William Eugene Springer, M.D., Lubbock Heart Hospital, Cardiologists of Lubbock, P.A., Joseph A. Rizzo, M.D., and Roberto E. Solis, M.D. v. Joyce Johnson

NO. 07-07-0424-CV

IN THE COURT OF APPEALS

FOR THE SEVENTH DISTRICT OF TEXAS

AT AMARILLO

PANEL E

JUNE 4, 2008

______________________________

WILLIAM EUGENE SPRINGER, M.D., LUBBOCK HEART HOSPITAL,
CARDIOLOGISTS OF LUBBOCK, P.A., JOSEPH A. RIZZO, M.D.
AND ROBERTO E. SOLIS, M.D., APPELLANTS

V.

JOYCE JOHNSON, APPELLEE

________________________________

FROM THE 99TH DISTRICT COURT OF LUBBOCK COUNTY;

NO. 2006-537,597; HONORABLE BILL SOWDER, JUDGE,

_______________________________

Before QUINN, C.J., and PIRTLE, J., and BOYD, S.J.1

OPINION

This appeal involves the statutory construction of the term “physician” as used in

Chapter 74 of the Texas Civil Practice and Remedies Code, specifically § 74.351(r)(5)(C),

1
John T. Boyd, Chief Justice (Ret.) sitting by assignment.
as it pertains to the qualifications of an “expert” for purposes of an expert report on the

issue of the causal relationship between the injury, harm, or damages claimed and the

alleged departure from the applicable standard of care in a health care liability claim.

Appellants, William Eugene Springer, M.D., Lubbock Heart Hospital, Cardiologists of

Lubbock, P.A., Joseph A. Rizzo, M.D., and Roberto E. Solis, M.D. (hereinafter collectively

referred to as the Medical Group), contend the term “physician” means an individual

licensed to practice medicine in this state, as defined by § 74.001(a)(23)2 (emphasis

added). Medical Group appeals from an order denying their objections to the sufficiency

of the expert report served by Appellee, Joyce Johnson, in support of her medical

malpractice suit. Medical Group contends the trial court erred in denying their objections

because: (1) Johnson’s expert report failed to demonstrate that its author was qualified to

provide an opinion on the issue of causation because he is not licensed to practice

medicine in Texas and (2) the report addressed the applicable standard of care, purported

breaches, and causation in a conclusory manner. We affirm.

Background

In October 2004, Johnson was admitted to the Lubbock Heart Hospital where she

underwent cardiac surgery to replace a defective heart valve with a mechanical one. Prior

to surgery her attending physicians discontinued her anticoagulant therapy. During her

2
Unless otherwise indicated, this and all future section references are to Tex. Civ.
Prac. & Rem. Code Ann. (Vernon 2005).

2
hospital stay, Johnson alleges her physicians and health care provider neither restarted

her therapy nor properly monitored her condition. Three days later, after her surgery was

completed, she was discharged and allegedly received no prescription or instructions to

resume her anticoagulant therapy. At her post-discharge appointment at Dr. Springer’s

office, her staples were removed; however, she did not see a doctor, and her therapy was

not resumed. On November 16, 2004, Johnson suffered a stroke.

Johnson filed a medical malpractice action against Medical Group alleging they

failed to properly monitor her condition, coordinate her care, and/or resume her

anticoagulant therapy thereby causing her stroke. Medical Group responded with general

denials and Johnson timely served her expert report in accordance with § 74.351(a).

Thereafter, Medical Group filed objections to the sufficiency of her expert report and moved

for dismissal pursuant to § 74.351(b). The trial court denied their objections whereupon

they filed this interlocutory appeal.

Discussion

Medical Group contends that an “expert” for purposes of an expert report on the

issue of the causal relationship between the injury, harm, or damages claimed and the

alleged departure from the applicable standard of care in a health care liability claim is a

“physician” as defined by § 74.001(a)(23), which by definition would only include an

individual licensed to practice medicine in this state. Medical Group asserts Dr. Neal

Shadoff, the author of Johnson’s expert report, is unqualified to issue an opinion on

3
causation because he is not licensed to practice medicine in Texas. Shadoff is licensed

to practice medicine in New Mexico, Colorado, and North Carolina. Certain members of

Medical Group3 next assert Johnson’s report is deficient because the report explains their

standard of care, purported breaches, and causation in a conclusory fashion by ascribing

an identical standard of care to three physicians (Rizzo, Solis, and Springer), treating them

collectively in describing the breach and failing to address causation.

