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Affirmed and Opinion filed March 27, = 2008.

 

In The

 

Fourteenth=20 Court of Appeals

____________

 

NO. 14-07-00622-CV

____________

 

MICHAEL V.=20 KELLY, II, M.D. AND MICHAEL V. KELLY, II, M.D., P.A. D/B/A = AESTHETIC=20 SURGERY CENTER OF HOUSTON; AMIT ANNAMANENI, M.D. AND RESPIRATORY = CENTER OF=20 NORTH HOUSTON, P.A.; LUIS ENRIQUE CASTILLO, M.D. AND NORTH HOUSTON = INFECTIOUS DISEASE ASSOCIATES CORRECTLY NAMED NORTH HOUSTON = INFECTIOUS=20 DISEASE ASSOCIATES, P.A.; AND HOUSTON NORTHWEST PARTNERS LTD. = D/B/A=20 HOUSTON NORTHWEST MEDICAL CENTER; = Appellants

 

V.

 

ISIDRO=20 RENDON, INDIVIDUALLY AND AS REPRESENTATIVE OF THE ESTATE OF = YOLANDA LEAL=20 RENDON; JULIAN RENDON; AND LAUREN RENDON; = Appellees

 

 

On Appeal from the = 80th District Court

Harris County, = Texas

Trial Court Cause = No. 2007-02313

 

 

O P I N I=20 O N

Appellees,=20 Isidro Rendon, individually and as representative of the estate of = Yolanda=20 Rendon, Julian Rendon, and Lauren Rendon, filed suit against = appellants,=20 Michael V. Kelly, II, M.D. and Michael V. Kelly, II, M.D., P.A. = d/b/a=20 Aesthetic Surgery Center of Houston (collectively ADr.=20 Kelly@); Amit=20 Annamaneni, M.D. and Respiratory Center of North Houston, P.A.=20 (collectively ADr.=20 Annamaneni@); Luis=20 Enrique Castillo, M.D. and North Houston Infectious Disease = Associates,=20 correctly named North Houston Infectious Disease Associates, P.A.=20 (collectively ADr.=20 Castillo@); and=20 Houston Northwest Partners Ltd. d/b/a Houston Northwest Medical = Center=20 (AHouston=20 Northwest@), for=20 medical malpractice.  Appellants each filed objections to=20 appellees=3D = expert=20 witness reports and moved to dismiss appellees=3D = suit=20 pursuant to section 74.351 of the Texas Civil Practice and = Remedies=20 Code.  The trial court denied appellants=3D = motions.  Appellants then filed this interlocutory appeal = contending=20 the trial court abused its discretion when it denied their motions = to=20 dismiss.  We affirm.

Factual=20 and Procedural Background

On=20 September 20, 2004, forty-three year old Yolanda Rendon consulted = Dr.=20 Kelly complaining of weakness and protrusion of the abdomen.  = Dr.=20 Kelly examined Ms. Rendon and recommended she have diastasis recti = abdominoplasty surgery, a surgical procedure commonly called a = tummy=20 tuck.  On October 20, 2004, Ms. Rendon had preoperative lab = work=20 performed with many bacteria noted in the urine.  No further = lab work=20 was done and  no preoperative antibiotic therapy was = ordered. =20 On November 1, Dr. Kelly performed the tummy tuck procedure on Ms. = Rendon=20 with no complications reported.

On the=20 evening of November 2, Ms. Rendon experienced a fever of = 101.3.  The=20 Northwest Houston nurse contacted Dr. Kelly by telephone.  = Dr. Kelly=20 ordered Tylenol for the fever.  Dr. Kelly did not order any = lab work=20 or x-ray testing and did not go to the hospital to evaluate Ms.=20 Rendon=3Ds=20 condition.

Beginning=20 soon after midnight on November 3, Ms. Rendon=3Ds=20 condition began to  rapidly worsen.  In addition to = fever, Ms.=20 Rendon experienced nausea, vomiting, burning abdominal pain, = decreased=20 urine output that was dark and concentrated, and weakness.  = The nurse=20 determined Ms. Rendon was experiencing decreased oxygen saturation = and her=20 lungs were congested.  Despite Ms. Rendon=3Ds=20 deteriorating condition, the nurses made no effort to contact Dr.=20 Kelly.  Dr. Kelly finally saw Ms. Rendon at 10:00 a.m. the = morning of=20 November 3.  Dr. Kelly concluded Ms. Rendon=3Ds fever=20 was caused by her getting out of bed.  Dr. Kelly ordered no=20 diagnostic tests, discontinued the Tylenol and started her on pain = medication and an oral antibiotic.

About noon=20 on November 3, Ms. Rendon=3Ds=20 oxygenation level continued to decrease and she complained of=20 dizziness.  The nurses started Ms. Rendon on supplemental = oxygen=20 therapy that resulted in a small increase in Ms. = Rendon=3Ds=20 oxygenation level.  The duty nurses did not report this = development=20 to Dr. Kelly.

During the=20 afternoon of November 3, Ms. Rendon=3Ds=20 condition continued to worsen as it was determined her urine = output over=20 the past eight hours was only fifty milliliters.  When the = nurses did=20 contact Dr. Kelly, he ordered additional supplemental oxygen and = ordered a=20 chest x-ray, which was performed at 2:00 p.m.  This x-ray = revealed no=20 acute disease.  At 4:30 p.m., the nurses again contacted Dr. = Kelly by=20 telephone and he ordered a CBC test and IV fluid hydration.  = The CBC=20 test noted the white blood count was at a normal level but with = bands=20 exhibiting high critical at 40%.  Starting at 4:31 p.m. and=20 continuing for the rest of the evening, Ms. Rendon=3Ds=20 condition severely deteriorated.  Ms. Rendon=3Ds blood=20 pressure was critically low and she required continued = supplemental oxygen=20 therapy to maintain her oxygen saturation levels.  At 5:00 = p.m., a=20 Foley catheter was inserted and Ms. Rendon produced only a small = amount of=20 urine, which was cloudy and had a foul odor.  Throughout the=20 afternoon of November 3, Ms. Rendon was kept on the regular post = op=20 inpatient unit.

At 6:00=20 p.m., Dr. Kelly consulted with Dr. Annamaneni, a critical care = specialist=20 and pulomonologist.  Dr. Annamaneni saw Ms. Rendon an hour = later and=20 ordered she be transferred to the intensive care unit = (AICU@). =20 Dr.  Annamaneni noted Ms. Rendon had fever, tenderness in the = midepigastric and lower rib cage areas, feeble pulse, headache, = shortness=20 of breath, and severe hypotension.  Dr. Annamaneni also noted = Ms.=20 Rendon complained of having burning, crawling pain extending from = below=20 the left breast area all the way to the left ankle for the last = day or=20 so.  Dr. Annamaneni=3Ds=20 differential diagnosis included likely sepsis and septic shock, = and he=20 noted the source could be the abdomen, urinary tract infection, or = the=20 lungs.  Ms. Rendon=3Ds white=20 blood count was now twenty-three.  As part of his transfer of = Ms.=20 Rendon to the ICU, Dr. Annamaneni ordered additional tests. =20 Following Dr. Annamaneni=3Ds=20 evaluation, Ms. Rendon was transferred to the ICU at 7:45 = p.m. =20

At 7:50=20 p.m., Dr. Castillo, an infectious disease specialist, assessed Ms. = Rendon=20 and noted she looked acutely ill with low blood pressure, elevated = heart=20 rate, edema of the abdomen, and erythema.  In addition, Dr. = Castillo=20 noted Ms. Rendon=3Ds abdomen=20 was so tender he could not deeply palpate it.  Dr. Castillo = noted Ms.=20 Rendon was in shock two days after her abdominoplasty, this shock = was=20 probable septic, and the operative site was the most likely source = of=20 infection.  Dr. Castillo then recommended Ms. Rendon have a = CT scan=20 of her abdomen and pelvis.  However, he did not order the CT = be=20 performed, nor did Dr. Kelly or Dr. Annamaneni.

