REVERSE and REMAND; and Opinion Filed August 27, 2019.
In The Court of Appeals Fifth District of Texas at Dallas No. 05-18-00928-CV
VICTORIA KERR, Appellant V. PIRF OPERATIONS, LLC DBA ACCEL REHABILITATION HOSPITAL OF PLANO AND JANE DOE, Appellees
On Appeal from the 219th Judicial District Court Collin County, Texas Trial Court Cause No. 219-04279-2017
MEMORANDUM OPINION Before Justices Myers, Molberg, and Carlyle Opinion by Justice Molberg
Victoria Kerr appeals the trial court’s order dismissing with prejudice her health care
liability claims against PIRF Operations, LLC d/b/a Accel Rehabilitation Hospital of Plano (Accel)
and Jane Doe. In four issues, Kerr contends the trial court erred by dismissing her claims without
granting her a thirty-day extension of time to cure any deficiencies in the medical expert report she
served on Appellees pursuant to the Texas Medical Liability Act (TMLA), TEX. CIV. PRAC. &
REM. CODE ANN. §§ 74.001–.507, arguing: (1) Karis Schirmer, RN, BSN, was qualified to testify
to the applicable standard of care for nurses and nurse assistants; (2) the expert report submitted
by Kerr represented a good faith effort to comply with the statutory requirements of the TMLA;
(3) the trial court should have granted Kerr a thirty-day extension of time to cure any deficiencies
–1– in her expert report; and (4) the trial court’s failure to file findings of fact and conclusions of law
is presumed harmful.1
For the reasons that follow, we conclude Kerr’s chapter 74 expert report represented a good
faith effort to comply with the statutory requirements of the TMLA, and the trial court should have
granted Kerr a thirty-day extension of time to cure any deficiencies in her expert report.
Accordingly, we reverse the trial court’s order dismissing Kerr’s claims with prejudice, and we
remand this cause to the trial court with the instruction to grant Kerr a thirty-day extension of time
to afford her the opportunity to cure any deficiencies in her chapter 74 expert report, and for further
proceedings consistent with this opinion.
BACKGROUND
Factual Background
The following facts are drawn from the allegations in Kerr’s petition. Kerr filed this lawsuit
against Appellees after she fell in a shower at Accel, sustaining severe injuries to her lumbar spine,
pelvis, knees, toes, and jaw. Kerr sustained these injuries after her admission to and while under
the care of Accel.
Kerr was admitted to Accel on July 7, 2015, for inpatient rehabilitation to regain “mobility
and Activities of Daily Living.” Upon her admission, Accel assessed Kerr as “a moderate fall
risk.” Accordingly, Accel employed fall precautions for Kerr’s stay, including assistance during
bathing. Four days later, on July 11, Kerr was assessed as “an extreme fall risk.”2 Accel assigned
a hospital staff person (Jane Doe) to assist Kerr while she showered. Later that day, Jane Doe left
Kerr alone while Kerr was showering. While unattended, Kerr fell and sustained a compression
1 The trial court, in fact, did make findings of fact and conclusions of law. 2 The expert report of Karis Schirmer, RN, BSN, reflected that Accel’s medical chart on Kerr indicated that, beginning on July 7 and thereafter, every post-admission nursing assessment designated Kerr as a “high fall risk.”
–2– fracture of her L1 vertebrae, a torn meniscus in her right knee, gashes on and nerve damage to both
of her big toes, and a broken jaw.
The petition alleges Appellees were negligent and grossly negligent by leaving Kerr
unattended in the shower, which resulted in the fall. The petition also alleges Accel was negligent
and grossly negligent in failing to adequately “screen, train, and supervise Jane Doe.”
The petition alleges that, as a direct and proximate result of Appellees’ negligence and
gross negligence, Kerr sustained specified injuries to her neck, back, pelvis, knees, toes, and jaw.
