Tex.App.-Houston [1st Adams does just that. He describes Marfan syn- Dist.] 2005, no pet.). drome and explains why the use of a stent is contraindicated for Marfan syndrome patients and *200 E. Sanctions should not have been used on Sherman. Dr. Adams [13][14][15] In her cross-issue, Sherman rerepeatedly states that no reasonable doctor, which quests this court to sanction Methodist for a frivolpresumably includes Dr. Coselli, would have per- ous appeal under Texas Rule of Appellate Procedformed stent surgery under such circumstances. ure 45. Whether to grant sanctions for a frivolous That the chain of events leading from Methodist's appeal is a matter of discretion that this court exeractions to Sherman's injuries has many links does cises with prudence and caution and only after carenot render Dr. Adams's opinion insufficient because ful deliberation in truly egregious circumstances. he explains and supports each step. See Patel, 237 See Goss v. Houston Cmty. Newspapers, 252 S.W.3d at 905–06; Farishta v. Tenet Healthsystem S.W.3d 652, 657 (Tex.App.-Houston [14th Dist.] Hosps. Dallas, Inc., 224 S.W.3d 448, 454–55 2008, no pet.). If an appellant's argument on appeal (Tex.App.-Fort Worth 2007, no pet.). Methodist fails to convince us but has a reasonable basis in complains that Dr. Adams's opinion is not based on law and constitutes an informed, good-faith chalevidence , such as an affidavit or deposition from lenge to the trial court's judgment, sanctions are not Dr. Coselli, stating exactly what he would have appropriate. Id. Although Methodist's appeal lacks done had he been called when Sherman was admit- merit, we conclude that it is not frivolous, and we ted. Methodist cites no authority that discovery overrule Sherman's cross-issue. from a fact witness is required to support an initial FN3 CONCLUSION expert report under chapter 74. The report must The trial court did not abuse its discretion in provide supported opinions that are sufficient to denying Methodist's motion to dismiss based on its give the trial court assurance that the claim has objections to Sherman's expert's qualifications and merit. See Palacios, 46 S.W.3d at 879; Patel, 237 report. Having overruled all of Methodist's issues, S.W.3d at 904. Dr. Adams's well-supported concluwe affirm the trial court's judgment.

sions about how a reasonably prudent doctor would have acted under the circumstances are sufficient to Tex.App.–Houston [14 Dist.],2009. have given the trial court such assurances at this Methodist Hosp. v. Shepherd-Sherman stage in the case. That discovery could later prove 296 S.W.3d 193 Dr. Adams wrong is not a basis for holding that his report is insufficient under chapter 74. See Sanjar, END OF DOCUMENT 252 S.W.3d at 467 n. 6; Wissa v. Voosen, 243 S.W.3d 165, 169–70 (Tex.App.-San Antonio 2007, pet. denied). We overrule Methodist's fourth issue.

FN3. Indeed, discovery is severely limited before the chapter 74 expert report requirement is met. See TEX. CIV. PRAC. &

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Not Reported in S.W.3d, 2014 WL 7499373 (Tex.App.-Dallas) (Cite as: 2014 WL 7499373 (Tex.App.-Dallas))

(“TMLA”). See TEX. CIV. PRAC. & REM. CODE Only the Westlaw citation is currently available. ANNN. § 74.351(b) (West 2011). Now, Nexion appeals from the trial court's denial of that motion to SEE TX R RAP RULE 47.2 FOR DESIGNATION dismiss. Reliant is not a party to this appeal.

AND SIGNING OF OPINIONS.

In four issues, Nexion argues the trial court ab-

MEMORANDUM OPINION used its discretion when it denied the motion to dis-

Court of Appeals of Texas, miss. Specifically, Nexion contends the trial court Dallas. erred because (1) the expert report “does not identi-

Nexion Health at Garland, Inc. d/b/a Pleasant Val- fy the standard of care applicable to Nexion or the ley Healthcare and Rehabilitation Center, Appellant actions that Nexion should have taken,” (2) the exv . pert report “failed to establish a causal relationship Temperance Treybig, Appellee between Nexion's alleged negligence and Mr. Treybig 's injury,” (3) Treybig failed to serve Nexion No. 05–14–00498–CV with a report from a “qualified expert,” and (4) the Opinion Filed December 31, 2014 trial court failed to award Nexion its attorney's fees and costs. We decide Nexion's third issue in its fa-

On Appeal from the 14th Judicial District Court, vor. The expert report and curriculum vitae sup- Dallas County, Texas, Trial Court Cause No. plied by Treybig do not provide sufficient informadc –13–12286. Eric Moye, Judge. tion regarding the knowledge and experience of the Jason A. Burris, J. Edward Johnson III, Weston M. medical expert, as indicated below. Accordingly, Davis, Gregory N. Ziegler, Dallas, TX, for Appel- we reverse the order of the trial court and remand lant. the case for a determination of whether to grant Treybig a thirty-day extension to cure the deficien-

Dawn M. Smith, Rachel Shackelford, Curtis cies in the report. TEX. CIV. PRAC. & REM.

Clinesmith, Dallas, TX, for Appellee.

CODE ANN.. § 74.351(c).

Before Justices Bridges, Lang, and Evans I. FACTUAL AND PROCEDURAL BACK-

GROUND From March 1, 2010, through January 14, MEMORANDUM OPINION 2013, Mr. Treybig, Treybig's father, was a resident Opinion by Justice Lang at Pleasant Valley Healthcare and Rehabilitation *1 This interlocutory appeal involves a medical Center (“Pleasant Valley”), which is a nursing malpractice action brought by the appellee, Tem- home owned by Nexion. According to Treybig, perance Treybig (“Treybig”), as Representative of “Nexion provided what [she] believed and underthe Estate of William Treybig (“Mr.Treybig”), stood was skilled nursing care and ongoing assessagainst Nexion Health at Garland d/b/a Pleasant ments of Mr. Treybig,” whose medical history in- Valley Healthcare and Rehabilitation Center cluded, among other things, double below the knee (“Nexion”) and Reliant Pro Rehab, LLC amputations and two bilateral hip replacements. (“Reliant”). Nexion, the appellant, filed a motion to Treybig alleges Nexion “engaged, contracted with, dismiss pursuant to section 74.351(b) of the Texas and/or hired” Reliant, a physical therapy provider, Civil Practices and Remedies Code, alleging Trey- “to provide medical care and/or therapy to Mr. big failed to comply with the medical expert report Treybig while [he was] a resident at the facility.” requirement of the Texas Medical Liability Act Treybig's factual theory is that during a therapy ses-

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Not Reported in S.W.3d, 2014 WL 7499373 (Tex.App.-Dallas) (Cite as: 2014 WL 7499373 (Tex.App.-Dallas))

sion at Nexion's facility on October 4, 2011, two of 1. Applicable Law Reliant's therapists stretched Mr. Treybig and “A valid expert report has three elements: it leaned their combined weight on him while ignor- must fairly summarize the applicable standard of ing his cries of pain. On or about October 11, 2011, care; it must explain how a physician or health care Mr. Treybig “was diagnosed as having a compres- provider failed to meet that standard; and it must sion fracture to his L4 vertebrae.” establish the causal relationship between the failure and the harm alleged.” Certified EMS, Inc. v. Potts, On October 11, 2013, Treybig filed a medical 392 S.W.3d 625, 630 (Tex.2013) (citing TEX. CIV.

malpractice lawsuit against Nexion and later PRAC. & REM. CODEE § 74.351(r)(6) (West amended her petition to include Reliant as a de- 2011)). “A report need not marshal all the plaintiff's fendant. Treybig alleged that the back fracture in- proof, but it must include the expert's opinion on jury, “among others, was caused by [Nexion and each of the elements identified in the statute.” Am. Reliant's] failure to design and/or implement care Transitional Care Ctrs. of Tex., Inc. v. Palacios, 46 plans that adequately addressed Mr. Treybig's con- S.W.3d 873, 878 (Tex.2001) (decided under section ditions and failure to provide the care he required.” 13.01 of the predecessor statute, the Medical Liab- On March 7, 2014, Treybig served Nexion and Re- ility and Insurance Improvement Act, previously liant with the expert report and curriculum vitae of codified at article 4590i of the Texas Revised Civil Dr. Lige B. Rushing (“Dr.Rushing”). Nexion and Statutes); see Loaisiga v. Cerda, 379 S.W.3d 248, Reliant each filed a motion to dismiss under the 257–58 (Tex.2012) (applying Palacios 's expert re- TMLA challenging the adequacy of Dr. Rushing's port analysis to the TMLA). “The report can be inexpert report. After a hearing, the trial court denied formal in that the information in the report does not both motions, and Nexion filed this appeal. have to meet the same requirements as the evidence offered in a summary-judgment proceeding or at II. MEDICAL EXPERT'S REPORT trial.” Id. at 879. “In determining a report's suffi-

A. Standard of Review ciency, the court may not look beyond the report it-

*2 “Generally, an appellate court reviews a triself because all information relevant to the inquiry al judge's decision on a motion to dismiss a claim should be contained [within] the document's four under section 74.351 of the Texas Civil Practice corners.” Christian Care Ctrs., Inc. v. Golenko, 328 and Remedies Code for an abuse of discretion.”

S.W.3d 637, 641 (Tex.App.–Dallas 2010, pet.

Baylor Med. Ctr. at Waxahachie v. Wallace, 278 denied) (citing Palacios, 46 S.W.3d at 878).

S.W.3d 552, 555 (Tex.App.–Dallas 2009, no pet.). “A trial court abuses its discretion if it acts in an ar- “The report serves two functions. ‘First, the rebitrary or unreasonable manner without reference to port must inform the defendant of the specific conguiding rules or principles.” Id. “When reviewing duct the plaintiff has called into question. Second, matters committed to the trial court's discretion, an and equally important, the report must provide a appellate court may not substitute its judgment for basis for the trial court to conclude that the claims that of the trial court.” Cayton v. Moore, 224 have merit.’ ” Potts, 392 S.W.3d at 630 (quoting S.W.3d 440, 444 (Tex.App.–Dallas 2007, no pet.). Palacios, 46 S.W.3d at 879). “A report need not “A trial court has no discretion when determining cover every alleged liability theory to make the dewhat the law is or in applying the law to the facts. fendant aware of the conduct that is at issue.” Id. A clear failure by the trial court to analyze or apply “The expert report requirement is a threshold mechthe law correctly will constitute an abuse of discre- anism to dispose of claims lacking merit,” and “[i]f tion.” Wallace, 278 S.W.3d at 555–56 (internal a health care liability claim contains at least one vicitations omitted). able liability theory, as evidenced by an expert report meeting the statutory requirements, the claim B. Standard of Care and Breach

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Not Reported in S.W.3d, 2014 WL 7499373 (Tex.App.-Dallas) (Cite as: 2014 WL 7499373 (Tex.App.-Dallas))

cannot be frivolous.” Id. at 631. ulted in Mr. Treybig's back fracture. Dr. Rushing identifies the standard of care applicable to Nexion “When, as here, a plaintiff sues more than one as follows:

defendant, the expert report must set forth the standard of care for each defendant. If the standard “In order to meet the standard of care, the facility of care is the same for each defendant, then the re- must provide a safe environment for its patients. port must state so.” Tenet Hosps. Ltd. v. Love, 347 This standard encompasses a range of duties re- S.W.3d 743, 753 (Tex.App.–El Paso 2011, no pet.) lating to the patient's stay with the nursing home, (internal citations omitted). “While a ‘fair sum- which the facility owes to the patient, such as semary ’ is something less than a full statement of the curing qualified personnel to administer the serapplicable standard of care and how it was vices provided, adequately supervising any therbreached , even a fair summary must set out what apy sessions, providing proper equipment and facare was expected, but not given.” Palacios, 46 cilities for all treatments necessary to meet the S.W.3d at 880. “In other words, one must be able to patient's needs, and following up with the patient determine from the report what the standard of care to verify the success of all procedures and treatrequired to be done. This requires ‘specific inform- ments.... The standard of care is not met when a ation about what the defendant should have done nursing home fails to properly investigate, treat differently.’ ” Russ v. Titus Hosp. Dist., 128 and document the patient's pain complaints over S.W.3d 332, 342 (Tex.App.–Texarkana 2004, pet. the course of time. The most obvious and egredenied ) (quoting id.). gious instance of Defendant's failure to investigate and treat the patient's back pain was during 2. Application of Law to Facts the therapy session when the therapists ignored *3 As to issue one, where Nexion claims the Mr. Treybig's cries of pain and requests to stop expert report “does not identify the standard of care the session, continuing to push and pull using applicable to Nexion or the actions that Nexion their combined bodyweight.... Reasonable investshould have taken,” Nexion contends Dr. Rushing's igation, documentation and treatment would have reference to “Defendants,” apparently meaning both signified the danger in forceful hamstring Nexion and Reliant, renders his expert report defi- stretches on a double below the knee amputee, cient. Specifically, Nexion argues Dr. Rushing's and prevented fracture. “collective referral to Nexion and Reliant prevents the report from (A) adequately stating the standard Dr. Rushing sets forth what care was expected of care as applied to Nexion and (B) identifying from Nexion and how Nexion failed to provide it. Nexion's allegedly negligent actions in violation of The quoted statements provide a “fair summary” of that standard.” Treybig responds that the report the standard of care applicable to Nexion. See Pala- “does not need to identify separate standards of cios, (“[A] fair summary must set out what care care when one standard applies to both [Nexion and was expected, but not given.”); Columbia N. Hills Reliant] through [Treybig's] vicarious liability and Hosp. Subsidiary, L.P. v. Bowen, No. direct liability claims.” Treybig contends Dr. Rush- 02–13–00286–CV, 2014 WL 345658, at *4–5 ing's report provides “a fair summarization of the (Tex.App.–Fort Worth Jan. 30, 2014, pet. denied) standard of care” and “makes Nexion ‘aware of the (mem.op.) (concluding an expert report that stated conduct that is at issue.’ ” various duties owed by a hospital and detailed how the hospital failed to properly perform those duties Treybig's health care liability claim arises out “fairly summarized the applicable standard of care of the care received by Mr. Treybig while he was a for Hospital and explained how Hospital failed to resident at Pleasant Valley, particularly, the physic- meet that standard”); Russ, 128 S.W.3d at 342 al therapy and other related care that allegedly res-

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Not Reported in S.W.3d, 2014 WL 7499373 (Tex.App.-Dallas) (Cite as: 2014 WL 7499373 (Tex.App.-Dallas))

(concluding that statements in an expert report that “provides a sufficient basis for the trial court to a hospital “deviated from the standard of care,” conclude that the claims have merit.” See Russ, 128 which required the hospital to lock windows or se- S.W.3d at 342. The trial court did not abuse its discure them with metal screens, by “placing patient cretion in denying the motion to dismiss on grounds with potential suicidal ideation and recent suicidal that the report failed to summarize the standard of behavior in a fourth floor room with unlocked win- care and explain how Nexion breached that standdows ” constituted a “specific allegation which ard. See Bowen, 2014 WL 345658, at *5; id. Acprovide [d] the Hospital with notice of the conduct cordingly, we decide Nexion's first issue against it. complained of by [the plaintiff]”).

C. Causation Although other statements in Dr. Rushing's re- *4 In issue two, Nexion contends Dr. Rushing's port describe the duties and failings of “the Defend- report “fails to adequately address causation for the ants,” referring to both Nexion and Reliant, the par- same reason that it fails to address Nexion's standticular statements identified above, which are con- ard of care—the report's collective description of tained within the four corners of the report, are spe- the events and defendants prevents it from adcific to Nexion and are sufficient to inform Nexion equately addressing Nexion's conduct.” Treybig reof its conduct that Treybig calls into question. See sponds that the report “properly sets forth Dr. Presbyterian Cmty. Hosp. of Denton v. Smith, 314 Rushing's opinions on causation as to Nexion” be- S.W.3d 508, 514 (Tex.App.–Fort Worth 2010, no cause “both Reliant and Nexion owed Mr. Treybig pet.) (citing TEX. CIV. PRAC. & REM. CODE the same duty to properly supervise,” and the report ANN.. § 74.351(r)(6) (defining “expert report”)) is “a good faith effort to articulate the causal rela- (rejecting a hospital's argument that “several indi- tionship between Nexion's failure to supervise and vidual statements in [the expert's] report [were] in- the harm to Mr. Treybig.” As discussed above, Dr. sufficient” because the “report, as a whole, Rushing's report does adequately identify Nexion's provide[d] a ‘fair summary’ of [the expert's] opin- allegedly negligent conduct, despite “the report's ions”). It is clear from his report that in Dr. Rush- collective description of the events and defending 's opinion, Nexion's compliance with the stand- ants.” See Fortner v. Hosp. of the Sw., LLP, 399 ard of care, by conducting “[r]easonable investiga- S.W.3d 373, 383–84 (Tex.App.–Dallas 2013, no tion, documentation and treatment” of Mr. Trey- pet.) (concluding expert reports “represent[ed] a big's pain complaints, “would have signified the good faith effort to provide a fair summary of the danger in forceful hamstring stretches on a double experts' opinions about ... the causal relationship below the knee amputee, and prevented fracture.” between the failure and the claimed injury” because Cf. Texarkana Nursing & Healthcare Ctr., LLC v. the reports “identif[ied] each physician and health Lyle, 388 S.W.3d 314, 320 (Tex.App.–Texarkana care provider against which direct liability claims 2012, no pet.) (concluding an expert report, which [were] asserted, including [the appellant, a hospitindicated that a nursing home breached the standard al], and discuss[ed] how the provider breached the of care by “allowing the documented assault of [the applicable standard of care and caused or contribpatient ] by one of its own employees,” did not suf- uted to causation of [the patient's] injury”); Chrisficiently articulate the standard of care and breach tus Spohn Health Sys. Corp. v. Sanchez, 299 because the report did not “advise [the nursing S.W.3d 868, 877–78 (Tex.App.–Corpus Christi home] of what should have been done in order to 2009, pet. denied) (concluding expert reports prevent its employee from assaulting [the pa- “sufficiently linked [the patient's] assault to [the tient]”). We conclude the substance of Dr. Rush- hospital's] failure to protect her from the assaultive ing's report “gives fair notice” to Nexion of its neg- conduct of [its employees]” when the reports stated ligent conduct on which Treybig relies and the hospital “had duty to provide a safe recovery

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Not Reported in S.W.3d, 2014 WL 7499373 (Tex.App.-Dallas) (Cite as: 2014 WL 7499373 (Tex.App.-Dallas))

environment,” described the alleged conduct of the standards of care apply to physicians and health employees, and concluded “[t]he fact that [the pa- care providers.” Wallace, 278 S.W.3d at 558 (citing tient] was vulnerable, unable to protect herself, and Simonson v. Keppard, 225 S.W.3d 868, 872 felt as if her person was violated has caused her to (Tex.App.–Dallas 2007, no pet.)). now have symptoms of Major Depression and Post Traumatic Stress Disorder”). So, for the same reas- When a physician fails to state in his expert reons discussed above, we decide Nexion's second is- port or affidavit that he has knowledge of the sue against it. standard of care applicable to the specific types of health care providers involved in the claim, or D. Medical Expert's Qualifications that he has ever worked with or supervised the In issue three, Nexion contends Dr. Rushing is specific types of health care providers involved in not a “qualified expert” because his report and cur- the claim, the physician is not qualified on the isriculum vitae (1) “do not show that he is actively sue of whether the health care provider departed practicing in nursing home health care” and (2) do from the accepted standards of care for health not “demonstrate that he has knowledge of the care providers. standard of care for nurses or physical therapists working in nursing homes like Nexion.” Id. “ ‘[E]xpert qualifications should not be too narrowly drawn.’ ” Golenko, 328 S.W.3d at 643 1. Applicable Law (quoting Larson v. Downing, 197 S.W.3d 303, 305 For purposes of the expert report, “a person (Tex.2006) (per curiam)). “Rather, the trial court giving opinion testimony regarding whether a should determine whether the proffered expert has health care provider departed from accepted stand- ‘knowledge, skill, experience, training, or educaards of health care” must be qualified to testify. tion regarding the specific issue before the court TEX. CIV. PRAC. & REM. CODEE § which would qualify the expert to give an opinion 74.351(r)(5)(B). Section 74.402(b) provides that a on that particular subject.’ ” Id. (quoting Broders v. person is qualified to testify only if the person: Heise, 924 S.W.2d 148, 153–54 (Tex.1996)). “The focus is on whether the expert's expertise goes to (1) is practicing health care in a field of practice the very matter on which he is to give an opinion.” that involves the same type of care or treatment Id. “Therefore, a medical expert from one specialty as that delivered by the defendant health care may be qualified to testify if he has practical knowprovider , if the defendant health care provider is ledge of what is customarily done by practitioners an individual, at the time the testimony is given of a different specialty under circumstances similar or was practicing that type of health care at the to those at issue in the case.” Tenet Hosps. Ltd. v. time the claim arose; Love, 347 S.W.3d 743, 750 (Tex.App.–El Paso 2011, no pet.); see also Broders, 924 S.W.2d at 153 (2) has knowledge of accepted standards of care (“Our holding does not mean that only a neurosurfor health care providers for the diagnosis, care, geon can testify about the cause in fact of death or treatment of the illness, injury, or condition infrom an injury to the brain, or even that an emervolved in the claim; and gency room physician could never so testify. What (3) is qualified on the basis of training or experi- is required is that the offering party establish that ence to offer an expert opinion regarding those the expert has ‘knowledge, skill, experience, trainaccepted standards of health care. ing, or education’ regarding the specific issue before the court which would qualify the expert to Id.§ 74.402(b). give an opinion on that particular subject.”).

However, “it is not enough to summarily state such “Section 74.402(b) makes it clear that different

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Not Reported in S.W.3d, 2014 WL 7499373 (Tex.App.-Dallas) (Cite as: 2014 WL 7499373 (Tex.App.-Dallas))

‘knowledge’ when the reports and curricula vitae care for such patients,” was qualified to testify to fail to demonstrate how the experts gained the re- the standard of care applicable in a claim against a quisite experience or training,” and “the proffered nursing home for failure to monitor a resident's eye medical expert's expertise must be evident from the injury). Accordingly, we disagree with Nexion to four corners of his report and curriculum vitae.” Id. the extent that it argues Dr. Rushing is not qualified merely because he does not work in a nursing 2. Application of Law to Facts home. Golenko, 328 S.W.3d at 644; IHS Acquisi-

*5 As to its third issue, Nexion's first conten- tion, 2008 WL 1822780, at *4 (“The statute, reastion is that Dr. Rushing is not qualified to render an onably construed, does not require that the expert opinion on the applicable standard of care because be involved in the exact same field as the health- “he is not actively practicing health care in a nurs- care-provider defendant.”) (citing Roberts v. Williing home.” Treybig responds that “Dr. Rushing amson, 111 S.W.3d 113, 121 (Tex.2003)). need not be employed at a nursing home to offer opinions on a fracture to the spine of an elderly pa- Second, Nexion contends Dr. Rushing is not tient.” qualified because “[n]either Dr. Rushing's report nor his [curriculum vitae] demonstrate that he has The “essential claim” in this case involves the knowledge of the standard of care for nurses or standard of care that should be applied in a nursing physical therapists working in nursing homes like home when it contracts with another healthcare pro- Nexion.” In response, Treybig argues that Dr. vider to provide a resident with physical therapy Rushing has “ample experience treating patients and other care on the premises of the nursing home. with spinal injuries, including writing orders to See Golenko, 328 S.W.3d at 644 (concluding that treat and care for spinal injuries and supervising the the “essential claim” against a nursing home in- execution of the orders.” volved the assessment and care of individuals with Alzheimer's disease, so a doctor, who was board According to the record, Dr. Rushing is licertified in geriatrics and internal medicine, had censed to practice medicine in Texas and is board treated patients with similar conditions, was in- certified in internal medicine, rheumatology, and volved in the assessment of those patients, and had geriatrics. He is actively engaged in the practice of supervised nurses in the care and assessment of these three specialties and is an attending physician those patients, was qualified to testify to the applic- at Presbyterian Hospital of Dallas, Texas. In his exable standard of care, despite his lack of “nursing pert report, Dr. Rushing more specifically identifies home experience”). So, the relevant question is not his qualifications regarding this case as follows: the narrow issue of whether Dr. Rushing has worked in a nursing home. Rather, it is the broader In the regular course of my medical practice I issue of whether Dr. Rushing is knowledgeable have occasion to diagnose and treat patients with about the standard of care applicable to the treat- conditions similar to or identical with Mr. Treyment of patients like Mr. Treybig and the relevant big. [D]uring the course of my career I have care provided by Nexion. See id ; IHS Acquisition provided primary medical care to more than No. 140, Inc. v. Travis, No. 13–07–481–CV, 2008 10,000 patients in hospitals, nursing homes and WL 1822780, at *5 (Tex.App.–Corpus Christi Apr. assisted living facilities. I have provided care to 24, 2008, pet. denied) (mem.op.) (concluding a patients who, like Mr. Treybig, were suffering doctor, who was board certified in geriatrics and from diabetes, hip replacement therapy, complic- “knowledgeable about the types of people who ations from infections, amputations, and spinal reside in nursing homes, their afflictions, and most injuries. I have written orders for the care and importantly, the relevant treatment and standard of treatment of these patients and have supervised the execution of these orders by RNs LVN's and

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Not Reported in S.W.3d, 2014 WL 7499373 (Tex.App.-Dallas) (Cite as: 2014 WL 7499373 (Tex.App.-Dallas))

CNA's who were assigned to provide the hands- “provided primary medical care” to patients in on care to my patients. These orders included or- nursing homes with “conditions similar or identical ders for the treatment for hip pain as well as the with Mr. Treybig” does not adequately establish treatment of spinal injuries. I am therefore intim- how Dr. Rushing is “intimately familiar” with the ately familiar with the standards of care for the standard of care owed by a nursing home under facilities involved in this claim as well as the these circumstances. See id.; Simonson, 225 S.W.3d RNs, LVN's and CNA's who provid[ed] care to at 872–73 (“Section 74.402(b)(2) requires that the Mr. Treybig. expert have knowledge of the accepted standard of care for health care providers, i.e. nurse practition-

*6 While Dr. Rushing states that he is ers, for the diagnosis involved in the claim.”

“intimately familiar with the standards of care for (emphasis in original)). Because the four corners of the facilities involved as well as the RNs, LVN's Dr. Rushing's report and curriculum vitae do not and CNA's who provid[ed] care to Mr. Treybig,” he adequately articulate how Dr. Rushing is qualified does not state that he is familiar with the standards to opine on the standard of care applicable to a of care that would be applicable to Nexion's super- nursing home when it contracts with another healthvision of Reliant's physical therapists who provided care provider to provide a resident with physical the relevant care or treatment to Mr. Treybig at therapy care or treatment, we conclude the trial Pleasant Valley, nor does his report and curriculum court abused its discretion in denying the motion to vitae identify any experience supervising, man- dismiss on this basis. We decide in favor of Nexion aging, or overseeing physical therapists or physical on its third issue. See Love, 347 S.W.3d at 750–51. therapy treatment. Compare Golenko, 328 S.W.3d at 644 (concluding a doctor was qualified to testify E. Thirty-day Extension to Cure Deficiencies to the standard of care applicable to the assessment In its fourth issue, Nexion contends the trial of a patient with Alzheimer's disease for admission court abused its discretion when it denied Nexion's to a nursing home when the doctor was certified in motion to dismiss and failed to award Nexion its atgeriatrics and internal medicine, treated patients torney's fees and costs. Treybig responds that if Dr. with Alzheimer's disease, and supervised nurses in Rushing's report is “inadequate, the case should be the care and assessment of those patients), with Si- remanded to receive a 30–day extension to cure the monson, 225 S.W.3d at 872–73 (holding an expert deficiencies.” In response, Nexion argues Treybig report inadequate because the expert, a doctor, did is not entitled to “a chance to get a thirty-day extennot “state that he either ha[d] knowledge of the sion” because Dr. Rushing's report “did not implicstandard of care applicable to nurse practitioners or ate Nexion's conduct,” and Dr. Rushing “was not that he ha[d] ever worked with or supervised nurse qualified to offer the report.” practitioners”). Further, Dr. Rushing's report and curriculum vitae “fail to demonstrate how [he] 1. Applicable Law gained the requisite experience or training” to offer When an expert report is timely served and an opinion on the standard of care applicable in a properly challenged, the trial court “shall grant a nursing home when it contracts with another health- motion challenging the adequacy of an expert recare provider to provide a resident with physical port only if it appears to the court, after hearing, therapy care on the premises of the nursing home. that the report does not represent an objective good See Love, 347 S.W.3d at 750 (“[I]t is not enough to faith effort to comply with the definition of an exsummarily state [the expert's] ‘knowledge’ when pert report in Subsection (r)(6).” TEX. CIV. PRAC. the reports and curricula vitae fail to demonstrate & REM. CODE ANN.. § 74.351(l); Potts, 392 how the experts gained the requisite experience or S.W.3d at 630. The TMLA “also authorizes the trial training.”). The statement that Dr. Rushing has court to give a plaintiff who meets the 120–day

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Not Reported in S.W.3d, 2014 WL 7499373 (Tex.App.-Dallas) (Cite as: 2014 WL 7499373 (Tex.App.-Dallas))

deadline an additional thirty days in which to cure a dicating that the trial court may grant Treybig an ‘deficiency’ in the elements of the report.” opportunity to cure the deficiencies. See Scoresby, Scoresby v. Santillan, 346 S.W.3d 546, 549 346 S.W.3d at 557. Dr. Rushing's report was served (Tex.2011) (citing TEX. CIV. PRAC. & REM. by the statutory deadline, and it “implicates” Nex- CODE ANN.. § 74.351(c)). “The trial court should ion's conduct, stating “[r]easonable investigation, err on the side of granting the additional time and documentation and treatment [of Mr. Treybig's pain must grant it if the deficiencies are curable.” Id. complaints] would have ... prevented fracture” and (internal citations omitted). “The purpose of the ex- “the events and failures set forth in [the] report pert report requirement is to deter frivolous claims, proximately caused Mr. Treybig's injuries.” See id. not to dispose of claims regardless of their merits.” While we have concluded that Dr. Rushing's report Leland v. Brandal, 257 S.W.3d 204, 554 and curriculum vitae did not adequately articulate (Tex.2008) (citing Palacios, 46 S.W.3d at 878). “A how Dr. Rushing is qualified to opine on the appliccourt may not provide opportunities to cure, able standard of care in this case, it does not neceshowever , when an expert report is ‘absent’ as op- sarily follow that Dr. Rushing is not “an individual posed to deficient,” such as when a report “fails to with expertise,” such that the report was “ ‘absent’ address all required elements of a claim.” Hollings- as opposed to deficient.” See Hollingsworth, 353 worth v. Springs, 353 S.W.3d 506, 524 S.W.3d at 524. Dr. Rushing's expertise, as a li- (Tex.App.–Dallas 2011, no pet.) (denying a health censed medical doctor, who is board certified in incare liability claimant an opportunity to cure when ternal medicine, rheumatology, and geriatrics, “is the expert report “omitted any discussion of the ele- relevant in explaining the connection between” the ment of causation,” so the “report could not qualify physical therapists' alleged use of “excessive force” as a good faith effort to meet Chapter 74's require- and the back fracture Mr. Treybig suffered. See ments”). Scoresby, 346 S.W.3d at 557 (“The Act requires that [the expert's] knowledge, training or experi-

“[A] thirty-day extension to cure deficiencies ence, and practice be ‘relevant’ to [the plaintiff's]

in an expert report may be granted if the report is claim.”). We agree with Treybig's contention that served by the statutory deadline, if it contains the this case should be remanded to the trial court for opinion of an individual with expertise that the consideration of a thirty-day extension to cure the claim has merit, and if the defendant's conduct is deficiencies. See Leland, 257 S.W.3d at 208. Acimplicated .” Scoresby, 346 S.W.3d at 557. The Su- cordingly, we decide against Nexion on its fourth preme Court has “recognize[d] that this is a minim- issue. al standard.” Id. “An individual's lack of relevant qualifications and an opinion's inadequacies are de- III. CONCLUSION ficiencies the plaintiff should be given an opportun- The trial court abused its discretion in denying ity to cure if it is possible to do so.” Id. at 549. the motion to dismiss because Dr. Rushing's expert When a court of appeals finds an expert report to be report and curriculum vitae do not adequately articdeficient after the trial court concluded it was ad- ulate how Dr. Rushing is qualified to opine on the equate, the court of appeals “has the discretion to standard of care applicable in a nursing home when remand the case for consideration of a thirty-day it contracts with another healthcare provider to extension to cure the deficiency.” Leland, 257 provide a resident with physical therapy care on the S.W.3d at 208. premises of the nursing home. Accordingly, we reverse the trial court's order denying the motion to 2. Application of Law to Facts dismiss and remand the cause to the trial court to *7 We now address whether Dr. Rushing's re- consider whether to grant Treybig a thirty-day export meets the standard identified in Scoresby, in- tension to cure the deficiencies in Dr. Rushing's re-

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Not Reported in S.W.3d, 2014 WL 7499373 (Tex.App.-Dallas) (Cite as: 2014 WL 7499373 (Tex.App.-Dallas))

port.

Tex.App.-Dallas, 2014 Nexion Health at Garland, Inc. v. Treybig Not Reported in S.W.3d, 2014 WL 7499373 (Tex.App.-Dallas)

END OF DOCUMENT

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314 S.W.3d 508 (Cite as: 314 S.W.3d 508)

Pleadings 30k960(1) k. In general. Most Cited Court of Appeals of Texas, Cases Fort Worth. A trial court's ruling concerning an expert re-

PRESBYTERIAN COMMUNITY HOSPITAL OF port under the Medical Liability and Insurance Act DENTON d/b/a Presbyterian Hospital of Denton is reviewable under the abuse of discretion standand Chad Hammonds, R.N., Appellants, ard. V.T.C.A., Civil Practice & Remedies Code § v. 74.351.

Connie SMITH, Individually and as Personal Representative of the Estate of Thomas Edward Smith, [2] Health 198H 804 Deceased, and as Next Friend for Thomas Anthony Smith, a Minor, and Douglas Smith and Stephanie 198H Health Smith, Appellees. 198HV Malpractice, Negligence, or Breach of Duty No. 2–09–288–CV. 198HV(G) Actions and Proceedings May 20, 2010. 198Hk804 k. Affidavits of merit or meritorious defense; expert affidavits. Most Cited Cases Background: Survivors of deceased patient filed To constitute a good faith effort to comply with negligence suit against hospital, based on post- the definition of an expert report under the Medical operative care provided by three employee-nurses. Liability and Insurance Act the report must discuss Hospital filed motion to dismiss based on alleged the standards of care, breach, and causation with insufficiency of survivors' expert reports. The sufficient specificity (1) to inform the defendant of 393rd District Court, Denton County, Douglas M. the conduct the plaintiff has called into question Robison, J., denied motions. Hospital appealed. and (2) to provide the trial court with a basis to conclude that the claims have merit; a report does Holdings: The Court of Appeals, Anne Gardner, J., not fulfill this requirement if it merely states the exheld that:

pert's conclusions or if it omits any of the statutory (1) reports sufficiently described the standard of requirements. V.T.C.A., Civil Practice & Remedies care applicable to hospital's nurse-employees and Code § 74.351.

how they allegedly breached the standard of care, and [3] Health 198H 804 (2) second report sufficiently linked causation opinions to facts and adequately described chain of 198H Health events allegedly leading to patient's death. 198HV Malpractice, Negligence, or Breach of Duty Affirmed. 198HV(G) Actions and Proceedings 198Hk804 k. Affidavits of merit or merit-

West Headnotes orious defense; expert affidavits. Most Cited Cases [1] Appeal and Error 30 960(1) When reviewing the adequacy of a expert medical report, the only information relevant to the in-

30 Appeal and Error quiry of whether it complies with the definition of 30XVI Review an expert report under the Medical Liability and In-

30XVI(H) Discretion of Lower Court surance Act is the information contained within the 30k960 Rulings on Motions Relating to four corners of the document; this requirement pre-

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314 S.W.3d 508 (Cite as: 314 S.W.3d 508)

cludes a court from filling gaps in a report by draw- ical Liability and Insurance Act; report provided ing inferences or guessing as to what the expert that nurse had a duty to monitor patient's postlikely meant or intended, but does not prohibit ex- operative mental and physical conditions, a duty to perts, as opposed to courts, from making inferences either question or clarify doctor's order before adbased on medical history. V.T.C.A., Civil Practice ministering both morphine and hydrocodone to pa- & Remedies Code § 74.351. tient but failed to do either, and failed to assess or appreciate patient's altered level of consciousness, [4] Health 198H 804 restrain patient, provide sufficient observation of patient, and recognize that patient's catheter had 198H Health been removed from his jugular vein. V.T.C.A., 198HV Malpractice, Negligence, or Breach of Civil Practice & Remedies Code § 74.351.

Duty 198HV(G) Actions and Proceedings [6] Health 198H 804 198Hk804 k. Affidavits of merit or meritorious defense; expert affidavits. Most Cited Cases 198H Health In negligence suit against hospital, based on 198HV Malpractice, Negligence, or Breach of acts of employee-nurse, medical doctor's expert re- Duty port sufficiently described the standard of care ap- 198HV(G) Actions and Proceedings plicable to hospital's nurse-employee and how 198Hk804 k. Affidavits of merit or meritnurse allegedly breached the standard of care, as re- orious defense; expert affidavits. Most Cited Cases quired by Medical Liability and Insurance Act; re- In negligence suit against hospital, based on port stated that nurse had a duty to assist doctor acts of employee-nurse, nurse's expert report suffiwith patient's post-operative anticoagulation ther- ciently described the standard of care applicable to apy, should have known incidence of thrombus fol- second nurse-employee of hospital and how that lowing mechanical valve replacement surgery, nurse allegedly breached the standard of care, as reshould have monitored patient's anticoagulant ther- quired by Medical Liability and Insurance Act; reapy , should have known doctor made incorrect as- port provided that nurse had a duty to monitor pasessment , failed to report doctor's incorrect assess- tient's post-operative mental and physical condiment , and failed to recognize or report patient's ex- tions, but failed to assess or appreciate patient's cessive anticoagulation blood condition to doctors. altered level of consciousness, failed to restrain pa- V.T.C.A., Civil Practice & Remedies Code § tient, failed to provide sufficient surveillance of pa- 74.351. tient, failed to timely discover patient's removal of catheter from jugular vein, and failed to monitor [5] Health 198H 804 and document physiologic monitoring system with appropriate alarm limits. V.T.C.A., Civil Practice & 198H Health Remedies Code § 74.351.

198HV Malpractice, Negligence, or Breach of Duty [7] Health 198H 804 198HV(G) Actions and Proceedings 198Hk804 k. Affidavits of merit or merit- 198H Health orious defense; expert affidavits. Most Cited Cases 198HV Malpractice, Negligence, or Breach of In negligence suit against hospital, based on Duty acts of employee-nurse, nurse's expert report suffi- 198HV(G) Actions and Proceedings ciently described the standard of care applicable to 198Hk804 k. Affidavits of merit or merithospital 's nurse-employee and how nurse allegedly orious defense; expert affidavits. Most Cited Cases breached the standard of care, as required by Med- In negligence suit against hospital, based on

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314 S.W.3d 508 (Cite as: 314 S.W.3d 508)

acts of employee-nurses, medical doctor's expert re- ment of Thomas Edward Smith. On December 31, port sufficiently linked causation opinions to the 2008, the Smiths served the Hospital with expert refacts and adequately described the chain of events ports by Dr. Michael E. Halkos, a cardiothoracic allegedly leading to patient's death by nurse- surgeon, and Dean W. Hayman, R.N., a registered employees' alleged breaches of standard of care, as nurse specializing in cardiac and critical care nursrequired by Medical Liability and Insurance Act; ing. The Hospital filed a motion to dismiss and arreport stated that nurses' failures to properly and gued Dr. Halkos's and Nurse Hayman's expert readequately monitor patient's activities and condi- ports do not meet the statutory requirements betions resulted in their failures to timely and prop- cause they do not constitute “an objective good erly recognize patient's removal of catheter that had faith effort to provide a fair summary of the alleged been sutured in his internal jugular vein, and bleed- experts' opinions on the standard of care, alleged ing from catheter site before patient experienced breach thereof, and how any alleged breach by [the hemorrhagic cardiopulmonary arrest, which prob- Hospital] caused [the Smiths'] damages.” ably led to his death. V.T.C.A., Civil Practice & Remedies Code § 74.351. After a hearing, the trial court denied the Hospital 's motion as to Dr. Halkos's report. The trial *510 Jones Carr McGoldrick, LLP and Jeffrey F. court partially denied and partially granted the Hos- Wood, James J. McGoldrick and Heather J. Forgey, pital's motion as to Nurse Hayman's report and Dallas, for appellants. granted the Smiths an extension to supplement FN1 Nurse Hayman's report if they chose to do so.

