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Affirmed and Opinion filed February 19,=20 2008.

 

In The

 

Fourteenth=20 Court of Appeals

____________

 

NO. 14-07-00545-CV

____________

 

MANSOUR=20 SANJAR, M.D., AND TED W. KRELL, M.D., = Appellants

 

V.

 

AUGUSTINE=20 TURNER, LIONEL COLEMAN, SR.,

RONNIQUA D. = COLEMAN, AND=20 LAPORSCHA COLEMAN,

AS HEIRS AND = REPRESENTATIVES=20 OF THE ESTATE OF KAREN YVETTE GREEN, = Appellees

 

 

On Appeal from the = 215th District Court

Harris County, = Texas

Trial Court Cause = No. 2007-07422

 

 

O P I N I=20 O N

This=20 appeal pertains to a health care liability suit brought by = appellees,=20 Augustine Turner, Lionel Coleman, Sr., Ronniqua D. Coleman, and = Laporscha=20 Coleman, as heirs and representatives of the estate of Karen = Yvette Green=20 (collectively Athe=20 Colemans@), against=20 appellants Mansour Sanjar, M.D. and Ted Krell, M.D. (collectively=20 Athe=20 doctors@). =20 The doctors contend in this interlocutory appeal that the trial = court=20 erred in denying their motions to dismiss because the = Colemans=3D = expert=20 report is deficient.  Specifically, they claim the expert was = not=20 qualified to render an opinion and the expert report was = cumulative,=20 vague, and conclusory as to the standard of care and = causation.  We=20 disagree and affirm the trial court=3Ds=20 judgment.

I. =20 BACKGROUND

On=20 December 2, 2004, Karen Yvette Green entered the psychiatric unit = of San=20 Jacinto Methodist Hospital for suicidal ideation under the care of = Mansour=20 Sanjar, M.D.  Green=3Ds medical=20 history included, among other conditions, bronchial asthma and = lower back=20 pain.  As part of the suicide watch, the nursing staff = monitored=20 Green every fifteen minutes.

On=20 December 5, Green experienced back pain.  Dr. Ted Krell saw = her and=20 prescribed hydrocodone.  Between December 5 and 7, Green = developed=20 swelling in her legs (edema).  Dr. Jeb Johnson was notified = of the=20 edema on December  7, at which time he also prescribed 50 mcg = of=20 fentanyl for Green=3Ds back=20 pain.  Green=3Ds other=20 sedative psychiatric medications, such as Seroquel, were = continued. =20

Over the=20 next five days, Green continued to gain weight due to the edema in = her=20 legs.  Dr. Johnson, Dr. Krell, and Dr. Sanjar each examined = her at=20 some point during this period.  Dr. Sanjar added the sedative = Haldol=20 to Green=3Ds=20 medications.  By December 11, Green had gained over twenty = pounds,=20 had developed wheezing and shortness of breath, and had become=20 increasingly lethargic.  Dr. Beth Choby examined Green on = Saturday=20 afternoon, December 11, noted Green had oral thrush, and stated = she would=20 see Green again on Monday.  The hospital nursing staff noted = that=20 Green=3Ds=20 increasing lethargy and sleepiness were likely related to the = medications.=20

At 2:00=20 a.m. on December 12, 2004, Green complained of indigestion.  = At 6:45=20 a.m. she developed cardiac arrest and could not be = resuscitated.  The=20 autopsy report showed Green had hypertensive cardiovascular = disease,=20 increased size of the heart, bronchial asthma, fluid in the lungs, = and=20 congestion of the liver.  The medical examiner concluded that = the=20 combined toxicity of fentanyl and Seroquel caused = Green=3Ds=20 death. 

The=20 Colemans sued San Jacinto Methodist Hospital, Dr. Sanjar, Dr. = Krell, Dr.=20 Johnson, and Dr. Choby,[1]=20 alleging that the hospital and doctors failed to (1) properly = evaluate,=20 diagnose, monitor, and treat Green=3Ds edema,=20 (2) properly monitor Green while she was on sedative psychiatric=20 medication, (3) properly monitor and treat Green=3Ds adverse=20 respiratory conditions, and (4) properly monitor Green=3Ds vital=20 signs as part of the suicide watch.  The Colemans claimed = that=20 negligence by the hospital and the four doctors caused = Green=3Ds=20 death.

