Paul James, M.D. and Metropolitan Houston Surgery Associates, PLLC v. Angie Sam ( 2021 )

Opinion issued August 3, 2021
In The
Court of Appeals
For The
First District of Texas
————————————
NO. 01-20-00260-CV
———————————
GEORGE T. KUHN, M.D., GEORGE T. KUHN M.D., P.A. D/B/A
WOMEN’S HEALTHCARE ASSOCIATES, PAUL JAMES, M.D.,
METROPOLITAN HOUSTON SURGERY ASSOCIATES, PLLC, ADAM
MORALES, M.D., WEST HOUSTON RADIOLOGY ASSOCIATES, L.L.P.,
AND SINGLETON ASSOCIATES, P.A. D/B/A RADIOLOGY PARTNERS
GULF COAST, Appellants
V.
ANGIE SAM, Appellee
On Appeal from the 151st District Court
Harris County, Texas
Trial Court Case No. 2019-45200
MEMORANDUM OPINION
In this interlocutory appeal,1 appellants, George T. Kuhn, M.D., George T.
Kuhn M.D., P.A., doing business as Women’s Healthcare Associates (“Women’s
Healthcare”), Paul James, M.D., Metropolitan Houston Surgery Associates, PLLC
(“Metropolitan Houston”), Adam Morales, M.D., West Houston Radiology
Associates, L.L.P. (“West Houston Radiology”), and Singleton Associates, P.A.,
doing business as Radiology Partners Gulf Coast (“Radiology Partners”)
(collectively, “appellants”), challenge the trial court’s order overruling their
objections and denying their motions to dismiss the health care liability claims2
brought against them by appellee, Angie Sam, in her suit for negligence. In multiple
issues, appellants contend that the trial court erred in overruling their objections and
denying their motions to dismiss Sam’s claims against them.3
We affirm.
Background
In her petition, Sam alleges that on April 12, 2018, she was admitted to St.
Joseph Hospital with pelvic pain, uterine fibroids, and a right ovarian cyst. Sam
underwent an exploratory laparotomy,4 a lysis of adhesions, a right
1
See TEX. CIV. PRAC. & REM. CODE ANN. § 51.014(a)(9).
2
See id. § 74.001(a)(13) (defining “[h]ealth care liability claim” (internal quotations
omitted)).
3
See id. § 74.351 (governing expert reports).
4
A “laparotomy” is a “surgical incision of the abdominal wall.” Laparotomy,
MERRIAM-WEBSTER’S COLLEGIATE DICTIONARY (11th ed. 2014).
2
salpingo-oophorectomy,5 and a supracervical hysterectomy.6 The friable adhesions
found during surgery required “sharp and cautery dissection to free the uterus and
right [fallopian] tube and ovary for removal.” Sam experienced excessive blood loss
due to the adhesions which required an “inter-operative blood transfusion.” “[A]
decision to stop with a supra[cervical] hysterectomy was made.” Extensive cautery
and suturing were required “to obtain hemostasis.” According to Sam, “[t]he frozen
section on the ovarian cyst was benign and cystoscopy was normal prior to [the]
closing [of her] abdomen.” (Internal quotations omitted.)
Soon after surgery, Sam developed pain, fever, nausea, and vomiting. A
computed tomography (“CT”) scan of Sam’s abdomen was done on the third day
after her surgery. The CT scan showed “a collection of fluid and [a] probable blood
clot in [Sam’s] pelvis.” A drain was placed by the interventional radiology
department, which “noted that 50 cc of brown and bloody fluid was obtained from
[Sam’s] pelvis at th[e] time.” Sam continued to experience pain and fever and
5
A “[s]alpingo-oophorectomy” is the “[surgical] excision of a fallopian tube and an
ovary.” See Young v. Pinto, No. 09-08-299-CV, 2008 WL 4998346, at *8 n.3 (Tex.
App.—Beaumont Nov. 26, 2008, no pet.) (mem. op.) (internal quotations omitted).
6
A “supracervical hysterectomy” is the “surgical removal of the uterus.” See Tex.
Tech Univ. of Health Scis. Ctr. v Lozano, 570 S.W.3d 740, 743 n.1 (Tex. App.—El
Paso 2018, pet. denied); see also Young, 2008 WL 4993846, at 8 n.3.
3
leukocytosis.7 On the sixth day after Sam’s surgery, another CT scan was taken, and
it showed “air, fluid, and contrast leakage within the peritoneal cavity.”8 After Sam
was diagnosed with a bowel perforation, “with evidence of wide spread [sic]
peritoneal cavity involvement,” a decision was made to treat Sam’s bowel
perforation conservatively by draining the area even though there was “fluid and
bowel gas . . . throughout the peritoneal cavity.” This course of treatment continued
for the next four days, and Sam’s condition continued to deteriorate.
On the tenth day after Sam’s initial surgery, Sam underwent an exploratory
laparotomy, a repair of her bowel perforation, and a diverting ileostomy. 9 The
ileostomy was required because of a “marked inflammatory reaction to bowel
leakage” that had occurred for an extended length of time. After Sam’s second
7
“[L]eukocytosis” is “an increase in the number of white blood cells in the circulating
blood.” Leukocytosis, MERRIAM-WEBSTER’S COLLEGIATE DICTIONARY (11th ed.
2014).
8
The “peritoneal cavity” is “the space within a person’s abdomen that contains the
intestines, stomach, and liver.” Univ. of Tex. M.D. Anderson Cancer Ctr. v.
McKenzie, 578 S.W.3d 506, 510 n.2 (Tex. 2019).
9
An “ileostomy” is “a surgical operation in which a damaged part is removed from
the ileum,” the third portion of the small intestine, “and the cut end [is] diverted to
an artificial opening in the abdominal wall.” Ileostomy, OXFORD DICTIONARY OF
ENGLISH (2d ed. 2009); see also Thetford v. State, No. 02-18-00488-CR, 2021 WL
278913, at *1 n.3 (Tex. App.—Fort Worth Jan. 28, 2021, pet. filed) (mem. op., not
designated for publication) (physician described ileostomy as follows: “[W]e
essentially brought the small intestine to the skin and bypassed the large intestine,
essentially tak[ing] it out of the equation so the small intestine just empties to a bag
instead of going through the large intestine.” (second alteration in original) (internal
quotations omitted)).
4
surgery, she suffered peritonitis and sepsis. Sam’s condition slowly improved, and
she was discharged from St. Joseph Hospital on April 29, 2018.
Sam brings health care liability claims against appellants, alleging that Sam
was their patient and appellants had a duty to act as reasonably prudent health care
providers. Drs. Kuhn, James, and Morales breached the applicable standards of care
required for treating and caring for Sam in many ways, including, but not limited to,
failing to recognize her bowel perforation, failing to diagnose her bowel perforation
until the sixth day after her initial surgery, and failing to consult about immediately
exploring Sam’s abdomen to repair her bowel perforation upon its diagnosis. Sam
also alleges that Women’s Healthcare, Metropolitan Houston, West Houston
Radiology, and Radiology Partners are vicariously liable for the acts and omissions
of Drs. Kuhn, James, and Morales. Sam requests damages for past and future
physical pain and suffering, past and future mental anguish, past and future physical
impairment, past and future medical expenses, past and future disfigurement, loss of
earnings, future lost earning capacity, exemplary damages, and interest.
To support her claim, Sam timely served appellants with an initial expert
report authored by J.M. Paine, M.D., F.A.C.O.G.10 Appellants objected to the initial
10
Dr. Paine attached his curriculum vitae (“CV”) to his expert report.
5
expert report, and the trial court signed an agreed order allowing Sam thirty days to
supplement or amend Dr. Paine’s initial expert report.11
Sam timely served appellants with a supplemental expert report authored by
Dr. Paine. Dr. Paine’s supplemental expert report states that it is “intended sole[ly]
to supplement[] [and] not to replace[] [his] prior report.”12
In his expert reports, Dr. Paine states that he is a licensed physician and is
board certified in obstetrics and gynecology. He has been practicing in the field of
obstetrics and gynecology for thirty-five years. Currently, he is a member of the
teaching faculty as an associate professor in the department of obstetrics and
gynecology at the University of Texas Health Science Center in San Antonio, Texas.
In his position as an associate professor, he trains residents and students in obstetrics
and gynecology. He is also actively practicing medicine in the field of obstetrics
and gynecology.
Dr. Paine states that he has extensive experience in the field of obstetrics and
gynecology, and he has performed thousands of hysterectomies during his career.
He has knowledge of the accepted standards of medical and surgical care required
for patients needing hysterectomies. This includes knowledge of the standards of
11
See TEX. CIV. PRAC. & REM. CODE ANN. § 74.351(c).
12
Dr. Paine attached his CV to his supplemental expert report.
6
pre-operative, inter-operative, and post-operative care required for patients who
have hysterectomies.
When Dr. Paine treats patients requiring hysterectomies, he provides
pre-operative, inter-operative, and post-operative care to his patients. Post-operative
care includes “following [a] patient after [a] surgery is complete[] to diagnose and
treat any complications that may arise from the surgical procedure.” According to
Dr. Paine, this case involves the purported failure of Drs. Kuhn, James, and Morales
to appropriately care for and treat Sam after a hysterectomy, and Dr. Paine is familiar
with the type of post-operative care a patient, such as Sam, should receive and how
post-operative complications, like those experienced by Sam, should be managed
and treated.
In his expert reports, Dr. Paine states that on April 12, 2018, Sam was admitted
to St. Joseph Hospital with pelvic pain, uterine fibroids, and a right ovarian cyst.
She underwent an exploratory laparotomy, lysis of adhesions, right
salpingo-oophorectomy, and supracervical hysterectomy. The friable adhesions
found during surgery required “sharp and cautery dissection to free the uterus and
right [fallopian] tube and ovary [for] removal.” Sam experienced excessive blood
loss due to the adhesions which required an “inter-operative blood transfusion”; thus,
“a decision to stop with a supra[cervical] hysterectomy was made.” Extensive
cautery and suturing were required “to obtain hemostasis.” “The frozen section on
7
the ovarian cyst was benign and cystoscopy was normal prior to [the] closing [of
her] abdomen.” (Internal quotations omitted.)
Soon after surgery, Sam developed pain, fever, nausea, and vomiting. A CT
scan of Sam’s abdomen was done on her third day after her surgery. The CT scan
showed “a collection of fluid and [a] probable blood clot in [Sam’s] pelvis.” A drain
was placed by the interventional radiology department, which “noted that 50 cc of
brown and bloody fluid was obtained from [Sam’s] pelvis at th[e] time.” Sam
continued to experience pain and fever and leukocytosis. On the sixth day after her
surgery, another CT scan was taken, and it showed “air, fluid, and contrast leakage
within the peritoneal cavity.” After Sam was diagnosed with a bowel perforation,
“with evidence of wide spread [sic] peritoneal cavity involvement,” a decision was
made to treat Sam’s condition conservatively by draining the area even though there
was “fluid and bowel gas . . . throughout the peritoneal cavity.” This course of
treatment continued for the next four days, and Sam’s condition continued to
deteriorate.
On the tenth day after her initial surgery, Sam was taken back to the operating
room for an exploratory laparotomy, a repair of her bowel perforation, and a
diverting ileostomy. The ileostomy was required because of a “marked
inflammatory reaction to bowel leakage” that had occurred for an extended length
of time. Had an exploratory laparotomy and repair of the bowel perforation been
8
performed at the time Sam was diagnosed with the bowel perforation, “with
evidence of wide spread [sic] peritoneal cavity involvement,” a colostomy13 would
have been possible. After Sam’s second surgery, Sam suffered peritonitis and sepsis.
Sam slowly improved and was discharged seventeen days after she was first
admitted to the hospital.
As to the standard of care and breach of the standard of care for Dr. Kuhn, Dr.
Paine states that bowel injuries, like a bowel perforation, are a well-known
complication of a hysterectomy. On average they occur in one out of every 700
cases. But if a hysterectomy is performed when adhesions are present and when an
extensive bowel dissection is also required, the rate of bowel injuries increases. A
bowel perforation should be diagnosed three days after a hysterectomy. Given the
difficulties with Sam’s hysterectomy and the extensive bowel dissection that was
required during her surgery, Dr. Kuhn, Sam’s gynecologist, should have considered
and suspected a bowel perforation by the third day after Sam’s surgery, when Sam
was experiencing pain, fever, nausea, and vomiting and a CT scan showed “a
collection of fluid and [a] probable blood clot in [her] pelvis.” The standard of care
required Dr. Kuhn to suspect, recognize, and diagnose a bowel perforation by the
13
A “colostomy” is “where the bowel is diverted to exit the abdomen. A colostomy
bag is then attached that permits the [person] to pass stool into the bag, which must
be drained by the [person], instead of the normal waste elimination process.”