The petition seeks damages for reasonable and necessary past medical care and expenses, past and
future physical pain and suffering, and past and future mental pain and anguish. Alleging that
Appellees’ acts and omissions constituted gross negligence, as they were committed knowingly,
intentionally, and recklessly, the petition seeks exemplary damages as permitted under section
41.003(a)(3) of the Texas Civil Practice and Remedies Code.
Procedural History
Kerr filed her petition on September 5, 2017. Accel filed an answer on September 27,
2017. Because this lawsuit involves a health care liability claim, it is subject to the requirements
of chapter 74 of the Texas Civil Practice and Remedies Code. See TEX. CIV. PRAC. & REM. CODE
ANN. §§ 74.001–.507. In accordance with chapter 74, Kerr served on Accel the expert report and
curriculum vitae of Karis Schirmer, RN, BSN (Schirmer Report), on February 11, 2018.3 Kerr did
not serve an expert report from a physician. On March 2, 2018, Accel filed “Objections to
Plaintiff’s Inadequate Chapter 74 Expert Report and Motion to Dismiss” (motion to dismiss). In
its motion to dismiss, Accel argued:
The Schirmer Report failed to identify any injuries sustained by Kerr.
3 In its motion to dismiss, Accel stated that it agreed to a thirty-day extension of time for Kerr to file a chapter 74 expert report.
–3– The Schirmer Report failed to identify the standard of care applicable to a rehabilitation hospital.
The Schirmer Report failed to discuss the “nursing standard of care” with specificity. By way of example, Appellees argued, “the Schirmer Report does not attempt to explain what it means for Defendant to be ‘by patient’s side.’”
The Schirmer Report failed to sufficiently describe how Appellees breached the standard of care.
The Schirmer Report failed to discuss how any breach in the standard of care proximately caused Kerr’s injuries.
Schirmer was unqualified to opine as to causation because she is a nurse practitioner and not a physician.
In her March 26, 2018 reply to Accel’s motion to dismiss, Kerr argued that she submitted
the Schirmer Report in good faith, but, in the event the trial court deemed her expert report
deficient, Kerr requested a thirty-day extension of time to cure the deficiency under section
74.351(c). After a hearing on Accel’s motion to dismiss, the trial court sustained Accel’s
objections and granted Accel’s motion to dismiss, dismissing the case with prejudice by order
dated May 30, 2018.
THE TEXAS MEDICAL LIABILITY ACT
Chapter 74’s Expert Report Requirement
Chapter 74 of the TMLA requires a plaintiff pursuing a health care liability claim to serve
an expert report on each physician or health care provider against whom a health care liability
claim is asserted no later than 120 days after the date each defendant’s answer is filed. TEX. CIV.
PRAC. & REM. CODE ANN. § 74.351(a). The purpose of the expert report requirement is “to
eliminate frivolous health care liability claims” and “preserve those of potential merit.” Samlowski
v. Wooten, 332 S.W.3d 404, 410 (Tex. 2011) (Medina, J.); see also Scoresby v. Santillan, 346
S.W.3d 546, 554 (Tex. 2011).
–4– “Expert report” is defined as:
[A] written report by an expert that provides a fair summary of the expert’s opinions as of the date of the report regarding applicable standards of care, the manner in which the care rendered by the physician or health care provider failed to meet the standards, and the causal relationship between that failure and the injury, harm, or damages claimed.
TEX. CIV. PRAC. & REM. CODE ANN. § 74.351(r)(6). A report meets the requirements of chapter
74 if it represents an “objective good faith effort to comply with” the statutory definition. Id.
§ 74.351(l). To constitute a “good faith effort,” the expert report must: (1) “inform the defendant
of the specific conduct” complained of, and (2) “provide a basis for the trial court to conclude that
the claims have merit.” Scoresby, 346 S.W.3d at 555–56 (quoting Am. Transitional Care Ctrs. of
Tex., Inc. v. Palacios, 46 S.W.3d 873, 879 (Tex. 2001)).