Pursuant=20 to Texas Civil Practice and Remedies Code section 74.351, the = Colemans=20 filed an expert report by Eric Hoffman, M.D., a board certified = physician=20 of internal medicine.  Dr. Sanjar and Dr. Krell objected to=20 Hoffman=3Ds expert=20 report and each filed motions to dismiss, which the trial court = denied=20 after conducting a hearing.  On appeal, Dr. Sanjar and Dr. = Krell=20 contend in their first issue that the trial court abused its = discretion by=20 requiring them to provide extrinsic evidence regarding their = objections to=20 the adequacy of the expert report.  The doctors argue in = their second=20 issue that the trial court erred because as an internist, Hoffman = is not=20 qualified to render an expert opinion on the standard of care = applicable=20 to them as psychiatrists.  Dr. Krell further claims in his = third and=20 fourth issues that the trial court erred because the report fails = to=20 segregate the defendants and Hoffman=3Ds opinions=20 on the standard of care and causation are conclusory.

II. =20 STANDARD OF REVIEW

We review=20 a trial court=3Ds ruling=20 as to the adequacy of an expert report under an abuse of = discretion=20 standard.  Am. Transitional Care Ctrs. of Tex., Inc. v.=20 Palacios, 46 S.W.3d 873, 878 (Tex. 2001).  A trial court = abuses=20 its discretion if it acts in an arbitrary or unreasonable manner = or=20 without reference to guiding rules or principles.  See = Garcia v.=20 Martinez, 988 S.W.2d 219, 222 (Tex. 1999).  Though we may = not=20 substitute our judgment for that of the trial court in reviewing = factual=20 matters or matters committed solely to the trial court=3Ds=20 discretion, the trial court has no discretion in determining what = the law=20 is or in applying the law to the facts.  See Walker v. = Packer,=20 827 S.W.2d 833, 839B40 (Tex.=20 1992).  Thus, a trial court=3Ds failure=20 to apply or analyze the law correctly is an abuse of = discretion. =20 Id. at 840.

III. =20 HOFFMAN=3DS=20 QUALIFICATIONS

Section=20 74.351 of the Texas Civil Practice and Remedies Code requires that = health=20 care liability claimants provide an expert report to the = defendants no=20 later than 120 days after filing the original petition.  = Tex. Civ. Prac. & Rem. = Code=20 Ann. ' = 74.351(a)=20 (Vernon Supp. 2007).  A defendant may then file a motion = challenging=20 the adequacy of the report, and the trial court Ashall=20 grant@ = the=20 motion if it appears that the report does not represent a good = faith=20 effort to comply with the statutory definition of an expert = report. =20 Id. ' = 74.351(a), (l).  The statute defines = an expert=20 report as a written report by an expert that provides a fair = summary of=20 the expert=3Ds opinions as of the = date of=20 the report regarding the applicable standard of care, the manner = in which=20 that standard was breached, and the causal relationship between = that=20 breach and the injury, harm, or damages claimed.  Id.=20 ' 74.351(r)(6).  To=20 qualify as an expert on whether the defendant physician departed = from the=20 standard of medical care, the expert=3Ds report=20 and curriculum vitae must demonstrate that the expert is a = physician who=20 was practicing medicine at the time the claim arose, has knowledge = of=20 accepted standards of medical care for the diagnosis, cure, or = treatment=20 of the illness, injury or condition involved  in the claim, = and is=20 qualified on the basis of training or experience to offer an = expert=20 opinion regarding those accepted standards.  Id. = ' = 74.401(a)=20 (Vernon 2005).  In determining whether a physician is = qualified on=20 the basis of training or experience, the court shall consider = whether the=20 physician is board certified or has other substantial training in = an area=20 of medical practice relevant to the claim and is actively = practicing=20 medicine in rendering medical care services relevant to the = claim. =20 Id. ' = 74.401(c).  The trial court=3Ds inquiry=20 is limited to the four corners of the report.  = Palacios, 46=20 S.W.3d at 878.

Hoffman=20 asserts in his report that he is qualified on the basis of his = training=20 and experience to offer an opinion regarding the treatment of=20 Green=3Ds edema,=20 respiratory distress, and back pain.  Hoffman=3Ds report=20 and curriculum vitae reflect that he is board certified in = internal=20 medicine, has been practicing medicine for over twenty years, is = familiar=20 with the standard of care for asthmatic bronchitis, back pain, = edema of=20 the leg, congestive heart failure, and suicide watches, and is = familiar=20 with interpreting how autopsy results relate to the medical = diagnosis=20 during a patient=3Ds=20 life.  Dr. Hoffman states that he formed his opinions in this = case=20 from a review of Green=3Ds medical=20 records, the autopsy report, his years of experience, his = knowledge=20 accumulated as chairman of a medical records committee, and = medical=20 literature.

