Pedro E. Estorque, Jr., M.D., Individually and D/B/A Pedro E. Estorque, Jr., M.D., P.A. AND Amjad Awan, M.D., Individually and D/B/A North Texas Gastroenterology Consultants, P.A. v. Shirley Schafer and Anthony B. Schafer

COURT OF APPEALS
SECOND DISTRICT OF TEXAS
FORT WORTH

NO. 2-08-424-CV

PEDRO E. ESTORQUE, JR., M.D., APPELLANTS
INDIVIDUALLY AND D/B/A PEDRO E.
ESTORQUE, JR., M.D., P.A. AND
AMJAD AWAN, M.D., INDIVIDUALLY
AND D/B/A NORTH TEXAS
GASTROENTEROLOGY
CONSULTANTS, P.A.

V.

SHIRLEY SCHAFER AND APPELLEES
ANTHONY B. SCHAFER
------------

FROM THE 158TH DISTRICT COURT OF DENTON COUNTY

------------

OPINION

------------

I. Introduction

This is an interlocutory appeal from a denial of a motion to dismiss

challenging the sufficiency of an expert report in a health care liability claim.

Appellants are Dr. Pedro Estorque, Jr., individually and d/b/a Pedro Estorque,
Jr., M.D., P.A., and Dr. Amjad Awan, individually and d/b/a North Texas

Gastroenterology Consultants, P.A. Appellants challenge the trial court’s order

denying their motions to dismiss the expert report submitted by Appellees

Shirley Schafer and Anthony Schafer. In three issues, Dr. Estorque argues that

the trial court abused its discretion by denying his motion because the Schafers’

expert report (1) evidenced the expert’s lack of qualifications to opine on

causation, (2) lacked sufficient explanation of the causal relationship between

the breach of care and injury, and (3) lacked explanation of the negligence claim

against Pedro Estorque’s professional association. Dr. Awan raises the same

expert qualifications, causation, and professional association arguments as Dr.

Estorque and additionally challenges the report’s identical criticisms of both his

actions and Dr. Estorque’s actions. 1 We affirm in part and reverse in part.

II. Factual and procedural background

The Schafers’ original petition contained the following allegations: on

March 6, 2006, Shirley arrived at the Presbyterian Hospital emergency room,

presenting with severe abdominal pain. Her family physician, Dr. Estorque,

admitted her to the hospital for evaluation. Dr. Estorque performed a CT scan

on Shirley’s abdomen and pelvis. The examination report noted a “4.8

1
… Dr. Awan argues that the expert report should have separately
addressed North Texas Gastroenterology Consultants, P.A.

2
centimeter cyst on the right ovary and a smaller cyst on the left ovary,” a

“dilated upper left pale collecting system with a dilated left ureter where a 3.0

millimeter kidney stone was visualized,” and “an inflammatory focus related to

sigmoid diverticulitis.” Dr. Estorque referred Shirley to a gastroenterologist, Dr.

Amjad Awan, who consulted during her hospitalization. Dr. Awan further

investigated her gastrointestinal-related symptoms and treated Shirley for

alleged diverticulitis starting in April 2006. Neither Dr. Estorque nor Dr. Awan

referred Shirley to any other doctors.

Shirley continued to feel abdominal pain for nine months after her

consultations with both doctors. In December, she consulted with Dr. Fred

Cummings, her gynecologist, who reviewed Shirley’s chart from her March 6

hospital visit, noting her gynecological and renal issues.2 On December 2, a

new CT scan of her abdomen and pelvis revealed that the 4.8 centimeter cyst

revealed in the previous March 6 CT scan had enlarged to 7.2 centimeters and

that her left kidney demonstrated “a markedly distended upper pale collecting

system” and “intrarenal calculi.” Dr. Cummings performed a laparoscopic

2
… Shirley had a kidney stone in 2003. At that time, Dr. Estorque had
referred her to Dr. Admire, who performed a left renal shockwave lithotripsy to
treat the kidney stone.

