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Reversed=20 and Remanded and = Memorandum Opinion filed August 21, 2008.

 

 

In The

 

Fourteenth Court=20 of Appeals

____________

 

NO. 14-07-00831-CV

____________

 

CHCA=20 MAINLAND, L.P. D/B/A MAINLAND MEDICAL = CENTER, = Appellant

 

V.

 

BONNIE=20 DICKIE, = Appellee

 

 

On Appeal from the = 10th District Court

Galveston County, = Texas

Trial Court Cause = No. 06CV1400

 

 

M E M O R=20 A N D U M   O P I N I O N

Appellee=20 Bonnie Dickie sued appellant CHCA Mainland, L.P. d/b/a Mainland = Medical=20 Center (ACHCA=20 Mainland@) for=20 alleged medical malpractice.  In support of her claim, and = pursuant=20 to section 74.351(a) of the Civil Practice and Remedies Code, = Dickie=20 submitted the expert report and curriculum vitae of Dr. David J.=20 Hyman.  CHCA Mainland then filed a motion to dismiss = challenging the=20 adequacy of Dr. Hyman=3Ds expert=20 report.  The trial court denied the motion to dismiss, and = CHCA=20 Mainland filed this interlocutory appeal.

We=20 conclude that Dr. Hyman=3Ds report=20 and curriculum vitae do not demonstrate that he is qualified to = offer an=20 expert opinion.  In addition, Dr. Hyman=3Ds report=20 is conclusory on the elements of breach of the applicable standard = of care=20 and causation.  We therefore reverse the order of the trial = court=20 denying CHCA Mainland=3Ds motion=20 to dismiss, and remand to the trial court for consideration of = whether=20 Dickie is entitled to a thirty-day extension under section = 74.351(c) to=20 cure the deficiencies.

Factual=20 and Procedural Background

In her=20 petition, Dickie alleged that she developed a decubitus ulcer, or=20 Apressure=20 sore,@ = during=20 her six-week hospitalization at Mainland Medical Center as a = result of=20 CHCA Mainland=3Ds=20 negligence.  She contends that CHCA Mainland was negligent in = failing=20 to (1) provide adequate nutrition; (2) provide adequate hydration; = (3)=20 have Dickie reposition herself every hour to avoid the development = of=20 pressure sores; and (4) use appropriate seat cushions.  = Dickie=20 further alleged that Adecubitus=20 ulcers are considered preventable and the development of decubitus = ulcers=20 is evidence of some form of neglect (nutrition, hydration, = positioning,=20 infection control etc.).@

On April=20 10, 2007, Dickie filed a report completed by Dr. David J. Hyman, a = physician who is board-certified in internal medicine and has been = a=20 professor at Baylor College of Medicine for over thirteen = years.  Dr.=20 Hyman=3Ds report=20 related the following facts and opinions:

Thank you for = allowing me to=20 review this case.  I am a Board Certified Internist and am = fully=20 licensed in the State of Texas.  I have been both practicing = and=20 teaching inpatient and outpatient medicine here for 17 = years.  I feel=20 I am very much in position to comment on appropriate standards of=20 care.

Ms. Dickie=20 developed Decubitus Ulcers during a hospitalization at Mainland = Medical=20 Center.  This is below the standard of care.  Proper = Nursing=20 Care would include: (1) assess the patient from head to toe, (2) = document=20 any potential problems including skin condition, (3) use = protection and=20 padding to prevent tissue abrasion and prevent problems with = hydration,=20 nutrition, and hygiene.  The skin should be inspected at = least once a=20 day.  A patient should be repositioned every hour if unable = to do it=20 themselves.  Mainland Medical Center did not meet these = standards of=20 care and was negligent.  As a result the patient developed a=20 Decubitus Ulcer that required treatment.

CHCA=20 Mainland then filed a motion to dismiss, challenging the adequacy = of Dr.=20 Hyman=3Ds=20 report.  CHCA Mainland argued that Dr. Hyman=3Ds report=20 did not constitute an objective good-faith effort to comply with = the=20 requirements for an expert report under Chapter 74; therefore, = dismissal=20 of Dickie=3Ds claims=20 was warranted, because (1) the report was conclusory regarding = CHCA=20 Mainland=3Ds breach=20 of the applicable standard of care and proximate causation; and = (2) the=20 report failed to demonstrate that Dr. Hyman was qualified to = render an=20 expert opinion regarding the issues in Dickie=3Ds=20 lawsuit.  The trial court denied the motion to dismiss, and = CHCA=20 Mainland filed this interlocutory appeal under = section 51.014(a)(9)=20 of the Civil Practice and Remedies Code.