In their=20 second issue, Sanjar and Krell contend the trial court erred in = denying=20 their motions to dismiss because Hoffman=3Ds report=20 fails to establish that he is qualified to render an opinion about = the=20 standard of care applicable to them in their roles as = Green=3Ds=20 psychiatrists.  The doctors argue that the Aaccepted=20 standards of medical care@ = language=20 in section 74.401(a)(2) should be developed with respect to the = medical=20 specialty in question, and therefore Hoffman must demonstrate = knowledge of=20 what the standard of care requires of a psychiatrist when = presented with=20 circumstances similar to Green=3Ds=20 condition.  We disagree.

Dr.=20 Hoffman concluded in his report that an overdose of fentanyl = decreased=20 Green=3Ds=20 respirations, and that the failure to properly monitor Green in=20 conjunction with her decreased respirations led to her inability = to=20 breathe after she aspirated and resulted in her cardiac arrest and = death.  Hoffman further concluded that the failure to = correctly=20 diagnose the cause of Green=3Ds edema,=20 cardiomyopathy, and bronchial asthma contributed to her = death. =20 Hoffman=3Ds report=20 and curriculum vitae demonstrate that he is qualified to opine on = the=20 standard of care applicable to physicians monitoring and treating = edema,=20 prescribing fentanyl for back pain, and monitoring respiratory=20 distress.  Hoffman=3Ds report=20 also provides evidence that in caring for Green, Sanjar and Krell = acted,=20 at least to some extent, in their capacity as medical = doctors.  The=20 report states that Sanjar took Green=3Ds medical=20 history of bronchial asthma and back pain upon her admission to = the=20 hospital.  Sanjar also prescribed Haldol, which has sedative=20 properties, for Green.  Krell prescribed hydrocodone for=20 Green=3Ds back=20 pain.  Both doctors independently examined Green at some = point during=20 the five days leading up to her death, the time frame when her = edema,=20 lethargy, and respiratory problems continued to worsen.  We = therefore=20 conclude Hoffman was qualified to render an expert opinion on the = standard=20 of care applicable to Sanjar and Krell with respect to their = participation=20 in the treatment of Green=3Ds edema,=20 the administration of fentanyl, and the monitoring of her = increasing=20 lethargy and respiratory difficulties.[2]=20  See In re Stacey K. Boone, P.A., 223 S.W.3d 398, 407 = (Tex.=20 App._Amarillo=20 2006, no pet.) (holding cardiologist was qualified to render = expert=20 opinion as to general surgeon=3Ds care=20 because opinion was on post-operative therapy and surgeon = participated in=20 management of that therapy); see also Broders v. = Heise, 924=20 S.W.2d 148, 153B54 (Tex.=20 1996) (holding medical expert must have sufficient expertise with = regard=20 to actual subject because not every doctor is a qualified expert = on every=20 medical question).  Accordingly, we conclude the trial court = did not=20 abuse its discretion in denying the motions to dismiss on grounds = that=20 Hoffman was not qualified to render an expert opinion as to Sanjar = and=20 Krell.  We overrule the doctors=3D = second=20 issue.

IV. =20 SUFFICIENCY OF HOFFMAN=3DS=20 REPORT =

Krell=20 argues in his third and fourth issues that the trial court erred = in=20 denying his motion to dismiss because Hoffman=3Ds report=20 impermissibly groups all the defendant doctors under a single = standard of=20 care and is conclusory as to causation.  We disagree and = conclude the=20 trial court could have found that the report meets the statutory=20 requirements.

When=20 considering a motion to dismiss under section 74.351, Athe issue=20 for the trial court is whether the report represents a good faith = effort=20 to comply with the statutory definition of an expert = report.@ =20 Palacios, 46 S.W.3d at 878.  To constitute a = Agood faith=20 effort,@ = the=20 report must provide enough information to fulfill two purposes: = (1) it=20 must inform the defendant of the specific conduct the plaintiff = has called=20 into question and (2) it must provide a basis for the trial court = to=20 conclude that the claims have merit.  Id. at = 879.  The=20 expert must explain the basis for his statements and link his = conclusions=20 to the facts.  Bowie Mem=3Dl Hosp. v.=20 Wright, 79=20 S.W.3d 48, 52 (Tex. 2002).  When a plaintiff sues more than = one=20 defendant, the expert report must set forth the standard of care=20 applicable to each defendant and explain the causal relationship = between=20 each defendant=3Ds=20 individual acts and the injury.  See Tex. Civ. Prac. & Rem. = Code Ann.=20 ' = 74.351(a), (r)(6).  Identifying the correct standard of care = is=20 essential because the trial court cannot determine whether each = doctor=20 breached its duty without specific information about what that = particular=20 doctor should have done differently.  See Palacios, 46 = S.W.3d=20 at 880.