At 9:30=20 p.m., Ms. Rendon=3Ds=20 condition was so critical, she was started on two pressor = medications to=20 keep her systolic blood pressure up.  At 10:00 p.m., Ms. = Rendon=20 complained of pain of such severity in her abdomen and legs that = Dr.=20 Annamaneni ordered she be given morphine every two hours as needed = for=20 pain.  Ms. Rendon developed generalized edema and a third = medication=20 was added at 11:45 p.m. for blood pressure support.  Ms. = Rendon had=20 been started on two intravenous antibiotics at 7:50 p.m. and at = 11:50=20 p.m., a third antibiotic was added.

As=20 November 3 came to a close, all three doctors treating Ms. Rendon = agreed=20 she was in septic shock, but none recommended she be taken back to = surgery=20 for exploration and drainage of the surgical wound.

Throughout=20 November 4, Ms. Rendon=3Ds=20 condition continued to decline.  Ms. Rendon=3Ds white=20 blood count was high and continued to increase.  She = continued to=20 receive morphine for the severe pain she suffered in her abdomen = and=20 legs.  Ms. Rendon also began to experience additional = complications=20 as a result of the severe sepsis: pulmonary edema, kidney failure, = and=20 multi-system organ failure.  At 5:30 p.m., Dr. Kelly = aspirated a=20 small amount of fluid from the lower area of the abdominal wound, = which=20 was sent to the lab for testing.

On=20 November 5, Ms. Rendon had severe difficulty breathing, which = required she=20 be intubated and placed on a ventilator.  At 9:40 a.m., the = lab=20 notified the ICU that the body fluid collected by Dr. Kelly the = previous=20 evening was positive for Beta Hymolytic Streptococcus Group A=20 bacteria.  Dr. Kelly noted the lab results revealed = necrotizing=20 fasciitis.  Also on November 5, Dr. Castillo called in = another=20 surgeon for evaluation of Ms. Rendon for a possible return to = surgery for=20 debridement of the necrotizing fasciitis.  Additional = antibiotic=20 therapy was also ordered.  While Dr. Castillo agreed Ms. = Rendon had=20 to be taken back to surgery for exploration, drainage, and = debridement of=20 her abdominal wound, because of her critically low platelet count, = her=20 return was delayed while she was given platelets and fresh, frozen = plasma.

Ms. Rendon=20 was taken into surgery at 9:05 p.m. in critical condition.  = While Ms.=20 Rendon was in the operating room, a code was called at 9:27 p.m. = and all=20 efforts to resuscitate her were unsuccessful with those efforts = ending at=20 9:45 p.m.  Prior to the code, Dr. Kelly opened the surgical = wound and=20 discovered a considerable amount of necrotic fatty tissue and = suctioned=20 off the necrotic tissue and a large amount of murky fluid from Ms. = Rendon=3Ds=20 abdomen.  Dr. Kelly did not send any of the removed necrotic = tissue=20 or the fluid to pathology, but instead, discarded it.  The = Death=20 Summary, signed by Dr. Kelly noted the diagnoses at death of = Adiastasis=20 recti@[1] = and=20 necrotizing fasciitis.  Dr. Kelly also signed Ms. = Rendon=3Ds=20 Certificate of Death, which noted the immediate cause of death to = be=20 septic shock with the underlying cause of necrotizing=20 fasciitis.

On=20 November 7, 2004, Dr. Albert Chen conducted an autopsy.  Dr. = Chen=20 issued a Preliminary Report on November 7, 2004.  Dr. Chen = issued his=20 Final Report on January 19, 2005, and a Supplemental Report on = September=20 14, 2006.  Dr. Chen concluded Ms. Rendon died as a result of=20 complications from necrotizing fasciitis.

Appellees=20 eventually filed a health care liability lawsuit against = appellants. =20 Pursuant to section 74.351 of the Texas Civil Practice and = Remedies Code,=20 appellees served on appellants the reports of six different = experts: (1)=20 Dr. Hubert Weinberg, a board certified plastic surgeon; (2) Dr. = Richard F.=20 Edlich, a board certified general and plastic surgeon; (3) Dr. = Paul Marik,=20 who is board certified in internal medicine and critical care = medicine;=20 (4) Dr. C. David Bakken, who is board certified in internal = medicine and=20 infectious disease; (5) Lisa Ruth-Sahd, a registered nurse = certified in=20 critical care and emergency nursing; and (6) Sharla Shumaker, a = registered=20 nurse with experience in critical care nursing.  In response, = appellants, arguing the reports were deficient, filed objections = to each=20 of the expert reports and moved the trial court to dismiss=20 appellees=3D = suit.  Following a hearing, the trial court denied=20 appellants=3D = motions.=20 This interlocutory appeal followed.

Discussion

In this=20 appeal, each set of appellants filed separate briefs raising = issues=20 challenging the trial court=3Ds denial=20 of their motions to dismiss.  As might be expected, there is=20 significant overlap between many of these issues.  Therefore, = to more=20 efficiently resolve this appeal, and for the sake of clarity, we = will=20 consolidate these common issues and address them together.  = These=20 consolidated issues can be broken down as follows: (1) the = qualifications=20 of some or all of appellees=3D = experts=20 to render expert opinions against appellants; (2) the adequacy of = the=20 appellees=3D = expert=20 reports as some fail to name a specific defendant; and (3) the = adequacy of=20 the appellees=3D = expert=20 reports on the appropriate standard of care and on = causation.  After=20 addressing these consolidated issues, we will then turn to the = remaining=20 issues raised by a single appellant.

I.       =20 Expert Report Requirements

This is a=20 health care liability lawsuit governed by chapter 74 of the Civil = Practice=20 & Remedies Code.  Tex. Civ. Prac. & Rem. Code Ann.=20 ' = 74.001=20 et seq. (Vernon 2005).  Under these provisions, a = claimant is=20 required to produce an expert report within 120 days of the date = the claim=20 is filed.  Id. at ' = 74.351(a).  Under the statute, the expert report must provide = a fair=20 summary of the expert=3Ds opinions=20 regarding the applicable standards of care, the manner in which = the care=20 rendered by the defendant physician or health care provider failed = to meet=20 the standards, and the causal relationship between that failure = and the=20 injury, harm, or damages claimed.  Id. at ' = 74.351(r)(6).  An expert report need not marshal all of the=20 plaintiff=3Ds proof,=20 but it must include the expert=3Ds opinion=20 on each of the elements identified in the statute.  See = Am.=20 Transitional Care Ctrs. of Tex., Inc. v. Palacios, 46 S.W.3d = 873, 878=20 (Tex. 2001) (applying predecessor statute).  In setting out = the=20 expert=3Ds opinions=20 on each of these elements, the plaintiff is not required to = present=20 evidence in the report as if it were actually litigating the = merits at=20 this preliminary stage of the lawsuit.  Id. at = 879. =20 Indeed, the information in the report can be informal as it does = not have=20 to meet the same standards as evidence offered in a summary = judgment=20 proceeding or at trial.  Id.  The expert report = is not=20 required to prove the defendant=3Ds=20 liability.  See Russ v. Titus Hosp. Dist., 128 S.W.3d = 332, 341=20 (Tex. App.CTexarkana=20 2004, pet. denied) (applying predecessor statute).  Instead, = the=20 report must provide only enough information to fulfill two = purposes: (1)=20 it must inform the defendant of the specific conduct the plaintiff = has=20 called into question and (2) it must provide a basis for the trial = court=20 to conclude that the claims have merit.  Palacios, 46 = S.W.3d=20 at 879.