I. Interlocutory Appeal

Appellate courts have jurisdiction to consider immediate appeals of interlocutory

orders only if a statute explicitly provides appellate jurisdiction. Stary v. DeBord, 967

S.W.2d 352, 352-53 (Tex. 1998); In re Estate of Hersey, 223 S.W.3d 457, 459

(Tex.App.–Amarillo 2006, no pet.). Section 51.014(a)(9) of the Civil Practice and

Remedies Code authorizes an appeal from an interlocutory order issued by a district court

denying a motion asserting that a timely filed expert report is deficient under § 74.351(b).

Accordingly, we have jurisdiction to consider this appeal. See Lewis v. Funderburk, 51

Tex. Sup. Ct. J. 747, 2008 WL 1147188, *2 (Tex. Apr. 11, 2008); Wells v. Ashmore, 202

S.W.3d 465, 467 (Tex.App.–Amarillo 2006, no pet.).

3
While all Appellants raise the first issue, Springer and Lubbock Heart Hospital do
not join in the second issue raised by Solis, Cardiologists of Lubbock, P.A., and Rizzo.

4
II. Statutory Construction

Statutory construction is a question of law for the court, City of Lubbock v. Adams,

149 S.W.3d 820, 826-27 (Tex.App.–Amarillo 2004, pet. denied), which we review de novo.

Texas Dep’t of Transp. v. Needham, 82 S.W.3d 314, 318 (Tex. 2002); Oak Park, Inc. v.

Harrison, 206 S.W.3d 133, 137 (Tex.App.–Eastland 2006, no pet.). Our primary objective

when construing a statute is to ascertain and give effect to the Legislature’s intent. Texas

Dept. of Protective and Regulatory Services v. Mega Child Care, 145 S.W.3d 170, 176

(Tex. 2004); Texas Dept. of Public Safety v. Coers, 153 S.W.3d 632, 633

(Tex.App.–Amarillo 2004, no pet.).

To discern the Legislature’s intent, we begin with the plain and common meaning

of the statute’s words. Texas Dept. of Transp. v. City of Sunset Valley, 146 S.W.3d 637,

642 (Tex. 2004). If a statute uses a term with a particular meaning or assigns a particular

meaning to a term, we are bound by the statutory usage. Needham, 82 S.W.3d at 318.

If the statutory language is unambiguous, we must adopt the interpretation supported by

its plain language unless such an interpretation would lead to absurd results. Mega Child

Care, 145 S.W.3d at 177. We must also consider the statute as a whole rather than its

isolated provisions, City of Sunset Valley, 146 S.W.3d at 643; City of Canyon v. Fehr, 121

S.W.3d 899, 905 (Tex.App.–Amarillo 2003, no pet.), and “not give one provision a meaning

out of harmony or inconsistent with other provisions, although it might be susceptible to

5
such a construction standing alone.” Helena Chemical Co. v. Wilkins, 47 S.W.3d 486, 493

(Tex. 2001).

Although a statute is not ambiguous on its face, we may also “consider other

matters in ascertaining the Legislature’s intent, including the objective of the law, the

legislative history, and the consequences of a particular construction.” McIntyre v.

Ramirez, 109 S.W.3d 741, 745 (Tex. 2003) (citing Tex. Gov’t Code Ann. § 311.023(1), (3),

(5)). Furthermore, we must presume the Legislature intends an entire statute to be

effective and that a just and reasonable result is intended. Tex. Gov’t Code Ann. §

311.021(2), (3) (Vernon 2005).