In his=20 report, Hoffman gives his opinion on three areasCedema,=20 fentanyl medication, and suicide watch.  With regard to=20 Green=3Ds edema,=20 Hoffman lists all the defendants by name and gives a detailed = description=20 of the standard of care for diagnosing and treating edema.  = He=20 explains what the doctors should have done but failed to do,[3]=20 how this affected Green=3Ds medical=20 condition,[4]=20 and that the failure to deliver the standard of care was a = proximate cause=20 of Green=3Ds=20 death.  Regarding the fentanyl medication, Hoffman states the = standard of care for the prescribing physician (Johnson), then = cites all=20 four defendant doctors by name for their failure to properly = prescribe and=20 monitor the use of fentanyl.  Hoffman describes how the = fentanyl=20 overdose caused depression of Green=3Ds=20 respirations and concludes that the failure to monitor Green was a = proximate cause of her death after she aspirated.  Finally, = Hoffman=20 states the standard of care for the Aphysicians,=20 nurses and hospital staff@ = monitoring a patient on suicide watch and cites all the defendants = by name=20 for failing to properly monitor Green on the suicide watch.  = Hoffman=20 states that the failure to monitor contributed to = Green=3Ds=20 deteriorating respiratory status and was a proximate cause of her=20 death.  In his final summary, Hoffman concludes:

Dr.=20 Sanjar, Dr. [Johnson], Dr. Krell and Dr. Choby fell below the = standard of=20 care in prescribing a larger than required dose of [fentanyl] and = that=20 this led to the subsequent exacerbation of breathing problems in=20 relationship to the patient=3Ds asthma=20 problems and congestion and that this was a proximate cause of the = death=20 and this fell below the standard of care as outlined above and was = therefore negligent.

According=20 to Hoffman=3Ds report,=20 all the defendant doctors participated in treating = Green=3Ds edema,=20 monitoring her fentanyl medication, and monitoring her respiratory = distress. Hoffman=3Ds report=20 sets out the standard of care applicable to Green=3Ds treating=20 physicians by name and describes in detail the care Green should = have=20 received from them.  We therefore conclude that grouping the=20 defendant doctors together under the relevant standard of care for = each=20 condition does not render Hoffman=3Ds report=20 inadequate.  See Romero v. Lieberman, 232 S.W.3d 385,=20 391B92 (Tex.=20 App.CDallas=20 2007, no pet.) (concluding Aone size=20 fits all@ = standard=20 of care was sufficient because all three doctors participated in = treating=20 patient=3Ds=20 condition); Boone, 223 S.W.3d at 405B06=20 (holding single standard of care applied to defendant doctors and=20 physician=3Ds=20 assistant sufficient because all were involved in administering=20 treatment). 

Krell=20 cites several cases in support of his argument that an expert = report=20 naming multiple defendants but applying the same standard of care = to all=20 fails to meet the statutory requirements.  See Taylor v. = Christus=20 Spohn Health Sys. Corp., 169 S.W.3d 241, 246 (Tex. = App.CCorpus=20 Christi 2004, no pet.); Eichelberger v. St. Paul Med. Ctr., = 99=20 S.W.3d 636, 639 (Tex. App.CDallas=20 2003, pet. denied); Doades v. Syed, 94 S.W.3d 664, = 671B72 (Tex.=20 App.CSan=20 Antonio 2002, no pet.); Rittmer v. Garza, 65 S.W.3d 718,=20 722B23 (Tex.=20 App.CHouston=20 [14th Dist.] 2001, no pet.); Whitworth v. Blumenthal, 59 = S.W.3d=20 393, 396 (Tex. App.CDallas=20 2001, pet. dism=3Dd by=20 agr.); Wood v. Tice, 988 S.W.2d. 829, = 831B32 (Tex.=20 App.CSan=20 Antonio 1999, pet. denied).  Krell=3Ds reliance on these = cases is=20 misplaced.  While=20 Taylor does require that the expert report state a standard of = care=20 for each healthcare provider, nothing in Taylor explicitly = forbids=20 applying the same standard of care to more than one physician if, = as in=20 the present case, they all owed the same duty to the = patient.  See=20 Taylor, 169 S.W.3d at 245B46.=20  The expert=20 reports in the other cases are distinguishable because they either = failed=20 to state a standard of care, failed to specifically name the = defendant=20 health care providers or failed to recognize that the health care=20 providers owed different duties to the patient.[5] =