Centocor, Inc. v. Hamilton, 310 S.W.3d 476, 481–82 (Tex. App.—Corpus Christi–
Edinburg 2010), rev’d on other grounds, 372 S.W.3d 140 (Tex. 2012).
9
third day after Sam’s initial surgery and it required Dr. Kuhn to take Sam to surgery
“to look for and treat the injury.” Dr. Kuhn did not do such things, and thus,
breached the standard of care.
Additionally, on the sixth day after Sam’s surgery, when Sam’s bowel
perforation was actually diagnosed, the standard of care required Dr. Kuhn to
recommend surgery to Sam and to immediately perform surgery to repair the bowel
perforation. But Dr. Kuhn did not do either of those things. Instead, he decided to
“treat [Sam’s] condition conservatively,” by draining the fluid that was present.
(Internal quotations omitted.) There is no precedent for “conservative management”
of a bowel perforation when there is evidence of bowel contents and gas free in the
patient’s peritoneal cavity. (Internal quotations omitted.) Dr. Kuhn’s failure to take
any action to repair Sam’s bowel perforation, including a failure to consult with
someone from general surgery to explore Sam’s abdomen and repair the bowel
perforation, after the bowel perforation diagnosis on the sixth day following Sam’s
initial surgery was a breach of the standard of care. Further, Dr. Kuhn breached the
standard of care by waiting until the tenth day after Sam’s initial surgery to return
Sam to surgery to repair the bowel perforation because it should have been repaired
immediately upon its diagnosis.
As to the standard of care and breach of the standard of care for Dr. James,
Dr. Paine states that bowel injuries, like a bowel perforation, are a well-known
10
complication of a hysterectomy. On average they occur in one out of every 700
cases. But if a hysterectomy is performed when adhesions are present and when an
extensive bowel dissection is also required, the rate of bowel injuries increases. A
bowel perforation should be diagnosed three days after a hysterectomy.
According to Dr. Paine, Dr. James was the general surgeon
“following . . . Sam[] post-hysterectomy.” Because Dr. James was the general
surgeon “following” Sam after her surgery, once Sam’s bowel perforation was
diagnosed on the sixth day after her surgery, the standard of care required Dr. James
to immediately act upon the diagnosis by surgically repairing the bowel perforation
or at least recommending a surgical repair of the bowel perforation. But Dr. James
did not do so and instead joined in the “conservative” treatment plan with Dr. Kuhn.
(Internal quotations omitted.) There is no precedent for “conservative management”
of a bowel perforation when there is evidence of bowel contents and gas free in the
peritoneal cavity. (Internal quotations omitted.) By failing to recommend surgical
repair of Sam’s bowel perforation and by failing to surgically repair the bowel
perforation immediately, Dr. James breached the standard of care. Dr. James also
breached of the standard of care by waiting until the tenth day after Sam’s initial
surgery to return Sam to surgery to repair the bowel perforation because it should
have been repaired immediately upon its diagnosis.
11
As to the standard of care and breach of the standard of care for Dr. Morales,
Dr. Paine states that bowel injuries, like a bowel perforation, are a well-known
complication of a hysterectomy. On average they occur in one out of every 700
cases. But if a hysterectomy is performed when adhesions are present and when an
extensive bowel dissection is also required, the rate of bowel injuries increases. A
bowel perforation should be diagnosed three days after a hysterectomy.
According to Dr. Paine, Dr. Morales, an interventional radiologist, “drain[ed]
the peritoneal cavity” after Sam was diagnosed with a bowel perforation on the sixth
day after her surgery. But there is no precedent for “conservative management” of
a bowel perforation when there is evidence of bowel contents and gas free in the
peritoneal cavity. (Internal quotations omitted.) Based on Sam’s diagnosis of a
bowel perforation on the sixth day after her surgery, Dr. Morales should have
recommended immediate surgical exploration and repair of the bowel perforation.
Dr. Morales did not do this, and thus, breached the standard of care.
As to causation, Dr. Paine states that because of the aforementioned breaches
by Drs. Kuhn, James, and Morales, Sam’s condition worsened and endangered her
life. A bowel perforation is a surgical emergency that requires immediate
intervention. Immediate exploration, wash out of the peritoneal cavity, and repair
of the bowel perforation is required. Any course of action other than immediate
exploration, wash out, and repair, causes worsening peritonitis, sepsis, and possible
12
death. According to Dr. Paine, the physicians’ failure to timely diagnose the bowel
perforation, decision to pursue “conservative management” of Sam’s bowel
perforation after it was diagnosed on the sixth day after her initial surgery, failure to
recommend surgical exploration and repair of the bowel perforation upon its
diagnosis, failure to immediately repair the bowel perforation upon its diagnosis, and
decision to delay the repair of Sam’s bowel perforation until the tenth day after her
initial surgery, caused Sam’s condition to deteriorate and allowed for the continued
leakage of bowel contents into the peritoneal cavity. (Internal quotations omitted.)
Without a repair of the bowel perforation, bowel contents continued to flow into
Sam’s peritoneal cavity “with all the bacteria, chemicals[,] and irritants [that] allow[]
[an] infection to grow and worsen.” The bowel leakage caused severe damage to
Sam’s physiology and permanent residual damage. And because the infection was
allowed to grow, this led to a more complicated recovery process for Sam, a longer
hospital stay, and long-term damage. Sam could not recover from the bowel
perforation until it was actually repaired.
Dr. Paine also explains that during the surgery to repair Sam’s bowel
perforation, a diverting ileostomy had to be performed. According to Dr. Paine, the
ileostomy was required because of a marked inflammatory reaction to bowel leakage
for an extended length of time, i.e., four days after the bowel-perforation diagnosis
13
and ten days after Sam’s initial surgery. Had the bowel perforation been repaired at
the time it was diagnosed, a colostomy would have been possible.
Additionally, Dr. Paine states that peritonitis and sepsis, which are
life-threatening conditions, can arise from a bowel perforation, and in such cases,
they will not be resolved until the bowel perforation is repaired. Here, because of
appellants’ aforementioned breaches, Sam’s peritonitis and sepsis grew worse—
which is what happens when an infection is not properly treated and the source of
the infection is not appropriately and timely addressed.
Dr. Kuhn objected to Dr. Paine’s expert reports and requested that Sam’s
health care liability claim against him be dismissed.14 Dr. Kuhn asserted that Dr.
Paine’s expert reports do not provide a fair summary of the applicable standard of
care and do not explain how Dr. Kuhn breached the standard of care. The reports
also do not explain how any alleged breach by Dr. Kuhn caused or contributed to
cause Sam’s injury.
Dr. James objected to Dr. Paine’s expert reports and requested that Sam’s
health care liability claim against him be dismissed.15 Dr. James asserted that Dr.
Paine’s expert reports do not provide a fair summary of the applicable standard of
14
Women’s Healthcare joined Dr. Kuhn’s objection and requested that the trial court
dismiss Sam’s vicarious liability health care liability claim against it.
15
Metropolitan Houston joined Dr. James’s objection and requested that the trial court
dismiss Sam’s vicarious liability health care liability claim against it.
14
care and do not inform Dr. James of what he did to breach the standard of care. Dr.
Paine’s opinion on causation is speculative and conclusory, and the reports do not
state how Dr. James’s breach of the standard of care caused Sam harm. Dr. James
also asserts that Dr. Paine is not qualified to offer an opinion on the standard of care
and causation related to Dr. James.
Dr. Morales objected to Dr. Paine’s expert reports and requested that Sam’s
health care liability claim against him be dismissed.16 Dr. Morales asserted that Dr.
Paine is not qualified to offer an opinion on causation related to Dr. Morales.
After Sam responded to appellants’ objections and motions to dismiss, the
trial court overruled appellants’ objections to Dr. Paine’s expert reports and denied
appellants’ motions to dismiss the health care liability claims against them.
Standard of Review
We review a trial court’s decision on a motion to dismiss a health care liability
claim for an abuse of discretion. See Am. Transitional Care Ctrs. of Tex., Inc. v.
Palacios, 46 S.W.3d 873, 875 (Tex. 2001); Gray v. CHCA Bayshore L.P., 189
S.W.3d 855, 858 (Tex. App.—Houston [1st Dist.] 2006, no pet.). We apply the same
standard to a trial court’s determination that an expert is qualified. See Broders v.
Heise, 924 S.W.2d 148, 151–52 (Tex. 1996); San Jacinto Methodist Hosp. v.
16
West Houston Radiology and Radiology Partners joined Dr. Morales’s objection
and requested that the trial court dismiss Sam’s vicarious liability health care
liability claims against them.
15
Bennett, 256 S.W.3d 806, 811 (Tex. App.—Houston [14th Dist.] 2008, no pet.). A
trial court abuses its discretion if it acts in an arbitrary or unreasonable manner
without reference to guiding rules or principles. Jelinek v. Casas, 328 S.W.3d 526,
539 (Tex. 2010). When reviewing matters committed to a trial court’s discretion,
we may not substitute our own judgment for that of the trial court. Bowie Mem’l
Hosp. v. Wright, 79 S.W.3d 48, 52 (Tex. 2002). A trial court does not abuse its
discretion merely because it decides a discretionary matter differently than an
appellate court would in a similar circumstance. Harris Cty. Hosp. Dist. v. Garrett,
232 S.W.3d 170, 176 (Tex. App.—Houston [1st Dist.] 2007, no pet.). But a trial
court has no discretion in determining what the law is or in applying the law to the
facts. See Walker v. Packer, 827 S.W.2d 833, 840 (Tex. 1992). In conducting our
review, we always consider that the Legislature’s goal in requiring expert reports is
to deter baseless claims, not block earnest ones. Jackson v. Kindred Hosps. Ltd.
P’ship, 565 S.W.3d 75, 81 (Tex. App.—Fort Worth 2018, pet. denied); Gonzalez v.
Padilla, 485 S.W.3d 236, 242 (Tex. App.—El Paso 2016, no pet.); see also Scoresby
v. Santillan, 346 S.W.3d 546, 554 (Tex. 2011).
Under the Texas Medical Liability Act (“TMLA”), a plaintiff asserting a
health care liability claim must timely serve each defendant physician and health
16
care provider17 with at least one expert report, with a CV for the expert whose
opinion is offered, to substantiate the merits of the plaintiff’s claim. TEX. CIV. PRAC.
& REM. CODE ANN. § 74.351(a), (i); see also Mangin v. Wendt, 480 S.W.3d 701, 705
(Tex. App.—Houston [1st Dist.] 2015, no pet.). The expert report must provide a
“fair summary” of the expert’s opinions on (1) the applicable standard of care,
(2) the manner in which the care rendered by the defendant physician or health care
provider failed to meet the standard of care, and (3) the causal relationship between
that failure and the injury, harm, or damages claimed. TEX. CIV. PRAC. & REM. CODE
ANN. § 74.351(r)(6); see also Certified EMS, Inc. v. Potts, 392 S.W.3d 625, 630
(Tex. 2013). A “fair summary” of the expert’s opinions means that, at the least, the
report must state more than the expert’s mere conclusions as to the standard of care,
breach, and causation; it must instead explain the basis of the expert’s opinion so as
to link the conclusions to the facts of the case. See Jelinek, 328 S.W.3d at 539;
Wright, 79 S.W.3d at 52.
If a plaintiff fails to timely serve an expert report, then, on the motion of a
defendant physician or health care provider, the trial court must dismiss the pertinent
health care liability claim with prejudice and award attorney’s fees. TEX. CIV. PRAC.
& REM. CODE ANN. § 74.351(b); Baty v. Futrell, 543 S.W.3d 689, 692 (Tex. 2018).
17
See TEX. CIV. PRAC. & REM. CODE ANN. § 74.001(a)(12)(A) (defining “[h]ealth
care provider” (internal quotations omitted)).
17
But if a plaintiff timely serves an expert report and a defendant physician or health
care provider files a motion challenging the adequacy of that report, then the trial
court may only grant the motion “if it appears to the court, after [a] hearing, that the
report does not represent an objective good faith effort to comply with the [TMLA’s]
definition of an expert report.” TEX. CIV. PRAC. & REM. CODE ANN. § 74.351(l);
Baty, 543 S.W.3d at 692–93; see also TEX. CIV. PRAC. & REM. CODE ANN.
§ 74.351(r)(6) (“[e]xpert report” means “a written report by an expert that provides
a fair summary of the expert’s opinions as of the date of the report regarding
applicable standards of care, the manner in which the care rendered by the physician
or health care provider failed to meet the standards, and the causal relationship
between that failure and the injury, harm, or damages claimed” (internal quotations
omitted)).
An expert report qualifies as an “objective good faith effort” to avoid
dismissal if it discusses each element with sufficient specificity so that it (1) informs
the defendant physician or health care provider of the specific conduct that the
plaintiff questions or about which the plaintiff complains and (2) provides a basis
for the trial court to conclude that the plaintiff’s health care liability claim has merit.