The trial court may grant a motion challenging the adequacy of an expert report only if the
report does not accomplish these two goals. Scoresby, 346 S.W.3d at 555–57. To that end, the
report must include a summary of the expert’s opinion on the three elements required by chapter
74: (1) the applicable standard of care, (2) the manner in which the defendant failed to meet the
standard of care, and (3) the causal relationship between the defendant’s failure to meet the
standard of care and the plaintiff’s injury, harm, or damages. TEX. CIV. PRAC. & REM. CODE ANN.
§ 74.351(r)(6).
Trial Courts Must Be Lenient In Granting A Thirty-Day Extension of Time to Cure a Deficient Expert Report
Because the purpose of the expert report requirement is to “deter baseless claims, not to
block earnest ones,” Certified EMS, Inc. v. Potts, 392 S.W.3d 625, 631 (Tex. 2013), the TMLA
provides an opportunity for a plaintiff to cure any deficiencies in an expert report: “[If] elements
of the report are found deficient, the court may grant one 30-day extension to the claimant in order
to cure the deficiency.” TEX. CIV. PRAC. & REM. CODE ANN. § 74.351(c). While section
–5– 74.351(c)’s use of the word “may” indicates the trial court has some discretion in granting an
extension to cure any deficiencies, the supreme court has circumscribed that discretion.
Recognizing that the TMLA provides no guidance on how the trial court may exercise its
discretion, the supreme court requires the trial court’s decision to grant or deny a request for an
extension of time to be governed by the “broader” and “overriding” purpose of the TMLA: to
eliminate frivolous claims and preserve meritorious ones. See Scoresby, 346 S.W.3d at 554;
Samlowski, 332 S.W.3d at 410–11.
Implicitly acknowledging the Texas Constitution’s open courts provision, TEX. CONST. art.
I, § 13 (persons bringing common law claims will not be unreasonably denied court access), in
Scoresby, the supreme court cautioned, “It must be remembered that ‘[t]here are constitutional
limitations upon the power of courts [to] dismiss an action without affording a party the
opportunity for a hearing on the merits of his cause[,]’ and those limitations constrain the
Legislature no less in requiring dismissal.” 346 S.W.3d at 554 (quoting TransAmerican Nat. Gas
Corp. v. Powell, 811 S.W.2d 913, 918 (Tex. 1991)). In the same vein, Samlowski emphasizes that
while the legislature enacted the TMLA, in part, to reduce frivolous lawsuits, it “intended to do so
in a manner that will not unduly restrict a claimant’s rights.” 332 S.W.3d at 416 (Guzman, J.,
concurring) (quoting Leland v. Brandel, 257 S.W.3d 204, 208 (Tex. 2008)). Consequently, the
supreme court has admonished trial courts to be “lenient” in granting an extension of time to cure
a deficient chapter 74 expert report. Scoresby, 346 S.W.3d at 554 (the thirty-day “minimal delay
before a report’s sufficiency may again be challenged and the case dismissed does not impair the
purpose of the [TMLA]”).
Issued merely four months after Samlowski, Scoresby’s admonishment for leniency
underscores the majority court’s directive in Samlowski that trial courts “should [g]rant an
–6– extension when a deficient expert report can readily be cured and deny the extension when it
cannot.” Samlowski, 332 S.W.3d at 411 (“a deficient report does not invariably require dismissal
of the underlying claim”); id. at 416 (Guzman, J., concurring), 419 (Wainwright, J., concurring);
see also Scoresby, 346 S.W.3d at 554 (“when an expert report can be cured in thirty days, the claim
is not frivolous”). Even more to the point, the majority court in Samlowski prescribes that “trial
courts should err on the side of granting claimants’ extensions to show the merits of their claims.”
Id. at 411–12 (Medina, J.), 416 (Guzman, J., concurring); see also Scoresby, 346 S.W.3d at 549
(adopting position taken by a plurality of the court in Samlowski). “The right answer in many
cases will be for the trial court to grant one thirty-day extension upon timely request and be done
with it.” Samlowski, 332 S.W.3d at 411–12. As stated in Justice Guzman’s concurring opinion in
Samlowski, “The price of preserving a meritorious claim will be thirty days, compared to a much
higher price of dismissal.” Id. at 416.