3
oophorectomy.3 On December 9, 2006, Dr. Admire performed a cystoscopy,

left ureteroscopy, and removal of the stone, with placement of stents in the

ureters. The ovarian cysts were benign; however, the delay in treating Shirley’s

renal problems allegedly resulted in loss of the “total function of one kidney.”

On May 19, 2008, the Schafers sued Appellants for negligence, asserting

that Dr. Estorque and Dr. Awan breached their standards of care when they

each viewed the CT scan results and failed to obtain gynecological and

urological consults for Shirley. Within 120 days of filing suit, the Schafers

served the statutorily-required expert report on Appellants. See Tex. Civ. Prac.

& Rem. Code Ann. § 74.351(a) (Vernon Supp. 2008). Dr. Keith Miller, a board-

certified family physician, wrote the report.

Dr. Awan and Dr. Estorque filed motions to dismiss, objecting to the

adequacy of the expert report. Dr. Awan objected to (1) Dr. Miller’s

qualifications to opine as to the standard of care, (2) Dr. Miller’s qualifications

as to causation, (3) Dr. Miller’s failure to provide sufficient information

regarding standard of care and causation for each individual physician, and (4)

Dr. Miller’s speculative causation opinions. Dr. Estorque also objected to (1) Dr.

3
… An oophorectomy is also known as an “ovariectomy,” which is “the
surgical rem oval of an ovary.” See Dictionary.com ,
http://dictionary.classic.reference.com/browse/ovariectomy (last visited Sept.
16, 2009).

4
Miller’s qualifications to render an opinion on causation and (2) the sufficiency

of the report to meet the statutory and case law requirements for causation.

The trial court overruled the objections and denied the motions to dismiss.

This interlocutory appeal immediately followed.4

III. Standard of review

A trial court’s ruling concerning an expert report under section 74.351

(formerly article 4590i, section 13.01) of the Medical Liability and Insurance

Act is reviewable under the abuse of discretion standard. See Tex. Civ. Prac.

& Rem. Code Ann. § 74.351; Bowie Mem’l Hosp. v. Wright, 79 S.W.3d 48, 52

(Tex. 2002); Am. Transitional Care Ctrs. of Tex., Inc. v. Palacios, 46 S.W.3d

873, 875 (Tex. 2001). 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. Cire v. Cummings, 134 S.W.3d 835, 838–39

(Tex. 2004). An appellate court cannot conclude that a trial court abused its

discretion merely because the appellate court would have ruled differently in the

4
… See Lewis v. Funderburk, 253 S.W.3d 204, 208 (Tex. 2008)
(authorizing appeal from trial court order determining that expert report was
adequate and denying motion to dismiss).

5
same circumstances. Bowie Mem’l, 79 S.W.3d at 52; E.I. du Pont de Nemours

& Co. v. Robinson, 923 S.W.2d 549, 558 (Tex. 1995).

IV. Statutory requirements

A health care liability claimant must serve an expert report on each

defendant no later than the 120th day after the claim is filed. See Tex. Civ.

Prac. & Rem. Code Ann. § 74.351. 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).

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

dismiss. Id. § 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 of the plaintiff’s proof,” it must

provide a fair summary of the expert’s opinions as to the “applicable standard

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. § 74.351(r)(6); Palacios,

46 S.W.3d at 878 (construing former article 4590i, § 13.01).

6
 To constitute a good faith effort, the report must discuss the standards

of care, breach, and causation with sufficient specificity (1) to inform the

defendant of the conduct the plaintiff has called into question and (2) to provide

the trial court with a basis to conclude that the claims have merit. See Bowie

Mem’l, 79 S.W.3d at 52; Palacios, 46 S.W.3d at 879. A report does not fulfill

this requirement if it merely states the expert’s conclusions or if it omits any of

the statutory requirements. Bowie Mem’l, 79 S.W.3d at 52; Palacios, 46

S.W.3d 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.” Palacios, 46 S.W.3d at 879.