         =20 In deciding whether the statutory standard has been met, the trial = court=20 examines only the four corners of the expert=3Ds report=20 and curriculum vitae.  Mem=3Dl Hermann=20 Healthcare Sys. v. Burrell, 230=20 S.W.3d 755, 758 (Tex. App.CHouston=20 [14th Dist.] 2007, no pet.).  If the trial court determines = the=20 expert report does not represent a good faith effort to comply = with the=20 statutory definition, then the trial court, subject to its = discretionary=20 authority to grant a thirty day extension to cure the deficiencies = in the=20 report, must grant a motion to dismiss challenging the = report=3Ds=20 adequacy.  Tex. Civ. Prac. & Rem. Code Ann. ' = 74.351(c), (l).

II.      =20 The 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.  Estate of Regis ex rel. McWashington v. Harris = County=20 Hosp. Dist., 208 S.W.3d 64, 67 (Tex. App.CHouston=20 [14th Dist.] 2006, no pet.).  The trial court abuses its = discretion=20 if it acts in an arbitrary or unreasonable manner without = reference to any=20 guiding rules or principles.  Burrell, 230 S.W.3d at=20 757.  We may not reverse a trial court=3Ds=20 discretionary ruling simply because we might have decided it=20 differently.  Id.

III.     =20 Are Appellees=3D = Experts=20 Qualified To Render Opinions Against Appellants?

A.     =20 Appellees=3D = Physician=20 Experts

Each of=20 the physician appellants contend some or all of = appellees=3D = doctors=20 are not qualified to render expert opinions against them.  In = their=20 challenges to appellees=3D = physician=20 experts, appellants attempt to unduly limit the field of experts = qualified=20 to render opinions against them to (1) doctors licensed only in = the State=20 of Texas; (2) who practice in the same medical discipline; and (3) = in the=20 same type of hospital as each appellant.  The statute does = not=20 require such specificity when deciding a challenge to an=20 expert=3Ds=20 qualifications.

An expert=20 providing opinion testimony regarding whether a physician departed = from=20 the accepted standards of health care must satisfy the = requirements set=20 forth in section 74.401. Tex. Civ. Prac. & Rem. Code Ann. = ' = 74.351(r)(5)(A).  Section 74.401 provides:

(a) In a suit = involving a=20 health care liability claim against a physician for injury to or = death of=20 a patient, a person may qualify as an expert witness on the issue = of=20 whether the physician departed from accepted standards of medical = care=20 only if the person is a physician who:

(1) is practicing = medicine at=20 the time such testimony is given or was practicing medicine at the = time=20 the claim arose;

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

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

(b) For the purpose = of this=20 section, Apracticing=20 medicine@ or Amedical = practice@ includes, but is = not limited=20 to, training residents or students at an accredited school of = medicine or=20 osteopathy or serving as a consulting physician to other = physicians who=20 provide direct patient care, upon the request of such other=20 physicians.

(c) In determining = whether a=20 witness is qualified on the basis of training or experience, the = court=20 shall consider whether, at the time the claim arose or at the time = the=20 testimony is given, the witness:

(1) is board = certified or has=20 other substantial training or experience in an area of medical = practice=20 relevant to the claim; and

(2) is actively = practicing=20 medicine in rendering medical care services relevant to the=20 claim.

* * *

(g) In this = subchapter,=20 Aphysician@ means a person who = is:

(1) licensed to = practice=20 medicine in one or more states in the United States ... =

Id. = ' = 74.401.

 

 

1.      =20 Dr. Kelly=3Ds=20 Qualification Challenges

a.      =20 Dr. Edlich

Dr. Kelly=20 initially contends Dr. Edlich is not qualified to provide expert = opinions=20 because, in Dr. Kelly=3Ds view, he=20 is not currently practicing medicine in a field relevant to the = claims=20 against Dr. Kelly and also was not doing so when Dr. Kelly treated = Ms.=20 Rendon.  We disagree.  The combination of Dr. = Edlich=3Ds report=20 and curriculum vitae establish he is still practicing medicine as = a=20 physician board certified in both general surgery and plastic = surgery, and=20 he has experience treating patients with the same condition as Ms. = Rendon.  As this health care liability case involves the care = of a=20 patient following plastic surgery, we hold Dr. Edlich meets the=20 requirements set forth in section 74.401(a)(1) of the Civil = Practice and=20 Remedies Code.  See Sanjar v. Turner, --- S.W.3d ---, = 2008 WL=20 441817, at *3 (Tex. App.CHouston=20 [14th Dist.] Feb. 19, 2008, no pet. h.) (citing In re Stacey K. = Boone,=20 P.A., 223 S.W.3d 398, 407 (Tex. App.CAmarillo=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)).

b.      =20 Doctors Bakken and Marik

Next, Dr.=20 Kelly attacks the credentials of both Dr. Bakken, an internal = medicine and=20 infectious disease physician, and Dr. Marik, an internal medicine = and=20 critical care physician,  to render opinions on the standard = of care=20 for a plastic surgeon such as Dr. Kelly.  Once again, we=20 disagree.

Here, Dr.=20 Kelly takes the position that both Dr. Bakken and Dr. Marik are = not=20 qualified to render opinions against him because their medical = specialty=20 is in a different medical discipline from his own.  However, = the=20 statute does not require a medical expert be practicing in the = exact same=20 field as the defendant physician, but instead must only be = actively=20 practicing medicine in rendering medical care services relevant to = the=20 claim.  Tex. Civ. Prac. & Rem. Code Ann. ' = 74.401(c)(2).  Here, the relevant medical services are those = for a=20 post-surgical patient showing the signs and symptoms of=20 infection.

In his=20 report, Dr. Bakken states he has thirty-three years of experience=20 specializing in infectious disease.  Dr. Bakken also states = he has=20 Atreated=20 many patients in the past with similar conditions as [Ms.] = Rendon. =20 As [an] infectious disease specialist, [he has] been consulted = multiple=20 times for patients with diagnoses of postoperative wound = infections,=20 sepsis, and necrotizing fasciitis.@  In=20 his report, Dr. Marik states he has twenty-five years experience = in the=20 fields of pulmonary and critical care medicine and is a professor = of=20 medicine and chief of the division of pulmonary and critical care = medicine=20 at Thomas Jefferson University.  Dr. Marik also states he has = Atreated=20 many patients diagnosed with the same conditions as [Ms.] Rendon,=20 including post-operative infection, sepsis, septic shock syndrome, = and=20 necrotizing fasciitis.@ =20 Because both Dr. Bakken and Dr. Marik have extensive education, = training,=20 and experience in treating patients similarly situated to Ms. = Rendon, they=20 are qualified to render an opinion on the standard of care at = issue in=20 this case.  See Sanjar, --- S.W.3d ---, 2008 WL 441817 = at *3;=20 see also Blan v. Ali, 7 S.W.3d 741, 746B47 (Tex.=20 App.CHouston=20 [14th Dist.] 1999, no pet.) (holding, in a summary judgment case,=20 that  an expert physician-witness in a healthcare liability = case need=20 not practice medicine in the same field as the defendant physician = but=20 only establish they are qualified to render an opinion on the = condition=20 involved in the claim).

2.      =20 Dr. Castillo=3Ds=20 Qualification Challenge

Dr.=20 Castillo only challenges the qualifications of Dr. Edlich.  = In=20 support of his position, Dr. Castillo argues the medical services = relevant=20 to appellees=3D = claims=20 Aare the=20 services provided by an infectious diseases consultant requested = to=20 provide specialized knowledge about the management of = antibiotic=20 therapy for a patient following abdominoplasty and to assume in = lieu of=20 the attending plastic surgeon the antibiotic therapy for the=20 patient.@  Dr.=20 Castillo then goes on to conclude that since Dr. Edlich is a = plastic=20 surgeon and not an infectious disease specialist, Dr. Edlich is = not=20 qualified to render an expert opinion against him.

