Texas = Judiciary Online

Trial Court Cause No.=20 33639

MEMORANDUM=20 OPINION

This appeal arises = from a=20 medical malpractice claim brought by Appellees, Leonard and Mary=20 Wellbrock, against Appellants, Trinity = Community Medical Center = (Trinity) and=20 Ronald Eikenhorst, M.D. = The=20 trial court denied Appellants=92 motions to dismiss which asserted = that the=20 Wellbrocks failed to satisfy the requirements set forth in section = 74.351=20 of the Texas Civil Practice and Remedies Code. See Tex. Civ. Prac. & Rem. = Code Ann.=20 =A7 74.351 (Vernon Supp. 2007). The Wellbrocks move to = dismiss the=20 appeal for want of jurisdiction, alleging that Appellants are = appealing an=20 interlocutory order which denied relief under section = 74.351(l). See id. =A7 74.351(l). As to the merits, in = their sole=20 issues, both Trinity and Eikenhorst contend that the trial court = abused=20 its discretion in ruling that the Wellbrocks=92 expert report = complies with=20 the statute. We = conclude that=20 we have jurisdiction over the appeal and affirm the trial = court=92s=20 decision.

Background

=20 On August 27, 2004, an ambulance transported Leonard = Wellbrock to=20 Trinity after he was seriously injured in a motor vehicle = accident. Leonard arrived at = Trinity=20 immobilized on a backboard and wearing a cervical collar, with = head blocks=20 on either side of his head. =20 The emergency physician ordered radiographic studies of = Leonard=92s=20 spine, which Trinity performed. =20 The Wellbrocks allege that Trinity=92s radiology = technicians removed=20 Leonard from the backboard, took off his cervical collar, and = placed him=20 upright in a sitting position in order to take the=20 x-rays.

=20 Dr. Eikenhorst is the radiologist who interpreted = Leonard=92s=20 x-rays. In his = report, he=20 noted that Leonard had a spinal dislocation injury at the=20 C₇-T₁ level, but Eikenhorst diagnosed the=20 dislocation as being =93consistent with a history of prior = fracture and=20 prior surgery.=94 = The=20 Wellbrocks claim that Eikenhorst did not communicate his findings = on the=20 nature or extent of Leonard=92s injuries to the emergency = department=20 physician, and as a result, Trinity discharged Wellbrock = =93without the=20 required orthopedic or neurological expedited evaluation and=20 treatment.=94 =20

On=20 August 29, after Leonard=92s condition had deteriorated, Mary took = Leonard=20 to St. Luke=92s Medical Center. There, the orthopedic = surgeon who=20 had previously operated on Leonard=92s spine surgically repaired = his=20 cervical spine fracture. =20 Leonard now suffers permanent impairment, which the = Wellbrocks=20 attribute to the willful and wanton negligence by Trinity and = Eikenhorst.=20 Specifically, the Wellbrocks allege that Trinity and Eikenhorst=20 exacerbated Leonard=92s injuries when (1) Eikenhorst failed to = diagnose a=20 serious injury to Leonard=92s back, causing a delay in his = treatment, and=20 (2) Trinity removed Leonard=92s neck collar and backboard during = the x-ray=20 process, instead of keeping him immobilized. The Wellbrocks brought = suit under=20 both Chapter 74 and the Emergency Medical Treatment and Active = Labor Act=20 (EMTALA).

=20 In support of their claims, the Wellbrocks filed the expert = report=20 of Dr. John Harris. The=20 report first classifies Leonard=92s injury as a bilateral = interfacetal=20 dislocation (BID) which occurred at the = C₇-T₁=20 vertebra. According = to=20 Harris, the dislocation is clearly shown on the imaging studies = reviewed=20 by Eikenhorst. = Harris states=20 that =93BID is a completely unstable injury which requires prompt=20 recognition and appropriate expedited management to spare or = prevent, as=20 much as possible, further injury to the spinal cord.=94 Harris continues by = stating that=20 =93any injury to the spine requires immediate attention, = especially when=20 there is pressure on the spinal cord, and the delay in treatment = will=20 unnecessarily aggravate such injuries.=94

=20 In regard to the standard of care required by Eikenhorst, = the=20 report states that the standard of care required Eikenhorst to: = (1)=20 communicate his report of =20 Wellbrock=92s cervical spine CT examination directly to the = emergency=20 physician as soon as Dr. Eikenhorst completed his interpretation = of the CT=20 scan; (2) make the correct diagnosis of BID, a relatively common = and=20 radiographically obvious injury; (3) immediately transmit the = diagnosis of=20 BID to the attending physician personally by direct communication; = and (4)=20 document, in his written report, that he has communicated the = findings of=20 BID to the attending physician, so as to ensure that the patient = remains=20 immobilized and receives the proper and immediate orthopedic or=20 neurological evaluation of the serious spinal injury. The report then = outlines the=20 ways by which Eikenhorst deviated from the standard of care = including=20 failing to communicate his findings, failing to recognize BID and=20 rendering an erroneous diagnosis, and failing to document in his = report=20 that he communicated the C₇-T₁ findings to = the=20 emergency physician. =20

In describing how = Eikenhorst=92s=20 breach of the standard of care caused Leonard=92s injuries, the = report reads=20 in pertinent part:

=20 (1) Dr. Eikenhorst=92s egregious, willful and wanton = failure to=20 immediately communicate his finding of the CT scan to the = Emergency=20 physician . . . resulted in Mr. Wellbrock=92s being discharged = from the=20 Trinity Medical Center, and in turn, led to further aggravation of = Mr.=20 Wellbrock=92s cervical spinal cord injury due to prolonged = compression of=20 the cord and unwarranted delay in treatment.

