MCH Professional Care and Kristopher Kindle, CRNA v. Yulissa Zubia, Individually and as Representative of the Estate of Elpidia Rios De Zubia Rene Zubia And Rene Zubia, Jr. ( 2021 )

Opinion filed September 23, 2021
In The
Eleventh Court of Appeals
__________
No. 11-19-00338-CV
__________
MCH PROFESSIONAL CARE AND
KRISTOPHER KINDLE, CRNA, Appellants
V.
YULISSA ZUBIA, INDIVIDUALLY AND AS
REPRESENTATIVE OF THE ESTATE OF ELPIDIA RIOS
DE ZUBIA; RENE ZUBIA; AND RENE ZUBIA, JR., Appellees
On Appeal from the 161st District Court
Ector County, Texas
Trial Court Cause No. B-16-12-1170-CV
MEMORANDUM OPINION
Appellants, MCH Professional Care and Kristopher Kindle, CRNA, bring this
interlocutory appeal from the trial court’s denial of a motion to dismiss the health
care liability claims brought by Yulissa Zubia, individually and as representative of
the Estate of Elpidia Rios de Zubia; Rene Zubia; and Rene Zubia, Jr., jointly referred
to herein as “Appellees.” See TEX. CIV. PRAC. & REM. CODE ANN. § 74.351(l) (West
2017). We reverse and render judgment dismissing with prejudice Appellees’ claims
against Appellants.
Background Facts
This case is a continuation of the same litigation that this court previously
addressed in MCH Professional Care v. Zubia, No. 11-17-00115-CV, 2019 WL
2385771 (Tex. App.—Eastland June 6, 2019, no pet.) (mem. op.) (hereinafter
referred to as Zubia I). Thus, we forego a detailed explanation of the background
facts in this case and instead defer to the facts as set forth in our previous opinion,
supplementing this opinion with the relevant facts as needed. See 2019 WL
2385771, at *1.
In Zubia I, which involved the same parties and legal issues as those currently
at issue here, we concluded that the trial court abused its discretion in overruling
Appellants’ objection to the expert report of Appellees’ expert because the report
“fail[ed] to state the specific conduct that breached the applicable standard of care
and [was] conclusory regarding causation.” Id. Further, the basis of its statements
regarding causation were not supported by identified facts. Id. at *4–5. We reversed
and remanded the original matter so that the trial court could have an opportunity to
consider an extension so that Appellees could cure the defect in the report. See CIV.
PRAC. & REM. § 74.351(c). On remand, Appellees provided to the trial court an
amended expert report, to which Appellants again objected as insufficient on similar
grounds. The trial court overruled Appellants’ objections and denied their motion
to dismiss. This appeal followed.
Standard of Review and Relevant Law
The Texas Medical Liability Act (TMLA) requires health care liability
claimants to serve an expert report upon each defendant within 120 days after the
defendant files an answer. Id. § 74.351(a); Baylor Scott & White, Hillcrest Med.
Ctr. v. Weems, 575 S.W.3d 357, 363 (Tex. 2019). The purpose of the expert report
2
requirement is “to weed out frivolous malpractice claims in the early stages of
litigation, not to dispose of potentially meritorious claims.” Abshire v. Christus
Health Se. Tex., 563 S.W.3d 219, 223 (Tex. 2018) (per curiam).