While Dr.=20 Castillo is correct Dr. Edlich is a plastic surgeon and not an = infectious=20 disease specialist, we do not agree this fact automatically = precludes Dr.=20 Edlich from rendering an expert opinion against an infectious = disease=20 expert.  See Broders v. Heise, 924 S.W.2d 148, 154 = (Tex. 1996)=20 (applying predecessor statute).   In his report, Dr. = Edlich=20 states: AI have=20 treated many patients with the same condition as [Ms.] = Rendon.  I=20 have performed diastasis recti abdominoplasty surgery on numerous=20 occasions.  I have also diagnosed and treated patients who = have been=20 diagnosed as having necrotizing fasciitis.@  For=20 the same reasons we found Dr. Bakken and Dr. Marik qualified to = render an=20 opinion relative to Dr. Kelly, we hold Dr. Edlich is qualified to = render=20 an opinion regarding Dr. Castillo=3Ds=20 treatment of Ms. Rendon.  See Sanjar, --- S.W.3d ---, = 2008 WL=20 441817 at *3; see also Blan, 7 S.W.3d at = 746B47.

3.      =20 Dr. Annamaneni=3Ds=20 Qualification Challenges

Dr.=20 Annamaneni, a pulmonologist and critical care specialist, = challenges the=20 qualifications of each of appellees=3D = physician=20 experts to render expert opinions against him.[2] =20 According to Dr. Annamaneni, the medical services relevant to=20 appellees=3D = claims=20 against him are the services provided by a pulmonologist/critical = care=20 specialist practicing in a private as opposed to a public hospital = who was=20 consulted by the operating plastic surgeon to evaluate a patient = in=20 multi-system organ failure and to manage that patient=3Ds=20 hemodynamics and who then brought in an infectious disease = specialist to=20 evaluate, manage, and treat a suspected infectious=20 process.

Based on=20 that statement of the medical services at issue, Dr. Annamaneni = then=20 contends Dr. Weinberg, Dr. Edlich, and Dr. Bakken all lack the = training,=20 education, and experience to serve as medical experts against = him.[3]  =20 For the reasons stated in sections III(A) (1) and (2) above, we = disagree=20 these doctors are not qualified to render an opinion against Dr.=20 Annamaneni.  Dr. Annamaneni also asserts that Dr. Marik, a=20 pulmonologist and critical care specialist like himself, is not = qualified=20 to render an opinion in this suit because he practices in a large, = public=20 hospital setting as opposed to a private hospital setting.  = Dr.=20 Annamaneni does not cite any legal authority for this unique = argument, and=20 we are not persuaded the public or private status of a hospital = impacts=20 the standard of care expected of a doctor practicing in that=20 hospital.

Finally,=20 Dr. Annamaneni contends appellees=3D = physician=20 experts are not qualified under the statute because they are not = licensed=20 in the State of Texas.  Because the plain language of the = statute=20 defines Aphysician@ = to=20 include a person licensed to practice medicine in one or more = states in=20 the United States and each of appellees=3D = physicians meets that requirement, we refuse to find them = unqualified on=20 that basis.  Tex. Civ. Prac. & Rem. Code Ann. = ' = 74.401(g)(1).   Having addressed each of Dr.=20 Annamaneni=3Ds=20 qualification arguments, we hold that Dr. Edlich, Dr. Bakken, and = Dr.=20 Marik are qualified to render an expert opinion against Dr.=20 Annamaneni.  See Sanjar, --- S.W.3d ---, 2008 WL = 441817 at *3;=20 see also Blan, 7 S.W.3d at 746B47.

B.     =20 Appellees=3D = Nurse=20 Experts

In=20 addition to the reports of the four physicians, appellees also = filed=20 reports prepared by two nurses.  Each appellant challenges = these=20 reports by pointing out that nurses are not qualified under the = statute to=20 render expert opinions on the issue of causation.  We agree = with=20 appellants that, under the statute, a nurse is not qualified to = render an=20 opinion on medical causation.  Tex. Civ. Prac. & Rem. = Code Ann.=20 ' = 74.351(r)(5)(C).  Accordingly, the reports of Nurse Shumaker = and=20 Nurse Ruth-Sahd, standing alone, can not meet the statutory report = requirement on medical causation.  Id.  However, = this=20 does not end our analysis because appellees filed physician = reports in=20 addition to the reports prepared by the nurses.

In the=20 present case, Dr. Edlich, Dr. Bakken, and Dr. Marik reviewed the = report of=20 Nurse Ruth-Sahd and incorporated it by reference into their own=20 reports.  Each physician then relied on Ruth-Sahd=3Ds report=20 in rendering their own opinions regarding the standard of care and = medical=20 causation as it applies to Houston Northwest.  While a=20 nurse=3Ds report,=20 standing alone, is inadequate to meet the requirements of the = statute as=20 to medical causation, nothing in the health care liability statute = prohibits an otherwise qualified physician from relying on a=20 nurse=3Ds report=20 in the formation of the physician=3Ds own=20 opinion.  See Tex. R. Evid. 703 (stating an expert = may base=20 his opinion on facts or data that is not admissible in evidence if = it is=20 of a type reasonably relied on by experts in that particular = field);=20 see also Packard v. Guerra, --- S.W.3d ---, 2008 WL 516560 = at=20 *18B19 (Tex.=20 App.CHouston=20 [14th Dist.] Feb. 25, 2008, no pet. h.) (holding physician experts = could=20 rely on the expert opinion of an attorney in the formation of = their own=20 opinions regarding the standard of care and causation).  = Because Dr.=20 Edlich, Dr. Bakken, and Dr. Marik incorporated Nurse = Ruth-Sahd=3Ds report=20 into their own and relied on it in the formation of their opinions = regarding the standard of care and causation as it applies to = Houston=20 Northwest, we conclude the trial court did not abuse its = discretion in=20 considering Nurse Ruth-Sahd=3Ds report=20 in its determination of Houston Northwest=3Ds motion=20 to dismiss since it had become part of the reports of=20 appellees=3D = physician=20 experts.

We=20 overrule appellants=3D = issues=20 challenging the qualifications of appellees=3D = expert=20 witnesses.[4]

IV.     =20 Did Appellees=3D = Expert=20 Reports Fail To Address Any Appellants?

Dr.=20 Castillo, Dr. Annamaneni, and Houston Northwest point out that Dr. = Weinberg does not address their role in the events underlying this = lawsuit.  Dr. Castillo also complains Dr. Marik does not = address Dr.=20 Castillo=3Ds role in=20 his report.  Appellants are correct that Dr. = Weinberg=3Ds report=20 does not address any appellant=3Ds actions=20 except those of Dr. Kelly, and Dr. Marik does not address Dr.=20 Castillo.  Therefore, if these two reports were the only = reports=20 filed by appellees, then the trial court would have abused its = discretion=20 in finding appellees had met the statutory expert report = requirement as to=20 each appellant.  See Tex. Civ. Prac. & Rem. Code = Ann.=20 ' = 74.351(a)=20 (requiring a health care liability plaintiff to serve an expert = report=20 addressing each physician or health care provider = defendant). =20 However, there is no requirement that a health care liability = plaintiff=20 file a single, all encompassing report.  Id. = ' = 74.351(i).  Here, in addition to Dr. Weinberg=3Ds and Dr.=20 Marik=3Ds reports,=20 appellees filed expert reports by two other physicians, as well as = two=20 nurses. Thus, when all of appellees=3D = expert=20 reports are considered together, they address all appellants. = Therefore,=20 the fact Dr. Weinberg=3Ds report=20 addressed only Dr. Kelly and Dr. Marik=3Ds ignored=20 Dr. Castillo, is of no benefit to appellants.  = Packard, ---=20 S.W.3d ---, 2008 WL 516560 at *13.