=20 (2) . = . . It is=20 my opinion that the failure of Dr. Eikenhorst to render a correct=20 interpretation of Mr. Wellbrock=92s serious BID injury, which = necessarily=20 involves serious injury to the spinal cord with potential = paralysis . . .=20 directly led to the improper discharge of Mr. Wellbrock without = the=20 required orthopedic or neurological immediate evaluation and=20 treatment. It is my = expert=20 opinion that Dr. Eikenhorst=92s failure to properly interpret Mr.=20 Wellbrock=92s serious BID caused the delay in evaluation and = treatment that=20 then resulted in his permanent impairments which, within = reasonable=20 medical probability, would not have resulted if Dr. Eikenhorst had = properly diagnosed the serious BID.

=20 (3) . . . It = is my=20 opinion that due to the serious nature of Mr. Wellbrock=92s = injury, the=20 failure of Dr. Eikenhorst to personally communicate and discuss = the=20 imaging studies with the Emergency Department physician led to Mr. = Wellbrock=92s discharge without the required orthopedic or = neurological=20 expedited evaluation and treatment, which, in reasonable medical=20 probability, would have led to greatly recovered health status by = Mr.=20 Wellbrock, instead of his current permanent impairment. . . . = During the=20 time of his discharge from the Trinity = Medical = Center=20 until his admission at St. Luke=92s Episcopal Hospital, Mr. = Wellbrock=92s=20 spinal cord injury progressed, and became clinically obvious with = his=20 deteriorated health. =20

Had Dr. Eikenhorst made the correct = diagnosis and=20 relayed the information to the Emergency physician, it [sic] my = expert=20 opinion and is within reasonable medical probability, that Mr. = Wellbrock=20 would have been emergently transferred to St. Luke=92s Episcopal = Hospital=20 and treated appropriately and promptly, with a much better = prognosis than=20 he had when admitted . . . = on=20 8/29/04, a delay of two days without the proper stabilization of = the=20 spinal column and immediate attention to the pressure on the = spinal cord=20 due to the BID injury.

=20 Dr.=20 Harris=92s report also outlines the standard of care for Trinity = and the=20 Department of Radiology. =20 According to Harris, the standard of care for a patient = admitted to=20 the hospital emergency department complaining of severe neck pain = and with=20 a cervical collar in place =93requires that the cervical = immobilization=20 never be removed until the cervical spine has been =91cleared=92 = (allowing the=20 removal of the immobilizing apparatus) by the radiologist.=94 The report also states = that the=20 standard of care requires that the radiology department =93develop = and=20 maintain Policies and Procedures regarding the management of = patients=20 suspected of cervical spine injury=94 and that the hospital = =93instruct and=20 document educational programs for employee management of patients=20 suspected of having cervical spine injuries (as Mr. Wellbrock) to = ensure=20 that all the Hospital staff handling such injured patients. . . = will=20 perform all the required procedures in the required manner to = prevent=20 further cervical spine injuries.=94 =20

=20 The report proceeds by outlining how, in Dr. Harris=92s = opinion,=20 Trinity deviated from the standard of care. It states that there is = no record=20 that Leonard=92s cervical spine had been cleared, but there is no = image of=20 the cervical collar being in place on any of the CT scans. The report concludes = that this=20 means that the cervical collar had been removed before placing = Leonard on=20 the CT scan. In = addition, the=20 erect chest x-ray of Leonard shows that Leonard was placed in a = sitting=20 position for the chest x-ray, without a cervical collar, which = reasonably=20 means the x-ray technician removed the spine immobilization = support. Dr. Harris opines that = removing=20 the cervical collar and placing a patient in a sitting position, = when the=20 patient is suspected of having a spine injury, is a breach of the = standard=20 of care. His report = also=20 states that Trinity deviated from the standard of care by failing = to=20 document the time Eikenhorst interpreted the x-ray so as to ensure = the=20 prompt transcription and printing of the report for the = patient=92s chart.=20

=20 Dr. Harris=92s report concludes by describing the way in = which=20 Trinity=92s breach of the standard of care caused Leonard=92s = injuries. It reads in pertinent=20 part:

=20 (1) . . . The failure of the radiology department staff to=20 continuously maintain Mr. Wellbrock=92s spine immobilized during = the imaging=20 procedures, within reasonable medical probability, exacerbated and = aggravated his serious BID injury, which ultimately resulted in = permanent=20 impairments.