An expert report must provide a fair summary of the expert’s opinions
regarding the applicable standard of care, the manner in which the care rendered
failed to meet that standard, and the causal relationship between the failure to meet
the standard of care and the injury suffered. CIV. PRAC. REM. § 74.351(r)(6);
Abshire, 563 S.W.3d at 223; Am. Transitional Care Ctrs. of Tex., Inc. v. Palacios,
46 S.W.3d 873, 878 (Tex. 2001) (citing former version of TMLA). However, the
expert report must still set out what care was expected but not given. Abshire, 563
S.W.3d at 226 (citing Palacios, 46 S.W.3d at 880). Sections 74.351(l) and
74.351(r)(6) require that the expert report explain how and why the alleged
negligence caused the injury in question. Id. at 224 (citing Jelinek v. Casas, 328
S.W.3d 526, 536 (Tex. 2010)). The expert must explain the basis of his statements
and link his conclusions to specific facts. Bowie Mem’l Hosp. v. Wright, 79 S.W.3d
48, 52 (Tex. 2002) (per curiam) (citing former version of TMLA); see also Columbia
Valley Healthcare Sys., L.P. v. Zamarripa, 526 S.W.3d 453, 461 (Tex. 2017)
(“[W]ithout factual explanations, the reports are nothing more than the ipse dixit of
the experts, which . . . are clearly insufficient.”). The expert report must set forth
specific information about what the defendant should have done differently, and it
must explain factually how proximate cause is going to be proven. Abshire, 563
S.W.3d at 226.
A trial court may grant a motion to dismiss under the TMLA only if it appears
that the expert report is not an objective good faith effort to comply with the statutory
requirements. CIV. PRAC. & REM. § 74.351(l). An expert report demonstrates a
“good faith effort” when it (1) informs the defendant of the specific conduct the
plaintiff has called into question and (2) provides a basis for the trial court to
3
conclude that the claims have merit. Baty v. Futrell, 543 S.W.3d 689, 693–94 (Tex.
2018). “A report that merely states the expert’s conclusions about the standard of
care, breach, and causation” is insufficient. Palacios, 46 S.W.3d at 879; accord
Abshire, 563 S.W.3d at 223. An expert’s mere conclusion that the standard of care
was not met does not constitute a good faith effort to comply with the statutory
requirements. Palacios, 46 S.W.3d at 880.
We review a trial court’s decision to deny a motion to dismiss based on the
sufficiency of an expert report for an abuse of discretion. Abshire, 563 S.W.3d at
223. A trial court abuses its discretion if it acts without reference to guiding rules or
principles. Id. In determining whether the report is sufficient, courts may not draw
any inferences; instead, courts must consider only the information contained within
the four corners of the report. See Abshire, 563 S.W.3d at 223; Palacios, 46 S.W.3d
at 879. A court must review the entire report, not just specific portions or sections.
Baty, 543 S.W.3d at 694. We defer to the trial court’s factual determinations if
supported by the evidence, but we review its legal determinations de novo. Van
Ness v. ETMC First Physicians, 461 S.W.3d 140, 142 (Tex. 2015) (per curiam).
Analysis
In their only issue on appeal, Appellants contend that the trial court abused its
discretion when it overruled the objections to the sufficiency of Dr. Hurt’s report
and denied the motion to dismiss. See CIV. PRAC. & REM. § 74.351(l), (r)(6).
Specifically, Appellants assert that Dr. Hurt’s report still fails to meet the
requirements of Section 74.351 of the TMLA and fails to provide the necessary
factual basis to support his causation opinions. See id.
In what Dr. Hurt denominates as his “Curative Report,” appearing in form and
substance to have been an amended report, Dr. Hurt sets forth four different
standards of care: (1) Kristopher Kindle, CRNA, should have completed a
preoperative assessment plan for Elpidia Rios de Zubia (Zubia) prior to her
4
procedure; (2) Kindle should have clinically monitored Zubia’s physiological
condition and oxygenation levels; (3) Kindle should not have allowed an
inexperienced third-year medical student to attempt endotracheal intubation on
Zubia; and (4) Kindle should have checked the anesthesia
machine/equipment/monitors for leaks prior to Zubia’s procedure. Although the
standards of care relied upon were clearly set out, Appellants attack Dr. Hurt’s report
and assert that Dr. Hurt failed to provide the necessary factual basis to support his
causation opinions. We particularly examine the amended report to determine
whether it is indeed “curative” of the deficiencies previously identified by this court
in Zubia I and whether it includes substantive links between the stated breaches of
the standards of care and causation of Zubia’s death, supported by identified facts.
