Azle Manor, Inc. and Azle Manor I, L.L.C. v. Harold R. Vaden, Individually and on Behalf of the Estate of Joyce Vaden

COURT OF APPEALS
SECOND DISTRICT OF TEXAS
FORT WORTH

NO. 2-08-115-CV

AZLE MANOR, INC. AND APPELLANTS
AZLE MANOR I, L.L.C.

V.

HAROLD R. VADEN, INDIVIDUALLY APPELLEE
AND ON BEHALF OF THE ESTATE OF
JOYCE VADEN, DECEASED

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FROM THE 153RD DISTRICT COURT OF TARRANT COUNTY

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MEMORANDUM OPINION 1

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In this interlocutory appeal, Appellants Azle Manor and Azle Manor I,

L.L.C. challenge the trial court’s order denying their motion to dismiss Appellee

Harold Vaden’s medical malpractice claim for failure to file an adequate expert

1
… See Tex. R. App. P. 47.4.
report under civil practice and remedies code section 74.351. We affirm in part

and reverse and render in part.

Background

Appellants operate the Azle Manor nursing home. Vaden’s wife, Joyce,

was an Azle Manor resident. Vaden sued Appellants, alleging that they had

negligently allowed Joyce to slip from a shower chair and fall to the floor,

breaking some of her bones. According to Vaden, nursing home personnel did

not discover her fractures until several days after the accident, and Joyce

ultimately died from her injuries.

Vaden served Appellants with two expert reports, one from Carol Massey,

R.N. and the other from James Laughlin, D.O. Massey’s report addresses

standards of care and the breach of those standards as they concern the nurses

at Azle Manor, but it does not mention Appellants. Dr. Laughlin’s report

addresses only causation and does not mention Appellants. Appellants moved

to dismiss Vaden’s claims, arguing that his expert reports did not satisfy the

requirements of section 74.351 of the civil practice and remedies code. See

Tex. Civ. Prac. & Rem. Code Ann. § 74.351 (Vernon Supp. 2008). The trial

court denied Appellants’ motion, and they filed this interlocutory appeal.

2
 Discussion

In a health care liability claim, a claimant must serve an expert report on

each defendant no later than the 120th day after the claim is filed. Id.

§ 74.351(a). If the claimant does not serve an expert report on a defendant

physician or health care provider within the 120-day period, then on the motion

of the affected physician or health care provider, the trial court must dismiss

the claim with prejudice. Id. § 74.351(b). The words “has not been served”

include cases in which a report has been served but found deficient by the trial

court. Lewis v. Funderburk, 253 S.W.3d 204, 207–08 (Tex. 2008).

A defendant may challenge the adequacy of a report by filing a motion to

dismiss. Tex. Civ. Prac. & Rem. Code Ann. § 74.351(l). The trial court must

grant the motion to dismiss if it finds, after a hearing, that “the report does not

represent an objective good faith effort to comply with the definition of an

expert report” in the statute. Id. While the expert report “need not marshal all

the plaintiff’s proof,” American Transitional Care Centers of Texas, Inc. v.

Palacios, 46 S.W.3d 873, 878 (Tex. 2001) (construing former art. 4590i,

§ 13.01), it must provide a fair summary of the expert’s opinions as to the

“applicable standards of care, the manner in which the care rendered by the

physician or health care provider failed to meet the standards, and the causal

3
relationship between that failure and the injury, harm, or damages claimed.”

Tex. Civ. Prac. & Rem. Code Ann. § 74.351(r)(6).

To constitute a good-faith effort, the report must “discuss the standard

of care, breach, and causation with sufficient specificity to inform the

defendant of the conduct the plaintiff has called into question and to provide

a basis for the trial court to conclude that the claims have merit.” Palacios, 46

S.W.3d at 875. A report does not fulfill this requirement if it merely states the

expert’s conclusions or if it omits any of the statutory requirements. Id. at 879.

But the information in the report “does not have to meet the same requirements

as the evidence offered in a summary-judgment proceeding or at trial.” Id. The

claimant’s expert 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 the claims are

meritorious. Id.

When reviewing the adequacy of a report, the only information relevant

to the inquiry is the information contained within the four corners of the

document. Id. at 878. This requirement precludes a court from filling gaps in

a report by drawing inferences or guessing as to what the expert likely meant

or intended. See id. However, section 74.351 does not prohibit experts, as

4
opposed to courts, from making inferences based on medical history. Marvin

v. Fithian, No. 14-07-00996-CV, 2008 WL 2579824, at *4 (Tex.