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. Bowie Mem’l, 79 S.W.3d at 52; Palacios, 46 S.W.3d 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 Austin Heart,

P.A. v. Webb, 228 S.W.3d 276, 279 (Tex. App.—Austin 2007, no pet.).

However, section 74.351 does not prohibit experts, as 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.] July

1, 2008, no pet.) (mem. op.); see also Tex. R. Evid. 703 (providing that an

7
expert may draw inferences from the facts or data in a particular case); Tex. R.

Evid. 705 (providing that expert may testify in terms of opinions and

inferences).

If a timely served document intended by a claimant to be an expert report

is determined by the trial court to be deficient in complying with statutory

requirements, the trial court may grant one thirty-day extension to the claimant

in order to cure the deficiency. Tex. Civ. Prac. & Rem. Code Ann. § 74.351(c).

If the court determines that the report is adequate, the defendant may challenge

that ruling by interlocutory appeal. Id. § 51.014(a); Funderburk, 253 S.W.3d

at 207. An appeals court may find an expert report deficient and remand the

case to the trial court to decide whether to grant a thirty-day extension to cure

the deficiency. See Leland v. Brandal, 257 S.W.3d 204, 208 (Tex. 2008).

IV. Dr. Miller’s qualifications for causation

Dr. Estorque argues in his first issue and Dr. Awan argues in his third

issue that Dr. Miller is not qualified to render opinions on causation in this case.

A. Applicable Law

A person is qualified to give opinion testimony concerning the causal

relationship between the injury, harm, or damages claimed and the alleged

departure from the applicable standard of care only if the person (1) is a

physician and (2) is otherwise qualified to render opinions on the causal

8
relationship under the Texas Rules of Evidence. See Tex. Civ. Prac. & Rem.

Code Ann. §§ 74.351(r)(5)(C), 74.403(a) (Vernon 2005). The party offering

the witness as an expert on causation must establish that the witness is

qualified to testify under Texas Rule of Evidence 702. Mem’l Hermann

Healthcare Sys. v. Burwell, 230 S.W.3d 755, 762–63 (Tex. App.—Houston

[14th Dist.] 2007, no pet.) (holding doctor was qualified to opine on causation

because report demonstrated direct experience with treating condition at issue).

To be qualified under Rule 702, an expert witness must have “knowledge,

skill, experience, training, or education” regarding the specific issue before the

court. Tex. R. Evid. 702; Thomas v. Alford, 230 S.W.3d 853, 857, 860 (Tex.

App.—Houston [14th Dist.] 2007, no pet.). Qualifications must appear in the

expert report and cannot be inferred. See Olveda v. Sepulveda, 141 S.W.3d

679, 683 (Tex. App.—San Antonio 2004, pet. denied). When a party can

show that a subject is substantially developed in more than one field, testimony

can come from an expert in any of those fields. Thomas, 230 S.W.3d at 857

(citing Broders v. Heise, 924 S.W.2d 148, 154 (Tex. 1996)). The analysis of

the expert’s qualifications under section 74.351 is limited to the four corners

of the expert report and the expert’s curriculum vitae. See Palacios, 46 S.W.3d

at 878.

9
 A physician does not need to be a practitioner in the same speciality as

the defendant to qualify as an expert. See Broders, 924 S.W.2d at 153; Moheb

v. Harvey, 2008 WL 5501166, at *6 (Tex. App.—Beaumont Jan. 15, 2009,

no pet.) (mem. op., not designated for publication). The proper inquiry in

assessing a doctor’s qualifications to submit an expert report is not his area of

expertise but his familiarity with the issues involved in the claim before the

court. See Blan v. Ali, 7 S.W.3d 741, 746 (Tex. App.—Houston [14th Dist.]

1999, no pet.). A physician who is not of the same school of medicine may be

competent if he has practical knowledge of what is usually and customarily

done by a practitioner under circumstances similar to those confronting the

defendant. See Ehrlich v. Miles, 144 S.W.3d 620, 625 (Tex. App.—Fort Worth

2004, pet. denied).

