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Reversed and Remanded and Majority and Dissenting
Opinions filed October 11, 2007.

In The

Fourteenth
Court of Appeals

____________

NO.
14-06-00962-CV

____________

WALGREEN COMPANY, Appellant

V.

CYNTHIA HIEGER AND ROY C. HIEGER, BOTH
INDIVIDUALLY AND AS NEXT FRIEND OF DAVID C. HIEGER, A MINOR,
Appellees

On Appeal from the 281st
District Court

Harris County, Texas

Trial Court Cause No. 2005-79787

D I S S E
N T I N G   O P I N I O N

I respectfully dissent.

This court must review a trial
court=s ruling relative to the
adequacy of an expert report under an abuse of discretion
standard.   Am. Transitional Care Ctrs. v. Palacios, 46
S.W.3d 873, 877 (Tex. 2001).  A trial court abuses its discretion if
it acts in an arbitrary or unreasonable manner without reference to
guiding rules or principles.  See Garcia v. Martinez, 988
S.W.2d 219, 222 (Tex. 1999).  When reviewing matters committed to the
trial court=s discretion, we may not
substitute our own judgment for that of the trial court.  Walker
v. Packer, 827 S.W.2d 833, 839 (Tex. 1992).  A trial court does
not abuse its discretion merely because its discretionary decision is
different from what an appellate court=s disposition would be
under similar circumstances.  See Downer v. Aquamarine Operators,
Inc., 701 S.W.2d 238, 241B42 (Tex. 1985).  The
majority acknowledges but refuses to be constrained by this standard.

I.
Texas Civil Practice and Remedies Code Section 74.351

Pursuant to section 74.351, a
health-care-liability claimant must provide an expert report to the
defendant no later than 120 days after the original petition was
filed.  See Tex. Civ.
Prac. & Rem. Code Ann. ' 74.351(a) (Vernon Supp.
2006).  If a claimant timely furnishes an expert report, a defendant
may file a motion challenging the adequacy of the report.  See
id.  The trial court shall grant the motion only if it appears
that the report does not represent a good faith effort to comply with the
statutory definition of an expert report.  Tex. Civ. Prac. & Rem. Code
Ann. ' 74.351(l) (Vernon Supp.
2006).  In determining whether the report represents a good faith
effort, the trial court=s inquiry is limited to the
four corners of the report.  See Palacios, 46 S.W.3d at 878.

Under the statute, an expert
report is defined as a written report by an expert that provides a fair
summary of the expert=s opinions as of the date of
the report regarding: (1) applicable standard of care, (2) the manner in
which the care provided failed to meet the standards, and (3) the causal
relationship between that failure and the injury, harm, or damages
claimed.  Tex. Civ. Prac.
& Rem. Code Ann. ' 74.351(r)(6) (Vernon Supp.
2006); Palacios, 46 S.W.3d at 878B79. Although a plaintiff need
not marshal all of her proof, the expert=s report must include opinions
on the three statutory elementsCstandard of care, breach, and
causation.  See Palacios, 46 S.W.3d at 878B79.  In compliance with
these standards, the plaintiff must incorporate enough information to
fulfill two purposes: (1) inform the defendant of the specific conduct the
plaintiff has called into question, and (2) provide a basis for the trial
court to conclude that the claims have merit.  Id. at
879.  A report that merely expresses the expert=s conclusions about the
standard of care, breach, and causation does not fulfill these two
purposes.  Id.   The expert must explain the basis
for his statements and must link his conclusions to the facts.
Bowie Mem=l Hosp. v.
Wright, 79
S.W.3d 48, 52 (Tex. 2002).  However, to avoid dismissal, a plaintiff
need not present all the evidence necessary to litigate the merits of her
case.  Palacios, 46 S.W.3d at 879. The report may be informal
in that the information need not fulfill the same requirements as the
evidence offered in a summary-judgment proceeding or at trial.
Id.  Moreover, the expert is not required to express the
causal relationship in terms of reasonable medical probability or other
Amagic@ words.  Wright, 79
S.W.3d at 52.

II.
Analysis

Pursuant to section 74.351(i),
Anothing in this section shall
be construed to mean that a single expert must address all liability and
causation issues with respect to all physicians or health care providers
or with respect to both liability and causation issues for a physician or
health care provider.@  Tex. Civ. Prac. & Rem. Code
Ann. ' 74.351(i) (Vernon Supp.
2006).  Therefore, Ginsburg=s and Dr. Young=s reports may be read together
to satisfy the expert report requirements.