Keith Law Firm, PC and Darrell L. Keith, Fort The Smiths then served the Hospital *511 with a Worth, for appellees. supplemental report from Nurse Hayman, and the Hospital again objected. After a hearing, the trial PANEL: LIVINGSTON, C.J.; GARDNER and court overruled the Hospital's objections to the sup- WALKER, JJ. plemental report. This interlocutory appeal followed . See Tex. Civ. Prac. & Rem.Code Ann. § 51.014(a)(9) (Vernon 2008); Lewis v. Funderburk, OPINION 253 S.W.3d 204, 208 (Tex.2008) (authorizing ap-

ANNE GARDNER, Justice. peal from trial court order determining that expert I. Introduction report was adequate and denying motion to dis-

In this interlocutory appeal, Appellants Presby- miss).

terian Hospital of Denton d/b/a Presbyterian Hospital of Denton and Chad Hammonds, R.N. FN1. The trial court stated, “While [Nurse (collectively, the Hospital) argue that the trial court Hayman's report] was deficient in part, I abused its discretion by denying the Hospital's mo- find that the Halkos report was sufficient tion to dismiss. We affirm the trial court's order. to create a basis for asserting a claim that fairly put the Hospital on notice of the type II. Procedural Background of claims that are being asserted against it Appellees Connie Smith, Individually, and as by and through the nurses.” The trial court Personal Representative of the Estate of Thomas also stated that its partial grant of the Hos- Edward Smith, Deceased, and as Next Friend for pital's objection to Nurse Hayman's report Thomas Anthony Smith, a Minor, and Douglas and is “kind of irrelevant because I find that it's Stephanie Smith (collectively, the Smiths) sued the [otherwise] sufficient.” Hospital on September 2, 2008. The Smiths asserted that the Hospital, by and through its nurse- III. Factual Background employees, acted negligently in its care and treat- The Smiths' fourth amended petition, their live

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314 S.W.3d 508 (Cite as: 314 S.W.3d 508)

pleading at the time of the second hearing on the Over the next few days, Mr. Smith continued Hospital's motion to dismiss, contains the following receiving blood pressure medications and received allegations relevant to their claims against the Hos- a new Quinton catheter. He received dialysis therpital . apy, but by July 8, 2006, his “blood pressure continued to drop despite increasing ... his blood pres-

On June 21, 2006, Mr. Smith presented to the sure medications” and other treatments. Mr. Smith emergency department at the Hospital with inter- also had “continuous oozing of blood from his mittent headaches, feverishness, increasing malaise mouth, nose, hemodialysis catheter, and scrotal and shortness of breath, minimal cough, shoulder area.” On July 9, 2006, Dr. Mario Ruiz informed and back pain, and leg swelling. He was admitted to Mr. Smith's wife, Connie, that Mr. Smith was the Hospital for further evaluation and treatment. “slowly dying.” On July 10, 2006, “a medical de- Tests revealed “the presence of bilateral pneumonia cision was made to withdraw life support measures and moderate renal compromise” and “severe tri- from Mr. Smith due to his severely [sic] brain damcuspid regurgitation with vegetations present.” Mr. aged [sic] and other conditions, such life support Smith's blood cultures were also positive for methi- measures were withdrawn from Mr. Smith, and he cillin-sensitive Staphylococcus aureus, and he was was pronounced dead” on the evening *512 of July treated with intravenous antibiotics. 10, 2006. An autopsy by Dr. Juan Zamora “revealed pathological findings of a status post re-

Because of his diagnosis of tricuspid valve encent tricuspid valve prosthesis implant showing no docarditis, Mr. Smith “underwent a tricuspid valve complications, hypertrophy of the heart (500g) with debridement and excision with tricuspid valve reorganizing fibrinoid percarditis, bilateral granuloplacement ” on June 30, 2006. A transesophageal mata of the lungs, edema of the brain with acute echocardiogram at the end of the operative procedhepatitis , and other findings.”

ure “revealed good seating of the valve with no evidence of perivalvular leak, good function of the IV. Standard of Review valve leaflets and ... no evidence of an atrial- [1] A trial court's ruling concerning an expert ventricular block.” Mr. Smith then returned to the report under section 74.351 (formerly article 4590i, intensive care unit (the ICU) for further treatment section 13.01) of the Medical Liability and Insurand recovery. ance Act is reviewable under the abuse of discretion standard. See Tex. Civ. Prac. & Rem.Code On July 4, 2006, Mr. Smith had a Quinton Ann. § 74.351; Bowie Mem'l Hosp. v. Wright, 79 catheter sutured into place in his left internal jugu-

S.W.3d 48, 52 (Tex.2002); Am. Transitional Care lar vein. He tolerated the procedure well, and all Ctrs. of Tex., Inc. v. Palacios, 46 S.W.3d 873, 875 catheters in his body were “noted to be free of (Tex.2001). To determine whether a trial court abreddness [sic] or edema.” However, Nurse Hamused its discretion, we must decide whether the trial monds entered Mr. Smith's room on July 5, 2006, court acted without reference to any guiding rules and found that Mr. Smith “was experiencing agonal or principles; in other words, we must decide respirations,” that “the Quintan [sic] catheter was whether the act was arbitrary or unreasonable. Cire no longer in its proper place,” and that Mr. Smith v. Cummings, 134 S.W.3d 835, 838–39 (Tex.2004).

“was and had been experiencing significant bleed-

An appellate court cannot conclude that a trial court ing.” The medical staff successfully resuscitated abused its discretion merely because the appellate Mr. Smith, and he remained in the ICU. Later that court would have ruled differently in the same cirday , however, Mr. Smith “was medically assessed cumstances. Bowie Mem'l, 79 S.W.3d at 52; E.I. du that he was not able to follow simple commands, Pont de Nemours & Co. v. Robinson, 923 S.W.2d except to open his eyes when his name was called.”

549, 558 (Tex.1995).

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314 S.W.3d 508 (Cite as: 314 S.W.3d 508)

V. Statutory Requirements 228 S.W.3d 276, 279 (Tex.App.-Austin 2007, no A health care liability claimant must serve an pet.). However, section 74.351 does not prohibit exexpert report on each defendant no later than the perts, as opposed to courts, from making inferences 120th day after the claim is filed. See Tex. Civ. based on medical history. *513Marvin v. Fithian, Prac. & Rem.Code Ann. § 74.351(a). A defendant No. 14–07– 00996–CV, 2008 WL 2579824, at *4 may challenge the adequacy of a report by filing a (Tex.App.-Houston [14th Dist.] July 1, 2008, no motion to dismiss, and the trial court must grant the pet.) (mem. op.); see also Tex.R. Evid. 703 motion to dismiss if it finds, after a hearing, that (providing that an expert may draw inferences from “the report does not represent an objective good the facts or data in a particular case); Tex.R. Evid. faith effort to comply with the definition of an ex- 705 (providing that expert may testify in terms of pert report” in the statute. Id. § 74.351(l ). While opinions and inferences). the expert report “need not marshal all of the plaintiff's proof,” it must provide a fair summary of VI. Analysis the expert's opinions as to the “applicable standard The Hospital argues in its sole issue that the of care, the manner in which the care rendered by expert reports by Dr. Halkos and Nurse Hayman are the physician or health care provider failed to meet insufficient and that the trial court abused its disthe standards, and the causal relationship between cretion by denying the Hospital's motion to dismiss. that failure and the injury, harm, or damages See Tex. Civ. Prac. & Rem.Code Ann. § 74.351(l ). claimed.” Id. § 74.351(r)(6); Palacios, 46 S.W.3d at Dr. Halkos's and Nurse Hayman's expert reports 878 (construing former article 4590i, § 13.01). discuss the acts and omissions of three of the Hospital 's nurse-employees: Donna L. McElravy, R.N.;

[2] To constitute a good faith effort, the report Chad Hammonds, R.N.; and Garland Gill, R.N. We must discuss the standards of care, breach, and address the allegations against each of these nursecausation with sufficient specificity (1) to inform employees in turn. the defendant of the conduct the plaintiff has called into question and (2) to provide the trial court with A. Duty and Alleged Breach by Nurse McElravy a basis to conclude that the claims have merit. See The Hospital contends Dr. Halkos's report is in- Bowie Mem'l, 79 S.W.3d at 52; Palacios, 46 sufficient because it does not adequately describe S.W.3d at 879. A report does not fulfill this require- the standard of care applicable to Nurse McElravy ment if it merely states the expert's conclusions or or how Nurse McElravy allegedly breached the if it omits any of the statutory requirements. Bowie standard of care. Mem'l, 79 S.W.3d at 52; Palacios, 46 S.W.3d at Relevant portions of Dr. Halkos's report 879. But the information in the report “does not provide:

have to meet the same requirements as the evidence offered in a summary-judgment proceeding or at McElravy was responsible for assisting Dr. trial.” Palacios, 46 S.W.3d at 879. Bolton in managing the post-operative anticoagulation therapy of Mr. Smith to prevent thrombus [3] When reviewing the adequacy of a report, formation as a result of the mechanical valve rethe only information relevant to the inquiry is the placement surgery performed on the patient. At information contained within the four corners of the that time, the incidence of thrombus (blood clot)

document. Bowie Mem'l, 79 S.W.3d at 52; Palacomplications of following mechanical valve recios , 46 S.W.3d at 878. This requirement precludes placement surgery was or should have been a a court from filling gaps in a report by drawing inmatter of common knowledge to reasonably ferences or guessing as to what the expert likely prudent registered nurses specializing in cardimeant or intended. See Austin Heart, P.A. v. Webb, ovascular and thoracic surgery.

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314 S.W.3d 508 (Cite as: 314 S.W.3d 508)

McElravy should have properly monitored anti- post-operative anticoagulation therapy; (2) should coagulant therapy for Mr. Smith in a manner that have known the incidence of thrombus following would maintain an INR (International Normal- mechanical valve replacement surgery; (3) should ized Ratio) of 2.5 to 3.5; or a PTT (Partial have monitored Mr. Smith's anticoagulant therapy Thromboplastin Time) of 1.5 to 2.5 times the so as to maintain an INR of 2.5 to 3.5 or a PTT of control.... On the morning of July 4, 2006, at 1.5 to 2.5 times the control; (4) should have known about 9:00 a.m., Dr. Bolton noted an INR greater Dr. Bolton incorrectly recorded the INR as greater than 3 in Mr. Smith, and recorded in the progress than 3; (5) failed to report Dr. Bolton's incorrect asnotes that Mr. Smith's INR was greater than 3 sessment of Mr. Smith's INR; and (6) failed to reand noted to hold the administration of coumadin cognize or report Mr. Smith's excessive anticoaguthat night. [The Hospital] laboratory reported lation blood condition to Dr. Bolton, Dr. Russell, or critically abnormal results of Mr. Smith's PT ( PA Dizney. These statements, all contained within protime) at about 9:34 a.m., as being greater than the four corners of Dr. Halkos's report, are suffi- 120 seconds[,] and the laboratory was unable to cient to inform the Hospital of the specific conduct calculate the INR. The protime greater than 120 by Nurse McElravy that the Smiths have called into seconds value reflected an excessive and poten- question and provide a basis for the trial court to tially dangerous state of anticoagulation in Mr. conclude that the Smiths' claim has merit. See Smith's blood. Bowie Mem'l Hosp., 79 S.W.3d at 52; Palacios, 46 S.W.3d at 879.

When the critically abnormal PT results and lack of a calculable INR were reported, McElravy The Hospital also argues that several individual should have become aware of this information, statements in Dr. Halkos's report are insufficient.

FN2 and reported such values to Dr. Bolton, Dr. Rus- We do not address these specific arguments by sell, or PA Dizney and cause repeat testing of a the Hospital, however, because Dr. Halkos's report, new blood specimen from Mr. Smith to verify the as a whole, provides a “fair summary” of his opinpreviously noted and reported critical results.... ions; it (1) sufficiently informs the Hospital of the Therefore, when McElravy discovered or should conduct the Smiths question and (2) provides the have discovered that Dr. Bolton improperly re- trial court with a basis to conclude the Smiths' corded Mr. Smith's INR as greater than 3, she claim has merit. See Tex. Civ. Prac. & Rem.Code failed to meet the applicable standard of reason- Ann. § 74.351(r)(6); Bowie Mem'l, 79 S.W.3d at able and prudent nursing care in that she failed to 52; Palacios, 46 S.W.3d at 879; Benavides v. Garbring to Dr. Bolton or PA Dizney's attention Dr. cia, 278 S.W.3d 794, 799 (Tex.App.-San Antonio Bolton's improper assessment of Mr. Smith's INR 2009, pet. denied) (stating that opinion in expert reon the morning of July 4, 2006[;] she also failed port, read in isolation, appeared conclusory, but to meet the standard of reasonable nursing care in holding that opinion was sufficiently described in failing to recognize Mr. Smith's excessive antico- context of entire report). The trial court did not abagulation blood condition, report such condition use its discretion by finding that Dr. Halkos's report to Dr. Bolton, Dr. Russell *514 or PA Dizney and adequately address Nurse McElravy's alleged duties bring about appropriate intervention to correct and breaches of those duties. this dangerous condition for Mr. Smith.

FN2. For example, the Hospital argues Dr.

[4] Dr. Halkos's report adequately describes Halkos's report states that Nurse McElravy Nurse McElravy's duties and alleged breaches of “should have properly monitored anticothose duties. The report states that McElravy: (1) agulant therapy for Mr. Smith” but does had a duty to assist Dr. Bolton with Mr. Smith's not explain how Nurse McElravy improp-

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314 S.W.3d 508 (Cite as: 314 S.W.3d 508)

erly monitored anticoagulant therapy or Dr. Bolton and question the orders. how Nurse McElravy should have monitored it and does not state how McElravy Nurse Hammonds failed to perform sufficient was negligent in not having information surveillance to discover the removal of the IJ about “critically abnormal PT ... results catheter in time to prevent Mr. Smith's hemorand lack of calculable INR” as alleged in rhagic arrest. A reasonably prudent critical care the report. nurse ... should have known that continuous bleeding for approximately 30—45 minutes B. Duty and Alleged Breach by Nurse Ham- would lead to hemorrhagic cardiac arrest. Theremonds fore, it is reasonable to conclude, in reasonable The Hospital also contends Nurse Hayman's re- nursing probability, that Defendant Hammonds port and supplemental report are insufficient be- failed to see and assess Mr. Smith for at least 30 cause they do not adequately describe the standard minutes prior to his arrest. According to the hosof care applicable to Nurse Hammonds or how pital records, Hammonds recorded Mr. Smith's Nurse Hammonds allegedly breached the standard vital signs at a time prior to his arrest when the of care. Quinton catheter must have been out and therefore significant bleeding would and should have Relevant portions of Nurse Hayman's report been obvious to a critical care nurse, including provide: Hammonds, performing duties according to the standards for reasonable and prudent nurses in Nurse Hammonds was responsible for provid-

ICU settings. The hospital ICU records indicate ing reasonable and prudent nursing diagnosis, asthat Hammonds either failed to properly observe sessment, care and treatment for Mr. Smith's Mr. Smith, or he did not accurately and compost -operative conditions and well-being in the pletely record his nursing actions in the hospital [Hospital] ICU, and this responsibility included record, and both such failures would be a violacareful and frequent monitoring of his physical tion of the applicable standard of nursing care for and mental conditions, the plan of care from mul-

Hammonds.

tiple consultants, and the delivery of ongoing intensive nursing care in the ICU and interventions Nurse Hammonds failed to set alarm limits on as prescribed by attending and consulting physi- the physiologic monitors that reflected the pacians as well as reasonable nursing practices. tient's baseline vital signs and thereby failed to discover when various parameters were in alarm *515 Nurse Hammonds administered 4 mg of condition.... Hammonds either failed to transduce morphine sulfate by IV and 15 mg of hydrothe IJ catheter to the alarm system or he failed to codone by mouth at 2000 (8:00 PM) on 7/04/06.

respond to the alarm condition caused by the re-

Nurse Hammonds failed to properly administer moval of the device. In either situation, Hamthe PRN (as necessary) pain control orders bemonds failed to meet the applicable standard of cause he should have known that both medicanursing care for Mr. Smith.... In violation of the tions should not have been administered to Mr.

standards for reasonable and prudent critical care Smith in one dose. If Nurse Hammonds believed nursing, Nurse Hammonds failed to document such orders allowed the choice to administer both alarm conditions, rhythm strips, oxygen demedications at one time, then Hammonds failed saturation or his nursing responses to any of the to question or clarify Dr. Bolton's orders. It was a abnormalities that occurred before Mr. Smith exviolation of the reasonable and prudent standards sanguinated (bled out) into arrest.

of nursing care for a critical care nurse to administer the medications in that manner or not to call The hospital code record reflects that ECG mon-

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314 S.W.3d 508 (Cite as: 314 S.W.3d 508)

itoring and pulse oximetry were in progress at the tients, including Mr. Smith, who demonstrate a detime of the arrest event. Defendant Hammonds creased level of consciousness, disorientation, and/ either failed to establish that monitoring or he ig- or sedation in order to prevent the patient from nored the alarm conditions that would have oc- causing injury to himself.” Nurse Hayman's supplecurred in the setting of “agonal breathing.” Mr. mental report states that Nurse Hammonds failed to Smith's agonal breathing would have caused appreciate the potential side effects of simultaneous alarm conditions in the rate of respirations and doses of morphine sulphate and hydrocodone, oxygen saturation on the alarm system.... Defend- failed to assess, from a nursing perspective, Mr. ant Hammonds failed to recognize, intervene in, Smith's resulting neurological impairment and deor document and report any such alarm condi- creased levels of consciousness, disorientation, tions for Mr. Smith at that time. Further, Ham- and/or sedation, and failed to utilize wrist restraints monds had an obligation to be in audible or visu- to prevent Mr. Smith from causing injury to himal proximity to promptly and adequately respond self. to any such clinical or physiological alarm conditions . [5] Nurse Hayman's report and supplemental report provide that Nurse Hammonds: (1) had a Using the physiologic monitoring system, Nurse duty to monitor Mr. Smith's post-operative mental Hammonds should have established and mon- and physical conditions; (2) had a duty to either itored clinical alarms/limits based on [Mr. question or clarify Dr. Bolton's order before admin- Smith's] condition.... All central venous lines or istering both morphine and hydrocodone to Mr. *516 catheters, like the left internal jugular cath- Smith but failed to do either; (3) failed to assess, eter, should have been transduced to the from a nursing perspective, or appreciate Mr. physiological monitoring system such that the Smith's altered level of consciousness; (4) failed to monitoring system would alarm when a central use bilateral soft wrist restraints or obtain orders line became disconnected. from Dr. Bolton or Dr. Russell for wrist restraints;

(5) failed to provide sufficient observations and Defendant Hammonds failed to perform suffi- surveillance of Mr. Smith; (6) failed to recognize cient surveillance to discover the removal of the that Mr. Smith's Quinton catheter had been re- IJ catheter in time to prevent Mr. Smith's hemor- moved while recording Mr. Smith's vital signs; (7) rhagic arrest. A reasonably prudent critical care failed to timely discover the removal of Mr. Smith's nurse, would have known that continuous bleed- Quinton catheter; and (8) either failed to establish a ing for approximately 30—45 minutes would physiologic monitoring system and set the approlead to hemorrhagic cardiac arrest. Therefore, in priate alarm limits on the monitoring system or reasonable medical probability, Hammonds failed failed to monitor and document the alarms from the to observe Mr. Smith for 30—45 minutes prior to monitoring system. These statements, all contained the arrest event. within the four corners of Nurse Hayman's report, are sufficient to inform the Hospital of the specific In addition, Nurse Hayman's supplemental reconduct by Nurse Hammonds that the Smiths have port provides that the standard of care applicable to called into question and provide a basis for the trial Nurse Hammonds requires him to have basic knowcourt to conclude that the claim has merit. See ledge of all medications he administers to a patient, Bowie Mem'l, 79 S.W.3d at 52; Palacios, 46 including the potential side effect of the medica-

S.W.3d at 879. The trial court did not abuse its distions to assess, from a nursing perspective, cretion in finding that Nurse Hayman's report and “decreased levels of consciousness, disorientation, supplemental report sufficiently address duty and and/or sedation in patients” similar to Mr. Smith, alleged breach of duty as to Nurse Hammonds.

and to “utilize wrist restraints in the care of pa-

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314 S.W.3d 508 (Cite as: 314 S.W.3d 508)

C. Duty and Alleged Breach by Nurse Gill Using the physiologic monitoring system, Nurse [6] The Hospital next contends Nurse Hay- Gill should have established and monitored clinman 's report and supplemental report are insuffi- ical alarms/limits based on [Mr. Smith's] condicient because they do not adequately describe the tion.... All central venous lines or catheters, like standard of care applicable to Nurse Gill or how the left internal jugular catheter, should have Nurse Gill allegedly breached the standard of care. been transduced to the physiological monitoring system such that the monitoring system would *517 Relevant portions of Nurse Hayman's re- alarm when a central line became disconnected.

port provide:

Furthermore, Nurse Hayman's supplemental re-

Nurse Gill was responsible for providing reas- port states that the standard of care applicable to onable and prudent nursing diagnosis, assess- Nurse Gill requires him to have basic knowledge of ment, care and treatment for Mr. Smith's post- all medications he administers to a patient, includoperative conditions and well-being in the ing the potential side effect of the medications to [Hospital] ICU, and this responsibility included assess, from a nursing perspective, “decreased careful and frequent monitoring of his physical levels of consciousness, disorientation, and/or sedaand mental conditions, the plan of care from mul- tion in patients” similar to Mr. Smith, and to tiple consultants, and the delivery of ongoing in- “utilize wrist restraints in the care of patients, intensive nursing care in the ICU and interventions cluding Mr. Smith, who demonstrate a decreased as prescribed by attending and consulting physi- level of consciousness, disorientation, and/or sedacians as well as reasonable nursing practices. tion in order to prevent the patient from causing injury to him [self].” Nurse Hayman's supplemental Nurse Gill failed to perform sufficient surveilreport states that Nurse Gill failed to appreciate the lance to discover the removal of the IJ catheter in potential side effects of simultaneous doses of time to prevent Mr. Smith's hemorrhagic arrest. A morphine sulphate and hydrocodone, failed to asreasonably prudent critical care nurse, should sess, from a nursing perspective, Mr. Smith's resulthave known that continuous bleeding for approxing neurological impairment and decreased levels imately 30—45 minutes would lead to hemorof consciousness, disorientation, and/or sedation, rhagic cardiac arrest. Therefore, it is reasonable and failed to utilize wrist restraints to prevent Mr.

to conclude, in reasonable nursing probability, Smith from causing injury to himself.

that Defendant Gill failed to see and assess Mr. Smith for at least 30 minutes prior to his arrest. Nurse Hayman's report and supplemental report The hospital ICU records indicate that Gill either adequately describe Nurse Gill's duties and alleged failed to properly observe Mr. Smith, or he did breaches of those duties. The report and supplenot accurately and completely record his nursing mental report provide that Nurse Gill: (1) had a actions in the hospital record, and both such fail- duty to monitor Mr. Smith's post-operative mental ures would be a violation of the applicable stand- and physical conditions; (2) failed to, from a nursard of nursing care for Gill. ing perspective, assess or appreciate Mr. Smith's altered level of consciousness; (3) failed to use bi-

Defendant Gill failed to recognize, intervene in, lateral soft wrist restraints or obtain orders from Dr.

or document and report any such alarm condi-

Bolton or Dr. Russell for wrist restraints; (4) failed tions for Mr. Smith at that time. Further, Gill had to provide sufficient surveillance of Mr. Smith; (5)

an obligation to be in audible or visual proximity failed to timely discover *518 the removal of Mr.

to promptly and adequately respond to any such Smith's Quinton catheter; and (6) failed to establish clinical or physiological alarm conditions.

or monitor and document a physiologic monitoring

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314 S.W.3d 508 (Cite as: 314 S.W.3d 508)

system with the appropriate alarm limits. These If Dr. Suominen, PA Dizney or Nurse McElravy statements, all contained within the four corners of had properly evaluated Mr. Smith's conditions Nurse Hayman's reports, are sufficient to inform the and notified Dr. Bolton and Dr. Russell of such Hospital of the specific conduct by Nurse Gill that conditions, then in all probability, Mr. Smith's the Smiths have called into question and provide a state of excessive anticoagulation would have basis for the trial court to conclude that the Smiths' been recognized and corrected because the apclaim has merit. See Bowie Mem'l, 79 S.W.3d at 52; plicable standards of medical care for Dr. Bolton Palacios, 46 S.W.3d at 879. The trial court acted and Dr. Russell would have required them to take within its discretion in finding that Nurse Hayman's such action under the circumstances. Unfortureport and supplemental report sufficiently address nately, Mr. Smith's state of excessive anticoaguduty and alleged breach of duty as to Nurse Gill. lation continued and the administration of large doses of narcotic pain medications administered D. Causation by Nurse Hammonds to Mr. Smith on the evening [7] Finally, the Hospital argues the Smiths' ex- of July 4, 2006, in all probability led to disorientpert reports are insufficient because they do not suf- ation and neurological impairment in Mr. Smith ficiently describe how the alleged breaches of the such that he was able to self-remove the left instandard of care by the Hospital's three nurse- ternal jugular Quinton catheter causing massive employees caused any harm to Mr. Smith. hemorrhage leading to exsanguinating cardiopulmonary arrest. Although the sequence of events Relevant portions of Dr. Halkos's report leading up to Mr. Smith's hemorrhagic arrest is provide:

not accurately or completely documented in the It is my opinion that each of the above-described [Hospital] medical record, it is likely that Mr. failures of Dr. Bolton, Dr. Russell, Dr. Suominen, Smith's neurological impairment, caused by the PA Dizney, Nurse McElravy, Nurse Hammonds, large doses of narcotic pain medications for the and Nurse Gill to meet the reasonable, prudent, above-discussed reasons, allowed him to avoid and accepted standards of medical, nursing and suffering the significant pain of self-removal of health care in the diagnosis, assessment, care and the Quinton catheter from his neck and not be treatment of [Mr.] Smith's post-operative and alarmed by the subsequent massive hemorrhage clinical conditions, separately and collectively, he experienced and summon the [Hospital] nursprobably caused Mr. Smith to experience a ing staff for help. worsening of his physical and mental conditions *519 Dr. Suominen's failure to adequately secure leading to his pulling out the Quinton catheter the Quinton catheter to Mr. Smith's neck and resulting in significant and severe bleeding that Nurse McElravy's failure to cause to be ordered[ led to his hemorrhagic cardiopulmonary arrest ] soft wrist restraints in the setting of Mr. Smith's with pulseless electrical activity, resuscitation, altered level of consciousness allowed this series additional deterioration, and his death....

of events to occur where Mr. Smith was able to Dr. Bolton and Dr. Russell's failures to be noti- pull out the Quinton catheter and experience fied [by Nurse McElravy] of Mr. Smith's severe massive bleeding. If Dr. Suominen had adabnormal anticoagulation condition, as demon- equately secured the Quinton catheter in Mr. strated by his incalculable and undetermined INR Smith's neck and if Nurse McElravy had caused as of July 4, 2006, due to his abnormally high to be ordered[ ] soft wrist restraints in the setting protime (greater than 120 seconds), allowed his of Mr. Smith's altered level of consciousness this excessive anticoagulation condition to continue series of events where Mr. Smith was able to pull unrecognized and uncorrected. out the Quinton catheter and experience massive

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314 S.W.3d 508 (Cite as: 314 S.W.3d 508)

bleeding in all lilklihood [sic] would not have oc- FN3. The Hospital also argues that Nurse curred and would not have progressed to cardiop- Hayman is not qualified to render causaulmonary arrest. tion opinions. We need not address this argument , however, because Dr. Halkos's re-

Nurses Hammonds['] and Gill's failures to prop- port, without reference to Nurse Hayman's erly and adequately monitor Mr. Smith's above- report, sufficiently addresses the causation described activities and conditions resulted in element in the Smiths' claim against the their failures to timely and properly recognize his Hospital. See Tex.R.App. P. 47.1. removal of the Quinton catheter and the bleeding from the catheter site before he experienced hem- We overrule the Hospital's sole issue. orrhagic cardiopulmonary arrest.... Nurses Hammonds and Gill failed to closely monitor Mr. VII. Conclusion Smith's conditions for a period of at least 30 to 45 Having overruled the Hospital's sole issue, we minutes before Hammonds['s] discovery of Mr. affirm the trial court's order. Smith's hemorrhagic arrest. If Nurses Hammonds Tex.App.–Fort Worth,2010.

and Gill had timely discovered Mr. Smith's self-

Presbyterian Community Hosp. of Denton v. Smith removal of the Quinton catheter within 30 to 45 314 S.W.3d 508 minutes before arrest, and implemented proper interventional procedures, it is likely that Mr. END OF DOCUMENT Smith's significant bleeding condition could have been stopped and would not have progressed to cardiopulmonary arrest. Although Mr. Smith's clinical condition had a mortality of about twenty percent prior to the arrest, the above-discussed failures of Dr. Bolton, Dr. Russell, Dr. Suominen, PA Dizney, McElravy, Hammonds, and Gill probably led to the arrest and the sequelae that probably ensued and in reasonable probability led to his progressive weakness, increasing renal dysfunction , and multi-system organ failure and his death.

These statements, all contained within the four corners of Dr. Halkos's report, sufficiently link Dr. Halkos's causation opinions to the facts and adequately describe the chain of events allegedly leading to Mr. Smith's death. See Patel v. Williams, 237 S.W.3d 901, 905–06 (Tex.App.-Houston [14th Dist.] 2007, no pet.) (holding expert report sufficiently set forth causation when it presented a chain of events beginning with a contraindicated prescription and ending with the patient's death). The trial court acted within its discretion in finding that Dr. Halkos's report sufficiently address the element of FN3 causation.

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Not Reported in S.W.3d, 2011 WL 6938538 (Tex.App.-Hous. (1 Dist.)) (Cite as: 2011 WL 6938538 (Tex.App.-Hous. (1 Dist.)))

ing their motion to dismiss Penny Jean's healthcare Only the Westlaw citation is currently available. liability claim for failure to serve an adequate expert report. See TEX. CIV. PRAC. & REM.CODE SEE TX R RAP RULE 47.2 FOR DESIGNATION ANN. § 74.351(a) (West 2011). Penny's mother, AND SIGNING OF OPINIONS. Willie Ann Jean, died approximately three weeks after gallbladder surgery as a result of hypoxic en-

MEMORANDUM OPINION cephalopathy. Dr. Zuniga performed the surgery.

Court of Appeals of Texas, Dr. Shenoy, a cardiologist, cleared Jean for the sur-

Houston (1st Dist.). gery.

Vasudev SHENOY and Dario Zuniga, Appellant FN1. See TEX. CIV. PRAC. & v.

REM.CODE ANN. § 51.014(a)(9) (West Penny JEAN, Individually, and as Wrongful Death 2011).

Beneficiary of Willie Ann Jean, Deceased, and on Behalf of the Estate of Willie Ann Jean, Deceased, In two issues, Shenoy contends that the trial and on Behalf of all Wrongful Death Beneficiaries court abused its discretion in denying his motion to of Willie Ann Jean, Deceased, Appellee. dismiss because Jean's expert, Dr. Mazzei, an anesthesiologist , is not qualified to opine on the applic-

No. 01–10–01116–CV.

able standard of care for a cardiologist, breach of Dec. 29, 2011.

that standard or causation, and his report does not On Appeal from the 151st District Court, Harris adequately address standard of care, breach, or County, Texas, Trial Court Case No.2010–28302. causation. In his sole issue, Zuniga contends that John G. Myers, Dee L. Dawson, Myers Doyle, the trial court abused its discretion because (1) Houston, for Appellant Vasudev Shenoy. Mazzei is not qualified to offer an opinion on the applicable standard of care for a surgeon, (2) the re-

Robert G. Smith, David O. Cluck, Scott B. Novak, port does not address how Zuniga caused Willie Lorance & Thompson, P.C., Houston, for Appellant Ann's death beyond mere conclusions, and (3) it is Dario Zuniga. “impermissibly cumulative”—that is, it does not adequately identify the particular breaches of the Monica C. Vaughan, for Penny Jean, Individually, standard of care or causation with respect to each and as Wrongful Death Beneficiary of Willie Ann separate defendant. We reverse and render an order Jean, Deceased, and on Behalf of the Estate of Wil- dismissing the claims against Shenoy and Zuniga. lie Ann Jean, Deceased, and on Behalf of all Wrongful Death Beneficiaries of Willie Ann Jean, Background Deceased. Mazzei's expert report provides the background facts in this case. The medical records are not before us, and we accept the factual statements for the Panel consists of Chief Justice RADACK and FN2 limited purpose of this appeal.

Justices SHARP and BROWN.

FN2. See Bowie Mem'l Hosp. v. Wright, 79 MEMORANDUM OPINION S.W.3d 48, 53 (Tex.2002) (review of HARVEY BROWN, Justice. Chapter 74 report is limited to four corners FN1 of report).

*1 In this interlocutory appeal, Dr. Shenoy and Dr. Zuniga appeal the trial court's orders deny-

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Not Reported in S.W.3d, 2011 WL 6938538 (Tex.App.-Hous. (1 Dist.)) (Cite as: 2011 WL 6938538 (Tex.App.-Hous. (1 Dist.)))

Willie Ann Jean, age 57, was taken by ambu- plained. Shenoy cleared Willie Ann for the galllance to the emergency room of Doctor's Hospital bladder surgery. on February 15,2008, complaining of abdominal pain, vomiting, chest pain of three hours' duration, Dr. Amin–Sankar, an anesthesiologist, perand difficulty breathing. As part of her admission, formed a preoperative anesthesia assessment on Willie Ann gave an extensive medical history that February 19. He noted Willie Ann's past medical included diabetes, hypertension, angina, surgery for history, including her acute myocardial infarction a brain aneurysm, coronary artery disease, chronic and abnormal EKG. Amin–Sankar cleared Willie obstructive pulmonary disease, hypercholester- Ann for surgery. olemia, and a prior myocardial infarction. Willie On February 19, 2008, Zuniga performed the Ann reported she had experienced abdominal and surgery. The surgery was an “uneventful” procedchest pain for years without treatment. Based on a ure. After leaving the post-anesthesia careunit physical examination and ultrasound, the emer-

(PACU), Willie Ann was to be sent to the intensive gency room physician, Dr. Mireles, determined that care unit because she had fluctuating oxygen saturshe had polyps and diagnosed symptomatic gallation levels, inadequate ventilation, and shallowstones in her gallbladder. He recommended that she ness of breath. Shortly thereafter, she was transporundergo surgery to remove her gallbladder. He ted back to the PACU and was placed on a ventilatordered a surgical consultation and a cardiology or. According to Mazzei's report, Amin–Sankar consultation.

prematurely extubated Willie Ann ten minutes Shenoy, a cardiologist, saw her that same day, later.Within a few minutes, Willie Ann was in resand noted that Willie Ann had a two- to three-year piratory arrest. She received CPR and medications, history of epigastric and right upper quadrant ab- and Amin–Sankarreintubated her. dominal pain as well as a history of a previous Thirty minutes later, Willie Ann was returned myocardial infarction and a cereberovascular accito the ICU. According to Mazzei's report, Jean bedent (i.e., a stroke). Shenoy noted that Willie Ann came “agitated” and had trouble with the ventilator.

had suffered chest pain, accompanied by shortness She extubated herself and suffered a second respirof breath and sweating for four to six hours earlier atory arrest. She was re-intubated and given medicthat day. Willie Ann also had an abnormal electroations . An EEG the following day showed possible cardiogram (EKG). Shenoy's diagnosis was that hypoxic encephalopathy —brain damage caused by Willie Ann had sufferedan acute myocardial infarclack of oxygen. A follow-up EEG the next day also tion, symptomatic gallstones, hypertension, and indicated hypoxic encephalopathy. Mazzei's report diabetes.

does not discuss whether the EEGs differentiate *2 Zuniga, a surgeon, performed the surgical between any damage caused by the first extubation consultation three days after her initial admission, and arrest and the second extubation and arrest. on February 18, 2008. Zuniga confirmed the pres- Willie Ann was unresponsive to stimuli, including ence of gallstones, diagnosed inflammation of the painful stimuli. On February 25, Willie Ann was gallbladder, and cleared Willie Ann for surgery to transferred to another facility for long-term care. remove her gallbladder the next day, February 19, She died on March 5, 2008 due to the hypoxic ensubject to a cardiology assessment. Dr. Shenoy saw cephalopathy. Willie Ann again on February 18. A nuclear test Penny filed a wrongful death medical malpracwas negative for ischemia. Shenoy also ordered an tice suit against Doctor's Hospital, Mireles, EKG, the results of which are included in Mazzei's FN3 Amin–Sankar, Shenoy, and Zuniga. Penny alreport but the significance of which are not exleged that Shenoy and Zuniga were negligent in

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Not Reported in S.W.3d, 2011 WL 6938538 (Tex.App.-Hous. (1 Dist.)) (Cite as: 2011 WL 6938538 (Tex.App.-Hous. (1 Dist.)))

clearing her mother for surgery. Specifically, Penny who had recently suffered a MI, it should have alleged that there was no emergency or urgent reas- been expected that it would take her a significant on to remove her mother's gallbladder and that her period of time before she was capable of being mother had experienced abdominal and chest pain extubated to breathe on her own. This was not for years without treatment. In addition, Willie Ann taken into account nor was her clinical picture had suffered an acute myocardial infarction before when she was untimely extubated [by the anesthe gallbladder surgery and had a history of numer- thesiologist]. This caused her to suffer a respiratous health problems. Although she was stable, her ory arrest which further stressed Ms. Jean's abilhistory created additional risks that made her a poor ity to recover from surgery and lead to another candidate for surgery, and therefore Shenoy and respiratory arrest with anoxic encephalopathy and Zuniga negligently cleared Willie Ann for the sur- death.... When Ms. Jean extubated herself, the gery. failure to address her increasing respiratory distress resulted in a subsequent respiratory arrest FN3. Only Shenoy and Zuniga are parties causing the anoxic encephalopathy which lead to to this appeal. her death.

*3 Penny timely served an expert report from Shenoy and Zuniga moved to dismiss, asserting FN4 Mazzei, an anesthesiologist. Mazzei's report that the report was inadequate to them. The trial focused primarily on the anesthesiologist, court granted Penny an opportunity to amend the Amin–Sankar. Concerning Shenoy and Zuniga, report. After receiving the amended report, Shenoy Mazzei stated that if Willie Ann “had not under- and Zuniga again moved to dismiss due to inadgone elective surgery on February 19, 2008, she equacies in the report. The trial court denied the would not have experienced the respiratory arrests motions to dismiss, and this interlocutory appeal that resulted from her extubation and she would followed. have, in all probability, survived.”

Standard of Review FN4. See TEX. CIV. PRAC. & We review a trial court's ruling on a motion to REM.CODE ANN. § 74.351(a). dismiss a healthcare liability lawsuit pursuant to Chapter 74 of the Texas Civil Practice and Remed-

Concerning Amin–Sankar, Mazzei's report ies Code under an abuse of discretion standard. See states, “In reasonable medical probability, if Ms.