Miller v. JSC Lake Highlands Operations, LP, 536 S.W.3d 510, 513 (Tex. 2017);
see also Baty, 543 S.W.3d at 693–94. The expert report need not use any particular
18
words, and it may be informal, “but bare conclusions will not suffice.” Scoresby,
346 S.W.3d at 555–56.
In determining whether an expert report constitutes an “objective good faith
effort” to address each element, “a trial court may not draw inferences; instead, it
must exclusively rely upon the information contained within the four corners of the
report.” Puppala v. Perry, 564 S.W.3d 190, 197 (Tex. App.—Houston [1st Dist.]
2018, no pet.) (internal quotations omitted). And when the issue of adequacy hinges
on an expert’s qualifications, the trial court may also consider the “four corners” of
the expert’s CV. Id.; Mangin, 480 S.W.3d at 706. Courts must view the report in
its entirety, rather than isolating specific portions or sections, to determine whether
it is sufficient. See Baty, 543 S.W.3d at 694; see, e.g., Van Ness v. ETMC First
Physicians, 461 S.W.3d 140, 144 (Tex. 2015); see also Austin Heart, P.A. v. Webb,
228 S.W.3d 276, 282 (Tex. App.—Austin 2007, no pet.) (“The form of the report
and the location of the information in the report are not dispositive.”). In reviewing
the adequacy of an expert report, a trial court may not consider an expert’s
credibility, the data relied on by the expert, or the documents that the expert failed
to consider at this pre-discovery stage of the litigation. See Mettauer v. Noble, 326
S.W.3d 685, 691–92 (Tex. App.—Houston [1st Dist.] 2010, no pet.); Gonzalez, 485
S.W.3d at 245.
19
Multiple expert reports may be considered together in determining whether a
plaintiff has provided a report meeting the statutory requirements. See TEX. CIV.
PRAC. & REM. CODE ANN. § 74.351(i); Salias v. Tex. Dep’t of Aging & Disability
Servs., 323 S.W.3d 527, 534 (Tex. App.—Waco 2010, pet. denied); Walgreen Co.
v. Hieger, 243 S.W.3d 183, 186 n.2 (Tex. App.—Houston [14th Dist.] 2007, pet.
denied). A single report addressing both liability and causation issues related to a
defendant physician or health care provider is not required. See TEX. CIV. PRAC. &
REM. CODE ANN. § 74.351(i); Gannon v. Wyche, 321 S.W.3d 881, 896 (Tex. App.—
Houston [14th Dist.] 2010, pet. denied). When an expert report has been
supplemented, a court considers both the original expert report and the supplemental
expert report when reviewing their adequacy. See Scherer v. Gandy, No.
07-18-00341-CV, 2019 WL 988174, at *2 n.4 (Tex. App.—Amarillo Feb. 28, 2019,
no pet.) (mem. op.); see also Packard v. Guerra, 252 S.W.3d 511, 527 (Tex. App.—
Houston [14th Dist.] 2008, pet. denied). The multiple expert reports, when read
together, must provide a “fair summary” of the expert’s opinions on (1) the
applicable standard of care, (2) the manner in which the care rendered by the
defendant physician or health care provider failed to meet the standard of care, and
(3) the causal relationship between that failure and the injury, harm, or damages
claimed. See TEX. CIV. PRAC. & REM. CODE ANN. § 74.351(i), (r)(6); see also
Gannon, 321 S.W.3d at 896.
20
Dr. Kuhn and Women’s Healthcare
In his sole issue, Dr. Kuhn argues that the trial court erred in overruling his
objections to Dr. Paine’s expert reports and denying his motion to dismiss Sam’s
health care liability claim against him because Dr. Paine’s expert reports do not
adequately address the standard of care and causation as it relates to Dr. Kuhn. In
its sole issue, Women’s Healthcare argues that the trial court erred in overruling its
objections to Dr. Paine’s expert reports and denying its motion to dismiss Sam’s
vicarious liability health care liability claim against it because Dr. Paine’s expert
reports do not adequately address the standard of care and causation as it relates to
Dr. Kuhn.
A. Standard of Care Related to Dr. Kuhn
In a portion of his sole issue, Dr. Kuhn argues that Dr. Paine’s expert reports
do not adequately address the standard of care as it relates to him because the expert
reports do not “provide Dr. Kuhn with specific information about what he should
have done differently.”
Identifying the standard of care in a health care liability claim is critical.
Palacios, 46 S.W.3d at 880. To adequately identify the standard of care, an expert
report must set forth “specific information about what the defendant [physician]
should have done differently.” Abshire v. Christus Health Se. Tex., 563 S.W.3d 219,
226 (Tex. 2018) (internal quotations omitted). Thus, related to standard of care and
21
breach, the expert report must explain what the defendant physician should have
done under the circumstances and what the physician did instead. Palacios, 46
S.W.3d at 880; see also Kline v. Leonard, No. 01-19-00323-CV, 2019 WL 6904720,
at *7 (Tex. App.—Houston [1st Dist.] Dec. 19, 2019, pet. denied) (mem. op.) (“[A]n
expert report must provide a fair summary of the expert’s opinion regarding the
applicable standard of care and the manner in which the care rendered by the health
care provider failed to meet the standard.” (internal quotations omitted)). It is not
sufficient for the expert to simply state that he knows the standard of care and
concludes that it was or was not met. Palacios, 46 S.W.3d at 880.
As to the applicable standard of care related to Dr. Kuhn, Dr. Paine, in his
expert reports, states that bowel injuries, like a bowel perforation, are a well-known
complication of a hysterectomy. On average they occur in one out of every 700
cases. But if a hysterectomy is performed when adhesions are present and when an
extensive bowel dissection is also required, the rate of bowel injuries increases. A
bowel perforation should be diagnosed three days after a hysterectomy. Given the
difficulties with Sam’s hysterectomy and the extensive dissection that was required
during her initial surgery, Dr. Kuhn, Sam’s gynecologist, should have considered
and suspected a bowel perforation by the third day after Sam’s surgery, when Sam
was experiencing pain, fever, nausea, and vomiting and a CT scan showed “a
collection of fluid and [a] probable blood clot in [her] pelvis.” The standard of care
22
required Dr. Kuhn to suspect, recognize, and diagnose a bowel perforation by the
third day after Sam’s surgery and also required him to take Sam to surgery “to look
for and treat the injury.” Additionally, on the sixth day after surgery, when Sam’s
bowel perforation was actually diagnosed, the standard of care required Dr. Kuhn to
recommend surgery to Sam and to immediately perform surgery to repair her bowel
perforation. See Baty, 543 S.W.3d at 694 (courts must view report in its entirety,
rather than isolating specific portions or sections, to determine whether it is
sufficient); Webb, 228 S.W.3d at 282 (“The form of the report and the location of
the information in the report are not dispositive.”).
Dr. Paine’s statements about the applicable standard of care for Dr. Kuhn are
not vague or conclusory. Rather, the expert reports identify the specific actions that
should have been taken by Dr. Kuhn but were not. See Abshire, 563 S.W.3d at 226–
27; see also Baty, 543 S.W.3d at 695 (report not conclusory where it did not require
one to infer what defendant physician should have done differently); Keepers v.
Blessett, No. 01-18-01020-CV, 2019 WL 1523368, at *5 (Tex. App.—Houston [1st
Dist.] Apr. 9, 2019, no pet.) (mem. op.) (expert report is adequate where it informs
defendant physician of expert’s opinion on what defendant should have done and
what the defendant did instead). The stated standard of care need not be complicated
for it to be sufficient. See, e.g., Baty, 543 S.W.3d at 697; see also Keepers, 2019
WL 1523368, at *5–6 (“At times, the standard of care can be fairly basic.” (internal
23
quotations omitted)). Dr. Paine clearly identifies the applicable standard of care
related to Dr. Kuhn. The expert reports provide “enough information” for the trial
court to have concluded that they constitute a good-faith effort to set forth the
applicable standard of care related to Dr. Kuhn.18 See Miller, 536 S.W.3d at 515–
17; see also New Med. Horizons, II, Ltd. v. Milner, 575 S.W.3d 53, 60, 64 (Tex.
App.—Houston [1st Dist.] 2019, no pet.); Mettauer, 326 S.W.3d at 691 (not court’s
role to determine truth or falsity of expert’s opinion, or truth or falsity of facts upon
which expert bases such opinions, but only to act as gatekeeper in evaluating
sufficiency of report itself).
We conclude that the trial court could have reasonably determined that Dr.
Paine’s expert reports represent an “objective good faith effort” to inform Dr. Kuhn
of the specific conduct called into question, the standard of care that should have
been followed, and what Dr. Kuhn should have done differently. Thus, we hold that
the trial court did not err in overruling Dr. Kuhn’s objections and denying Dr. Kuhn’s
18
To the extent Dr. Kuhn asserts that Dr. Paine has not accurately stated the standard
of care, that complaint does not support a dismissal at this stage of the litigation.
See Aggarwal v. Trotta, No. 01-19-00012-CV, 2019 WL 2426172, at *4 n.5 (Tex.
App.—Houston [1st Dist.] June 11, 2019, no pet.) (mem. op.) (“To the extent [that
the defendant physician] disputes that [the expert] has accurately stated the standard
of care, his complaint does not support a Chapter 74 dismissal.”); Engh v. Reardon,
No. 01-09-00017-CV, 2010 WL 4484022, at *8 (Tex. App.—Houston [1st Dist.]
Nov. 10, 2010, no pet.) (mem. op.) (“The [physicians] also challenge the accuracy
of [the expert’s] opinions with respect to [the] standard of care. Whether [the
expert’s] opinions regarding the applicable standard[] of care are correct, however,
is an issue for summary judgment, not a motion to dismiss under Chapter 74.”).
24
motion to dismiss Sam’s health care liability claim against him on the ground that
Dr. Paine’s expert reports do not adequately address the standard of care as to Dr.
Kuhn.
We overrule this portion of Dr. Kuhn’s sole issue.
B. Causation Related to Dr. Kuhn
In the remaining portion of his sole issue, Dr. Kuhn argues that Dr. Paine’s
expert reports do not adequately address causation as it relates to him because the
expert reports do not establish a causal link between Dr. Kuhn’s conduct and Sam’s
injuries, the reports contain analytical gaps between Dr. Kuhn’s alleged breach of
the standard of care and Sam’s alleged injury, and Dr. Paine’s causation opinion is
conclusory.
An expert report must provide a “fair summary” of the expert’s opinion on the
causal relationship between the failure of a defendant physician to provide care in
accord with the applicable standard of care and the plaintiff’s claimed injury, harm,
or damages. TEX. CIV. PRAC. & REM. CODE ANN. § 74.351(r)(6); see also Potts, 392
S.W.3d at 630. The expert report must explain how and why the defendant
physician’s breach of the standard of care proximately caused the plaintiff’s injury.
Columbia Valley Healthcare Sys., L.P. v. Zamarripa, 526 S.W.3d 453, 459–60 (Tex.
2017). An expert report need not marshal all the plaintiff’s proof necessary to
establish causation at trial, and it need not anticipate or rebut all possible defensive
25
theories that may ultimately be presented to the trial court. Wright, 79 S.W.3d at 52;
Cornejo v. Hilgers, 446 S.W.3d 113, 123 (Tex. App.—Houston [1st Dist.] 2014, pet.
denied). But an expert cannot simply opine that the breach caused the injury.
Jelinek, 328 S.W.3d at 539.
Causation consists of two components: (1) cause-in-fact and
(2) foreseeability. Gunn v. McCoy, 554 S.W.3d 645, 658 (Tex. 2018). A defendant
physician’s breach was a cause-in-fact of the plaintiff’s injury if the breach was a
substantial factor in bringing about the harm, and absent the breach the harm would
not have occurred. Id. Even if the harm would not have occurred absent the
defendant physician’s breach, “the connection between the defendant and the
plaintiff’s injuries simply may be too attenuated” for the breach to qualify as a
substantial factor. Allways Auto Grp., Ltd. v. Walters, 530 S.W.3d 147, 149 (Tex.
2017) (internal quotations omitted). A breach is not a substantial factor if it “does
no more than furnish the condition that makes the plaintiff’s injury possible.” Id. A
defendant physician’s breach is a foreseeable cause of the plaintiff’s injury if
physician of ordinary intelligence would have anticipated the danger caused by the
negligent act or omission. Puppala, 564 S.W.3d at 197.