A.
Diane Ginsburg=s Expert Report

The majority correctly notes
that Ginsburg is not qualified under section 74.351 to provide medical
causation opinions.  To render an expert report regarding causation,
the expert must be licensed to practice medicine in one or more of the
states in the United States.  Randalls Food and Drugs v.
Kocurek, No. 14B05B01184BCV, 2006 WL 2771872, at *3
(Tex. App.CHouston [14th Dist.] Sept. 28,
2006, no pet.) (mem. op.) (holding expert with an undergraduate degree and
master=s degree in microbiology and a
Ph.D. in toxicology and experimental surgery was not qualified to render
an expert opinion regarding causation because she was not licensed to
practice medicine in the United States).  Here, Ginsburg was not
qualified to give an opinion regarding causation because she is not
licensed to practice medicine in one or more of the states in the United
States.  However, Ginsburg was qualified to give an opinion regarding
the remaining two statutory requirements: standard of care and breach of
standard of care.  She addressed standard of care and breach of
standard of care in her expert report as follows:

The standard of care applicable to Walgreens
Pharmacy was to ensure that medications are dispensed and delivered safely
and accurately as prescribed by the physician in accordance with Texas
State Board of Pharmacy Rules ' 291.32.C.5. Specifically, the standard of care
obligates the pharmacist to assure that he/she has dispensed the right
drug, in the right dose, and by the right route to the right patient (the
Afour rights@). The pharmacist must systematize the process in
such a way that the Afour rights@ are observed and the drug dispensed to the
patient without error.  The standard of care demands a high degree of
care on the part of the pharmacist, and he/she must check the medicine and
labeling very carefully before dispensing so as to avoid error, because
there can be significant consequences to medication errors.  In my
opinion, Walgreens Pharmacy breached the standards of care in failing to
observe the Afour rights@, failing to accurately fill Ms.
Hieger=s prescription, and failed to exercise a high
degree of care in checking the accuracy of the prescription before
dispensing it.

Accordingly, the Hiegers were
required to satisfy their statutory obligation as to the causation element
through Dr. Reed Young=s expert report

B.
Dr. Reed Young=s Expert Report

Walgreen contends Dr.
Young=s report does not provide a
fair summary of the alleged causal relationship between the incorrectly
refilled prescription and Ms. Hieger=s alleged injuries. The
majority concludes that Dr. Young=s report is insufficient
because Dr. Young has expressed Aan opinion on a possibility,
not an ultimate opinion on causation.@  I disagree.  The
relevant portion of Dr. Young=s report is restated below for
clarification and emphasis.

Paxil is an antidepressant with anxiolytic
properties.  It is prescribed for rheumatic pain syndromes and
clearly has a central action against pain.  In my own experience,
when Paxil is stopped abruptly, the patient can go through a very
uncomfortable period of worse depression, worse pain, and marked anxiety
and hyper activity.

Ambien, like Halcion, can cause peculiar side
effects if someone takes it and tries to stay awake for awhile;
specifically they can act somewhat psychotic.

I was told by the patient that in October, 2003, a
prescription for Paxil was miss-filled (sic) with Ambien and miss-labeled
(sic). As applied to these events, when cynthia (sic)
Hieger suddenly ceased taking her Paxil and began taking Ambien for
daytime use, her complaints of psychosis, hypersensitivity,
jitteriness, and increased pain are consistent with the known side
effects of each medication.

(emphasis added).

Walgreen argues that the
language Aconsistent with@ does not demonstrate a causal
connection.  Specifically, Walgreen contends the language indicating
that Ms. Hieger=s symptoms are
Aconsistent with@ the known side effects of the
medications is not the same as stating that the symptoms were in fact
caused by the medication.

However, considering the four
corners of the report, I note that Dr. Young first explained the side
effects resulting from abrupt termination of  treatment with
Paxil.  He then explained the side effects of taking Ambien while
trying to stay awake.  The symptoms he described were not the
generally known side effects from taking the medications.  He also
explained the side effects of the medications as applied to these specific
factsCthe abrupt discontinuation of
Paxil and taking Ambien during the day.  Dr. Young wrote,
Aas applied to these
events@ Ms. Hieger=s complaints Aare consistent with@ the side effects of
discontinuing Paxil and taking Ambien during the
daytime.

Walgreen argues, by analogy,
that back pain is Aconsistent with@ a herniated lumbar disc and
that to say back pain is Aconsistent with@ a herniated lumbar disc is not
the same as opining that the pain was caused by a herniated disc.
However, appellant ignores the fact that Dr. Young described side effects
of the medications as applied to the Ms. Hieger=s particular complaints
immediately before opining that her symptoms were consistent with those
side effects.  Therefore, the words Aconsistent with the known side
effects of each medication@ were not in isolation or
without definition, as in appellant=s analogy.