Am. Transitional Care Ctrs. of Tex., Inc. v. Pala-

Jean had not been prematurely extubated, she cios, 46 S.W.3d 873, 875 (Tex.2001) (reviewing would not have had the increased demands placed dismissal under predecessor statute, section 13(e)

on her body which caused her subsequent respiratof article 4590i); Runcie v. Foley, 274 S.W.3d 232, ory arrest, anoxic brain injury and death.” He fur-

233 (Tex.App.-Houston [1st Dist.] 2008, no pet.). A ther explained in his general discussion of causatrial court abuses its discretion if it acts in an arbittion that the anesthesiologist should have been rary or unreasonable manner without reference to aware of the risks of premature extubation. A fair guiding rules or principles or if it clearly fails to reading of Mazzei's report is that the premature exanalyze or apply the law correctly. Runcie, 274 tubation was the immediate cause of death:

S.W.3d at 232. In reviewing whether an expert re-

The time it takes for a patient's anesthesia effect port complies with Chapter 74, we evaluate whether to lessen enough for them to be able to breathe the report “represents a good-faith effort” to comindependently varies from patient to patient and ply with the statute. Strom v. Mem'l Hermann Hosp. is affected by a patient's physiology and underly- Sys., 110 S.W.3d 216, 221 (Tex.App.-Houston [1st ing disease processes. For a patient like Ms. Jean Dist.] 2003, pet. denied). In making this evaluation,

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Not Reported in S.W.3d, 2011 WL 6938538 (Tex.App.-Hous. (1 Dist.)) (Cite as: 2011 WL 6938538 (Tex.App.-Hous. (1 Dist.)))

we must look only at the information contained have merit. Scoresby v. Santillan, 346 S.W.3d 546, within the four corners of the report. Bowie Mem'l 556 (Tex.2011) (citing Palacios, 46 S.W.3d at Hosp. v. Wright, 79 S.W.3d 48, 53 (Tex.2002). 879). A report that merely states the expert's conclusions as to the standard of care, breach, and Adequacy of Dr. Mazzei's report causation does not fulfill these two purposes. Id. “ *4 In their respective appeals, Shenoy and ‘[T]he expert must explain the basis of his state-

Zuniga attack various aspects of the adequacy of ments and link his conclusions to the facts.’ “ Mazzei's report, asserting it fails to meet the re- Wright, 79 S.W.3d at 52 (quoting Earle v. Ratliff, quirements of section 74.351 of the Texas Civil 998 S.W.2d 882, 890 (Tex.1999)). Furthermore, in Practice and Remedies Code. See TEX. CIV. assessing the report's sufficiency, the trial court PRAC. & REM.CODE § 74.351(a). may not draw any inferences, and instead must rely exclusively on the information contained within the I. Chapter 74 expert report requirements report's four corners. See Scoresby, 346 S.W.3d at Pursuant to section 74.351, medical-mal-

556 (citing Palacios, 46 S.W.3d at 878).

practice plaintiffs must provide each defendant physician and health care provider with an expert II. Adequacy of report concerning causation report or voluntarily nonsuit the action. Id. If a Within his second issue, Shenoy contends that claimant timely furnishes an expert report, a de- Mazzei's report does not adequately address causafendant may file a motion challenging the report's tion of Jean's injuries as a result of any negligence adequacy. Id. The trial court shall grant the motion by Shenoy. As part of his sole issue, Zuniga similonly if it appears, after hearing, that the report does arly argues that the report is inadequate in its statenot represent a good faith effort to comply with the ment of causation for his alleged malpractice. statutory definition of an expert report. See id. § 74.351(l ). The statute defines an expert report as a *5 An expert report must include a fair sumwritten report by an expert that provides, as to each mary of the causal relationship between the defenddefendant , a fair summary of the expert's opinions, ant's failure to meet the appropriate standard of care as of the date of the report, regarding: (1) the ap- and the injury, harm, or damages claimed. TEX. plicable standards of care; (2) the manner in which CIV. PRAC. & REM.CODE ANN. § 74.351(r)(6). the care provided failed to meet the standards; and An expert cannot merely state his conclusions or (3) the causal relationship between that failure and “provide insight” about the plaintiffs' claims, but the injury, harm, or damages claimed. See id. § must instead “explain the basis of his statements to 74.351(r)(6); Gray v. CHCA Bayshore, L.P., 189 link his conclusions to the facts.” Wright, 79 S.W.3d 855, 85859 (Tex.App.-Houston [1st Dist .] S.W.3d at 52.In explaining causation, the report 2006, no pet.). must explain how the physician's conduct caused the plaintiff's injuries. Id. at 53.

Although the report need not marshal all the plaintiff's proof, it must include the expert's opin- A. Assertions in Mazzei's expert report regardions on the three statutory elements—standard of ing causation care, breach, and causation. See Palacios, 46 Mazzei's report asserts that the applicable S.W.3d at 878; Gray, 189 S.W.3d at 859. In detail- standard of care breached by Shenoy included the ing these elements, the report must provide enough responsibility to consider all of Willie Ann's coinformation to fulfill two purposes if it is to consti- morbidities because these conditions placed Willie tute a good faith effort: first, it must inform the de- Ann “at an unacceptably high risk for complicafendant of the specific conduct the plaintiff has tions from surgery and anesthesia.” The report called into question, and, second, it must provide a identifies two risks from the surgery and anesthesia basis for the trial court to conclude that the claims : (1) the stresses placed upon the cardiovascular and

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Not Reported in S.W.3d, 2011 WL 6938538 (Tex.App.-Hous. (1 Dist.)) (Cite as: 2011 WL 6938538 (Tex.App.-Hous. (1 Dist.)))

respiratory system during surgery and anesthesia *6 Mazzei's report states that the medical conand (2) the depression of the central nervous system ditions that rendered Willie Ann unfit for surgery and the resulting risk of “experiencing cardiovascu- caused the complications that arose when she was lar and respiratory problems.” It also generally extubated (“these complications occurred because states that a patient's medical history may increase of the medical conditions”). What he fails to do is these risks. It does not, however, quantify or other- provide a factual underpinning for that conclusion wise describe the magnitude of risk for respiratory explaining why or how this occurred and whether it problems for a person undergoing this surgery with was all her medical conditions listed in his report or normal health or compare that risk to the risk for a her myocardial infarction in particular that made person with pre-existing medical conditions like the risk unacceptable and caused her respiratory ar- Willie Ann's. According to the report, these risks rest. These omissions make the report conclusory are addressed by intubating the patient “so the anes- and deficient for purposes of section 74.351. thesiologist can ventilate the patients while their central nervous system is depressed” and that intub- 1. Expert reports cannot be conclusory to satisfy ation normally continues “until the patient is able to section 74.351. again breathe on [his] own.” The report continues: An opinion on causation stated without the underlying facts is conclusory. Jelinek v. Casas, 328 .... Although complications arose as Ms. Jean was S.W.3d 526, 536 (Tex.2010); Arkoma Basin Exextubated following surgery, these complications ploration Co., Inc. v. FMF Assocs. 1990–A, Ltd., occurred because of the medical conditions that 249 S.W.3d 380, 389 n. 32 (Tex.2008). A conclusshould have lead Dr. Shenoy to conclude that Ms. ory opinion is not probative. City of San Antonio v. Jean was not an appropriate surgical candidate. If Pollock, 284 S.W.3d 809, 818 (Tex.2009); see Ms. Jean had not undergone elective surgery on Zamecnik v. Indian Prairie Sch. Dist. No. 204, 636 February 19, 2008, she would not have experi- F.3d 874, 881 (7th Cir.2011) (stating that mere conenced the respiratory arrests that resulted from clusions are useless to the court). her extubation and she would have, in all probability , survived. This rule is not a mere procedural hurdle. Juries —or in the case of expert reports, judges—are In the “Causation” section, the report further often confronted with conflicting expert testimony.

states: One expert may testify that X caused the plaintiff's injuries while a different expert may testify that X Ms. Jean was a patient who was still recovering did not cause the plaintiff's injuries. The factfinder from her MI who never should have undergone typically lacks the expertise necessary to form an elective surgery. By continuing to recommend opinion without expert assistance—this is why exthe gallbladder removal surgery, clearing her for pert testimony is admitted in the first place. See surgery and performing surgery, Ms. Jean's TEX.R. EVID. 702. It is the expert's explanation of healthcare providers breached and violated the “how” and “why” causation exists that allows the standards of care as set forth above and proxim- factfinder to weigh the credibility of the expert's ately caused her death. opinion and, when expert opinions conflict, to decide which testimony to disregard. Cf. In re Chris-

Finally, Mazzei states for a patient like Willie tus Spohn Hosp. Kleberg, 222 S.W.3d 434, 440 Ann “it should have been expected that it would (Tex.2007) (detailing reasons why it is essential take her a significant period of time before she was that the jury have access to the facts and data uncapable of being extubated to breathe on her own .”

derlying an expert's testimony in order “to accur-

B. Adequacy of the report concerning Shenoy ately assess the testimony's worth.”). With respect

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Not Reported in S.W.3d, 2011 WL 6938538 (Tex.App.-Hous. (1 Dist.)) (Cite as: 2011 WL 6938538 (Tex.App.-Hous. (1 Dist.)))

to expert reports in healthcare liability claims, the precisely the information missing here: the how and expert's explanation is what allows the trial court to the why. determine whether the claim has merit. See Jelinek, 328 S.W.3d at 539; see also Scoresby, 346 S.W.3d In Gray, this court held that the expert report at 552 (observing that Legislature enacted expert contained a conclusory statement concerning causareport requirement to elicit expert opinions at an tion. 189 S.W.3d at 860. The report stated that early stage of the litigation to allow the trial court “[t]he failure to monitor and detect the malposito determine that a basis exists for concluding that tioned left knee resulted in a dislocated left patella, the claims have merit). Expert testimony that severe pain and suffering, and subsequent medical merely states a final conclusion on an essential ele- treatment.” Id . at 858. Like the Supreme Court in ment of a cause of action—such as causa- Jelinek, this court faulted the causation opinion for tion—without providing a factual basis for that con- failing to “convincingly tie the alleged departure clusion does not aid the jury in its role as factfinder from the standard of care to specific facts of the but, rather, supplants it. This, an expert may not do. case.” Id. at 860. See Greenberg Traurig of N.Y., P.C.v. Moody, 161 2. Mazzei's report was conclusory on the issue of S.W.3d 56, 97 (Tex.App.-Houston [14th Dist.]

causation 2004, no pet.) (“Expert testimony is admissible to Mazzei's causation opinion regarding Shenoy's aid the jury in its decision, but it may not supplant decision to clear Willie Ann for surgery was conthe jury's decision.”). Similarly, an expert report clusory. Although Mazzei's report states that anesthat merely asserts that a defendant physician's thesia depresses the respiratory system and places breach caused the plaintiff's injury without providstress on the heart, the report does not state that ing a factual basis does not provide the trial court Willie Ann's history of heart problems or other conwith the information necessary to evaluate the merditions somehow made her more likely to suffer its of the plaintiff's claim. See Jelinek, 328 S.W.3d respiratory arrest after premature extubation than a at 529.

person without those medical conditions. It does *7 The requirement that the expert's opinion not state that her risks for the complications that must not be conclusory applies not only to trial she experienced—respiratory arrest—were entestimony , but to expert reports required by section hanced because of her medical conditions. The re- 74.351(a). See Jelinek, 328 S.W.3d at 539–40; port does generally discuss why Willie Ann's other Wright, 79 S.W.3d at 53.In Jelinek, the Texas Su- conditions affected her suitability for surgery, but preme Court found the trial court abused its discre- does not link her medical conditions to the compliction in denying a motion to dismiss because the ex- ation she experienced, respiratory arrest. It recogpert 's opinion on causation was conclusory. 328 nizes that a depressed central nervous system and S.W.3d at 539–40. The expert's report stated that the resulting risk of respiratory problems are nor- “[the defendant's] breach of the appropriate stand- mal byproducts of anesthesia for even a person with ard of care in ‘reasonable medical probability, res- normal health. In other words, Mazzei's report ulted in a prolonged hospital course and increased shows that the surgery itself created the risk and pain and suffering being experienced by [the does not state how or why Willie Ann's pre-existing plaintiff].’ “ Id. at 539. The Court emphasized, conditions changed those risks except in conclusory “[T]he report says nothing more regarding causa- terms. The report also states that those risks can be tion.” Id. The Court faulted the report for offering addressed by leaving her intubated for “a significno explanation “tying the conclusion to the facts” ant period of time” before extubation. Mazzei's reor of “how and why the breach caused the injury port makes it clear that he believes that the premabased on the facts presented.” Id. at 539–40. This is ture extubation was the immediate cause of her

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Not Reported in S.W.3d, 2011 WL 6938538 (Tex.App.-Hous. (1 Dist.)) (Cite as: 2011 WL 6938538 (Tex.App.-Hous. (1 Dist.)))

death. side effect of the drug was restlessness, and the restlessness caused Williams to become agitated *8 A report may be sufficient if it states a chain and remove her feeding tube. Id . Willie Ann likeof events that begin with a health care provider's wise became agitated and removed her breathing negligence and end in a personal injury. See Patel tube. The report, however does not explain any v. Williams, 237 S.W.3d 901, 905 connection between clearing Willie Ann for surgery (Tex.App.-Houston [14th Dist.] 2007, no pet.); see or her medical history and her agitation. While the also Engh v. Reardon, No. 01–09–00017–CV, 2010 report in Patel explained each step on the path of WL 4484022, at *8 (Tex.App.-Houston [1st Dist.] FN5 causation, the report in this case does not.

Nov. 10, 2010, no pet.) (mem.op.). But neither case involved an event as remote as that involved here. FN5. The report in this case is similarly distinguishable from the report in Engh. In In Patel, the Fourteenth Court of Appeals held Engh, the report identified the alleged that an expert report sufficiently set forth causation breach-placing a surgical clip on the ureter when it presented a chain of events beginning with during surgery. 2010 WL 4484022 at *6. an allegedly negligent prescription and ending with The report also explained the conthe patient's death. Patel, 237 S.W.3d at 905–06. sequences of a clipped ureter. Specifically, Patel prescribed Williams an anti-dementia drug. the report detailed how damage to and, Id. at 903. The report explained that the drug was eventually, loss of the kidney would result not FDA-approved for patients with Williams's ail- from clipped ureter. Id. Thus, this court ment and that known side-effects of the drug in- found the report adequate, although Engh cluded restlessness or a need to keep moving. Id. saw multiple other doctors and several Williams's family withdrew consent for the drug, months passed after his surgery and before but Patel continued to prescribe it. Id. Williams was he lost his kidney. Id. at *10. The report being fed via feeding tube, and allegedly due to the explained how the alleged breach caused restlessness from the drug, she removed the tube. the loss of Engh's kidney, while the report Id. The report identified nurses' notes that described here contains no explanation of how clear- Williams as agitated and stated that she kept pulling ing a patient with a history like Willie at her feeding tube. Id. The nursing staff improperly Ann's causes premature extubation, selfre -inserted the tube, causing a small cut, which be- extubation, or the eventual death of the pacame infected because of the contents of the feed- tient. ing tube entering the cut. Id. The cut developed into an abscess requiring multiple surgeries. Id. The re- There were “many links in the chain of events” port concluded that Williams's death was caused by that began with the pre-surgical clearance and the infection from the improperly re-inserted feed- ended with her death, but Mazzei failed to explain ing tube. Id. at 904. The Fourteenth Court held that and support each link. While Mazzei explains how the trial court did not abuse its discretion in determ- Willie Ann's premature extubation prevented her ining the report was not conclusory or speculative from “maintain[ing] the oxygenation in the blood,” concerning causation. Id. at 905–06. increasing her risk for respiratory arrest, he fails to explain what role her pre-existing medical condi-

The report in this case is distinguishable. The tions played in her respiratory arrest. It is here that report identifies the alleged breach—clearing Willie we part company with the trial court and find that it Ann for surgery with her medical history—as did abused its discretion. Mazzei does not link the althe report in Patel—prescribing an unapproved drug leged negligence—clearing Jean for surgery—with without consent. See id. But there the similarities the premature extubation except that one occurred end. In Patel, the report explained that a known

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Not Reported in S.W.3d, 2011 WL 6938538 (Tex.App.-Hous. (1 Dist.)) (Cite as: 2011 WL 6938538 (Tex.App.-Hous. (1 Dist.)))

before the other. That is not enough; it is only a A causal link can be too attenuated to satisfy statement of “but for” causation. If that is all that the causation requirement for an expert report. See section 74.351 requires to demonstrate causation, Gonzalez v. Sebile, No. 09–09–00363–CV, 2009 almost any prior action taken by a health care pro- WL 4668892, at *4 (Tex.App.-Beaumont Dec. 10, vider could be said to cause the ultimate outcome. 2009, pet. denied) (mem.op.). In Gonzalez, the For example, the referral by the emergency room physician was sued for clearing the patient for surphysician for the surgical consultation with Dr. gery without obtaining a cardiologist consultation Shenoy also was a cause of Willie Ann's death if all despite an earlier open heart surgery. 2009 WL that is necessary is for an event to have preceded 4668892at *2. According to the plaintiffs, the dethe injury. fendant anesthesiologist fell below the standard of care by failing to disqualify the plaintiff as not fit *9 To establish cause in fact, Mazzei had to for surgery in part because of the risks of general discuss why the act or omission was a substantial anesthesia. Id. The court held that the report's statefactor in causing the injury and without which the ment that the plaintiff would not have been injured harm would not have occurred. W. Invs., Inc. v. if he had not undergone surgery in the first place Urena, 162 S.W.3d 547, 551 (Tex.2005); see also was “too attenuated to set forth evidence of causa- Transcon. Ins. Co. v. Crump, 330 S.W.3d 211, 214 tion with sufficient specificity to inform” the physi- (Tex.2010) (stating that plaintiff must prove “cause cian of the alleged misconduct and to allow the trial in fact (or substantial factor)”); Ford Motor Co. v. court to conclude that the plaintiff's claims had Ledesma, 242 S.W.3d 32, 46 (Tex.2007) (stating merit. Id . at *3. Mazzei's report suffers from the that producing cause requires that (1) the cause same defect. must be a substantial cause of the event in issue and (2) it must be a but-for cause, namely one without While Mazzei's report “provides insight” conwhich the event would not have occurred). The re- cerning the claims surrounding Jean's death, it does port does not do so. Mazzei's report does not link not link the facts of the decision to clear her for surfacts from the alleged negligence in clearing her for gery to the conclusion that Shenoy's alleged breach surgery to Willie Ann's death. Willie Ann did not of the standard of care caused Jean's death. It does suffer a cardiac arrest during or after the surgery; not, therefore, provide a basis for the trial court to she suffered respiratory arrest and only after a pre- have concluded that causation was demonstrated for mature extubation. Mazzei does not state that Wil- Shenoy's decision to clear Willie Ann for surgery. lie Ann suffered any unusual respiratory issue dur- See Palaciois, 46 S.W.3d at 879 (report must ing the surgery itself; the surgical procedure was provide basis for concluding that claims have mer- “uneventful.” And based on Mazzei's report, it ap- it). We conclude, therefore, that the report is conpears that any patient—healthy or with a history of clusory and inadequate with respect to Shenoy. See medical conditions—who is prematurely extubated Gray, 189 S.W.3d at 860; see also Jelinek, 328 will not sufficiently “maintain the oxygenation in S.W.3d at 539–40 (finding report inadequate conthe blood” and therefore is at risk for respiratory ar- cerning causation because it did not explain “how rest. The mere fact that Willie Ann was cleared for and why the breach caused the injury based on the surgery before her death does not mean that the facts presented”). clearance for surgery caused her death. Jelinek, 328 S.W.3d at 533 (cautioning against the post hoc ergo *10 We sustain this portion of Shenoy's second propter hoc fallacy, that is, reasoning that an earlier issue. event caused a later event simply because it oc-

B. Adequacy of the report concerning Zuniga curred first).

Penny has not alleged, and Mazzei's report does not assert, that Zuniga negligently performed

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Not Reported in S.W.3d, 2011 WL 6938538 (Tex.App.-Hous. (1 Dist.)) (Cite as: 2011 WL 6938538 (Tex.App.-Hous. (1 Dist.)))

surgery; rather, the surgery is described as “uneventful.” For the same reasons that the report is inadequate as to causation for Shenoy, we conclude that, with respect to Zuniga, the report fails to explain how and why Zuniga's clearing of Willie Ann for surgery caused her death, fails to demonstrate the causal link necessary to have a meritorious claim, and is conclusory and inadequate. See Gray, 189 S.W.3d at 860; Jelinek, 328 S.W.3d at 539–40.

We sustain this portion of Zuniga's sole issue. FN6

FN6. Because we have sustained Shenoy's second issue in part and Zuniga's sole issue in part, we do not address the other arguments raised by the parties. See TEX.R.APP. P. 47.1.

Conclusion We reverse and render an order dismissing the claims against Shenoy and Zuniga.

SHARP, J., dissenting. Dissent to follow.

Tex.App.-Houston [1 Dist.],2011. Shenoy v. Jean Not Reported in S.W.3d, 2011 WL 6938538 (Tex.App.-Hous. (1 Dist.))

END OF DOCUMENT

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368 S.W.3d 574 (Cite as: 368 S.W.3d 574)

not have committed suicide, was not good faith attempt to comply with medical expert report require-

Court of Appeals of Texas, ments in malpractice action against prescribing Austin. physician and clinic, where report did not indicate Ted SMITH, D.O.; and Austin Regional Clinic, how failure to take complete history was cause of P.A., Appellants, patient's suicide, and it did not include information v. that physician should have gleaned from patient's Janet Lynn WILSON, Appellee. past or symptoms that would have stopped physician from prescribing anti-depressant. V.T.C.A., No. 03–10–00387–CV.

Civil Practice & Remedies Code § 74.351(r)(6).

Jan. 11, 2012.

Rehearing Overruled May 7, 2012. [2] Health 198H 804

Background: Medical malpractice action was 198H Health brought against physician and clinic, after patient 198HV Malpractice, Negligence, or Breach of who had been prescribed anti-depressant committed Duty suicide. The 53rd Judicial District Court, Travis 198HV(G) Actions and Proceedings County, Suzanne Covington, J., denied defendants' 198Hk804 k. Affidavits of merit or meritmotion to dismiss due to deficient expert report, orious defense; expert affidavits. Most Cited Cases and defendants appealed. In determining whether a proffered medical expert report represents a good faith effort to comply Holding: The Court of Appeals, David Puryear, J., with the statutory requirements for the same, in a held that expert's medical report was not good faith medical malpractice action, the trial court should attempt to comply with medical expert report reconfine its inquiry to the four corners of the report, quirements.

which must include the expert's opinion on all three Reversed and remanded. statutory elements and must explain the basis of the expert's statements to link his conclusions to the West Headnotes facts. V.T.C.A., Civil Practice & Remedies Code § 74.351(r)(6).

[1] Health 198H 804 [3] Health 198H 804 198H Health 198HV Malpractice, Negligence, or Breach of 198H Health Duty 198HV Malpractice, Negligence, or Breach of 198HV(G) Actions and Proceedings Duty 198Hk804 k. Affidavits of merit or merit- 198HV(G) Actions and Proceedings orious defense; expert affidavits. Most Cited Cases 198Hk804 k. Affidavits of merit or merit-

Amended medical expert report stating that ap- orious defense; expert affidavits. Most Cited Cases plicable standard of care for prescribing anti- A medical expert report submitted in support of depressant was to take full psychiatric history of a medical malpractice claim need not marshal all mental health patient complaining of depression the plaintiff's proof, but to be considered a goodand stress, that patient was suicide-vulnerable, that faith effort to satisfy the expert report statute, it there was connection between anti-depressant and must do more than simply provide the expert's consuicide , and that, but for medication, patient would clusions as to standard of care, breach, and causa-

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368 S.W.3d 574 (Cite as: 368 S.W.3d 574)

tion, and it must discuss the standard of care, determination of attorney's fees. breach, and causation with sufficient specificity to inform the defendant of the conduct the plaintiff Factual and Procedural Background has called into question and to provide a basis for On August 6, 2007, Wilson's son, Keith Mithe trial court to conclude that the claims have mer- chael Harris, went to see Dr. Smith, complaining of it. V.T.C.A., Civil Practice & Remedies Code § depression and stress. Harris was twenty-three 74.351(l ), (r)(6). years old and had recently broken up with his girl-

FN1 friend. Smith prescribed fluoxetine with [4] Health 198H 804 twelve refills and did not schedule a follow-up visit . On September 5, 2007, Harris committed sui-

198H Health cide.

198HV Malpractice, Negligence, or Breach of Duty FN1. Fluoxetine is the generic name for 198HV(G) Actions and Proceedings Prozac, an anti-depressant. We will refer to 198Hk804 k. Affidavits of merit or merit- the drug as fluoxetine except when quoting orious defense; expert affidavits. Most Cited Cases the record, in which the terms seem to be If a medical expert report submitted in support used interchangeably.

of a medical malpractice suit contains only conclusions about the statutory elements, the trial court Wilson sued appellants, alleging that Smith has “no discretion but to conclude that the report was negligent in prescribing fluoxetine and in not does not represent a good-faith effort” to satisfy the scheduling a follow-up visit with Harris, that ARC statute governing the expert report requirements. was vicariously liable as Smith's employer, and that V.T.C.A., Civil Practice & Remedies Code § their negligence was a proximate cause of Harris's 74.351(l ), (r)(6). death. Wilson timely served an expert report by Dr.

John T. Maltsberger. See Tex. Civ. Prac. & *575 Diana L. Faust, R. Brent Cooper, Richard C. Rem.Code Ann. § 74.351 (West 2011). In his re- Harrist, Cooper & Scully, PC, Dallas, TX, for Ap- port, Maltsberger stated that the accepted standard pellant. of care that should be employed when prescribing fluoxetine required a doctor to obtain a description Dan Ballard, Stacey J. Simmons, Ballard & Sim- of the patient's “anxious and depressive symptoms” mons, LLP, Austin, TX. and a full psychiatric history. He opined that Smith breached that standard of care because he did not Jay Harvey, Winckler & Harvey, LLP, Austin, TX, “obtain and record” Harris's symptoms of anxiety for Appellee.

and depression or his full psychiatric history. Maltsberger stated that there was a generally recog-

Before Chief Justice JONES, Justices PURYEAR nized relationship between fluoxetine and suicide in and PEMBERTON. adolescents and young adults and that “adolescents with psychiatric disorders” had a greater risk of suicidal thoughts and behavior in “the first few months OPINION of treatment” when prescribed fluoxetine. Maltsber-

DAVID PURYEAR, Justice.

ger*576 concluded by stating, “[I]t is my opinion Appellants Ted Smith, D.O., and Austin Rethat more likely than not, had Keith Harris not been gional Clinic (“ARC”) appeal from the denial of prescribed fluoxetine, he would not have committed their motion to dismiss appellee Janet Lynn suicide.”

Wilson's suit for medical malpractice. We reverse the trial court's order and remand for dismissal and Appellants objected to the report, asserting it

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368 S.W.3d 574 (Cite as: 368 S.W.3d 574)

was deficient because it was conclusory with regard opinion that more likely than not, fluoxetine was to causation. Appellants also noted that the report a significant cause that worsened the emotional did not mention ARC at all, much less level any cri- burden of Mr. Harris's illness and that without it ticism against it, and argued that it therefore he would not have committed suicide. amounted to no expert report at all as to ARC. The trial court found that Maltsberger's report qualified Appellants filed another motion to dismiss, asas a report but was inadequate, denied appellants' serting that the new report was deficient because motion to dismiss, and gave Wilson thirty days to Maltsberger “never connects the dots and says that remedy the report's deficiencies. Wilson filed an based on the history or presentation that existed had amended report providing essentially the same Dr. Smith obtained an adequate history, he should opinions, but adding more detail to the causation not have prescribed Prozac.” Appellants further as-

FN2 serted:

paragraph. Maltsberger changed his statements about the relationship between fluoxetine and sui-

[Maltsberger] never states that based on the incidal thinking and behavior to refer only to adolesformation available to Dr. Smith at the time that cents, removing his prior inclusion of “young FN3 he was treating Mr. Harris, Dr. Smith should adults.” Maltsberger concluded:

have concluded that Mr. Harris was suicide-

FN2. The amended report is two and one- vulnerable. As an expert, he is supposed to anahalf pages long, and the actual summaries lyze Dr. Smith's actions based on the information of the standard of care, breach, and causa- that was available to him at the time. His failure tion are covered in slightly over one page. to do so renders his opinions conclusory, and therefore, not adequate.

FN3. This is a noteworthy omission, since Harris, as a twenty-three-year-old man, Appellants also reasserted that because Maltswas not what is generally considered an berger's report made no reference to or criticism of adolescent. See Webster's Third New Int'l ARC, it did not qualify as an expert report on those Dictionary 28 (2002) (defining adoles- claims. The trial court denied appellants' motion to cence as “the period of life from puberty to dismiss, and appellants filed this appeal. See id. § maturity terminating legally at the age of 51.014(a)(9) (West 2008). majority”); see also medical-diction-

Analysis ary.thefreedictionary.com/adolescence [1] Within 120 days of the date a plaintiff files (last visited January 5, 2012, citing a health-care-liability claim, she must serve each Mosby's Med. Dictionary (2009), physician or health care provider against whom Miller–Keane Encyclopedia & Dictionary claims are asserted (“medical defendant”) with at of Med., Nursing, & Allied Health (2003))

least one expert report that summarizes the expert's (defining adolescence as time between puopinions “regarding applicable standards *577 of berty and adulthood, usually running from care, the manner in which the care rendered by the between eleven and thirteen and between physician or health care provider failed to meet the eighteen and twenty).

standards, and the causal relationship between that Based on the information provided to me to date, failure and the injury, harm, or damages claimed.” it is my opinion that Keith Harris was a suicide- Id. § 74.351(a), (r)(6). After an expert report is vulnerable, depressed young man. As outlined in filed, a medical defendant may file an objection to the studies described above, fluoxetine worsened the report's sufficiency and a motion to dismiss the his depression and agitated this patient, driving plaintiff's liability claims. See id. § 74.351(a), (b). him beyond his capacity for endurance. It is my

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368 S.W.3d 574 (Cite as: 368 S.W.3d 574)

[2] When the adequacy of a report is chal- Wilson the opportunity to provide an amended relenged , the trial court should only sustain the objec- port. The new report, however, added very little to tions if it determines “that the report does not rep- Maltsberger's statements related to Smith's alleged resent an objective good faith effort to comply with breach of the standard of care and causation, inthe definition of an expert report.” Id. § 74.351(l ); cluding only one additional paragraph that stated see American Transitional Care Ctrs. of Tex., Inc. that Harris was “a suicide-vulnerable, depressed v. Palacios, 46 S.W.3d 873, 878 (Tex.2001). The young man” and that fluoxetine worsened his de-

FN4 trial court should confine its inquiry to the four pression and led to his suicide. Wilson asserts corners of the report, which must include the ex- that this report “provides, in its four corners, that pert's opinion on all three statutory elements and “ but for prescribing the medication the patient would ‘must explain the basis of [the expert's] statements not have committed suicide.” That may be true, but to link his conclusions to the facts.’ ” Bowie Mem'l despite Maltsberger's opinion that fluoxetine Hosp. v. Wright, 79 S.W.3d 48, 52 (Tex.2002) worsened Harris's mental state and “without it he (quoting Earle v. Ratliff, 998 S.W.2d 882, 890 would not have committed suicide,” the report does (Tex.1999)). If the trial court finds a report defi- not explain how taking more complete medical recient , the plaintiff's claims against the medical de- cords from Harris would have made Smith aware fendant are subject to dismissal unless the court that fluoxetine would put Harris at risk for suicidal grants “one 30–day extension to the claimant in or- thoughts or action and *578 would have dissuaded der to cure the deficiency.” Tex. Civ. Prac. & Smith from prescribing fluoxetine. In other words, Rem.Code Ann. § 74.351(c), (l ). If an expert report the report does not show how Smith's alleged is not timely served, the trial court must dismiss the breach of the standard of care caused the tragic resclaims against the medical defendant if the defend- ult. See Taylor v. Fossett, 320 S.W.3d 570, 577–78 ant files a motion to dismiss. Id. § 74.351(b). (Tex.App.-Dallas 2010, no pet.) (report did not provide a factual explanation of how doctor's delay [3][4] “A report need not marshal all the in diagnosis or treatment caused complications);

plaintiff's proof,” but to be considered a good-faith Estorque v. Schafer, 302 S.W.3d 19, 28–29 effort to satisfy the statute, it must do more than (Tex.App.-Fort Worth 2009, no pet.) (expert report simply provide the expert's conclusions as to stand- left “gaps by not explaining how or why the physiard of care, breach, and causation. Palacios, 46 cians' failure to consult a urologist or gynecologist S.W.3d at 878–79. Instead, the report “must discuss caused worsening or progression of Shirley's listed the standard of care, breach, and causation with suf- conditions” and did not explain how plaintiff would ficient specificity to inform the defendant of the not have been injured had defendants obtained conconduct the plaintiff has called into question and to sults from specialists); Johnson v. Willens, 286 provide a basis for the trial court to conclude that S.W.3d 560, 565 (Tex.App.-Beaumont 2009, pet. the claims have merit.” Id. at 875. We review a trial denied) (report did not explain what “normal dose” court's denial of a motion to dismiss under section would have been, why prescribed dose was excess- 74.351 for an abuse of discretion, but if an expert ive, what patient complained of, or what proper report contains only conclusions about the statutory treatment would have been); see also Wright, 79 elements, the trial court has “no discretion but to S.W.3d at 53 (affirming trial court's determination conclude ... that the report does not represent a that report was insufficient because it lacked good-faith effort” to satisfy the statute. Id. at 877, “information linking the expert's conclusion ... to 880. Bowie's alleged breach”); Gray v. CHCA Bayshore L.P., 189 S.W.3d 855, 859–60 (Tex.App.-Houston After appellants objected to the sufficiency of [1st Dist.] 2006, no pet.) (affirming trial court's Maltsberger's original report, the trial court gave finding that report was insufficient because it did

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368 S.W.3d 574 (Cite as: 368 S.W.3d 574)

not provide any specific information about what de- presented here. The Bakhtari report exfendants should have done or “convincingly tie the plained that the medication in question alleged departure from the standard of care to spe- should only have been prescribed for very cific facts of the case”). short-term use, no refills should have been given, the patient should have been warned FN4. Although Wilson alleged in her peti- of possible side-effects, the doctor should tion that Smith breached the standard of have consulted with or referred the patient care by not scheduling a follow-up visit to a mental-health professional, and the with Harris, neither of Maltsberger's re- doctor should have provided or arranged ports discusses follow-up visits or states for “on-going assessment and monitoring” whether a follow-up should have been of the patient's condition. Id. at 496–97 nn. scheduled, when such a visit would have 9, 10. Maltsberger's cursory report bears been appropriate, or whether it would have very little similarity to the specificity and made a difference in this case. explanations provided in the Bakhtari report .

Maltsberger's report essentially states that (1)

the applicable standard of care required Smith to Further, Maltsberger states that studies have obtain and record a description of Harris's symp- shown a relationship between fluoxetine and suitoms and a complete psychiatric history, (2) Smith cide in adolescents and that fluoxetine increases the neglected to get a description of the symptoms or a risk of suicidal thoughts and behavior in adolescomplete psychiatric history in deciding to pre- cents with psychiatric disorders. He does not, scribe fluoxetine, and (3) fluoxetine worsened Har- however, state that fluoxetine should never be preris 's emotional state to the point where he commit- scribed to adolescents, nor does he explain whether ted suicide. Maltsberger does not, however, provide fluoxetine is always inappropriate*579 for all adeven the roughest summary of the information olescents, whether some adolescents can safely take Smith should have gleaned from Harris's psychiat- it, or, more importantly, whether the findings reric past or symptoms that would have stopped lated to adolescents could even be applied to Har- Smith from prescribing fluoxetine or whether Har- ris, who at twenty-three was not an adolescent. ris's symptoms or history actually contained in- Without more, Maltsberger's statement that a corformation that would have indicated that fluoxetine relation exists between fluoxetine and suicide in ad-

FN5 was not an appropriate prescription. He does olescents does not supply a causal link between the not provide facts to explain the causal link between prescribing of fluoxetine and Harris's suicide. Smith's alleged breach and Harris's suicide, one of the required statutory elements of an expert report. To be sure, Maltsberger was not required to See Tex. Civ. Prac. & Rem.Code Ann. § provide an exhaustive, lengthy summary of how 74.351(r)(6) (expert report must include “fair sum- Smith's omissions caused Harris's suicide or what mary” of expert's opinion as to “causal relation- aspects of Harris's medical records led Maltsberger ship” between medical defendant's failure to meet to conclude that fluoxetine was an inappropriate standard of care and injury). and dangerous prescription, but he provides literally no summary of such information. We are left FN5. Wilson cites to Bakhtari v. Estate of with no choice but to conclude that the report does Dumas, 317 S.W.3d 486 (Tex.App.-Dallas not provide a fair summary of the causal link 2010, no pet.), stating Bakhtari is a between Smith's alleged shortcomings and Harris's “strikingly similar case.” The expert report death. See Taylor, 320 S.W.3d at 577–78; Estorque, in Bakhtari, however, provided substan- 302 S.W.3d at 28–29; Johnson, 286 S.W.3d at 565. tially more information than the report

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368 S.W.3d 574 (Cite as: 368 S.W.3d 574)

Because the report is insufficient as to Smith, it is also insufficient as to ARC, which Wilson sued solely for vicarious liability for Smith's conduct. See Kettle v. Baylor Med. Ctr., 232 S.W.3d 832, 842–43 (Tex.App.-Dallas 2007, pet. denied) (affirming dismissal of suit against professional association due to deficiencies in report about doctor 's conduct, stating that whether association was directly or vicariously liable, “liability still depends on conduct” of doctor).

We reverse the trial court's order denying appellants ' motion to dismiss. We remand the cause to the trial court for the determination of attorney's fees, see Tex. Civ. Prac. & Rem.Code Ann. § 74.351(b), and for entry of a final order dismissing Wilson's claims against appellants.

Tex.App.–Austin,2012. Smith v. Wilson 368 S.W.3d 574

END OF DOCUMENT

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388 S.W.3d 314 (Cite as: 388 S.W.3d 314)

198Hk804 k. Affidavits of merit or meritorious defense; expert affidavits. Most Cited Cases Court of Appeals of Texas, A motion to dismiss a health care liability Texarkana. claim is properly granted if it appears that the ex-

TEXARKANA NURSING & HEALTHCARE pert report does not represent a good-faith effort to CENTER, LLC, Appellant comply with expert report requirements of the Medv . ical Liability Act or is not sufficiently specific to Susan LYLE, Independent Guardian of Betty Ruth provide a basis for the trial court to conclude that Vest, Appellee. the claims have merit. V.T.C.A., Civil Practice & Remedies Code § 74.351(a, l, r).

No. 06–12–00067–CV. Submitted: Nov. 20, 2012. [2] Health 198H 804 Decided: Dec. 14, 2012.