Issues on=20 Appeal

In three=20 issues, CHCA Mainland contends that Dr. Hyman=3Ds report=20 does not constitute a good-faith effort to comply with the expert = report=20 requirements of section 74.351, and therefore the trial court = abused its=20 discretion in denying the motion to dismiss.  In its first = issue,=20 CHCA Mainland argues that Dickie did not demonstrate that Dr. = Hyman is=20 qualified under section 74.401 to offer an expert opinion in this=20 case.  In its second and third issues, CHCA Mainland asserts = that Dr.=20 Hyman=3Ds report=20 is conclusory on the elements of proximate causation and breach of = the=20 applicable standard of care.  We analyze CHCA = Mainland=3Ds issues=20 in the order presented in its brief.[1]

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Analysis=20 of CHCA Mainland=3Ds=20 Issues

I.       =20 Standard of Review and Applicable Law.

When a=20 trial court rules on a defendant health care provider=3Ds motion=20 to dismiss a health care liability claim, we review the ruling for = an=20 abuse of discretion. See Am. Transitional Care Ctrs. of Tex., = Inc. v.=20 Palacios, 46 S.W.3d 873, 877B78 (Tex.=20 2001); Rittmer v. Garza, 65 S.W.3d 718, 721 (Tex. = App.BBHouston=20 [14th Dist.] 2001, no pet.).  We apply the same standard of = review to=20 a trial court=3Ds=20 determination that an expert is qualified to offer an expert = opinion=20 regarding the elements of a plaintiff=3Ds health=20 care liability claim. See Mem=3Dl Hermann Healthcare = Sys. v.=20 Burrell, 230=20 S.W.3d 755, 757 (Tex. App.CHouston [14th Dist.] = 2007, no=20 pet.) (citing=20 Broders v. Heise, 924 S.W.2d 148, 151B52 (Tex.=20 1996); Group v. Vicento, 164 S.W.3d 724, 727 (Tex. = App.CHouston=20 [14th Dist.] 2005, pet. denied)).

An abuse=20 of discretion occurs when the trial court acts in an unreasonable = or=20 arbitrary manner, without reference to any guiding rules or = principles.=20 Walker v. Gutierrez, 111 S.W.3d 56, 62 (Tex. 2003).  A = trial=20 court will be deemed to have acted arbitrarily and unreasonably if = the=20 trial court could have reached only one decision, yet reached a = different=20 one. See Teixeira v. Hall, 107 S.W.3d 805, 807 (Tex.=20 App.BBTexarkana=20 2003, no pet.).  To that end, a trial court abuses its = discretion=20 when it fails to analyze or apply the law correctly. In re Sw. = Bell=20 Tel. Co., 226 S.W.3d 400, 403 (Tex. 2007) (citing In re = Kuntz,=20 124 S.W.3d 179, 181 (Tex. 2003)).  However, to the extent = resolution=20 of the issues presented requires interpretation of the statute, we = review=20 the ruling under a de novo standard. See Buck v. Blum, 130 = S.W.3d=20 285, 290 (Tex. App.CHouston=20 [14th Dist.] 2004, no pet).

A=20 plaintiff asserting a health care liability claim must provide = each=20 defendant physician and health care provider with an expert report = no=20 later than the 120th day after filing suit. See Tex. Civ. Prac. & Rem. = Code=20 _ = 74.351(a).[2] =20 AExpert=20 report@ = is=20 statutorily defined as:

[A]=20 written report by an expert that provides a fair summary of the=20 expert=3Ds opinions=20 as of the date of the report regarding applicable standards of = care, the=20 manner in which the care rendered by the physician or health care = provider=20 failed to meet the standards, and the causal relationship between = that=20 failure and the injury, harm, or damages claimed.

Id.=20 _ = 74.351(r)(6).  If a plaintiff furnishes the required report = within=20 the time permitted, the defendant may file a motion challenging = the=20 adequacy of the report. See id. _ = 74.351(b), (l).

With=20 respect to such a motion, Chapter 74 provides that the trial court = Ashall=20 grant a motion challenging the adequacy of an expert report only = if it=20 appears to the court, after hearing, that the report does not = represent an=20 objective good faith effort to comply with the definition of an = expert=20 report in Subsection (r)(6).@ = Id. _ = 74.351(l).  When determining whether the expert report = represents a good-faith effort, the trial court=3Ds inquiry=20 is limited to the four corners of the report itself, and = inferences are=20 not permitted. See Bowie Mem=3Dl Hosp. v.=20 Wright, 79=20 S.W.3d 48, 53 (Tex. 2002) (citing Palacios, 46 S.W.3d at = 878);=20 see also Patel v. Williams ex rel. Estate of Mitchell, 237 = S.W.3d=20 901, 904 (Tex. App.CHouston=20 [14th Dist.] 2007, no pet.).

To=20 constitute a good-faith effort, the report must discuss the = standard of=20 care, breach, and causation with sufficient specificity (1) to = inform the=20 defendant of the specific conduct the plaintiff has called into = question=20 and (2) to provide a basis for the trial court to conclude that = the claims=20 have merit. See Palacios, 46 S.W.3d at 879.  Although = an=20 expert report need not marshal and present all of the=20 plaintiff=3Ds proof, a=20 report that omits any of the elements required by the statute does = not=20 constitute a good-faith effort. Id. at 878B79. =20 Moreover, an expert report by a person who is not qualified to = testify=20 under section 74.402 regarding the standard of care does not = represent an=20 objective good-faith effort to comply with the definition of an = expert=20 report in section 74.351. See Tex. Civ. Prac. & Rem. = Code=20 _ 74.351(l),=20 (r)(5)B(6);=20 see also Foster v. Zavala, 214 S.W.3d 106, 116 (Tex.=20 App.CEastland=20 2006, pet. denied) (citing In re Windisch, 138 S.W.3d 507, 511 = (Tex.=20 App.CAmarillo 2004, orig.=20 proceeding) (interpreting predecessor statute to section=20 74.351)).