We will address each of these standards separately, mindful of the rule requiring us
to view the report in its entirety, not in isolated portions or sections. See Baty, 543
S.W.3d at 694.
I. Preoperative Assessment Plan
Dr. Hurt first provides that “the appropriate standard of care for an anesthesia
clinician is to accurately complete a preoperative assessment and anesthetic plan for
the patient,” which would have included the implementation of Monitored
Anesthesia Care (MAC). He states that completing a preoperative assessment plan
allows the clinician to “evaluate the patient’s condition (physical, mental, and
physiological) for possible risks of complications during the procedure.” Dr. Hurt
opines that morbid obesity is a typical comorbidity which increases the risk of
certain complications occurring during anesthesia, such as heart rate irregularities
and oxygenation levels dropping. According to Dr. Hurt, a properly completed plan
would have identified Zubia as morbidly obese and at a higher risk for these
complications, and “would have allowed him to offer Elpidia Rios de Zubia safer
alternatives to general anesthesia without complications relative to her morbid
5
obesity.” In what appears to be a statement on causation—a statement which is
virtually cut and pasted at the end of almost every discussion for each standard of
care—Dr. Hurt asserts:
Based upon my experience, skill, knowledge and training as a board
certified anesthesiologist, Kristopher Kindle, CRNA’s, breached the
standard of care in not completing a preoperative assessment and
anesthesia plan for Elpidia Rios de Zubia, for which he would have
been able to identify the potential for intraoperative complications such
as decreasing oxygenation levels and rapid heart rate decline was a
proximate cause of Elpidia Rios de Zubia’s death.
Dr. Hurt further addresses causation later in his report:
The autopsy and death certificate indicate Elpidia Rios de Zubia died
as a result of intraoperative complications during anesthesia. The
intraoperative complications Elpidia Rios de Zubia suffered from were
rapid oxygen desaturation and heart rate plummeting as a result. It was
these complications which caused her death. Thus, had Kristiopher
[sic] Kindle, CRNA, followed the appropriate standard of care and
properly completed a preoperative assessment and anesthesia plan or
MAC, he would have been aware of the inherent risks of these
complications and could have prevented same. Instead, his failure to
become aware of the risks of complications that Elpidia Rios de Zubia
was mentally, physically or physiologically exhibiting were ignored.
As a result she died.
Although Dr. Hurt proffers a standard-of-care violation and states that the standard
was not met, Dr. Hurt does not identify the facts in support of causation linking the
alleged breach to the injury. Importantly, we first note that although Dr. Hurt
contends that completing a preoperative assessment plan would have allowed Kindle
to offer “safer alternatives,” he does not list what the alleged safer alternatives were.
Nor does he state whether failing to choose them was a proximate cause of Zubia’s
death and, if so, why failing to choose them was a proximate cause.
Furthermore, while a written plan might be preferred, the lack of a written
plan is not evidence that the considerations to be documented on the written plan
6
were not actually made in this instance or that such considerations were absent from
a standard protocol. With regard to the actual cause of Zubia’s death, Dr. Hurt
simply concludes that Zubia died because her oxygen levels decreased and her heart
rate dropped. However, this merely provides a general explanation of what occurs
at death. To oversimplify, at death, one stops breathing and their heart stops—or
vice versa. It is axiomatic, then, that oxygen desaturation occurs and heart rate
declines upon death. But such information, without more, does not adequately
address causation or identify the supporting facts in this case. Otherwise, in every
death case under Chapter 74, a plaintiff’s expert, without a good faith effort, could
make global observations and undermine the legislative purposes of weeding out
frivolous claims in the early stages and not disposing of potential meritorious claims.
To avoid such an unintended result, the causation element “requires that the
expert explain ‘how and why’ the alleged negligence caused the [death] in question.”