As to standard of care and breach of the standard of care, Dr. Paine, in his
expert reports, states that bowel injuries, like a bowel perforation, are a well-known
complication of a hysterectomy. On average they occur in one out of every 700
26
cases. But if a hysterectomy is performed when adhesions are present and when an
extensive bowel dissection is also required, the rate of bowel injuries increases. A
bowel perforation should be diagnosed three days after a hysterectomy. Given the
difficulties with Sam’s hysterectomy and the extensive dissection that was required
during her initial surgery, Dr. Kuhn, Sam’s gynecologist, should have considered
and suspected a bowel perforation by the third day after Sam’s surgery, when Sam
was experiencing pain, fever, nausea, and vomiting and a CT scan showed “a
collection of fluid and [a] probable blood clot in [her] pelvis.” The standard of care
required Dr. Kuhn to suspect, recognize, and diagnose a bowel perforation by the
third day after Sam’s surgery and take Sam to surgery “to look for and treat the
injury.” Dr. Kuhn, by not doing either of those things, breached the standard of care.
Additionally, on the sixth day after her initial surgery, when Sam’s bowel
perforation was actually diagnosed, the standard of care required Dr. Kuhn to
recommend surgery to Sam and to immediately perform surgery to repair the bowel
perforation. But Dr. Kuhn did not do either of those things. Instead, he decided to
“treat [Sam’s] condition conservatively,” by draining the fluid that was present.
There is no precedent for “conservative management” of a bowel perforation when
there is evidence of bowel contents and gas free in the peritoneal cavity. (Internal
quotations omitted.) Dr. Kuhn’s failure to take any action to repair Sam’s bowel
perforation, including his failure to consult with someone from general surgery to
27
explore Sam’s abdomen and repair the bowel perforation, after the bowel perforation
diagnosis on the sixth day following Sam’s initial surgery was a breach of the
standard of care. Further, Dr. Kuhn breached the standard of care by waiting until
the tenth day after Sam’s initial surgery to return Sam to surgery to repair the bowel
perforation because it should have been repaired immediately upon its diagnosis.
As to causation, Dr. Paine, in his expert reports, states that because of the
aforementioned breaches by Dr. Kuhn, Sam’s condition worsened and endangered
her life. Dr. Paine explained that a bowel perforation is a surgical emergency that
requires immediate intervention. Immediate exploration, wash out of the peritoneal
cavity, and repair of the bowel perforation is required. Any course of action other
than immediate exploration, wash out, and repair, causes worsening peritonitis,
sepsis, and possible death. According to Dr. Paine, Dr. Kuhn’s failure to timely
diagnose the bowel perforation, decision to pursue “conservative management” of
Sam’s bowel perforation after it was diagnosed on the sixth day after her initial
surgery, failure to recommend surgical exploration and repair of the bowel
perforation upon diagnosis, failure to not immediately repair the bowel perforation
upon diagnosis, and decision to delay the repair of Sam’s bowel perforation until the
tenth day after her initial surgery, caused Sam’s condition to deteriorate and allowed
for the continued leakage of bowel contents into the peritoneal cavity. (Internal
quotations omitted.) Without a repair of Sam’s bowel perforation, bowel contents
28
continued to flow into Sam’s peritoneal cavity “with all the bacteria, chemicals[,]
and irritants [that] allow[] [an] infection to grow and worsen.” The bowel leakage
caused severe damage to Sam’s physiology and permanent residual damage. And
because the infection was allowed to grow, this led to a more complicated recovery
process for Sam, a longer hospital stay, and long-term damage. Sam could not
recover from the bowel perforation until it was actually repaired.
Further, during the surgery to repair Sam’s bowel perforation, a diverting
ileostomy had to be performed. According to Dr. Paine, the ileostomy was required
because of a marked inflammatory reaction to bowel leakage for an extended length
of time, i.e., four days after the bowel-perforation diagnosis and ten days after Sam’s
initial surgery. Had the bowel perforation been repaired at the time it was diagnosed,
a colostomy would have been possible.
Dr. Paine also explains that peritonitis and sepsis, which are life-threatening
conditions, can arise from a bowel perforation, and in such cases, they will not be
resolved until the bowel perforation is repaired. Here, because of Dr. Kuhn’s
aforementioned breaches, Sam’s peritonitis and sepsis grew worse—which is what
happens when an infection is not properly treated and the source of the infection is
not appropriately and timely addressed. Sam’s condition worsened and endangered
her life.
29
In determining whether an expert’s causation opinion is conclusory, we must
remain mindful that expert-report challenges are made at an early, pre-discovery
stage in the litigation, not when the merits of the health care liability claim are being
presented to the fact finder to determine liability. Puppala, 564 S.W.3d at 198. To
provide more than a conclusory statement on causation, an expert report must
include an “explanation tying the conclusion to the facts” and showing “how and
why the breach caused the injury based on the facts presented.” Jelinek, 328 S.W.3d
at 539–40; see also Puppala, 564 S.W.3d at 197. The expert report need only
provide some basis that the defendant physician’s act or omission proximately
caused injury. Owens v. Handyside, 478 S.W.3d 172, 187–88 (Tex. App.—Houston
[1st Dist.] 2015, pet. denied); see also Palacios, 46 S.W.3d at 879 (explaining “a
plaintiff need not present evidence in the report as if it were actually litigating the
merits. . . . [T]he information in the report does not have to meet the same
requirements as the evidence offered in a summary-judgment proceeding or at
trial”).
Here, Dr. Paine’s causation opinion is in line with those found sufficient in
other health-care-liability cases at this stage of the litigation where experts have
opined that had the defendant physician not breached the standard of care, a proper
diagnosis and medical intervention would have been achieved and the plaintiff’s
injury, harm, or damages would have been avoided. See, e.g., Whitmire v. Feathers,
30
No. 01-19-00094-CV, 2020 WL 4983321, at *15–16 (Tex. App.—Houston [1st
Dist.] Aug. 25, 2020, no pet.) (mem. op.); Puppala, 564 S.W.3d at 198–202; Owens,
478 S.W.3d at 187–91. An expert may show causation by explaining a chain of
events that begins with the defendant physician’s negligence and ends in injury to
the plaintiff. See Whitmire, 2020 WL 4983321, at *16; Owens, 478 S.W.3d at 189;
McKellar v. Cervantes, 367 S.W.3d 478, 485–86 (Tex. App.—Texarkana 2012, no
pet.); see also Christus Spohn Health Sys. Corp. v. Hinojosa, No. 04-16-00288-CV,
2016 WL 7383819, at *6 (Tex. App.—San Antonio Dec. 21, 2016, no pet.) (mem.
op.) (expert report specified signs and symptoms that should have prompted
defendant physician to admit patient to hospital for treatment; expert then opined
that if patient had been admitted at least two things would have occurred). Here, Dr.
Paine’s expert reports explain the connection between Dr. Kuhn’s alleged negligent
conduct and the claimed injury, harm, or damages. See THN Physicians Ass’n v.
Tiscareno, 495 S.W.3d 599, 614 (Tex. App.—El Paso 2016, no pet.) (“[T]he expert
must at a minimum explain the connection between [the physician’s] conduct and
the injury to the patient.”); see also Whitmire, 2020 WL 4983321, at *16; Owens,
478 S.W.3d at 189 (expert may show causation by explaining chain of events that
begins with defendant physician’s negligence and ends in injury to plaintiff);
McKellar, 367 S.W.3d at 485–86.
31
Finally, we note that Dr. Kuhn asserts that Dr. Paine’s expert reports “do not
address whether treating conservatively, by treating the symptoms of [the] infection
without treating the source, might have reasonably ke[pt] . . . Sam’s condition from
worsening.” But an expert report need not address all hypothetical scenarios. See
Whitmire, 2020 WL 4983321, at *16; VHS San Antonio Partners LLC v. Garcia,
No. 04-09-00297-CV, 2009 WL 3223178, at *6 (Tex. App.—San Antonio Oct. 7.
2009, pet. denied) (mem. op.). And although the law requires an expert report to
link the expert’s conclusion on causation with the alleged breach of the standard of
care, nothing requires the expert report to address or rule out all other possible
scenarios. See Whitmire, 2020 WL 4983321, at *16; Garcia, 2009 WL 3223178, at
*6; see also Owens, 478 S.W.3d at 187 (report “need not anticipate or rebut all
possible defensive theories that may ultimately be presented” in case). The
correctness of Dr. Paine’s opinion is not at issue in this stage of the litigation. See
Potts, 392 S.W.3d at 632; Whitmire, 2020 WL 4983321, at *16.
We conclude that the trial court could have reasonably determined that Dr.
Paine’s expert reports represent an “objective good faith effort” to inform Dr. Kuhn
of the causal relationship between Dr. Kuhn’s purported failure to provide care in
accord with the appliable standard of care and the claimed injury, harm, or damages.
See Zamarripa, 526 S.W.3d at 460 (as long as report makes “a good-faith effort to
explain, factually, how proximate cause is going to be proven,” it satisfies TMLA’s
32
threshold requirement); Kelly v. Rendon, 255 S.W.3d 665, 679 (Tex. App.—Houston
[14th Dist.] 2008, no pet.) (emphasizing expert reports “are simply a preliminary
method to show a plaintiff has a viable cause of action that is not frivolous or without
expert support”). Thus, we hold that the trial court did not err in overruling Dr.
Kuhn’s objections and denying Dr. Kuhn’s motion to dismiss Sam’s health care
liability claim against him on the ground that Dr. Paine’s expert reports do not
adequately address causation as to Dr. Kuhn.
We overrule the remaining portion of Dr. Kuhn’s sole issue.19
C. Vicarious Liability Related to Women’s Healthcare
In its sole issue, Women’s Healthcare argues that the trial court erred in
overruling its objections to Dr. Paine’s expert reports and denying its motion to
dismiss Sam’s vicarious liability health care liability claim against it because Dr.
Paine’s expert reports do not adequately address the standard of care and causation
as it relates to Dr. Kuhn.
In her petition, Sam alleges that Women’s Healthcare is vicariously liable for
the conduct of Dr. Kuhn. Generally, when a plaintiff brings health care liability
claims against more than one defendant physician or health care provider, the expert
report must set forth the standard of care and breach of the standard of care as to
19
Due to our disposition, we need not address Dr. Kuhn’s request for attorney’s fees
and costs. See TEX. R. APP. P. 47.1.
33
each defendant and explain the causal relationship between each defendant’s
individual acts or omissions and the claimed injury. See TEX. CIV. PRAC. & REM.
CODE ANN. § 74.351(a), (r)(6); Seton Family of Hosps. v. White, 593 S.W.3d 787,
792 (Tex. App.—Austin 2019, pet. denied); Pharmacy Healthcare Sols., Ltd. v.
Pena, 530 S.W.3d 169, 175 (Tex. App.—Eastland 2015, pet. denied). Yet, when a
plaintiff brings a health care liability claim based on a vicarious liability theory
against a defendant health care provider, an expert report that adequately implicates
the actions of that party’s agent or employee is sufficient as to the defendant health
care provider. Gardner v. U.S. Imaging, Inc., 274 S.W.3d 669, 671–72 (Tex. 2008);
Seton Family, 593 S.W.3d at 792; see also Owens, 478 S.W.3d at 191 (“[W]hen a
health care liability claim involves a vicarious liability theory, either alone or in
combination with other theories, an expert report that meets the statutory standards
as to the employee is sufficient to implicate the employer’s conduct under the
vicarious theory.” (alteration in original) (internal quotations omitted)). In other
words, when a health care liability claim against a defendant health care provider is
based on vicarious liability, an expert report that meets the statutory standards as to
an agent or employee is sufficient to implicate the health care provider’s conduct.
Potts, 392 S.W.3d at 632; Seton Family, 593 S.W.3d at 792; see also Owens, 478
S.W.3d at 191–92 (expert report that is sufficient as to employee or agent, on whose
34
alleged negligent conduct vicarious liability claim was based, is also sufficient as to
employer health care provider).
Having held that the trial court did not err in overruling Dr. Kuhn’s objections
to Dr. Paine’s expert reports and denying Dr. Kuhn’s motion to dismiss Sam’s direct
liability health care liability claim against him because Dr. Paine’s expert reports
meet the requirements of chapter 74 related to Dr. Kuhn, we hold that Sam may also
proceed on the vicarious liability health care liability claim against Women’s
Healthcare which is based on the conduct of Dr. Kuhn. See Potts, 392 S.W.3d at
632; Gardner, 274 S.W.3d at 671–72; Owens, 478 S.W.3d at 191–92; see also Ctr.
for Neurological Disorders, P.A. v. George, 261 S.W.3d 285, 295 (Tex. App.—Fort
Worth 2008, pet. denied) (“[I]f the expert report is sufficient as to the claims against
Dr. Ward, and we have held that it is[,] . . . then the report is sufficient as to [the]
claims against CND that are based on Dr. Ward’s alleged negligence.”).
We overrule Women’s Healthcare’s sole issue.
Dr. James and Metropolitan Houston
In his sole issue, Dr. James argues that the trial court erred in overruling his
objections to Dr. Paine’s expert reports and denying his motion to dismiss Sam’s
health care liability claim against him because Dr. Paine is not qualified to offer an
opinion on the standard of care and causation related to Dr. James and Dr. Paine’s
expert reports do not adequately address causation as it relates to Dr. James. In its
35
sole issue, Metropolitan Houston argues that the trial court erred in overruling its
objections to Dr. Paine’s expert reports and denying its motion to dismiss Sam’s
vicarious liability health care liability claim against it because Dr. Paine is not
qualified to offer an opinion on the standard of care and causation related to Dr.