198H Health Background: Resident's daughter brought action 198HV Malpractice, Negligence, or Breach of against nursing home, alleging negligent hiring, su- Duty pervision, and failure to provide a safe environ- 198HV(G) Actions and Proceedings ment, as well as vicarious liability for assault of 198Hk804 k. Affidavits of merit or meritresident by home's employee. The 202nd Judicial orious defense; expert affidavits. Most Cited Cases District Court, Bowie County, Leon F. Pesek Jr., J., A report that merely states the expert's conclutrial court denied nursing home's motion to dismiss. sions about the standard of care, breach, and causa- Nursing home appealed. tion does not constitute a good-faith effort under the Medical Liability Act; rather, the expert must Holdings: The Court of Appeals, Carter, J., held explain the basis of his statements to link his conthat :

clusions to the facts. V.T.C.A., Civil Practice & (1) expert report provided by daughter was defi-

Remedies Code § 74.351(a, r).

cient with respect to her direct liability claim; (2) remand was required to allow trial court to con- [3] Health 198H 804 sider whether to grant extension to allow expert to cure the deficiency; 198H Health (3) expert report was also deficient with respect to 198HV Malpractice, Negligence, or Breach of daughter's vicarious liability claims; and Duty (4) the deficiency with respect to the vicarious liab- 198HV(G) Actions and Proceedings ility claims was not curable. 198Hk804 k. Affidavits of merit or meritorious defense; expert affidavits. Most Cited Cases Remanded. A “good-faith effort” to comply with statutory definition of an expert report, pursuant to the Med-

West Headnotes ical Liability Act, is one that (1) provides informa-

[1] Health 198H 804 tion sufficient to inform the defendant of the specific conduct called into question and (2) enables the 198H Health trial court to conclude the claims have merit.

198HV Malpractice, Negligence, or Breach of V.T.C.A., Civil Practice & Remedies Code § Duty 74.351(l ).

198HV(G) Actions and Proceedings

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388 S.W.3d 314 (Cite as: 388 S.W.3d 314)

[4] Appeal and Error 30 962 30XVII(D) Reversal 30k1177 Necessity of New Trial 30 Appeal and Error 30k1177(6) k. Issues not passed on be-

30XVI Review low. Most Cited Cases 30XVI(H) Discretion of Lower Court The Court of Appeals would remand health 30k962 k. Dismissal or nonsuit before tri- care liability case against nursing home to trial al. Most Cited Cases court to consider whether to grant a 30-day exten-

Trial court's ruling on a motion to dismiss is re- sion to cure deficiencies in expert report to allow viewed for an abuse of discretion. expert to address standard of care and how standard was breached when resident was assaulted by [5] Appeal and Error 30 946 home's employee, where only direct negligence 30 Appeal and Error claim addressed in report was that home failed to 30XVI Review provide resident with safe and secure environment;

30XVI(H) Discretion of Lower Court although report did not address plaintiff's claim that 30k944 Power to Review home had a duty to assist resident in maintaining 30k946 k. Abuse of discretion. Most highest practicable level of physical, mental, and Cited Cases psychosocial well being, implicit in such duty was A trial court abuses its discretion, as would provision of safe and secure environment, and at warrant reversal, when it acts arbitrarily or unreas- least three of plaintiff's direct liability claims necesonably or without reference to any guiding rules or sarily related to provision of safe environment. principles. V.T.C.A., Civil Practice & Remedies Code § 74.351(a, c, r).

[6] Health 198H 804 [8] Health 198H 804 198H Health 198HV Malpractice, Negligence, or Breach of 198H Health Duty 198HV Malpractice, Negligence, or Breach of 198HV(G) Actions and Proceedings Duty 198Hk804 k. Affidavits of merit or merit- 198HV(G) Actions and Proceedings orious defense; expert affidavits. Most Cited Cases 198Hk804 k. Affidavits of merit or merit-

Medical expert's report did not adequately set orious defense; expert affidavits. Most Cited Cases forth the applicable standard of care and how the When a defendant's alleged health care liability standards were breached, as required by expert re- is purely vicarious, a medical expert report that adport statute, in suit alleging that nursing home was equately implicates the actions of that party's agents directly negligent for assault of resident by home's or employees is sufficient. V.T.C.A., Civil Practice employee; only direct negligence claim addressed & Remedies Code § 74.351(a). in report was that of failing to provide resident with [9] Health 198H 804 a safe and secure environment, but report failed to articulate what nursing home should have done dif- 198H Health ferently to prevent the assault. V.T.C.A., Civil 198HV Malpractice, Negligence, or Breach of Practice & Remedies Code § 74.351(a, l, r). Duty 198HV(G) Actions and Proceedings [7] Appeal and Error 30 1177(6)

198Hk804 k. Affidavits of merit or merit-

30 Appeal and Error orious defense; expert affidavits. Most Cited Cases 30XVII Determination and Disposition of Cause Medical expert report, in health care liability

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388 S.W.3d 314 (Cite as: 388 S.W.3d 314)

suit alleging that nursing home was vicariously li- Nursing & Healthcare Center, L.L.C. (Texarkana able for its employee's assault of resident, failed to Nursing) from 2003 until September 2011, when FN1 demonstrate good-faith effort to provide fair sum- she passed *316 away. From the time of her mary of expert's opinions regarding standard of admission, Vest was dependent on the nursing care applicable to home's employees, breach of home staff for all of her care. It is alleged that on standard of care, and causation, as required by July 31, 2009, while under the care of the Tex- Medical Liability Act; report stated that standard of arkana Nursing staff and while receiving hospice care for home and its staff required the facility to care, Vest was assaulted by Mary Bean, an L.V.N. provide level of care and treatment that a reason- employed by Texarkana Nursing. The assault alable , prudent, similar facility would provide, but legedly left scratches on Vest's forehead, cuts on failed to identify the standard of care applicable to her left leg, knots on the sides of her head, and the staff, or address breach and causation. caused bruising and swelling of her left eye. Vest FN2 V.T.C.A., Civil Practice & Remedies Code § recovered from the assault. Bean was arrested 74.351(a, l, r). and charged with assault.

[10] Health 198H 804 FN1. Lyle died in September 2011, after the petition was filed in July 2011.

198H Health 198HV Malpractice, Negligence, or Breach of FN2. While Lyle does not claim Vest died Duty as a result of the assault, the prayer for re-

198HV(G) Actions and Proceedings lief is phrased in terms of the “wrongful 198Hk804 k. Affidavits of merit or merit- death beneficiaries of BETTY RUTH orious defense; expert affidavits. Most Cited Cases VEST.”

Deficiencies in expert report, in health care liability suit alleging that nursing home was vicari- In July 2011, Susan Lyle, Vest's daughter and ously liable for its employee's assault of resident, independent guardian, sued Texarkana Nursing FN3 were not curable, where report failed to identify the alleging Vest was assaulted by Bean in July standard of care applicable to the nursing home's 2009 and was injured as a result. Lyle pleads that staff, and did not address breach and causation. the claims “by Plaintiff against Defendants fall V.T.C.A., Civil Practice & Remedies Code § within the scope of Chapter 74 of the Texas Civil 74.351(a, l, r). Practice and Remedies Code.” This assertion is incorporated into each theory of liability thereafter *315 David W. Frost, Kent, Anderson & Bush, PC, set forth in the petition. Lyle claims Texarkana Tyler, TX, for appellant. Nursing is vicariously liable for the alleged negligence of its employees. Lyle further alleges Tex-

J.T. Borah, Dawn W. Smith, Curtis E. Clinesmith, arkana Nursing was directly responsible for the as- The Clinesmith Firm, Dallas, TX, for appellee. sault due to negligent supervision, negligent hiring, failure to hire and provide sufficient staff, and fail-

Before MORRISS, C.J., CARTER and MOSELEY, ure to allocate sufficient financial resources to the JJ. facility. The petition also alleges a direct negligence claim against Texarkana Nursing based on the failure to provide a safe environment for its res-

OPINION idents.

Opinion by Justice CARTER. I. Background FN3. Ann Yeager Ellisor (the nursing Betty Ruth Vest was a resident of Texarkana home administrator) was also a named de-

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388 S.W.3d 314 (Cite as: 388 S.W.3d 314)

fendant in the lawsuit. The claim against ages claimed. Ellisor was nonsuited.

TEX. CIV. PRAC. & REM.CODE ANN. § Lyle provided an expert report from Milton D. 74.351(r)(6) (West 2011). A motion to dismiss is FN4 Shaw, M.D., C.M.D. In response, Texarkana properly granted if it appears that the report does Nursing filed a motion to dismiss for failure to not represent a good-faith effort to comply with provide an adequate expert report in accordance subsection (r)(6) or is not sufficiently specific “to with Section 74.351(a) and (b) of the Texas Civil provide a basis for the trial court to conclude that Practice and Remedies Code. TEX. CIV. PRAC. & the claims have merit.” Am. Transitional Care Ctrs. REM.CODE ANN. § 74.351(a), (b) (West 2011). of Tex., Inc. v. Palacios, 46 S.W.3d 873, 875 The trial court denied the motion to dismiss. On ap- (Tex.2001); see TEX. CIV. PRAC. & REM.CODE peal of this interlocutory order, Texarkana Nursing ANN. § 74.351(r)(6). A report that merely states alleges that (1) the trial court erred in denying its the expert's conclusions regarding the standard of motion to dismiss Lyle's direct liability claims, and care, breach, and causation is deficient. See Pala- (2) the trial court erred in denying its motion to dis- cios, 46 S.W.3d at 879. “[T]he expert must explain miss Lyle's vicarious liability claims. the basis of his statements to link his conclusions to the facts.” Bowie Mem'l Hosp. v. Wright, 79 S.W.3d FN4. Shaw is board certified in internal 48, 52 (Tex.2002) (per curiam). A motion challenmedicine and is certified by the American ging the adequacy of an expert report shall be gran- Medical Directors Association as a medic- ted if the report “does not represent an objective al director. Shaw is the medical director of good faith effort to comply” with the statutory the geriatrics and extended care program at definition of an expert report. TEX. CIV. PRAC. & the Veterans Administration (VA) Hospital REM.CODE ANN. § 74.351(l ) (West 2011). A in Kerrville and is assistant clinical pro- “good faith effort” is one that (1) provides informafessor of medicine at the University of tion sufficient to inform the defendant of the specif- Texas Medical School at San Antonio. ic conduct called into question and (2) enables the Shaw is the medical director of two private trial court to conclude the claims have merit. community nursing homes in Kerrville, Wright, 79 S.W.3d at 52. separate from his VA practice.

[4][5] We review a trial court's ruling on a mo-

II. Applicable Law and Standard of Review tion to dismiss for an abuse of discretion. Id.; Go-

[1][2][3] Chapter 74 of the Texas Civil Practice forth v. Bradshaw, 296 S.W.3d 849, 851 and Remedies Code requires a health care liability (Tex.App.-Texarkana 2009, no pet.). A trial court claimant to serve on each party one or more expert abuses its discretion when it acts arbitrarily or unreports , together with a curriculum vitae of each ex- reasonably or without reference to any guiding pert, no later than 120 days after the original peti- rules or principles. Walker v. Gutierrez, 111 tion is filed. TEX. CIV. PRAC. & REM.CODE S.W.3d 56, 62 (Tex.2003). A trial court has no dis- ANN. § 74.351(a). An expert report is cretion, however, in correctly analyzing and applying the law. Walker v. Packer, 827 S.W.2d 833, 840 a written report by an expert that provides a fair (Tex.1992).

summary of the expert's opinions as of the date of the report regarding applicable standards of care, III. Analysis the manner in which the care rendered by the physician or health care provider failed to meet A. Shaw's Report is Deficient, but Not Silent, the standards, and the *317 causal relationship with Respect to Direct Liability Claims between that failure and the injury, harm, or dam-

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388 S.W.3d 314 (Cite as: 388 S.W.3d 314)

Texarkana Nursing argues that Shaw's report is FN6. Ecchymosis is “[t]he passage of silent with respect to the pled claims of direct liab- blood from ruptured blood vessels into ility. Texarkana Nursing characterizes the categor- subcutaneous tissue, marked by a purple ies of direct negligence listed in the petition as neg- discoloration of the skin.” Ecchymosis ligence in hiring, staffing levels, supervision of per- Definition, TheFreeDictionary.com, htsonnel , provision of financial resources, and failing tp://www.thefreedictionary.com/ecchymosi to comply with the Code of Federal Regulations. s (last visited Dec. 10, 2012). FN5 The report includes one paragraph addressing FN5. The allegations fall variously under the standard of care, as follows: the categories listed in the petition as “Negligence,” “Negligence Resulting in The standard of care for a long term care facility Health Care Liability Claims,” and its staff requires that the facility in question “Negligence Per Se,” and “Violation of provide that level of care and treatment that a Penal Code § 22.04.” Pled claims include: reasonable, prudent, similar facility would the failure to allocate sufficient financial provide under the same or similar circumstances. resources to Texarkana Nursing for resid- The facility must provide the necessary care and ents' needs to be met, resulting in the mis- services to attain or maintain the highest practictreatment , abuse, and neglect of Vest; the able physical, mental, and psychosocial wellfailure to use reasonable care in treating being possible. To do so also requires that the residents with the degree of skill and learn- nursing facility provide a safe environment for its ing ordinarily possessed and used by nurs- residents, insofar as it is possible. ing home facilities in the same or similar Shaw further opines:

locality; the failure to assist all residents, In the case of Ms. Vest, Texarkana Nursing and including Vest, in attaining and maintain-

Healthcare Center clearly did not provide a safe ing the highest practicable level of physicand secure environment for its residents, allowing al, mental, and psychosocial well-being;

the documented assault of Ms. Vest by one of its the failure to properly supervise nurses and own employees. In this regard, Texarkana Nursaides ; the failure to provide sufficient ing and Healthcare Center breached its responsibnurses and aides; the failure to ensure that ility to Ms. Vest and her family, resulting in in-

Vest received timely and accurate care asjury to the resident.

sessments and necessary supervision; various violations of the Code of Federal Reg- Shaw concludes that “Texarkana Nursing and ulations; and violation of Section 22.04 of Healthcare Center failed to provide a safe environthe Texas Penal Code (injury to elderly in- ment for Ms. Vest, resulting in her assault and individual ). TEX. PENAL CODE ANN. § jury at the hands of an employee of the facility.” 22.04 (West Supp.2012).

(1) Standard of Care and Breach Shaw's report states that Vest “was assaulted Even though our analysis is confined to the by Mary Ann Bean, an L.V.N. at the nursing facil- four corners of the report, the report must be read in ity, resulting in injuries to Mrs. Vest, including a 1 conjunction with the pleadings to determine if it inch scratch to the forehead, bilateral contusions provides a basis for Lyle's claims. See Palacios, 46 with swelling to the forehead, left periorbital ec- S.W.3d at 878. The report states that the applicable chymosis,*318 and contusion with ecchymosis to standard of care requires Texarkana Nursing to FN6 the left lower leg.” “provide the necessary care and services to attain or

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maintain the highest practicable physical, mental, suicidal patient from injuring herself. In and psychosocial wellbeing possible.” This stand- that case, the patient sustained injuries ard includes, insofar as it is possible, the duty to from a fall out of a hospital window. This “provide a safe environment for ... residents.” Shaw Court held that the statement “that winopines that Texarkana Nursing breached the stand- dows [must] either be secured with metal ard of care by allowing the “documented assault on screens that only staff can open, or be Ms. Vest by one of its own employees.” The result- locked” or, “[i]f the patient has access to ing injuries are listed in the report. the window, a special difficult to break glass or Plexiglass should be used” was Texarkana Nursing initially takes issue with sufficient to apprise the hospital of what it Shaw's opinion addressing the need to provide Vest should have done differently in light of the with a “safe environment” because it is not a pled fact that the hospital placed the patient in a claim. Even though not pled in this precise lan- fourth-floor room with unlocked windows. guage, the petition alleges a breach of the Russ, 128 S.W.3d at 342. nondelegable duty to assist Vest in attaining and maintaining “the highest practicable level of phys- Conversely, Lyle contends that the report meets ical, mental, and psychosocial well being.” As the criteria set out in Chapter 74. According to Shaw opines, the provision of a safe environment is Lyle, the report sets forth the standard of care, rerequired in order to fulfill this duty. See Harris quiring the facility to provide the level of care and Methodist Fort Worth v. Ollie, 342 S.W.3d 525, services necessary for Vest to maintain and attain 527 (Tex.2011) (per curiam) (“services a [health the highest level of well-being possible, thus necescare provider] provides its patients necessarily in- sitating the provision of an environment safe for clude those services required to meet the patients' residents. Lyle defends the breach and causation fundamental needs such as ... safety”). sections of the report in reliance on UHS of Timberlawn , Inc. v. S.B. ex rel. A.B., 281 S.W.3d 207 Texarkana Nursing further complains of the in- (Tex.App.-Dallas 2009, pet. denied). In that case, a adequacy of the stated standard of care, because it thirteen-year-old patient at Timberlawn's psychiatdoes not indicate what Texarkana Nursing should ric treatment facility was placed in a ward with have done differently, citing Russ v. Titus Hospital male patients, where one of them allegedly raped District, 128 S.W.3d 332, 341–42 her. The patient claimed her injuries were proxim- (Tex.App.-Texarkana 2004, pet. denied) ately caused by the negligence of Timberlawn's em- (“[w]hether a defendant breached his or her duty to ployees and submitted an expert report in support a patient cannot be determined absent specific in- of her claims. Timberlawn claimed the report was formation about what the defendant should have inadequate and conclusory on the issue of causadone differently”) (quoting Palacios, 46 S.W.3d at tion. This complaint was based on the premise that FN7 880). In other words, one must be able to de- the expert did not opine that the patient was actutermine from the report what was required by the ally raped, and, thus, could not identify the alleged standard of care. This requires “specific informa- causal relationship between Timberlawn's alleged tion about what the defendant should have done dif- negligence and the patient's injury. In rejecting this ferently.” Palacios, 46 S.W.3d at 880. Here, we premise, the court distinguished health care liability have a generic statement that the nursing facility claims in which “the ‘injury, harm, or damages must provide a safe environment. Texarkana Nurs- claimed’ flow from the existence of a medical coning maintains this is insufficient. dition that itself resulted from the breach of the applicable standard of care.” Id. at 212. In such a FN7. Russ involved an allegedly deficient case, report regarding a hospital's duty to keep a

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388 S.W.3d 314 (Cite as: 388 S.W.3d 314)

[I]dentifying the causal relationship between the the following records in conjunction with alleged breach of the standard of care and the res- issuing his report: ulting harm involves not only an explanation as to how the standard of care was breached, but 1) Nursing Home Records from Texalso how the breach gave rise to the new, deleter- arkana Nursing and Healthcare Center ious medical condition. Similarly, other health-

2) Affidavit from the Texas Board of care liability claims may allege that a breach of Nursing the applicable standard of care exacerbated a pre- existing medical condition, or hindered or pre- 3) Offense Report by Officer Steven G. vented the effective treatment of such a condi- Womack tion. Identifying the “breach/injury” causal relationship in these cases may well require an expert 4) Pictures of Mrs. Vest taken by her to opine as to the existence, extent, and prognosis daughter of the pre-existing medical condition, as well as how the alleged breach of the standard of care ag- 5) Arrest Report of Mary Elliott Bean. gravated such a condition, impeded or prohibited in the male unit exposed [the patient] to harm its treatment, and otherwise affected the patient's which resulted in her self reported rape. Had prognosis.

[S.B.] been housed in a safe and appropriate man-

However, S.B.'s claim is different. S.B. alleges ner, given her propensity for sexual victimizathat , as a result of Timberlawn's failure to meet tion, she would not have been placed in a male the applicable standards of care relevant to its unit. By being housed in a male unit it was foretreatment of her, she was raped. Rape is not a seeable that [S.B.] would be exposed to and was medical condition. It is an assault. Moreover, at higher risk for the exact self reported harm rape may—or may not—be accompanied by med- which she suffered.... ically ascertainable evidence of physical trauma, Id. at 214. The report made clear the specific conor even physical evidence that it occurred. duct called into question and provided a sufficient basis for the trial court to conclude that the *320 Id. The court, therefore, declined to hold claim had merit. Id. at 215.

that the causation element of the report was required to include an opinion that the patient was in In this case, however, the report indicates that fact raped. Id. Texarkana Nursing failed to provide “a safe and secure environment for its residents, allowing the This case is different from Timberlawn inas- documented assault of Ms. Vest by one if its own much as Texarkana Nursing is not claiming that the employees.” In other words, the assault itself is the report fails to state that Vest was, in fact, assaulted. breach of the standard of care, which requires the There is no dispute that Vest was assaulted; the as- provision of a safe and secure environment for FN8 sault was photographically documented. In- nursing home residents. This statement does not, stead, Texarkana Nursing claims the mere state- however, advise Texarkana Nursing of what should ment that it failed to provide a safe environment is have been done in order to prevent its employee an insufficient statement of the breach of the stand- from assaulting Vest. ard of care, because it does not indicate what should have been done differently. In contrast, the The question boils down to one of how much Timberlawn report stated that housing the patient detail is needed in order for an expert report to withstand Chapter 74 scrutiny when the harm al-

FN8. Shaw's report indicates he reviewed leged arises from assaultive conduct. Lyle points to

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388 S.W.3d 314 (Cite as: 388 S.W.3d 314)

Christus Spohn Health System Corp. v. Sanchez, the [certified nurse's assistant] and the [registered 299 S.W.3d 868 (Tex.App.-Corpus Christi 2009, nurse],” “[f]ailed to protect Ms. Sanchez from sexupet . denied), in support of her contention that the al harassment and sexual abuse,” and “[f]ailed to report is sufficient. Sanchez involved an action provide safety to Ms. Sanchez in her immediate against a hospital and hospital employees in their post operative [sic] when the [certified nurse's asindividual capacities for assault and intentional in- sistant] lifted Ms. Sanchez up and began dancing fliction of emotional distress. Sanchez was an with her.” Id. The court found that this report put I.C.U. patient when a registered nurse and a certi- the hospital on notice of the specific, complained-of fied nurse's assistant allegedly entered her room conduct. Id. and made unwanted sexual advances toward her. Sanchez alleged that one of the men undressed her In this case, unlike Sanchez, the report simply and exposed her body for the other to see. She fur- states that Texarkana Nursing failed to provide a ther claimed that they turned her over using their safe and secure environment for Vest. In Sanchez, hands instead of a turning pad and, while they were however, the report stated that the hospital was removing her from the bed to a chair in her room, quired to provide adequate supervision of its certithey danced with her. Sanchez alleged that during fied nursing assistants and licensed nursing personthese physical contacts, the nurse and nurse's assist- nel, to protect its patient from sexual harassment ant made sexual overtures and comments and that and abuse, and to keep the patient safe. Granted, the improper conduct continued until she was dis- this is not much more detail than we have in this charged from the hospital a few days later. Id. at case, but Sanchez may be close to the line of what 872. is permissible.

*321 Sanchez sued the hospital for negligent For example, Baylor All Saints Medical Center hiring, supervision, training, and retention of its v. Martin, 340 S.W.3d 529 (Tex.App.-Fort Worth employees and vicarious liability for the conduct of 2011, no pet.), involved an alleged sexual assault FN9 its employees. Relevant to this case, Sanchez's ex- on a patient in her hospital room. The hospital pert report was attacked on the basis that it did not objected to the sufficiency of the patient's expert readequately set forth the standard of care and/or port. The report in question articulates the standard safety and breach because the report was alleged to of care as follows: be conclusive and speculative. Id. at 877. Spohn FN9. The Martin opinion does not indicate further argued that the report failed to provide spewhether the assault was committed by a cific information about what it should have done hospital employee, another patient, or differently. The report stated, in relevant part, that some other third party.

the “standard of care requires that the hospital and its nursing staff provide adequate supervision to A hospital such as Baylor All Saints Medical their certified nursing assistants and licensed nurs- [C]enter is expected to adhere to specific standing personnel.” The report further stated that the ards of care in regard to all of its patients. A bed- “standard of care requires that the hospital and its rock principal [sic] in providing care to its panursing staff protect their patients from sexual har- tients is the understanding that all of a hospital's assment and abuse.” Id. patients by nature of their disease or injury are potentially vulnerable and necessarily need to re-

The court concluded that the report identified ceive treatment in a safe and secure environment.

the care that was expected, but not rendered under The Joint Commission on Accreditation of Health the applicable standard of care, because it states the Care Organizations (JCAHO) has established in hospital “[f]ailed to provide adequate supervision to its Hospital Standards that all healthcare organiz-

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388 S.W.3d 314 (Cite as: 388 S.W.3d 314)

ations must have in place policies which safe- misreading of the discovery allowed under guard patients from assault by hospital staff and Section 74.351(s). Because assaults in by strangers that enter the hospital. The JCAHO health care settings are covered by Section requires that hospitals adequately implement 74.351, said the court (Martin, 340 S.W.3d these standards, and monitor this implementation. at 534 (citing Diversicare Gen. Partner, The JCAHO patient security and safety expecta- Inc. v. Rubio, 185 S.W.3d 842, 851 tions would require at a minimum that hospitals (Tex.2005))), logically, discovery of the should employ a sufficient number of security hospital's policies and procedures regardpersonal [sic] to insure that no unauthorized per- ing the protection of patients from assault sons enter patients ['] rooms and physically as- must be covered by Section 74.351(s). sault their patients. Additionally, the JCAHO Martin, 340 S.W.3d at 534. standards would expect that all hospital staff should be trained to identify *322 persons that Kingwood Pines Hospital, LLC v. Gomez, 362 are not authorized to enter patients['] rooms and S.W.3d 740 (Tex.App.-Houston [14th Dist.] 2011, should monitor and prevent unauthorized persons no pet.), further illustrates the need for detail when from having access to patients receiving treat- an expert offers opinions regarding patient safety. ment at the hospital. In that case, a patient of Kingwood Pines Hospital Id. at 533–34. The court determined this to be an was sexually assaulted by another patient. Gomez insufficient statement of the standard of care. For offered an expert report indicating a failure “to enexample , the report stated that there must be sure that there were appropriately trained and adpolicies in place to safeguard patients from as- equate staffing and millieu structure such that a sault, including employing a sufficient number of young girl ... would not be sexually molested.” The security personnel. The court wrote that this report stated that the standard of care was breached statement failed to indicate what specific policies when the physician failed to insure her patient's and safeguards should have been in place. Fur- safety using “any of the number of measures availther , the “ ‘policies in place to safeguard patients' able,” by failing to “provide additional supervision” are not identified.” Id. at 534. The number of se- and not affording the patient “the most basic supercurity personnel needed and the training the staff vision.” Id. at 750. The report further indicated that should have received is not described. Id. This re- (the physician) was required “to insure her patients port failed in light of the required standard, i.e., are being treated in a safe and secure environment “what an ordinary prudent hospital would do un- by being aware of the environment, patient populader the same or similar circumstances,” and tion, and safety measures taken by the hospital.” Id. “even a fair summary must set out what care was at 749. In concluding the report was conclusory, the expected.” Id. (citing Palacios, 46 S.W.3d at court noted that it did not provide information FN10 about how the physician was to insure that the hos-

880).

pital was adequately staffed and that staff members FN10. The court also addressed Martin's were appropriately trained or what measures were claim that the report was all that could be available to insure the patient's safety. Further, the done at the time in light of the fact that report did not indicate what kind of supervision by Section 74.351(s) only allows discovery of the hospital was sufficient to provide a secure enmedical records and billing records, which vironment for the patient. Id. at 750. do not contain the circumstances surrounding the assault and hence provide no dis- [6] In this case, the only direct negligence covery as to whether security standards claim addressed in Shaw's report is that of failing to were met. The court wrote that this was a provide Vest with a safe and secure environment.

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Because the report fails to articulate what Tex- S.W.3d at 527. The report, albeit in a conclusory arkana Nursing should have done differently to pre- manner, addresses this claim. vent the assault, it is deficient with respect to articulation of the standard of care and its breach. Because the report is deficient with respect to Lyle's direct liability claim regarding the failure to (2) Causation provide a safe and secure environment for Vest, the Texarkana Nursing further contends that trial court should be permitted the opportunity to Shaw's report is deficient in that it *323 fails to set consider whether to grant a thirty-day extension to forth the causal relationship between Texarkana cure the deficiencies. See TEX. CIV. PRAC. & FN11 Nursing's alleged deviations from the standard of REM.CODE ANN. § 74.351(c) (West 2011); care and Vest's injuries. The report does, however, Leland v. Brandal, 257 S.W.3d 204, 207 indicate that Texarkana Nursing breached its re- (Tex.2008); Longino v. Crosswhite, 183 S.W.3d sponsibility to Vest in allowing the documented as- 913, 918 n. 2 (Tex.App.-Texarkana 2006, no pet.); sault of Vest by one of its own employees, resulting see also Scoresby v. Santillan, 346 S.W.3d 546, 549 in injury to Vest. The resulting injuries are de- (Tex.2011) (trial court should err on side of grantscribed . Lyle maintains that this is a sufficient ing additional time and must grant it if deficiencies FN12 statement of causation under Timberlawn. After all, are curable). Because at least three of Lyle's assault is not a medical condition. Conversely, if direct liability claims necessarily relate to the prothe report is not sufficiently detailed in its state- vision of a safe environment, they are not comment of the standard of care and breach, and, thus, pletely unaddressed, and we decline to find that FN13 fails to advise Texarkana Nursing of what it should such claims should be dismissed. See *324 have done differently to provide a safe and secure Querry v. Sanders, No. 06–08–00099–CV, 2009 environment for Vest, then it logically follows that WL 1097904, at *7 (Tex.App.-Texarkana Apr. 24, causation should be described in terms of the spe- 2009, no pet.) (mem. op.) (report which wholly cific shortcomings that created a situation in which failed to address alleged negligence in failing to assault could occur. properly identify and isolate main bile duct before initiating main procedure not curable deficiency).

B. Deficiencies Regarding Direct Liability Are Curable FN11. Section 74.351 of the Texas Civil [7] Texarkana Nursing contends that because Practice and Remedies Code states, “If an the report does not address the pleaded cause of ac- expert report has not been served within tion, it does not constitute a good-faith effort to the period specified by Subsection (a) becomply with the statutory requirements and should, cause elements of the report are found detherefore , be dismissed in reliance on Windsor v. ficient, the Court may grant one 30–day Maxwell, 121 S.W.3d 42, 51 (Tex.App.-Fort Worth extension to the claimant in order to cure 2003, pet. denied) (to inform defendant of specific the deficiency.” TEX. CIV. PRAC. & conduct plaintiff has called into question, report REM.CODE ANN. § 74.351(c). must support cause of action alleged by plaintiff in its pleadings). Here, as previously discussed, the re- FN12. Scoresby involved a letter report port does address the claim that Texarkana Nursing that failed to state the standard of care but had a duty to assist Vest in attaining and maintain- implied that it was inconsistent with the ing “the highest practicable level of physical, men- physicians' conduct. Even so, the report tal, and psychosocial well being.” Implicit in this contained the opinion of an individual with duty is the provision of a safe and secure environ- expertise that the claim had merit and imment . See Harris Methodist Fort Worth, 342 plicated the defendants' conduct. This minimal standard is met here as well. The re-

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388 S.W.3d 314 (Cite as: 388 S.W.3d 314)

port is written by an individual with ex- similar locality; failed to assist residents (including pertise, implicates the conduct of Tex- Vest) in attaining and maintaining the highest pracarkana Nursing, and indicates that the ticable level of physical, mental, and psychosocial claim has merit. Scoresby, 346 S.W.3d at well-being; failed to meet the applicable standards 557. of care; violated their duty of care to Vest through mistreatment, abuse and neglect; and violated Sec-

FN13. Lyle alleges that Texarkana Nursing tion 22.04 of the Texas Penal Code (injury to eldwas negligent in terms of hiring, staffing erly individual). Shaw's report is silent with respect levels, supervision of personnel, provision to each of these claims, with the exception of asof financial resources, and in failing to saultive conduct and mistreatment. The report idencomply with the Code of Federal Regula- tifies conduct by Texarkana Nursing's employtions . ee—the alleged assault on Vest. The report fails, however, to identify the standard of care, breach of C. Shaw's Report Fails to Address Vicarious Lithe standard of care, or causation.

ability Claims [8] Lyle's petition alleges that Texarkana Nurs- [9] The only statement regarding the standard ing has “vicarious liability for the acts and omis- of care in the entire report regarding the staff is: sions of all persons or entities under their control, “The standard of care for a long term care facility either directly or indirectly, including employees, and its staff requires that the facility in question agents, consultants, and independent contractors, provide that level of care and treatment that a reaswhether in-house or outside entities, individuals, onable, prudent, similar facility would provide unagencies , or pools causing or contributing to the in- der the same or similar circumstances.” (Emphasis juries of BETTY RUTH VEST.” “When a party's added.) The report says nothing regarding the alleged health care liability is purely vicarious, a re- breach of the standard of care by the staff or how port that adequately implicates the actions of that that breach caused Vest's injuries. While the underparty 's agents or employees is sufficient.” Gardner lying nature of the vicarious liability claim rests in v. U.S. Imaging, Inc., 274 S.W.3d 669, 671–72 the intentional acts of Bean, which appear to be un- (Tex.2008) (per curiam). Thus, if the report identi- related to the rendition of health care, Lyle's pleadfies conduct by Texarkana Nursing's employee, ing alleges her claims fall within the purview of Texarkana Nursing is implicated. As long as the re- FN14 Chapter 74. We must, therefore, analyze *326 port adequately addresses the standard of care ap- them as such. See Giron v. Baylor Univ. Med. Ctr., plicable to the employee, how the employee No. 05–09–00825–CV, 2011 WL 149981, at *2 breached the standard of care, and that the breach (Tex.App.-Dallas Jan. 19, 2011, pet. denied) (mem. caused the plaintiff's injury, it is sufficient as op.) (when Giron chose to proceed under Chapter against Texarkana Nursing to satisfy the expert re- 74 and plead her cause of action as health care liabport requirement for the vicarious liability claims. ility claim, she bound herself to statutory require- See RGV Healthcare Assocs., Inc. v. Estevis, 294 ments). S.W.3d 264, 273 (Tex.App.-Corpus Christi 2009, pet. denied). FN14. Recently, the Texas Supreme Court decided Loaisiga v. Cerda, 379 S.W.3d Lyle pled that the staff of Texarkana Nursing 248 (Tex.2012). Loaisiga was not decided did not provide Vest with timely and accurate care until after the appellant's brief was filed assessments and necessary supervision; failed to here and well after the hearing in the trial use reasonable care in treating residents with the court. In Loaisiga, two female patients degree of skill and learning ordinarily possessed sued a medical doctor, the professional asand used by nursing home facilities in the same or

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388 S.W.3d 314 (Cite as: 388 S.W.3d 314)

sociation bearing his name, and a clinic al- [W]e fail to see how the Legislature leging the doctor assaulted them by grop- could have intended the requirement of ing their breasts while examining them for an expert report to apply under circumsinus and flu symptoms. Id. at 253. The pa- stances where the conduct of which a tients served the doctor and professional plaintiff complains is wholly and conassociation with reports from a physician clusively inconsistent with, and thus sepwho , based on the assumption that the al- arable from, the rendition of “medical legations in the plaintiffs' pleadings were care, or health care, or safety or profestrue , opined that the doctor's alleged ac- sional or administrative services directly tions did not fall within any appropriate related to health care” even though the standard of care. The defendants argued conduct occurred in a health care conthat the claims were health care liability text. See TEX. CIV. PRAC. & claims and moved for dismissal on the REM.CODE ANN. § 74.001(a)(13); see basis that the reports were deficient. The also TEX. GOV'T CODE ANN. § trial court denied the motions. The court of 311.021 (“In enacting a statute, it is preappeals held that the claims were not sumed that ... a just and reasonable result health care liability claims and that expert is intended....”). reports were not required and affirmed the trial court's order without considering the Id. at 257. report's adequacy. Id. at 254. The high The court then listed three factors that court recognized a presumption:

must be reflected in the record in order The breadth of the statute's text essen- for an assault claim against a medical or tially creates a presumption that a claim health care provider not to be considered is an HCLC if it is against a physician or a health care liability claim: health care provider and is based on [A] claim against a medical or health facts implicating the defendant's conduct care provider for assault is not an HCLC during the course of a patient's care, if the record conclusively shows that (1)

treatment, or confinement. See [Marks v.

there is no complaint about any act of St. Luke's Episcopal Hosp., 319 S.W.3d the provider related to medical or health 658, 662 (Tex.2010) ]. But the presumpcare services other than the alleged oftion is necessarily rebuttable. In some infensive contact, (2) the alleged offensive stances the only possible relationship contact was not pursuant to actual or imbetween the conduct underlying a claim plied consent by the plaintiff, and (3) the and the rendition of medical services or only possible relationship between the healthcare will be the healthcare setting alleged offensive contact and the rendi-

(i.e., the physical location of the conduct tion of medical services or healthcare in a health care facility), the defendant's was the setting in which the act took status as a doctor or health care provider, place.

or both.

Id.

Id. at 256. Following a discussion of the statute's requirement that claimants in In determining whether a claim is subhealth care liability claims file expert re- ject to the Texas Medical Liability Act's ports, the high court wrote: (TMLA) expert report requirements, the

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trial court is not limited to the four determination of whether her claims are corners of the expert report; instead, the subject to the TMLA's expert report retrial court should consider the entire re- quirements. cord, including pleadings, motions and responses, and relevant evidence prop- [10] The lone statement regarding the standard erly admitted. Id. at 258. In Loaisiga, the of care applicable to the staff of Texarkana Nursing court noted a lack of information to give fails to specify what is required of a reasonable and context to the physician's actions during prudent staff under the same or similar circumthe examinations, such as medical re- stances. This statement is not a fair summary of cords, reports, and other information re- Shaw's opinions regarding the standard of care for garding the plaintiffs' symptoms and the Texarkana Nursing staff. The mere recitation of complaints to the physician. This lack of a legal standard, in the absence of specific facts apinformation prevented the plaintiffs from plicable to this case, is not a good-faith effort to arconclusively showing that “the only rela- ticulate the standard of care. See Lira v. Cerna, No. tionship between the alleged touching of 08–01–00250–CV, 2002 WL 1767569, at *6 their breasts and Dr. Loaisiga's rendition (Tex.App.-El Paso Aug. 1, 2002, no pet.) (not desof medical services was the physical loc- ignated for publication) (The statement that “[t]he ation of the examination....” Id. at 259. standard of care requires that a physician provide The court went on to say that that level of care which a reasonable prudent physician would provide in the same or similar circumbecause we are clarifying the standard stances” does not demonstrate good-faith effort to for whether claims are subject to the provide fair summary of expert's opinions and does TMLA's expert report requirements and not identify standard of care.); see also Hood v. the plaintiffs maintain that theirs are not, Phillips, 554 S.W.2d 160, 165 (Tex.1977) (holding we conclude it is appropriate to remand that legal standard for medical profession is the case to the trial court for further pro- “reasonable and prudent” physician “under the ceedings regarding that issue. See Low v. same or similar circumstances”). Moreover, the re- Henry, 221 S.W.3d 609, 621 (Tex.2007) port is silent regarding the breach of the standard of (remanding “to allow the parties to care and causation. Because the standard of care appresent evidence responsive to our plicable to the staff is not identified, and because guidelines”). breach and causation are not addressed, these deficiencies are not curable. Lyle's vicarious liability Id. at 260. claims should, therefore, have been dismissed by the trial court.

In light of Loaisiga, this Court questioned whether to remand the case to the IV. Conclusion trial court for a determination of whether Because the report is deficient with respect to or not Lyle's claim is, in fact, a health Lyle's direct liability claim regarding the failure to care liability claim. However, in provide a safe and secure environment for Vest, we Loaisiga, the plaintiffs maintained that remand this claim to the trial court to consider their claims were not health care liability whether to grant a thirty-day extension to cure these claims. Here, Lyle has represented to deficiencies. this Court that her claims are health care liability claims, and, in oral argument, Shaw's report is silent with respect to the stand- Lyle's counsel stated it was not her wish ard of care, breach, and causation regarding her vito remand the case to the trial court for a carious liability claims. Because these deficiencies

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are not curable, Lyle's vicarious liability claims are dismissed.

Tex.App.–Texarkana,2012. Texarkana Nursing & Healthcare Center, LLC v. Lyle 388 S.W.3d 314

END OF DOCUMENT

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371 S.W.3d 171, 55 Tex. Sup. Ct. J. 1033 (Cite as: 371 S.W.3d 171)

was a nonsubscriber to workers' compensation insurance ; and Supreme Court of Texas. (6) aside from claims alleging negligent medical care or TEXAS WEST OAKS HOSPITAL, LP and Texas Hos- health care, a claim need not involve a patient-physician pital Holdings, LLC, Petitioners, relationship for it to be an HCLC.

v.