II.      =20 Dr. Hyman Has Not Established That He Is Qualified to Offer an = Expert=20 Opinion in This Case.

In its=20 first issue, CHCA Mainland argues that Dickie did not demonstrate = that Dr.=20 Hyman is qualified to offer an expert opinion in this case.[3] =20 Specifically, CHCA Mainland asserts that Dr. Hyman=3Ds report=20 and curriculum vitae do not show that he has any experience in the = care=20 and treatment of decubitus ulcers, or any specialized knowledge = about the=20 cause of that particular medical condition.  CHCA Mainland = further=20 asserts that Dr. Hyman=3Ds report=20 fails to explain how his knowledge, skill, experience, training, = and=20 education as an internist qualified him to render an expert = opinion on=20 causation and treatment of decubitus ulcers.

As=20 explained below, we agree with CHCA Mainland that Dr. = Hyman=3Ds expert=20 report and curriculum vitae do not demonstrate that he is = qualified to=20 offer an expert opinion in this case.

A.     =20 Qualifications to Offer an Expert Opinion

An expert=20 providing opinion testimony regarding whether a health care = provider=20 departed from the accepted standards of health care must satisfy = the=20 requirements set forth in section 74.402. Tex. Civ. Prac. & Rem. = Code=20 _ = 74.351(r)(5)(B).  That section provides:

(b) In a suit = involving a=20 health care liability claim against a health care provider, a = person may=20 qualify as an expert witness on the issue of whether the health = care=20 provider departed from accepted standards of care only if the=20 person:

(1) is practicing = health care=20 in a field of practice that involves the same type of care or = treatment as=20 that delivered by the defendant health care provider, if the = defendant=20 health care provider is an individual, at the time the testimony = is given=20 or was practicing that type of health care at the time the claim=20 arose;

(2) has knowledge = of accepted=20 standards of care for health care providers for the diagnosis, = care, or=20 treatment of the illness, injury, or condition involved in the = claim;=20 and

(3) is=20 qualified on the basis of training or experience to offer an = expert=20 opinion regarding those accepted standards of health = care.

Id.=20 _ = 74.402(b).  In determining whether a particular witness is = qualified=20 Aon the=20 basis of training or experience,@ = the trial=20 court must consider whether that witness (1) is certified by one = or more=20 state licensing agencies or a national professional certifying = agency, or=20 has Aother=20 substantial training or experience@ = in an=20 area of health care relevant to the claim; and (2) is Aactively=20 practicing health care@ = in=20 rendering health care services relevant to the claim. Id.=20 _ = 74.402(c)(1)B(2).

CHCA=20 Mainland apparently challenges Dr. Hyman=3Ds=20 qualifications under sections 74.402(b)(2) and (b)(3).  = Before we=20 turn to CHCA Mainland=3Ds specific=20 arguments, we will examine the contents of Dr. Hyman=3Ds report=20 and curriculum vitae.

B.     =20 We Consider the Contents of Both Dr. Hyman=3Ds Report=20 and His Curriculum Vitae

In its=20 brief, CHCA Mainland suggests that our analysis of Dr. = Hyman=3Ds=20 qualifications to offer an expert opinion in this case is limited = to the=20 four corners of his report.  Contrary to CHCA=20 Mainland=3Ds=20 contention, our analysis of the qualifications of an expert under = section=20 74.351 is limited to the four corners of the expert=3Ds report=20 and curriculum vitae. See Burrell, 230 S.W.3d at 758=20 (citing=20 Palacios, 46 S.W.3d at 878); see also Windisch, 138 = S.W.3d=20 at 511.  Accordingly, we will consider the contents of both=20 documents. 

Here, Dr.=20 Hyman=3Ds report=20 and curriculum vitae reflect that he is licensed to practice = medicine in=20 the state of Texas, is board certified in Internal Medicine, and = has been=20 both practicing and teaching inpatient and outpatient medicine in = Texas=20 for over seventeen years.  At the time of the report, Dr. = Hyman was=20 an associate professor of medicine in the Section of General = Internal=20 Medicine at the Baylor College of Medicine in Houston, as well as = an=20 associate professor of Family and Community Medicine there.  = He=20 formerly served as the Chief of the General Medicine Section at = Baylor=20 College of Medicine in late 1996 and early 1997, and has authored = one=20 article on abused and neglected elders treated by an = interdisciplinary=20 geriatric team that was published in the Journal of Elder Abuse = and=20 Neglect.  In addition, Dr. Hyman has participated in three=20 presentations to Meetings of the American Geriatric Society:  = (1)=20 ACancer=20 care for the elderly in a public hospital: A descriptive=20 survey@; (2)=20 ACaring for=20 the frail elderly outpatient in a public system@; and (3)=20 AGeriatric=20 emergency care in an urban hospital system.@ =20 Finally, Dr. Hyman=3Ds=20 curriculum vitae indicates that he is involved in clinical = supervision at=20 Ben Taub Hospital in Ainpatient=20 attending@ = three=20 months per year, he teaches an evidence-based medicine seminar in = the=20 Family Medicine rotation at Baylor College of Medicine, and he is = the=20 course director of a APrinciples=20 of Prevention@ = course=20 for physician assistants at Baylor College of=20 Medicine.