App.—Houston [14th Dist.] Jul. 1, 2008, no pet. h.); see also Tex. R. Evid. 703

(providing that expert may draw inferences from the facts or data in a particular

case), 705 (providing that expert may testify in terms of opinions and

inferences).

W e review a trial court’s denial of a motion to dismiss for an abuse of

discretion. Ctr. for Neurological Disorders, P.A. v. George, 261 S.W.3d 285,

290–91 (Tex. App.—Fort Worth 2008, no pet.). To determine whether a trial

court abused its discretion, we must decide whether the trial court acted

without reference to any guiding rules or principles; in other words, we must

decide whether the act was arbitrary or unreasonable. Downer v. Aquamarine

Operators, Inc., 701 S.W.2d 238, 241–42 (Tex. 1985), cert. denied, 476 U.S.

1159 (1986). Merely because a trial court may decide a matter within its

discretion in a different manner than an appellate court would in a similar

circumstance does not demonstrate that an abuse of discretion has occurred.

Id. But a trial court has no discretion in determining what the law is or in

applying the law to the facts, and thus “a clear failure by the trial court to

analyze or apply the law correctly will constitute an abuse of discretion.”

5
Walker v. Packer, 827 S.W.2d 833, 840 (Tex. 1992); Ehrlich v. Miles, 144

S.W.3d 620, 624 (Tex. App.—Fort Worth 2004, pet. denied).

1. Nurse Massey’s Report

Massey’s report begins by stating that she reviewed medical records from

Azle Manor and Harris Methodist Northwest Hospital, where Joyce was treated

for her injuries. According to Massey’s report, Joyce was admitted to the

Harris Northwest emergency room on September 22, 2005, as a result of

“unresolved pain” from a fall at Azle Manor on September 12. Azle Manor’s

records indicate that Joyce fell from a shower chair. A radiology report states

that Joyce had sustained fractures to her pelvis and sacrum and possibly to the

neck of her femur. Massey states that Harris Northwest discharged Joyce the

same day and that she returned to Azle Manor. Joyce was readmitted to the

emergency room on November 6, 2005, due to gastrointestinal tract bleeding.

In a section labeled “Applicable Standard of Care,” Massey’s report

quotes excerpts from the Nursing Practice Act. See 22 Tex. Admin. Code Ann.

§§ 217.11–.12 (Vernon 2008). In the next section of the report—“Applicable

Standard of Care as Applied to the Case”—Massey sets out how, in her

opinion, the Azle Manor nursing staff violated the relevant provisions of the

administrative code:

6
The initial information documented in the Harris Northwest
Emergency Room Report, indicates that Ms. Vaden fell from a
“bedside commode,” whereas the Azle Manor Transfer Record
indicates that she fell from a shower chair. In either case, based
on these two sources, it appears that Ms. Vaden fell and was
injured. Unless the injury was literally allowed to happen it seems
reasonable to believe that the appropriate safety precautions were
not implemented as the standard requires. No report to the
contrary has been provided to me that would explain this situation
in a more positive light.

....

In this case implementation of a safety belt while showering would
have constituted the appropriate measure [to promote Joyce’s
safety].

....

An assessment of the facts under this standard seems to suggest
that the standard was breached when Ms. Vaden fell from the
shower chair because it seems reasonable to infer that she would
not have fallen in either of the two scenarios presented had she
been restrained or other safety precautions had been instituted.

....

Appropriate restraints would certainly have greatly reduced the
chances of Ms. Vaden falling whether on the commode or in the
shower chair. As noted above, there are no records indicating that
such restraints were implemented.

....

[I]f Ms. Vaden’s care was assigned to someone else who was
incapable of adequately caring for her or even someone who was
but failed to do so and the RN or RNs in charge failed to supervise
those assigned then the RN or RNs not only acted unprofessionally

7
 but also failed to meet the applicable standard of care and, given
Ms. Vaden’s injuries as a result of a fall, it seems entirely
reasonable to believe that she suffered as a result of these actions.