Frederick WILLIAMS, Respondent. Judgment of Court of Appeals reversed; case remanded with instructions.

No. 10–0603.

Argued Nov. 8, 2011. Decided June 29, 2012. Lehrmann, J., filed a dissenting opinion, in which Medina and Willett, JJ., joined.

Background: Estate of psychiatric patient brought health care liability claim (HCLC) against hospital and West Headnotes hospital's employee who was involved in physical alter-

[1] Health 198H 800 cation with patient that resulted in patient's death and injuries to employee. Employee brought cross-claim of 198H Health negligence against hospital, which was a nonsubscriber 198HV Malpractice, Negligence, or Breach of Duty to workers' compensation scheme. The 234th District 198HV(G) Actions and Proceedings Court, Harris County, Reese Rondon, J., denied hospit- 198Hk800 k. In general. Most Cited Cases al's motion to dismiss employee's cross-claim as an Causes of action that are health care liability claims HCLC subject to expert-report requirements. Hospital (HCLCs) cannot be transmuted to avoid the strictures of brought interlocutory appeal. The Court of Appeals, 322 the medical liability statute. V.T.C.A., Civil Practice & S.W.3d 349,Leslie B. Yates, J., affirmed. Hospital filed Remedies Code § 74.001 et seq. petition for review.

[2] Appeal and Error 30 893(1)

Holdings: The Supreme Court, Wainwright, J., held that: 30 Appeal and Error (1) employee was a “claimant” under the Texas Medical 30XVI Review Liability Act (TMLA); 30XVI(F) Trial De Novo (2) negligence claim was based on alleged departures 30k892 Trial De Novo from accepted standards of health care and of safety and 30k893 Cases Triable in Appellate Court was therefore an HCLC; 30k893(1) k. In general. Most Cited (3) if expert medical or health care testimony is neces- Cases sary to prove or refute the merits of claim against a physician or health care provider, claim is an HCLC; Health 198H 800 (4) to qualify as an HCLC, a claim that is based on de-

198H Health partures from accepted standards of safety need not be 198HV Malpractice, Negligence, or Breach of Duty directly related to health care, abrogating St. David's 198HV(G) Actions and Proceedings Healthcare P'ship, L.P. v. Esparza, 315 S.W.3d 601;

198Hk800 k. In general. Most Cited Cases Appell v. Muguerza, 329 S.W.3d 104;

The nature of health care liability claims (HCLCs)

(5) interpreting hospital employee's action as an HCLC that the Legislature intended to include under the umdid not conflict with exclusive-remedy provisions of brella of the Texas Medical Liability Act (TMLA) is a Texas Workers' Compensation Act (TWCA), as hospital

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371 S.W.3d 171, 55 Tex. Sup. Ct. J. 1033 (Cite as: 371 S.W.3d 171)

matter of statutory construction, a legal question that 198Hk804 k. Affidavits of merit or meritoriappellate court reviews de novo. V.T.C.A., Civil Prac- ous defense; expert affidavits. Most Cited Cases tice & Remedies Code § 74.001(a)(13). Though not a patient, psychiatric technician and professional caregiver who was employed at private [3] Statutes 361 1072 mental health hospital was a “claimant” under Texas Medical Liability Act (TMLA) in context of determin-

361 Statutes ing whether negligence claim he asserted against hospit-

361III Construction al for injuries sustained in physical altercation with pa-

361III(A) In General tient was a health care liability claim (HCLC) subject to 361k1071 Intent TMLA's expert-report requirements. V.T.C.A., Civil 361k1072 k. In general. Most Cited Cases Practice & Remedies Code §§ 74.001(a)(2, 13), (Formerly 361k181(1))

74.351(a, b).

Statutes 361 1091 [6] Health 198H 800 361 Statutes 198H Health 361III Construction 198HV Malpractice, Negligence, or Breach of Duty 361III(B) Plain Language; Plain, Ordinary, or 198HV(G) Actions and Proceedings Common Meaning 198Hk800 k. In general. Most Cited Cases 361k1091 k. In general. Most Cited Cases A health care liability claim (HCLC) under the (Formerly 361k188)

Texas Medical Liability Act (TMLA) contains three ba-

In construing a statute, court's aim is to determine sic elements: (1) a physician or health care provider and give effect to the legislature's intent, and court bemust be a defendant; (2) the claim or claims at issue gins with the plain and common meaning of the statute's must concern treatment, lack of treatment, or a deparwords .

ture from accepted standards of medical care, or health [4] Health 198H 804 care, or safety or professional or administrative services directly related to health care; and (3) the defendant's 198H Health act or omission complained of must proximately cause 198HV Malpractice, Negligence, or Breach of Duty the injury to the claimant. V.T.C.A., Civil Practice & 198HV(G) Actions and Proceedings Remedies Code § 74.001(a)(13).

198Hk804 k. Affidavits of merit or meritorious defense; expert affidavits. Most Cited Cases [7] Health 198H 804 With the exception of medical care and health care 198H Health claims, court's focus in determining whether claims are 198HV Malpractice, Negligence, or Breach of Duty health care liability claims (HCLCs) falling under Texas 198HV(G) Actions and Proceedings Medical Liability Act (TMLA) and its expert-report re-

198Hk804 k. Affidavits of merit or meritoriquirements is not the status of the claimant, but the ous defense; expert affidavits. Most Cited Cases gravamen of the claim or claims against the health care Negligence claim that was brought against private provider. V.T.C.A., Civil Practice & Remedies Code §§ mental health hospital by its employee, a mental health 74.001(a)(10, 13, 19), 74.351(a, b).

professional, to recover for injuries from altercation [5] Health 198H 804 with psychiatric patient was based on alleged departures from accepted standards of health care and, therefore, 198H Health was a “health care liability claim” (“HCLC”) subject to 198HV Malpractice, Negligence, or Breach of Duty expert-report requirements of Texas Medical Liability 198HV(G) Actions and Proceedings Act (TMLA); employee alleged he was acting on pro-

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371 S.W.3d 171, 55 Tex. Sup. Ct. J. 1033 (Cite as: 371 S.W.3d 171)

fessional judgments of a physician about patient's care 198HV(G) Actions and Proceedings and treatment, and that the physician's judgments and 198Hk815 Evidence the hospital's additional professional judgments about 198Hk821 Necessity of Expert Testimony safety protocols departed from accepted standards of 198Hk821(5) k. Particular procedures. care and caused employee's injury. V.T.C.A., Civil Most Cited Cases Practice & Remedies Code §§ 74.001(a)(13), 74.351(a, Expert testimony was required to support neglib ). gence claim by hospital employee, a mental health professional , against hospital in connection with injuries [8] Health 198H 804 sustained in altercation with psychiatric patient, thus making claim a “health care liability claim” (“HCLC”)

198H Health under the Texas Medical Liability Act (TMLA); at its 198HV Malpractice, Negligence, or Breach of Duty core, caregiver's dispute with hospital was over the ap-

198HV(G) Actions and Proceedings propriate standards of care owed to employee in treating 198Hk804 k. Affidavits of merit or meritoriand supervising a psychiatric patient at the mental hosous defense; expert affidavits. Most Cited Cases pital, what services, protocols, supervision, monitoring In order for a claim based on departures from acand equipment were necessary to satisfy the standard, cepted standards of health care to constitute a health and whether such specialized standards were breached.

care liability claim (HCLC) subject to expert-report re-

V.T.C.A., Civil Practice & Remedies Code § quirements of Texas Medical Liability Act (TMLA), 74.001(a)(13).

there must a nexus between the standard departed from and the alleged injury. V.T.C.A., Civil Practice & Rem- [11] Health 198H 804 edies Code §§ 74.001(a)(13), 74.351(a, b).

198H Health [9] Health 198H 800 198HV Malpractice, Negligence, or Breach of Duty 198HV(G) Actions and Proceedings 198H Health 198Hk804 k. Affidavits of merit or meritori-

198HV Malpractice, Negligence, or Breach of Duty ous defense; expert affidavits. Most Cited Cases 198HV(G) Actions and Proceedings Negligence claim by hospital employee, a mental 198Hk800 k. In general. Most Cited Cases health professional, against hospital in connection with If expert medical or health care testimony is necesinjuries sustained in altercation with psychiatric patient sary to prove or refute the merits of claim against a would not be considered a health care liability claim physician or health care provider, the claim is a “health (HCLC) subject to expert-report requirements of Texas care liability claim” (“HCLC”) under the Texas Medical Medical Liability Act (TMLA) on bare basis that claim Liability Act (TMLA). V.T.C.A., Civil Practice & Remmirrored HCLC claims of patient's estate against hospitedies Code § 74.001(a)(13).

al that stemmed from same fact pattern, though employ-

[10] Health 198H 800 ee's claim qualified as an HCLC on other grounds; employee and patient's estate stood as separate claimants.

198H Health V.T.C.A., Civil Practice & Remedies Code §§ 198HV Malpractice, Negligence, or Breach of Duty 74.001(a)(2, 13), 74.351(a, b).

198HV(G) Actions and Proceedings 198Hk800 k. In general. Most Cited Cases [12] Health 198H 804

Health 198H 821(5) 198H Health 198HV Malpractice, Negligence, or Breach of Duty 198H Health 198HV(G) Actions and Proceedings 198HV Malpractice, Negligence, or Breach of Duty 198Hk804 k. Affidavits of merit or meritori-

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371 S.W.3d 171, 55 Tex. Sup. Ct. J. 1033 (Cite as: 371 S.W.3d 171)

ous defense; expert affidavits. Most Cited Cases 198H Health Negligence claim asserted by hospital employee, a 198HV Malpractice, Negligence, or Breach of Duty mental health professional, against hospital in connec- 198HV(G) Actions and Proceedings tion with injuries sustained in altercation with psychiat- 198Hk804 k. Affidavits of merit or meritoriric patient implicated alleged departures from accepted ous defense; expert affidavits. Most Cited Cases standards of safety and therefore qualified as a health care liability claim (HCLC) subject to the expert-report Workers' Compensation 413 2084 requirements of the Texas Medical Liability Act 413 Workers' Compensation (TMLA); claim was predicated on the monitoring and 413XX Effect of Act on Other Statutory or Comrestraint of violent, schizophrenic patients. V.T.C.A., mon-Law Rights of Action and Defenses Civil Practice & Remedies Code §§ 74.001(a)(2, 13), 413XX(A) Between Employer and Employee 74.351(a, b).

413XX(A)1 Exclusiveness of Remedies Af-

[13] Health 198H 804 forded by Acts 413k2084 k. In general. Most Cited Cases 198H Health Interpreting hospital employee's negligence claim 198HV Malpractice, Negligence, or Breach of Duty against hospital, brought to recover for on-the-job injur-

198HV(G) Actions and Proceedings ies sustained in altercation with psychiatric patient, as a 198Hk804 k. Affidavits of merit or meritori- health care liability claim (HCLC) subject to the expertous defense; expert affidavits. Most Cited Cases report requirements of the Texas Medical Liability Act To qualify as a health care liability claim (HCLC) (TMLA) did not conflict with exclusive-remedy provisubject to expert-report requirements of Texas Medical sions of Texas Workers' Compensation Act (TWCA), Liability Act (TMLA), a claim that is based on depar- where hospital was a nonsubscriber to workers' comtures from accepted standards of safety need not be dir- pensation insurance. V.T.C.A., Labor Code §§ 406.002, ectly related to health care; abrogating St. David's 406.031(a), 406.033, 408.001(a); V.T.C.A., Civil Prac- Healthcare P'ship, L.P. v. Esparza, 315 S.W.3d 601; tice & Remedies Code §§ 74.001(a)(13), 74.351(a, b). Appell v. Muguerza, 329 S.W.3d 104. V.T.C.A., Civil Practice & Remedies Code §§ 74.001(a)(13), 74.351(a, [16] Workers' Compensation 413 11 b).

413 Workers' Compensation [14] Statutes 361 1161 413I Nature and Grounds of Employer's Liability 413k11 k. Purpose of legislation. Most Cited 361 Statutes Cases 361III Construction In providing the worker a form of prompt remuner-

361III(E) Statute as a Whole; Relation of Parts to ation for loss of earning capacity, the statutory workers'

Whole and to One Another compensation scheme is in lieu of common law liability 361k1161 k. Relative and qualifying terms and based on negligence. V.T.C.A., Labor Code § 406.001 provisions, and their relation to antecedents. Most Cited et seq. Cases (Formerly 361k196) [17] Health 198H 804 Under the “last antecedent doctrine” of statutory in-

198H Health terpretation, a qualifying phrase should be applied only 198HV Malpractice, Negligence, or Breach of Duty to the portion of the sentence immediately preceding it.

198HV(G) Actions and Proceedings [15] Health 198H 804 198Hk804 k. Affidavits of merit or meritorious defense; expert affidavits. Most Cited Cases

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371 S.W.3d 171, 55 Tex. Sup. Ct. J. 1033 (Cite as: 371 S.W.3d 171)

Aside from claims alleging negligent medical care a “claimant” under the Act and his allegations against or health care, a claim need not involve a patient- his nonsubscribing employer are health care and safety physician relationship for it to be a health care liability claims under the TMLA's definition of HCLCs, requirclaim (HCLC) subject to expert-report requirements of ing an expert report to maintain his lawsuit. We further Texas Medical Liability Act (TMLA). V.T.C.A., Civil hold that the Act does not conflict with the Texas Work- Practice & Remedies Code §§ 74.001(a)(13), 74.351(a, ers' Compensation Act (TWCA). We therefore reverse b). the judgment of the court of appeals.

[18] Health 198H 807 I. Background Texas West Oaks Hospital, LP and Texas Hospital 198H Health Holdings, LLC operate Texas West Oaks Hospital 198HV Malpractice, Negligence, or Breach of Duty (West Oaks), a state-licensed, private mental health hos-

198HV(G) Actions and Proceedings pital located in Houston, Texas. Frederick*175 Willi-

198Hk807 k. Notice. Most Cited Cases ams, a psychiatric technician and professional caregiver Purpose of the notice-of-suit and medical-re- at West Oaks, was injured on the job while supervising cords-release provisions of the Texas Medical Liability a patient, Mario Vidaurre. Vidaurre was admitted to Act (TMLA) is to encourage the parties to negotiate and West Oaks on June 11, 2007. Due to his history of parasettle disputes prior to suit. V.T.C.A., Civil Practice & noid schizophrenia, including manic outbursts and viol- Remedies Code §§ 74.051(a, d), 74.052. ent behavior directed at family members and professional staff, Vidaurre was placed by his admitting phys-

*174 Ryan Lee Clement, Wesson H. Tribble, Tribble, ician on one-to-one observation, an elevated level of su-

Ross & Wagner, Houston, TX, for Texas West Oaks pervised care in the psychiatric unit. Vidaurre was also Hospital, LP.

put on “unit restriction,” meaning he could only be Charles M. Hessel, Marks Balette & Giessel, P.C., taken out of the psychiatric unit by direct order of a Robert Steven Kwok, William Wade Hoke, Robert physician. A few days after Vidaurre's admission, while Kwok & Associates, Leah Rush Easterby, Houston, TX, Williams was supervising him, Vidaurre became agitfor Frederick Williams. ated. To calm him, Williams took Vidaurre to an outdoor enclosed smoking area, in violation of the unitrestriction policy. The door to the enclosure locked be-

Justice WAINWRIGHT delivered the opinion of the hind them and the unsupervised area contained no cam- Court, in which Chief Justice JEFFERSON, Justice eras, audio supervision, mirrors, or other monitoring ap- HECHT, Justice GREEN, Justice JOHNSON, and paratus. Although Williams previously had taken Justice GUZMAN joined. Vidaurre to the smoking area without incident, a physic-

At issue in this interlocutory appeal is whether the al altercation occurred on this occasion, resulting in claims of an employee against his employer, both of Vidaurre's death and injuries to Williams. whom are health care providers, alleging injuries arising out of inadequate training, supervision, risk-mitigation, Vidaurre's estate sued West Oaks, and later Williand safety in a mental health facility, constitute health ams, asserting HCLCs under the TMLA, codified in care liability claims (HCLCs) under the Texas Medical Chapter 74 of the Texas Civil Practice and Remedies Liability Act (TMLA or Act). See TEX. CIV. PRAC. & Code. TEX. CIV. PRAC. & REM.CODE §§ 74.001 – REM.CODE ch. 74 et seq. We conclude that the TMLA 74.507. Williams later asserted cross claims of neglidoes not require that the claimant be a patient of the gence against West Oaks pursuant to section 406.033 of health care provider for his claims to fall under the Act, the Texas Labor Code, a statutory provision governing so long as the Act's other requirements are met. We employee common law claims against employers not hold that the employee here is properly characterized as subscribed to workers' compensation. See TEX.

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371 S.W.3d 171, 55 Tex. Sup. Ct. J. 1033 (Cite as: 371 S.W.3d 171)

LAB.CODE § 406.033. West Oaks' status as a nonsub- law is applicable to his claims. Act of June 2, scriber to workers' compensation is uncontroverted, and 2003, 78th Leg., R.S., ch. 204, § 10.09, 2003 therefore, Williams' claims against his employer are not Tex. Gen. Laws 847, amended by Act of July barred by the Texas Workers' Compensation Act. See 19, 2011, 82nd Leg., 1st C.S., ch. 7, § 4.02, id.; Port Elevator–Brownsville, L.L.C. v. Casados, 358 2011 Tex. Gen. Laws 5445 (amending section S.W.3d 238, 241 (Tex.2012) (discussing the “exclusive 74.001(a), adding subsection (a)(12)(A)(viii) remedy” doctrine). (including a health care collaborative as a “health care provider”) and making nonsub-

Williams alleged that West Oaks was negligent in: stantive changes).

(a) Failing to properly train Williams to work at West The court of appeals affirmed the trial court's order. Oaks' premises, including warning him of the inherent 322 S.W.3d 349, 354. The court analyzed Williams' dangers of working with patients with the conditions claims as breaches of West Oaks' duty of safety to its and tendencies that Mario Vidaurre possessed; (b) employee. Id. at 352. The court of appeals began its Failing to adequately supervise West Oaks' employ- analysis from the premise that the phrase “directly reees , including Williams, while working with patients lated to health care” in section 74.001(a)(13) modifies with conditions and tendencies that Mario Vidaurre not only “professional or administrative services,” but possessed; (c) Failing to provide adequate protocol to also the term “safety.” Id. It concluded that a safety avoid and/or decrease the severity of altercations claim “must be directly related to and inseparable from between its employees, such as Williams, and pa- health care.” Id. It is not disputed here that Vidaurre's tients; (d) Failing to provide its employees, including claims against West Oaks are HCLCs, but Williams ar- Williams, with adequate emergency notification gues his claims against West Oaks are not. The court of devices to alert other employees of altercations in appeals noted the related nature of the two parties' cases which assistance is needed; (e) Failing to warn Willi- but concluded, based in part on our withdrawn opinion ams of the dangers that West Oaks knew or should in Marks v. St. Luke's Episcopal Hospital, 52 have known were associated with working with pa- Tex.Sup.Ct.J. 1184, withdrawn and superseded on retients such as Mr. Vidaurre; and (f) Failing to provide hearing, 319 S.W.3d 658 (Tex.2010), that Williams' a safe workplace for its employees, including Willi- claims against West Oaks are separable from health care ams. and are not HCLCs. 322 S.W.3d at 353. Reasoning that the source of West Oaks' duty to Williams is the em-

West Oaks filed a motion to dismiss on the grounds ployer-employee relationship and that the nature of that Williams' claims constituted HCLCs under the Vidaurre's relationship with West Oaks—patient to TMLA and that Williams had not served an expert rehealth care provider—is different from Williams', the port on West Oaks, as required under the Act. See TEX.

court of appeals concluded that the safety claims “flow CIV. PRAC. & REM.CODE § 74.001(a)(13) (defining from the employment relationship” between Williams health care liability claims), and § 74.351(a), (b)

and West Oaks and are not “directly related” to health (requiring a trial court to dismiss a health care liability care, as required by the statute. 322 S.W.3d at 352–53;

claim if an expert report is not served within 120 days FN1 TEX. CIV. PRAC. & REM.CODE § 74.001(a)(13).

of filing suit). Williams *176 responded that his West Oaks filed a petition for review in this Court.

claims sound in ordinary negligence rather than health care liability. Following a hearing, the trial court denied II. Discussion West Oaks' motion. West Oaks then filed this inter- [1] In seeking to distinguish ordinary negligence locutory appeal. See id. § 51.014(a)(9). claims from HCLCs, the heart of these cases lies in the nature of the acts or omissions causing claimants' injur-

FN1. The HCLC definition was amended after ies and whether the events are within the ambit of the Williams' cause of action accrued, and the prior

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371 S.W.3d 171, 55 Tex. Sup. Ct. J. 1033 (Cite as: 371 S.W.3d 171)

legislated scope of the TMLA. Causes of action that are “aris[ing] in other settings, such as jails and prisons”). HCLCs cannot be transmuted to avoid the strictures of In essence, Williams argues that the hospital is the mere the medical liability statute. Omaha Healthcare Ctr., situs of his claims, that his role as psychiatric technician LLC v. Johnson, 344 S.W.3d 392, 394 (Tex.2011); Di- overseeing a mental patient has no bearing on the charversicare Gen. Ptr., Inc. v. Rubio, 185 S.W.3d 842, 851 acter of his claims, and the fact that his claims arose in (Tex.2005). We recognize that the Legislature intended a mental health facility has little or no bearing on their the Texas Medical Liability Insurance Improvement Act character. (TMLIIA), the TMLA's predecessor, to be broad, and it broadened that scope further in 2003 with its repeal and A. Standard of Review amendments resulting in the TMLA. Act of May 30, [2][3] West Oaks' and Williams' arguments both 1977, 65th Leg., R.S., ch. 817, § 1.02(6), 1977 Tex. implicate the scope of claims reached by the TMLA. Gen. Laws 2039, 2040 (former TEX.REV.CIV. STAT. The nature of the claims the Legislature intended to inart . 4590i, § 1.02(6)), repealed by Act of June 2, 2003, clude under the TMLA's umbrella is a matter of stat- 78th Leg., R.S., ch. 204, § 10.09, 2003 Tex. Gen. Laws utory construction, a legal question we review de novo. 847, 884. After the 2003 amendments, the breadth of Marks, 319 S.W.3d at 663 (interpreting the TMLIIA); HCLCs include causes of action against physicians and see also MCI Sales & Serv., Inc. v. Hinton, 329 S.W.3d health care providers for negligence in the provision of 475, 500 (Tex.2010) (observing that questions of stat- “medical care, or health care, or safety or professional utory construction are generally reviewed de novo). In or administrative services directly related to health construing a statute, our aim “ ‘is to determine and give care.” TEX. CIV. PRAC. & REM.CODE § effect to the Legislature's intent,’ ” and we begin with 74.001(a)(13). the “ ‘plain and common meaning of the statute's words.’ ” McIntyre v. Ramirez, 109 S.W.3d 741, 745 West Oaks argues that Williams' claims, mirroring (Tex.2003) (quoting Tex. Dep't of Transp. v. Needham, the same facts as Vidaurre's HCLCs, are HCLCs and 82 S.W.3d 314, 318 (Tex.2002); State Dep't of Hightherefore implicate the requirement to serve an expert ways & Pub. Transp. v. Gonzalez, 82 S.W.3d 322, 327 report. Such a conclusion would mandate *177 a dis- (Tex.2002) (further citations omitted)). missal because Williams did not serve a report on West Oaks. TEX. CIV. PRAC. & REM.CODE § 74.351(a), B. Relationship Between the Parties Under the Act (b). West Oaks also urges that Williams' status as a Williams argues that the lack of a patient-physician health care provider at the hospital—as opposed to a pa- or patient-health-care-provider relationship between tient—does not remove Williams from the requirement him and West Oaks is a clear barrier to inclusion of his that he pursue his allegations as HCLCs. On the other claims within the Legislature's definition of HCLCs. He hand, Williams characterizes his allegations as ordinary asserts that such a relationship is necessary to HCLCs. negligence claims against a nonsubscriber to the work- At one point in the past, Williams may have had a good ers' compensation scheme. Williams contends that the argument. However, modifications over time to the court of appeals was correct in concluding that his TMLA and its predecessor indicate a different scope for claims fall outside the HCLC definition and therefore an HCLCs under current law. expert report is not required for his suit to proceed. See The TMLIIA was enacted in 1977 to relieve a med-

322 S.W.3d 349, 353–54. Williams also echoes the ical “crisis [having] a material adverse effect on the decourt of appeals in asserting that West Oaks' alleged livery of medical and health care in Texas.” Act of May safety and security breaches do not require expert med-

30, 1977, 65th Leg., R.S., ch. 817, § 1.02(6), 1977 Tex.

ical testimony and are interchangeable with safety and Gen. Laws 2039, 2040 (repealed 2003). In 2003, facing security issues arising in non-medical settings such as another “medical malpractice insurance crisis” and a corrections facilities. See id. at 353 (opining that Willicorresponding “inordinate[ ]” increase in the frequency ams' safety and security claims involve issues also of HCLCs filed since 1995, the Legislature repealed the

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371 S.W.3d 171, 55 Tex. Sup. Ct. J. 1033 (Cite as: 371 S.W.3d 171)

TMLIIA, amending parts of the previous article 4590i breadth of HCLCs beyond the patient population. and recodifying it as Chapter 74 of the Texas Civil This in turn necessarily widened the reach of the ex- Practice and Remedies Code. Act of June 2, 2003, 78th pert report requirement, unless otherwise limited by Leg., R.S., ch. 204, § 10.11(a), 2003 Tex. Gen. Laws other statutory provisions. 847, 884.

However, “health care” and “medical care” HCLCs The 2003 legislation featured a significant modific- are separately defined in the Act and reference treatation to the existing law; it changed the HCLC defini- ment furnished “for, to, or on behalf of a patient.” Id. § FN3 tion: 74.001(a)(10), (a)(19). As discussed more fully below , “medical care” and “health care” HCLCs require *178 ‘Health care liability claim’ means a cause of that the claimant be a patient. See Part II.D.1, infra. action against a health care provider or physician for treatment, lack of treatment, or other claimed depar- FN3. This conclusion is in harmony with the ture from accepted standards of medical care, or Legislature's stated intent to “reduce [the] exhealth care, or safety or professional or administrative cessive frequency ... of health care liability services directly related to health care, which proxim- claims through reasonable improvements and ately results in injury to or death of a claimant, modifications in the Texas insurance, tort, and whether the claimant's claim or cause of action medical malpractice systems....” Act of June 2, sounds in tort or contract. 2003, 78th Leg., R.S., ch. 204, § 10.11(b)(1), 2003 Tex. Gen. Laws 847, 884.

TEX. CIV. PRAC. & REM.CODE § 74.001(a)(13)

(emphases added). The Legislature replaced the term [4] With the exception of medical care and health “patient” with “claimant” in the definition of an HCLC. care claims, our focus in determining whether claims FN2 Compare TEX. CIV. PRAC. & REM.CODE § come under the TMLA is not the status of the claimant, 74.001(a)(13), with TEX.REV.CIV. STAT. art. 4590i, § but the gravamen of the claim or claims against the 1.03(a)(4) (repealed 2003). The Legislature also defined health care provider. See Diversicare, 185 S.W.3d at the new term in the Act: 854.

FN2. The Legislature also broadened the sub- C. Williams' Status as a “Claimant” Under the Act ject-matter scope of the activities constituting [5] We next examine whether Williams is a HCLCs through the addition to the definition “claimant” under the TMLA. Only claimants are obligof “professional or administrative services dir- ated to serve expert reports on physicians or health care ectly related to health care.” Id. § providers. TEX. CIV. PRAC. & REM.CODE § 74.001(a)(24). 74.351(a), (b). West Oaks argues that the language and structure of the definition of “claimant” in the current ‘Claimant’ means a person, including a decedent's es- statute, especially when compared to its predecessor, intate , seeking or who has sought recovery of damages dicate that the term includes not only patients, but other in a health care liability claim. All persons claiming persons as well. Williams asserts that he is not a to have sustained damages as the result of the bodily “claimant” because his claims are not HCLCs, as they injury or death of a single person are considered a do not involve the exercise of professional medical single claimant. judgment. Williams also argues that the Legislature's TEX. CIV. PRAC. & REM.CODE § 74.001(a)(2). substitution of “patient” with “claimant” is meant only “Person” is not defined in the TMLA and therefore to include derivative claims by the relatives and represmust be given its common law meaning. Id. § entatives of deceased patients,*179 not employees of 74.001(b). Changing the term “patient” to “claimant” health care provider defendants. and defining “claimant” as a “person” expands the

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371 S.W.3d 171, 55 Tex. Sup. Ct. J. 1033 (Cite as: 371 S.W.3d 171)

As observed above, a “claimant” is broadly defined distinction). Neither the language of the TMLA nor the as a “person,” including the estate of a person, bringing logic of the amendments can support a narrow reading an HCLC. TEX. CIV. PRAC. & REM.CODE § of the term “claimant.” 74.001(a)(2). A claimant is a person seeking damages for an HCLC. See id. § 74.001(a)(2), (13). As noted D. Character of Williams' Claims above, the TMLIIA, by contrast, featured an HCLC In defining the types of claims against health care definition predicated on injury to a “patient.” providers constituting HCLCs, the question we face is TEX.REV.CIV. STAT. art. 4590i, § 1.03(a)(4) not whether it seems that a claimed injury really arose (repealed 2003). Neither “person” nor “patient” is a from treatment commonly understood to be some type defined term in the TMLA and therefore possesses such of medical or health care; nor do we address whether meaning as is consistent with the common law. TEX. the incident causing the injury would have been a com- CIV. PRAC. & REM.CODE § 74.001(b). mon law negligence claim. Instead, the issue posed is whether the umbrella fashioned by the Legislature's pro-

Although he likely would not have been a “patient” mulgation of the TMLA includes the cause of action under the TMLIIA, Williams is a “claimant” and a brought by a claimant against physicians or health care “person” under the textual change to the definition of providers. HCLCs in the TMLA. Not only is the term “patient” not included within the definition of “claimant,” the Legis- The foundations of our analysis are well establature used the term “including” to precede the refer- lished. As in Diversicare and Marks, we determine ence to a decedent's estate. This renders any compon- whether the relevant allegations are negligence claims ents of the definition nonexclusive. TEX. GOV'T or are properly characterized as HCLCs under the Act. CODE § 311.005(13); Entergy Gulf States, Inc. v. Sum- Marks, 319 S.W.3d at 662 (construing the TMLIIA); mers, 282 S.W.3d 433, 440–41 (Tex.2009) (noting that Diversicare, 185 S.W.3d at 847. the term “including” is a term of enlargement and cau- FN4 [6] An HCLC contains three basic elements:

tioning against “circumventing Legislative intent” by (1) a physician or health care *180 provider must be a misapplying non-exhaustive lists in statutes); see also defendant; (2) the claim or claims at issue must concern In re Allcat Claims Serv., L.P., 356 S.W.3d 455, 468 treatment, lack of treatment, or a departure from accep-

(Tex.2011) (observing that the term “including” in that ted standards of medical care, or health care, or safety case was an explanatory term of enlargement).

or professional or administrative services directly re-

The dissent argues that the 2003 amendment substi- lated to health care; and (3) the defendant's act or omistuting “claimant” in lieu of “patient” in the HCLC sion complained of must proximately cause the injury to definition merely clarifies that a patient's estate or oth- the claimant. See TEX. CIV. PRAC. & REM.CODE § ers acting in a representative capacity may bring an 74.001(a)(13); Marks, 319 S.W.3d at 662 (construing HCLC. 371 S.W.3d at 194 (Lehrmann, J., dissenting). the similar definition found in the TMLIIA). But further belying the contention that a “claimant” may FN4. “ ‘Health care liability claim’ means a be only a patient or her estate is the Act's definition of cause of action against a health care provider or “representative.” The term “representative,” used in the physician for treatment, lack of treatment, or Act's medical-records-disclosure provision, is defined other claimed departure from accepted standas the “agent of the patient or claimant,” indicating that ards of medical care, or health care, or safety or patient and claimant do not necessarily refer to the same professional or administrative services directly category of persons. TEX. CIV. PRAC. & REM.CODE related to health care, which proximately res-

§ 74.001(a)(25) (emphasis added), 74.052; Wilson N.

ults in injury to or death of a claimant, whether Jones Mem'l Hosp. v. Ammons, 266 S.W.3d 51, 61–62 the claimant's claim or cause of action sounds (Tex.App.—Dallas 2008, pet. denied) (also drawing the in tort or contract.” TEX. CIV. PRAC. &

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371 S.W.3d 171, 55 Tex. Sup. Ct. J. 1033 (Cite as: 371 S.W.3d 171)

REM.CODE § 74.001(a)(13). claims brought under this prong of the HCLC definition must involve a patient-physician relationship. See id. § The second element is at issue in this case: whether 74.001(a)(10). “Health care” is:

Williams' claims alleging West Oaks' failure to properly train the facility's staff, warn of risks associated with vi- ... any act or treatment performed or furnished, or that olent psychiatric patients, provide adequate protocols should have been performed or furnished, by any and equipment to limit such risks, and provide a safe health care provider for, to, or on behalf of a patient work environment under such circumstances implicate during the patient's medical care, treatment, or conone or more of the standards listed in the HCLC defini- finement. tion. There are several types of HCLCs set out in the TMLA: in addition to claims involving treatment and Id. § 74.001(a)(10)(emphases added); see also, e.g., lack of treatment, the Act contemplates claims for al- Omaha Healthcare Ctr., 344 S.W.3d at 395 (pointing to leged “departure[s] from accepted standards of medical the “any act” language in the “health care” definition as care, or health care, or safety or professional or admin- necessarily implicating more than acts of *181 physical istrative services directly related to health care.” TEX. care and medical diagnosis and treatment); Diversicare, CIV. PRAC. & REM.CODE § 74.001(a)(13). All of 185 S.W.3d at 847 (noting the “broad[ ]” nature of the these categories of claims, except safety, are defined “health care” definition). While the “any act” language terms in the Act. See, e.g., id. § 74.001(a)(10), (a)(19), of the “health care” definition is certainly expansive, it and (a)(24) (defining “health care,” “medical care,” and is limited by the requirement that health care be “professional or administrative services”). West Oaks rendered “for, to, or on behalf of a patient during the asserts that Williams' claims allege departures from ac- patient's medical care, treatment, or confinement.” cepted standards of either “health care” or “safety.” TEX. CIV. PRAC. & REM.CODE § 74.001(a)(10) Williams argues that neither of these categories of (emphases added). Because a claim under the health claims applies to his allegations, removing him from the care prong of section 74.001(a)(13) incorporates the Act's reach. definition of “health care,” such a claim must involve a patient-physician relationship.

1. Claimed Departures from Accepted Standards of Health Care [7] The requirement that a claim arising under the We examine whether Williams' complaints are health care prong of section 74.001(a)(13) involve a pa-

“claimed departure[s] from accepted standards of ... tient-physician relationship could be viewed as in tenhealth care.” TEX. CIV. PRAC. & REM.CODE § sion with the term “claimant,” defined in terms of a per- 74.001(a)(13). In Diversicare, we held that a claim al- son. See id. § 74.001(a)(2). We consider all the relevant leges a departure from accepted standards of health care provisions of the TMLA together and follow the rule if the act or omission complained of is an inseparable or that specific statutory provisions prevail over more genintegral part of the rendition of health care. 185 S.W.3d eral provisions. See Jackson v. State Office of Admin. at 848, 850. “[T]raining and staffing policies and super- Hearings, 351 S.W.3d 290, 297 (Tex.2011) (reiterating vision and protection of [patients] ... are integral com- the rule that “a specific statutory provision prevails as ponents of a [health care facility's] rendition of health an exception over a conflicting general provision”) care services....” Id. at 850. Williams' claims are similar (citing Tex. Lottery Comm'n v. First State Bank of to the health care claims at issue in Diversicare. DeQueen, 325 S.W.3d 628, 637 (Tex.2010)); see also However, our analysis of health care claims in that case TEX. GOV'T CODE § 311.026(b) (same). However, the involved claims by a patient against a health care pro- specific wording of the “health care” definition, that vider, not, as in this case, claims brought by a non- health care be an act involving treatment rendered for, patient employee against his employer. to or on behalf of a patient, acts as a limitation on the general provision that an HCLC need only be pursued The definition for “health care” suggests that by a “claimant.” While other categories of HCLCs need

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371 S.W.3d 171, 55 Tex. Sup. Ct. J. 1033 (Cite as: 371 S.W.3d 171)

only be pursued by claimants, by specific statutory dir- 577.005(b), 577.010(a). ective health care claims must involve a patient- physician relationship. [9] The necessity of expert testimony to support or refute the allegations at issue is a factor in assessing the [8] Claims based on departures from accepted nature of a claim against a health care provider or physstandards of health care therefore involve a nexus ician. Diversicare, 185 S.W.3d at 848. Here, the court between the standard departed from and the alleged in- of appeals considered the need for expert testimony in jury. Such a nexus exists in this case. Williams, a health Williams' case and concluded that “even if medical excare provider for Vidaurre, was assaulted by Vidaurre, pert testimony is necessary to establish Williams' who was a West Oaks patient. See TEX. CIV. PRAC. & claims, the need for expert testimony is not dispositive REM.CODE § 74.001(a)(12) (defining “health care pro- as to whether a claim is a health care liability claim.” vider” to include employees of facilities licensed to 322 S.W.3d at 353. We have indicated that even when provide health care). Williams was acting on orders to expert medical testimony is not necessary, the claim provide one-on-one supervision for Vidaurre. That dir- may still be an HCLC. Murphy v. Russell, 167 S.W.3d ective was made by a West Oaks physician exercising 835, 838 (Tex.2005) (“The fact that in the final analysprofessional judgment about the schizophrenic patient's is, expert testimony may not be necessary to support a care and treatment, including, specifically, heightened verdict does not mean the claim is not a health care liabsupervision in light of recent aggressive and violent be- ility claim.”). We have not previously addressed the havior. Additional professional judgments about the court of appeals' reasoning, and we now hold that if exsafety protocols for such patients were put in place by pert medical or health care testimony is necessary to West Oaks to care for its mental patients. Williams al- prove or refute the merits of the claim against a physileges that these judgments, concerning his training and cian or health care provider, the claim is a health care lipsychiatric institutional protocols, departed from accep- ability claim. ted standards of care and caused his injury. We previously reasoned in Diversicare that the health care facil- [10] Expert testimony in the health care field is neity 's “training and staffing policies and supervision and cessary to support Williams' claims. Those claims reprotection of [a patient] and other residents are integral quire evidence on proper training, supervision, and procomponents of [the facility's] rendition of health care tocols to prevent, control, and defuse aggressive behaviservices .” 185 S.W.3d at 850. Williams' similar allega- or and altercations in a mental hospital between psychitions constitute HCLCs based on claimed departures atric patients and employed professional counselors from accepted standards of health care. who treat and supervise them. The provision of emergency notification devices, warning of dangers associ-

Texas mental health statutes and regulations bolster ated with psychiatric patients, providing a safe workthis conclusion. West Oaks is a state-licensed, private place, and properly training the caregiver at a psychiatmental health facility. The law requires that an inpatient ric facility are integral to the patient's care and confinemental health facility “provide adequate medical and ment. Acts or treatment that are integral to a “patient's psychiatric care and treatment to every patient in ac- medical care, treatment, or confinement” constitute cordance with the highest standards accepted in medical “health care.” TEX. CIV. PRAC. & REM.CODE § practice. ” TEXAS HEALTH AND SAFETY CODE § 74.001(a)(10). Claims for injuries arising from depar- 576.022(a)(emphasis added). Mental health hospitals tures from proper “treatment performed or furnished, or may not operate in Texas *182 unless licensed by the that should have been performed or furnished” are Texas Department of Health and operated in accordance health care claims. Id. § 74.001(a)(10). Contrary to Wilwith the rules and standards of the Texas Board of Men- liams' argument, this dispute concerns more than simply tal Health and Mental Retardation to ensure the proper determining whether a person should be protected from care and treatment of patients. Id. § 577.001(a), a known aggressive person. The dispute between Willi-

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371 S.W.3d 171, 55 Tex. Sup. Ct. J. 1033 (Cite as: 371 S.W.3d 171)

ams and West Oaks is, at its core, over the appropriate sional service a hospital is licensed and expecstandards of care owed to this mental health profession- ted to provide, for it is in the business of al in treating and supervising a psychiatric patient at the providing medical care to patients and protectmental hospital, what services, protocols, supervision, ing them from an unreasonable risk of harm monitoring and equipment were necessary to satisfy the while receiving medical treatment.... [T]he standard, and whether such specialized standards were competent performance of this responsibility is breached. See Diversicare, 185 S.W.3d at 850. The al- ‘inextricably interwoven’ with delivering comlegedly missing or insufficient protocols and standards petent quality medical care to hospital pawere for a mental patient in a mental hospital. It would tients.”). blink reality to conclude that no professional mental health judgment is required to decide what those should *183 Williams' argument that any security officer be, and whether they were in place at the time of Willi- could have performed the oversight and supervision of a FN5 psychiatric patient at the mental health hospital is ams' injury.

overly simplistic. Perhaps a security officer could have FN5. As we discussed in Diversicare, a number protected Williams, and Vidaurre himself, from harm, of other states also recognize that providing su- or lessened the severity of the injuries suffered, but sepervision and a safe environment at a health curity is only one aspect of the matter. Williams' posicare facility are matters of professional health tion at West Oaks involved professional, health- care judgment. 185 S.W.3d at 852–54 (citing care-related judgments different from the tasks typically Dorris v. Detroit Osteopathic Hosp., 460 Mich. associated with a law enforcement officer, security 26, 594 N.W.2d 455, 466 (1999) (concluding guard, or bouncer. Treatment of a mental patient subject that claims for assault in a psychiatric hospital to psychotic and aggressive outbursts requires health implicated medical or health care under care, not simply protection from bodily harm, to con- Michigan's medical malpractice statute and trol, defuse, or prevent mental processes leading to agnoting that “[t]he ordinary layman does not gression, and professional techniques to do so. Patients know the type of supervision or monitoring at West Oaks are there not merely for shelter, but also that is required for psychiatric patients in a for care and treatment. See Charrin v. Methodist Hosp., psychiatric ward.”); Smith v. Four Corners 432 S.W.2d 572, 574 (Tex.Civ.App.—Houston [1st Mental Health Ctr., 70 P.3d 904, 914 (Utah Dist.] 1968, no writ) (holding that the hospital-patient 2003) (holding that an assaulted child's lawsuit relationship is different from that of a landlord-tenant). against the outpatient mental health care pro- Williams' self-described role at West Oaks was that of a vider was a health care malpractice claim be- “counselor” and “caregiver,” not a security guard. One cause the plaintiff's “allegations arise out of the of Vidaurre's experts characterizes psychiatric technifact that [a health care provider] provided men- cians as a “valuable and indispensable part of psychiattal health services directly to him....”)); see ric hospital care.” Vidaurre's expert also notes that the also D.P. v. Wrangell Gen. Hosp., 5 P.3d 225, role of psychiatric technician involves appropriately ob- 229 n. 17 (Alaska 2000) (“[I]n so far as serving and evaluating potentially assaultive mentally [plaintiff] intends to argue issues that involve ill patients and assessing the potential for violent erupspecialized medical decisions—such as the ap- tions. Thus, the very deficiencies in training and protopropriate level of physical restraints or medica- cols Williams complains of underscore the health-retion —she can do so only through expert testi- lated nature of his role. mony.”); Bell v. Sharp Cabrillo Hosp., 212 Cal.App.3d 1034, 260 Cal.Rptr. 886, 896 [11] We do not conclude, as West Oaks would have (1989) (“[T]he competent selection and review us, that Williams' claims should be considered HCLCs of medical staff is precisely the type of profes- on the bare basis that they mirror those of the patient

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371 S.W.3d 171, 55 Tex. Sup. Ct. J. 1033 (Cite as: 371 S.W.3d 171)

and stem from the same fact pattern. Williams and the administrative services directly related to health care, patient stand as separate claimants. We analyze the ap- which proximately results in injury to or death of a plicability of the TMLA and its attendant procedural re- claimant....” TEX. CIV. PRAC. & REM.CODE § quirements on the gist of the claimant's allegations. See 74.001(a)(13)(emphasis added). The dissent argues that Diversicare, 185 S.W.3d at 847–48. the 2003 amendment was intended to narrow the existing scope of the safety prong of HCLCs by requiring 2. Claimed Departures from Accepted Standards of FN6 that safety be “directly related to health care.” See Safety id. We disagree for several reasons.