C.     =20 The Trial Court Abused Its Discretion in Concluding That Dr.=20 Hyman=3Ds Report=20 and Curriculum Vitae Established That He Is Qualified to Offer an = Expert=20 Opinion in this Case

1.      =20 Dr. Hyman=3Ds Report=20 and Curriculum Vitae Do Not Show That He Has Any Experience in the = Care=20 and Treatment of Decubitus Ulcers, or Any Specialized Knowledge = About the=20 Cause of That Particular Medical Condition

CHCA=20 Mainland first argues that Dr. Hyman=3Ds report=20 and curriculum vitae do not show that he has any experience in the = care=20 and treatment of decubitus ulcers, or any specialized knowledge = about the=20 cause of that particular medical condition.  We agree.  = The=20 trial court=3Ds analysis=20 of Dr. Hyman=3Ds=20 qualifications was limited to the four corners of his report and=20 curriculum vitae, and neither document demonstrates that he has = the=20 requisite experience with decubitus ulcers or knowledge of the = applicable=20 standard of care that would qualify him to offer an expert opinion = in this=20 case. See Burrell, 230 S.W.3d at = 758.

First, it=20 is not evident from the four corners of either document that Dr. = Hyman has=20 any experience in the treatment and prevention of decubitus = ulcers. =20 While his report and curriculum vitae indicate that he (1) is = board=20 certified in internal medicine, (2) has seventeen = years=3D = experience in practicing and teaching both inpatient and = outpatient=20 medicine, (3) has experience in an inpatient hospital setting, = where he=20 supervises Ainpatient=20 attending@ = three=20 months per year, and (4) is course director of a preventive = medicine=20 course for physician assistants, Dr. Hyman failed to set forth his = experience with decubitus ulcers anywhere in his report or = curriculum=20 vitae.  While Dr. Hyman might have acquired experience with = decubitus=20 ulcers in his seventeen years of practice and teachingCthrough,=20 for example, treating patients with decubitus ulcers, or training = medical=20 personnel on the treatment and prevention of that particular = medical=20 conditionCthe=20 contents of his report and curriculum vitae do not demonstrate = that he has=20 any experience whatsoever in diagnosing and caring for patients = with=20 decubitus ulcers.[4]

Nor do Dr.=20 Hyman=3Ds report=20 and curriculum vitae demonstrate that he has the  requisite = knowledge=20 of the accepted standard of care for the diagnosis, care, or = treatment of=20 decubitus ulcers.  Dr. Hyman vaguely references his = familiarity with=20 the applicable standard of care  through his conclusory = statements in=20 the initial paragraph of his report, AI am a=20 Board Certified Internist and am fully licensed in the State of=20 Texas.  I have been both practicing and teaching inpatient = and=20 outpatient medicine here for 17 years.  I feel I am very much = in=20 position to comment on appropriate standards of care.@ =20 Notably, Dr. Hyman never states anywhere in his report that he has = any=20 familiarity whatsoever with the standard of care as it pertains to = the=20 treatment and prevention of decubitus ulcers, and his curriculum = vitae=20 does not present any basis for the trial court to have concluded = that he=20 has the requisite knowledge of the applicable standard of care.[5]

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In short,=20 while it might be reasonable to infer from the contents of these = documents=20 that Dr. Hyman might have acquired experience in the = treatment and=20 care of decubitus ulcers in his seventeen years of practice and = teaching,=20 or that, through his training of physician assistants, he might = have knowledge of the standard of care applicable to the = diagnosis,=20 care or treatment of decubitus ulcers, the trial court is not = allowed to=20 make any inferences regarding Dr. Hyman=3Ds=20 qualifications to offer an expert opinion in this case. See = Wright,=20 79 S.W.3d at 53; Patel, 237 S.W.3d at 904.