In support of its argument,
Walgreen cites several cases in which other courts of appeals found
language in expert reports conclusory.  However, none of the cases
involved misfilled prescriptions by a  pharmacy.  Moreover,
those courts concluded that various statements regarding causation
contained in expert reports were conclusory because they lacked
information linking the expert=s opinion to the
defendant=s alleged breach.[1]

In contrast to the cases cited
by Walgreen, Dr.  Young explained the side effects of the medications
as applied to these facts and then explained that Ms. Hieger=s complaints were Aconsistent with@ the side effects of the
medications.  He sufficiently explained the basis for his statements
and linked his conclusions to the facts.  See Wright, 79
S.W.3d at 52.  Moreover, his report constituted a good faith effort
to summarize causation because it informed Walgreen of the specific
conduct called into question and provided a basis for the trial court to
conclude that the claims had merit.  See Palacios, 46 S.W.3d
at 879.  Therefore, it is my considered opinion that his statements
were not conclusory.

For all the reasons stated
above, I would hold that the trial court did not act in an arbitrary or
unreasonable fashion without reference to guiding rules or
principles.  Accordingly, I would overrule Walgreen Co.=s sole issue and affirm the
judgment of the trial court.

/s/
Charles W. Seymore

Justice

Judgment rendered and Majority
and Dissenting Opinions filed October 11, 2007.

Panel consists of Justices
Yates, Frost, and Seymore. (Yates, J., majority).

[1]  See Wright, 79 S.W.3d at 51 (
AI do believe that it is reasonable to believe that
if the x-rays would have been correctly read . . . [patient] would have
had the possibility of a better outcome@); Logino v. Crosswhite, 183 S.W.3d 913,
917B18 (Tex. App.CTexarkana 2006, no pet.) (language that
Athis prolonged symptomatology was a cause of
[patient=s] significant and permanent neurological
injuries@ only stated that delay in diagnosis caused
significant and permanent neurological injuries without explaining basis
for conclusion); Gray v. CHCA Bayshore, 189 S.W.3d 855, 859
(Tex. App.CHouston [1st Dist.] 2006, no pet.) (expert report
only indicated doctors failed to monitor the plaintiff=s knee properly during his surgery without
explaining how the departure from standard of care caused
patient=s injury); Pisasale v. Ensign Group, Inc.,
No. 11-05-00196-CV, 2006 WL 2567400, at *4 (Tex. App.CEastland Sept. 7, 2006, pet. denied) (mem. op.)
(language that AI think their negligence was a proximate
cause@ was speculative and conclusory because it did
not  eliminate preexisting conditions); Martinez v. Riegel,
No. 04B5-00336-CV, 2006 WL 1748442, at *4 (Tex.
App.CSan Antonio June 28, 2006, no pet.) (mem. op.)
(language that  Aanesthetic agents@ irritated Athe already inflamed lung tissue@ did not adequately explain causal relationship
between surgery and injuries); Northeast Med. Ctr. v. Crooks, No.
06-05-00149-CV, 2006 WL 1358361, at *6 (Tex. App.CTexarkana May 19, 2006, no pet.) (mem. op.)
(report did not draw a causal connection between nursing home
patient=s fall, which resulted in broken hip, and his
death); Lopez v. Monetemayor, 131 S.W.3d 54, 59B60 (Tex. App.CSan Antonio 2003, pet. denied) (language that
Ait is the aspiration of the bridge section which
caused and precipitated the medical circumstances leading to the
patient=s demise@  did not link dentist=s failure to perform an x-ray to
patient=s death); Hardy v. Marsh, 170 S.W.3d 865,
869B70 (Tex. App.CTexarkana 2005, no pet.) (language that
Aif this patient . . . had had more immediate
treatment that a salvage of his right leg would have been more
probable@ was not sufficiently specific establish
causation); Costello v. Christus Santa Rosa Health Care Corp., 141
S.W.3d 245, 249 (Tex. App.CSan Antonio 2004, no pet.) (language that
A[i]f this patient would have been appropriately
triaged and evaluated, then in all reasonable medical probability she
would have survived@ failed to state the medical basis or reasoning or
explain how failure to act was a substantial factor in bringing about
patient=s death); Barko v. Genzel, 123 S.W.3d 457,
460 (Tex. App.CEastland 2003, no pet.) (language that the
Aviolations of the standards of emergency medical
practice were a proximate cause in this patient=s injury@ did not indicate that patient would have
satisfactorily recovered from the back injury but for doctor=s negligence); Villa v. Hargrove, 110
S.W.3d 74, 78 (Tex. App.CSan Antonio 2003, pet. denied) (language that
Ahad either of these defendants provided the
appropriate care, to an overwhelming probability, [patient] would be alive
and well today@ did not link  actions of doctors to
patient=s death).