James and Dr. Paine’s expert reports do not adequately address causation as it relates
to Dr. James.
A. Dr. Paine’s Qualifications Related to Standard of Care
In a portion of his sole issue, Dr. James argues that Dr. Paine is not qualified
to offer an opinion on the standard of care related to Dr. James because Dr. Paine’s
expert reports and CV do not “reflect that he is qualified . . . to opine on the standard
of care for a consulting surgeon such as Dr. James with respect to surgical
post-operative management of a patient who has undergone a hysterectomy with a
bowel perforation.” Dr. James further asserts that his practice area is general
surgery, while Dr. Paine’s practice area is obstetrics and gynecology, and “the fact
that Dr. Paine is familiar with post-operative care for hysterectomy patients does not
mean that he is knowledgeable about the standard of care applicable to a general
surgeon . . . who is consulted in the circumstances presented in this case.”
An expert report by a person not qualified to testify does not constitute a
good-faith effort to comply with the TMLA’s definition of an expert report and
warrants dismissal. See Mettauer, 326 S.W.3d at 693; Hendrick Med. Ctr. v.
36
Conger, 298 S.W.3d 784, 789 (Tex. App.—Eastland 2009, no pet.) (where expert
not qualified to offer opinion, expert report is rendered deficient); see also TEX. CIV.
PRAC. & REM. CODE ANN. § 74.351(l), (r)(6). Whether an expert witness is qualified
to offer an expert opinion lies within the sound discretion of the trial court. Cornejo,
446 S.W.3d at 121. The expert’s qualifications must appear in the four corners of
the expert report or in the expert’s accompanying CV. Puppala, 564 S.W.3d at 197,
202; see also Cornejo, 446 S.W.3d at 121.
In a suit involving a health care liability claim against a physician, a person is
qualified as an expert on the issue of whether the physician departed from the
accepted standard of care, if the expert is a physician who:
1. is practicing medicine[20] at the time such testimony is given or
was practicing medicine at the time the claim arose;
2. has knowledge of accepted standards of medical care for the
diagnosis, care, or treatment of the illness, injury, or condition
involved in the claim; and
3. is qualified on the basis of training or experience to offer an
expert opinion regarding those accepted standards of medical
care.
20
“[P]racticing medicine . . . includes, but is not limited to, training residents or
students at an accredited school of medicine or osteopathy or serving as a consulting
physician to other physicians who provided direct patient care, upon the request of
such other physicians.” TEX. CIV. PRAC. & REM. CODE ANN. § 74.401(b) (internal
quotations omitted).
37
TEX. CIV. PRAC. & REM. CODE ANN. § 74.401(a); see also id. § 74.351(r)(5)(A)
(“[e]xpert” means “with respect to a person giving opinion testimony regarding
whether a physician departed from accepted standards of medical care, an expert
qualified to testify under the requirements of [s]ection 74.401” (internal quotations
omitted); Methodist Hosp. v. Addison, 574 S.W.3d 490, 503 (Tex. App.—Houston
[14th Dist.] 2018, no pet.). In determining whether a witness is “qualified on the
basis of training or experience” to offer an expert opinion about the applicable
standard of medical care,
the court shall consider whether, at the time the claim arose or at the
time the testimony is given, the witness: (1) is board certified or has
other substantial training or experience in an area of medical practice
relevant to the claim; and (2) is actively practicing medicine in
rendering medical care services relevant to the claim.
TEX. CIV. PRAC. & REM. CODE ANN. § 74.401(c).
A physician serving as an expert need not be a specialist in the particular area
of the profession for which his testimony is offered. See Owens, 478 S.W.3d at 185;
Rittger v. Danos, 332 S.W.3d 550, 558–59 (Tex. App.—Houston [1st Dist.] 2009,
no pet.); see also Bailey v. Amaya Clinic Inc., 402 S.W.3d 359, 363–64 (Tex. App.—
Houston [14th Dist.] 2013, no pet.) (orthopedic surgeon qualified to opine about
standard of care applicable to dermatologist who was treating plaintiff for weight
loss with liposuction); Blan v. Ali, 7 S.W.3d 741, 745–46 (Tex. App.—Houston
[14th Dist.] 1999, no pet.) (“Despite the fact that we live in a world of niche medical
38
practices and multilayer specializations, there are certain standards of medical care
that apply to multiple schools of practice and any medical [physician]. To
categorically disqualify a physician from testifying as to the standard of care solely
because he is from a different school of practice than the [physicians] charged with
malpractice ignores the criteria set out in [TMLA] and [Texas] Rule [of Evidence]
702.”). The plain language of the TMLA does not focus on the physician’s area of
expertise, but on the particular condition or circumstances involved in the plaintiff’s
claim. See TEX. CIV. PRAC. & REM. CODE ANN. § 74.401(a)(2); Rittger, 332 S.W.3d
at 558; see also Lee v. Le, No. 01-18-00309-CV, 2018 WL 4923938, at *4 (Tex.
App.—Houston [1st Dist.] Oct. 11, 2018, no pet.) (mem. op.) (“[T]he applicable
standard of care and an expert’s ability to opine on it are dictated by the medical
condition involved in the claim and the expert’s familiarity and experience with that
condition.” (internal quotations omitted)). The critical inquiry is whether the
expert’s expertise goes to the very matter on which he is to give an opinion. See
Broders, 924 S.W.2d at 152–53; Mangin, 480 S.W.3d at 707. It is Sam’s burden to
show that Dr. Paine is qualified to opine on the applicable standard of care as to Dr.
James. See Rittger, 332 S.W.3d at 558–59; Mem’l Hermann Healthcare Sys. v.
Burrell, 230 S.W.3d 755, 757, 762 (Tex. App.—Houston [14th Dist.] 2007, no pet.).
Dr. Paine’s expert reports and CV show that he is a licensed physician and is
board certified in obstetrics and gynecology. He has been practicing medicine in the
39
field of obstetrics and gynecology for thirty-five years. Currently, he is a member
of the teaching faculty as an associate professor in the department of obstetrics and
gynecology at the University of Texas Health Science Center in San Antonio. In his
position as an associate professor, he trains residents and students in obstetrics and
gynecology. He is actively practicing medicine in the field of obstetrics and
gynecology, and he was practicing medicine at the time Sam’s claims arose. See
TEX. CIV. PRAC. & REM. CODE ANN. § 74.401.
Dr. Paine has extensive experience in the field of obstetrics and gynecology,
and he has performed thousands of hysterectomies during his career. He has
knowledge of the accepted standards of medical and surgical care required for
patients needing hysterectomies. This includes knowledge of the standards of
pre-operative, inter-operative, and post-operative care required for patients who
have hysterectomies.
When Dr. Paine treats patients requiring hysterectomies, he provides
pre-operative, inter-operative, and post-operative care to his patients. Post-operative
care includes “following [a] patient after [a] surgery is complete[] to diagnose and
treat any complications that may arise from the surgical procedure.” This case
involves the purported failure of appellants, including Dr. James, to appropriately
care for and treat Sam after a hysterectomy, and Dr. Paine is familiar with the type
of post-operative care a patient, such as Sam, should receive and how post-operative
40
complications, like those experienced by Sam, should be managed and treated. See
Broders, 924 S.W.2d at 152–53 (focus is on “whether the expert’s expertise goes to
the very matter on which he . . . is to give an opinion”); Baylor Univ. Med. Ctr. v.
Biggs, 237 S.W.3d 909, 916 (Tex. App.—Dallas 2007, pet. denied) (“[T]he focus is
on the fit between the subject matter at issue and the expert’s familiarity with it, not
on a comparison of the expert’s title or specialty with that of the defendant . . . .”
(internal quotations omitted)); see also Owens, 478 S.W.3d at 186–87 (specific issue
in case was whether defendant physicians failed to timely and appropriately
diagnose and treat plaintiff’s condition and expert report showed that expert had
experience treating patients with condition suffered by plaintiff and he was familiar
with the standard of care applicable to physicians who care for patients with same
condition with which plaintiff presented).
We note that as to the standard of care and breach of the of the standard of
care for Dr. James, Dr. Paine, in his expert reports, states that bowel injuries, like a
bowel perforation, are a well-known complication of a hysterectomy. On average
they occur in one out of every 700 cases. But if a hysterectomy is performed when
adhesions are present and when an extensive bowel dissection is also required, the
rate of bowel injuries increases. A bowel perforation should be diagnosed three days
after a hysterectomy.
41
According to Dr. Paine, Dr. James was the general surgeon
“following . . . Sam[] post-hysterectomy.” Because Dr. James was the general
surgeon “following” Sam after her surgery, once Sam’s bowel perforation was
diagnosed on the sixth day after her surgery, the standard of care required Dr. James
to act upon the diagnosis by surgically repairing the bowel perforation immediately
or at least recommending surgical repair of the bowel perforation. But Dr. James
did not do so, and instead joined in the “conservative” treatment plan with Dr. Kuhn.
(Internal quotations omitted.) There is no precedent for “conservative management”
of a bowel perforation when there is evidence of bowel contents and gas free in the
peritoneal cavity. (Internal quotations omitted.) By failing to recommend surgical
repair of Sam’s bowel perforation and by failing to surgically repair the bowel
perforation immediately, Dr. James breached the standard of care. Further, Dr.
James breached the standard of care by waiting until the tenth day after Sam’s initial
surgery to return Sam to surgery to repair the bowel perforation because it should
have been repaired immediately upon its diagnosis.
Here, we conclude that Sam has met her burden of establishing that Dr. Paine
is qualified to offer an opinion on the standard of care related to Dr. James. See TEX.
CIV. PRAC. & REM. CODE ANN. § 74.401(a) (expert meets requirements of Texas
Civil Practice and Remedies Code [section] 74.401 if he (1) is practicing medicine,
(2) has knowledge of accepted standard of care for diagnosis, care, or treatment of
42
illness, injury, or condition involved in claim, and (3) is qualified on basis of training
or experience to offer expert opinion about accepted standard of care); Lee, 2018
WL 4923938, at *4 (“[T]he applicable standard of care and an expert’s ability to
opine on it are dictated by the medical condition involved in the claim and the
expert’s familiarity and experience with that condition.” (internal quotations
omitted)). The Texas Supreme Court has cautioned reviewing courts from drawing
expert qualifications too narrowly, as Dr. James has requested us to do in this case,
and we reemphasize that a proffered expert need not practice in the same specialty
as the defendant physician to qualify as an expert in the case. See Larson v.
Downing, 197 S.W.3d 303, 305 (Tex. 2006); Roberts v. Williamson, 111 S.W.3d
113, 122 (Tex. 2003); see also Owens, 478 S.W.2d at 186; Blan, 7 S.W.3d at 745(general surgeon qualified to testify about standard of care for post-operative
procedures performed by gynecologist because post-operative procedures are
common to both fields).
We hold that the trial court did not err in overruling Dr. James’s objections
and denying Dr. James’s motion to dismiss Sam’s health care liability claim against
him on the ground that Dr. Paine is not qualified to offer an opinion on the standard
of care related to Dr. James.
We overrule this portion of Dr. James’s sole issue.
43
B. Dr. Paine’s Qualifications Related to Causation
In another portion of his sole issue, Dr. James argues that Dr. Paine is not
qualified to offer an opinion on causation related to Dr. James because Dr. Paine’s
expert reports and CV do not show that Dr. Paine has “experience in handling
patients with peritonitis and sepsis secondary to a bowel perforation” or that he has
the qualifications “to opine on the cause of [Sam’s] alleged damages” and the
ramifications of the “alleged four[-]day delay in [the] surgical repair of [Sam’s]
bowel perforation.”
To be qualified to opine on the causal relationship between a defendant
physician’s alleged failure to meet an applicable standard of care and the plaintiff’s
claimed injury, harm, or damages, the author of an expert report must be a physician
who is qualified to render opinions on such causal relationships under the Texas
Rules of Evidence. See TEX. CIV. PRAC. & REM. CODE ANN. § 74.403(a); see id.
§ 74.351(r)(5)(C) (“[e]xpert” means “with respect to a person giving opinion
testimony about the causal relationship between the injury, harm, or damages
claimed and the alleged departure from the applicable standard of care in any health
care liability claim, a physician who is otherwise qualified to render opinions on
such causal relationship under the Texas Rules of Evidence” (internal quotations
omitted)); Cornejo, 446 S.W.3d at 120.