=20 (2) . . . = [R]emoval of=20 the cervical collar and placing a patient into an erect (sitting)=20 position, when the patient is suspected of an acute cervical spine = injury=20 . . . in reasonable medical probability leads to further damage to = the=20 already injured spine. = The=20 fact that further damage and injury to the spine cord occurred is = clearly=20 evident by the major progression of Mr. Wellbrock=92s neurologic = findings=20 from the time he was discharged from Trinity = Medical = Center=20 until his admission to St. Luke=92s Episcopal Hospital. Therefore, it is my = expert opinion=20 that the further injury and aggravation of Mr. Wellbrock=92s BID, = within=20 reasonable medical probability, was caused by the willful and = wanton=20 removal of his spinal immobilization apparatus and movement of the = patient=20 without such immobilization during the studies performed by the = Trinity=20 Medical Center Radiology Department and resulted in his permanent=20 impairments.

=20 (3) . . . [T]he failure of the Hospital to ensure that this = imaging=20 report was promptly included in Mr. Wellbrock=92s chart, to ensure = its=20 review by the Emergency Department physician, caused a delay in = the=20 treatment of Mr. Wellbrock, thereby aggravating his spinal cord = injury,=20 which resulted in permanent impairments to Mr. Wellbrock because = of the=20 prolonged compression of the spinal cord until his treatment at = St. Luke=92s=20 three days later.

After receiving = Harris=92s=20 report, both Trinity and Eikenhorst objected to its sufficiency = and moved=20 to dismiss the Wellbrocks=92 suit, contending that the expert = report failed=20 to comply with the requirements of section 74.351. See Tex. Civ. Prac. & Rem. = Code Ann.=20 =A774.351. = The trial=20 court denied Trinity=92s and Eikenhorst=92s motions to dismiss, = and they=20 appealed.

Appellate=20 Jurisdiction

As an initial matter, = the=20 Wellbrocks contest our jurisdiction over the appeal. Specifically, the = Wellbrocks=20 contend that Trinity and Eikenhorst cannot appeal under section = 74.351(b)=20 because they filed an expert report and that section applies only = when no=20 report has been filed. = See=20 id. =A7 74.351(b). = Rather,=20 the Wellbrocks contend, Trinity and Eikenhorst challenge the = sufficiency=20 of the expert report which is a challenge under section 74.351(l) and not = appealable. Id. We = disagree.

Section 74.351(b) = states that=20 if

=93an=20 expert report has not been served within the period specified by=20 Subsection (a), the court, on the motion of the affected physician = or=20 health care provider, shall, subject to Subsection (c), enter an = order=20 that: (1) awards to = the=20 affected physician or health care provider reasonable attorney's = fees and=20 costs of court incurred by the physician or health care = provider; and (2) dismisses the claim with = respect=20 to the physician or health care provider, with prejudice to the = refiling=20 of the claim.=94

Id. Section 74.351(l) states that =93a = court shall=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).=94 =20 Id. =A7 74.351(l). Section 51.014 = allows an=20 interlocutory appeal from a court order that =93denies all or part = of the=20 relief sought by a motion under section 74.351(b), except that an = appeal=20 may not be taken from an order granting an extension under section = 74.351=94=20 or from an order that =93grants relief sought by a motion under = section=20 74.351(l).=94 Id. =A7 51.014(a)(9) & = (10).

Here, both Trinity = and=20 Eikenhorst moved to dismiss the suit under 74.351(b), as only = subpart (b)=20 provides for dismissal and fees,[1]=20 and the trial court denied relief. =20 =93As subpart (c) defines a timely but deficient report as = one that=20 =91has not been served,=92 the same meaning must be given the same = phrase in=20 subpart (b).=94 Lewis v. Funderburk, No. = 06-0518,=20 2008 WL 1147188, at *5 (Tex. April 11, 2008); see also Tex. Civ. Prac. & Rem. = Code Ann. =A7=20 74.351(b) & (c) (Vernon Supp. 2007). =20 An expert report has thus not been served for = purposes of=20 74.351(b) if only an inadequate report has been served. Lewis, 2008 WL 1147188, = at=20 *1. Parties are = entitled to=20 bring an interlocutory appeal for denial of relief under = 74.351(b). Tex. Civ. Prac. & Rem. = Code=20 Ann. =A7 51.014(a)(9). =20 We therefore hold that we have jurisdiction over this=20 appeal.