Subchapter I of Chapter 74 of the amended Medical Liability and Insurance

Improvement Act of Texas4 entitled “Expert Witnesses” establishes expert witness

qualifications for suits involving health care liability claims.5 Specifically, Subchapter I

4
Act of May 5, 1995, 74th Leg., R.S., ch. 140, § 2, 1995 Tex. Gen. Laws 985 (Tex.
Rev. Civ. Stat. Ann. art. 4590i § 14, Subchapter N), repealed and recodified by Act of June
2, 2003, 78th Leg., R.S., ch. 204, § 10, 2003 Tex. Gen. Laws 847 (current version at Tex.
Civ. Prac. & Rem. Code § 74.401-403).
5
The term “health care liability claim” is defined as:

[A] cause of action against a health care provider or physician
for treatment, lack of treatment, or other claimed departure
from accepted standards of medical care, or health care, or
safety or professional or administrative services directly related
to health care, which proximately results in injury to or death of
a claimant, whether the claimant’s claim or cause of action
sounds in tort or contract.

6
establishes qualifications for expert witnesses testifying in suits against physicians (§

74.401) and health care providers (§ 74.402), as well as for expert witnesses on causation

(§ 74.403). The qualifications for an expert witness on causation are, in pertinent part,

as follows:

Except as provided by Subsections (b) and (c), in a suit
involving a health care liability claim against a physician or
health care provider, a person may qualify as an expert
witness on the issue of the causal relationship between the
alleged departure from accepted standards of care and the
injury, harm, or damages claimed only if the person is a
physician and is otherwise qualified to render opinions on that
causal relationship under the Texas Rules of Evidence.

§ 74.403(a) (emphasis added).

The expert opinion of a physician, Bowles v. Bourdon, 148 Tex. 1, 219 S.W.2d 779,

782 (1949), qualified to testify under Texas Rule of Evidence 702;6 Broders v. Heise, 924

S.W.2d 148, 151-52 (Tex. 1996), has long been required in suits involving health care

liability claims.

§ 74.001(a)(13).
6
This Rule states:

If scientific, technical, or other specialized knowledge will assist
the trier of fact to understand the evidence or to determine a
fact in issue, a witness qualified as an expert by knowledge,
skill, experience, training, or education may testify thereto in
the form of an opinion or otherwise.

Tex. R. Evid. 702 (Vernon 2003).

7
 Subchapter I of the Act defines a “physician” as follows:

In this subchapter, “physician” means a person who is:

(1) licensed to practice medicine in one or more states in the
United States; or
(2) a graduate of a medical school accredited by the Liaison
Committee on Medical Education or the American Osteopathic
Association only if testifying as a defendant and that testimony
relates to that defendant’s standard of care, the alleged
departure from that standard of care, or the causal relationship
between the alleged departure from that standard of care and
the injury, harm, or damages claimed.

§ 74.401(g).

Thus, if we apply the plain language of § 74.403(a) coupled with the applicable

definition of the term “physician” in § 74.401(g), an expert witness testifying on causation

in a suit involving a health care liability claim against a physician and/or a health care

provider is qualified as an expert witness if he is a physician licensed to practice in one or

more states in the United States and is otherwise qualified under the Texas Rules of

Evidence. This interpretation comports with the applicable legislative history and case

law.7

7
Although three appellate courts have considered issues related to the qualification
of proposed causation experts in suits involving health care liability claims, statutory
interpretation of the applicable provisions of Chapter 74 was unnecessary because the
courts ultimately determined that the purported experts were not licensed as physicians in
any state. See Cuellar v. Warm Springs Rehabilitation Foundation, No. 04-06-00698-CV,
2007 WL 3355611, *2-3 (Tex.App.–San Antonio Nov. 14, 2007, no pet.); Fontenot
Enterprises, Inc. v. Kronick, No. 14-05-01256-CV, 2006 WL 2827415, *2-3

8
 When the Act was initially passed to require the filing of early expert reports rather

than affidavits, the Act amended prior provisions related to expert witness qualifications in

Article 4590i, § 14.01,8 but failed to define the term “physician.” Although the bill, as

introduced, initially required a physician expert to hold “a license to practice in this state at

the time the claim arose,”9 the bill enacted into law did not contain such a restriction. See

Tex. H.B. 971, 74th Leg., R.S., 1995 Tex. Gen. Laws 985-88.