[12] We also examine whether Williams' claims may be characterized as HCLCs under the definition's FN6. Texas appellate courts construing the “safety” prong. We have not decided whether safety TMLA have diverged on whether “directly reclaims must be “directly related to health care.” The lated” applies to safety claims or only to other TMLA's HCLC definition includes, among the different claims in the definition's list of departures from types of covered claims, “claimed departure[s] from ac- accepted standards. Compare St. David's cepted standards of ... safety....” TEX. CIV. PRAC. & Healthcare P'ship, L.P. v. Esparza, 315 S.W.3d REM.CODE § 74.001(a)(13). 601, 604 (Tex.App.—Austin 2010), rev'd on other grounds, 348 S.W.3d 904 (Tex.2011)

Williams was injured during an altercation with (“directly related to health care” modifies Vidaurre in a smoking area at the hospital, and he con- “safety”); Appell v. Muguerza, 329 S.W.3d tends his injuries would have been avoided if West 104, 115 (Tex.App.—Houston [14th Dist.] Oaks had instituted proper safety protocols and monit- 2010, pet. filed) (same); Dual D Healthcare oring devices. Williams' claims, predicated upon the Operations, Inc. v. Kenyon, 291 S.W.3d 486, monitoring and restraint*184 of violent, schizophrenic 489–90 (Tex.App.—Dallas 2009, no pet.) patients, implicate the safety, as commonly understood, (same); Omaha Healthcare Ctr., L.L.C. v. of employees and patients. Safety is not defined in the Johnson, 246 S.W.3d 278, 284 TMLA. This Court has construed the term, under prin- (Tex.App.—Texarkana 2008), rev'd on other ciples of statutory construction, according to its com- grounds, 344 S.W.3d 392 (Tex.2011) (same); monly understood meaning as the condition of being Harris Methodist Ft. Worth v. Ollie, 270 “untouched by danger; not exposed to danger; secure S.W.3d 720, 723 (Tex.App.—Fort Worth 2008) from danger, harm or loss.” Diversicare, 185 S.W.3d at , rev'd on other grounds, 342 S.W.3d 525 855 (quoting the definition of “safe” in Black's Law (Tex.2011) (same); Christus Health v. Beal, Dictionary (6th ed.1990) to construe the meaning of 240 S.W.3d 282, 289 (Tex.App.—Houston [1st “safety” under predecessor statute). Logically, the in- Dist.] 2007, no pet.) (same); Valley Baptist clusion of safety “expand[ed] the scope of the statute Med. Ctr. v. Stradley, 210 S.W.3d 770, 774–75 beyond what it would be if it only covered medical and (Tex.App.—Corpus Christi 2006, pet. denied) health care” and included the claims in that case, and it (same), with Holguin v. Laredo Reg'l Med. was not necessary to define the precise boundaries of Ctr., L.P., 256 S.W.3d 349, 354–55 the safety prong. Diversicare, 185 S.W.3d at 855; see (Tex.App.—San Antonio 2008, no pet.) (safety also Marks, 319 S.W.3d at 662–63. claim need not be directly related to health care); Emeritus Corp. v. Highsmith, 211 [13] In 2003, the Legislature modified the defini-

S.W.3d 321, 328 (Tex.App.—San Antonio tion of HCLCs. It changed “patient” to “claimant,” and 2006, pet. denied) (“[A] claim may be a ‘health also added the italicized phrase to the relevant portion care liability claim’ under the safety definition of the pre–2003 definition: HCLC means a cause of aceven if it does not ‘directly relate[ ] to healthtion for a “claimed departure from accepted standards of care.’ ”).

medical care, or health care, or safety or professional or

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371 S.W.3d 171, 55 Tex. Sup. Ct. J. 1033 (Cite as: 371 S.W.3d 171)

Safety was in the Act prior to the 2003 amendments that “[p]rofessional supervision, monitoring, and protecand this Court construed it according to its common tion of the patient population necessarily implicate the meaning as being secure from danger, harm or loss. Di- accepted standards of safety.” Diversicare, 185 S.W.3d versicare, 185 S.W.3d at 855. The phrase “directly re- at 855. Williams' similar complaints here concerning his lated to health care” was added to the definition of protection from danger at the hands of a mental patient FN7 HCLCs in 2003 to modify “professional or administrat- also implicate safety. ive services.” Compare TEX.REV.CIV. STAT. art 4590i, § 1.03(a)(4) (repealed 2003), with Act of June 2, FN7. We explained in Diversicare that the 2003, 78th Leg., R.S., ch. 204, § 10.01, 2003 Tex. Gen. claimant's allegations of deficient monitoring Laws 847, 865. and training are distinct from hypothetical claims for injuries arising out of an intruder as-

[14] Scrutinizing grammar in interpreting statutes, saulting a claimant due to an unlocked window we are cognizant of the rule that “[m]odifiers should or a claimant falling from a rickety staircase. come, if possible, next to the words they modify.” Wil- 185 S.W.3d at 854. These examples, however, liam Strunk, Jr. & E.B. White, THE ELEMENTS OF did not concern our analysis of HCLCs that STYLE R. 30 (4th ed. 2000); see also Bryan A. Garner, were alleged departures from accepted stand- GARNER'S MODERN AMERICAN USAGE 523 ards of safety. They were instead provided as (2003) (noting that “[w]hen modifying words are separ- examples of claims that would be separable ated *185 from the words they modify, readers have a from health care under the health care prong of hard time processing the information,” and adding that the HCLC definition. Id. (construing the TM- “the true referent should generally be the closest appro- LIIA). Diversicare 's only holding as to the priate word.”). This rule is related to the last antecedent scope of claims based on alleged departures doctrine of statutory interpretation commonly applied to from accepted standards of safety was that inambiguous legislative texts. 82 C.J.S. STATUTES § clusion of the term safety in the HCLC defini- 443 (2011) (footnotes omitted). Under that tenet, a qual- tion expanded the reach of the statute and that ifying phrase should be applied only to the portion of it was broad enough to include the claimants' the sentence “immediately preceding it.” City of Dallas claim in that case. Marks v. St. Luke's Episv . Stewart, 361 S.W.3d 562, 571 n. 14 (Tex.2012) copal Hosp., No. 07–0783, 52 Tex.Sup.Ct.J. (applying the doctrine); Spradlin v. Jim Walter Homes, 1184, 2009 WL 2667801, 2009 Lexis 636, at Inc., 34 S.W.3d 578, 580 (Tex.2000) (same). Accord- *39 (Tex. August 28, 2009) (Wainwright, J., ingly, the phrase “directly related to health care” modi- dissenting), opinion withdrawn and substituted fies the terms immediately before it—“professional or on rehearing, 319 S.W.3d 658 (Tex.2010). administrative services.” Under the dissent's logic, the phrase “directly related to health care” should be ap- Moreover, a majority of the members of this Court plied to modify each term in the HCLC definition, in- have opined in written opinions or joined written opincluding professional or administrative services, safety, ions reasoning that safety is not constricted by the subhealth care, and medical care. This construction is non- sequent addition to the statute of the phrase sensical, as it would be entirely redundant as to health “professional or administrative services directly related care and medical care, unsupported by the text in the at- to health care.” Concurring and dissenting in Diversitempted application to safety, and render safety largely care, Chief Justice Jefferson wrote that safety, unrepetitive of health care. See Marks, 319 S.W.3d at 673 defined in the statute, is commonly understood to mean (Johnson, J., concurring) (pointing out that safety and protection from danger and that the “specific source of health care are separate). We explained in Diversicare, that danger ... is without limitation.” 185 S.W.3d at a patient-assault case also involving training and staff- 860–61 (Jefferson, C.J., concurring and dissenting) ing policies and monitoring and protection of patients, (also noting that “[i]n defining health care liability

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371 S.W.3d 171, 55 Tex. Sup. Ct. J. 1033 (Cite as: 371 S.W.3d 171)

claims as it did, the Legislature created a statute with a claim against his employer would not have constituted a broad scope. Complaints about the breadth of [the TM- medical malpractice claim prior to the enactment of the LIIA] should be directed to the Legislature, not to this medical liability statutes in 1977. Court, for the courts must ‘take statutes as they find them.’ ” (citation omitted)). Concurring in Marks, We see no conflict between the TMLA and the TW- Justice Johnson agreed with Chief Justice Jefferson's CA, whether the claim at issue is asserted against an analysis of safety in his concurrence and dissent in Di- employer subscribing to workers' compensation insurversicare . Justice Johnson reasoned that making safety ance or, as here, against a nonsubscriber. The TWCA is contingent on a direct connection between it *186 and unique in permitting private Texas employers to elect to health care would “effectively read [ ] safety out of the subscribe to workers' compensation insurance. Id. § statute instead of properly giving it meaning as an addi- 406.002(a); Lawrence v. CDB Servs., Inc., 44 S.W.3d tional category of claims.” Marks, 319 S.W.3d at 673 544, 552 (Tex.2001); see also Casados, 358 S.W.3d at (Johnson, J., concurring, joined by Justice Willett, 241. If they so elect, and their employees do not opt out FN8 of the workers' compensation coverage, then their em-

Justice Hecht, and Justice Wainwright). Chief Justice Jefferson wrote again in Marks, quoting his con- ployees are generally precluded from filing suit against currence and dissent in Diversicare, noting that a reas- them and must instead pursue their claims through an onable construction of “safety” is to give the term its administrative agency against the employer's insurance “common meaning,” which could therefore encompass carrier for benefits provided for in the TWCA. See premises liability claims. Id. at 674 (Jefferson, C.J., TEX. LAB.CODE § 406.031(a) (noting that an employconcurring and dissenting, joined by Justices Green, er's insurance carrier is liable for compensation of an Guzman and Lehrmann). employee's injury if the employee is subject to the Act and the injury arises out of the course and scope of the FN8. Justices Hecht and Wainwright joined employment). But employees need not prove the em- Justice Johnson's concurrence in Marks, except ployer's negligence for workers' compensation recovery, for the discussion of “safety.” 319 S.W.3d at just that they were injured in the course and scope of 667. employment. See id. (“An insurance carrier is liable for compensation for an employee's injury without regard We agree with West Oaks that Williams' claims are to fault or negligence....”); id. § 406.002(b) (stating that indeed for departures from accepted standards of safety. a subscribing employer is subject to the TWCA). As We conclude that the safety component of HCLCs need part of the legislated policy trade-off underlying the not be directly related to the provision of health care workers' compensation system, employees are also limand that Williams' claims against West Oaks implicate ited in their recovery to indemnity and medical exthis prong of HCLCs. penses, absent intentional conduct. See id. § 408.001(a)

(“Recovery of workers' compensation benefits is the ex-

E. Relationship with the Texas Workers' Compensaclusive remedy of an employee covered by workers'

tion Act compensation insurance coverage....”); but see id. § [15] Williams also contends that interpreting the 408.001(b) (allowing recovery of exemplary damages TMLA to encompass his claims will conflict with the for *187 death caused by an intentional act or omission procedural and substantive litigation rights granted to or the employer's gross negligence).

employee plaintiffs under the TWCA. See TEX. LAB.CODE § 406.001 et seq. He argues that his per- However, if an employer forgoes workers' comsonal injury claims against his employer should not be pensation coverage, and is a nonsubscriber to the workcharacterized as HCLCs because the Legislature did not ers' compensation system, it is subject to suits at comintend for employee claims against a health care pro- mon law for damages. With the exception of certain emvider employer to fall under the rubric of the Act. Willi- ployer defenses abrogated by the statute, a suit by an ams also contends that an employee's personal injury

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371 S.W.3d 171, 55 Tex. Sup. Ct. J. 1033 (Cite as: 371 S.W.3d 171)

employee of a nonsubscribing employer is largely out- Other proceedings to recover against nonsubscribing side the limitations imposed by the TWCA. See id. § employers would similarly be governed by applicable 406.033(a), (d) (discussing limited defenses and em- statutes and rules, e.g., proof of negligence and causaployee burden of proof in establishing negligence). Em- tion, notice requirements under the Texas Tort Claims ployees of a nonsubscriber, injured on the job, must Act, or the common pleading and service requirements prove the elements of a common law negligence claim, in the Texas Rules of Civil Procedure for all lawsuits. absent intentional misconduct. Id. § 406.033(d). An employee may also elect to waive workers' compensation Williams invites us to read into the TMLA an excoverage and “retain the common-law right of action to ception for claimants happening to be employees of recover damages for personal injuries or death” if cer- nonsubscriber health care provider employers who sue tain notification requirements are met. Id. § 406.034(a), their employers for claims that come under the TMLA (b). umbrella. Williams' case is against a nonsubscriber, outside of the workers' compensation system, yet he im-

[16] Thus, the workers' compensation construct plores the Court to except him from the TMLA's recontemplates two systems, one in which covered em- quirements without any express statutory exception. He ployees may recover relatively quickly and without lit- seeks a common law exemption from the TMLA's manigation from subscribing employers and the other in date that we are not willing to create. which nonsubscribing employers, or the employers of employees who have opted not to accept workers' com- As explained, the TWCA and the TMLA do not pensation coverage, are subject to suit by injured em- conflict in this case. But even if they did, the Legisployees to recover for their on-the-job injuries. “In lature has already designated the victor—the TMLA providing the worker a form of prompt remuneration for would prevail. Section 74.002(a) of the TMLA states: loss of earning capacity, the statutory [workers' com-

*188 In the event of a conflict between this chapter pensation] scheme is in lieu of common law liability and another law, including a rule of procedure or based on negligence.” Paradissis v. Royal Indem. Co., evidence or court rule, this chapter controls to the ex-

507 S.W.2d 526, 529 (Tex.1974); see also Reed Tool tent of a conflict.

Co. v. Copelin, 689 S.W.2d 404, 407 (Tex.1985) (“The system balances the advantage to employers of im- TEX. CIV. PRAC. & REM.CODE § 74.002(a). munity from negligence and potentially larger recovery This provision was added as part of the 2003 amendin common law actions against the advantage to em- ments and replaced an earlier, more cabined conflicts ployees of relatively swift and certain compensation provision. See TEX.REV.CIV. STAT. art. 4590i, § without proof of fault.”). 11.05 (repealed) (entitled “Subchapter's Application Prevails Over Certain Other Laws” and stating that Just as the workers' compensation system treats em-

“[t]he provisions of this subchapter shall apply notwithployees of subscribing versus nonsubscribing employstanding the provisions contained in Article 4671, Reees differently, the treatment of those two differently vised Civil Statutes of Texas, 1925, as amended, and the situated employees under the TMLA for on-the-job inprovisions of Article 5525, Revised Civil Statutes of juries is also distinct. The employee of a subscriber that Texas, 1925, as amended” (pertaining to injuries resultis a health care provider must pursue an administrative ing in death and survival of cause of action, respectremedy under the TWCA for on-the-job injuries. FN9 ively)).

However, the employee of a nonsubscribing employer that is a health care provider must file suit against the FN9. Articles 4671 and 5525 were both renonsubscriber and follow the rules that govern that suit. pealed prior to the 2003 amendments as part of In this case, the governing rules include the TMLA's re- the Legislature's 1985 adoption of the Texas quirements for a claimant suing a health care provider. Civil Practice and Remedies Code.

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371 S.W.3d 171, 55 Tex. Sup. Ct. J. 1033 (Cite as: 371 S.W.3d 171)

TEX.REV.CIV. STAT. arts. 4671 and 5525, re- only those in which the defendant has a patient-physpealed by Act of June 16, 1985, 69th Leg., ician or “patient-health-care-provider” relationship with R.S., ch. 959, § 9(1), 1985 Tex. Gen. Laws the plaintiff. In spite of the Act's words, the dissent 3242, 3322. proffers that the Court strays from the language of the Act and undermines its purpose. See 371 S.W.3d at Here, Williams must establish the medical negligence of 199–200 (Lehrmann, J., dissenting). The chart below West Oaks to recover under the TMLA. The statute re- vividly illustrates the Legislature's broad intention and quires expert reports to support his claims. refutes the dissent's position.

III. Response to Dissent At base, the dissent's position is that, notwithstanding the Legislature's substitution of the term “claimant” for “patient” in the TMLA's HCLC definition, HCLCs are

TEX.REV.CIV. STAT. art. 4590i, TEX. CIV. PRAC. & REM.CODE § 1.03(a)(4) (repealed 2003) (emphases added) § 74.001(a)(13) (amended 2003) (emphases added)

“Health care liability claim” means a cause of action “Health care liability claim” means a cause of action against a health care provider or physician for treatment, against a health care provider or physician for treatment, lack of treatment, or other claimed departure from accepted lack of treatment, or other claimed departure from accepted standards of medical care or health care or safety which standards of medical care, or health care, or safety or proproximately results in injury to or death of the patient, fessional or administrative services directly related to whether the patient's claim or cause of action sounds in tort health care, which proximately results in injury to or death or contract. of a claimant, whether the claimant's claim or cause of action sounds in tort or contract.

Jackson, 351 S.W.3d at 297 (holding that specific stat-

As explained in Parts II.B and C above, in 2003 the utory provisions override general provisions). However, Legislature modified the scope of HCLCs when it de- that limitation does not apply to claims of safety, which leted “patient” and inserted the broader term “claimant” FN11 is not defined with reference to a patient. TEX.

in the definition. Compare TEX. CIV. PRAC. & CIV. PRAC. & REM.CODE § 74.001(a)(13). Contend- REM.CODE § 74.001(a)(13), with TEX.REV.CIV. ing that only patients' claims may be considered STAT. art. 4590i, § 1.03(a)(4) (repealed 2003). A HCLCs, the dissent argues, in essence, that the 2003 claimant need not be the patient in all HCLCs. amendment is a nullity and seeks to have the Court rewrite section 74.001(a)(13). We decline to do so.

As discussed above, two of the different types of HCLCs have specific definitions. The “medical care” FN10. There is a slight variance between the and “health care” definitions both refer to services definitions for “health care” and “medical rendered for, to, or on behalf of a patient during the pa- care.” The “health care” definition features the FN10 tient's care, treatment, or confinement. *189 word “medical” between the words “patient's” TEX. CIV. PRAC. & REM.CODE § 74.001(a)(10), and “care.” The “medical care” definition does (a)(19); see id. at § 74.001(a)(13). Although HCLCs, as not feature this word. TEX. CIV. PRAC. & defined, include causes of action against health care REM.CODE § 74.001(a)(10), (a)(19). providers brought by “claimants,” the specific incorporation of the patient relationship for health care and med- FN11. The scope of claims for “professional or ical care claims governs the HCLC for departures from administrative services directly related to accepted standards of medical care and health care. See health care” in the HCLC definition is not at is-

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371 S.W.3d 171, 55 Tex. Sup. Ct. J. 1033 (Cite as: 371 S.W.3d 171)

sue in this case. The dissent contends that the parties' right to medical records cannot be applied against a third-party pa-

[17] This is a statutory construction case. Our role tient, such as Vidaurre. Specifically, the dissent points “is to determine and give effect to the Legislature's out that medical-privacy laws may prevent the parties [expressed] intent.” McIntyre, 109 S.W.3d at 745. Such from compelling a person such as Vidaurre, who is not cases may offer the temptation to shoehorn a desired le- a party to this case *190 pursuing a claim under the gislative result. But the Legislature changed “patient” to TMLA, from supplying his medical records. 371 “claimant,” and “claimant” is broader than “patient.” S.W.3d at 195 (Lehrmann, J., dissenting). JUSTICE Aside from claims alleging negligent medical care or LEHRMANN'S point is well taken, but not in this case. health care, a claim need not involve a patient-physician Williams is the claimant in this case and these requirerelationship for it to be an HCLC. ments should be applied to him. For purposes of his own medical records, Williams would be the “patient”

The dissent argues several other points which we referenced in the authorization form. See TEX. CIV.

address briefly. The dissent contends that other provi-

PRAC. & REM.CODE § 74.052(c)(A). In alignment sions of the TMLA should trump the definition of with the broadly defined “claimant,” the notice provi-

HCLCs.

sion makes clear at the outset that it applies to “any per-

[18] (1) Notice of suit and medical records release son” asserting an HCLC, as opposed to a “patient” or provisions. The dissent similarly notes that inclusion of representative. Id. §§ 74.001(a)(2), .051(a). In turn, the non-patients as claimants would render the notice of disclosure requirements allow not only for the release of suit to health care providers, and accompanying medic- records of a patient-plaintiff, but also the pre- and postal -records releases, to health care providers, question- injury records of non-patient plaintiffs seeking recovery able. 371 S.W.3d at 195 (Lehrmann, J., dissenting) for her post-injury damages. See id. § 74.052 (citing TEX. CIV. PRAC. & REM.CODE §§ 74.051, (predicating the disclosure requirements on the applic- .052). The Act requires “any person” asserting an ability of section 74.051(a)). Such records would bear HCLC to provide notice to the defendant physician or directly in assessing the extent of damages and would health care provider. TEX. CIV. PRAC. & REM.CODE streamline settlement negotiations, regardless of wheth- § 74.051(a). This notice must be accompanied by the er the claimant was a patient of the health care provider medical-records release form detailed in section 74.052. being sued. Id. § 74.052; Jose Carreras, M.D., P.A. v. Marroquin, (2) Expert report provisions. The dissent similarly 339 S.W.3d 68, 73 (Tex.2011). Further, all parties are asserts that the Act's definition of “expert report” and entitled to “complete and unaltered copies of the padiscussion of expert qualifications means that HCLCs tient's medical records.” TEX. CIV. PRAC. & must be based on a patient-physician relationship be-

REM.CODE § 74.051(d). The form of notice provides a cause those provisions contain references to departures release including the name of the “patient.” Id. § from accepted standards by physicians or health care 74.052(c)(A), (B). As the dissent correctly observes, the providers and knowledge of accepted standards for dia-

Legislature's purpose for the notice and disclosure regnosing , caring, or treating the illness, injury, or condiquirements was to encourage the parties to negotiate tion at issue in the claim. 371 S.W.3d at 195–96 and settle disputes prior to suit. 371 S.W.3d at 195 (Lehrmann, J., dissenting) (discussing TEX. CIV.

(Lehrmann, J., dissenting); Carreras, 339 S.W.3d at 73 PRAC. & REM.CODE §§ 74.351(r)(6), .401(a)(2), (citing Garcia v. Gomez, 319 S.W.3d 638, 643 .402(a)(2)). The fact that experts submitting reports (Tex.2010)). However, nothing in the language of the have knowledge of the alleged standards at issue does notice and disclosure provisions or in their purpose of not logically lead to a conclusion that only a patient's encouraging pre-suit negotiation and settlement indicsuit against a health care provider can constitute an ates a legislative intent that in all cases a claimant must HCLC, especially when such a conclusion conflicts be a patient or her representative.

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371 S.W.3d 171, 55 Tex. Sup. Ct. J. 1033 (Cite as: 371 S.W.3d 171)

with the Legislature's substitution of “claimant” for visions to the more relevant HCLC definition meaning- “patient” in the TMLA's definition of HCLCs. Simil- less. arly, the dissent's point that the “expert report” definition calls for a discussion of the manner in which the (4) Re-interpretation of Diversicare. Our opinion care rendered by the physician or health care provider today is consistent with our earlier construction of the failed to meet standards does not lead to the conclusion HCLC definition in Diversicare, 185 S.W.3d at 847 that only the patient at the receiving end of that care can (noting that “we examine the underlying nature of the be a “claimant” under the Act. Id. § 74.351(r)(6); see claim and are not bound by the form of the pleading”). also id. § 74.001(a)(2). An expert report detailing the The dissent contends that we stray from Diversicare and departure from standards would still be relevant in a its progeny by centering our analysis on the nature of case, such as this, where a non-patient alleges that the the claims at issue. 371 S.W.3d at 196–97 (Lehrmann, health care provider's deviations from accepted stand- J., dissenting). The dissent erroneously argues that Diards led to his injury. As explained, expert testimony is versicare requires courts to place equivalent emphasis necessary to specify the departure from accepted stand- on the relationship between the parties. Specifically, the ards leading to the injury. Id. § 74.351(r)(6). The Act's dissent contends that in Diversicare we attached requirement that an expert be qualified to give an opin- “equal” importance to the “claimant's status as a paion on the standards at issue does not, as the dissent tient” at a health care facility. Id.; see Diversicare, 185 contends, indicate that the condition at issue must be S.W.3d at 850. However, in Diversicare we discussed sustained by a patient. The expert report requirement is that relationship, not because it was determinative in the intended to effectuate the TMLA's objective that only scope of HCLCs generally, but because those were the meritorious causes of action proceed, not define the facts of the case we were deciding. Diversicare, 185 scope of HCLCs. See Samlowski v. Wooten, 332 S.W.3d S.W.3d at 850. The standards for the conduct at issue, 404, 416 (Tex.2011) (Wainwright, J., dissenting in rather than the form of pleadings or identity of parties, part). are paramount in classifying HCLCs. See Yamada v.

Friend, 335 S.W.3d 192, 196 (Tex.2010) ( “Artful (3) Jury instructions. The dissent observes that one pleading does not alter [the nature of the underlying of the jury instructions required by the Act in jury trials claim].”); Omaha Healthcare, 344 S.W.3d at 394 includes a caution that a finding of negligence may not (similar). be based solely on evidence of a “bad result” to the claimant, but a bad result may be considered in determ- (5) Importance of the 2003 amendments. Incredibly, ining negligence. 371 S.W.3d at 196 (Lehrmann, J., dis- the dissent contends that the Court places “undue imsenting ) (citing TEX. CIV. PRAC. & REM.CODE § portance” on the Legislature's modification of the 74.303(e)(2)). Drifting again from the statutory text dir- HCLC definition in 2003, substituting the broader term ectly at issue, the dissent argues that this instruction “claimant” for “patient” in identifying who may bring a “only *191 makes sense” in the context of a patient dis- claim. 371 S.W.3d at 193–94 (Lehrmann, J., dissentsatisfied with medical or health care services delivered ing); TEX. CIV. PRAC. & REM.CODE § 74.001(a)(13) by a health care provider. We fail to see the logic in this . The dissent would interpret that modification as referargument . “Bad result” is not defined, making it diffi- ring to the estate or direct representatives of a patientcult to limit its meaning exclusively to health care or plaintiff, parties that have always been permitted to medical care, as the dissent would do. The Act indicates make a claim, even prior to the 2003 amendment. See that a “bad result” is merely a fact that may be con- 371 S.W.3d at 197 (Lehrmann, J., dissenting); see also sidered in a negligence finding. To conclude from this TEX.REV.CIV. STAT. art. 4590i, § 1.03(a)(9), 4.01 provision that the Legislature intended to include only (repealed 2003). First, focusing on the language of the patients under the Act, when it expressly broadened the statutory definition at the center of this case does not HCLC definition, is not logical and would render the re- give it “undue importance.” Second, the dissent's con-

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371 S.W.3d 171, 55 Tex. Sup. Ct. J. 1033 (Cite as: 371 S.W.3d 171)

struction is contrary to established rules of statutory workers' compensation insurance). However, the construction. As we note in Parts II. B and C, plaintiff must prove the negligence of the nonsubscrib- “claimant” is defined as “a person, including a de- ing employer or the employer's agent. TEX. cedent's estate, seeking or who has sought recovery of LAB.CODE § 406.033(d). As part of the negligence damages in a health care liability claim.” TEX. CIV. claim against a health care provider employer, an em- PRAC. & REM.CODE § 74.001(a)(2). Thus, aside from ployee asserting a claim that is otherwise an HCLC claims involving health care or medical care and claims must adhere to the expert report requirements of the based on treatment, a direct healthcare-pro- TMLA. The dissent also argues that our reasoning will vider-to-patient relationship is not required for claims to discourage small claims and implies that fewer employconstitute HCLCs. ers will subscribe to workers' compensation insurance.

371 S.W.3d at 199 (Lehrmann, J., dissenting). However, (6) Construction of “safety.” The dissent argues because no information concerning workers' compensathat this issue has not been properly raised. 371 S.W.3d tion policies is in the record before us, the dissent's conat 198 (Lehrmann, J., dissenting). However, West Oaks cerns are speculative at best. As described above, while presents the safety-related nature of its claims in its we see no conflict between the TMLA and TWCA, the briefing, and the court of appeals analyzed Williams' Legislature signaled its intent that the TMLA should claims as safety claims. 322 S.W.3d 349, 352. Contrary control over contradictory statutory provisions. See to the dissent's assertions, our construction of “safety” TEX. CIV. PRAC. & REM.CODE § 74.002(a). is based not only on established canons of textual construction ,*192 but also on our interpretation of safety (8) Legislative purpose of the TMLA. Noting that based on its commonly understood meaning. See Diver- one of the stated purposes of the Act is to reduce the sicare, 185 S.W.3d at 855. Further, following principles frequency and cost of medical malpractice claims, the of statutory construction, our construction of “safety” dissent concludes that our holding will result in a larger prevents the term from becoming meaningless surplus- number of total HCLC claims, contrary to the Legisage , subsumed into claims based on departures from ac- lature's purpose. 371 S.W.3d at 199–200 (Lehrmann, J., cepted standards of “health care.” See TEX. CIV. dissenting). Given the number of claims filed against PRAC. & REM.CODE § 74.001(a)(13). health care providers, many will be HCLCs and some may not be. The dissent would shift the balance so that (7) Balance between the TMLA and TWCA. Con- many more are not HCLCs, which is contrary to the Letending that our assessment of Williams' claims as gislature's change of “patient” to “claimant.” We refuse HCLCs “forc[es]” them into the HCLC “mold” and to trump explicit statutory language with the dissent's “significantly disrupts the delicate balance between em- view of the TMLA's purpose. ployee and employer interests” motivating the TWCA, the dissent argues that our reasoning alters the incentive Finally, our conclusion that the Act covers claims structure in the TWCA intended to penalize nonsub- by non-patients against health care providers is not new scribing employers. 371 S.W.3d at 199 (Lehrmann, J., territory. The Fifth Court of Appeals has concluded that dissenting). However, contrary to the implication of the a non-patient hospital visitor's personal injury claim resdissent , the TWCA does not create an especially punit- ulting from an on-premises patient assault was an ive litigation regime for nonsubscribing employers. HCLC. Ammons, 266 S.W.3d at 64. The court, citing Rather, as noted above, nonsubscribing employers are Diversicare, concluded that the supervision and redivested of several common law defenses. See TEX. straint of patients was at issue and constituted health LAB.CODE § 406.033(a); see also Kroger Co. v. Keng, care under the facts of that case. Id. The Ammons court 23 S.W.3d 347, 349–50 (Tex.2000) (describing the lim- correctly reasoned that no language in the Act required itation of defenses of nonsubscribers as a “penalty” that a “claimant” also necessarily be a “patient.” Id. at meant as an incentive for employers to subscribe to 60–62.

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371 S.W.3d 171, 55 Tex. Sup. Ct. J. 1033 (Cite as: 371 S.W.3d 171)

IV. Conclusion age employers to become subscribers under the Workers Williams claims that West Oaks failed to properly Compensation Act. For these reasons, I am compelled train, warn and supervise him to *193 work with poten- to respectfully express my dissent. tially violent psychiatric patients and, as a result, failed to provide a safe workplace. In 2003, the Legislature I. The Medical Liability Act Contemplates a Patient/ broadened the definition of health care liability claims Physician Relationship Between the Parties under the Texas Medical Liability Act by adding new A. The Act's plain language indicates that it applies types of claims under the HCLC definition and expand- to claims alleging a breach of a health care proing the scope of persons included within the Act's pur- vider's duty to a patient. view. Compare TEX. CIV. PRAC. & REM.CODE § Our primary objective in construing a statute “is to 74.001(a)(13), with TEX.REV.CIV. STAT. art. 4590i, § ascertain and give effect to the Legislature's intent by 1.03(a)(4) (repealed 2003). We conclude that Williams' first looking at the statute's plain and common meanclaims against West Oaks are properly characterized as ing.” Tex. Natural Res. Conservation Comm'n v. health care liability claims based on claimed departures Lakeshore Util. Co., 164 S.W.3d 368, 378 (Tex.2005). from accepted standards of health care and safety. Wil- We divine that intent by reading the statute as a whole, liams failed to provide an expert report in accordance and we interpret the legislation to give effect to the enwith section 74.351(a). TEX. CIV. PRAC. & tire act. Id. (citing City of San Antonio v. City of Bo- REM.CODE § 74.351(a). We therefore reverse the erne, 111 S.W.3d 22, 25 (Tex.2003)). Furthermore, we judgment of the court of appeals affirming the trial may look to the statutory context to determine a term's court's order denying West Oaks' motion to dismiss all meaning. City of Boerne, 111 S.W.3d at 25. All of those of Williams' claims. Because West Oaks requested its tools lead to the conclusion that Williams's claims are attorney's fees and costs in the trial court pursuant to not health care liability claims. Texas Civil Practice and Remedies Code section 74.35 Under the Medical Liability Act, § 74.001 et seq., a 1(b)(1), we remand to that court with instructions to dishealth care liability claim is miss Williams' claims against West Oaks and consider West Oaks' request for attorney's fees and costs. a cause of action against a health care provider or physician for treatment, lack of treatment, or other Justice LEHRMANN filed a dissenting opinion, in claimed departure from accepted standards of medical which Justice MEDINA and Justice WILLETT joined.

care, or health care, or safety or professional *194 or Justice LEHRMANN, joined by Justice MEDINA and administrative services directly related to health care, Justice WILLETT, dissenting. which proximately results in injury to or death of a “A whole new world [of health care liability claimant, whether the claimant's claim or cause of acclaims ], hinted by opinions in the last few years, is tion sounds in tort or contract. here.” In re McAllen Med. Ctr., Inc., 275 S.W.3d 458, TEX. CIV. PRAC. & REM.CODE § 74.001(a)(13).