B. Analysis

Dr. Estorque and Dr. Awan argue that Dr. Miller did not have sufficient

qualifications in the specialities of nephrology, urology, and gynecology to

render opinions on the causal relationship between the physicians’ failure to

refer and the resulting kidney disorders and gynecological cysts.

To establish his qualifications, Dr. Miller was required to demonstrate his

knowledge, skill, experience, training, or education regarding the specific issue

raised by the Schafers’ claim that would qualify him to give an opinion on that

10
subject. See Ehrlich, 144 S.W.3d at 625; see also Roberts v. Williamson, 111

S.W.3d 113, 120–21 (Tex. 2003). The Schafers’ original petition indicates

that their negligence issue relates to Shirley’s alleged injuries resulting from

both doctors’ conduct in their diagnosis, treatment, and lack of referral for her

exhibited abdominal pain, rather than any injury from a specialized treatment or

surgery performed by Dr. Awan or Dr. Estorque. The specialized branches of

nephrology, urology, and gynecology are not implicated by the physician’s

alleged negligence in failing to refer Shirley to other specialists for the renal and

ovarian problems revealed in the CT scan. See Mosely v. Mundine, 249

S.W.3d 775, 779 (Tex. App.—Dallas 2008, no pet.) (stating that alleged

conduct causing the patient’s injuries related to the physician’s ability to

interpret a routine chest x-ray and identify an abnormality rather than to

diagnose and treat cancer).

Dr. Miller stated that he had experience treating patients with symptoms

similar to the symptom’s Shirley exhibited from March 2006 to December

2006. Dr. Miller stated that the standards for treating patients with similar

signs, symptoms, and conditions are “national standards of care” and “apply

to all physicians.” Dr. Miller stated that he was familiar with the causes of

abdominal pain, kidney stones, ureteral obstruction, and ovarian masses. He

also stated that he was familiar with complications arising from the referenced

11
medical conditions and that he participated in the development and use of

protocols, policies, and procedures for patients with similar conditions. Dr.

Miller stated that he “kn[e]w the accepted standards of care, the breaches and

violations of the standards of care, and the causation link between the breaches

and violations of the standard of care as they apply to Dr. Pedro Estorque and

Dr. Amjad Awan, on the basis of [his] education, knowledge, training, and

experience.” See Tex. Civ. Prac. & Rem. Code Ann. § 74.351(r)(5)(C).

Dr. Miller stated that he acquired his “education, knowledge, training, and

experience” through attending classes that taught the evaluation, treatment,

diagnosis, and care of patients with the same or similar conditions as Shirley.

Dr. Miller further stated that he acquired knowledge about Shirley’s conditions

through practical experience, medical conferences, technical works published

in textbooks and journals, consultations with other physicians, communications

with hospital nurses, staff and residents, lectures personally given in

conferences, participation in hospital committees, and observation of the nurses

and supervising residents that care and treat patients with the same or similar

medical conditions as Shirley.

Based on his knowledge, skill, experience, training, and education, we

conclude that Dr. Miller is qualified to opine about causation as to both Dr.

Estorque and Dr. Awan. See Tex. R. Evid. 702; compare Mosely, 249 S.W.3d

12
at 779 (holding that expert’s knowledge regarding emergency room physicians’

scope of practice qualified him to opine on causal link between failing to

interpret abnormality in x-ray and claimant’s cancer), and Palafox v. Silvey, 247

S.W.3d 310, 316 (Tex. App.—El Paso 2007, no pet.) (holding physician’s

experience and training with elderly patients and knowledge of “swallowing

mechanism” sufficient to opine about causal link between the non-pureed diet

and aspiration-related death), with Collini v. Pustejovsky, 280 S.W.3d 456, 466

(Tex. App.—Fort Worth 2009, no pet.) (holding doctor not qualified to opine on

causation when he did not state experience or training regarding prescribing

Reglan or diagnosing tardive dyskinesia to support statements about the

physician’s course of treatment).

We hold that the trial court did not abuse its discretion in overruling

Appellants’ objections for this issue. We therefore overrule both Dr. Estorque’s

first issue and Dr. Awan’s third issue concerning Dr. Miller’s qualifications to

opine on causation.