2.      =20 Dr. Hyman=3Ds Report=20 Fails to Explain How His Knowledge, Skill, Experience, Training, = and=20 Education as an Internist Qualified Him to Offer an Expert Opinion = in This=20 Case

CHCA=20 Mainland further argues that Dr. Hyman=3Ds report=20 fails to explain how his knowledge, skill, experience, training, = and=20 education as an internist qualified him to render an expert = opinion in=20 this case regarding the statutory requisites of Dickie=3Ds=20 claim.  Again, we agree. In his report, Dr. Hyman failed to = link his=20 experience in his medical specialtyCinternal=20 medicineCto=20 decubitus ulcers.  Although his report indicates that he has=20 seventeen years=3D = experience in practicing and teaching inpatient and outpatient = medicine,=20 and that he is board certified in Internal Medicine, as noted = above, he=20 fails to state in his report that over the course of his career in = internal medicine that he has either treated patients with = decubitus=20 ulcers, or that he has trained nurses, physician assistants, or = other=20 medical personnel in the proper techniques to treat and prevent = decubitus=20 ulcers.[6] =20 And, the contents of Dr. Hyman=3Ds=20 curriculum vitae did not provide an independent basis for the = trial court=20 to conclude that Dr. Hyman=3Ds=20 background in internal medicine furnished him any relevant = experience with=20 the treatment or prevention of decubitus ulcers, or any knowledge = of the=20 applicable standard of care.  Again, while it might be = reasonable to=20 infer from Dr. Hyman=3Ds skill,=20 experience, training, and education as an internist that he has = knowledge=20 of the standard of care for the treatment and prevention of = decubitus=20 ulcers, the trial court was not permitted to make such an = inference.=20 See Wright, 79 S.W.3d at 53; Patel, 237 S.W.3d at=20 904.

         =20 Under section 74.402(b)(2), Dickie had the burden to demonstrate = that Dr.=20 Hyman has knowledge of the accepted standards of care for the = diagnosis,=20 care, or treatment of decubitus ulcers. See Tex. Civ. Prac. & Rem. = Code=20 _ = 74.402(b)(2).  Because Dr. Hyman=3Ds report=20 and curriculum vitae failed to demonstrate that he had any = knowledge of=20 the standard of care applicable to the treatment and prevention of = decubitus ulcers, we conclude that his report and curriculum vitae = do not=20 satisfy the requirements of section 74.402(b)(2).  We next = examine=20 the requirements of section 74.402(b)(3).

3.      =20 Dr. Hyman Has Not Established That He Is Qualified on the Basis of = Training or Experience to Offer an Expert Opinion in This=20 Case

Under=20 section 74.402(b)(3), Dickie had the burden to demonstrate that = Dr. Hyman=20 is qualified on the basis of training or experience to offer an = expert=20 opinion regarding the accepted standards of care for the = diagnosis, care,=20 or treatment of decubitus ulcers. See Tex. Civ. Prac. & Rem. = Code=20 _ = 74.402(b)(3).  To determine whether Dr. Hyman is qualified = under this=20 section, we consider whether Dr. Hyman is (1) certified by a = licensing=20 agency or has substantial experience relevant to the claim; and = (2)=20 whether he is actively practicing health care in rendering health = care=20 services relevant to the claim. See id. _ = 74.402(c)(1)B(2);=20 see also Burrell, 230 S.W.3d at 760.

Dr.=20 Hyman=3Ds report=20 and curriculum vitae indicate that he is board certified in = internal=20 medicine, that he has seventeen years=3D = experience in practicing and teaching inpatient and outpatient = medicine,=20 that he supervises Ainpatient=20 attending@ = at Ben=20 Taub Hospital, and that he instructs physician assistants on = preventive=20 medicine.  Although internal medicine is an area of health = care with=20 potential relevance to Dickie=3Ds=20 claimCsuch that=20 Dr. Hyman=3Ds board=20 certification in that specialty would satisfy the requirements of = section=20 74.402(c)(1)Cneither=20 Dr. Hyman=3Ds report=20 nor his curriculum vitae demonstrates that his background in = internal=20 medicine furnished him any relevant experience with the treatment = or=20 prevention of decubitus ulcers, or any knowledge of the applicable = standard of care.  And, Dr. Hyman did not make any attempt in = his=20 report to explain that (1) internal medicine is an area of health = care=20 relevant to Dickie=3Ds claim;=20 or (2) his seventeen years of experience in practicing and = teaching=20 inpatient and outpatient medicine is in an area relevant to=20 Dickie=3Ds=20 claim.  In fact, as we explained above, Dr. Hyman failed to = state=20 anywhere in his report that he has either trained personnel on the = prevention and treatment of decubitus ulcers, or that he has = treated=20 patients with decubitus ulcers over the course of his practice as = a doctor=20 of internal medicine. Furthermore, we have already concluded that = Dr.=20 Hyman=3Ds report=20 did not sufficiently explain how his knowledge, skill, experience, = training, and education as an internist qualified him to render an = expert=20 opinion in this case.

Based on=20 the contents of Dr. Hyman=3Ds report=20 and curriculum vitae, we cannot conclude that Dr. = Hyman=3Ds board=20 certification in internal medicine is in an area of health care = relevant=20 to Dickie=3Ds claim,=20 or that he has substantial training or experience in an area of = health=20 care relevant to Dickie=3Ds=20 claim.  Thus, Dr. Hyman was not shown to be qualified under = section=20 74.402(c)(1), and therefore his report and curriculum vitae do not = satisfy=20 the requirements of section 74.402(b)(3).[7]=20 See Tex. Civ. = Prac. &=20 Rem. Code _ = 74.402(b)(3), (c)(1). 