Massey’s report includes a section on causation and ends with a

summary of her qualifications, in which she states that she is a registered

nurse, is licensed to practice in Texas and several other states, and has twenty

years of professional nursing experience.

a. Failure to identify Appellants

Appellants point to several alleged deficiencies in Massey’s report. First,

they contend that her report is deficient because it does not identify the

standard of care and breach applicable to each Appellant. Appellants rely on

Bogar v. Esparza, in which the Austin court of appeals recently held that a

report that does not identify a defendant at least in some manner within its four

corners is, for that reason alone, deficient as to that defendant because it

would require the reader to infer or make an educated guess as to whose

actions the expert is complaining. 257 S.W.3d 354, 364 (Tex. App.—Austin

2008, no pet.). In Bogar, the Austin court held that the plaintiff’s expert report

was deficient because “it does not identify in any way the person or persons

whose conduct is the subject of any of his opinions regarding standard of care,

causation, and death.” Id. But the court also noted that

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 this is not a “magic words” test. There may be a number of ways
that a defendant may be referenced within the four corners [of] a
report so as to comply with the legislature’s mandate that the
report “provide[ ] a fair summary as of the date of the report
regarding applicable standards of care, the manner in which the
care rendered by the physician or health care provider failed to
meet the standards, and the causal relationship between that
failure and the injury, harm, or damages claimed.”

Id. at n.1 (quoting Tex. Civ. Prac. & Rem. Code Ann. § 74.351(r)(6)); see also

Austin Heart, P.A. v. Webb, 228 S.W.3d 276, 282 (Tex. App.—Austin 2007,

no pet.) (“We are mindful that a report’s adequacy under section 74.351 does

not depend on whether the expert uses any particular magic words such as ‘the

standard of care was breached by Dr. Kessler.’”).

Moreover, when a plaintiff asserts a claim for vicarious liability against a

corporate healthcare defendant, the plaintiff’s expert report need not mention

the corporate defendant by name. Univ. of Tex. Sw. Med. Ctr. v. Dale, 188

S.W.3d 877, 879 (Tex. App.—Dallas 2006, no pet.). In Dale, the plaintiff

based his claims against the defendant hospital entirely upon the actions of its

resident physicians and did not assert a claim for direct negligence against the

hospital. Id. Noting that “what is relevant for purposes of the expert report is

that the report specifically identify the person whose conduct the plaintiff is

calling into question and show how that person’s conduct constituted

negligence,” the court held that the plaintiff’s expert report—which did not

9
mention the corporate defendant by name and focused on the alleged

negligence of the resident physicians—complied with the requirements of

section 74.351. Id. If the report identifies conduct by the hospital’s employee,

the hospital is implicated, and as long as the report adequately addresses the

standard of care applicable to the employee, how the employee breached the

standard of care, and that the breach caused the plaintiff’s injury, it is sufficient

to satisfy the expert report requirement for the vicarious liability claims against

the hospital. Id.; see also Casados v. Harris Methodist H-E-B, No.

02-05-00080-CV, 2006 WL 2034230, at *4 (Tex. App.—Fort Worth July 20,

2006, no pet.) (mem. op.) (holding plaintiff satisfied expert report requirements

with respect to vicarious liability claims by filing expert report detailing

negligence of doctors, for whose actions hospital was liable).

In this case, Vaden asserts claims for both direct negligence and vicarious

liability against Appellants: “Plaintiff would show that the damages that he and

Mrs. Vaden sustained were a direct and proximate consequence of the

negligence of Defendants and Defendants’ agents, servants, and

employees. . . . According to the doctrine of respondeat superior, Azle Manor

are [sic] responsible for the negligent act of its agents and employees.”

Plaintiff’s amended petition enumerates two specific acts of negligence—failing

10
to strap Joyce into the chair and failing to monitor Joyce while she was in the

chair—that appear to be directed at Appellants’ employees, but a third

enumerated instance of negligence—“failing to act as an ordinary prudent

person would have under the same or similar circumstances”—is broad enough

to encompass a claim for direct liability against Appellants, and the words

“among other things” preceding the enumerated list leave the door open for

further allegations of direct liability against Appellants.