470 (Tex.2008) (Wainwright, J. dissenting). Interpreting The Court concludes that Williams's suit against his ema law designed to reduce the number of medical malployer for providing an unsafe workplace and inadpractice suits, the Court holds that an employee's claims equate training alleges health care liability claims, desagainst his employer for providing an unsafe workplace pite the lack of any physician-patient relationship and inadequate training are health care liability claims.

between the health care provider and the claimant. 371 The Court's strained reading of the statute runs counter S.W.3d at 174. The Court first determines that Willito express statutory language, the Legislature's stated ams's claims are for a departure from health care standpurposes in enacting the current version of chapter 74, ards because they “involve a patient-physician relationand common sense. Further, the Court's decision undership .” 371 S.W.3d at 181. Although that determination mines the balance struck by the Legislature to encouris more than enough to decide the case, the Court then

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371 S.W.3d 171, 55 Tex. Sup. Ct. J. 1033 (Cite as: 371 S.W.3d 171)

reaches out to further expand the Act's scope by decid- claim. Instead, health care claims arise from “act[s] or ing that a claim under the “safety” prong of the health treatment furnished or that should have been furnished care liability claim definition need not be directly re- for, to, or on behalf of a patient during the patient's lated to health care—even though Williams's claim is, medical care, treatment, or confinement.” TEX. CIV. in the Court's view—directly related to health care. PRAC. & REM.CODE § 74.001(a)(10) (emphasis ad- Both conclusions are inconsistent with plain statutory ded). Williams's claims allege that West Oaks failed to language and sound statutory construction. The Act is provide him, not the patient, adequate training and a replete with provisions indicating that a health care liab- safe work place. ility claim must be founded on a health care provider's alleged breach of a professional duty towards a patient. Section 74.051 of the Act highlights the Court's er- See Diversicare Gen. Partner, Inc. v. Rubio, 185 ror in concluding that the mere peripheral involvement S.W.3d 842, 851, 854 (Tex.2005). The Court's interpret- of a patient transforms an ordinary negligence claim ination renders some of those provisions meaningless or to a health care claim. That section requires health care nonsensical. liability claimants to provide *195 notice by certified mail to any health care provider against whom the claim 1. Williams's claims are not “health care” claims, as is asserted sixty days before the claim is filed. TEX. the Court concludes. CIV. PRAC. & REM.CODE § 74.051(a). The notice The Act defines “health care” as “any act or treat- must be accompanied by a form authorizing the release ment performed or furnished, or that should have been of the medical records of “the patient ” whose treatment performed or furnished, by any health care provider for, is the subject of the claim. Id. §§ 74.051(d)( “All parties to, or on behalf of a patient during the patient's medical shall be entitled to obtain complete and unaltered copies care, treatment, or confinement.” TEX. CIV. PRAC. & of the patient's medical records....”); 74.052(c)A, B. Un- REM.CODE § 74.001(a)(10) (emphasis added). Plainly, der the Court's reading of the statute, Williams would the Legislature contemplated that a health care liability be required to authorize or obtain authorization for the claim based upon a departure from standards of health release of Vidaurre's medical records to pursue his suit care would stem from medical treatment directed to- against his employer. Obviously, medical privacy laws ward a particular patient—“the patient” whose care, prevent Williams from authorizing the release of treatment, or confinement is the subject of the lawsuit. Vidaurre's medical records. 45 C.F.R. § 164.502(f)

(providing that Health Insurance Privacy and Portability Based largely on the Legislature's use of the term Act restrictions apply to deceased individuals). While “claimant” rather than “patient” in the health care liabil- the Legislature sought to reduce frivolous claims ity claim definition, the Court determines that a claim against health care providers, it sought to do so without falls under the health care prong of the definition even unduly restricting claims with merit. It is inconceivable absent a physician-patient relationship so long as a that the Legislature intended to require health care physician-patient relationship is “involved.” 371 claimants with meritorious claims to be blocked by the S.W.3d at 189. As set out in section I.B. below, the refusal of third parties (the patients “involved”) to au- Court's analysis of the significance of the Legislature's thorize release of their medical records. use of “claimant” in the definition flows from an erroneous premise and is deeply flawed; the Court's reliance Moreover, even if Williams were somehow able to on the change ignores the fact that the Legislature used obtain authorization from Vidaurre's estate, the records the term throughout the Act's predecessor, including in would not serve the purpose sections 74.051 and 74.052 its statement of legislative purpose. More importantly, were designed to serve: to “ ‘provide[ ] an opportunity the Legislature did not say that a health care claim must for health care providers to investigate claims and pos- “involve” a patient. Indeed, the word is found nowhere sibly settle those with merit at an early stage.’ ” Jose in the definition of health care or health care liability Carreras, M.D., P.A. v. Marroquin, 339 S.W.3d 68, 73

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371 S.W.3d 171, 55 Tex. Sup. Ct. J. 1033 (Cite as: 371 S.W.3d 171)

(Tex.2011) (quoting In re Collins, 286 S.W.3d 911, or health care provider failed to meet the standards, 916–17 (Tex.2009)). Vidaurre's psychiatric diagnosis and the causal relationship between that failure and and violent tendencies are undisputed, and the records the injury, harm, or damages claimed. would have no bearing on the merits of Williams's claims against West Oaks for allegedly providing an un- TEX. CIV. PRAC. & REM.CODE § 74.351(r)(6) safe workplace and inadequate training. (emphasis added). The emphasized language clearly contemplates that the defendant health care provider has The Court discounts the import of these sections, delivered health care services to a patient, who has alfinding no language to suggest that employee/employer legedly been injured by the provider's departure from disputes like this case are not health care liability applicable standards. The Court minimizes the definiclaims . But section 74.052, which describes the stat- tion's significance by noting that “[t]he fact that experts utory authorization form that must accompany the stat- submitting reports have knowledge of the alleged standutory notice provides: ards deviated from does not logically lead to a conclusion that only a patient's suit against a health care pro-

(c) The medical authorization required by this section vider can constitute an HCLC....” 371 S.W.3d at 190. shall be in the following form[ ]: That suggestion, however, overlooks the provision's reference to the health care provider's rendition of care.

(A) I, _______________ (name of patient [not claimant] or authorized representative), hereby au- The sections of the Act governing the qualifications thorize _______________ (name of physician or oth- of experts who may author reports similarly show that a er health care provider to whom the notice of health health care liability claim arises only from a patient/ care claim is directed) to obtain and disclose ... the health care provider relationship. Section 74.041 estabprotected health information described below.... lishes the necessary qualifications for an expert in a suit against a physician. Among other qualifications, the ex-

Other provisions of the Act, which provide the relpert must “ha[ve] knowledge of accepted standards of evant statutory context, see City of Boerne, 111 S.W.3d medical care for the diagnosis, care, or treatment of the at 25, shore up the conclusion that health care liability illness, injury, or condition involved in the claim. ”

claims arise from a health care provider's breach of a TEX. CIV. PRAC. & REM.CODE § 74.401(a)(2)

duty toward a particular patient. I examine several be-

(emphasis added). The definitions thus contemplates low.

that the lawsuit will center on a physician's treatment of 2. The Court's interpretation is inconsistent with a patient's illness, injury, or condition, not on the adprovisions governing the expert reports and the equacy of a workplace or the training provided to an qualifications of experts. employee.

The Court reverses the court of appeals' judgment 3. The jury instruction mandated by the Legislature and remands to the trial court, instructing it to dismiss contemplates that the claim arises from a health care because Williams failed to comply with the expert reprovider 's treatment of a patient.

port requirement of section 74.351. But the very defini-

In section 74.303(e) of the Act, the Legislature tion of “expert report” belies the Court's conclusion that mandated the inclusion of two express jury instructions Williams's allegations state claims for health care liabil-

“[i]n any action on a health care liability claim that is ity. An “expert report” is defined as tried by a jury in any court in this state.” The second of a written report by an expert that provides a fair sum- those is: mary of the expert's opinions as of the date of the re-

A finding of negligence may not be based solely on port regarding applicable standards of care, *196 the evidence of a bad result to the claimant in question, manner in which the care rendered by the physician but a bad result may be considered by you, along

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371 S.W.3d 171, 55 Tex. Sup. Ct. J. 1033 (Cite as: 371 S.W.3d 171)

with other evidence, in determining the issue of negli- care liability claim.” The Act's predecessor, the Medical gence. You are the sole judges of the weight, if any, Liability and Insurance Improvement Act, former article to be given to this kind of evidence. 4590i, defined the term as

Id. § 74.303(e)(2). This instruction reflects the a cause of action against a health care provider or long-recognized principle that a physician who exer- physician for treatment, lack of treatment, or other cises ordinary care, within his school or specialty, is not claimed departure from accepted standards of medical liable to a patient for a bad outcome. See Bowles v. care or health care or safety which proximately results Bourdon, 148 Tex. 1, 219 S.W.2d 779, 782 (1949). in injury or death of the patient, whether the patient's Clearly, the instruction only makes sense where a pa- claim or cause of action sounds in tort or contract. tient or the patient's proxy is dissatisfied by health care services delivered by a health care provider. In the con- Act of May 30, 1977, 65th Leg., R.S., ch. 817, § text of the present case, in which the health care pro- 1.03(a)(4), 1997 Tex. Gen. Laws 2039, 2041, repealed vider acted as an employer, the instruction becomes by Act of June 2, 2003, 78th Leg., R.S., ch. 204, § 10.09 nonsensical. 2003 Tex. Gen. Laws 847, 884 (emphasis added). In 2003, the Legislature replaced the word “patient” with B. The Court's Interpretation Is Contrary to Our the term “claimant.” TEX. CIV. PRAC. & REM.CODE Prior Interpretations and Attaches Undue Import- § 74.001(13). Without regard to the abundant indicia to ance to the Alteration of the Definition of “Health the contrary throughout the Act, the Court concludes Care Liability Claim.” that this change contemplated health care liability Noting that “our focus ... is not the status of the claims that do not arise from the physician-patient relaclaimant ,” 371 S.W.3d at 178, the Court rejects out of tionship. hand Williams's contention that the lack of a patient- physician relationship between him and West Oaks While claimant is a new term in the definition of places his suit outside of the Act. It is true, as the Court health care liability claim, the word was used asserts, that in Diversicare we placed great importance throughout the TMLIIA before the Legislature made upon the essence of the claims, “the alleged wrongful that change. In fact, the Legislature used the term in deconduct and the duties allegedly breached.” 185 S.W.3d scribing the Act's very purpose: to alleviate a perceived at 851. But in *197 rejecting Rubio's contention that her health care crisis “in a manner that will not unduly reclaim for a sexual assault by another patient should be strict a claimant's rights any more than necessary to treated as an ordinary premises liability claim, we at- deal with the crisis.” Act of May 30, 1977, 65th Leg., tached equal importance to the claimant's status as a pa- R.S., ch. 817, § 1.02(13)(3), 1977 Tex. Gen. Laws tient between the parties: “There is an important distinc- 2039, 2040, repealed by Act of June 2, 2003, 78th Leg., tion in the relationship between premises owners and in- R.S., ch 204, § 10.09 2003 Tex. Gen. Laws 847, 884 vitees on one hand and health care facilities and their The term was also used and defined in section 13 of artpatients on the other. The latter involves health care.” icle 4590i. That section, the precursor of sections Id. at 850. And we emphasized that, were we to agree 74.351 and 74.352 of the current act, among other with Rubio's position, “our decision would have the ef- things, required a claimant in a health care liability fect of lowering the standard from professional to ordin- claim to file an expert report within 180 days. Act of ary care.” Id. at 854. The presence of a doctor-patient May 1, 1995, 74th Leg., R.S., ch. 971, § 1, sec. relationship was undeniably important to our determina- 13.01(d), (e), 1995 Tex. Gen. Laws 985, 985–986, retion that Rubio's allegations amounted to health care li- pealed by Act of June 2, 2003, 78th Leg., R.S., ch 204, ability claims. § 10.09, 2003 Tex. Gen. Laws 847, 884. “Claimant”

was defined as The Court attaches much significance to the Legislature 's alteration in 2003 of the definition of “health a party who files a pleading asserting a claim. All

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371 S.W.3d 171, 55 Tex. Sup. Ct. J. 1033 (Cite as: 371 S.W.3d 171)

plaintiffs claiming to have sustained damages as the must be directly related to health care. That issue isn't result of the bodily injury or death of a single person presented because, at least in the Court's view, Williare considered to be a single claimant. ams's claim is directly related to health care. West Oaks th itself argued that Willams's claims “are inextricably in-

Act of May 1, 1995, 74 Leg., R.S., ch. 971, § 1, terwoven with the rendition of health care services.”

sec. 13.01(d), (e), 1995 Tex. Gen Laws 985, 985–986, Even if the question were properly before us, though, I th repealed by Act of June 2, 2003, 78 Leg., R.S., ch would reach a different conclusion than the Court. I 204, § 10.09 2003 Tex. Gen. Laws 847, 884. Accord- would hold that a claim for safety under the Health Care ingly, even though “health care liability claim” referred Liability Act must arise from a breach of a health care to injury to or the death of a patient, the statute contem- provider's duty to adequately ensure a patient's safety in plated that others could pursue claims under article providing health care services. 4590i. And what parties could claim to have damages as the result of the injury or death of a patient but spouses The Court's conclusion that a health care liability or relatives with their own claims for loss of support or claim for breach of a safety standard depends entirely *198 consortium or mental anguish, or others acting in a on the last antecedent doctrine, 371 S.W.3d at 182, or representative capacity, such as an estate or next friend? the notion that “ ‘[m]odifiers should come, if possible, In light of that history, it seems fairly obvious that the next to the words they modify.’ ” 371 S.W.3d at 184 Legislature broadened the definition of “health care li- (quoting William Strunk, Jr. & E.B. White, THE ELEability claim” in 2003 to harmonize the definition with MENTS OF STYLE R. 20 (4th ed. 2000)). In the its previous recognition that parties other than patients Court's view, then, the Legislature would have had to might suffer injuries as the result of a health care pro- frame the definition as “a cause of action against a vider's departure from accepted standards in rendering health care provider or physician for treatment, lack of FN1 health care services to a patient. treatment, or other claimed departure from accepted standards of ... safety directly related to health care or FN1. The Court also makes much of the Act's professional or administrative services directly related definition of “representative,” a term used in to health care, which proximately results in injury to or the Act's medical records disclosure provision. death of a claimant, whether the claimant's claim or TEX. CIV. PRAC. & REM.CODE §§ cause of action sounds in tort or contract. Neither 74.001(a)(25), .052. “Representative” is Strunk and White's instructions nor the last antecedent defined as the “agent of the patient or doctrine are so absolute as to require such redundancy. claimant.” The Court concludes this See City of Dallas v. Stewart, 361 S.W.3d 562, 571 n. “indicat[es] that patient and claimant do not ne- 14 (Tex.2012). Instead, we should read the word in harcessarily refer to the same category of per- mony with the other provisions I have discussed, and in sons.” I agree, but my conclusion that conjunction with the words surrounding “safety,” which “claimant” refers to parties with claims derived all clearly implicate claims arising from a health care from a health care provider's breach of a duty provider's delivery of medical care to a patient. See City toward a particular patient, such as guardians, of Boerne, 111 S.W.3d at 29 (citing Cty. of Harris v. executors, survivors, and next friends, is far Eaton, 573 S.W.2d 177, 179 (Tex.1978)). more consistent with other provisions of the Act than the Court's. The Court's reading of the term “safety”—“untouched by danger, not exposed to II. Safety Under the Act danger; secure from danger, harm or loss”—is so broad Although its holding that Williams has asserted a that almost any claim against a health care provider can claim for breach of a health care standard is dispositive, now be deemed a health care liability claim. If a hospitthe Court reaches out to decide an issue that isn't even al cook leaves an unlit gas burner on and causes an expresented : whether a claim for safety under the Act

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371 S.W.3d 171, 55 Tex. Sup. Ct. J. 1033 (Cite as: 371 S.W.3d 171)

plosion, claims for any resulting injuries might be tion insurance, the Court's decision increases the burden health care liability*199 claims. If a nurse's deranged and cost of pursuing negligence claims against nonsubspouse arrives at a clinic and shoots her, her claim that scribers for employees of health care institutions. This the facility provided inadequate security will also fall will likely discourage healthcare workers from bringing under the statute. Surely the Legislature did not intend smaller claims. to make professional liability insurers responsible for such claims in order to solve an insurance availability More importantly, the Act places strict limits on crisis. damages that may be recovered from health care providers . TEX. CIV. PRAC. & REM CODE §§ 74.301 III. The Court's Holding Undermines the Balance –.303. By conferring the benefit of the Act's statutory Struck by the Legislature in the Workers Compensa- damages cap on nonsubscribing health care providers, tion Act the Court gives health care provider nonsubscribers a I dissent also because, by forcing an employee's benefit that is at odds with the measures the Legislature negligence suit against his employer for on-the-job in- implemented to penalize employers who opt not to parjuries into the health-care-liability-claim mold, the ticipate in the workers compensation system. “In enact- Court significantly disrupts the delicate balance ing section 406.033 and its predecessors, the Legislature between employee and employer interests the Legis- intended to delineate explicitly the structure of an emlature sought to implement when it enacted the Texas ployee's personal-injury action against his or her non- Workers Compensation Act (TWCA). The TWCA per- subscribing employer.” Kroger v. Keng, 23 S.W.3d at mits an employee to bring a negligence action against a 350–351. Today's decision redraws that delineation. nonsubscriber like West Oaks. See TEX. LAB.CODE § 406.033. By making the common law defenses of as- IV. The Court's Holding Undermines the Legissumption of the risk, negligence of a fellow employee, lature's Stated Purposes and contributory negligence unavailable to a nonsub- In enacting chapter 74, the Legislature found that scribing employer under the TWCA, id. at § 406.033(a), “the number of health care liability claims [had] init is clear that the Legislature intended to “penalize[ ] creased since 1995 inordinately[,] caus[ing] a serious nonsubscribers” and make it easier for their employees public problem in availability and affordability of adto recover. Kroger Co. v. Keng, 23 S.W.3d 347, 349, equate medical professional liability insurance.” Act of 352 (Tex.2000) (noting that “[t]o encourage employers June 2, 2003, 78th Leg., R.S., ch. 204, § 10.11(a)(1), to obtain workers' compensation insurance, [the TWCA] (4), 2003 Tex. Gen. Laws 847, 884. It adopted the Act penalizes nonsubscribers by precluding them from as- to reduce the frequency and decrease the *200 costs of serting certain common-law defenses in their employ- those claims. Id. at § 10.11(b)(1), (2). By sweeping a ees' personal injury actions” and that the “Legislature whole new class of claims—negligence claims of emintended that an employee's fault would neither defeat ployees of health care institutions—into chapter 74, the nor diminish his or her recovery”). Under the Court's Court increases the number of health care liability holding, employees of nonsubscribing healthcare pro- claims and thwarts that purpose. Mystifyingly, the viders will encounter procedural hurdles, such as the Court proclaims that its decision is “in harmony” with Act's notice and expert report requirements, that the the Act's purposes because this new class of health care TWCA does not contemplate. See TEX. CIV. PRAC. & claimants will be required to file expert reports. 371 REM.CODE §§ 74.051, 74.351. Failure to comply with S.W.3d at 182–83, n. 5. To be sure, Williams's claim these special requirements can result in harsh con- will be dismissed in the wake of today's decision—one sequences, including dismissal of a claim with prejudice claim will go away. But, in the future, employees in and assessment of attorneys fees against the plaintiff. Williams's position will be forewarned that they must Id. § 74.351(b). Rather than the health care provider be- provide an expert report and undoubtedly will do so. ing penalized for not subscribing to workers' compensa- The upshot of the Court's decision is that medical pro-

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371 S.W.3d 171, 55 Tex. Sup. Ct. J. 1033 (Cite as: 371 S.W.3d 171)

fessional liability insurers will be responsible for claims that normally would have fallen under a health care employer 's workers compensation or comprehensive liability coverage.

The Court has previously declined to construe provisions of the Act in a way that would lead to absurd results. Jose Carreras, M.D., P.A. v. Marroquin, 339 S.W.3d 68, 72–73 (Tex.2011). It should do so here.

V. Conclusion The Court's conclusion that Williams's claim against his employer for providing inadequate training and an unsafe workplace is a health care liability claim is not only counterintuitive, it is inconsistent with the Act's express language and its underlying purposes. Furthermore, it alters the contours of employees' claims against nonsubscribing health care providers established in the Workers Compensation Act. For these reasons, I respectfully dissent.

Tex.,2012. Texas West Oaks Hosp., LP v. Williams 371 S.W.3d 171, 55 Tex. Sup. Ct. J. 1033

END OF DOCUMENT

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401 S.W.3d 41, 56 Tex. Sup. Ct. J. 467 (Cite as: 401 S.W.3d 41)

termining pediatric nephrologist's, obstetrician's, and pediatric neurologist's reports were adequate to Supreme Court of Texas. satisfy the expert report requirement of the Texas TTHR LIMITED PARTNERSHIP d/b/a Presbyteri- Medical Liability Act (TMLA) as to patient's claim an Hospital of Denton, Petitioner, that hospital was vicariously liable for the negliv . gence of two physicians in connection with damage Claudia MORENO, individually and as Next Friend to patient's child's nervous system and kidneys durof F.C., a Minor, Respondent. ing childbirth, where obstetrician stated a standard of care and opined that physicians breached the No. 11–0630.

standard and thereby caused an extended labor and Argued Nov. 6, 2012.

birthing process, and the other two experts opined Decided April 5, 2013.

that the extended birthing process caused the dam-

Rehearing Denied June 7, 2013.

age to the child's nervous system and kidneys.

Background: Mother, individually and as next V.T.C.A., Civil Practice & Remedies Code § friend of child, sued hospital and two physicians for 74.351(a), (r)(6). injuries to child during birth. The 362nd District [2] Health 198H 804 Court, Denton County, Robert Bruce McFarling, J., denied hospital's motion to dismiss under Texas 198H Health Medical Liability Act (TMLA). Hospital appealed. 198HV Malpractice, Negligence, or Breach of The Fort Worth Court of Appeals affirmed, 2011 Duty WL 2651813. Hospital appealed. 198HV(G) Actions and Proceedings 198Hk804 k. Affidavits of merit or merit-

Holdings: The Supreme Court, Johnson, J., held orious defense; expert affidavits. Most Cited Cases that:

Obstetrician/gynecologist's report was not im-

(1) combined conclusions of three experts were adproperly conclusory under the Texas Medical Liabequate to satisfy expert report requirement of ility Act (TMLA), in stating that the standard of TMLA, and care for a doctor caring for a patient presenting (2) TMLA did not require an expert report as to with conditions such as the mother in the present each liability theory alleged against hospital.

case was to immediately deliver the babies by Affirmed in part, reversed in part, and re- cesarean section, that failing to do so was a breach manded. of that standard, and that the physicians' failure to perform a cesarean section resulted in the extended West Headnotes labor and birthing process. V.T.C.A., Civil Practice & Remedies Code § 74.351(r)(6).

[1] Health 198H 804 [3] Health 198H 804 198H Health 198HV Malpractice, Negligence, or Breach of 198H Health Duty 198HV Malpractice, Negligence, or Breach of 198HV(G) Actions and Proceedings Duty 198Hk804 k. Affidavits of merit or merit- 198HV(G) Actions and Proceedings orious defense; expert affidavits. Most Cited Cases 198Hk804 k. Affidavits of merit or merit-

Trial court did not abuse its discretion by de- orious defense; expert affidavits. Most Cited Cases

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401 S.W.3d 41, 56 Tex. Sup. Ct. J. 467 (Cite as: 401 S.W.3d 41)

The Texas Medical Liability Act (TMLA) re- culties associated with the pregnancy. The hospitquires a claimant to timely file an adequate expert al's nurses began having problems monitoring report as to each defendant in a health care liability Moreno and the twins, so they paged the physician claim, but it does not require an expert report as to on call, Dr. Lorie Gore–Green. Dr. Gore–*43 Green each liability theory alleged against that defendant. and Moreno's regular doctor, Dr. Marc Wilson, at- V.T.C.A., Civil Practice & Remedies Code § tended to Moreno the next morning. Dr. Wilson in- 74.351. duced labor and used forceps and vacuum extraction to deliver the second baby, F.C. At some point *42 J. Kevin Oncken, Roger A. Berger, Uzick On- shortly before or during the birth process F.C. cken, P.C., Houston, TX, for Petitioner. suffered blood loss and a hypoxic-ischemic insult.

It was later determined that his nervous system and Craig T. Enoch, Enoch Kever PLLC, Austin, TX, kidneys were damaged.

Lawrence R. Lassiter, Les Weisbrod, Max E. Freeman II, Miller Weisbrod LLP, Dallas, TX, for Re- Moreno, individually and as next friend of spondent. F.C., sued the hospital, Dr. Wilson, and Dr.

FN2 Gore–Green. She alleged that the hospital was Justice JOHNSON delivered the opinion of the liable for the injuries to F.C. because of its own dir- Court. ect negligence as well as its vicarious liability for Plaintiffs suing on health care liability claims the negligence of its nurses and the two doctors.

must serve each defendant with an expert report FN2. Neither Dr. Wilson nor Dr.

meeting the requirements of the Texas Medical Li-

FN1 Gore–Green are parties to this appeal. We ability Act (“TMLA” or “the Act”) or face diswill reference only the claims against the missal of their claims. We recently held that an exhospital .

pert report satisfying the requirements of the TMLA as to a defendant, even if it addresses only Moreno timely served Presbyterian with a reone theory of liability alleged against that defend- port by Dr. Samuel Tyuluman, an obstetrician and ant, is sufficient for the entire suit to proceed gynecologist. See TEX. CIV. PRAC. & against the defendant. Certified EMS, Inc. v. Potts, REM.CODE § 74.351(a) (requiring service of an 392 S.W.3d 625 (Tex.2013). In this case the expert report not later than the 120th day after a plaintiff's expert reports satisfy the TMLA require- health care liability claim is filed). The hospital obments as to her claim that a hospital is vicariously jected to Dr. Tyuluman's report on the basis that he liable for the allegedly negligent actions of two was not qualified to express opinions about the doctors. Accordingly, the plaintiff's case against the cause of F.C.'s neurological and kidney damage, hospital may proceed. and also because his opinions about the standards of care, breach of the standards, and causation were FN1. TEX. CIV. PRAC. & REM.CODE §§ conclusory. In response to the objections, Moreno 74.001–.507.

served a report by Dr. Billy Arant, a pediatric neph-

FN3 We affirm the judgment of the court of appeals rologist. See id. § 74.351(i) (authorizing fulin part, reverse in part, and remand the cause to the filling the expert report requirements by serving trial court for further proceedings. multiple reports). Presbyterian objected to Dr.

Arant's report on various grounds.

I. Background Claudia Moreno, pregnant with twins, was ad- FN3. Nephrology involves the study of mitted to TTHR Ltd., d/b/a Presbyterian Hospital of functions and treatment of the kidneys. Denton (“Presbyterian” or “the hospital”) for diffi-

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401 S.W.3d 41, 56 Tex. Sup. Ct. J. 467 (Cite as: 401 S.W.3d 41)

The trial court sustained only Presbyterian's the nurses violated applicable standards of nursing objection that the reports failed to show a causal re- care and the reports of Drs. Arant and Seals did not lationship between the alleged failures of the hos- attempt to address either nursing standards of care pital and its nurses to meet the applicable standards or breaches of those standards. Id. at 170. The court of care and F.C.'s neurological injury. The court remanded the case to the trial court and instructed it granted Moreno a thirty-day extension to cure the to consider granting Moreno a thirty-day extension reports. See id. § 74.351(c) (providing that if to cure the deficiencies found on appeal. Id. at 170. “elements of the report are found deficient, the court may grant one thirty-day extension to the Presbyterian appeals, arguing that the court of claimant in order to cure the deficiency”). She then appeals erred by concluding Moreno's reports were filed a report by Dr. John Seals, a pediatric neurolo- adequate as to causation, but even if the reports gist. Presbyterian objected to Dr. Seals's report on were adequate in that respect, the court erred by rethe basis that it did not set out any acts of alleged manding the case for the trial court to consider negligence on the part of the hospital, nor did it set granting another thirty-day extension to cure the out a causal connection between any allegedly neg- other deficiencies. ligent act or omission of the hospital or its nurses After we heard oral argument in this case we and F.C.'s neurological injury. The trial court deheld in Certified EMS that the TMLA does not retermined that when the reports of Drs. Tyuluman, quire an expert report for each liability theory Arant, and Seals were read in concert, Moreno had pleaded against a defendant. Certified EMS, Inc., met the TMLA's requirements. It denied the hospit-

392 S.W.3d at 632. Our decision in that case conal 's motion to dismiss, and this interlocutory appeal trols the outcome here because we conclude that followed. See id. § 51.014(a)(9).

Moreno's expert reports addressing the hospital's al-

The court of appeals affirmed as to the ad- leged liability for the actions of Drs. Wilson and equacy of the reports regarding Moreno's claim that Gore–Green are adequate. Given that determina- Presbyterian is vicariously liable for the doctors' tion, we do not address whether the court of appeals negligence. 401 S.W.3d 163. In doing so, it determ- erred by remanding the case for the trial court to ined that Dr. Tyuluman's report specified several consider granting a second extension of time for standards of care, how the defendant doctors Moreno to cure deficiencies in her reports. breached them, and that Drs. Arant and Seals were II. Vicarious Liability for the Doctors' Actions qualified to and did opine on the causal connection [1] The court of appeals held that the trial court between the breaches by the doctors and F.C.'s indid not abuse its discretion by determining juries. Id. at 169. The appeals court also determined Moreno's reports were adequate as to her claim that that the reports adequately addressed a causal relathe hospital is vicariously liable for the negligence tionship between the events at delivery and F.C.'s of Drs. Wilson and Gore–Green. 401 S.W.3d at neurological and kidney injuries. Id. at 170. But in 166. Its review of the trial court's ruling was under addressing the direct liability claims, the court conthe abuse of discretion standard. Am. Transitional cluded that Dr. Tyuluman's report did not ad-

Care Ctrs. of Tex., Inc. v. Palacios, 46 S.W.3d 873, equately address the applicable standards of care or 877 (Tex.2001). So is ours, and we reach the same how Presbyterian breached those standards, and conclusion as did the court of appeals.

neither *44 the report of Dr. Arant nor that of Dr. Seals addressed any standard or breach by the hos- [2] A valid expert report under the TMLA must pital. Id. at 167. As to the vicarious liability claims provide: (1) a fair summary of the applicable standbased on the nurses' actions, the court concluded ards of care; (2) the manner in which the physician that Dr. Tyuluman's report did not state how any of or health care provider failed to meet those stand-

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401 S.W.3d 41, 56 Tex. Sup. Ct. J. 467 (Cite as: 401 S.W.3d 41)

ards; and (3) the causal relationship between that nurses—may proceed. See id. at 632. failure and the harm alleged. TEX. CIV. PRAC. & REM.CODE § 74.351(r)(6). Dr. Tyuluman's report IV. Conclusion set out applicable standards of care for doctors We affirm the court of appeals' judgment as to treating a patient with conditions similar to those the adequacy of the reports regarding the claim that with which Moreno presented. He opined that (1) Presbyterian is vicariously liable for the doctors' acthe standard of care for a doctor caring for a patient tions. We need not and do not consider whether the presenting with conditions such as Moreno's was to TMLA authorized the court of appeals to remand immediately deliver the babies by cesarean section; the case to the trial court for it to consider granting (2) failing to do so was a breach of that standard; a second extension of time for Moreno to cure her and (3) the doctors' failing to perform a cesarean reports. We reverse that part of the court of appeals' section resulted in the extended labor and birthing judgment by which it did so, but affirm its judgprocess . We agree with the court of appeals that as ment remanding the entire suit to the trial court. to the foregoing standard of care and breach, Dr.

The cause is remanded to the trial court for fur-

Tyuluman's report was not conclusory. Dr. Arant's ther proceedings consistent with this opinion.

report explained that asphyxia during the birth process caused F.C.'s kidney injury, and Dr. Seals's re- Tex.,2013. port stated his opinion that the hypoxic-ischemic TTHR Ltd. Partnership v. Moreno event during the labor and delivery process caused 401 S.W.3d 41, 56 Tex. Sup. Ct. J. 467 F.C.'s brain injury. Accordingly, we agree with the court of appeals that the trial court did not abuse its END OF DOCUMENT discretion by finding Moreno's reports adequate as to the claim that Presbyterian is vicariously liable FN4 for actions of the doctors.

FN4. Presbyterian does not concede that it can be held vicariously liable for the doctors ' actions. But it acknowledges that whether it can be is not a question to be determined in this appeal.

*45 III. Direct Liability and Vicarious Liability for Nurses' Negligence [3] As we articulated in Certified EMS, the TMLA requires a claimant to timely file an adequate expert report as to each defendant in a health care liability claim, but it does not require an expert report as to each liability theory alleged against that defendant. Certified EMS, Inc., 392 S.W.3d at 632. Here, because the trial court did not abuse its discretion in finding Moreno's reports adequate as to her theory that Presbyterian is vicariously liable for the doctors' actions, her suit against Presbyterian —including her claims that the hospital has direct liability and vicarious liability for actions of the

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281 S.W.3d 207 (Cite as: 281 S.W.3d 207)

port and curriculum vitae in determining whether the witness is qualified as an expert under health Court of Appeals of Texas, care liability statute. V.T.C.A., Civil Practice & Dallas. Remedies Code § 74.351(r)(5)(C).

UHS OF TIMBERLAWN, INC., Appellant, v. [2] Health 198H 804 S.B., a Minor, by and through her Next Friend, A.B., Appellee. 198H Health 198HV Malpractice, Negligence, or Breach of No. 05–08–00222–CV. Duty Feb. 24, 2009. 198HV(G) Actions and Proceedings 198Hk804 k. Affidavits of Merit or Merit-

Background: Former patient brought action orious Defense; Expert Affidavits. Most Cited against psychiatric treatment facility, alleging that Cases she was placed in a ward with male patients and Under health care liability statute, the expert one of them raped her. The 160th Judicial District report must represent a good-faith effort to provide Court, Dallas County, Jim Jordan, J., denied facil- a fair summary of the expert's opinions. V.T.C.A., ity's motion to dismiss, and facility appealed. Civil Practice & Remedies Code § 74.351(l ), (r)(6).

Holdings: The Court of Appeals, Moseley, J., held that: [3] Health 198H 804 (1) in order to identify the causal relationship between actions of treatment facility and patient's 198H Health claimed injury, patient was not required, under 198HV Malpractice, Negligence, or Breach of health care liability statute, to proffer an expert re- Duty port opining that she was in fact raped; and 198HV(G) Actions and Proceedings (2) report of patient's expert contained adequate 198Hk804 k. Affidavits of Merit or Meritstatements regarding causation so as to satisfy ex- orious Defense; Expert Affidavits. Most Cited pert report requirement of health care liability stat- Cases ute. Health care liability statute's expert-report requirement serves two purposes: (1) to inform the Affirmed. defendant of the specific conduct the plaintiff has called into question; and (2) to provide a basis for West Headnotes the trial court to conclude the claims have merit.

[1] Health 198H 804 V.T.C.A., Civil Practice & Remedies Code § 74.351(r)(6).

198H Health 198HV Malpractice, Negligence, or Breach of [4] Health 198H 804 Duty 198H Health 198HV(G) Actions and Proceedings 198HV Malpractice, Negligence, or Breach of 198Hk804 k. Affidavits of Merit or Merit-

Duty orious Defense; Expert Affidavits. Most Cited 198HV(G) Actions and Proceedings Cases 198Hk804 k. Affidavits of Merit or Merit-

Appellate courts consider only the expert's reorious Defense; Expert Affidavits. Most Cited

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281 S.W.3d 207 (Cite as: 281 S.W.3d 207)

Cases Traditionally, appellate courts apply an abuse Expert report does not comply with health care of discretion standard in reviewing the trial court's liability statute if it fails to address the standard of decision to deny a motion to dismiss based on failcare , breach of the standard, and causation, or if it ure to file an adequate expert report under health only states the expert's conclusions regarding these care liability statute. V.T.C.A., Civil Practice & elements. V.T.C.A., Civil Practice & Remedies Remedies Code § 74.351(r)(6). Code § 74.351(r)(6).

[8] Appeal and Error 30 946 [5] Health 198H 804 30 Appeal and Error 198H Health 30XVI Review 198HV Malpractice, Negligence, or Breach of 30XVI(H) Discretion of Lower Court Duty 30k944 Power to Review 198HV(G) Actions and Proceedings 30k946 k. Abuse of Discretion. Most 198Hk804 k. Affidavits of Merit or Merit- Cited Cases orious Defense; Expert Affidavits. Most Cited Trial court abuses its discretion if it acts in an Cases arbitrary or unreasonable manner without reference Although the expert report need not marshal all to any guiding rules or principles.

of the plaintiff's proof, it must include the expert's opinion on each of the elements identified in the [9] Appeal and Error 30 946 health care liability statute. V.T.C.A., Civil Practice 30 Appeal and Error & Remedies Code § 74.351(r)(6).

30XVI Review [6] Health 198H 804 30XVI(H) Discretion of Lower Court 30k944 Power to Review 198H Health 30k946 k. Abuse of Discretion. Most 198HV Malpractice, Negligence, or Breach of Cited Cases Duty 198HV(G) Actions and Proceedings Appeal and Error 30 1008.1(3)

198Hk804 k. Affidavits of Merit or Merit-

30 Appeal and Error orious Defense; Expert Affidavits. Most Cited 30XVI Review Cases 30XVI(I) Questions of Fact, Verdicts, and Under health care liability statute, expert's re-

Findings port must explain the basis of his or her statements 30XVI(I)3 Findings of Court to link those conclusions to the facts. V.T.C.A., 30k1008 Conclusiveness in General Civil Practice & Remedies Code § 74.351(r)(6).

30k1008.1 In General [7] Appeal and Error 30 960(1) 30k1008.1(3) k. Substituting Reviewing Court's Judgment. Most Cited Cases 30 Appeal and Error Appellate court may not substitute its judgment 30XVI Review for the trial court's judgment, or find that the trial 30XVI(H) Discretion of Lower Court court abused its discretion merely because appellate 30k960 Rulings on Motions Relating to court would have decided the matter differently.

Pleadings 30k960(1) k. In General. Most Cited [10] Health 198H 804 Cases 198H Health

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281 S.W.3d 207 (Cite as: 281 S.W.3d 207)

198HV Malpractice, Negligence, or Breach of 198Hk815 Evidence Duty 198Hk821 Necessity of Expert Testi-

198HV(G) Actions and Proceedings mony 198Hk804 k. Affidavits of Merit or Merit- 198Hk821(3) k. Proximate Cause.

orious Defense; Expert Affidavits. Most Cited Most Cited Cases Cases Some health care liability claims may allege In order to identify the causal relationship that a breach of the applicable standard of care exbetween actions of psychiatric treatment facility acerbated a pre-existing medical condition, or and patient's claimed injury, patient was not re- hindered or prevented the effective treatment of quired under health care liability statute to proffer such a condition, and identifying the an expert report opining that she was in fact raped; “breach/injury” causal relationship in these cases patient alleged that, as result of facility's failure to may require an expert to opine as to the existence, meet the applicable standards of care relevant to its extent, and prognosis of the pre-existing medical treatment of her, she was raped, rape was not a condition, as well as how the alleged breach of the medical condition, and instead, it was an assault, standard of care aggravated such a condition, imand medical evidence of an alleged sexual assault peded or prohibited its treatment, and otherwise afwas not required even in criminal prosecutions. fected the patient's prognosis. V.T.C.A., Civil Practice & Remedies Code § 74.351(r)(6). [13] Rape 321 51(3)

[11] Health 198H 631 321 Rape 321II Prosecution 198H Health 321II(B) Evidence 198HV Malpractice, Negligence, or Breach of 321k50 Weight and Sufficiency Duty 321k51 In General 198HV(B) Duties and Liabilities in General 321k51(3) k. Carnal Knowledge.

198Hk630 Proximate Cause Most Cited Cases 198Hk631 k. In General. Most Cited Medical evidence of an alleged sexual assault Cases is not required in criminal prosecutions; the rule in In some health care liability claims, the injury, Texas is that penetration may be proven by circumharm , or damages claimed flow from existence of a stantial evidence. medical condition that itself resulted from the breach of the applicable standard of care, and in [14] Rape 321 54(1) such cases, identifying the causal relationship 321 Rape between the alleged breach of the standard of care 321II Prosecution and the resulting harm involves not only explana-

321II(B) Evidence tion as to how standard of care was breached, but 321k50 Weight and Sufficiency also how the breach gave rise to the new, deleteri-

321k54 Corroboration of Female ous medical condition.

321k54(1) k. Necessity. Most Cited [12] Health 198H 821(3) Cases The testimony of a sexual assault victim alone 198H Health is sufficient evidence of penetration to support a 198HV Malpractice, Negligence, or Breach of criminal conviction, even if the victim is a child.

Duty 198HV(G) Actions and Proceedings [15] Health 198H 804

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281 S.W.3d 207 (Cite as: 281 S.W.3d 207)

198H Health Before Justices MOSELEY, RICHTER, and 198HV Malpractice, Negligence, or Breach of FRANCIS.