Expert=20 Report

In their sole issues, = both=20 Eikenhorst and Trinity contend that the trial court erred in its=20 determination that the Wellbrocks=92 expert report complied with = section=20 74.351 of the Civil Practice and Remedies Code. Both Eikenhorst and = Trinity=20 contend that (1) Harris is not qualified to offer any opinions in = this=20 case under section 74.401 or 74.402 respectively; (2) Harris is = not=20 qualified to offer opinions on causation because his specialty is = in=20 radiology, not neurology; and (3) the report is conclusory on = causation=20 and does not distinguish Leonard=92s pre-existing condition and=20 injuries. See id. =A7=A7 74.401 = &=20 74.402. In = response, the=20 Wellbrocks assert that Trinity and Eikenhorst waived their = obections to=20 the expert report by failing to timely object as required by = section=20 74.351. See id. =A7 = 74.351(a). Trinity responds that it = preserved=20 its right to request dismissal by timely = objecting.

Standard of=20 Review

=20 We review section 74.351 rulings under an abuse of = discretion=20 standard. See Am. Transitional Care Ctrs. = v.=20 Palacios, 46 S.W.3d 873, 875, 877 (Tex. 2001) =20 (reviewing ruling under predecessor statute); Gray v. = CHCA=20 Bayshore L.P., 189 S.W.3d 855, 858 (Tex. App.=97Houston [1st = Dist.]=20 2006, no pet.). A trial court abuses its discretion if it acts in = an=20 arbitrary or unreasonable manner without reference to guiding = rules or=20 principles. See = Garcia v.=20 Martinez, 988 S.W.2d = 219, 222=20 (Tex. 1999). = When=20 reviewing matters committed to the trial court=92s discretion, we = may not=20 substitute our own judgment for that of the trial court. Bowie Mem=92l = Hosp. v.=20 Wright, 79 S.W.3d 48, 52 (Tex. 2002). A = trial=20 court does not abuse its discretion merely = because it=20 decides a discretionary matter differently than an appellate court = would=20 in a similar circumstance. Gray, 189 S.W.3d = at=20 858.=20 However, a trial = court has no=20 discretion in determining what the law is or in applying the law = to the=20 facts. See = Walker v.=20 Packer, 827 S.W.2d = 833, 840=20 (Tex. = 1992).=20

Section 74.351 of the = Texas = Practice and=20 Remedies Code

=20 Pursuant to section 74.351, medical malpractice plaintiffs = must=20 provide each defendant physician and health care provider with an = expert=20 report. See = Tex. Civ. Prac. & Rem. = Code=20 Ann. =A7 74.351(a) (Vernon Supp. 2007). An expert report means a = =93written=20 report by an expert that provides a fair summary of the expert=92s = 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.=94 Id. = =A7=20 74.351(r)(6). A = defendant may=20 file an objection to the sufficiency of the report not later than = the 21st=20 day after the date it was served. =20 Id. = =A7=20 74.351(a). A trial = court=20 shall grant a motion challenging the adequacy of the expert report = only if=20 it appears to the court, after hearing, that the report does not = represent=20 an objective good faith effort to comply with the statutory = definition of=20 an expert report. = Id. = =A7 74.351(l).

=20 Although the report need not marshal all the plaintiff=92s = proof, it=20 must include the expert=92s opinions on the three statutory=20 elements=97standard of care, breach, and causation. See Palacios, 46 = S.W.3d at=20 878=9679. In = detailing these=20 elements, the report must provide enough information to fulfill = two=20 purposes if it is to be considered a good faith effort. Id. at=20 879. First, the = report must=20 inform the defendant of the specific conduct that the plaintiff = has called=20 into question. = Id. = at=20 879. Second, the = report must=20 provide a basis for the trial court to conclude that the claims = have=20 merit. Id. A report that merely = states the=20 expert=92s conclusions as to the standard of care, breach, and = causation=20 does not fulfill these two purposes. =20 Id. The expert must explain = the basis=20 for his statements and must link his conclusions to the = facts. Bowie = Mem=92l=20 Hosp., 79 S.W.3d at 52. =20 Furthermore, in assessing the report=92s sufficiency, the = trial court=20 may not draw any inferences, and must instead rely exclusively on = the=20 information contained within the report=92s four corners. See Palacios, 46 = S.W.3d at=20 879. A report that = omits any=20 of the statutory requirements is not a good faith effort to comply = with=20 the Act. Id. A trial court must = dismiss a cause=20 if it determines that the report does not represent a good faith = effort to=20 comply with the statute=92s requirements. Tex. Civ. Prac. & Rem. = Code=20 Ann. =A7 74.351(l);=20 see Jernigan v. = Langley, 111=20 S.W.3d 153, 156 (Tex.=20 2003).