Despite elimination of a Texas licensure requirement for physician-experts from the

bill, the Legislature’s failure to specifically define “physician” for the purpose of expert

witness qualification led to the advancement of a legal argument that all expert testimony

must be provided by a physician licensed to practice medicine in Texas through the

application of the general definition of “physician” contained then in Article 4590i, §

1.03(a)(8), currently § 74.001(a)(23). See Paula Sweeney, Medical Malpractice Expert

Testimony, 41 S. Tex. L. Rev. 517, 520 (2000). See also David F. Johnson, Exploring The

Expert Report of 4590i, 54 Baylor L. Rev. 359, 366 (2002).

(Tex.App.–Houston [14th Dist.] Oct. 5, 2006, no pet.); Randalls Food and Drugs, I.P. v.
Kocurek, No. 14-05-01256-CV, 2006 WL 2771872, *3 (Tex.App.–Houston [14th Dist.] Sept.
28, 2006, no pet.).
8
Act of May 5, 1995, 74th Leg., R.S., ch. 140, § 1, 1995 Gen. Laws 985, 986
(amended 2003) (current version at Tex. Civ. Prac. & Rem. Code Ann. § 74.351(a)).
9
Tex. H.B. 971 74th Leg., R.S., § 5 (1995).

9
 The Legislature found the Texas state licensure requirement overly restrictive, and

the Act was amended again in 1999 to broaden the requirement for physician experts to

include licensure in other states as follows:

In 1999, the legislature again amended section 14.01 to add subsection (g),
which states: “In this section, “physician” means a person who is: (1)
licensed to practice medicine in the United States . . . .” Act of May 13,
1999, 76th Leg., R.S., ch. 242, § 1, 1999 Tex. Gen. Laws 1104-05 (codified
at Tex. Rev. Civ. Stat. Ann. art. 4590i, § 14.01(g) (Vernon Supp. 2000). The
bill analysis states that the reason for this definition was to effectuate the
intent of the 1995 legislature to allow physicians licensed in other states
other than Texas to qualify as expert witnesses. See House Comm. on Civil
Practices, Bill Analysis, Tex. H.B. 504, 67th Leg., R.S. (1999).

Lee v. Mitchell, 23 S.W.3d 209, 214 (Tex.App.–Dallas 2000, pet. denied).

After a detailed analysis, the Lee court concluded that the Legislature’s deletion of

the Texas licensure requirement from the original version of the 1995 bill evidenced a clear

legislative intent not to impose the requirement and recognized the subsequent

amendment in 1999 to include physicians licensed to practice medicine in the United

States as “highly persuasive evidence that the Legislature did not intend to impose the

requirement.” Id. at 215 (citing Texas Water Comm’n v. Brushy Creek Mun. Util. Dist., 917

S.W.2d 19, 21 (Tex. 1996)). Thus, the Lee court held that “a physician making an expert

report under section 13.01(d) of the Act is not required to be a physician licensed in

Texas.” Id. at 215.10

10
Prior to any legislative guidance or the Lee opinion, Texas courts qualified
physician-experts in malpractice cases that were licensed in states other than Texas. See

10
 We find that the subsequent repeal of § 14.01(g) and its recodification in 2003 as

§ 74.401(g)11 further evidence of a clear legislative intent that physician-experts in medical

malpractice cases may be licensed in states other than Texas. While leaving the language

of the general definition of “physician” in § 1.03(a)(8) unaltered after its recodification as

§ 74.001(a)(23), the Legislature further clarified the definition of “physician” in § 14.01(g)

(“person who is licensed to practice medicine in the United States”), in its recodification as

§ 74.401(g) (“person who is licensed to practice medicine in one or more states in the

United States [emphasis added]”) to more clearly express its intent that physician-experts

in medical malpractice actions be qualified if licensed in states other than Texas.

However, Medical Group asserts the definition of “physician” in § 74.001(a)(23)12

must necessarily be applied to qualify a physician as a causation expert for the purpose

of expert reports served pursuant to § 74.351(a) in Subchapter H, Procedural Provisions.

Lee v. Andrews, 545 S.W.2d 238, 245 (Tex.App.–Amarillo 1977, writ dism’d) (citing Hart
v. Van Zandt, 399 S.W.2d 791, 798 (Tex. 1965)).
11
Act of June 2, 2003, 78th Leg., R.S., ch. 204, § 10.01, 2003 Tex. Gen. Laws, 847.
12
Under Subchapter A, General Provisions, “physician” is defined, in pertinent part,
as follows:

(a) In this chapter,

(23) “Physician” means:
(A) an individual licensed to practice medicine in this
state;

§ 74.001(a) (emphasis added).