We=20 overrule appellants=3D = issues=20 arguing the trial court abused its discretion based on the fact = each of=20 appellees=3D = expert=20 reports do not address every appellant.

 

V.     =20 Are Appellees=3D = Expert=20 Reports Deficient Because They Do Not Adequately Address The = Standard Of=20 Care And Causation?

Appellants=20 contend appellees=3D = expert=20 reports are deficient on the issues of the standard of care[5]=20 and causation because they are conclusory and do not specifically = address=20 each appellant.  Because Dr. Edlich is qualified to render an = opinion=20 as to the liability of each appellant, for reasons of judicial = economy, we=20 initially focus our analysis on his report and will only examine = the=20 sufficiency of the remaining expert reports if we determine Dr.=20 Edlich=3Ds report=20 is deficient on the issues of the standard of care and=20 causation.

A.     =20 Is Dr. Edlich=3Ds Expert=20 Report Deficient?

The=20 physician appellants generally assert Dr. Edlich=3Ds expert=20 report is conclusory because it lacks sufficient specific factual = detail=20 to adequately apprise appellants of the basis of = appellees=3D = claims=20 against them as to the standard of care.[6] =20 With regard to causation, appellants complain = appellees=3D = expert=20 reports are deficient because they only collectively address = causation and=20 fail to link their causation opinions to specific facts thus = rendering=20 them conclusory.

Dr. Edlich=20 filed a twenty-six page report detailing his opinions regarding = the care=20 and treatment Ms. Rendon received from appellants.  Dr. = Edlich stated=20 that, in the preparation of his report, he reviewed Ms. = Rendon=3Ds death=20 certificate, Ms. Rendon=3Ds autopsy=20 reports, and medical records from Houston Northwest, Dr. Kelly, = and Kelsey=20 Seybold Clinic, Willowbrook.  Dr. Edlich=3Ds report=20 contains a section titled ASummary of=20 Facts@ = that=20 details, almost hour by hour, the events underlying this lawsuit = beginning=20 with Ms. Rendon=3Ds initial=20 consultation with Dr. Kelly, continuing through the tummy tuck = procedure,=20 her post-surgical care, and concluding with her death less than = five days=20 after the surgery.  This summary includes Ms. = Rendon=3Ds=20 condition throughout that time period.[7] =20 Dr. Edlich then lists multiple standards of care for diagnosing = and=20 treating patients demonstrating symptoms like Ms. = Rendon=3Ds.[8] =20 Dr. Edlich then embarks on a detailed explanation of how each = appellant=20 violated the required standard of care.[9] =20 In the final section of his report, Dr. Edlich addresses = causation. =20 In the causation section, Dr. Edlich begins by generally stating = that, as=20 a result of their deviations from the standard of care, each = individually=20 named appellant caused Ms. Rendon=3Ds=20 death.  Dr. Edlich then provides a more detailed analysis = explaining=20 how each separate appellant=3Ds=20 violations of the standard of care caused Ms. Rendon=3Ds death.[10]

=

The=20 two-fold purpose of an expert report under section 74.351 is to = inform the=20 defendants of the specific conduct the plaintiff has called into = question,=20 and to provide the trial court with a basis to determine whether = or not=20 the plaintiff=3Ds claims=20 have merit.  Patel v. Williams, 237 S.W.3d 901, 906 = (Tex.=20 App.CHouston=20 [14th Dist.] 2007, no pet.).  Pursuant to this standard, we = conclude=20 Dr. Edlich=3Ds report=20 is not deficient as it addresses the standard of care in = sufficient detail=20 to apprise each appellant of appellees=3D = complaints regarding their alleged violations of the standard of=20 care.  Further, we conclude, with regard to his causation = opinions,=20 Dr. Edlich=3Ds report=20 specifically addresses each appellant and links his causation = opinions to=20 specific facts such that each appellant had notice of the = complaints=20 against them.  Therefore, keeping in mind that expert = reports, such=20 as that of Dr. Edlich, are simply a preliminary method to show a = plaintiff=20 has a viable cause of action that is not frivolous or without = expert=20 support, we hold the trial court did not abuse its discretion when = it=20 denied appellants=3D = motions=20 to dismiss based on their complaints that appellees=3D = expert=20 reports were deficient as to the standard of care and causation=20 elements.[11] =20 Id.  Because we have determined Dr. Edlich=3Ds report=20 meets the statutory requirements as to each appellant, we need not = address=20 appellants=3D = complaints regarding the other expert reports filed by appellees = on the=20 issues of the standard of care and causation.  Tex. R. App. = P. 47.1.

We=20 overrule appellants=3D = issues=20 asserting the trial court abused its discretion when it denied=20 appellants=3D = motions=20 to dismiss because appellees=3D = expert=20 reports are deficient as to the standard of care and = causation.

VI.     =20 Were Appellees=3D = Expert=20 Reports Deficient Because They Did Not Address Each Autopsy Report = Prepared By Dr. Chen?

Houston=20 Northwest complains appellees=3D = expert=20 reports are deficient because they do not address the causes of = death=20 found in each of the three autopsy reports drafted by Dr. Chen, = the=20 pathologist who conducted Ms. Rendon=3Ds=20 autopsy.

Dr. Chen=20 conducted an autopsy of Ms. Rendon on November 7, 2004.  = Subsequent=20 to the actual autopsy, Dr. Chen issued three reports on his = findings as a=20 result of that autopsy.  His provisional report was issued = the same=20 day the autopsy was conducted.  In his provisional report, = Dr. Chen=20 opined Ms. Rendon died as the result of multiple occlusive = pulmonary=20 thromboemboli.  Dr. Chen=3Ds final=20 report was issued on January 19, 2005.  In that report, Dr. = Chen gave=20 the cause of Ms. Rendon=3Ds death as=20 lethal levels of ephedrine.  However, despite the = classification of=20 the January 19, 2005 report as his final report, Dr. Chen issued a = supplemental report on September 14, 2006.  In his September = 14, 2006=20 report, Dr. Chen states the reason he issued the supplemental = report was=20 to Arender the=20 final cause of death as complications from necrotizing=20 fasciitis.@

Houston=20 Northwest argues appellees=3D = expert=20 reports are deficient because they did not  address each of = Dr.=20 Chen=3Ds reports=20 and each of his conclusions as to the cause of Ms. = Rendon=3Ds=20 death.  Here, Dr. Chen issued a supplemental report in which = he=20 rendered his final opinion that Ms. Rendon=3Ds death=20 was caused by complications from necrotizing fasciitis.  Each = of=20 appellees=3D = physician=20 experts noted they reviewed Dr. Chen=3Ds autopsy=20 reports in the preparation of their opinions and addressed = necrotizing=20 fasciitis as the cause of Ms. Rendon=3Ds=20 death.  Houston Northwest does not cite any legal authority = that=20 requires an expert, in a section 74.351 preliminary report, to=20 specifically address every autopsy report found in the medical = records,=20 particularly reports that have been supplanted by later = reports. =20 Because appellees=3D = experts=20 reviewed Dr. Chen=3Ds autopsy=20 reports in the preparation of their opinions in this case and = addressed=20 the final cause of death, necrotizing fasciitis, we hold the = reports =20 meet the statutory requirements.  We overrule Houston=20 Northwest=3Ds issue on=20 appeal based on the autopsy reports.