Waiver

=20 The Wellbrocks contend that both Eikenhorst and Trinity = waived any=20 objection to Harris=92s expert report by failing to timely = object. Under section 74.351, a = defendant=20 may file an objection to the sufficiency of the report not later = than the=20 21st day after the date it was served. Tex. Civ. Prac. & Rem. = Code Ann.=20 =A7 74.351(a). = The=20 Wellbrocks served Harris=92s report on November 22, 2006; = therefore, the=20 statute required any objections to the report be filed by December = 13,=20 2006. See id. Trinity mailed its = objection by=20 certified mail on December 13, and the trial court clerk file = stamped it=20 on December 15. = Rule 21a of=20 the Texas Rules of Civil Procedure authorizes certified mail as a = method=20 of service and states that =93service by mail shall be complete = upon deposit=20 of the paper . . . in a post office.=94 Tex. R. Civ. P. = 21a. Rule 21a further states = that=20 =93whenever a party has the right or is required to do some act = within a=20 prescribed period after the service of a notice or other paper = upon him=20 and the notice or paper is served upon by mail . . . three days = shall be=20 added to the prescribed period.=94 =20 Id. Rule 21a applies to the = statutory=20 requirements contained in the Texas Civil Practice and Remedies = Code for=20 medical malpractice cases. See Herrera v. Seton NW. = Hosp.,=20 212 S.W.3d 452, 459 (Tex. App.=97Austin 2006, no pet.); Univ. of Tex. Health Sci. = Ctr. v.=20 Gutierrez, 237 S.W.3d 869, 872 (Tex. App.=97Houston = [1st Dist.]=20 2007, pet. denied) (applying rule 21a to section 74.351). Trinity=92s objections = therefore=20 were timely filed under rule 21a because they were mailed by = certified=20 mail on December 13, within the twenty-one day window.

=20 The Wellbrocks assert that Trinity=92s motion to dismiss, = filed on=20 January 11, 2007, was also untimely. =20 Contrary to this assertion, however, a motion to dismiss is = not=20 subject to the twenty-one day deadline, and in fact, cannot be = filed until=20 after the 120-day window in section 74.351(b) has expired. Lewis, 2008 WL 1147188 = at *1=20 (=93some challenges=97specifically those filed within the first = 120 days=97cannot seek dismissal or = fees=20 until the 120-day window has closed=94). Trinity=92s motion to = dismiss was=20 therefore timely filed.

=20 The Wellbrocks also contend that Eikenhorst=92s objections = were=20 untimely filed and thus waived. =20 Eikenhorst filed his objections to Harris=92s report on = December 18,=20 2006. Eikenhorst = asserts that=20 his objections were timely filed under rule 21a because he = received=20 Harris=92s report by certified mail and was thus entitled to an = additional=20 three days to respond. = See Tex. R. Civ. P. = 21a. The certificate of = service=20 attached to Harris=92s report does not indicate the method of = service, but=20 includes both regular mail and certified mail as possible = methods. Applying rule 21a, = Eikenhorst=92s=20 objections to the Wellbrocks=92 report were due on December = 16. Because December 16, = 2006 was a=20 Saturday, the deadline to file was extended to December 18, the = date=20 Eikenhorst served his objections. =20 See Tex. R. Civ. P. 4. We hold that = Eikenhorst=92s=20 objection to Harris=92s report was timely filed and address the = case on the=20 merits.

Harris=92s = qualifications under=20 sections 74.401 and 74.402

=20 Both Eikenhorst and Trinity assert that Harris was not = =93practicing=20 health care=94 as defined by section 74.401 or 74.402 = (respectively), and=20 therefore was not qualified to give an expert opinion in this = case. Section 74.401 defines = the=20 qualifications of an expert witness in a suit against a physician, = and=20 section 74.402 defines the qualifications of an expert witness in = a suit=20 against a health care provider. =20 See Tex. Civ. Prac. & Rem. = Code=20 Ann. =A7=A7 74.401 & 74.402 (Vernon = 2005).

Under section 74.401, = =93a person=20 may qualify as an expert witness on the issue of whether the = physician=20 departed from accepted standards of medical care only if the = person is a=20 physician who: =20 (1) is practicing medicine at the time such testimony is = given or=20 was practicing medicine at the time the claim arose; (2) has = knowledge of=20 accepted standards of medical care for the diagnosis, care, or = treatment=20 of the illness, injury, or condition involved in the claim; and = (3) is=20 qualified on the basis of training or experience to offer an = expert=20 opinion regarding those accepted standards of medical = care.=94 Id. =A7 74.401(a). =93Practicing = medicine=94 or=20 =93medical practice=94 includes =93training residents or students = at an=20 accredited school of medicine or osteopathy or serving as a = consulting=20 physician to other physicians who provide direct patient care, = upon the=20 request of such other physicians.=94 =20 Id.=20 =A7 74.401(b). = Section 74.402=20 is similar and requires that an expert in a healthcare liability = case be=20 =93actively practicing health care.=94 Id.=20 =A7 74.401(c)(2). = It defines=20 =93practicing health care=94 as =93(1) training health care = providers in the=20 same field as the defendant health care provider at an accredited=20 educational institution; or (2) serving as a consulting health = care=20 provider and being licensed, certified, or registered in the same = field as=20 the defendant health care provider.=94 =20 Id. =A7=20 74.402(a).