We further=20 conclude that Hoffman=3Ds report=20 is not conclusory as to causation.  Krell claims that Hoffman = fails=20 to explain how the cardiomegaly and heart congestion associated = with=20 Green=3Ds edema=20 contributed to her death and fails to show a causal link between = the=20 administration of fentanyl, the decrease in Green=3Ds=20 respiratory status, and her death.  Krell claims that in = light of his=20 limited involvement as an on-call psychiatrist,[6]=20 the report does not sufficiently explain what he did or failed to = do, nor=20 does it link any alleged deviations from the standard of care to = any=20 damages.  We disagree.  As discussed above, = Hoffman=20 indicates that all four physicians, Krell included, participated = in caring=20 for Green.  Hoffman states what the doctors, Krell included, = should=20 have done to properly monitor and treat Green=3Ds=20 conditions.  He states that if she had received the proper = care, in=20 all likelihood she would have survived.  Hoffman explains the = basis=20 for his statements and describes a causal link between = Green=3Ds=20 congestive heart condition, the depression of her respirations = from=20 over-medication, and the failure to adequately monitor her = deteriorating=20 condition.  See Bowie, 79 S.W.3d at 52 (report must = contain=20 information linking expert=3Ds=20 conclusions to alleged breach).  While Hoffman=3Ds report=20 could have been more specific as to exactly how Green=3Ds=20 cardiomegaly and bronchial asthma caused her death, we cannot say = that the=20 trial court=3Ds=20 conclusion that it was sufficient constitutes an abuse of=20 discretion.  See Hillcrest Baptist Med. Ctr. v. Wade, = 172=20 S.W.3d 55, 60B61 (Tex.=20 App.CWaco 2005,=20 pet. dism=3Dd by agr.)=20 (holding that because trial court could have concluded that when=20 considered together, expert reports contained statutory = requirements,=20 court did not abuse its discretion in denying defendant medical=20 center=3Ds motion=20 to dismiss).  Further, an expert report need not marshal all = the=20 plaintiff=3Ds proof as=20 long as it includes the expert=3Ds opinion=20 on each of the elements identified in the statute.  See=20 Palacios, 46 S.W.3d at 878.  Accordingly, we conclude=20 Hoffman=3Ds report=20 represents a good‑faith effort to comply with the statutory = definition of=20 an expert report, and the trial court did not abuse its discretion = in=20 denying the motions to dismiss on this basis.  See = Bowie, 79=20 S.W.3d at 52.  We overrule Krell=3Ds third=20 and fourth issues.

CONCLUSION

Based on our review of the = Colemans=3D claims and the four corners of=20 Hoffman=3Ds report, we conclude that Hoffman was = qualified=20 to issue an expert opinion on the standard of care applicable to = the=20 defendant physicians with respect to their treatment of = Green=3Ds edema, fentanyl medication, and = respiratory=20 distress.  We further conclude that Hoffman=3Ds report meets the two-part Palacios = test=20 because it informs Sanjar and Krell of the specific conduct the = Colemans=20 have called into question and provides sufficient information for = the=20 trial court to conclude the claims have merit.  = See = Palacios, 46 S.W.3d at = 879.  We=20 hold the trial court did not abuse its discretion in denying=20 Sanjar=3Ds and = Krell=3Ds motions to = dismiss and=20 therefore affirm the trial court=3Ds = judgment.

 

 

          =20

/s/     =20 Leslie B. Yates

Justice

 

 

Judgment=20 rendered and Opinion filed February 19, 2008.

Panel=20 consists of Justices Yates, Fowler, and Guzman.


[1]  San Jacinto Methodist Hospital = and Drs.=20 Johnson and Choby are not parties to this appeal.