V. Dr. Miller’s causation statements

Dr. Estorque argues in his second issue and Dr. Awan argues in his first

issue that Dr. Miller failed to provide a specific causal link between the health

care providers’ breach of the standard of care and the injury or damages.

13
 A. Applicable Law

An expert report must provide a fair summary of the causal relationship

between the failure of a health care provider to meet the standards of care and

the injury, harm, or damages claimed. See Tex. Civ. Prac. & Rem. Code Ann.

§ 74.351(r)(6); Palacios, 46 S.W.3d at 875, 878. An expert report cannot

merely state the expert’s conclusions about the statutory elements; the expert

must explain the basis of his statements made regarding causation and link his

conclusions to the facts. See Bowie Mem’l, 79 S.W.3d at 52. An expert

report does not sufficiently address the causation element if it merely

“‘provide[s] insight’ about the plaintiff’s claims.” Id. A causal relationship is

established by proof that the negligent act or omission was a substantial factor

in bringing about the harm and that absent said act or omission, the harm

would not have occurred. Costello v. Christus Santa Rosa Health Care Corp.,

141 S.W.3d 245, 249 (Tex. App.— San Antonio 2004, no pet.). The expert

report must explain how the alleged breach caused the harm or injury. See

Bowie Mem’l, 79 S.W.3d at 53; Collini, 280 S.W.3d at 467; Bidner v. Hill, 231

S.W.3d 471, 475 (Tex. App.— Dallas 2007, pet. denied). However, to avoid

dismissal, a plaintiff need not present all the evidence necessary to litigate the

merits of his case. Palacios, 46 S.W.3d at 879; Patel v. Williams, 237 S.W.3d

901, 904 (Tex. App.—Houston [14th Dist.] 2007, no pet.).

14
 B. Analysis

Dr. Miller stated, separately as to each physician, that Dr. Estorque and

Dr. Awan failed to apply the standard of care required “during the

hospitalization of [Shirley] on 3-6-06.” Dr. Miller stated that each doctor

“should have obtained a urological consultation and/or referral in order to obtain

definitive care and treatment of Shirley’s ureteral obstruction.” He also stated

each doctor “should have obtained a gynecological consultation and/or referral

in order to obtain definitive care and treatment for [Shirley]’s ovarian mass.”

Dr. Miller concluded that Dr. Estorque’s and Dr. Awan’s “failure to practice

according to acceptable standards, more likely than not and to a reasonable

degree of medical probability, resulted in loss of function of [Shirley]’s kidney”

and “resulted in needless pain and suffering to [Shirley].” In his summary

section, Dr. Miller added that:

More likely than not, this failure on the part of . . . Dr. Pedro
Estorque and Dr. Amjad Awan, to practice in an acceptable manner
directly resulted in [Shirley]’s delayed diagnosis and treatment of
kidney stones, ureteral obstruction, and ovarian masses, as well as
overall worsening of her condition, pain, mental anguish, loss of
dignity, and loss of kidney function. As more specifically set forth above,
the actions, and inactions, of Dr. Pedro Estorque and Dr. Amjad
Awan, caused the conditions and complications described above. 5

5
… Dr. Miller also stated that “these negligent acts and omissions as
stated above, proximately caused [Shirley]’s delayed diagnosis and treatment
of kidney stones, ureteral obstruction, and ovarian masses, as well as overall

15
It is Dr. Miller’s opinion, as stated in his report, that “[h]ad the standards of

care been followed by [the physicians], then, more likely than not, and based

upon a reasonable degree of medical certainty, [Shirley] would not have

suffered her delayed diagnosis and treatment of kidney stones . . . [and the

other listed conditions].”

Dr. Miller’s report does not explain the basis of his opinions as to

causation; his report leaves gaps by not explaining how or why the physicians’

failure to consult a urologist or gynecologist caused worsening or progression

of Shirley’s listed conditions. See Ehrlich, 144 S.W.3d at 628 (holding report

conclusory because it failed to link alleged negligent activity to the specific

injuries in the case); Hutchinson v. Montemayor, 144 S.W.3d 614, 617 (Tex.