Dr. Harris=92s = curriculum vitae=20 (CV) and his expert report indicate that he is licensed in = Pennsylvania, Michigan,=20 and Texas, but = has not been=20 in full-time clinical practice since 2001. His report, however, = states that=20 he is active in preparing Board-Review sessions for radiology = residents at=20 The University of Texas-Houston Medical School, Baylor College of=20 Medicine, and the United States = Naval=20 Hospital in San = Diego. He also writes articles = for=20 publication in peer-reviewed journals and for radiologic = textbooks. In addition, his CV = states that=20 his present title is professor emeritus of radiology at The = University of=20 Texas-Houston Medical School, as well as adjunct professor in the=20 department of radiology at Baylor College of Medicine. It further states that = Harris is=20 on the active radiology staff at Hermann=20 Hospital. Taking into = consideration that=20 Harris=92s CV and report indicate that he teaches medical students = at an=20 accredited school, as well as remains on the active staff at=20 Hermann Hospital, = we=20 hold that the report sufficiently sets forth that Harris is = qualified to=20 give his expert opinion in this case under both sections 74.401 = and=20 74.402.

Harris=92s = qualifications as to=20 causation

=20 Eikenhorst and Trinity further contend that Harris is not = qualified=20 to give an opinion on causation because he is a radiologist, not a = neurologist, and Leonard=92s injuries were neurological. To offer an expert = opinion =93about=20 the causal relationship between the injury, harm, or damages = claimed and=20 the alleged departure from the applicable standard of care in any = health=20 care liability claim, the expert must be a physician who is = otherwise=20 qualified to render opinions on such causal relationship under the = Texas=20 Rules of Evidence.=94 = Tex. Civ. Prac. & Rem. = Code=20 Ann. =A7 74.351(r)(5)(C) (Vernon Supp. 2007). Under the Texas Rules of = Evidence,=20 a witness who is qualified as an expert by knowledge, skill, = experience,=20 training, or education may testify if it will assist the trier of = fact to=20 understand the evidence or to determine a fact issue. Tex. R. Evid. = 702.=20

=93Given the = increasingly=20 specialized and technical nature of medicine, there is no = validity, if=20 there ever was, to the notion that every licensed medical doctor = should be=20 automatically qualified to testify as an expert on every medical = question.=20 Such a rule would ignore the modern realities of medical=20 specialization.=94 = Broders v. Heise, 924 = S.W.2d 148,=20 152 (Tex. = 1996). Many cases have thus = excluded an=20 expert=92s report when the report did not prove the expert was = qualified to=20 address causation in the specified field. See, e.g., id. = (emergency room=20 physician not qualified to testify about brain injury because his = opinions=20 were speculative); Forrest v.=20 Danielson, 77 S.W.3d 842, 848 (Tex. App.=97Tyler 2002, no = pet.) (case=20 dismissed when orthopedic surgeon did not indicate that he was = familiar=20 with procedures used by surgeons in that case). These cases, however, = are=20 distinguishable. = Unlike in Broders, in which the = expert never=20 testified that he knew from either experience or study the = effectiveness=20 of the treatments in general, Harris states, in his report, that = his=20 =93experience, background, and continuing experience in the very = area that=20 is at issue in this case=97the acutely injured cervical = spine=97supports [sic]=20 the opinions=94 that he stated therein. He also states that = =93it is my=20 experience, having interpreted such imaging and thereafter = discussing the=20 findings with orthopedic surgeons and neurosurgeons that surgical=20 intervention would have immediately followed.=94 Harris, therefore, = clarifies that=20 he has experience in this type of injury, unlike the experts in = the=20 above-cited cases. = In=20 addition, Harris=92s CV indicates that he has published numerous = articles=20 concerning this type of injury, including Acute Cervical Spine = Trauma, Acute Injuries of the = Spine, and=20 A Practical = Classification of Acute=20 Cervical Spine Injuries. Given Harris=92s training = and=20 experience with the type of injury at issue, the trial court did = not abuse=20 its discretion in ruling that Harris is qualified to give an = opinion on=20 causation.

Causation

=20 Eikenhorst and Trinity contend that the Wellbrocks=92 = expert report=20 is deficient as a matter of law on the issue of causation because = it (1)=20 fails to distinguish Leonard=92s pre-existing condition and = injuries, and=20 (2) fails to describe the causal relationship between = Eikenhorst=92s and=20 Trinity=92s alleged negligence and Leonard=92s alleged = damages.

=20 Pre-existing=20 Injuries

=20 Both Eikenhorst and Trinity contend that the report is = deficient as=20 to causation because it fails to consider Leonard=92s pre-existing = injuries. Both = appellants=20 cite to Ballan and Barko for support. Ballan v. Gibson, 151 = S.W.3d 281=20 (Tex. App.=97Dallas 2004, = no pet.); Barko v. Genzel, 123 = S.W.3d 457=20 (Tex. = App.=97Eastland=20 2003, no pet.).