[2]  In their first = issue, Sanjar=20 and Krell contend the trial court failed to limit its review to = the four=20 corners of the report by requiring them to produce evidence of = their=20 medical specialty.  As evidence of this, the doctors point to = the=20 trial court=3Ds questions = regarding=20 evidence in the record that would establish their roles as = psychiatrists,=20 as well as the court=3Ds statement, = AI just = don=3Dt read Chapter 74 = as you=20 suggest it should be read where you have absolutely no evidentiary = burden.@  We disagree = with the=20 doctors=3D interpretation = that these=20 statements amounted to the trial court=3Ds going beyond the = four=20 corners of the expert report.  However, even if it were = error, we=20 have determined that Hoffman was qualified to opine on = Green=3Ds medical care, and = that=20 Sanjar and Krell participated in that medical care.  = Therefore,=20 regardless of whether the trial court=3Ds comments could be = interpreted as requiring Sanjar and Krell to put forth evidence, = the trial=20 court could still have properly concluded, based on = Hoffman=3Ds report and = curriculum=20 vitae, that Hoffman was qualified to render an expert opinion on = the=20 medical issues relevant to the claim.  See Donalson v. Barr, 86 = S.W.3d 718,=20 720 (Tex. App.CHouston [1st Dist.] 2002, no pet.) = (holding that=20 appellate court must affirm when trial court reaches the right = result, but=20 for the wrong reasons).  The doctors=3D first issue is overruled. =

[3]  The report states,=20 AWhat should have = been done is=20 that the patient should have had an evaluation which included a = chest=20 x-ray, pulse oximetry and/or echocardiography which would well = have=20 established the congestion related to both asthma and congestive=20 cardiomegaly which was found at autopsy.@

[4]  The report = states:

The known = consequences of a=20 failure to provide the above listed care by Dr. Sanjar, Dr. Krell, = Dr.=20 [Johnson], and Dr. Choby to Karen Green includes the development = of=20 increasing congestion and the development of life threatening = situations .=20 . . . the standard of care was breached and the patient, Karen = Green,=20 developed cardiomegaly and exacerbation of her bronchial asthma = with=20 marked congestion of the lungs.

[5]  For example, in = Rittmer=20 this court found the expert report inadequate because = it=20 referred to the defendant physicians collectively and lacked = specificity=20 as to the standard of care applicable to the different portions of = surgery=20 performed by the individual doctors.  65 S.W.3d at = 722B23.  In = contrast to the=20 report in Rittmer, Hoffman=3Ds report assigns = the same=20 duty to all the defendant physicians to monitor, properly = diagnose, and=20 properly treat Green=3Ds edema and = respiratory=20 difficulties.  Doades also involved a report that = failed to=20 state the standard of care for each defendant health care = provider. =20 94 S.W.3d at 672.  However, Doades is distinguishable = because=20 while Hoffman=3Ds report = specifically states=20 the standard of care and describes the specific measures the = treating=20 doctors failed to take when monitoring and treating = Green=3Ds conditions, the = Doades=20 report wrapped the standard of care, breach, and causation = into a=20 general assertion that the treating doctor and nurse A[failed] to = properly monitor=20 Doades and . . . [failed] to timely identify and properly treat = [his=20 condition],@ a statement the = court deemed=20 conclusory.  Id. at 668, 671B72.   The = remaining=20 cases deal with reports that completely failed to name any of the=20 defendant physicians.  See Eichelberger, 99 S.W.3d at = 639 (no=20 mention of defendant health care providers by name); = Whitworth,=20 59 S.W.3d at 396B97 (same); = Wood, 988=20 S.W.2d at 831B32 = (plaintiff=3Ds Aexpert = report@ consisted of = portions of=20 defendant doctor=3Ds deposition, did = not include=20 doctor=3Ds c.v., and did not = mention=20 any defendant physician by name).

[6]  Krell=3Ds argument regarding his limited role as = an=20 on-call, weekend psychiatrist amounts to a claim that he owed no = duty to=20 Green to recognize, monitor, and diagnose her deteriorating=20 condition.  This argument is more appropriately raised in a = motion=20 for summary judgment than a motion to dismiss under Chapter = 74. =20 See Wissa v. Voosen, No. 04‑07‑00386‑CV, = __ S.W.3d __, 2007 WL=20 2780148, at *2B3 (Tex. App.CSan Antonio Sept. 26, 2007, pet. filed)=20 (physician=3Ds challenge to expert report on grounds = that he=20 owed no duty to patient outside his role as an anesthesiologist = was=20 properly raised in motion for summary judgment, not motion to=20 = dismiss).

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