App.—San Antonio 2004, no pet.) (holding report conclusory because it did not

provide sufficient information linking the failure to order an arteriogram to

Hutchinson’s eventual leg amputation); cf. Polone v. Shearer, 287 S.W.3d 229,

236–37 (Tex. App.—Fort Worth, no pet.) (holding causation report not

conclusory because experts linked the failure to timely evaluate breast mass

and pain to the progressive growth and increased risk of metastatic breast

cancer with subsequent morbidity and mortality), and Eikenhorst v. Wellbrock,

worsening of her condition, pain, mental anguish, loss of dignity, and loss of
kidney function.”

16
No. 01-07-00459-CV, 2008 WL 2339735, at *10 (Tex. App.—Houston [1st

Dist.] 2008, no pet.) (mem. op., not designated for publication) (holding

causation report not conclusory because expert stated that patient would have

received immediate surgery and would have had a greatly recovered health

status had he obtained an early diagnosis). Dr. Miller’s report does not provide

a chain of causation that adequately describes how the ureter, kidney, and

ovarian conditions, left untreated, progressed to the claimed injured state and

how Dr. Estorque’s and Dr. Awan’s acts were a substantial factor in this

progression. See Costello, 141 S.W.3d at 249 (holding report did not explain

how alleged failure to act was a substantial factor in bringing about patient’s

death).

Beyond Dr. Miller’s statement that had the standards of care been

followed, Shirley would not have suffered her delayed diagnosis and subsequent

conditions, Dr. Miller does not explain how the injuries would not have occurred

if Dr. Estorque and Dr. Awan had obtained consults from a urologist and

gynecologist earlier in Shirley’s course of treatment. Compare Eikenhorst, 2008

WL 2339735, at *10 (holding causation sufficient where expert stated that

“surgical intervention would have reliev[ed] pressure on the spinal cord and

stabiliz[ed] the spine”), with Jones v. King, 255 S.W.3d 156, 160 (Tex.

App.—San Antonio 2008, pet. denied) (holding that expert report needed an

17
explanation that “earlier treatment would have shortened the duration of

meningitis, precluding additional pain and suffering, or preventing other alleged

injuries or damages”). Dr. Miller did not explain how the alleged breaches led

to a deterioration of kidney function and triggered needless pain and suffering,

and we cannot infer that failing to notify and send Shirley to a urologist and

gynecologist was a substantial factor in causing the alleged conditions and

injuries. See Collini, 280 S.W.3d at 467 (holding expert report did not

sufficiently explain how Dr. Collini’s prescriptions of Reglan led to Pustejovsky’s

condition).

Based on the report’s limited description of causation, we cannot say that

Dr. Miller sufficiently explained how the doctors’ inaction caused Shirley’s

injuries to provide the trial court with a basis to conclude that the Schafers’

claim had merit. See Bowie Mem’l, 79 S.W.3d at 52. Therefore, the trial court

abused its discretion by denying the motions, and we sustain Dr. Estorque’s

second issue and Dr. Awan’s first issue.

VI. Dr. Miller’s criticism of the two physicians

Dr. Awan argues in his second issue that an expert report must provide

an individualized assessment of the statutory elements as to each health care

provider that has been sued.

18
 A. Applicable law for multiple defendants

When a plaintiff sues more than one defendant, the expert report must

set forth the standard of care applicable to each defendant and explain the

causal relationship between each defendant’s individual acts and the injury.

See Tex. Civ. Prac. & Rem. Code Ann. § 74.351(a), (r)(6); Sanjar v. Turner,

252 S.W.3d 460, 465 (Tex. App.—Houston [14th Dist.] 2008, no pet.)

Collective assertions of negligence against various defendants are inadequate.

See CHCA Mainland, L.P. v. Burkhalter, 227 S.W.3d 221, 227 (Tex.