4.      =20 The AGood=20 Reason@ = Exception=20 of Section 74.402(d) Is Not Applicable Here

In a final=20 attempt to avoid dismissal of her claim, Dickie asserts that the = trial=20 court could have concluded that Dr. Hyman is qualified to offer an = expert=20 opinion in this case under the Agood=20 reason@ = exception=20 of section 74.402(d).  That provision = provides:

The court=20 shall apply the criteria specified in Subsections (a), (b), and = (c) in=20 determining whether an expert is qualified to offer expert = testimony on=20 the issue of whether the defendant health care provider departed = from=20 accepted standards of health care but may depart from those = criteria if,=20 under the circumstances, the court determines that there is good = reason to=20 admit the expert=3Ds=20 testimony.  The court shall state on the record the reason = for=20 admitting the testimony if the court departs from the = criteria.

Tex.=20 Civ. Prac. & Rem. Code _ = 74.402(d).  However, neither the transcript of the hearing on = CHCA=20 Mainland=3Ds motion=20 to dismiss nor the trial court=3Ds order=20 denying the motion to dismiss states that the trial court departed = from=20 the criteria of section 74.402(a)B(c). =20 Accordingly, the Agood=20 reason@ = exception=20 of section 74.402(d) is not applicable to the facts of this case. = See=20 id. (AThe court=20 shall state on the record the reason for admitting the testimony = if the=20 court departs from the criteria.@); see=20 also Group, 164 S.W.3d at 729 (noting that the Agood=20 reason@ = exception=20 of section 74.402(d) was not applicable because the order denying = the=20 defendant physician=3Ds motion=20 to dismiss did not state that the trial court departed from the = criteria=20 of section 74.402); cf. Packard v. Guerra, 252 S.W.3d 511,=20 529B32 (Tex.=20 App.CHouston=20 [14th Dist.] 2008, pet. filed) (concluding that the trial court = properly=20 applied section 74.402(d) when it stated on the record the reason = for=20 resorting to the Agood=20 reason@ = exception).

From the=20 foregoing, we conclude that Dr. Hyman=3Ds report=20 and curriculum vitae do not demonstrate that he is qualified to = offer an=20 expert opinion in this case.  The trial court abused its = discretion=20 in concluding otherwise.  We therefore sustain CHCA=20 Mainland=3Ds first=20 issue.

III.     =20 Dr. Hyman=3Ds Report=20 is Conclusory on the Elements of Proximate Causation and Breach of = the=20 Applicable Standard of Care.

In its=20 second and third issues, CHCA Mainland contends that Dr. = Hyman=3Ds expert=20 report is conclusory on the elements of proximate causation and = breach of=20 the applicable standard of care.  Specifically, CHCA Mainland = asserts=20 that an expert report must explain the basis for the = expert=3Ds=20 conclusions, and link the conclusions to the facts of the = case.  CHCA=20 Mainland argues that Dr. Hyman=3Ds report=20 is deficient because it does not provide any explanation for his=20 conclusion, AAs a=20 result the patient developed a decubitus ulcer that required=20 treatment.@ =20 CHCA Mainland further asserts that an expert report must include=20 Aspecific=20 information about what the defendant should have done=20 differently,@ = and=20 argues that Dr. Hyman=3Ds report=20 is deficient because it does not include specific factual = allegations=20 setting forth the actual conduct of the nurses that is being = called into=20 question.  Again, we agree with CHCA Mainland.

A.     =20 Expert Reports Must Contain More Than Conclusory Statements =20 Regarding Breach of the Applicable Standard of Care and=20 Causation

Not only=20 must the expert report and curriculum vitae demonstrate that the = expert is=20 qualified to offer an expert opinion in the case, the report must = also=20 contain a discussion of the standard of care, breach, and = causation with=20 sufficient specificity (1) to inform the defendant of the conduct = the=20 plaintiff has called into question and (2) to provide a basis for = the=20 trial court to conclude that the claims have merit. See = Palacios,=20 46 S.W.3d at 879.  A report that merely states the = expert=3Ds=20 conclusions about the standard of care, breach, and causation does = not=20 fulfill these two purposes. Palacios, 46 S.W.3d at = 879;=20 see Wright, 79 S.W.3d at 52B53. =20 Rather, the expert must explain the basis of his statements to = link his=20 conclusions to the facts. Wright, 79 S.W.3d at 52 (citing = Earle=20 v. Ratliff, 998 S.W.2d 882, 890 (Tex. 1999)); Patel, = 237 S.W.3d=20 at 904.

B.     =20 Dr. Hyman=3Ds Report=20 Fails to Explain the Basis of His Statements to Link His = Conclusions to=20 the Facts

Here, the=20 parties do not dispute that Dr. Hyman=3Ds report=20 fairly summarizes the alleged standard of care owed to Dickie. = See=20 Tex. Civ. Prac. = & Rem.=20 Code _ = 74.351(r)(6).  CHCA Mainland only contests whether the report = fairly=20 summarizes the manner in which it allegedly breached the standard = of care,=20 and the causal relationship between its alleged breach and=20 Dickie=3Ds=20 injury.