Abshire, 563 S.W.3d at 224 (citing Jelinek, 328 S.W.3d at 536). In order to satisfy
this “how and why” requirement, the expert is not required to prove the entire case
or account for every known fact; rather, the report will sufficiently establish
causation if it makes “a good-faith effort to explain, factually, how proximate cause
is going to be proven.” Id. (quoting Zamarripa, 526 S.W.3d at 460). Additionally,
an alleged breach of a standard of care must be proximately linked to the injury by
identified facts. See Bowie Mem’l Hosp., 79 S.W.3d at 52; see also Zamarripa, 526
S.W.3d at 460.
The deficiencies in Dr. Hurt’s reports become more apparent when compared
to a report which plainly satisfies the requirements of Section 74.351. In Abshire,
for example, the Texas Supreme Court found an expert report’s explanation of
causality sufficient where the report stated:
The harm/injury that resulted from the substandard care provided by
[Christus] was the exacerbation of an undiagnosed vertebral fracture
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that lead [sic] to a spinal cord injury resulting in paraplegia and bowel
and bladder incontinence.
Failure of the nursing staff to document a complete and accurate
assessment resulted in a delay in proper medical care (ie. [sic] the
ordering of imaging studies and protection of the spine.). . . . [H]ad the
symptomology that Ms. Abshire was experiencing been appropriately
linked to the [OI] diagnosis then she could have been admitted to the
hospital on absolute bed rest, imaging studies such as a CT or MRI of
her back ordered, then treatment started to preserved [sic] the integrity
of the spine. . . .
The hospital staff clearly ignored signs and symptoms of spinal injury
and kept investigating the same areas over and over with no relief to the
patient. . . . This failure on the part of the hospital staff allowed the
spinal injury to progress to the point of paraplegia.
Failure to consider the patient’s prior relevant medical history was
mostly [sic] likely a cause of the hospital staff’s focus on the potential
cardiac element of Ms. Abshire’s pain. . . . Had they had a complete
medical history they would have known to examine other areas and that
this patient had a high probability of a compression fracture. The lack
of proper documentation in the patient’s medical record lead [sic] to a
delay in treatment of Ms. Abshire’s compression fracture which in
medical probability lead [sic] to paralysis.
Abshire, 563 S.W.3d at 224–25 (alterations in original). There, the report clearly
linked the alleged breach (failure to document a complete and accurate assessment)
to the injury (paraplegia) by asserting and explaining, with reference to specific
facts, how the failure to document a complete and accurate assessment resulted in a
delay in proper medical care, and explaining how consequently, without spinal
fusion, the delayed medical care allowed the spinal injury to progress to the point of
paraplegia. See id.
In the case before us, morbid obesity is an objective condition readily
observable by hospital staff and physicians, unlike conditions of the spine that could
only be observed by a CT scan or an MRI as in Abshire. The absence of a written
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preoperative assessment plan, in and of itself, is not evidence of a breach of the
standard of care, nor is it evidence that such a breach actually resulted in deficient
attendant care at the time that Kindle administered general anesthesia to Zubia,
causing Zubia’s injuries. The causal nexus between the preoperative assessment
plan and death thereafter is not set out in the Dr. Hurt’s report, and the report fails
to provide a “straightforward link” between Kindle’s alleged breach and Zubia’s
injury. See id. at 225. Dr. Hurt merely concludes that, had Kindle properly
completed a preoperative assessment plan, Kindle would have been aware of the
risks and “could have prevented the same.” This is conclusory, however, as Dr. Hurt
does not provide even a factual summary explaining how Kindle could have
prevented Zubia’s complications had he completed a preoperative assessment plan.
See id.; Zamarripa, 526 S.W.3d at 460–61.