App.—Houston [1st Dist.] 2007, no pet.) (stating that claimant failed to

address various negligence elements for hospital, nurses, and staff); Doades v.

Syed, 94 S.W.3d 664, 671–72 (Tex. App.—San Antonio 2002, no pet.)

(holding that report failed to identify standard of care for each of the defendant

health care providers). Identifying the correct standard of care is essential

because the trial court cannot determine whether each doctor breached his or

her duty without specific information about what that particular doctor should

have done. See Palacios, 46 S.W.3d at 880.

B. Analysis

Dr. Miller stated that the accepted standards of care for the “assessment,

diagnosis, and treatment of medical conditions similar to those of [Shirley] apply to

all physicians.” Dr. Miller listed the same standard of care, in separate sentences,

19
for both physicians: that they were required, while caring for Shirley, to obtain

a “urological” and “gynecological consultation” for the ureteral obstruction and

ovarian mass. All of the listed defendants in the case were involved in Shirley’s

diagnosis for her abdominal pain; both Dr. Estorque and Dr. Awan 6 diagnosed

Shirley’s symptoms following her initial CT scan. Dr. Awan argues that the

report fails to give an “individualized analysis” of his conduct; however, based

on each party’s recitation of the facts, Dr. Estorque and Dr. Awan did not

appear to have different roles or duties for the Schafers’ asserted diagnostic

and referral issue. In their petition, the Schafers are not challenging Dr. Awan’s

subsequent gastroenterological course of treatment; rather, they argue that Dr.

Awan and Dr. Estorque breached the standard of care when both physicians

read the CT scans, failed to disclose the results to Shirley, and then failed to

refer Shirley to specialists in urology and gynecology.

Although Dr. Miller uses the same standard for both physicians, his report

outlines each doctor’s standard of care separately, identifying each doctor and

his standard of care in the case. See Romero v. Lieberman, 232 S.W.3d 385,

392 (Tex. App.—Dallas 2007, no pet.) (holding same standard of care adequate

for all listed medical doctors involved in treating septicemia condition); In re

6
… Both doctors were working in the course of their employment in their
professional associations, which we will address in the next section.

20
Stacy K. Boone, P.A., 223 S.W.3d 398, 405–06 (Tex. App.—Amarillo 2006,

orig. proc.) (holding expert report adequate on standard of care for multiple

defendants where each defendant was in the same type of care and the

standard was the same for each); Cf. Taylor v. Christus Spohn Health Sys.

Corp., 169 S.W .3d 241, 245 (Tex. App.—Corpus Christi 2004, no pet.)

(holding that report failed to address separate standards of care for varied

duties of the defendants, including the hospital, doctors’ association,

emergency room physician, and cardiologist). Dr. Estorque and Dr. Awan may

disagree with Dr. Miller’s opinions regarding the standard of care applicable to

each of them, but the standards of care are sufficiently stated to provide both

physicians with notice of the conduct at issue. See In re Boone, 223 S.W.3d

at 406. Because Dr. Miller applied the proper standard of care for both

physicians’ identical conduct, we must overrule this segment of Dr. Awan’s

second issue.

VII. Dr. Miller’s treatment of the professional associations

Dr. Estorque argues in his third issue and Dr. Awan argues in his second

issue that the report fails to contain sufficient criticism or analysis of their

respective professional associations, “North Texas Gastroenterology

Consultants, P.A.” and “Dr. Pedro E. Estorque, Jr. M.D., P.A.”

21
 A. Applicable law

A plaintiff must provide an expert report to each health care provider

against whom he or she has alleged a health care liability claim, or the claim

must be dismissed on the health care provider’s motion. See Tex. Civ. Prac.