Dr.=20 Hyman=3Ds report=20 contains only one statement regarding CHCA Mainland=3Ds alleged=20 breach of the standard of care owed to Dickie:  AMainland=20 Medical Center did not meet these standards of care and was=20 negligent.@  It=20 does not include specific factual allegations setting forth the = conduct=20 that Dickie has called into question.  In fact, the report = does not=20 discuss at all what actions were actually taken by CHCA Mainland = in=20 Dickie=3Ds=20 treatment, much less what actions it failed to take.  = Identifying=20 whether the standard of care has been breached cannot be = determined absent=20 specific information about what should have been done = differently.=20 Palacios, 46 S.W.3d at 880.  It is not sufficient = for an=20 expert to simply state that he knows the standard of care and = conclude=20 that it was not met. See id.  Thus, Dr. = Hyman=3Ds report=20 does not fairly summarize the manner in which CHCA Mainland = allegedly=20 breached the standard of care owed to Dickie. See id.; = Hardy v.=20 Marsh, 170 S.W.3d 865, 869B70 (Tex.=20 App.CTexarkana=20 2005, no pet.).

Nor does=20 Dr. Hyman=3Ds report=20 provide a fair summary of the causal relationship between CHCA=20 Mainland=3Ds alleged=20 breach and Dickie=3Ds=20 injury.  Dr. Hyman=3Ds report=20 contains only one statement regarding causation:  = AAs a=20 result the patient developed a Decubitus Ulcer that required=20 treatment.@  Dr.=20 Hyman=3Ds report=20 does not contain any causal facts, much less explain how CHCA=20 Mainland=3Ds conduct=20 caused injury to Dickie. See Wright, 79 S.W.3d at 53; = cf.=20 Patel, 237 S.W.3d at 905B06=20 (concluding expert report not conclusory on element of causation; = report=20 sufficiently outlined required causal facts, presenting chain of = events=20 that ultimately culminating in patient=3Ds=20 death).  Instead, the report merely states Dr. = Hyman=3Ds=20 conclusion on causation.  This is insufficient. See = Palacios,=20 46 S.W.3d at 879; see also Wright, 79 S.W.3d at = 52B53=20 (concluding expert report conclusory on element of causation; = report=20 merely stated expert=3Ds=20 conclusion on causation, and did not provide information linking=20 defendant=3Ds actions=20 to patient=3Ds=20 injuries); Longino v. Crosswhite, 183 S.W.3d 913, 918 (Tex. = App.CTexarkana=20 2006, no pet.) (same); Costello v. Christus Santa Rosa Health = Care=20 Corp., 141 S.W.3d 245, 249 (Tex. App.CSan=20 Antonio 2004, no pet.) (same); Lopez v. Montemayor, 131 = S.W.3d 54,=20 59B60 (Tex.=20 App.CSan=20 Antonio 2003, pet. denied) (same); Barko v. Genzel, 123 = S.W.3d 457,=20 460B61 (Tex.=20 App.CEastland=20 2003, no pet.) (same).

Therefore,=20 we conclude that Dr. Hyman=3Ds report=20 is conclusory on the elements of breach of the applicable standard = of care=20 and causation.  The trial court abused its discretion in = concluding=20 otherwise.  We sustain CHCA Mainland=3Ds second=20 and third issues.

IV.     =20 We Remand to the Trial Court to Consider Whether Granting a = Thirty-Day=20 Extension Under Section 74.351(c) is Appropriate.

Section=20 74.351(c) affords the trial court discretion to grant claimants = one=20 thirty-day extension to cure any deficiencies in an expert report. = See=20 Tex. Civ. Prac. = & Rem.=20 Code _ 74.351(c). =20 Because the trial court denied CHCA Mainland=3Ds motion=20 to dismiss, it did not have the opportunity to consider whether = Dickie is=20 entitled to a thirty-day extension to cure deficiencies in Dr.=20 Hyman=3Ds=20 report.  We therefore remand the case for the trial court to = exercise=20 its discretion under section 74.351(c).

Conclusion

For the=20 foregoing reasons, we hold that the trial court abused its = discretion in=20 concluding (1) Dr. Hyman=3Ds report=20 and curriculum vitae established that he is qualified to offer an = expert=20 opinion in this case; and (2) Dr. Hyman=3Ds report=20 is not conclusory on the elements of breach of the applicable = standard of=20 care and causation.  We therefore reverse the order of the = trial=20 court denying CHCA Mainland=3Ds motion=20 to dismiss, and remand to the trial court for consideration of = whether=20 Dickie is entitled to a thirty-day extension under section = 74.351(c) to=20 cure the deficiencies.

 

 

/s/     =20 Wanda McKee Fowler

Justice

 

 

Judgment=20 rendered and Memorandum Opinion filed August 21, 2008.

Panel=20 consists of Justices Fowler, Frost, and Seymore.