11
Because § 74.001(a)(23) applies throughout Chapter 74, Medical Group asserts its

definition of “physician” applies in Subchapter H rather than the definition in § 74.401(g)

of Subchapter I, Expert Witnesses. They contend the prefatory language contained in §

74.401(g), “[i]n this section,” limits its application exclusively to Subchapter I. Medical

Group also asserts their interpretation is bolstered because the qualifications for an

“expert” regarding the standard of medical care for claims against a physician or a health

care provider in § 74.351(r)(5) are qualified by citation to provisions in Subchapter I while

the qualifications for an “expert” on causation are not so qualified.13 Medical Group

13
The term “experts” as it applies to expert reports required by § 74.351(a), is
defined, in pertinent part, as follows:

(r) In this section,

(5) “Expert” means:

(A) with respect to a person giving opinion testimony regarding
whether a physician departed from accepted standards of
medical care, an expert qualified to testify under the
requirements of Section 74.401;

(B) with respect to a person giving opinion testimony regarding
whether a health care provider departed from accepted
standards of health care, an expert qualified to testify under
the requirements of Section 74.402;

(C) with respect to a person giving opinion testimony about the
causal relationship between the injury, harm, or damages
claimed and the alleged departure from the applicable
standard of care in any health care liability claim, a physician
who is otherwise qualified to render opinions on such causal
relationship under the Texas Rules of Evidence;

(emphasis added).

12
contends that omission of a citation to § 74.403 following the definition of a causation

expert in § 74.351(r)(5)(C) evidences the Legislature’s intent that the general definition of

“physician” in 74.001(a)(23) control licensure requirements for causation experts submitting

expert reports pursuant to § 74.351(a) rather than the definition of “physician” in §

74.401(g) applicable through § 74.403.

Medical Group’s interpretation ignores the Act’s clear legislative history on this point

as well as sidesteps well-established rules of statutory construction. “A fundamental and

universally accepted rule of construction is that a general provision must yield to a

succeeding specific provision dealing with the same subject matter.” Forwood v. City of

Taylor, 147 Tex. 161, 214 S.W.2d 282, 285-86 (1948). Moreover, when the law makes a

general provision, apparently for all classes, and a special provision for a particular class,

the general must yield to the special insofar as the particular class is concerned. City of

Dallas v. Mitchell, 870 S.W.2d 21, 23 (Tex. 1994) (citing Sam Bassett Lumber Co. v. City

of Houston, 145 Tex. 492, 198 S.W.2d 879, 881 (1947)).

In accordance with these well-established rules, the general definition of a

“physician” applicable to Chapter 74 as a whole must yield in § 74.351(r)(5)(C) to the

special definition of “physician” in § 74.401(g) specifically drafted to apply to expert

witnesses for applicable standard(s) of care and causation. A specific statute such as the

physician-expert definition in § 74.401(g) more clearly evinces the intention of the

Legislature on expert witness qualification than the general definition of “physician” in §

13
74.001(a)(23). See 67 Tex. Jur. 3d Statutes § 123 (2003). This is particularly so where

the Legislature has chosen to use the identical language or phrasing to describe expert

witness qualification for causation issues as a physician who is “otherwise qualified to

render opinions” on causal relationships under the Texas Rules of Evidence in both

statutes, § 74.351(r)(5)(C) and § 74.403(a). “When construing a statutory word or phrase,

a court may take into consideration the meaning of the same or similar language used

elsewhere in the act.” Guthery v. Taylor, 112 S.W.3d 715, 721 (Tex.App.–Houston [14th

Dist.] 2003, no pet.); 67 Tex. Jur. 3d Statutes § 105.

That “expert” qualifications for drafting a report regarding the standard of medical

care for claims against a physician or a health care provider are followed by citations to

Subchapter I while qualifications for an “expert” on causation are not, is of no moment.