A Deficient But Curable Expert Report Requires the Trial Court to Grant an Extension of Time to Cure
Because Samlowski limits the discretion afforded to the trial court in the matter of granting
an extension of time under section 74.351(c),4 we must “distinguish between deficient reports that
demonstrate merit and deficient reports that do not.” Id. at 412. The decision on whether a plaintiff
may cure a chapter 74 expert report may hinge on what best serves the “interests of justice.” Id.
In Samlowski, the Texas Supreme Court affirmed the appellate court’s conclusion that the trial
court abused its discretion by denying a request for an extension of time to cure the expert report
and the appellate court’s remand of the case to the trial court with the instruction to grant a thirty-
day extension of time to cure. There was no majority opinion, because although a majority of the
4 A majority of the court in Samlowski agreed that a trial court’s discretion under section 74.351(c) is not unfettered. 332 S.W.3d at 409 (Medina, J.), 414 (Guzman, J., concurring).
–7– court agreed the court of appeals correctly remanded the cause with an order to permit an extension
of time to cure, there was no majority reasoning for why remand was proper.
In Samlowski, the supreme court issued its judgment and four corresponding opinions. The
plurality and concurring opinions reiterated chapter 74’s purpose of preserving potentially
meritorious claims. To that end, a majority of the Samlowski court instructed, “[T]rial courts
should err on the side of granting claimants’ extensions to show the merits of their claims.” 332
S.W.3d at 411–12; id. at 416 (Guzman, J., concurring) (“In order to preserve the highest number
of meritorious claims, trial courts should err on the side of granting claimants’ extensions to show
the merits of their claims.”). While a majority of the court did not agree on the criteria a trial court
should use in deciding whether to grant an extension of time under section 74.351(c), a majority
did agree that a trial court must grant an extension of time to cure when the plaintiff demonstrates
or the record establishes that the deficiencies in the expert report could be cured. Id. at 411
(Medina, J.), 415–16 (Guzman, J., concurring). The supreme court hammered home this
requirement four months later in Scoresby, stating that trial courts “must” grant a thirty-day
extension of time “if deficiencies in an expert report can be cured within the thirty-day period.”
376 S.W.3d at 554.
Therefore, the curability of Kerr’s expert report is our paramount concern in determining
whether the trial court abused its discretion in this case by denying her request for an extension of
time under section 74.351(c). Id. Our ultimate goal in resolving this question is to serve the
interests of justice and preserve Kerr’s health care liability claims if we see any potential merit.
Samlowski, 332 S.W.3d at 410–12; see also Scoresby, 346 S.W.3d at 558 (claimant must be
assured of “a fair opportunity to cure any deficiencies and demonstrate that his claim is not
frivolous and should be determined on the merits.”).
–8– ANALYSIS
Standard of Review
We review a trial court’s denial of a request for an extension of time to cure a deficient
chapter 74 expert report for an abuse of discretion. Biggs v. Baylor Univ. Med. Ctr., 336 S.W.3d
854, 859 (Tex. App.—Dallas 2011, pet. denied). A trial court abuses its discretion by denying a
section 74.351(c) request for an extension of time if the claimant demonstrates or the record
establishes that the defects in the report could be cured. Id.
The Schirmer Report
In her first issue, Kerr contends Schirmer is an expert qualified to testify to a departure
from the standard of care applicable to nurses and nursing assistants under section 74.402(b). TEX.
CIV. PRAC. & REM. CODE ANN. § 74.402(b). In her second issue, Kerr contends the Schirmer
Report represented a good faith effort to comply with section 74.351(r)(6) by informing Appellees
of the specific conduct subject of Kerr’s claims and by providing a basis for the trial court to
conclude Kerr’s claims have merit. See id.