& Rem. Code Ann. § 74.351(b). Under section 24 of the Professional

Associations Act (“the Act”), “the association (but not the individual members,

officers or directors) shall be jointly and severally liable with the officer or

employee furnishing professional services for such professional errors,

omissions, negligence, incompetence, or malfeasance on the part of such

officer or employee when such officer or employee is in the course of his

employment for the association.” Tex. Rev. Civ. Stat. Ann., art. 1528f, § 24

(Vernon 2003); Obstetrical and Gynecological Assocs., P.A. v. McCoy, 283

S.W.3d 96, 105 (Tex. App.—Houston [14th Dist.] 2009, pet. filed) (holding

that the legal consequences to a professional association are based solely on

the doctors’ conduct, making the need for a separate expert report

unnecessary) (citing Carl J. Battaglia, M.D., P.A. v. Alexander, 177 S.W.3d

893, 902–03 (Tex. 2005)). Under the Act, the negligence of a professional

association’s employee is imputed to the association; thus if an expert report

is sufficient as to specific claims against the doctor, then the report is sufficient

as to the same claims against the professional association. See Ctr. for

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Neurological Disorders, P.A. v. George, 261 S.W.3d 285, 295 (Tex. App.—Fort

Worth 2008, pet. denied). Further, the Texas Supreme Court recently stated

in Gardner v. U.S. Imaging, Inc. that “[w]hen a party’s alleged health care

liability is purely vicarious, a report that adequately implicates the actions of

that party’s agents or employees is sufficient.” 274 S.W.3d 669, 671–72

(Tex. 2008).

B. Analysis

It is undisputed that Dr. Estorque and Dr. Awan were acting in the course

and scope of their employment at their respective professional associations

when they initially examined Shirley’s symptoms in March 2006. See Tex. Rev.

Civ. Stat. Ann., art. 1528f, § 24; Battaglia, 177 S.W.3d at 901-02 (explaining

that “[n]either the pleadings nor the evidence furnished any basis for drawing

distinctions between the physicians and their respective professional

associations”). The Schafers have not alleged any theories of negligence

distinct from the negligence of the two physicians; no direct acts by the

professional associations as separate entities have been identified or

challenged.7 See McCoy, 283 S.W.3d at 106 (holding that when liability is

7
… The Schafers named the professional associations in the suit and
served both with process; Dr. Estorque and Dr. Awan were named as registered
agents to receive those citations.

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based solely on the actions of a professional associations’ principals and not the

entities, no expert report is required). The expert report and the petition do not

specifically allege that the Schafers are suing the professional associations on

the legal principle of vicarious liability; however, the documents clearly identify

only the physicians’ conduct as constituting negligence. See Univ. of Tex. Sw.

Med. Ctr. v. Dale, 188 S.W.3d 877, 879 (Tex. App.—Dallas 2006, no pet.)

(concluding that plaintiffs need not mention hospital in expert report when

plaintiffs limited their claim against hospital to vicarious liability for acts of

employees). Thus, we conclude and hold that the Schafers did not need to file

an expert report specifically addressing the professional associations that were

only implicated by the actions of the two physicians. McCoy, 283 S.W.3d at

106.

Because the professional associations’ liability was based solely on the

acts of its physicians, we overrule Dr. Estorque’s third issue and Dr. Awan’s

second issue pertaining to this argument.

VIII. Conclusion

Because Dr. Miller’s report insufficiently describes the causal link between

Dr. Estorque’s and Dr. Awan’s breaches and the Schafers’ injury and thus fails

to provide the trial court with sufficient information to determine that the

Schafers’ claims have merit, we must sustain Dr. Estorque’s and Dr. Awan’s

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issues with regard to the inadequacy of Dr. Miller’s expert report on the

causation element. We note that the Shafers raised only claims of vicarious

liability against the professional associations. We therefore reverse the trial

court’s decision denying Appellants’ motions to dismiss and remand this case

to the trial court to consider the issue of whether to grant the Schafers a thirty-

day extension to file an adequate expert report. See Tex. Civ. Prac. & Rem.

Code Ann. § 74.351(c); Leland, 257 S.W.3d at 208.

ANNE GARDNER
JUSTICE

PANEL: LIVINGSTON, DAUPHINOT, and GARDNER, JJ.

LIVINGSTON, J., dissents without opinion.

DELIVERED: September 17, 2009

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