Massey’s report does not mention Appellants by name. Instead, like the

report in Dale, her report focuses on the alleged negligence of Appellants’

employees. Assuming for the moment that Massey’s report adequately

addresses the standard of care applicable to Appellants’ employees, how the

employees breached the standard of care, and how the breach caused the

plaintiff’s injury, we hold that the report is sufficient to satisfy the expert report

requirement for the vicarious liability claims against Appellants. See Dale, 188

S.W.3d at 879. But her report is inadequate with regard to Vaden’s direct

liability claims because it does not mention Appellants, let alone describe the

standards of care applicable to them directly or how Appellants breached those

standards, and as we have already noted, Dr. Laughlin’s report does not discuss

standards of care or breach of those standards at all. See Bogar, 257 S.W.3d

11
at 364. W e therefore hold that the trial court erred by denying Appellants’

motion to dismiss with regard to Vaden’s direct liability claims.2 See Methodist

Charlton Med. Ctr. v. Steele, No. 05-07-01762-CV, 2008 WL 3844557, at *4

(Tex. App.—Dallas Aug. 19, 2008, no pet.) (reversing trial court’s denial of

hospital’s motion to dismiss with regard to plaintiff’s direct-negligence claims

but affirming denial with regard to vicarious liability claims when plaintiff’s

expert report addressed only vicarious liability claims).

b. Standard of care

Next, Appellants argue that Massey’s report does not adequately identify

the standards of care regarding Appellants’ nursing staff. Appellants contend

that the Nursing Practice Act, which Massey’s report quotes, is too general to

establish a standard of care in an expert report, citing Singleton v. Northwest

Texas Healthcare System, No. 07-03-00552-CV, 2006 WL 468747, at *3

(Tex. App.—Amarillo Feb. 28, 2006, no pet.) (mem. op.). In Singleton, the

Amarillo court held that recitations from the Nursing Practice Act similar to the

recitations in Massey’s report “are too general to identify a standard of care

applicable to [the defendant hospital] or how [the hospital] breached that

2
… Because of this disposition, we need not consider Appellants’
complaint that Massey’s report does not establish her qualifications to offer an
opinion regarding Vaden’s direct negligence claims. See Tex. R. App. P. 47.1.

12
standard of care.” Id. However, the court noted that “[t]he report comes

closer to stating a standard of care with its statement that [the patient’s] score

on the fall risk assessment required [the hospital] to implement ‘fall precautions’

. . . [b]ut the report does not tell the defendant and court what ‘fall precautions’

are.” Id. The court held that the report was inadequate because it “fails to

inform [the hospital] of the specific conduct [the patient] has called into

question.” Id. (citing Palacios, 46 S.W.3d at 879). Significantly, Singleton

does not hold that the Nursing Practice Act can never be used to establish a

standard of care; it simply held that the report in that case, which relied in part

on excerpts from the Act, did not set out the standard of care with sufficient

specificity.

Although Massey’s report quotes some of the same sections of the

Nursing Practice Act as the report in Singleton, the cases are distinguishable.

Unlike the vague report in Singleton, Massey’s report points out the specific

conduct Vaden has called into question, namely, Appellants’ nurses’ failure to

secure Joyce in the shower chair: “In this case implementation of a safety belt

while showering would have constituted an appropriate measure. . . . [S]he

would not have fallen . . . had she been restrained . . . . Appropriate restraint

would certainly have reduced the chances of [Joyce] falling . . . .” These

13
statements are sufficient to inform Appellants of the specific conduct Vaden

has called into question. See Palacios, 46 S.W.3d at 879. We therefore hold

that Massey’s report set out the applicable standard of care with sufficient

specificity to pass section 74.351 muster.

c. Conclusory and speculative

Appellants argue that Massey’s report is conclusory and speculative,

pointing to statements in her report such as “it appears that [Joyce] fell and

was injured,” “it seems reasonable to believe that appropriate safety

precautions were not implemented,” “it seems reasonable to infer that she

would not have fallen . . . had she been restrained,” and “no records to the

contrary have been provided to me.” Appellants contend that Massey piles

inference upon inference to create a mere possibility that Appellants’ nurses

breached a standard of care and that the absence of records of an activity—in

this case, restraining Joyce in the shower chair—will not support an inference

that she was not, in fact, restrained.

The rules of evidence allow an expert to draw inferences from the

underlying facts or data. See Tex. R. Evid. 703, 705. Section 74.351 does

not prohibit experts from making inferences based on medical history. Marvin,

2008 WL 2579824, at *4. Moreover, the absence of an entry in the records

14
of a regularly conducted activity is admissible to show the nonoccurrence of the

matter. Tex. R. Evid. 803(7). Thus, Massey’s inferences, and the fact that she

draws some of them from what is not in Joyce’s medical records, do not render

her report defective.