In the curriculum vitae attached to her expert report, Schirmer stated her qualifications,
which include staff positions as a nurse practitioner, various supervisory positions in hospitals and
medical care and emergency facilities, supervising medical staff, as well as serving as a director
of several departments in hospitals and medical care and emergency facilities. In her expert report,
Schirmer indicates the opinions expressed in her report are based on her review of Kerr’s medical
chart from Accel.
The Schirmer Report opined on all three required elements of an adequate expert report
under chapter 74: the standard of care Accel and its staff owed to Kerr, the manner in which Accel
and its staff breached that standard of care, and how the breach caused Kerr’s injuries.
Specifically, the Schirmer Report identified and described Accel’s assessments of Kerr’s pre-
–9– admission condition and Kerr’s specific care and support needs while at Accel. The Schirmer
Report also chronicled daily medical notes made by Accel’s nurses, physical therapists, and a
physician, all of which warned Accel’s staff that Kerr not only was at “high risk” of falling, but
also that she was, in fact, “frequent[ly] falling.” These medical notes alerted Accel’s staff that
Kerr required continuous and unabated assistance with all acts of daily living and ambulation,
including sitting and standing. The Schirmer Report identified the deficiencies in Accel’s care of
Kerr, and it generally stated that Accel’s acts and omissions caused Kerr’s injuries.
The Schirmer Report described Accel’s July 6, 2015 pre-admission screening records,
which documented that Kerr suffered from multiple sclerosis; she “was having frequent falls”; and
she “required 24/7 nursing care” for “ambulation” and the activities of daily living, including
“bowel and bladder management, cognition, communication, disease management, medication
management, ‘providing a safe environment,’ and ‘transfers.’” Upon her admission to Accel on
July 7, 2015, a nursing evaluation assessed Kerr as a moderate fall risk under the “Morse Fall
Scale.”5
A nursing assessment later that day, however, re-assessed Kerr as a “high fall risk.”
Schirmer’s review of Accel’s medical records showed that, “Every subsequent nursing assessment
beginning on 07/07/15 7 pm to 7 am shift rates [Kerr] as a high fall risk.” Accel’s July 8, 2015
“History and Physical” records “noted again [that Kerr] was having frequent falls and noted she
had ‘deficits of endurance, balance, locomotion, safety awareness, transfer control, and self-care.’”
A physician evaluation on the same day stated Kerr “requires 24/7 Rehabilitation nursing for
assisting with ambulation and transfer, assisting with all activities of daily living, assisting with
ambulation and transfer.” Physical therapy notes on July 9, 2015 stated Kerr “is requiring constant
5 The Schirmer Report indicated a copy of the Morse Fall Scale was attached to the report.
–10– checks for safety as she has poor safety awareness.” Physical therapy notes on the following day,
July 10, stated Kerr “is now requiring maximum assistance to sit or stand.”
The Schirmer Report provided the applicable standard of care:
[Kerr] was known and well documented to be a high fall risk. The nursing standard of care for a patient with generalized weakness from Multiple Sclerosis and frequent falls would have to be in attendance at their side to ensure patient safety.
The Schirmer Report stated how Accel and its employees breached the standard of care:
“On 7/11/15 . . . a certified nursing assistant aided [Kerr] to the shower and left her without
assistance at which time she fell sustaining injuries.” The Schirmer Report then attempted to
explain how Accel’s breach of the standard of care caused Kerr’s injuries: “[Kerr] being left alone
in the shower and known to be a high fall risk is directly related to the fall and would fall outside
of a basic standard of care.”
Schirmer Was Qualified to Opine On the Standard of Care Owed By Nurses and Nurse Assistants
In her first issue, Kerr contends Schirmer is an expert qualified under section 74.402(b) to
opine on the standard of care applicable to nurses and nursing assistants and on how Accel’s
nursing staff breached the duty of care. TEX. CIV. PRAC. & REM. CODE ANN. § 74.402(b).