Duty 198HV(G) Actions and Proceedings OPINION 198Hk804 k. Affidavits of Merit or Merit-

Opinion by Justice MOSELEY.

orious Defense; Expert Affidavits. Most Cited Appellee S.B., acting through her next friend Cases A.B., sued appellant UHS of Timberlawn, Inc. She Under health care liability statute, an expert realleges that while she was thirteen years old and a port need not marshal the claimant's evidence, but it patient at Timberlawn's psychiatric treatment facilshould explain the basis of the expert's opinions and ity, she was placed in a ward with male patients, link his conclusions to the facts. V.T.C.A., Civil where one of them raped her. She claims her injur-

Practice & Remedies Code § 74.351(r)(6).

ies were proximately caused by the negligence of [16] Health 198H 804 Timberlawn's employees.

198H Health Timberlawn asserts, among other things, that 198HV Malpractice, Negligence, or Breach of the report of S.B.'s expert, Dr. Michael Jay Levine, Duty is deficient because he did not opine as to whether 198HV(G) Actions and Proceedings S.B. was in fact raped; neither does the report in-

198Hk804 k. Affidavits of Merit or Merit- dicate Levine was qualified to render such an opinorious Defense; Expert Affidavits. Most Cited ion. We affirm the trial court's order denying Tim- Cases berlawn's motion to dismiss.

Report of patient's expert contained adequate *210 PROCEDURAL BACKGROUND statements regarding causation so as to satisfy ex-

S.B. filed the curriculum vitae and report of Dr.

pert report requirement of health care liability stat-

Levine within 120 days of the filing of the petition.

ute with respect to patient's claim that, as result of See TEX. CIV. P. & REM. C.. § 74.351 (Vernon psychiatric treatment facility's failure to meet the Supp.2008). Timberlawn successfully disputed the applicable standards of care relevant to its treatadequacy of that report, and the trial court gave ment of her, she was raped when she was placed in S.B. an additional thirty days to cure any deficienward with male patients; expert's report stated that, cies in Levine's report. See id. § 74.351(c). Therebecause patient had a history of past sexual victimafter , S.B. filed another report and curriculum vitae ization and risk factors of a co-morbid developfrom Dr. Levine, entitled “Revised Expert Report.”

mental disability and a psychiatric disorder, the Timberlawn also objected to adequacy of this restandard of care required facility to provide housing port, and filed a motion to dismiss. However, the where patient could not be accessed by unsupertrial court denied Timberlawn's motion. Timbervised males. V.T.C.A., Civil Practice & Remedies lawn appealed. See id. §§ 51.014(a)(9); 74.351(b);

Code § 74.351.

Lewis v. Funderburk, 253 S.W.3d 204, 206–08 *209 Sidney L. Murphy, Steed Flagg, L.L.P., Rock- (Tex.2008); Romero v. Lieberman, 232 S.W.3d well, Cathy F. Bailey, Steed Flagg, LLP, Dallas, for 385, 388 (Tex.App.-Dallas 2007, no pet.). Appellant.

APPLICABLE LAW Vicki Kathleen McCarthy, Duncanville, Kirk L. Within 120 days of filing suit, a plaintiff as- Pittard, F. Leighton Durham, Cheyenne J. serting a healthcare liability claim must serve ex- Robertson, Durham & Pittard, Dallas, for Appellee. pert reports for each physician or health care provider against whom such a claim is asserted. TEX.

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281 S.W.3d 207 (Cite as: 281 S.W.3d 207)

CIV. PRAC. & REM.CODE § 74.351(a). These re- proof, it must include the expert's opinion on each ports must identify the “applicable standards of of the elements identified in the statute. See id. at care, the manner in which the care rendered by the 878. Moreover, the expert's report must explain the physician or health care provider failed to meet the basis of his or her statements to link those conclustandards , and the causal relationship between that sions to the facts. Earle v. Ratliff, 998 S.W.2d 882, failure and the injury, harm, or damages claimed.” 890 (Tex.1999); Mosely v. Mundine, 249 S.W.3d Id. § 74.351(r)(6). 775, 780 (Tex.App.-Dallas 2008, no pet.).

[1] As pertinent to this appeal, an “expert” STANDARD OF REVIEW means “with respect to a person giving opinion [7][8][9] Traditionally we apply an abuse of testimony about the causal relationship between the discretion standard in reviewing the trial court's deinjury , harm, or damages claimed and the alleged cision to deny a motion to *211 dismiss based on departure from the applicable standard of care in failure to file an adequate expert report. See Walker any health care liability claim, a physician who is v. Gutierrez, 111 S.W.3d 56, 63 (Tex.2003)

FN1 otherwise qualified to render opinions on such (discussing predecessor statute to § 74.351(c)). causal relationship under the Texas Rules of Evid- The trial court abuses its discretion if it acts in an ence.” TEX. CIV. PRAC. & REM.CODE ANN. § arbitrary or unreasonable manner without reference 74.351(r)(5)(C). To be so qualified under the Texas to any guiding rules or principles. Bowie Mem'l Rules of Evidence, an expert must have knowledge, Hosp. v. Wright, 79 S.W.3d 48, 52 (Tex.2002) (per skill, experience, training, or education regarding curiam); Mosely, 249 S.W.3d at 778. We may not the specific issue before the court that would quali- substitute our judgment for the trial court's judgfy the expert to give an opinion on that particular ment, or find that the trial court abused its discresubject . Broders v. Heise, 924 S.W.2d 148, 153 tion merely because we would have decided the (Tex.1996) (citing rule of evidence 702). We con- matter differently. Id. If, however, the trial court sider only the expert's report and CV in determining clearly failed to analyze and determine the law corwhether the witness is qualified as an expert under rectly or applied the law incorrectly to the facts, section 74.351. See Mem'l Hermann Healthcare then it abused its discretion. Id. Sys. v. Burrell, 230 S.W.3d 755, 758 (Tex.App.-Houston [14th Dist.] 2007, no pet). FN1. Timberlawn recognizes this; nevertheless , citing discussions (but not rulings)

[2][3][4][5][6] Under subsections 74.351(l ) in two court of appeals' opinions, it conand (r)(6), the expert report or reports must repres- tends we should apply a de novo standard. ent a good-faith effort to provide a fair summary of Those two opinions are Kendrick v. Garthe expert's opinions. Am. Transitional Care Ctrs. cia, 171 S.W.3d 698, 702 of Tex., Inc. v. Palacios, 46 S.W.3d 873, 878 (Tex.App.-Eastland 2005, pet. denied), and (Tex.2001). The expert-report requirement serves Quint v. Alexander, No. 03–04–00819–CV, two purposes: (1) to inform the defendant of the 2005 WL 2805576 (Tex.App.-Austin 2005, specific conduct the plaintiff has called into ques- pet denied.). However, Timberlawn tion; and (2) to provide a basis for the trial court to provides no additional briefing, or any anaconclude the claims have merit. Id. at 879. A report lysis or discussion as to how the two standdoes not fulfill these purposes if it fails to address ards might differ in the context of this apthe standard of care, breach of the standard, and peal. Thus we decline Timberlawn's invitacausation , or if it only states the expert's conclu- tion. sions regarding these elements. Id. at 879. Although the report need not marshal all of the plaintiff's ANALYSIS On appeal Timberlawn asserts several com-

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281 S.W.3d 207 (Cite as: 281 S.W.3d 207)

plaints about the revised expert report. raped. [S.B.'s] expert did not nor could not articulate facts to support any opinion that A. “New” Report [Timberlawn's] alleged breaches in the standard In its fourth issue Timberlawn argues the re- *212 of care proximately caused [S.B.'s] alleged vised report contains new opinions with regard to sexual assault or rape. [S.B.'s] expert has not the breach of the standard of care and causation, shown himself to be qualified to render an opinand thus constitutes a “new report” that: (1) was ion that [S.B.] was sexually assaulted or raped or improperly filed after the time limitations provided that the alleged breaches in the standard of care by section 74.351; and (2) “exceeds the scope of § proximately caused [S.B.'s] sexual assault or 74.351(c).” It argues the statute “does not allow a FN2 rape.

plaintiff to obtain and serve a new report.” As sole support for its argument, Timberlawn cites the court of appeals's opinion in Danos v. Rittger, 253 FN2. Timberlawn's brief continues: S.W.3d 294 (Tex.App.-Houston [1st Dist.] 2007), Accordingly, this case has no merit, and rev'd 253 S.W.3d 215 (Tex.2008). As the Texas Suthere is no basis to continue to take up preme Court reversed the court of appeals on that the time and resources of the Trial Court, point, we overrule Timberlawn's fourth issue. See to expend the time, energy, and re-

Danos v. Rittger, 253 S.W.3d 215 (Tex.2008)

sources of the litigants, or even to put (citing Lewis v. Funderburk, 253 S.W.3d 204 [S.B.] through what will undoubtedly be (Tex.2008)).

a traumatic experience of discovery, de-

B. Causation-related Complaints position, and trial testimony, reliving her [10] In its remaining issues, Timberlawn as- past medical, psychiatric, and educationserts Levine's revised report and curriculum vitae al history, not to mention her ‘past hisdo not establish he is qualified to render an opinion tory of sexual victimization’, and the as to causation, and the revised report is inadequate matters alleged in this lawsuit. This case and conclusory as to that issue. These arguments all is the very type of case that Chapter 74 flow from Timberlawn's position disputing whether was designed to require the Court to dis- S.B. was, in fact, raped. miss at an early stage

Timberlawn contends that, absent a statement Thus, the premise of Timberlawn's arguments in Levine's revised report (presumably based on all is that unless S.B. can present the report of a qualireasonable medical probability) that S.B. was in fied expert opining that S.B. was actually raped, her fact raped, Levine's revised report fails to identify expert report(s) cannot identify the alleged causal the “causal relationship between [Timberlawn's ac- relationship between Timberlawn's actions or omistions ] and the injury, harm, or damages claimed.” sions and S.B.'s alleged injuries, as required by sec- See TEX. CIV. PRAC. & REM.CODE ANN. § tion 74.351(r)(6). We reject this premise. 74.351(r)(6). Timberlawn argues Levine did not [11][12] In some healthcare liability claims, the opine, nor did he show he was qualified to opine, as “injury, harm, or damages claimed” flow from the to whether S.B. had been raped. Timberlawn's arguexistence of a medical condition that itself resulted ments are best summarized in the conclusion and from the breach of the applicable standard of care.

prayer set forth in its brief:

In such cases, identifying the causal relationship [Levine] did not and/or could not express an between the alleged breach of the standard of care opinion, based on his education, training or ex- and the resulting harm involves not only an explanperience , that [S.B.] was sexually assaulted or ation as to how the standard of care was breached,

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281 S.W.3d 207 (Cite as: 281 S.W.3d 207)

but also how the breach gave rise to the new, dele- whether S.B. was in fact raped; and (2) because terious medical condition. Similarly, other health- Levine's report did not render an opinion on that iscare liability claims may allege that a breach of the sue. applicable standard of care exacerbated a pre- existing medical condition, or hindered or preven- 1. Levine's Qualifications ted the effective treatment of such a condition. The standard of care relevant to S.B.'s claim is Identifying the “breach/injury” causal relationship the assessment, treatment, and housing of an adin these cases may well require an expert to opine olescent mental patient in a mental health facility. as to the existence, extent, and prognosis of the pre- Timberlawn does not dispute Levine's qualificaexisting medical condition, as well as how the al- tions to opine as to that standard or as to the breach leged breach of the standard of care aggravated of that standard. We agree the record shows the trisuch a condition, impeded or prohibited its treat- al court could have concluded S.B. met her burden ment, and otherwise affected the patient's prognos- to show Levine had the knowledge, skill, experiis . ence, training, or education necessary to opine whether Timberlawn's conduct breached the applic-

FN3 However, S.B.'s claim is different. S.B. alleges able standard of care and caused her injury. See that, as a result of Timberlawn's failure to meet the Broders, 924 S.W.2d at 153; Mosely, 249 S.W.3d at applicable standards of care relevant to its treat- 779. We conclude the trial court did not abuse its ment of her, she was raped. Rape is not a medical discretion in overruling Timberlawn's objection to condition. It is an assault. Moreover, rape may—or Levine's qualifications as an expert pursuant to secmay not—be accompanied by medically ascertain- tion 74.351(r)(5). We overrule Timberlawn's issue able evidence of physical trauma, or even physical based on Levine's qualifications. evidence that it occurred.

FN3. Levine is a licensed medical doctor [13][14] Medical evidence of an alleged sexual and a clinical associate professor at the Deassault is not required even in criminal prosecu- partment of Psychiatry and Behavioral Scitions ; the rule in Texas is that “penetration may be ences at the University of Texas–Houston proven by circumstantial evidence.” See Villalon v. Medical School. He has worked at hospit- State, 791 S.W.2d 130, 133 (Tex.Crim.App.1990). als in Texas and other states since complet- Moreover, the testimony of a sexual assault victim ing his residency in 1972 in positions inalone is sufficient evidence of penetration to sup- volving child and adolescent neurodevelport a criminal conviction, even if the victim is a opmental diagnosis and treatment. He child. Karnes v. State, 873 S.W.2d 92, 96 trains and supervises medical students, (Tex.App.-Dallas 1994, no pet.) (citing Garcia v. psychiatry residents, child psychiatry fel- State, 563 S.W.2d 925, 928 (Tex.Crim.App. [Panel lows, and psychology interns and externs. Op.] 1978)). Levine's curriculum vitae shows he has extensive training and experience with the We decline to hold that in order to identify the assessment, evaluation, and treatment of causal relationship between Timberlawn's actions children and adolescents in a mental health and S.B.'s claimed injury, see TEX. CIV. PRAC. & facility or hospital. See Mosely, 249 REM.CODE ANN. § 74.351(r)(6), she was required S.W.3d at 779–80 (emergency room physito proffer an expert report opining that she was in cian qualified to opine about causation refact raped. Thus we reject Timberlawn's arguments garding emergency room physician's abilthat the trial court erred in not dismissing S.B.'s ity to interpret routine chest x-rays and claim because: (1) Levine's*213 report did not identify abnormality in patient later diashow him to be qualified to render an opinion on

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281 S.W.3d 207 (Cite as: 281 S.W.3d 207)

gnosed with cancer); Palafox v. Silvey, 247 Levine's report states in part that S.B. S.W.3d 310, 316 (Tex.App.-El Paso 2007, no pet.) (physician with training and exper- was actually housed on the male side of the treatience working with elderly patients and ment unit. Once housed on the male unit [S.B.] knowledge of “swallowing mechanism” should have been provided a room which could qualified to offer opinion on cause of pa- not be accessed by unsupervised male patients. tient's aspiration and death after defendant Instead her room was accessed by an unsuperplaced her on non-pureed diet). vised male, who, she reported, sexually assaulted her. It is my best professional medical opinion 2. Adequacy of Report Regarding Causation from the available reviewed materials that Tim-

[15][16] An expert report need not marshal the berlawn failed to provide individualized assessclaimant 's evidence, but it should explain the basis ment, and failed to provide particularly adequate of the expert's opinions and link his conclusions to protection from harm such as sexual victimizathe facts. Bowie Mem'l Hosp., 79 S.W.3d at 52. tion. Specifically, that Timberlawn breached its Thus, Levine's report should link Timberlawn's al- duty by housing [S.B.] in such a manner that a leged negligence with S.B.'s alleged harm or injur- male patient was able to obtain access to her for ies-her sexual assault by a male patient. See Bowie sexual victimization. Mem'l Hosp., 79 S.W.3d at 52; Costello v. Christus Santa Rosa Health Care Corp., 141 S.W.3d 245, According to Levine, if Timberlawn had fol- 249 (Tex.App.-San Antonio 2004, no pet.) lowed the standard of care, S.B. would have been (“[C]ausation is established by proof that the negli- housed on the girls side of the treatment unit gent act or omission was a substantial factor in “where she would not have been exposed to harm bringing about the harm and without which the and/or victimization from male patients.” The reharm would not have occurred.”). port also indicates that housing S.B. in a male unit “exposed her to harm which resulted in her self re-

Levine's report states the applicable standard of ported rape. Had [S.B.] been housed in a safe and care required Timberlawn to “provide individual- appropriate manner, given her propensity for sexual ized assessment, and adequate medical treatment in victimization, she would not have been placed in a the least restrictive environment and access to ad- male unit.” vocacy services.” Specifically, because S.B. had a history of past sexual victimization and “the risk The report also addresses how the breach of the factors of a co-morbid developmental disability and standard of care caused S.B.'s injury. Specifically, a psychiatric disorder, the standard of care required the report states housing S.B. Timberlawn to provide[ ] housing where [S.B.]

in the male unit exposed her to harm which resulcould not be accessed by unsupervised males.” The ted in her self reported rape. Had [S.B.] been report also states: “If [S.B.] needed to be housed on housed in a safe and appropriate manner, given a unit where males would be located, the standard her propensity for sexual victimization, she of care would require Timberlawn to provide a would not have been placed in a male unit. By room which could not be accessed by an unsuperbeing housed in a male unit it was foreseeable vised male.”

that [S.B.] would be exposed to and was at higher Levine stated Timberlawn breached the stand- risk for the exact self reported harm which she ard of care by failing to provide S.B. with individu- suffered which was the assault she reported by a FN4 alized assessment, adequate *214 medical treatment 16 year old male patient. in the least restrictive environment, and an environment and housing where she would be kept safe.

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281 S.W.3d 207 (Cite as: 281 S.W.3d 207)

FN4. Levine's report also states in part: thoughts. After being at home less than two [w]eeks she was readmitted to an-

Had Timberlawn followed the applicable other facility, Green Oaks where she had standard of care discussed above, and to restart with a new therapy program. not breached the standard of care, as discussed above, [S.B.] would have been We conclude Levine's report identified the speproperly evaluated, and properly housed cific conduct of Timberlawn called *215 into queson the girls side of the treatment Unit tion by S.B. and provided a sufficient basis for the she would have been in the least restrict- trial court to conclude the claim has merit. See ive environment, where she would not Palacios, 46 S.W.3d at 879. Therefore, the trial have been exposed to harm and/or vic- court did not abuse its discretion in denying the timization from male patients. Had Tim- motion to dismiss. We overrule Timberlawn's isberlawn carefully reviewed [S.B.'s] past sues concerning the adequacy of the expert report. medical, psychiatric and educational database and made an adequate current CONCLUSION evaluation, they would have identified Having rejected all of Timberlawn's issues, we the past history of sexual victimization affirm the trial court's order. and the risk factors of a co-morbid de-

Tex.App.–Dallas,2009.

velopmental disability and psychiatric UHS of Timberlawn, Inc. v. S.B. ex rel. A.B.

disorder which made [S.B.] more sus-

281 S.W.3d 207 ceptible to sexual victimization and which required an enhanced specific END OF DOCUMENT treatment and protection....

The Sexual Assault reported by [S.B.] resulted in a termination of her stay at Timberlawn, rape crises intervention, fear of pregnancy and due to deterioration of her mental state the eventual readmittance to another facility. As a direct and proximate cause of the improper housing and security provided, [S.B.] reported a sexual assault which stopped her treatment at Timberlawn and required her to be sent to Parkland Hospital for a rape exam. At the age of 13 she was prescribed and took the morning after pill to prevent a pregnancy. The records show that she developed a fear of getting pregnant or catching a disease. She was unable to complete her therapy program at Timberlawn and went home. She continued to miss school and the home therapist reported that she continued to be upset and had suicidal

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243 S.W.3d 165 (Cite as: 243 S.W.3d 165)

Code § 74.351(a), (r)(6).

Court of Appeals of Texas, [2] Health 198H 804 San Antonio.

Michael Fawzy WISSA, M.D., Appellant, 198H Health v. 198HV Malpractice, Negligence, or Breach of Mark VOOSEN, Karen Voosen, and Mary Eliza- Duty beth (“Emmy”) Voosen, Appellees. 198HV(G) Actions and Proceedings 198Hk804 k. Affidavits of Merit or Merit-

No. 04–07–00386–CV. orious Defense; Expert Affidavits. Most Cited Sept. 26, 2007. Cases In determining whether the expert report con-

Background: Patient brought action against doc- stitutes a good faith attempt to comply with Medictors and anesthesiologist for medical negligence, al- al Liability and Insurance Improvement Act, courts leging failure to properly diagnose and treat her look no further than the report itself, and while the wound infection resulting in unnecessary surgeries, report need not marshal all of the plaintiff's proof, it chronic infection, pain and suffering and impair- must include the expert's opinion on each of the ment to her ankle. The 45th Judicial District Court, elements identified in the Act: standard of care, Bexar County, Janet P. Littlejohn, J., denied anes- breach, and causation. V.T.C.A., Civil Practice & thesiologist's motion to dismiss, and he appealed. Remedies Code § 74.351(l).

Holding: The Court of Appeals, Phylis J. Speedlin, [3] Health 198H 804 J., held that doctor's expert report was adequate under Medical Liability and Insurance Improvement 198H Health Act. 198HV Malpractice, Negligence, or Breach of Duty Affirmed. 198HV(G) Actions and Proceedings 198Hk804 k. Affidavits of Merit or Merit-

West Headnotes orious Defense; Expert Affidavits. Most Cited [1] Health 198H 804 Cases Expert report under Medical Liability and In-

198H Health surance Improvement Act need not present evid-

198HV Malpractice, Negligence, or Breach of ence as if the plaintiff were actually litigating the Duty merits, but it must do more than merely state the 198HV(G) Actions and Proceedings expert's conclusions about the statutory require-

198Hk804 k. Affidavits of Merit or Merit- ments. V.T.C.A., Civil Practice & Remedies Code orious Defense; Expert Affidavits. Most Cited § 74.351(r)(6). Cases In order to comply with statutory requirements, [4] Appeal and Error 30 960(1)

expert report in medical malpractice action must 30 Appeal and Error both inform the defendant of the specific conduct 30XVI Review the plaintiff has called into question, and provide a 30XVI(H) Discretion of Lower Court basis for the trial court to conclude that the claims 30k960 Rulings on Motions Relating to have merit. V.T.C.A., Civil Practice & Remedies Pleadings

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243 S.W.3d 165 (Cite as: 243 S.W.3d 165)

30k960(1) k. In General. Most Cited inquiry at trial, or during a summary judgment pro-

Cases ceeding, it was simply not a determination contem-

Appellate courts review a trial court's determ- plated or required with respect to anesthesiologist's ination about the adequacy of an expert report un- motion to dismiss, challenging the adequacy of exder Medical Liability and Insurance Improvement pert report. V.T.C.A., Civil Practice & Remedies Act for abuse of discretion. V.T.C.A., Civil Prac- Code § 74.351(l). tice & Remedies Code § 74.351(r)(6).

[7] Health 198H 804 [5] Health 198H 804 198H Health 198H Health 198HV Malpractice, Negligence, or Breach of 198HV Malpractice, Negligence, or Breach of Duty Duty 198HV(G) Actions and Proceedings 198HV(G) Actions and Proceedings 198Hk804 k. Affidavits of Merit or Merit-

198Hk804 k. Affidavits of Merit or Merit- orious Defense; Expert Affidavits. Most Cited orious Defense; Expert Affidavits. Most Cited Cases Cases Under Medical Liability and Insurance Improvement Act, a qualified expert in a similar field Judgment 228 181(33) may testify as to the accepted standards of care if he can demonstrate within the expert report that he 228 Judgment possesses knowledge about the care or treatment 228V On Motion or Summary Proceeding delivered by the defendant and the diagnosis, care 228k181 Grounds for Summary Judgment or treatment of the condition involved in the claim.'

228k181(15) Particular Cases V.T.C.A., Civil Practice & Remedies Code § 228k181(33) k. Tort Cases in General.

74.402(b).

Most Cited Cases A motion to dismiss seeks to demonstrate that a [8] Health 198H 804 plaintiff has not satisfied the procedural requirements with respect to expert report under Medical 198H Health Liability and Insurance Improvement Act, while a 198HV Malpractice, Negligence, or Breach of motion for summary judgment seeks to demonstrate Duty that the substance of the claim lacks merit. 198HV(G) Actions and Proceedings V.T.C.A., Civil Practice & Remedies Code § 198Hk804 k. Affidavits of Merit or Merit- 74.351(r)(6). orious Defense; Expert Affidavits. Most Cited Cases [6] Health 198H 804 Doctor's expert report established that he was practicing health care in field of practice that in-

198H Health volved the same type of care or treatment as 198HV Malpractice, Negligence, or Breach of provided by anesthesiologist to patient, and further Duty established the necessary experience and know-

198HV(G) Actions and Proceedings ledge to render expert opinion, and thus, the expert 198Hk804 k. Affidavits of Merit or Meritreport was adequate under Medical Liability and Inorious Defense; Expert Affidavits. Most Cited surance Improvement Act; expert report set forth Cases applicable standards of care required of a licensed While anesthesiologist's challenge to the scope physician, such as anesthesiologist, when completof his legal duty to patient might indeed be a proper ing a history and physical examination on pre-

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243 S.W.3d 165 (Cite as: 243 S.W.3d 165)

operative patient and when serving as supervising the patient's required history and physical examinaphysician for podiatrist conducting a surgical pro- tion. The history and physical form that Dr. Wissa cedure. V.T.C.A., Civil Practice & Remedies Code completed listed him as “Examining M.D. for Podi-

FN1 § 74.351(l), (r)(6). atry.” Dr. Wissa did not treat Emmy again after her second surgery.

*166 Diana L. Faust, R. Brent Cooper, Michelle E. Robberson, Cooper & Scully, P.C., Dallas, TX, FN1. A podiatrist is licensed to practice Karen R. Roberts, Rosemary L. Hollan, Hollan Law podiatry. TEX. OCC.CODE ANN. § Firm, P.C., San Antonio, TX, for Appellant. 202.001(3)(A) (Vernon 2004). “Podiatry”

means the treatment of or offer to treat any Jon T. Powell, The Powell Law Firm, Brant S. Mit- disease, disorder, physical injury, deformtler , M.D., J.D., San Antonio, TX, for Appellees. ity, or ailment of the human foot by any system or method. Id. § 202.001(a)(4)

*167 Sitting: CATHERINE STONE, Justice, (Vernon 2004). PHYLIS J. SPEEDLIN, Justice, STEVEN C. HIL-

Emmy developed complications at the surgical BIG, Justice.

site. She and her parents ultimately sued five defendants , including Dr. Wissa, for medical negli-

OPINION gence, alleging failure to properly diagnose and Opinion by PHYLIS J. SPEEDLIN, Justice. treat her wound infection resulting in unnecessary In this interlocutory appeal, we are asked to de- surgeries, chronic infection, pain and suffering and termine if the trial court abused its discretion when impairment to her ankle. The Voosens timely it denied Dr. Michael Wissa's motion to dismiss the served the expert report of Marvin Brown, M.D. Dr. underlying medical malpractice suit against him. Wissa objected to Dr. Brown's report as it pertained Finding no error, we affirm the trial court's order. to him and filed a motion to dismiss under section 74.351(b) of the Texas Civil Practice and Remedies FACTUAL AND PROCEDURAL BACK- Code. TEX. CIV. PRAC. & REM.CODE ANN. § GROUND 74.351(b) (Vernon Supp.2006). The trial court The facts relevant to this appeal are essentially denied Dr. Wissa's motion and this interlocutory undisputed. Mary Elizabeth Voosen (“Emmy”), a appeal was perfected. 16 year old high school student, athlete, and cheerleader sought medical evaluation and treatment for In one issue, Dr. Wissa maintains the trial court chronic right ankle pain. Initially, Marque Allen, abused its discretion in denying his motion to dis- D.P.M., a podiatrist employed by Sports Medicine miss the medical malpractice suit against him. Dr. Associates of San Antonio, evaluated Emmy and Wissa first argues the trial court failed to determine determined that her ankle was unstable due to a lig- as a matter of law that Dr. Wissa owed no legal FN2 ament injury. To correct the problem, Dr. Allen duty to Emmy as a podiatrist or surgeon. Speperformed a surgical procedure on Emmy's right cifically, Dr. Wissa maintains the standard of care ankle on October 29, 2004. Subsequently, on set forth in Dr. Brown's report does not apply to November 29, 2004, Dr. Allen saw Emmy in follow him in his limited role as an anesthesiologist. In a up and scheduled a second surgery on Emmy's related argument, Dr. Wissa also maintains Dr. ankle for the next day. Immediately prior to her Brown's expert report fails to establish that he is second surgery, Emmy met with the anesthesiolo- qualified to render an opinion about the standards gist for the procedure, Dr. Michael Wissa. Dr. of care applicable to Dr. Wissa in his role as an an- Wissa performed a pre-anesthesia evaluation prior esthesiologist.*168 In response, the Voosens conto administering anesthesia and also documented tend Dr. Brown's report meets the statutory require-

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243 S.W.3d 165 (Cite as: 243 S.W.3d 165)

ments necessary for an expert report under section pert report in Subsection (r)(6).” TEX. CIV. PRAC. 74.351(b) of the Texas Civil Practice and Remedies & REM.CODE ANN. § 74.351(l ) (Vernon Code. TEX. CIV. PRAC. & REM.CODE ANN. § Supp.2006). In determining whether the expert re- 74.351(b). port constitutes a good faith attempt to comply with the statute, we look no further than the report itself.

FN2. Dr. Wissa also argues that “the trial See Palacios, 46 S.W.3d at 878 (the only informacourt erroneously relied on expert testi- tion relevant to the inquiry is within “the four mony about duty to impliedly find Dr. corners” of the report). While the report need not Wissa owed the duties of a podiatrist or marshal all of the plaintiff's proof, it must include surgeon even though Dr. Wissa only the expert's opinion on each of the elements identiformed a physician-patient relationship for fied in the statute: standard of care, breach, and the purposes of administering anesthesia to causation. Id. at 878–79; Tovar, 185 S.W.3d at 68. Emmy....” The report need not present evidence as if the plaintiff were actually litigating the merits, but it APPLICABLE LAW AND STANDARD OF REmust do more than merely state the expert's conclu-

VIEW sions about the statutory requirements. Palacios, 46 [1] In a medical malpractice lawsuit such as the S.W.3d at 879. In addition to expressing a fair sumone before us, a claimant must timely provide each mary of the expert's opinions on the three elements defendant health care provider an expert report with of an expert report, the report must be rendered by the expert's curriculum vitae. TEX. CIV. PRAC. & an expert qualified to testify under section 74.401.

REM.CODE ANN. § 74.351(a) (Vernon TEX. CIV. PRAC. & REM.CODE ANN. § 74.401 Supp.2006). The Chapter 74 expert report must (Vernon 2005). We review a trial court's determinaprovide “a fair summary of the expert's opinions as tion about the adequacy of an expert report under of the date of the report regarding applicable standan abuse of discretion standard. Bowie Mem'l Hosp.

ards of care, the manner in which the care rendered v. Wright, 79 S.W.3d 48, 52 (Tex.2002). A trial by the physician or health care provider failed to court abuses its discretion when it acts in an arbitmeet the standards, and the causal relationship rary or unreasonable manner without reference to between that failure and the injury, harm, or damany guiding rules or principles. Id.

ages claimed.” TEX. CIV. PRAC. & REM.CODE ANN. § 74.351(r)(6) (Vernon Supp.2006). In order DISCUSSION to comply with the statutory requirements, the re- [5] Dr. Wissa first argues the trial court erred port must both inform the defendant of the specific in failing to properly analyze and apply the law reconduct the plaintiff has called into question, and garding legal duty. He maintains his duty to Emmy provide a basis for the trial court to conclude that was limited because he was only engaged to the claims have merit. Am. Transitional Care Ctrs. provide anesthesiology services; therefore, the trial of Tex., Inc. v. Palacios, 46 S.W.3d 873, 879 court should have made a threshold determination (Tex.2001); Tovar v. Methodist Healthcare Sys. of that Dr. Wissa owed no legal duty to Emmy as a San Antonio, Ltd., L.L.P., 185 S.W.3d 65, 67–68 podiatrist or surgeon. Dr. Wissa cites several cases (Tex.App.-San Antonio 2005, pet. denied). for the legal proposition that the existence of duty in a medical negligence case is a *169 question of [2][3][4] If the affected physician or health law the trial court must make before it considers the care provider challenges the report's adequacy by a applicable standard of care. See, e.g., Praesel v.

motion to dismiss, the trial court must grant the mo-

Johnson, 967 S.W.2d 391, 394 (Tex.1998)

tion “only if it appears to the court, after hearing, (threshold question for court is whether treating that the report does not represent an objective good physicians have legal duty to third parties to warn faith effort to comply with the definition of an ex-

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243 S.W.3d 165 (Cite as: 243 S.W.3d 165)

epileptic patients not to drive); St. John v. Pope, surgery, filled out her history and physical form, 901 S.W.2d 420, 423 (Tex.1995) (duty of on-call and provided the anesthesia for her surgery. Inphysician consulted over telephone must be decided stead, Dr. Wissa disputes that his duty to Emmy exbefore issue of standard of care). None of the cases tended beyond his role in providing anesthesia, or cited by Dr. Wissa, however, involve a Chapter 74 that by completing a history and physical form priexpert report. Instead, each case cited by Dr. Wissa or to the procedure he assumed “full responsibility arises in the context of a summary judgment pro- for Dr. Allen's conduct and all aspects of Emmy's ceeding, which we find readily distinguishable from care before, during and after the procedure.” He ara motion to dismiss filed under section 74.351. gues that the trial court should have determined, as Compare TEX. CIV. PRAC. & REM.CODE ANN. a matter of law, that he did not have a duty to § 74.351(r)(6) (expert report must address each ele- Emmy outside the administration of anesthesia, ment identified in the statute-applicable standard of and, accordingly, should have ignored Dr. Brown's care, breach and causal relationship) with TEX.R. report and criticisms to the contrary. As noted by CIV. P. 166a(c) (summary judgment is proper the Supreme Court in Praesel, in deciding whether where no genuine issue exists as to any material a legal duty exists, among other factors, the court fact). While the purposes of a motion to dismiss un- “weigh[s] the risk, foreseeability and likelihood of der section 74.351 and a motion for summary judg- injury against the social utility of the actor's conment are similar in some respects, their scope is duct, the magnitude of the burden of guarding clearly different. See Farishta v. Tenet Healthsys- against the injury and the consequences of placing tem Hospitals Dallas, Inc., 224 S.W.3d 448, 453 that burden on the defendant.” Praesel, 967 S.W.2d (Tex.App.-Fort Worth 2007, no pet.) (noting that at 397; Graff v. Beard, 858 S.W.2d 918, 920 both seek to eliminate frivolous claims). A motion (Tex.1993) (decision to impose common law duty to dismiss seeks to demonstrate that a plaintiff has involves complex considerations of public policy not satisfied the procedural requirements of and their application to the particular facts of case). Chapter 74, while a motion for summary judgment While Dr. Wissa's challenge to the scope of his legseeks to demonstrate that the substance of the claim al duty to Emmy may indeed be a proper inquiry at lacks merit. See Smalling v. Gardner, 203 S.W.3d trial, or during a summary judgment proceeding, it 354, 367 (Tex.App.-Houston [14th Dist.] 2005, pet. *170 is simply not a determination contemplated or denied); see also Apodaca v. Russo, 228 S.W.3d required under the statutory language of Chapter 252, 255 (Tex.App.-Austin 2007, no pet.) (expert 74. See TEX. CIV. PRAC. & REM.CODE ANN. § report is not required to prove defendant's liability, 74.351(l ) (“[a] court shall grant a motion challenbut rather to provide notice of what conduct forms ging the adequacy of an expert report only if it apthe basis for plaintiff's complaints); see also Pala- pears to the court, after hearing, that the report does cios, 46 S.W.3d at 879 (“[t]o avoid dismissal, a not represent an objective good faith effort to complaintiff need not present evidence in the report as ply with the definition of an expert report....”). if it were actually litigating the merits. The report can be informal in that the information in the report [7] Dr. Wissa also challenges Dr. Brown's does not have to meet the same requirements as the qualifications to render an opinion on the standards evidence offered in a summary-judgment proceed- of care applicable to Dr. Wissa in his role as the aning or at trial”). esthesiologist for Emmy's surgery. Dr. Wissa points out that Dr. Brown does not recite any education, [6] Furthermore, Dr. Wissa does not dispute training or experience in the administration of anesthat he had a physician-patient relationship with thesia during a podiatric surgical procedure for Emmy, and therefore, owed some duty to Emmy. debridement and wound closure. We respectfully He admits he physically examined her prior to her disagree that only an expert in the same specialty

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243 S.W.3d 165 (Cite as: 243 S.W.3d 165)

field of practice can qualify as an expert for pur- Schmidt and Dr. Michael F. Wissa and is poses of a Chapter 74 report. See TEX. CIV. over eighteen pages in length. It details Dr. PRAC. & REM.CODE ANN. § 74.402(b) (Vernon Brown's credentials, documents reviewed, 2005). According to the statute, in order to testify and the patient's history, and devotes over about the accepted standards of care, a person must: five pages to Dr. Wissa's care of Emmy. (1) be practicing in “a field of practice that involves the same type of care or treatment as that delivered [I] am fully qualified to render opinions about the by the defendant health care provider;” (2) possess standard of care, breaches of the standard of care, “knowledge of accepted standards of care ... for the and causation with respect to the damages caused diagnosis, care, or treatment of the illness, injury, by those breaches to Ms. Voosen by virtue of the or condition involved in the claim;” and (3) be fact that the process of pre-operative evaluation “qualified on the basis of training or experience to as ‘Examining M.D. for Podiatry’ is the same for offer an expert opinion regarding those accepted orthopedic surgeons and any other medical doctor standards of health care.” Id. Accordingly, a quali- of any specialty who takes on that responsibility fied expert in a similar field may testify as to the or who fails to take on that responsibility. The accepted standards of care if he can demonstrate specific skills to perform a competent History within the report that he possesses knowledge about and Physical *171 Examination and Assessment the “care or treatment ... delivered by the defend- and Plan are taught to all medical students in all ant” and “the diagnosis, care or treatment of the ... specialty areas and contain common elements for condition involved in the claim.” Id. all specialties, whether orthopedic surgery or anesthesiology .

[8] Turning to the report, it is undisputed that The report further details ten standards of care Dr. Brown's report does not criticize Dr. Wissa's “for Dr. Michael Wissa in treating patients with actual administration of anesthesia, but instead, sets conditions like or similar to those experienced by forth the applicable standards of care required of a Emmy Vossen” and the manner in which the care licensed physician such as Dr. Wissa when com- provided by Dr. Wissa failed to meet the enumerpleting a history and physical examination on a pre- ated standards. For example, Dr. Brown opines operative patient like Emmy and when serving as a that when he performed a physical examination supervising physician for a podiatrist conducting a for purposes of filling out the history and physicsurgical procedure like the procedure done on al form, Dr. Wissa was expected, as a medical Emmy. Additionally, it is undisputed that the report doctor, to diagnose a wound infection and to readequately sets forth Dr. Brown's credentials and cognize that it required hospitalization and vast experience as a board certified orthopedic sur- “urgent consultation with other specialists.” geon and his familiarity with lower leg, foot and FN3 Based on the record before us, Dr. Brown's reankle problems, including wound infection. Dr. Brown's report states that he knows the accepted port establishes that he is practicing health care in a standard of care required of Dr. Wissa and details field of practice that involves the same type of care the manner in which he is familiar with the accep- or treatment as provided by Dr. Wissa to Emmy, ted standards of care for completing pre-operative and further establishes the necessary experience history and physical examinations and serving as a and knowledge to render an expert opinion. Acsupervising physician for a podiatrist. For example, cordingly, the trial court did not abuse its discretion Dr. Brown affirmatively states: when it denied Dr. Wissa's motion to dismiss. We affirm the trial court's order.

FN3. Dr. Brown's report dated February 19, 2007 is directed at both Dr. David R. Tex.App.–San Antonio,2007.

Wissa v. Voosen

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243 S.W.3d 165 (Cite as: 243 S.W.3d 165)

243 S.W.3d 165

END OF DOCUMENT

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