Citing the applicable statutory provisions in Subchapter I related to expert opinion

testimony regarding whether a physician or health care provider departed from accepted

standards of medical care in § 74.351(r)(5)(A) and (B) respectively, is necessary in order

to incorporate their many statutory requirements for qualifying such witnesses under the

applicable statutes, §§ 74.401 and 74.402 respectively. However, the phrase “physician

who is otherwise qualified to render opinions on such causal relationship under the Texas

Rules of Evidence” in § 74.351(r)(5)(C) is all that is necessary to incorporate the entirety

of the requirements for qualification of an expert witness on causation in § 74.403,

including the definition of “physician” in § 74.401(g). That the identical language of §

74.403 follows as a matter of course in § 74.351(r)(5)(C) after similar provisions of

14
Subchapter I are cited in (A) and (B) of the same statute is a further indication the

Legislature intended the qualification of an expert witness on causation under §

74.351(r)(5)(C) to be governed by § 74.403.14

This is particularly so when the limiting language in § 74.403(a), “[e]xcept as

provided by Subsections (b) and (c)” is considered. Thus, except in instances where

health care liability claims are asserted against dentists, § 74.403(b), and podiatrists,

§74.403(c), a person may only qualify as an expert witness on the issue of causation in a

suit involving a health care liability claim if the person is a physician licensed to practice

medicine in one or more states in the United States and is otherwise qualified to render

opinions on that causal relationship under the Texas Rules of Evidence. §§ 74.403(a),

74.401(g). Clearly, the statute’s plain language indicates that § 74.403(a) applies in any

suit involving a health care liability claim other than those specifically excluded by the

prefatory proviso. The mere omission of a citation to § 74.403(a) at the end of §

74.351(r)(5)(C) cannot contravene the statute’s plain language and clear legislative intent

as Medical Group suggests.

14
It is also worth noting that § 74.351 does not purport to define the term “physician,”
but “expert.” Section 74.351(r) is also prefaced by language, “[i]n this section,” limiting the
applicability of its defined terms to § 74.351 only. Due to this limiting language, use of the
definition of a causation expert contained in §§ 74.403 and 74.401(g) does not conflict with
the overall applicability of the definition of “physician” in § 74.001(a)(23) as a general
definition applicable to Chapter 74. In addition, this interpretation keeps all references to
“physician” as an expert witness in a health care liability claim or suit consistent throughout
Chapter 74.

15
 Accordingly, this issue is overruled.

III. Sufficiency of Johnson’s Expert Report

Under § 74.351(r)(6), an expert report is defined as “a fair summary of the expert’s

opinions as of the date of the report regarding the applicable standards of care, manner

in which the care rendered by the physician or health care provider failed to meet the

standards, and the causal relationship between the failure and the injury, harm, or

damages claimed.” In its entirety, the report must represent an objective good faith effort

to comply with this definition. Id. at § 74.351(l).

To constitute a “good faith effort,” the report must provide enough information to

fulfill two purposes: (1) it must inform the defendant of the specific conduct the plaintiff has

called into question, and (2) it must provide a basis for the trial court to conclude that the

claims have merit. American Transitional Care Ctrs. of Texas, Inc. v. Palacios, 46 S.W.3d

873, 879 (Tex. 2001). When assessing the report’s adequacy, the trial court should look

no further than the report itself, because all the information relevant to the inquiry is

contained within the document’s four corners. Palacios, 46 S.W.3d at 878.

Although the report must contain an expert opinion on each of the elements

identified in the statute–standard of care, breach and causation–the “plaintiff need not

present evidence in the report as if it were actually litigating the merits.” Id. at 878-79.

Although its adequacy “does not depend on whether the expert uses any particular

16
‘magical words,’” Bowie Memorial Hosp. v. Wright, 79 S.W.3d 48, 53 (Tex. 2002), the

expert must provide enough data to inform the defendant of the specific conduct called into

question and provide the trial court means to preliminarily assess whether the claim has

a factual basis. Wells v. Ashmore, 202 S.W.3d 465, 467 (Tex.App.–Amarillo 2006, no

pet.); Chisholm v. Maron, 63 S.W.3d 903, 906 (Tex.App.--Amarillo 2001, no pet.).

The issue then for this Court is whether the trial court abused its discretion by

finding Johnson’s expert report represented an objective good-faith effort to comply with

the statutory definition of an “expert report.” Bowie, 79 S.W.3d at 52. A trial court abuses

its discretion if it acts in an arbitrary manner without reference to any guiding rules or

principles. Id.