Specifically, Kerr argues that, as a registered nurse with a bachelor of science degree in nursing
and thirty-five years of nursing experience—including in staffing, supervising, and
administration—Schirmer “is more than qualified to render an opinion as to whether leaving a
patient identified as a high fall risk alone in a shower deviates from the standard of care for nurses
and nursing assistants.”
In a suit involving a health care liability claim against a health care provider, a person may
qualify as an expert witness on the issue of whether the health care provider departed from accepted
standards of care only if the person:
–11– (1) Is practicing health care in a field of practice that involves the same type of care or treatment as that delivered by the defendant health care provider, if the defendant health care provider is an individual, at the time the testimony is given or was practicing that type of health care at the time the claim arose;
(2) Has knowledge of accepted standards of care for health care providers for the diagnosis, care, or treatment of the illness, injury, or condition involved in the claim; and
(3) Is qualified on the basis of training or experience to offer an expert opinion regarding those accepted standards of health care.
TEX. CIV. PRAC. & REM. CODE ANN. § 74.402(b)(1)–(3).
An expert who gives an opinion on causation, however, must be a licensed physician and
must be otherwise qualified to give an opinion on the causal relationship under the Texas Rules of
Evidence. Id. § 74.403(a). An expert witness may be qualified to opine on one issue but not on
another. Id. § 74.351(i); In re Buster, 275 S.W.3d 475, 477 (Tex. 2008). Significantly, “[a] report
by an unqualified expert will sometimes (but not always) reflect a good-faith effort sufficient to
justify a 30-day extension.” Id.
Schirmer’s curriculum vitae demonstrates she is a registered nurse holding both an
Associate of Science degree in nursing and a Bachelor of Science degree in nursing. Schirmer has
worked as a nurse and nursing supervisor in a number of medical facilities, including Metroplex
PACU and ICU, Texoma Medical Center, Medical Center McKinney, Texas Health Resources
Intensive Care Unit (supervisor), and Wilson N. Jones Hospital Medical Intensive Care Unit
(supervisor). Schirmer was Director of the Methodist Medical Surgical Unit and Emergency,
where, among other duties, she was responsible for maintaining compliance with standards
promulgated by the Joint Commission on Accreditation of Healthcare Organizations and Nursing
Standards of Care. As Director of Acute Care at Community Medical Center Sherman, Schirmer
was responsible for, among other things, managing, scheduling, and evaluating staff. We conclude
Schirmer was qualified to opine on the first two elements of a chapter 74 expert report—the
–12– standard of care owed by Accel’s nurses and nurse assistants and their breach of the standard of
care.
Although Schirmer was not qualified to opine on causation under chapter 74 because she
is not a physician, that fact does not render her report otherwise incompetent as to the other
requisite elements for a chapter 74 expert report. The Schirmer Report admittedly is deficient as
to the causation element, but the deficiency is curable. Kerr only need retain a qualified physician
to opine that Kerr fell because she was not properly monitored and assisted while she showered,
and that her fall caused the specific injuries alleged in her complaint. See Buster, 275 S.W.3d at
477 (trial court properly allowed extension of time to cure where deficient report was by a nurse
rather than a physician).6
We resolve Kerr’s first issue in her favor.
Kerr’s Expert Report Was a Good Faith Effort to Comply with Chapter 74
In her second issue, Kerr contends the Schirmer Report represented a good faith effort to
comply with section 74.351(r)(6) by informing Appellees of the specific conduct subject of Kerr’s
claims and by providing a basis for the trial court to conclude Kerr’s claims have merit. See TEX.