The cases Appellants rely on for the opposite conclusion are

distinguishable. In Strom v. Memorial Hermann Hospital System, the First Court

of Appeals held that two expert reports failed to meet section 74.351’s

requirements because they completely failed to set out a standard of care. 110

S.W.3d 216, 223 (Tex. App.—Houston [1st Dist.] 2003, no pet.). By contrast,

much of Massey’s report is devoted to setting out the standards of care, and

we have already held that her report set out the standards of care with

sufficient specificity. In Lopez v. Sinha, the Fourteenth Court of Appeals held

that a report was deficient because it recited a result—“complete evacuation

of bile”—but did not include specific information about what the defendant

should have done differently to achieve that result. No. 14-05-00606-CV,

2006 WL 2669355, at *4 (Tex. App.—Houston [14th Dist.] Sept. 19, 2006,

no pet.). Massey’s report includes specific information about what Appellants’

staff should have done to prevent the fall, namely, restrain Joyce in the shower

chair. In the third case cited by Appellants, Gray v. CHCA Bayshore, L.P., the

15
first court deemed a report deficient because it did “not state with any

specificity how [the defendant’s] departure from the standard of care caused

[the patient’s] knee injury.” 189 S.W.3d 855, 860 (Tex. App.—Houston [1st

Dist.] 2006, no pet.) (emphasis added). Gray is inapposite because, as we

discuss below, Vaden does not rely on Massey’s report to establish causation.

Further, even though Massey’s report draws inferences from the medical

records, it satisfies the two key requirements of an expert report identified by

the supreme court in Palacios by (1) informing the Appellants of the specific

conduct Vaden has called into question—namely, the failure of Appellants’ staff

to prevent Joyce’s fall from the shower chair—and (2) providing a basis for the

trial court to conclude the claims are meritorious. See Palacios, 86 S.W.3d at

475. We therefore hold that her report is not conclusory and speculative.

d. Causation

Finally, Appellants argue that Massey is not qualified to render an opinion

regarding causation because under section 74.351(r)(5)(C), only a physician

may render an opinion regarding causation. See Tex. Civ. Prac. & Rem. Code

Ann. § 74.351(r)(5)(C); Kelly v. Rendon, 255 S.W.3d 665, 675 (Tex.

App.—Houston [14th Dist.] 2008, no pet.). Vaden concedes this point and

relies on Dr. Laughlin’s report to address causation. Therefore, we turn now

16
to Dr. Laughlin’s report to determine whether it supplies the opinion on

causation that Massey’s report cannot.

2. Dr. Laughlin’s report

Dr. Laughlin’s report states, in its entirety,

After reviewing the records extensively, I believe in all reasonable
and medical probability that the accident of September 12, 2005
caused the fracture of this patient’s right non-displaced acetabular
and findings suspicious for a nondisplaced and nonimpacted
femoral neck fracture.

Some disagreement in chart about orthopedic diagnosis and CT
report used as defin[i]tive.

Dr. Laughlin’s curriculum vitae is attached to his report.

Appellants contend that Dr. Laughlin’s report is defective for several

reasons. First, as they did with regard to Massey’s report, Appellants argue

that Dr. Laughlin’s report is deficient because it does not identify either

Appellant by name. But as we noted in connection with Massey’s report, an

expert report need not mention a defendant by name when the plaintiff asserts

only vicarious liability claims against the defendant. See Dale, 188 S.W.3d at

879.

Second, Appellants fault Dr. Laughlin’s report for failing to “identify any

alleged negligence of either Appellant.” But section 74.351(i) specifically

provides that a plaintiff need not support both liability and causation in a single

17
expert report: “Nothing 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) (emphasis added). Because section 74.351(i)

allows a plaintiff to address the required elements with more than one report,

a plaintiff’s case will not be dismissed simply because each individual report,

viewed on its own, does not fully address each statutory element. Heart Hosp.

of Austin v. Matthews, 212 S.W.3d 331, 335–36 (Tex. App.—Austin 2006),

aff’d, 262 S.W.3d 316 (Tex. 2007). Instead, the trial court must look at all

of the reports served by the plaintiff and determine if, viewed as a whole, the

reports together address each of the required elements. Id.