44
An expert witness may be qualified on the basis of knowledge, skill,
experience, training, or education to testify on scientific, technical, or other
specialized subjects if the testimony would “assist the trier of fact” in understanding
the evidence or determining a fact issue. Cornejo, 446 S.W.3d at 121 (internal
quotations omitted); see TEX. R. EVID. 702. Thus, a plaintiff must show that her
expert has “knowledge, skill, experience, training, or education” about the specific
issue before the court that would qualify the expert to give an opinion on that
particular subject. Broders, 924 S.W.2d at 153–54 (internal quotations omitted); see
also Cornejo, 446 S.W.3d at 121.
Not every licensed physician is qualified to testify on every medical question.
See Broders, 942 S.W.2d at 152–53; Cornejo, 446 S.W.3d at 121. Yet, a physician
need not practice in the particular field about which he is testifying so long as he can
demonstrate that he has knowledge, skill, experience, training, or education about
the specific issue before the court that would qualify him to give an opinion on that
subject. Cornejo, 446 S.W.3d at 121. Simply put, what is required is that the
physician demonstrate that he is qualified to opine on the specific issue before the
court. Puppala, 564 S.W.3d at 202.
Here it is asserted that Dr. James was the general surgeon
“following . . . Sam[] post-hysterectomy.” Because Dr. James was the general
surgeon “following” Sam after her surgery, once Sam’s bowel perforation was
45
diagnosed on the sixth day after her surgery, Dr. James should have acted upon the
diagnosis by surgically repairing the bowel perforation immediately or at least
recommending surgical repair of the bowel perforation. Instead, Dr. James joined
in the “conservative” treatment plan with Dr. Kuhn, although there is no precedent
for “conservative management” of a bowel perforation when there is evidence of
bowel contents and gas free in the peritoneal cavity. (Internal quotations omitted.)
By failing to recommend surgical repair of Sam’s bowel perforation and by failing
to surgically repair the bowel perforation immediately, Dr. James breached the
standard of care. Dr. James also breached the standard of care by waiting until the
tenth day after Sam’s initial surgery to return Sam to surgery to repair the bowel
perforation because it should have been repaired immediately upon its diagnosis.
It is also asserted that Dr. James’s breaches of the standard of care caused
Sam’s condition to worsen and endangered her life. A bowel perforation is a surgical
emergency that requires immediate intervention. Immediate exploration, wash out
of the peritoneal cavity, and repair of the bowel perforation is required. Any course
of action other than immediate exploration, wash out, and repair, causes worsening
peritonitis, sepsis, and possible death. Dr. James’s failure to recommend surgical
exploration and repair of Sam’s bowel perforation upon its diagnosis, to not
immediately repair the bowel perforation upon its diagnosis, and to not repair Sam’s
bowel perforation until the tenth day after her initial surgery caused Sam’s condition
46
to deteriorate and allowed for the continued leakage of bowel contents into the
peritoneal cavity. Without a repair of Sam’s bowel perforation, bowel contents
continued to flow into Sam’s peritoneal cavity “with all the bacteria, chemicals[,]
and irritants [that] allow[] [an] infection to grow and worsen.” The bowel leakage
caused severe damage to Sam’s physiology and permanent residual damage, and it
allowed for Sam’s peritonitis and sepsis to grow worse. And because Sam’s
infection was allowed to grow, this led to a more complicated recovery process for
Sam, a longer hospital stay, and long-term damage. Sam could not recover from the
bowel perforation until it was actually repaired.
Further, during the surgery to repair Sam’s bowel perforation, a diverting
ileostomy had to be performed. The ileostomy was required because of a marked
inflammatory reaction to bowel leakage for an extended length of time, i.e., four
days after the bowel-perforation diagnosis and ten days after Sam’s initial surgery.
Had the bowel perforation been repaired at the time it was diagnosed, a colostomy
would have been possible.
Sam has the burden of establishing that Dr. Paine has “knowledge, skill,
experience, training, or education” about whether Dr. James’s breaches of the
standard of care—by failing to recommend surgical exploration and repair of Sam’s
bowel perforation upon its diagnosis, not immediately repairing the bowel
perforation upon its diagnosis, and not repairing Sam’s bowel perforation until the
47
tenth day after Sam’s initial surgery—caused Sam’s claimed injury, harm, or
damages. See Matagorda v. Nursing & Rehab. Ctr., L.L.C. v. Brooks, No.
13-16-00266-CV, 2017 WL 127867, at *6 (Tex. App.—Corpus Christi–Edinburg
Jan. 12, 2017, no pet.) (mem. op.) (internal quotations omitted); Diagnostic
Research Grp. v. Vora, 473 S.W.3d 861, 869–70 (Tex. App.—San Antonio 2015,
no pet.); see also Cornejo, 446 S.W.3d at 121 (plaintiffs required to establish expert
qualified on basis of knowledge, skill, experience, training, or education to offer
opinion concerning causal link between alleged breaches of standard of care and
injuries suffered); Burrell, 230 S.W.3d at 757, 762 (party offering witness as expert
must establish witness is qualified).
In his expert reports, Dr. Paine states that he is a licensed physician and is
board certified in obstetrics and gynecology. He has been practicing in the field of
obstetrics and gynecology for thirty-five years. Currently, he is a member of the
teaching faculty as an associate professor in the department of obstetrics and
gynecology at the University of Texas Health Science Center in San Antonio. In his
position as an associate professor, he trains residents and students in obstetrics and
gynecology.
Dr. Paine is actively practicing medicine in the field of obstetrics and
gynecology, and he was practicing medicine at the time Sam’s claims arose. Dr.
Paine has extensive experience in the field of obstetrics and gynecology, and he, as
48
part of his medical practice, has performed thousands of hysterectomies during his
career. He has knowledge of the accepted standards of medical and surgical care
required for patients needing hysterectomies. This includes knowledge of the
standards of pre-operative, inter-operative, and post-operative care required for
patients who have hysterectomies.
When Dr. Paine treats patients requiring hysterectomies, he provides
pre-operative, inter-operative, and post-operative care to his patients. Post-operative
care includes “following [a] patient after [a] surgery is complete[] to diagnose and
treat any complications that may arise from the surgical procedure.” This case
involves the purported failure of appellants, including Dr. James, to appropriately
care for and treat Sam after a hysterectomy, and Dr. Paine is familiar with the type
of post-operative care a patient, such as Sam, should receive and how post-operative
complications, like those experienced by Sam, should be managed and treated.
We conclude that Dr. Paine’s expert reports and CV demonstrate that he is
qualified to offer an opinion on the causal link between Dr. James’s alleged breaches
while providing post-operative care after Sam’s hysterectomy and Sam’s injuries,
harm, and damages. See Jassin v. Bennett, No. 10-12-00053-CV, 2012 WL
5974020, at *5 (Tex. App.—Waco Nov. 29, 2012, no pet.) (mem. op.) (“We cannot
say that the trial court abused its discretion in . . . finding that Dr. Branch is qualified
to provide an expert report on causation for the complications that allegedly arose
49
from Dr. Jassin’s post-operative care following a sinus surgery that Dr. Branch says
he has performed approximately 200 times, along with providing the follow-up care
for those surgeries.”); Sloman-Moll v. Chavez, No. 04-06-00589-CV, 2007 WL
595134, at *3–4 (Tex. App.—San Antonio Feb. 28, 2007, pet. denied) (mem. op.)
(“It is axiomatic that a physician trained to perform a surgery is also trained to
manage surgical complications.”); Keo v. Vu, 76 S.W.3d 725, 733 (Tex. App.—
Houston [1st Dist.] 2002, pet. denied) (holding physician who regularly performed
surgery on head and neck was qualified to give opinion about issues common to all
surgeries, including treatment of post-operative infections); see also Columbia N.
Hills Hosp. Subsidiary, L.P. v. Alvarez, 382 S.W.3d 619, 630 (Tex. App.—Fort
Worth 2012, pet. denied) (“[A] physician needs only to show how he is qualified to
opine on the cause of the plaintiff’s injury.”).
Further, because we have concluded that that the trial court properly
determined that Dr. Paine is qualified to offer an opinion on the standard of care as
to Dr. James, it would have been reasonable for the trial court to also conclude that
Dr. Paine is qualified to offer an opinion on Dr. James’s failure to meet the standard
of care and the resulting harm. See Healy v. Mowat-Cudd, No. 04-20-00479-CV,
2021 WL 603369, at *2 n.1 (Tex. App.—San Antonio Feb. 17, 2021, no pet.) (mem.
op.); Legend Oaks-S. San Antonio, LLC v. Molina ex rel. Estates of Rocamontes, No.
04-14-00289-CV, 2015 WL 693225, at *5 (Tex. App.—San Antonio Feb. 18, 2015,
50
no pet.) (mem. op.); Jassin, 2012 WL 5974020, at *5; Hillcrest Baptist Med. Ctr. v.
Payne, No. 10-11-00191-CV, 2011 WL 5830469, at *7 (Tex. App.—Waco Nov. 16,
2011, pet. denied) (mem. op.); Whisenant v. Arnett, 339 S.W.3d 920, 927–28 (Tex.
App.—Dallas 2011, no pet.).
We hold that the trial court did not err in overruling Dr. James’s objections
and denying Dr. James’s motion to dismiss Sam’s health care liability claim against
him on the ground that Dr. Paine is not qualified to offer an opinion on causation
related to Dr. James.
We overrule this portion of Dr. James’s sole issue.
C. Causation Related to Dr. James
In the remaining portion of his sole issue, Dr. James argues that Dr. Paine’s
expert reports do not adequately address causation as it relates to him because the
expert reports do not establish a causal link between Dr. James’s conduct and Sam’s
injuries, Dr. Paine’s causation opinion is conclusory and speculative, and “Dr. Paine
fails to establish that ‘but for’ Dr. James’[s] alleged negligence, Sam’s outcome
would have been any different.”
An expert report must provide a “fair summary” of the expert’s opinion about
the causal relationship between the failure of a defendant physician to provide care
in accord with the applicable standard of care and the plaintiff’s claimed injury,
harm, or damages. TEX. CIV. PRAC. & REM. CODE ANN. § 74.351(r)(6); see also
51
Potts, 392 S.W.3d at 630. The expert report must explain how and why the
defendant physician’s breach of the standard of care proximately caused the
plaintiff’s injury. Zamarripa, 526 S.W.3d at 459–60. An expert report need not
marshal all the plaintiff’s proof necessary to establish causation at trial, and it need
not anticipate or rebut all possible defensive theories that may ultimately be
presented to the trial court. Wright, 79 S.W.3d at 52; Cornejo, 446 S.W.3d at 123.
But an expert cannot simply opine that the breach caused the injury. Jelinek, 328
S.W.3d at 539.
Causation consists of two components: (1) cause-in-fact and
(2) foreseeability. McCoy, 554 S.W.3d at 658. A defendant physician’s breach was
a cause-in-fact of the plaintiff’s injury if the breach was a substantial factor in
bringing about the harm, and absent the breach the harm would not have occurred.
Id. Even if the harm would not have occurred absent the defendant physician’s
breach, “the connection between the defendant and the plaintiff’s injuries simply
may be too attenuated” for the breach to qualify as a substantial factor. Allways Auto
Grp., 530 S.W.3d at 149 (internal quotations omitted). A breach is not a substantial
factor if it “does no more than furnish the condition that makes the plaintiff’s injury
possible.” Id. A defendant physician’s breach is a foreseeable cause of the
plaintiff’s injury if a physician of ordinary intelligence would have anticipated the
danger caused by the negligent act or omission. Puppala, 564 S.W.3d at 197.
52
As to standard of care and breach of the standard of care related to Dr. James,
Dr. Paine, in his expert reports, states that bowel injuries, like a bowel perforation,
are a well-known complication of a hysterectomy. On average they occur in one out
of every 700 cases. But if a hysterectomy is performed when adhesions are present
and when an extensive bowel dissection is also required, the rate of bowel injuries
increases.
Because Dr. James was the general surgeon “following . . . Sam[]
post-hysterectomy,” once Sam’s bowel perforation was diagnosed on the sixth day
after surgery, the standard of care required Dr. James to act upon the diagnosis by
surgically repairing the bowel perforation immediately or at least recommending
surgical repair of the bowel perforation. But James did not do so. Instead, he joined
in the “conservative” treatment plan with Dr. Kuhn. (Internal quotations omitted.)
There is no precedent for “conservative management” of a bowel perforation when
there is evidence of bowel contents and gas free in the peritoneal cavity. (Internal
quotations omitted.) By failing to recommend surgical repair of Sam’s bowel
perforation and failing to surgically repair the bowel perforation immediately after
its diagnosis, Dr. James breached the standard of care. Dr. James also breached the
standard of care by waiting until the tenth day after Sam’s initial surgery to return
Sam to surgery to repair the bowel perforation because it should have been repaired
immediately upon its diagnosis.
53
As to causation, Dr. Paine, in his expert reports, states that because of the
aforementioned breaches of the standard of care by Dr. James, Sam’s condition
worsened and endangered her life. Dr. Paine explained that a bowel perforation is a
surgical emergency that requires immediate intervention. Immediate exploration,
wash out of the peritoneal cavity, and repair of the bowel perforation is required.