CIV. PRAC. & REM. CODE ANN. § 74.351(r)(6). Specifically, Kerr argues that Accel’s “nurse or
nursing assistant departed from accepted standards of health care [by] leaving a high fall risk
Plaintiff alone in a shower,” and Kerr fell in the shower as a direct result of Jane Doe’s breach of
6 After all, the nature of the fall and the resulting injuries here are not complex. In any traditional circumstance, it is doubtful whether expert testimony would be required at all to establish causation in this case, where causation is within the common knowledge and experience of jurors. See, e.g., Jelinek v. Casas, 328 S.W.3d 526, 533–34 (Tex. 2010) (non-expert evidence sufficient “where both the occurrence and conditions complained of are such that the general experience and common sense of laypersons are sufficient to evaluate the conditions and whether they were probably caused by the occurrence”); Morgan v. Compugraphic Corp., 675 S.W.2d 729, 733 (Tex. 1984) (lay testimony sufficient where “general experience and common sense will enable a layman to determine . . . the causal relationship between the event and the condition”); Chang v. Denny, No. 05-17-01457-CV, 2019 WL 3955765 (Tex. App.—Dallas Aug. 22, 2019, no pet.) (mem. op., not released for publication) (lay testimony can establish causation where it is within the common understanding of jurors).
–13– that duty. In her third issue, Kerr contends the trial court should have granted Kerr a thirty-day
extension of time to cure any deficiencies in her expert report.
The facts alleged in this case are not complicated. Kerr’s petition and the Schirmer Report
provide a clear picture of what happened to Kerr and why she filed suit against Appellees. The
Schirmer Report alone provided sufficient detail to inform Accel of the nature and factual basis of
Kerr’s claims. Kerr has multiple sclerosis. Even before admitting her, Accel knew Kerr “was
having frequent falls” and “required 24/7 nursing care,” including for “ambulation” and the
“activities of daily living.” Kerr was assessed as a moderate fall risk upon her admission to Accel,
but the very same day, she was re-assessed by Accel nursing staff as a high fall risk. Accel’s
physical therapy records caution that, among other things, Kerr “was having frequent falls” and
“deficits of endurance, balance, [and] locomotion.” Accel knew Kerr needed to be supervised for
all acts of daily living, walking, and standing. Two days before Kerr fell, unsupervised, in the
shower, physical therapy notes warned, “[Kerr] is requiring constant checks for safety as she has
poor safety awareness.” An Accel physician evaluation ordered that Kerr “requires 24/7
Rehabilitation nursing for assisting with ambulation and transfer, assisting with all activities of
daily living.” The day before Kerr fell when Jane Doe left her alone in the shower, Accel’s
physical therapy notes alerted the medical staff that Kerr “is now requiring maximum assistance
to sit or stand.”
As reflected in Accel’s own nursing, physician, and physical therapy records, the standard
of care Accel owed to Kerr was “24/7 nursing care,” “maximum assistance to sit or stand,”
“assist[ance] with all activities of daily living,” “assist[ance] with ambulation and transfer,” and
“constant checks for safety,” because Kerr was a “high fall risk,” Kerr was having “frequent falls,”
and Kerr had “deficits of endurance, balance, locomotion, safety awareness, transfer control, and
–14– self-care.” In accord with the standard of care ordered by Accel’s physicians, physical therapists,
and nursing staff, the Schirmer Report plainly stated, “The nursing standard of care for a patient
with generalized weakness from Multiple Sclerosis and frequent falls would have to be in
attendance at their side to ensure patient safety.” The Schirmer Report stated that Appellees
breached the standard of care by leaving Kerr “alone in the shower.”
There is no question that the Schirmer Report was deficient insofar as the TMLA requires
a physician to opine as to causation. Nevertheless, given all of the warnings and orders
promulgated by a range of Accel’s medical staff, it is not surprising that the Schirmer Report stated
that Kerr “being left alone in the shower and known to be a high fall risk is directly related to the
fall.” Although Schirmer did not use the word “caused,” no magic words are required. See
Scoresby, 346 S.W.3d at 556. The Schirmer Report’s meaning was clear. Kerr fell in the shower
because she was not receiving the assistance that Accel’s medical staff had repeatedly stated was
necessary for Kerr’s safety. She was left alone in a shower when she needed “maximum assistance
to sit or stand.” While this portion of the Schirmer Report was deficient, Kerr’s expert report did
not entirely fail to address the causation element. Schirmer just was not qualified to render that
opinion—a deficiency that Kerr should “be given an opportunity to cure.” Scoresby, 346 S.W.3d
at 449 (“An individual’s lack of relevant qualifications and an opinion’s inadequacies are
deficiencies the plaintiff should be given an opportunity to cure if it is possible to do so.”); see
also Buster, 275 S.W.3d at 477 (report by unqualified expert may reflect good-faith effort
sufficient to justify thirty-day extension of time to cure).