VII.    =20 Appellants Are Not Entitled To An Award Of Their=20 Attorney=3Ds Fees and=20 Costs

Dr.=20 Annamaneni contends the trial court abused its discretion when it = did not=20 award appellants their reasonable attorney=3Ds fees and=20 costs pursuant to section 74.351(b)(1).  Tex. Civ. Prac. = & Rem.=20 Code Ann. ' = 74.351(b)(1).  Because we have determined the trial court did = not=20 abuse its discretion when it denied appellants=3D = motions=20 to dismiss, appellants were not entitled to their reasonable=20 attorney=3Ds fees and=20 costs.  We overrule Dr. Annamaneni=3Ds issue on=20 appeal contending appellants were entitled to an award of their=20 attorney=3Ds fees and=20 costs.

Conclusion

Having=20 addressed and overruled all issues raised by appellants in this = appeal, we=20 affirm the trial court=3Ds order=20 denying each appellant=3Ds motion=20 to dismiss.

 

 

/s/     =20 John S. Anderson

Justice

 

Judgment rendered = and Opinion=20 filed March 27, 2008.

Panel consists of = Chief=20 Justice Hedges and Justices Anderson, and Boyce.


[1]  This is the original diagnosis = leading to=20 the tummy tuck procedure.

[2]  In the same issue on appeal, Dr. = Annamaneni=20 also challenges the qualifications of appellees=3D two nurse experts to render expert = opinions=20 against him.  We address that contention below in section = III(B).=20

[3]  Because Dr. Weinberg addresses = only Dr.=20 Kelly=3Ds treatment of Ms. Rendon and does not = name Dr.=20 Annamaneni in his expert report, his opinions cannot be used = against Dr.=20 Annamaneni.  Therefore, we need not reach the issue of = whether Dr.=20 Weinberg is qualified to render an opinion against Dr.=20 Annamaneni.

[4]  The fact we agree with appellants = that=20 Nurse Shumaker=3Ds report, standing alone, cannot address = the issue=20 of medical causation, does not change our holding overruling=20 appellants=3D issues challenging the  = qualifications of=20 appellees=3D experts because appellees filed = adequate reports=20 which address medical causation in addition to the report of Nurse = Shumaker.  See Tex. Civ. Prac. & Rem. Code Ann.=20 ' 74.351(i) (stating there is no = requirement that a=20 health care liability plaintiff file a single, all encompassing=20 report).

[5]  Houston Northwest does not raise = any=20 standard of care complaints on appeal.

[6]  In addition to a failure to state = exactly=20 what the standard of care was and what each appellant should have = done=20 differently to comply with that standard, examples of=20 appellants=3D specificity complaints include: (1) a = failure to=20 specify which antibiotics appellants should have ordered for Ms. = Rendon;=20 (2) the timing for the administration of those antibiotics; (3) = the exact=20 time during Ms. Rendon=3Ds hospitalization when her necrotizing = fasciitis=20 became irreversible; and (4) morbidity and mortality rates for = patients=20 similarly situated to Ms. Rendon.  Appellants do not cite any = authority in support of their position that a section 74.351 = report=20 requires the type of extreme detail listed above to give = defendants notice=20 of the basis of the claims against them and we are not persuaded = the=20 statute dictates such a level of detail.  Accordingly, we = reject=20 appellants=3D request to require that level of detail = in a=20 section 74.351 expert report.

[7]  As an example of the level of = detail found=20 in Dr. Edlich=3Ds report, we include a small excerpt=20 here:

 

On post op day # 2 (11/03/04), Ms.=20 Rendon=3Ds condition severely worsened.  At = midnight,=20 she continued to have fever of 101.9, followed by nausea and = vomiting at=20 0045, dark concentrated urine with increased burning abdominal = pain noted=20 at 0215, and decreased oxygen saturation of 94% at 0400 with = further=20 decrease to 93% at 0500.  At 0645, the nurse assessed that = Ms.=20 Rendon=3Ds lungs were congested and her urine = continued to=20 be dark and concentrated.  The patient complained of = weakness. =20 At 0800, Ms. Rendon had further temperature elevation of 101.4 = with=20 increased tenderness of the abdomen and declining blood pressure = of=20 100/50.  No telephone call was made to Dr. Kelly by the = nurses to=20 report Ms. Rendon=3Ds deteriorating condition.  = Finally, at 1000=20 on 11/03/04, Dr. Kelly saw Ms. Rendon and documented that her = continued=20 fever was caused by her getting out of bed.  Dr. Kelly wrote, = ATemp spike to 101 after she got = up.  This is=20 commonly seen when pts get up.@  Dr. Kelly ordered no diagnostic = tests, but=20 merely discontinued the Tylenol # 3, started Vicodin for pain, and = Keflex=20 antibiotic therapy.

[8]  We include an example of one of = the=20 standards of care listed by Dr. Edlich:

 

Standard of Care requires that = postoperatively=20 patients be assessed for signs and symptoms of infection to ensure = early=20 diagnosis and appropriate treatment.  Success of treatment of = necrotizing fasciitis depends upon this assessment and early = treatment of=20 this condition.

 

[1.]       = The most=20 common presenting symptom of necrotizing fasciitis is pain out of=20 proportion to the local inflammatory response noted by the=20 patient.

[2.]       = The=20 patient must be closely monitored for signs and symptoms of = infection,=20 including fever, elevated white blood cell count, pain out of = proportion=20 to the operative procedure, lethargy, quickly spreading erythema = of the=20 wound, and progressive anesthesia at the site of = infection.

[3.]       = Early=20 clinical diagnosis of group A Strep necrotizing infection can be = made by=20 taking a careful history of the patient and performing an MRI with = aspiration biopsy.

[4.]       = For=20 patients with symptoms of necrotizing fasciitis, the standard of = care=20 mandates that the wound site be immediately assessed as the = possible site=20 for infection.

[9]  We include an example of a = specific=20 violation of the standard of care as it applies to Dr. = Kelly:

 

Dr. Kelly breached the standard of care = when he=20 failed to adequately assess Ms. Rendon on the night of 11/02/04 = when she=20 developed fever of 101.3 at 2115.  Standard of care requires = prompt=20 assessment, work-up, and treatment of a post surgical patient who = develops=20 this type of elevated temp within the first post op = day.

 

[1.]       = Upon a=20 report of this high of fever on post op day #1, standard of care = required=20 that Dr. Kelly go to the hospital immediately to assess Ms.=20 Rendon=3Ds condition and her post op wound, order = diagnostic lab tests, order intravenous empiric broad spectrum = antibiotic=20 therapy, perform an MRI and/or CT scan for evaluation of the = abdomen, and,=20 if infection were found, take Ms. Rendon back to surgery for = debridement=20 and drainage of the wound.

[2.]       = Instead,=20 Dr. Kelly merely ordered Tylenol per phone order.  He did not = order=20 any tests or IV antibiotic therapy, and he did not return to the = hospital=20 to assess Ms. Rendon.

[10]  Dr. Edlich=3Ds causation opinion as to Dr. Kelly is = quoted here=20 in its entirety:

 

Dr. Kelly failed to properly assess the = condition=20 of Yolanda Leal Rendon prior to performing surgery on = 11/02/04.  Dr.=20 Kelly used surgical techniques that increased Ms. = Rendon=3Ds risk for acquiring an infection at = Houston=20 Northwest Medical Center, including use of inadequate preoperative = scrub,=20 improper use of hospital equipment, lack of appropriate = pre-operative=20 antibiotic therapy and improper closure of the surgical = wound.  Dr.=20 Kelly then delayed in assessment of Ms. Rendon=3Ds condition on 11/02/04, one day after = surgery,=20 when she developed a high fever.  He did not order diagnostic = tests=20 on 11/02/04 to determine the cause of her elevated temperature, = which was=20 an indicator of Strep A infection in a postoperative patient less = than 24=20 hrs after surgery.  By 11/03/2004, Dr. Kelly again failed to=20 recognize the rapidly deteriorating condition of Ms. Rendon with = signs and=20 symptoms of elevated white blood cell count, critical levels of = bands in=20 the CBC (left shift indicating bacterial infection), lethargy, = decreased=20 urine output, and critically low blood pressure.  Dr. Kelly = did not=20 appropriately treat this condition, perform the proper diagnostic = tests=20 for determination of causation of the infection, refer Ms. Rendon = in a=20 timely manner to a surgeon for consultation, nor did he take Ms. = Rendon=20 back for exploratory surgery.  In addition, on 11/04/2004, = when Ms.=20 Rendon=3Ds only hope for survival was to be taken = back to=20 surgery for exploration and debridement of the postoperative = abdominal=20 wound along with administration of aggressive antibiotic therapy, = Dr.=20 Kelly merely aspirated fluid near the incision cite, without use = of an=20 MRI, and sent the specimen to the lab for testing.