Any course of action other than immediate exploration, wash out, and repair, causes
worsening peritonitis, sepsis, and possible death. According to Dr. Paine, Dr.
James’s failure to recommend surgical exploration and repair of Sam’s bowel
perforation upon its diagnosis, to not surgically repair the bowel perforation
immediately upon its diagnosis, and to not repair Sam’s bowel perforation until the
tenth day after her initial surgery caused Sam’s condition to deteriorate and allowed
for the continued leakage of bowel contents into the peritoneal cavity. Without a
repair of Sam’s bowel perforation, bowel contents continued to flow into Sam’s
peritoneal cavity “with all the bacteria, chemicals[,] and irritants [that] allow[] [an]
infection to grow and worsen.” The bowel leakage caused severe damage to Sam’s
physiology and permanent residual damage. And because the infection was allowed
to grow, this led to a more complicated recovery process for Sam, a longer hospital
stay, and long-term damage. Sam could not recover from the bowel perforation until
it was actually repaired.
54
Further, during the surgery to repair Sam’s bowel perforation, a diverting
ileostomy had to be performed. According to Dr. Paine, the ileostomy was required
because of a marked inflammatory reaction to bowel leakage for an extended length
of time, i.e., four days after the bowel-perforation diagnosis and ten days after Sam’s
initial surgery. Had the bowel perforation been repaired at the time it was diagnosed,
a colostomy would have been possible.
Dr. Paine also explains that peritonitis and sepsis, which are life-threatening
conditions, can arise from a bowel perforation, and in such cases, they will not be
resolved until the bowel perforation is repaired. Here, because of Dr. James’s
breaches of the standard of care, Sam’s peritonitis and sepsis grew worse—which is
what happens when an infection is not properly treated and the source of the
infection is not appropriately and timely addressed. Sam’s condition worsened and
endangered her life.
In determining whether an expert’s causation opinion is conclusory, we must
remain mindful that expert-report challenges are made at an early, pre-discovery
stage in the litigation, not when the merits of the health care liability claim are being
presented to the fact finder to determine liability. Puppala, 564 S.W.3d at 198. To
provide more than a conclusory statement on causation, an expert report must simply
include an “explanation tying the conclusion to the facts” and showing “how and
why the breach caused the injury based on the facts presented.” Jelinek, 328 S.W.3d
55at 539–40; see also Puppala, 564 S.W.3d at 197. The expert report need only
provide some basis that the defendant physician’s act or omission proximately
caused injury. Owens, 478 S.W.3d at 187–88; see also Palacios, 46 S.W.3d at 879
(explaining “a plaintiff need not present evidence in the report as if it were actually
litigating the merits. . . . [T]he information in the report does not have to meet the
same requirements as the evidence offered in a summary-judgment proceeding or at
trial”).
Here, Dr. Paine’s causation opinion is in line with those found sufficient in
other health-care-liability cases at this stage of the litigation where experts have
opined that had the defendant physician not breached the standard of care, a proper
diagnosis and medical intervention would have been achieved and the plaintiff’s
injury, harm, or damages would have been avoided. See, e.g., Whitmire, 2020 WL
4983321, at *15–16; Puppala, 564 S.W.3d at 198–202; Owens, 478 S.W.3d at 187–
91. An expert may show causation by explaining a chain of events that begins with
the defendant physician’s negligence and ends in injury to the plaintiff. See
Whitmire, 2020 WL 4983321, at *16; Owens, 478 S.W.3d at 189; McKellar, 367
S.W.3d at 485–86; see also Hinojosa, 2016 WL 7383819, at *6 (expert report
specified signs and symptoms that should have prompted defendant physician to
admit patient to hospital for treatment; expert then opined that if patient had been
admitted at least two things would have occurred). Dr. Paine’s expert reports explain
56
the connection between Dr. James’s alleged negligent conduct and the claimed
injury, harm, or damages. See Tiscareno, 495 S.W.3d at 614 (“[T]he expert must at
a minimum explain the connection between [the physician’s] conduct and the injury
to the patient.”); see also Whitmire, 2020 WL 4983321, at *16; Owens, 478 S.W.3d
at 189 (expert may show causation by explaining chain of events that begins with
defendant physician’s negligence and ends in injury to plaintiff); McKellar, 367
S.W.3d at 485–86.
Finally, we note that Dr. James asserts that Dr. Paine’s expert reports do not
establish that without Dr. James’s purported negligence “Sam’s outcome would have
been any different.” But an expert report need not address all hypothetical scenarios.
See Whitmire, 2020 WL 4983321, at *16; Garcia, 2009 WL 3223178, at *6. And
although the law requires an expert report to link the expert’s conclusion on
causation with the alleged breach of the standard of care, nothing requires the expert
report to address or rule out all other possible scenarios. See Whitmire, 2020 WL
4983321, at *16; Garcia, 2009 WL 3223178, at *6; see also Owens, 478 S.W.3d at
187 (report “need not anticipate or rebut all possible defensive theories that may
ultimately be presented” in case). The correctness of Dr. Paine’s opinion is not at
issue in this stage of the litigation. See Potts, 392 S.W.3d at 632; Whitmire, 2020
WL 4983321, at *16.
57
We conclude that the trial court could have reasonably determined that Dr.
Paine’s expert reports represent an “objective good faith effort” to inform Dr. James
of the causal relationship between Dr. James’s purported failure to provide care in
accord with the appliable standard of care and the claimed injury, harm, or damages.
See Zamarripa, 526 S.W.3d at 460 (as long as report makes “a good-faith effort to
explain, factually, how proximate cause is going to be proven,” it satisfies TMLA’s
threshold requirement); Kelly, 255 S.W.3d at 679 (emphasizing expert reports “are
simply a preliminary method to show a plaintiff has a viable cause of action that is
not frivolous or without expert support”). Thus, we hold that the trial court did not
err in overruling Dr. James’s objections and denying Dr. James’s motion to dismiss
Sam’s health care liability claim against him on the ground that Dr. Paine’s expert
reports do not adequately address causation as to Dr. James.
We overrule the remaining portion of Dr. James’s sole issue.21
D. Vicarious Liability Related to Metropolitan Houston
In its sole issue, Metropolitan Houston argues that the trial court erred in
overruling its objections to Dr. Paine’s expert reports and denying its motion to
dismiss Sam’s vicarious liability health care liability claim against it because Dr.
Paine is not qualified to offer an opinion on the standard of care and causation related
21
Due to our disposition, we need not address Dr. James’s request for attorney’s fees
and costs. See TEX. R. APP. P. 47.1.
58
to Dr. James and Dr. Paine’s expert reports do not adequately address causation as
it relates to Dr. James.
In her petition, Sam alleges that Metropolitan Houston is vicariously liable for
the conduct of Dr. James. Generally, when a plaintiff brings health care liability
claims against more than one defendant physician or health care provider, the expert
report must set forth the standard of care and breach of the standard of care as to
each defendant and explain the causal relationship between each defendant’s
individual acts or omissions and the claimed injury. See TEX. CIV. PRAC. & REM.
CODE ANN. § 74.351(a), (r)(6); Seton Family, 593 S.W.3d at 792; Pena, 530 S.W.3d
at 175. Yet, when a plaintiff brings a health care liability claim based on a vicarious
liability theory against a defendant health care provider, an expert report that
adequately implicates the actions of that party’s agent or employee is sufficient as
to the defendant health care provider. Gardner, 274 S.W.3d at 671–72; Seton
Family, 593 S.W.3d at 792; see also Owens, 478 S.W.3d at 191 (“[W]hen a health
care liability claim involves a vicarious liability theory, either alone or in
combination with other theories, an expert report that meets the statutory standards
as to the employee is sufficient to implicate the employer’s conduct under the
vicarious theory.” (alteration in original) (internal quotations omitted)). In other
words, when a health care liability claim against a defendant health care provider is
based on vicarious liability, an expert report that meets the statutory standards as to
59
an agent or employee is sufficient to implicate the health care provider’s conduct.
Potts, 392 S.W.3d at 632; Seton Family, 593 S.W.3d at 792; see also Owens, 478
S.W.3d at 191–92 (expert report that is sufficient as to employee or agent, whose
alleged negligent conduct vicarious liability claim was based, is also sufficient as to
employer health care provider).
Having held that the trial court did not err in overruling Dr. James’s objections
to Dr. Paine’s expert reports and denying Dr. James’s motion to dismiss Sam’s direct
liability health care liability claim against him because Dr. Paine’s expert reports
meet the requirements of chapter 74 related to Dr. James, we hold that Sam may also
proceed on the vicarious liability health care liability claim against Metropolitan
Houston which is based on the conduct of Dr. James. See Potts, 392 S.W.3d at 632;
Gardner, 274 S.W.3d at 671–72; Owens, 478 S.W.3d at 191–92; see also George,
261 S.W.3d at 295 (“[I]f the expert report is sufficient as to the claims against Dr.
Ward, and we have held that it is[,] . . . then the report is sufficient as to [the] claims
against CND that are based on Dr. Ward’s alleged negligence.”).
We overrule Metropolitan Houston’s sole issue.22
22
Due to our disposition, we need not address Metropolitan Houston’s request for
attorney’s fees and costs. See TEX. R. APP. P. 47.1.
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Dr. Morales, West Houston Radiology, and Radiology Partners
In his sole issue, Dr. Morales argues that the trial court erred in overruling his
objections to Dr. Paine’s expert reports and denying his motion to dismiss Sam’s
health care liability claim against him because Dr. Paine is not qualified to offer an
opinion on the standard of care and causation related to Dr. Morales and Dr. Paine’s
expert reports do not adequately address causation as it relates to Dr. Morales. In
their sole issues, West Houston Radiology and Radiology Partners argue that the
trial court erred in overruling their objections to Dr. Paine’s expert reports and
denying their motions to dismiss Sam’s vicarious liability health care liability claim
against them because Dr. Paine is not qualified to offer an opinion on the standard
of care and causation related to Dr. Morales and Dr. Paine’s expert reports do not
adequately address causation as it relates to Dr. Morales.
A. Preservation
In portions of their sole issues, Dr. Morales, West Houston Radiology, and
Radiology Partners argue that the trial court erred in overruling their objections to
Dr. Paine’s expert reports and in denying their motions to dismiss Sam’s health care
liability claims against them because Dr. Paine is not qualified to offer an opinion
on the standard of care related to Dr. Morales and Dr. Paine’s expert reports do not
adequately address causation as it relates to Dr. Morales.
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To preserve a complaint for appellate review, the record must show that the
complaint was made to the trial court by a timely request, objection, or motion and
the trial court either ruled on the party’s request, objection, or motion, or refused to
rule, and the party objected to that refusal. TEX. R. APP. P. 33.1(a). If a party fails
to do this, error is not preserved, and the complaint is waived. Bushell v. Dean, 803
S.W.2d 711, 712 (Tex. 1991); see also Humble Surgical Hosp., LLC v. Davis, 542
S.W.3d 12, 21 (Tex. App.—Houston [14th Dist.] 2017, pet. denied) (“Rule 33.1
requires the appealing party to adequately raise issues before the trial court to give
the trial court notice of [the party’s] complaint.”).
Texas Civil Practice and Remedies Code section 74.351(a) states, in pertinent
part, that a defendant physician or health care provider “whose conduct is implicated
in a[n] [expert] report must file and serve any objection to the sufficiency of the
report not later than the 21st day after the date the report is served or the 21st day
after the date the defendant’s answer is filed” and the failure to do so waives the
defendant’s objections. See TEX. CIV. PRAC. & REM. CODE ANN. § 74.351(a). In the
trial court, Dr. Morales, West Houston Radiology, and Radiology Partners timely
objected to Dr. Paine’s expert reports and requested that Sam’s health care liability
claims against them be dismissed. In doing so, they only objected that Dr. Paine is
not qualified to offer an opinion on causation related to Dr. Morales. Dr. Morales,
West Houston Radiology, and Radiology Partners did not assert in their objections
62
and motions to dismiss that Dr. Paine is not qualified to offer an opinion on the
standard of care related to Dr. Morales or that Dr. Paine’s expert reports do not
adequately address causation as it relates to Dr. Morales.