It is also unclear from the four corners of the report what Dr. Hurt intended
when he stated, “[Kindle’s] failure to become aware of the risks of complications
that Elpidia Rios de Zubia was mentally, physically or physiologically exhibiting
were ignored.” Certainly, this court could attempt to make reasonable inferences
about what Dr. Hurt might have intended to say, but courts are prohibited from
making any such inferences. See Bowie Mem’l Hosp., 79 S.W.3d at 52–53; Gray v.
CHCA Bayshore L.P., 189 S.W.3d 855, 859–60 (Tex. App.—Houston [1st Dist.]
2006, no pet.). “The court should not have to fill in missing gaps by drawing
inferences or guessing as to what the expert likely meant or intended.” Tenet Hosps.,
Ltd. v. Garcia, 462 S.W.3d 299, 310 (Tex. App.—El Paso 2015, no pet.). Without
more, we are left to speculate as to how the failure to complete a preoperative
assessment plan of an obvious condition caused Zubia’s oxygenation levels to
rapidly decrease. Accordingly, this does not satisfy the requirements of
Section 74.351.
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II. Failure to Monitor
Dr. Hurt also contends that “[i]n addition to having a properly completed
preoperative assessment and anesthesia plan, the appropriate standard of care would
have been for Kristopher Kindle, CRNA, to monitor, evaluate and document Elpidia
Rios de Zubia’s physiological condition as was appropriate for the type of
anesthesia.” The facts of when and how Kindle failed to monitor “as was appropriate
for the type of anesthesia” are not identified other than by what appears to be
Dr. Hurt’s position, expressed in his initial report, that since there was a death there
must have been negligence in administering anesthesia.1 Dr. Hurt states the obvious:
that monitoring Zubia’s oxygenation levels was imperative so that Kindle could treat
any complications which may have arisen. Dr. Hurt then asserts that Kindle did not
clinically monitor Zubia or her oxygenation levels, which were apparently declining.
“As such,” Dr. Hurt states, “her oxygenation levels dropped below safe levels
causing her heart rate to plummet.”
Here, Dr. Hurt’s report similarly fails to provide facts in support and an
adequate explanation of causation. In Patterson v. Ortiz, our sister court delineated
a clear rule for this type of generalized standard of care allegation:
[I]f the report states the breach of the standard of care by the physician
or health care provider is the failure to monitor, observe, test, or
evaluate, the report must explain what action the defendant physician
or health care provider would have taken in response to the data
obtained from the monitoring, monitoring, testing, and evaluating that
should have been performed, including passing that data to another
physician or health care provider who could take action that would have
altered the patient’s outcome. The report must explain why the action
the defendant should have taken, either by itself or in coordination with
the actions of others, would have prevented the patient’s injury.
1
In Zubia I, this court determined that the explanation of causation in Dr. Hurt’s initial report was
conclusory where he merely opined that “death doesn’t make sense in this case unless there was a deviation
from the standard of care as it relates to monitoring.” See Zubia I, 2019 WL 2385771, at *4.
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412 S.W.3d 833, 839–40 (Tex. App.—Dallas 2013, no pet.). There, the court found
the report to be sufficient because “[t]he report specified the action Dr. Patterson
should have taken in response to the results of the examination and testing: prompt
hospitalization of Raul where he could receive early, aggressive treatment for his
pneumonia. The report states that hospitalization with the early, aggressive
treatment would have saved Raul’s life.” Id. at 842–43.
In contrast with the report in Patterson, Dr. Hurt’s reports fail to explain what
action Kindle factually did not take, that should have been taken, in response to any
specific data obtained from any type of monitoring of Zubia’s physiological
condition and oxygenation levels. Applying the reasoning our sister court used
under similar facts in Gray v. CHCA Bayshore, L.P., “a literal reading of the report’s
most direct statements concerning breach leads to the conclusion that simply
monitoring [Zubia’s oxygenation levels], and taking no corrective action, would
have prevented her injury.” Gray, 189 S.W.3d at 859–60. Even then, a literal
reading of Dr. Hurt’s reports still does not directly lead to this conclusion because
nowhere in either of his reports does Dr. Hurt (1) identify facts from the medical
record indicating that Kindle did not monitor Zubia’s oxygenation levels or (2) state
an omitted act of care that would have in any way prevented her injuries, much less
explain “why the action the defendant should have taken . . . would have prevented
the patient’s injuries.” Patterson, 412 S.W.3d at 840.