 

Research supports that the most = important=20 predictor of morbidity and mortality in this severe life = threatening=20 infection is the time interval between the onset of symptoms and=20 definitive surgical therapy.  Necrotizing fasciitis is a = progressive,=20 rapidly spreading inflammatory infection located in the deep = fascia,=20 causing secondary necrosis of the subcutaneous tissues.  For=20 treatment of necrotizing fasciitis to be successful, this = condition must=20 be diagnosed early on with administration of broad-spectrum = antibiotics=20 and rapid surgical debridement of the involved area.  Once=20 necrotizing fasciitis is suspected as being present, the patient = should be=20 immediately taken to the operating room to open up the surgical = wound and=20 debride the infected tissue.

 

Dr. Kelly should have been alert to the = methods to=20 diagnose serious surgical wound infections, like necrotizing = fasciitis,=20 which include: a diagnostic incision to search for infection, = ultrasound=20 of the wound, as well as an MRI of the wound.  If Dr. Kelly = had=20 ordered an MRI exam as early as 11/02/04, he would have diagnosed = the=20 abdominal infection of Ms. Rendon.  With early diagnosis of = this=20 infection, Ms. Rendon could have received appropriate therapy, = which would=20 have saved her life.  The MRI would have permitted the = visualization=20 of soft tissue edema in the fascial planes of the abdomen for = localization=20 of necrotic tissue and fluid accumulation.  With this early = diagnosis=20 of suspected Group A infection, Ms. Rendon could have received = immediate=20 appropriate treatment, including antibiotic therapy, surgical = debridement=20 of the wound with excision of devitalized tissue, bacteriologic = analysis=20 of the wound, and appropriate antibiotic therapy followed by open = wound=20 management.  

[11]  Appellants cite a litany of cases = they=20 contend support their contention that appellees=3D expert reports are deficient in their = standard of=20 care and causation opinions.  We disagree as all of the cases = can be=20 distinguished from the present case.  Most can be = distinguished=20 because, unlike the present case where the trial court denied=20 appellants=3D motions to dismiss, the trial court in = the cited=20 cases granted the defendants=3D motions to dismiss and the appellate = courts found=20 the trial court=3Ds dismissal of the plaintiff=3Ds claims for deficient expert reports = was within=20 the trial court=3Ds discretion.  See Bowie=20 Mem=3Dl Hosp. v. Wright, 79 S.W.3d 48 (Tex. 2002) (affirming = trial=20 court=3Ds dismissal of plaintiff=3Ds claims); Am. Transitional Care Ctr. = of Tex.,=20 Inc. v. Palacios, 46 S.W.3d 873 (Tex. 2001) (same); Apodaca = v.=20 Russo, 228 S.W.3d 252 (Tex. App.CAustin 2007, no pet.) (same); Talmore = v.=20 Baptist Hosp. of Southeast Tex. d/b/a Mem=3Dl Hermann Hosp., No. 09-06-024-CV, 2006 WL 2883124 = (Tex.=20 App.CBeaumont Oct. 12, 2006, no pet.) (mem. = op.)=20 (same);  Lopez v. Sinha, No. 14-05-00606-CV, = 2006 WL=20 2669355 (Tex. App.CHouston [14th Dist.] Sept. 19, 2006, no = pet.)=20 (mem. op.) (same);  Clark v. HCA, Inc., 210 S.W.3d 1 = (Tex.=20 App.CAmarillo 2005, no pet.) (same); =  Gray v.=20 CHCA Bayshore, L.P., 189 S.W.3d 855 (Tex. App.CHouston [1st Dist.] 2006, no pet.) = (same); =20 Longino v. Crosswhite, 183 S.W.3d 913 (Tex. = App.CTexarkana 2006, no pet.) (same); =  Hardy v.=20 Marsh, 170 S.W.3d 865 (Tex. App.CTexarkana 2005, no pet.) (same); =  Taylor=20 v. Christus Spohn Health Sys. Corp., 169 S.W.3d 241 (Tex.=20 App.CCorpus Christi 2004, no pet.) (same);=20  Costello v. Christus Santa Rosa Health Care Corp., = 141 S.W.3d=20 245 (Tex. App.CSan Antonio 2004, no pet.) (same); =  Russ=20 v. Titus Hosp. Dist., 128 S.W.3d 332 (Tex. App.CTexarkana 2004, pet. denied) (same);=20  Hawkins v. Gomez, No. 01-02-01195-CV, 2004 WL 306077 = (Tex.=20 App.CHouston [1st Dist.] Feb. 19, 2004, no = pet.) (mem.=20 op.) (same);  Strom v. Mem=3Dl Hermann Hosp. Sys., 110 S.W.3d 216 (Tex. App.CHouston [1st Dist.] 2003, pet. denied)=20 (same);  Villa v. Hargrove, 110 S.W.3d 74 (Tex.=20 App.CSan Antonio 2003, pet. denied) (same);=20  Kirksey v. Marupudi, No. 07-03-0076-CV, 2003 WL = 23096028=20 (Tex. App.CAmarillo Dec. 30, 2003, no pet.) (mem. = op.)=20 (same);  Leston v. Cwikla, No. 05-02-01712-CV, 2003 WL = 22332371 (Tex. App.CDallas Oct. 14, 2003, rule 53.7(f) = motion=20 granted)(mem. op.) (same);  Shaw v. BMW Healthcare, = Inc., 100=20 S.W.3d 8 (Tex. App.CTyler 2002, pet. denied) (same); =  Nichols=20 v. Nacadoches Hosp. Dist., 96 S.W.3d 582 (Tex. = App.CTyler 2002, no pet.) (same);  De = Leon v.=20 Vela, 70 S.W.3d 194 (Tex. App.CSan Antonio 2001, pet. denied) (same);=20  Rittmer v. Garza, 65 S.W.3d 718 (Tex. = App.CHouston [14th Dist.] 2001, no pet.) = (same);=20  Hightower v. Saxton, 54 S.W.3d 380 (Tex. = App.CWaco 2001, no pet.) (same).  The = remaining=20 cases cited by appellants can be factually distinguished.  = See=20 CHCA Mainland, L.P. v. Burkhalter, 227 S.W.3d 221 (Tex.=20 App.CHouston [1st Dist.] 2007, no pet.) = (appellate=20 court reversed holding the trial court abused its discretion when = it=20 denied defendant=3Ds motion to dismiss because the=20 plaintiff=3Ds expert reports completely failed to = address the=20 hospital defendant=3Ds standard of care or the breaches of = those=20 standards);  Wells v. Ashmore, 202 S.W.3d 465 (Tex.=20 App.CAmarillo 2006, no pet.) (appellate court = reversed=20 holding the trial court abused its discretion when it denied=20 defendant=3Ds motion to dismiss because the=20 plaintiff=3Ds expert reports failed to include any = facts=20 connecting the expert=3Ds conclusions with the breaches of the = standard of=20 care);  Methodist Health Care Sys. of San Antonio, Ltd. v. = Martinez-Partido, No. 04-05-00868-CV, 2006 WL 1627844 (Tex.=20 App.CSan Antonio June 14, 2006, pet. denied) = (appellate=20 court reversed holding the trial court abused its discretion when = it=20 denied defendant=3Ds motion to dismiss because the=20 plaintiff=3Ds experts were not qualified). =20