Because Dr. Morales, West Houston Radiology, and Radiology Partners did
not raise in the trial court their complaints that Dr. Paine is not qualified to offer an
opinion on the standard of care and that Dr. Paine’s expert reports do not adequately
address causation, we hold that they have not preserved those complaints for our
review. See id.; TEX. R. APP. P. 33.1(a); Armenta v. Jones, No. 01-17-00439-CV,
2018 WL 1095388, at *2, *7 (Tex. App.—Houston [1st Dist.] Mar. 1, 2018, no pet.)
(mem. op.) (where defendant physician did not object to expert report “on the basis
of inadequacy of the report as to causation,” defendant’s complaint about causation
waived because it was not raised in trial court); Arnett, 339 S.W.3d at 925–26
(defendant physician’s complaint that expert report did not sufficiently address
causation because it did not rule out potential causes of wound infection and pain
not preserved when it was raised for first time on appeal); Williams v. Mora, 264
S.W.3d 888, 890–91 (Tex. App.—Waco 2008, no pet.) (defendant physician’s only
timely objection to expert report was that two statements were speculative; all other
complaints about expert report that were not raised in trial court were waived,
including complaints raised for the first time on appeal). We address the remaining
63
portions of the issues raised by Dr. Morales, West Houston Radiology, and
Radiology Partners that are preserved for our review.
B. Dr. Paine’s Qualifications to Opine on Causation
In the remaining portion of his sole issue, Dr. Morales argues that Dr. Paine
is not qualified to offer an opinion on causation related to Dr. Morales because Dr.
Paine “does not address his experience in caring for patients with peritonitis and
sepsis secondary to a bowel perforation” and Dr. Paine’s expert reports and CV “do
not reflect qualifications allowing him to opine on the cause of [Sam’s] alleged
damages” or the ramifications of the “alleged four[-]day delay in [the] surgical repair
of [Sam’s] bowel perforation.”
To be qualified to opine on the causal relationship between a defendant
physician’s alleged failure to meet an applicable standard of care and the plaintiff’s
claimed injury, harm, or damages, the author of an expert report must be a physician
who is qualified to render opinions on such causal relationships under the Texas
Rules of Evidence. See TEX. CIV. PRAC. & REM. CODE ANN. § 74.403(a); see id.
§ 74.351(r)(5)(C) (“[e]xpert” means “with respect to a person giving opinion
testimony about the causal relationship between the injury, harm, or damages
claimed and the alleged departure from the applicable standard of care in any health
care liability claim, a physician who is otherwise qualified to render opinions on
64
such causal relationship under the Texas Rules of Evidence” (internal quotations
omitted)); Cornejo, 446 S.W.3d at 120.
An expert witness may be qualified on the basis of knowledge, skill,
experience, training, or education to testify on scientific, technical, or other
specialized subjects if the testimony would “assist the trier of fact” in understanding
the evidence or determining a fact issue. Cornejo, 446 S.W.3d at 121 (internal
quotations omitted); see TEX. R. EVID. 702. Thus, a plaintiff must show that her
expert has “knowledge, skill, experience, training, or education” about the specific
issue before the court that would qualify the expert to give an opinion on that
particular subject. Broders, 924 S.W.2d at 153–54 (internal quotations omitted); see
also Cornejo, 446 S.W.3d at 121.
Not every licensed physician is qualified to testify on every medical question.
See Broders, 942 S.W.2d at 152–53; Cornejo, 446 S.W.3d at 121. Yet, a physician
need not practice in the particular field about which he is testifying so long as he can
demonstrate that he has knowledge, skill, experience, training, or education about
the specific issue before the court that would qualify him to give an opinion on that
subject. Cornejo, 446 S.W.3d at 121. Simply put, what is required is that the
physician demonstrate that he is qualified to opine on the specific issue before the
court. Puppala, 564 S.W.3d at 202.
65
Here, it is asserted that Dr. Morales “drain[ed] the peritoneal cavity” after Sam
was diagnosed with a bowel perforation on the sixth day after her initial surgery.
Yet, there is no precedent for “conservative management” of a bowel perforation
when there is evidence of bowel contents and gas free in the peritoneal cavity.
(Internal quotations omitted.) Based on Sam’s diagnosis of a bowel perforation on
the sixth day after her surgery, Dr. Morales should have recommended immediate
surgical exploration and repair of the bowel perforation. Dr. Morales did not do this,
and thus, breached the standard of care.
It is also asserted that Dr. Morales’s breach of the standard of care caused
Sam’s condition to worsen and endangered her life. A bowel perforation is a surgical
emergency that requires immediate intervention. Immediate exploration, wash out
of the peritoneal cavity, and repair of the bowel perforation is required. Any course
of action other than immediate exploration, wash out, and repair, causes worsening
peritonitis, sepsis, and possible death. Dr. Morales’s failure to recommend surgical
exploration and repair of Sam’s bowel perforation upon its diagnosis caused Sam’s
condition to deteriorate and allowed for the continued leakage of bowel contents into
the peritoneal cavity. Without a repair of Sam’s bowel perforation, bowel contents
continued to flow into Sam’s peritoneal cavity “with all the bacteria, chemicals[,]
and irritants [that] allow[] [an] infection to grow and worsen.” The bowel leakage
caused severe damage to Sam’s physiology and permanent residual damage, and it
66
allowed for Sam’s peritonitis and sepsis to grow worse. And because Sam’s
infection was allowed to grow, this led to a more complicated recovery process for
Sam, a longer hospital stay, and long-term damage. Sam could not recover from the
bowel perforation until it was actually repaired.
Further, during the surgery to repair Sam’s bowel perforation, a diverting
ileostomy had to be performed. The ileostomy was required because of the marked
inflammatory reaction to bowel leakage for an extended length of time, i.e., four
days after the bowel-perforation diagnosis and ten days after Sam’s initial surgery.
Had the bowel perforation been repaired at the time it was diagnosed, a colostomy
would have been possible.
Sam has the burden of establishing that Dr. Paine has “knowledge, skill,
experience, training, or education” about whether Dr. Morales’s breach of the
standard of care—by failing to recommend immediate surgical exploration and
repair of the bowel perforation upon its diagnosis on the sixth day after Sam’s
surgery—caused Sam’s claimed injury, harm, or damages. See Brooks, 2017 WL
127867, at *6 (internal quotations omitted); Vora, 473 S.W.3d at 869–70; see also
Cornejo, 446 S.W.3d at 121 (plaintiffs required to establish expert qualified on basis
of knowledge, skill, experience, training, or education to offer opinion concerning
causal link between alleged breaches of standard of care and injuries suffered);
67
Burrell, 230 S.W.3d at 757, 762 (party offering witness as expert must establish
witness is qualified).
In his expert reports, Dr. Paine states that he is a licensed physician and is
board certified in obstetrics and gynecology. He has been practicing in the field of
obstetrics and gynecology for thirty-five years. Currently, he is a member of the
teaching faculty as an associate professor in the department of obstetrics and
gynecology at the University of Texas Health Science Center in San Antonio. In his
position as an associate professor, he trains residents and students in obstetrics and
gynecology,
Dr. Paine is actively practicing medicine in the field of obstetrics and
gynecology, and he was practicing medicine at the time Sam’s claims arose. Dr.
Paine has extensive experience in the field of obstetrics and gynecology, and he, as
part of his medical practice, has performed thousands of hysterectomies during his
career. He has knowledge of the accepted standards of medical and surgical care
required for patients needing hysterectomies. This includes knowledge of the
standards of pre-operative, inter-operative, and post-operative care required for
patients who have hysterectomies.
When Dr. Paine treats patients requiring hysterectomies, he provides
pre-operative, inter-operative, and post-operative care to his patients. Post-operative
care includes “following [a] patient after [a] surgery is complete[] to diagnose and
68
treat any complications that may arise from the surgical procedure.” This case
involves the purported failure of appellants, including Dr. Morales, to appropriately
care for and treat Sam after a hysterectomy, and Dr. Paine is familiar with the type
of post-operative care a patient, such as Sam, should receive and how post-operative
complications, like those experienced by Sam, should be managed and treated.
We conclude that Dr. Paine’s expert reports and CV demonstrate that he is
qualified to offer an opinion on the causal link between Dr. Morales’s alleged breach
while providing post-operative care after Sam’s hysterectomy and Sam’s injuries,
harm, and damages. See Jassin, 2012 WL 5974020, at *5 (“We cannot say that the
trial court abused its discretion in . . . finding that Dr. Branch is qualified to provide
an expert report on causation for the complications that allegedly arose from Dr.
Jassin’s post-operative care following a sinus surgery that Dr. Branch says he has
performed approximately 200 times, along with providing the follow-up care for
those surgeries.”); Chavez, 2007 WL 595134, at *3–4 (”It is axiomatic that a
physician trained to perform a surgery is also trained to manage surgical
complications.”); Keo, 76 S.W.3d at 733 (holding physician who regularly
performed surgery on head and neck was qualified to give opinion about issues
common to all surgeries, including treatment of post-operative infections); see also
Alvarez, 382 S.W.3d at 630 (“[A] physician needs only to show how he is qualified
to opine on the cause of the plaintiff’s injury.”). Further, because Dr. Morales did
69
not dispute in the trial court that Dr. Paine is qualified to offer an opinion on the
standard of care as to Dr. Morales, it would have been reasonable for the trial court
to have concluded that Dr. Paine is qualified to offer an opinion on Dr. Morales’s
failure to meet the standard of care and the resulting harm. See Healy, 2021 WL
603369, at *2 n.1; Legend Oaks-S. San Antonio, 2015 WL 693225, at *5; Jassin,
2012 WL 5974020, at *5; Payne, 2011 WL 5830469, at *7; Arnett, 339 S.W.3d at
927–28.
We hold that the trial court did not err in overruling Dr. Morales’s objections
and denying Dr. Morales’s motion to dismiss Sam’s health care liability claim
against him on the ground that Dr. Paine is not qualified to offer an opinion on
causation related to Dr. Morales.
We overrule the remaining portion Dr. Morales’s sole issue.23
C. Vicarious Liability of West Houston Radiology and Radiology Partners
In the remaining portion of their sole issues, West Houston Radiology and
Radiology Partners argue that the trial court erred in overruling their objections to
Dr. Paine’s expert reports and denying their motions to dismiss Sam’s vicarious
liability health care liability claims against them because Dr. Paine is not qualified
to offer an opinion on causation related to Dr. Morales.
23
Due to our disposition, we need not address Dr. Morales’s request for attorney’s
fees and costs. See TEX. R. APP. P. 47.1.
70
In her petition, Sam alleges that West Houston Radiology and Radiology
Partners are vicariously liable for the conduct of Dr. Morales. Generally, when a
plaintiff brings health care liability claims against more than one defendant
physician or health care provider, the expert report must set forth the standard of
care and breach of the standard of care as to each defendant and explain the causal
relationship between each defendant’s individual acts or omissions and the claimed
injury. See TEX. CIV. PRAC. & REM. CODE ANN. § 74.351(a), (r)(6); Seton Family,
593 S.W.3d at 792; Pena, 530 S.W.3d at 175. Yet, when a plaintiff brings a health
care liability claim based on a vicarious liability theory against a defendant health
care provider, an expert report that adequately implicates the actions of that party’s
agent or employee is sufficient as to the defendant health care provider. Gardner,
274 S.W.3d at 671–72; Seton Family, 593 S.W.3d at 792; see also Owens, 478
S.W.3d at 191 (“[W]hen a health care liability claim involves a vicarious liability
theory, either alone or in combination with other theories, an expert report that meets
the statutory standards as to the employee is sufficient to implicate the employer’s
conduct under the vicarious theory.” (alteration in original) (internal quotations
omitted)). In other words, when a health care liability claim against a defendant
health care provider is based on vicarious liability, an expert report that meets the
statutory standards as to an agent or employee is sufficient to implicate the health
care provider’s conduct. Potts, 392 S.W.3d at 632; Seton Family, 593 S.W.3d at
71
792; see also Owens, 478 S.W.3d at 191–92 (expert report that is sufficient as to
employee or agent, whose alleged negligent conduct vicarious liability claim was
based, is also sufficient as to employer health care provider).
Having held that the trial court did not err in overruling Dr. Morales’s
objections to Dr. Paine’s expert reports and in denying Dr. Morales’s motion to
dismiss Sam’s direct liability health care liability claim against him because Dr.
Paine’s expert reports meet the requirements of chapter 74 related to Dr. Morales,
we hold that Sam may also proceed on the vicarious liability health care liability
claims against West Houston and Radiology Partners which are based on the conduct
of Dr. Morales. See Potts, 392 S.W.3d at 632; Gardner, 274 S.W.3d at 671–72;
Owens, 478 S.W.3d at 191–92; see also George, 261 S.W.3d at 295 (“[I]f the expert
report is sufficient as to the claims against Dr. Ward, and we have held that it
is[,] . . . then the report is sufficient as to [the] claims against CND that are based on
Dr. Ward’s alleged negligence.”).
We overrule the remaining portions of West Houston Radiology’s and
Radiology Partners’ sole issues.24
24
Due to our disposition, we need not address West Houston Radiology’s and
Radiology Partners’ requests for attorney’s fees and costs. See TEX. R. APP. P. 47.1.
72
Conclusion
We affirm the order of the trial court.
Julie Countiss
Justice
Panel consists of Chief Justice Radack and Justices Landau and Countiss.
73