As the statute has been applied, not only should Kerr’s expert report opine that Accel’s
breach of its duty of care caused Kerr to fall while she was left unattended in the shower, but the
report also should opine that the specific injuries alleged in the petition were caused by Kerr’s fall.
–15– These omissions, however, are exactly the type of deficiencies that may be cured under section
74.351(c). As Justice Guzman stated in Samlowski:
[T]he provision allowing for an extension is not punitive—it says nothing about withholding an extension when a claimant has failed to do something. Rather, the provision is curative, intending to give claimants an opportunity to save their claims from dismissal.
332 S.W.3d at 416 (Guzman, J., concurring).
The Schirmer Report provided enough information to inform Accel of the specific conduct
Kerr complains of, and it provided a basis for a court to conclude Kerr’s claims have merit. See
Scoresby, 346 S.W.3d at 556. Moreover, the Schirmer Report gave Accel clear notice of the basis
of Kerr’s claims and the kind of evidence it will need to marshal for its defense. Because the
deficiencies in the Schirmer Report are readily curable, the report does not indicate Kerr’s claims
are frivolous. See Scoresby, 346 S.W.3d at 556. To the contrary, the expert report manifests the
merit of Kerr’s claims.
In light of Scoresby and Samlowski and the TMLA’s silence “on the principles and
procedure that should control the trial court’s discretion” under 74.351(c), we conclude the
Schirmer Report constituted an objective, good faith effort to comply with the statutory
requirements of chapter 74, despite its deficiency in failing to include a physician’s report
addressing causation, which is curable. Scoresby, 346 S.W.3d at 556; Samlowski, 332 S.W.3d at
411. Therefore, the trial court’s failure to grant Kerr an extension of time to cure any deficiencies
in the expert report was an abuse of discretion. See Samlowski, 332 S.W.3d at 416 (Guzman, J.,
concurring). Accordingly, we resolve Kerr’s second and third issues in her favor.
We reverse the trial court’s order dismissing Kerr’s claims with prejudice, and we remand
this cause to the trial court with the instruction to grant Kerr a thirty-day extension of time to afford
–16– her the opportunity to cure any deficiencies in her chapter 74 expert report, and for further
proceedings consistent with this opinion. 7
/Ken Molberg/ KEN MOLBERG JUSTICE
180928F.P05
7 Based upon our resolution of Kerr’s first, second, and third issues, we need not address Kerr’s fourth issue. TEX. R. APP. P. 47.1.
–17– Court of Appeals Fifth District of Texas at Dallas JUDGMENT
VICTORIA KERR, Appellant On Appeal from the 219th Judicial District Court, Collin County, Texas No. 05-18-00928-CV V. Trial Court Cause No. 219-04279-2017. Opinion delivered by Justice Molberg. PIRF OPERATIONS, LLC DBA ACCEL Justices Myers and Carlyle participating. REHABILITATION HOSPITAL OF PLANO AND JANE DOE, Appellee
In accordance with this Court’s opinion of this date, the order of the trial court is REVERSED and this cause is REMANDED to the trial court with the instruction to grant appellant a thirty-day extension of time to afford her the opportunity to cure any deficiencies in her expert report, and for further proceedings consistent with this opinion.
It is ORDERED that appellant VICTORIA KERR recover her costs of this appeal from appellee PIRF OPERATIONS, LLC DBA ACCEL REHABILITATION HOSPITAL OF PLANO AND JANE DOE.
Judgment entered this 27th day of August, 2019.
–18–