In Abshire, the expert report documented that the patient came to the hospital
five times without the relevant medical history being documented or followed up on
in light of the symptoms she related to the treating physician. See Abshire, 563
S.W.3d at 224. The expert explained in his report that the physician failed to obtain
a thorough medical history, document and link the related symptoms to that medical
history, obtain CT scans and MRIs to determine if the history was relevant, and then
treat the spinal injury with spinal fusion to prevent the progression to paraplegia.
11
See id. The expert’s report was accompanied by a nurse’s report of “significantly
more detail,” factually, and the two reports were considered together to determine
whether the requirements of Chapter 74 were met. See id. at 227. The reports in the
instant case, however, do not explain what action Kindle should have taken in
response to unspecified data from monitoring, testing, and evaluation. Neither do
the reports explain why the action Kindle should have taken, either by itself or in
coordination with the action of others, would have prevented Zubia’s death. See
Patterson, 412 S.W.3d at 839–40. Because Dr. Hurt’s statements are conclusory
and do not provide facts linking Kindle’s failure to monitor to Zubia’s rapid
oxygenation desaturation, they do not satisfy the causation requirement of
Section 74.351. See Gray, 189 S.W.3d at 860 (“By not fleshing out how appellees’
failure to monitor Gray’s extremities caused her injury, the report does not
convincingly tie the alleged departure from the standard of care to specific facts of
the case.”).
III. Third-Year Intubation Attempt
Dr. Hurt asserts in his amended report that completing a preoperative
assessment plan would have allowed Kindle to identify Zubia’s Class III Mallampti
score, which Dr. Hurt explained is a score used to predict the ease of endotracheal
intubation—“Class I and II being the least difficult to intubate while Class III and
Class IV suggests intubation is expected to be difficult.” Dr. Hurt opines that
because Zubia was morbidly obese and had a Mallampti score of Class III, “the
appropriate standard of care would have been to not allow an inexperienced third
year medical student to attempt an endotracheal intubation on Elpidia Rios de Zubia
who was experiencing rapid oxygen desaturation.” He asserts that completing a
preoperative assessment plan would have allowed Kindle to assess and identify
Zubia’s conditions, including a Class III Mallampti score, “which would have
prevented the endotracheal complication caused by the third year medical student.”
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Dr. Hurt then contends that “[b]ased upon [his] experience, skill, knowledge and
training as a board certified anesthesiologist, Elpidia Rios de Zubia’s rapid oxygen
desaturation would not have occurred if Kristopher Kindle, CRNA, would not have
permitted a third year medical student from attempting to perform the endotracheal
intubation.”
These statements suffer from the same defect as the first two theories:
Dr. Hurt’s opinions are conclusory and fail to provide an adequate explanation of
how causation will be proven. We first note that not recording a Mallampti score
does not equate (1) to a failure of Kindle to understand that an obviously obese
patient will be more challenging to intubate or (2) to a failure to act on that fact.
Regardless, Dr. Hurt provides no explanation whatsoever as to why completing a
preoperative assessment plan “would have prevented the endotracheal complication
caused by the third year medical student.” This statement is wholly conclusory and
does not satisfy the requirements of Section 74.351. See Abshire, 563 S.W.3d at
223–24; Bowie Mem’l Hosp., 79 S.W.3d at 52.