=20 In Ballan, a = patient=20 died in the emergency room as a result of arteriosclerotic = cardiovascular=20 disease, and the plaintiffs brought suit alleging his doctor was = negligent=20 by his failure to treat five cardiac risk factors. The expert=92s report = did not state=20 how the doctor=92s alleged failure to = act=20 regarding three of the risks caused Ballan=92s death, nor did it = rule out=20 the factors beyond the doctor=92s control as the cause of = death. Ballan, 151 S.W.3d at 284. The court held that the = expert=20 report was conclusory and affirmed the motion to dismiss. Id.

=20 In Barko, the = plaintiff=20 alleged that her emergency room physician negligently failed to = diagnose=20 and treat her disc re-herniation, which she asserted led to = permanent=20 neurological damage and a miscarriage. Barko, 123 S.W.3d at = 458. The court held that the = report was=20 insufficient to satisfy the statutory requirements because it: (1) = did not=20 indicate that the plaintiff would have recovered from the back = injury but=20 for the doctor=92s negligence; (2) did not state that the back = surgery would=20 have been avoided but for the doctor=92s negligence; and (3) did = not make=20 any attempt to eliminate either the back injury itself or the = attempt to=20 surgically repair it as a potential cause of the permanent = neurological=20 damage. Id.=20 at 460=9661.

=20 Unlike the reports in Barko and Ballan, Dr. Harris=92s = report does=20 address Leonard=92s pre-existing injuries. In his report, he states = that the=20 injuries were aggravated and exacerbated by Eikenhorst=92s and = Trinity=92s=20 negligence and that this aggravation resulted in his permanent=20 impairments. He = further=20 states that the failures by Eikenhorst and Trinity to follow the = standard=20 of care =93directly caused the aggravation of his serious spinal = injury . .=20 . and thereby resulted in delayed treatment with permanent=20 disability.=94 He = also opines=20 that the proper evaluation and treatment would have =93led to = greatly=20 recovered health status by Mr. Wellbrock, instead of his current = permanent=20 impairment.=94 = Harris therefore=20 considered Leonard=92s existing injuries and concluded that it was = the=20 aggravation of these injuries that caused his permanent = impairment, not=20 the pre-existing injuries themselves.

=20 Causation as to=20 Eikenhorst

=20 In regard to Eikenhorst=92s causation, Harris opined that=20 Eikenhorst=92s failure to communicate his CT scan findings and his = failure=20 to properly diagnose Leonard=92s injury caused a delay in = treatment and=20 aggravation of Leonard=92s injuries. =20 Harris states that had Eikenhorst properly diagnosed = Leonard with=20 BID, surgery would have immediately followed, relieving the = pressure on=20 the spinal cord and stabilizing the spine, which would have led to = greatly=20 recovered health status by Leonard, instead of his current = permanent=20 impairment. = Eikenhorst=20 contends that the report contains gaps that prevent it from being = a =93fair=20 summary.=94 He = contends that=20 Harris fails to explain how failing to identify Leonard=92s = condition=20 aggravated his injury. = We=20 disagree. Harris = opined that=20 in reasonable medical probability, Leonard would have received = immediate=20 surgery and had a greatly recovered health status had he obtained = an early=20 diagnosis. Thus, = the failure=20 of Eikenhorst to properly diagnose Leonard or communicate his CT = results=20 to the emergency physician prevented the early diagnosis which = would have=20 avoided Leonard=92s permanent impairments.

In support of his = causation=20 argument, Eikenhorst relies on Bowie,=20 where the plaintiff alleged that a hospital=92s physician=92s = assistant=20 misread or misplaced an x-ray and, therefore, did not discover = that the=20 plaintiff had fractured her foot. Bowie,=20 79 S.W.3d at 50. Approximately one month later, the plaintiff=92s = orthopedic=20 surgeon discovered the fractured foot. Id. The plaintiff filed an = expert=20 report, which stated that had the x-ray been properly read, she = =93would=20 have had the possibility of a better outcome.=94 Id.=20 at 51. The Supreme Court, after recognizing that a report need not = use any=20 particular magical words, held that the trial court could have = reasonably=20 determined that the report did not represent a good-faith effort = to=20 summarize the causal relationship. Id.=20 at 53. The court noted that the report simply opined that the = plaintiff=20 had a =93possibility of a better outcome,=94 and did not = sufficiently =93[link]=20 the expert=92s conclusion (that [the plaintiff] might have had a = better=20 outcome) to [the hospital=92s] alleged breach (that it did not = correctly=20 read and act upon the x-rays).=94 Id.

Eikenhorst also = relies on Longino, in which the = plaintiffs=20 alleged that the doctor failed to perform the tests necessary to = diagnose=20 their child=92s meningitis earlier and the delay caused the = child=92s=20 neurological injuries. = Longino v. Crosswhite, = 183 S.W.3d=20 913, 915 (Tex. = App.=97Texarkana=20 2006, no pet.). The = plaintiffs filed an expert report that stated only =93that the = delay in=20 diagnosis caused significant and permanent neurological = injuries.=94 Id.=20 at 918. The = appellate court=20 reversed the trial court and determined that the report was = insufficient=20 on causation because it failed to =93inform the defendant of the = specific=20 conduct the plaintiff has called into question=94 and did not = contain=20 specific information concerning Longino=92s conduct. Id.