[1]  In her brief, Dickie asserts = seven=20 cross-points challenging the constitutionality of the expert = report=20 requirement of section 74.351.  However, Dickie did not raise = any of=20 these arguments in her response to CHCA=3Ds motion to dismiss, or at the hearing = on the=20 motion to dismiss.  Because Dickie failed to assert these = arguments=20 in the trial court below, we do not consider them here. See = Tex. R. App. P. = 33.1(a); see=20 also Dreyer v. Greene, 871 S.W.2d 697, 697 (Tex. 1993) = (stating that=20 constitutional arguments must be asserted in the trial court in = order to=20 be raised on appeal); Swink v. Alesi, 999 S.W.2d 107, 110 = (Tex.=20 App.CHouston [14th Dist.] 1999, no pet.) = (concluding=20 that appellees had waived cross-point on appeal by failing to = raise=20 argument in the trial court).  Dickie=3Ds cross-points are waived.

 

[2]  Because Dickie=3Ds cause of action accrued before = September 1,=20 2005, the former version of section 74.351(a) applies. See = Act of=20 May 18, 2005, 79th Leg., R.S., ch. 635, _ 2, 2005 Tex. Gen. Laws 1590, = 1590.  That=20 version stated that Aa claimant shall, not later than the = 120th day=20 after the date the claim was filed, serve on each party or = the=20 party=3Ds attorney one or more expert reports, = with a=20 curriculum vitae of each expert listed in the report . . . = .@ See id. _ 1 (emphasis added).  The current = version of=20 section 74.351(a) states that Aa claimant shall, not later than the = 120th day=20 after the date the original petition was filed, serve on = each party=20 or the party=3Ds attorney one or more expert reports, = with a=20 curriculum vitae of each expert listed in the report . . . = .@ See Tex. Civ. Prac. & Rem. = Code=20 _ 74.351(a) (emphasis = added).

[3]  In its brief, CHCA Mainland = argues that=20 A[Dickie] did not show that Dr. Hyman had = the=20 necessary qualifications as an expert under Sections 74.351(r)(5) = and=20 74.401(a).@  While CHCA Mainland is correct in = its=20 assertion that Dickie has the burden to demonstrate that Dr. Hyman = is=20 qualified to offer an expert opinion on the elements of her claim, = section=20 74.401 is applicable only to health care liability claims asserted = against=20 physicians. See Burrell, 230 S.W.3d at 757 (A[The plaintiff], as proponent of the = expert, has=20 the burden to show that the expert is qualified and the expert = report=20 satisfies the statutory requirements.@); see also Tex. Civ. Prac. & Rem. = Code=20 _ 74.401 (AQualifications of Expert Witness in Suit = Against=20 Physician@).  Because Dickie has sued a = health care=20 providerCand not a physicianCwe apply the analogous provisions of = section=20 74.402 instead. See id. _ 74.402 (AQualifications of Expert Witness in Suit = Against=20 Health Care Provider@).

[4]  Cf. = Burrell, 230 S.W.3d at 759 = (concluding that expert report was not conclusory and that it = sufficiently=20 set forth the expert=3Ds experience with = decubitus=20 ulcers, where expert report provided that expert was Afamiliar with the = standard of=20 care as it pertains to prevention and treatment of decubitus=20 ulcers,@ that he had = Aexperience in = instructing=20 nurses and other personnel in the proper techniques to prevent = decubitus=20 ulcers,@ and that he had = Atreated patients = with=20 decubitus ulcers over the course of [his] practice as an = infectious=20 disease internist and occupational doctor@).

[5]  Cf. = Burrell, 230 S.W.3d at 760 = (concluding that expert report sufficiently demonstrated=20 expert=3Ds knowledge of the = standard=20 of care applicable to the prevention and treatment of decubitus = ulcers,=20 where expert stated in his report that he was familiar with the = standard=20 of care as it pertains to the prevention and treatment of = decubitus=20 ulcers); Group, 164 = S.W.3d at=20 734 (holding a doctor=3Ds statement that he has knowledge of the = accepted=20 standard of care for the injury or illness at issue satisfies = section=20 74.402(b)(2)).

[6]  Cf. = Burrell, 230 S.W.3d at 760 = (concluding that expert report sufficiently demonstrated=20 expert=3Ds knowledge of = decubitus=20 ulcers, where expert linked his experience in his medical=20 specialitiesCinternal medicine,=20 occupational medicine, and infectious diseaseCto decubitus ulcers = by=20 stating that, over the course of his career in each of these = specialties,=20 he treated patients with decubitus ulcers and trained nurses and = other=20 medical personnel in the proper techniques to prevent that medical = condition).

[7]  Cf. = Burrell, 230 S.W.3d at=20 760B61 (concluding that = expert=20 had substantial training or experience in an area of health care = relevant=20 to the plaintiff=3Ds claim, and was = therefore=20 qualified under section 74.402(c)(1), where expert report = explained that=20 expert had trained personnel on the prevention and treatment of = decubitus=20 ulcers and treated patients with decubitus ulcers over the course = of his=20 practice as a doctor of internal medicine, occupational medicine, = and=20 infectious disease, and expert=3Ds curriculum vitae = indicated=20 that expert was board eligible in infectious disease, a fellow in=20 infectious disease, and had Arelevant teaching=20 experience@).

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