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FONT-SIZE: 10pt; VERTICAL-ALIGN: top; FONT-FAMILY: = Arial Narrow } .TextSmallBlue { FONT-WEIGHT: normal; FONT-SIZE: 10pt; VERTICAL-ALIGN: top; COLOR: = #000099; FONT-FAMILY: Arial Narrow } .TextSmallJust { FONT-WEIGHT: normal; FONT-SIZE: 10pt; VERTICAL-ALIGN: top; FONT-FAMILY: = Arial Narrow; TEXT-ALIGN: justify } A.TextSmall { COLOR: #000099; TEXT-DECORATION: underline } A.TextSmallJust { COLOR: #000099; TEXT-DECORATION: underline } A.TextSmall:hover { FONT-WEIGHT: bold } A.TextSmallJust:hover { FONT-WEIGHT: bold } .TextSmallWhite { FONT-WEIGHT: normal; FONT-SIZE: 10pt; VERTICAL-ALIGN: top; COLOR: = white; FONT-FAMILY: Arial Narrow } .TextWhite { FONT-WEIGHT: normal; FONT-SIZE: 10pt; COLOR: white; FONT-FAMILY: = Tahoma, Arial, Helvetica, sans-serif } A.TextWhite { =09 } A.TextWhite:hover { FONT-WEIGHT: bold } .LinksSite { FONT-WEIGHT: normal; FONT-SIZE: 9pt; COLOR: #000099; FONT-FAMILY: Arial = Narrow; TEXT-DECORATION: none } A.LinksSite { =09 } A.LinksSite:hover { FONT-WEIGHT: bold } .TextNotify { FONT-WEIGHT: normal; FONT-SIZE: 9pt; COLOR: #000099; FONT-FAMILY: Arial = Narrow } .SiteMaster { FONT-WEIGHT: bold; FONT-SIZE: 14pt; COLOR: #000099; LINE-HEIGHT: = normal; FONT-STYLE: normal; FONT-FAMILY: Tahoma, Arial, Helvetica, = sans-serif; TEXT-DECORATION: underline } A.SiteMaster { LINE-HEIGHT: normal; TEXT-DECORATION: underline } A.SiteMaster:hover { COLOR: blue } .SiteMenu { FONT-WEIGHT: bold; FONT-SIZE: 10pt; COLOR: #000099; LINE-HEIGHT: = normal; FONT-FAMILY: Tahoma, Arial, Helvetica, sans-serif; = TEXT-DECORATION: none } A.SiteMenu { FONT-WEIGHT: bold; TEXT-DECORATION: none } A.SiteMenu:hover { COLOR: blue } .SiteBase { FONT-WEIGHT: bold; FONT-SIZE: 9pt; COLOR: #000099; LINE-HEIGHT: normal; = FONT-STYLE: normal; FONT-FAMILY: Tahoma, Arial, Helvetica, sans-serif; = TEXT-DECORATION: none } A.SiteBase { FONT-WEIGHT: bold; COLOR: maroon; FONT-FAMILY: Tahoma, Arial, = Helvetica, sans-serif; TEXT-DECORATION: none } A.SiteBase:hover { COLOR: blue } .ErrorNormal { FONT-WEIGHT: normal; FONT-SIZE: 10pt; VERTICAL-ALIGN: top; COLOR: red; = FONT-FAMILY: Tahoma, Arial, Helvetica, sans-serif } .ErrorSmall { FONT-WEIGHT: normal; FONT-SIZE: 10pt; VERTICAL-ALIGN: top; COLOR: red; = FONT-FAMILY: Arial Narrow } .SystemMSG { FONT-WEIGHT: bold; FONT-SIZE: 10pt; VERTICAL-ALIGN: top; COLOR: white; = FONT-FAMILY: Tahoma, Arial, Helvetica, sans-serif; BACKGROUND-COLOR: = navy } .SystemErrorMSG { FONT-WEIGHT: bold; FONT-SIZE: 10pt; VERTICAL-ALIGN: top; COLOR: white; = FONT-FAMILY: Tahoma, Arial, Helvetica, sans-serif; BACKGROUND-COLOR: red } .buttonUnused { PADDING-RIGHT: 1pt; PADDING-LEFT: 1pt; FONT-WEIGHT: normal; FONT-SIZE: = 9pt; PADDING-BOTTOM: 1pt; MARGIN: 1pt; COLOR: #fff5d7; PADDING-TOP: 1pt; = BACKGROUND-COLOR: #576a9d; font-face: Tahoma, Arial, Helvetica, = sans-serif } .buttonTanUnused { PADDING-RIGHT: 1pt; PADDING-LEFT: 1pt; FONT-WEIGHT: normal; FONT-SIZE: = 9pt; PADDING-BOTTOM: 1pt; MARGIN: 1pt; COLOR: #576a9d; PADDING-TOP: 1pt; = BACKGROUND-COLOR: #fff5d7; font-face: Tahoma, Arial, Helvetica, = sans-serif } .TextLargeBlue { FONT-WEIGHT: bold; FONT-SIZE: 12pt; COLOR: #000099; LINE-HEIGHT: = normal; FONT-STYLE: normal; FONT-FAMILY: Tahoma, Arial, Helvetica, = sans-serif; TEXT-ALIGN: left } .DocketHeaderTitle { FONT-WEIGHT: bold; FONT-SIZE: 14pt; COLOR: black; LINE-HEIGHT: normal; = FONT-FAMILY: Tahoma, Arial, ' Helvetica', sans-serif; TEXT-ALIGN: center } .TextLargeBlack { FONT-WEIGHT: bold; FONT-SIZE: 11pt; COLOR: black; LINE-HEIGHT: normal; = FONT-STYLE: normal; FONT-FAMILY: Tahoma, Arial, Helvetica, sans-serif; = TEXT-ALIGN: left } .TextLargeBlackcenter { FONT-WEIGHT: bold; FONT-SIZE: 11pt; COLOR: black; LINE-HEIGHT: normal; = FONT-STYLE: normal; FONT-FAMILY: Tahoma, Arial, Helvetica, sans-serif; = TEXT-ALIGN: center } .TextBlue { FONT-WEIGHT: normal; FONT-SIZE: 10pt; COLOR: #000099; LINE-HEIGHT: = normal; FONT-FAMILY: Tahoma, Arial, Helvetica, sans-serif } A.TextBlue { FONT-WEIGHT: normal; FONT-SIZE: 10pt; COLOR: #000099; LINE-HEIGHT: = normal; FONT-FAMILY: Tahoma, Arial, Helvetica, sans-serif; = TEXT-DECORATION: none } .TextRed { FONT-WEIGHT: normal; FONT-SIZE: 12pt; COLOR: red; LINE-HEIGHT: normal; = FONT-FAMILY: Tahoma, Arial, Helvetica, sans-serif } .TextHidenGray { FONT-SIZE: 0pt; COLOR: #ebebe1; LINE-HEIGHT: normal; FONT-FAMILY: = Tahoma, Arial, Helvetica, sans-serif; TEXT-ALIGN: left } .Time { FONT-WEIGHT: bold; FONT-SIZE: 10px; COLOR: red; LINE-HEIGHT: 4em; = FONT-FAMILY: Arial, Helvetica, sans-serif; TEXT-ALIGN: center } ------=_NextPart_000_0009_01C8904F.73647A40--