In contrast to these = cases,=20 Harris opined in his expert report that Eikenhorst=92s breach of = his=20 standard of care permitted exacerbation of Leonard=92s spinal = injury by=20 prolonged pressure on the spinal cord that would have been = relieved with=20 proper care. Harris = states in=20 his report that =93surgical intervention would have immediately = followed the=20 diagnosis, thereby relieving the pressure on the spinal cord, and=20 stabilizing the spine.=94 =20 See Harris County Hosp.=20 Dist. v. Garrett, 232 S.W.3d 170, = 181=20 (Tex. App.=97Houston [1st = Dist.]=20 2007, no pet.) (holding report sufficient that stated that delay = in=20 diagnosis of cancer led to poor forecast when delay caused = advancement of=20 disease and limited availability of treatment options); Simonson v. Keppard, = 225 S.W.3d=20 868, 875=9677 (Tex. App.=97Dallas 2007, no pet.) (holding report = not=20 conclusory which stated that had deceased received proper = diagnosis,=20 deceased would have been admitted to hospital and deterioration = would have=20 been prevented or lessened); Linan=20 v. Rosales, 155 S.W.3d 298, 305=9606 (Tex. App.=97El Paso = 2004, pet.=20 denied) (affirming verdict in favor of plaintiff for doctor=92s = failure to=20 timely diagnose cancer based on evidence that during two-month = period=20 cancer =93involved the lymph vessels=94 and caused edema and that = advancement=20 of cancer eliminated option of breast conserving therapy); In re Barker, 110 S.W.3d = 486, 491=20 (Tex. App.=97Amarillo 2003, no pet.) (finding expert report = stating that=20 negligent failure to recognize medical condition and delay in = treatment=20 increased severity of plaintiff=92s injuries to be sufficient). = The report did not = only state=20 that a delay in diagnosis caused permanent injuries; it linked=20 Eikenhorst=92s specific conduct to a delay in diagnosis, leading = to=20 increased and prolonged spinal pressure, resulting in Leonard=92s = permanent=20 impairment.

We conclude that Dr. = Harris, in=20 his report, provided a fair summary of the causal relationship = between=20 Eikenhorst=92s failure to meet the pertinent standard of care and = the=20 Wellbrocks=92 damages, and adequately informed Eikenhorst of the = specific=20 conduct the Wellbrocks called into question. Accordingly, we hold that = the trial=20 court did not abuse its discretion in denying Eikenhorst=92s = motion to=20 dismiss the Wellbrocks=92 health care liability=20 claims.

Causation as to=20 Trinity

In regard to = Trinity=92s=20 causation, Harris opined that the radiology department=92s failure = to keep=20 Leonard=92s spine immobilized during the x-ray procedures led to = further=20 damage to his already injured spine, resulting in permanent=20 impairments. He = further=20 states that the radiology department=92s failure to include the = imaging=20 report in Leonard=92s chart, to ensure its review by the emergency = department, =93caused a delay in the treatment of Mr. Wellbrock, = thereby=20 aggravating his spinal cord injury, which resulted in permanent=20 impairments to Mr. Wellbrock because of the prolonged compression = of the=20 spinal cord until his treatment at St. Luke=92s three days = later.=94 Like Eikenhorst, Trinity = contends=20 that Harris=92s report is conclusory because it does not describe = how=20 Trinity=92s alleged negligence caused Leonard=92s injuries.

Trinity also relies = on Bowie and Longino to support its=20 contention. = However, unlike=20 the reports in Bowie = and Longino, Harris outlined = Trinity=92s=20 specific conduct, which led to the aggravation of Leonard=92s = injuries and=20 resulted in his permanent impairment. In addition, Harris = states that=20 Trinity=92s failure to include the imaging report in Leonard=92s = chart led to=20 a delay in his treatment, which caused prolonged compression of = his spinal=20 cord and also attributed to his permanent impairment. The report thus does not = merely=20 state that a delay in treatment caused permanent impairment, but = explains=20 why the delay caused that result. =20 The report therefore provided a fair summary of the conduct = in=20 question. = Accordingly, we=20 hold that the trial court did not abuse its discretion in denying=20 Trinity=92s motion to dismiss the Wellbrocks=92 health care = liability=20 claims.

Conclusion

=20 We conclude that we have jurisdiction over this appeal and=20 therefore deny the Wellbrocks=92 motions to dismiss for lack of=20 jurisdiction. We = further=20 conclude that the trial court did not abuse its discretion in = denying=20 Eikenhorst=92s and Trinity=92s motions to dismiss. We therefore affirm the = judgment=20 of the trial court.

&nbs= p; = ; = &= nbsp; =20 Jane=20 Bland

&nbs= p; = ; = &= nbsp; =20 Justice

Panel consists of = Chief Justice=20 Radack and Justices Jennings and = Bland.