Vaden relies on Dr. Laughlin’s report only for causation; therefore, Dr.

Laughlin need not address Appellants’ vicarious liability by discussing the

applicable standards of care or breach of those standards. See Tex. Civ. Prac.

& Rem. Code Ann. § 74.351(i). Likewise, Appellant’s third argument, that Dr.

Laughlin “does not explain the basis of his statement by linking his conclusions

to the facts of the case,” does not take into account Massey’s report. Dr.

Laughlin’s report says that in reasonable medical probability and based on the

18
medical records, Joyce’s “accident” on September 12 caused her hip fracture.

We know from Massey’s report that the “accident” on September 12 was

Joyce’s fall from the shower chair. The two reports, when read together,

adequately link Dr. Laughlin’s conclusion that the “accident” caused Joyce’s

injury to the fall from the shower chair identified in Massey’s report.

Appellants next fault Dr. Laughlin’s report for being conjectural because

it states that the accident caused “findings suspicious for a nondisplaced and

nonimpacted femoral neck fracture.” But in making this argument, Appellants

ignore the middle part of the sentence in question, in which Dr. Laughlin states

that the accident “caused the fracture of this patient’s right non-displaced

acetabular.” Even if the words “findings suspicious for a . . . fracture” suggest

only a conjectural or possible injury, the words “caused the fracture” link Dr.

Laughlin’s opinion on causation to a real injury.

Appellants further contend that Dr. Laughlin’s report is deficient because

Vaden alleged that Joyce suffered a “serious and disabling injury,” but the

report does not state that an acetabular fracture is serious or disabling. Vaden

alleged, “As a result [of Appellants’ staff’s failure to strap Joyce into the chair,

she] slipped out of the chair and onto the hard floor, sustaining serious and

disabling injuries. . . . Azle Manor failed to discover [her] fractured bones from

19
the fall until more than seven [7] days later.” [Emphasis added.] It is apparent

that the fracture referenced in Dr. Laughlin’s report is the “serious and disabling

injury” alleged in Vaden’s petition. Appellants cite our opinion in Windsor v.

Maxwell for the statement that “the report must support the cause of action

alleged by the plaintiff in its pleadings.” 121 S.W.3d 42, 51 (Tex. App.—Fort

Worth 2003, pet. denied) (holding report deficient when plaintiff alleged that

surgeon pierced cerebral artery with catheter but expert reported only that

surgeon caused reduced blood flow through the artery being catheterized). In

this case, Vaden alleged that a fall caused a fracture, and Dr. Laughlin opined

that a fall caused a fracture. Thus, his report supports the cause of action

Vaden alleged in his pleadings.

Finally, Appellants argue that Vaden did not establish Dr. Laughlin’s

qualifications to render an opinion about proximate cause. Section 74.351

provides that a “physician who is otherwise qualified to render opinions on such

causal relationship under the Texas Rules of Evidence” may render an expert

report on causation. Tex. Civ. Prac. & Rem. Code Ann. § 74.351(r)(5)(C).

Section 74.001 defines “physician” as “an individual licensed to practice

medicine in this state.” Id. § 74.001(23)(A) (Vernon 2005). To be so qualified

under the Texas Rules of Evidence, an expert must have knowledge, skill,

20
experience, training, or education regarding the specific issue before the court

that would qualify the expert to give an opinion on that particular subject.

Broders v. Heise, 924 S.W.2d 148, 153 (Tex. 1996) (citing Tex. R. Evid. 702).

A trial court has broad discretion in determining whether expert testimony is

admissible. Mack Trucks, Inc. v. Tamez, 206 S.W.3d 572, 578 (Tex. 2006).

Dr. Laughlin’s curriculum vitae recites that he is an osteopathic surgeon

certified by the American College of Osteopathic Surgeons and the American

Osteopathic Academy of Orthopedic Surgeons. He graduated from the College

of Osteopathic Medicine in Kansas City, Missouri, in 1965 and completed an

internship and several residencies at osteopathic hospitals. Dr. Laughlin has

current privileges at Renaissance General Hospital and John Peter Smith

Network Hospital, is the assistant supervisor of the orthopedic resident program

at John Peter Smith Hospital, and is a senior member of the team that evaluates

orthopedic surgeons to determine if they are qualified for certification by the

American College of Osteopathic Surgeons. He is the medical director of Q-Plus

Outpatient Surgery Center of Grand Prairie. He also served as a surgeon for

various branches of the military from 1969 through 2001. Dr. Laughlin’s

scholarly publications, including works titled “Commonly Misdiagnosed

21
Fractures,” “Fractures in Children,” “Fractures of the Elbow,” and “Fractures

of the Talus,” show an interest in and experience with bone fractures.