Dr. Hurt also fails to provide any information explaining how or why
prohibiting the third-year student from attempting intubation would have prevented
the rapid oxygen desaturation.2 He gave no information to explain causation as to
the actual experience level of the student, the time documented that it took to be
intubated, what desaturation levels were reached before intubation was attempted,
the declined levels at successful intubation, and what and when levels became
unacceptably critical. Dr. Hurt made no such assertions, and courts cannot not make
2
The failure to provide an adequate explanation of causation here when the opportunity to amend
was given is particularly apparent in light of the fact that Dr. Hurt expressly admitted the inverse in his
original report: namely, that “[a]lthough it is [Dr. Hurt’s] opinion that it was poor judgment to have allowed
this attempt . . . , it appears that Ms. Zubia was quickly and successfully intubated by Kristopher Kindle,
CRNA.” We decline to weigh the legal effect of potentially inconsistent statements in multiple Chapter 74
reports from the same or differing experts.
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such inferences. See Bowie Mem’l Hosp., 79 S.W.3d at 52–53; Tenet Hosps., Ltd.,
462 S.W.3d at 310; Gray, 189 S.W.3d at 856–60. The reports do not explain what
action Kindle would or should have taken had he not permitted the third-year student
to attempt intubation. Neither do the reports explain why the action Kindle should
have taken, either by itself or in coordination with the action of others, would have
prevented Zubia’s death. See Patterson, 412 S.W.3d at 839–40. Without more,
these conclusory statements fail to factually link the alleged breach to the injury and
are therefore insufficient to satisfy the causation requirements of Section 74.351.
See Bowie Mem’l Hosp., 79 S.W.3d at 52–53; Tenet Hosps., Ltd., 462 S.W.3d at
310; Gray, 189 S.W.3d at 856–60.
IV. Failure to Check Equipment
We see nothing in Dr. Hurt’s report factually demonstrating that equipment
failed or was deficient and that such failure or deficiency of the equipment was a
proximate cause of death. Dr. Hurt, however, contends that “in addition to creating
a preoperative assessment plan, . . . the appropriate standard of care in this case
would have been for Kristopher Kindle, CRNA, to check the anesthesia
machine/equipment/monitors for ‘leaks’, proper calibration, and effective/working
alarms.” Dr. Hurt opines that these checks are done to ensure the equipment is in
working order and that, if they are not checked prior to the procedure, the equipment
is not a reliable source for identifying complications that may arise with the patient.
This, according to Dr. Hurt, could ultimately affect the health of the patient. Dr. Hurt
then claims Kindle did not check the equipment prior to Zubia’s procedure, which
meant that Kindle was unaware of whether the equipment was functioning properly.
While Dr. Hurt’s amended report entirely fails to assert that the equipment
actually failed, Dr. Hurt did state in his original report that “[c]hecking the machine
for ‘leaks’ would have likely identified the subsequent failure of the anesthesia
machine and its associated ventilator during the delivery of anesthesia.” See
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Scherer v. Gandy, No. 07-18-00341-CV, 2019 WL 988174, at *2 n.4 (Tex. App.—
Amarillo Feb. 28, 2019, no pet.) (mem. op.) (“When, as here, an expert report has
been supplemented, courts have considered both the original and supplemental
reports in conducting an analysis of the adequacy of the reports.”). 3 In his amended
report, Dr. Hurt thus concludes, “[W]hen Elpidia Rios de Zubia began to experience
rapid oxygen desaturation and a plummeting heart rate, the [sic] Kristopher Kindle,
CRNA, was unable to respond quickly enough to the machine/equipment/monitors
in order to counter Elpidia Rios de Zubia’s intraoperative complications,” which
resulted in her death. Additionally, Dr. Hurt asserts that Kindle’s failure to check
the equipment caused him to be the “ultimate monitor” of Zubia’s physical, mental,
and physiological condition, which he relates back to Kindle’s failure to clinically
monitor Zubia as set forth in his second theory.
Disregarding the inconsistencies, we first note that there is nothing in his
reports factually showing anything from the medical record relied upon to make the
conclusion that the equipment did not perform or was a proximate cause of death.