Appellants argue that Dr. Laughlin is not a “physician” because his

curriculum vitae does not state that he is licensed to practice medicine in

Texas. The facts that he holds staff privileges at two area hospitals and serves

as the medical director of a surgery center indicate that he is licensed to

practice medicine in Texas.

Appellants next argue that Dr. Laughlin is not qualified to render expert

testimony under rule of evidence 702 because his curriculum vitae “does not

state that he specializes in fractures in geriatric patients or that he specializes

in fractures of the hip.” Nothing in rule 702 requires such particularized

specialization to qualify as an expert. The trial court could have reasonably

concluded from Dr. Laughlin’s curriculum vitae that he had the knowledge, skill,

experience, education, or training to render a causation opinion as simple and

straightforward as the one in this case, namely, that Joyce’s fall from the

shower chair fractured her acetabulum. See Mosely v. Mundine, 249 S.W.3d

775, 779–80 (Tex. App.—Dallas 2008, no pet.) (holding record sufficient to

support trial court’s conclusion that emergency room internist was qualified to

furnish report under rule 702 and section 74.351 concerning treatment and

prognosis for cancer based on expert’s education, experience, and training).

22
 Appellants further challenge Dr. Laughlin’s qualifications as an expert

because his report “does not identify the methodology used to reach his

conclusion” and is therefore unreliable. See Mack Trucks, 206 S.W.3d at 578

(“An expert witness may testify regarding ‘scientific, technical, or other

specialized’ matters if . . . the expert’s opinion is . . . based on a reliable

foundation.”). Dr. Laughlin’s report does identify his methodology: he reviewed

the medical records and concluded that the fall caused the fracture. It is

difficult to imagine what other methodology a physician would employ to

determine the cause of broken bone.

Conclusion

Read together, Massey’s and Dr. Laughlin’s reports (1) inform the

defendants of the specific conduct Vaden has called into question and (2)

provide a basis for the trial court to conclude his vicarious liability claims are

meritorious. See Palacios, 46 S.W.3d at 875. Both Massey and Dr. Laughlin

appear to be qualified to render the opinions set out in their reports. We

therefore hold that the trial court did not abuse its discretion by determining

that the reports represent an objective good faith effort to comply with the

definition of an expert report in the statute with regard to Vaden’s vicarious

liability claims against Appellants. See Tex. Civ. Prac. & Rem. Code Ann.

§ 74.351(l). But we hold that the trial court did abuse its discretion by denying

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Appellants’ motion to dismiss with regard to Vaden’s direct liability claims,

which both reports wholly failed to address. We therefore overrule Appellants’

sole issue in part and sustain it in part. We affirm that portion of the trial

court’s order denying Appellants’ motion to dismiss with regard to Vaden’s

vicarious liability claims. We reverse the portion of the trial court’s order

denying Appellants’ motion to dismiss Vaden’s claims based on Appellants’

direct liability, and we render judgment dismissing those claims with prejudice.3

ANNE GARDNER
JUSTICE

PANEL: GARDNER, WALKER, and MCCOY, JJ.

DELIVERED: November 6, 2008

3
… Because Vaden did timely serve an expert report in regard to a portion
of his claims, we need not address Appellants’ request for attorney’s fees. See
Univ. of Tex. Med. Branch v. Railsback, 259 S.W .3d 860, 870 (Tex.
App.—Houston [1st Dist.] 2008, no pet.) (declining to address appellant
hospital’s request for attorney’s fees in appeal from denial of section 74.351
motion to dismiss when expert report addressed vicarious liability claims but not
direct liability claims); Tex. Civ. Prac. & Rem. Code Ann. § 74.351(b) (stating
that, if “expert report has not been served within the period specified by
[s]ubsection (a), the court, on the motion of . . . health care provider, shall . . .
award[ ] . . . reasonable attorney’s fees”).

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