Moreover, Dr. Hurt fails to explain, factually, how or why, without record of a
defect, Kindle’s failure to check the equipment for any leaks or malfunctions prior
to the procedure actually caused or contributed to the injury. Dr. Hurt summarily
concludes that Kindle was unable to respond “quickly enough” to the equipment in
order to counter Zubia’s complications, but Dr. Hurt does not link Kindle’s delay to
his prior failure to check the equipment for leaks or malfunctions. Dr. Hurt’s reports
would require the trial court as well as this court to infer what was a proper time
frame within the standard of care to perceive and react, that Kindle’s inability to
3
Although both reports may be considered in conducting our analysis, we also note that Dr. Hurt’s
amended report appears to abandon his prior assertion that “checking the machine for ‘leaks’ would have
likely identified the subsequent failure.” The amended report fails to make this assertion altogether and
fails to use the opportunity to amend the Chapter 74 report to include any facts in support thereof.
15
respond within that time frame to the equipment and monitors was in fact caused by
a possible malfunction or leak in the equipment, and that Kindle would have found
such leak had he checked the equipment prior to Zubia’s procedure. As previously
pointed out, courts are prohibited from making any such inferences. See Bowie
Mem’l Hosp., 79 S.W.3d at 52–53; Gray, 189 S.W.3d at 856–60.
Additionally, Dr. Hurt’s contention that Kindle’s failure to check the
equipment and monitors caused Kindle to be the “ultimate monitor” is conclusory
for the same reasons we discussed with respect to Dr. Hurt’s second standard of care;
Dr. Hurt fails to explain what action Kindle should have taken in response to the
equipment had it not been functioning properly and had Kindle properly monitored
Zubia’s oxygenation levels. See Patterson, 412 S.W.3d at 840. Dr. Hurt thus fails
to provide a link explaining how or why checking the equipment prior to the
procedure and monitoring Zubia’s condition would ultimately have prevented her
rapid oxygenation desaturation and changed the result for her. See Bowie Mem’l
Hosp., 79 S.W.3d at 52–53; Patterson, 412 S.W.3d at 840; Gray, 189 S.W.3d at856–60. For the reasons discussed above, these statements on causation also fail to
meet the requirements of Section 74.351.
Conclusion
Although Dr. Hurt’s amended report adds verbage, for the reasons stated
above, unlike the expert reports in cases like Abshire, Dr. Hurt’s original and
amended reports lack content and contain only conclusory statements on causation.
See Abshire, 563 S.W.3d at 224–25. All that this court can conclude is that Dr. Hurt
made no further explanation of causation in his amended report because he had no
explanation. Therefore, the reports fail to provide the trial court with an adequate
basis to determine that the case has merit. The Texas Medical Liability Act permits
a trial court to grant one thirty-day extension to cure a deficiency in an expert report.
See CIV. PRAC. & REM. § 74.351(c). The trial court in this case has already granted
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Appellees a thirty-day extension to try to cure the deficiencies in Dr. Hurt’s original
report. Accordingly, we hold that the trial court abused its discretion in denying
Appellants’ motion to dismiss.
This Court’s Ruling
We reverse the trial court’s order denying Appellants’ motion to dismiss, and
we render judgment dismissing with prejudice Appellees’ claims against
Appellants.4
W. BRUCE WILLIAMS
JUSTICE
September 23, 2021
Panel consists of: Bailey, C.J.,
Trotter, J., and Williams, J.
4
See Bowie Mem’l Hosp., 79 S.W.3d at 54. We note that Appellants did not request attorney’s fees
in the motion to dismiss that they filed in the trial court and that they have not asked this court to remand
to the trial court for the consideration of attorney’s fees under Section 74.351(b)(1) and, instead, have asked
that this court render a judgment of dismissal. See Turtle Healthcare Grp., L.L.C. v. Linan, 337 S.W.3d
865, 869 (Tex. 2011) (rendition appropriate where the appellant waived its request for attorney’s fees).
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