Shadoff’s expert report indicates Johnson suffered from paroxysmal atrial fibrillation,

an abnormal heart rhythm alternating between a normal heart rhythm, and she underwent

a combined coronary bypass graft and aortic valve replacement while at Lubbock Heart

Hospital. He opines that these two facts are clinical indicators establishing a compelling

and absolute need for anticoagulation therapy using warfarin because (1) an aortic valve

replacement significantly increased her risk of thromboembolism, i.e. clot formation in a

blood vessel that breaks loose and is carried by the blood stream until it eventually plugs

another blood vessel, and (2) her paroxysmal atrial fibrillation added to that risk. Shadoff

further opines that Johnson should have been prescribed warfarin and aspirin. He states

that Springer, Johnson’s cardiac surgeon, and Rizzo and Solis, her attending cardiologists,

17
were under a duty to coordinate an appropriate plan for their patient’s care which would

have included coordinating care between themselves as well as employees and agents of

Lubbock Heart Hospital. He further opines they were also under a duty to supervise

anticoagulation management of Johnson utilizing a combination of warfarin and aspirin.

Shadoff opines this duty was breached when Johnson was released from the

hospital without any anticoagulation therapy, i.e. a prescription for warfarin or aspirin. In

his opinion, Johnson should have been scheduled for a subsequent blood test to monitor

her anticoagulation. In addition, the medical records available to Shadoff did not contain

any notes documenting a plan for outpatient anticoagulation. Shadoff cites to publications

of the American College of Cardiology/American Heart Association that indicate: (1) the

risk of an embolic episode increases significantly for patients receiving a mechanical aortic

valve replacement without warfarin therapy, and (2) patients with a mechanical aortic valve

and an increased risk factor such as atrial fibrillation should receive aspirin. He further

opines that Springer, Rizzo, and Solis knew or should have known when she was

discharged on October 20 that her warfarin therapy had been discontinued while in the

hospital on October 17, and knew or should have known the probable consequences of

her discharge without proper anticoagulation and monitoring.

Following her discharge on October 20, Johnson suffered a stroke on November 16.

Shadoff’s report states that he “is quite certain that the stroke . . . was an embolic event

with the embolus arising from the mechanical aortic valve prosthesis.” He further opines

18
that the event “was caused by lack of appropriate coagulation in a clinical circumstance

where anticoagulation with warfarin is absolutely indicated.” He opines that “the breach

of the standard of care owed by Springer, Rizzo, and Solis / Cardiology Associates of

Lubbock,15 as well as Lubbock Heart Hospital and its nurses resulted in Johnson’s stroke.”

He further opines as follows:

If Ms. Johnson had been appropriately anticoagulated, more likely than not
a stroke would not have occurred. In the absence of the stroke occurring, I
would have expected Ms. Johnson to recuperate from her surgery and have
had overall improvement in her functional status.

Solis, Rizzo, and Cardiologists of Lubbock, P.A. contend Shadoff’s report is deficient

because he “lumps” them together and assigns each of them the same duties and

obligations. According to Shadoff’s report, Johnson was under the care of attending

cardiologists Solis, Rizzo, and Cardiologists of Lubbock, P.A. while receiving treatment at

Lubbock Heart Hospital. As such, he opines they shared responsibility for Johnson’s care.

His report names the individual treating physicians, states what standard of care they

should have provided and how they failed to provide that care. Accordingly, we conclude

that grouping Solis, Rizzo, and Cardiologists of Lubbock, P.A. together under the relevant

standard of care does not render Shadoff’s report inadequate simply because the same

15
Although Dr. Shadoff’s expert report refers to Cardiology Associates of Lubbock,
the named defendant was Cardiologists of Lubbock, P.A. Because the Defendants
Roberto E. Solis, M.D. and Cardiologists of Lubbock, P.A.’s Objection to Plaintiff’s Expert
Report and Motion to Dismiss did not object to this misnomer as a basis for the
insufficiency of Dr. Shadoff’s report, for purposes of this opinion, we will treat the report as
if it had properly designated Cardiologists of Lubbock, P.A. See Tex. R. Civ. P. 71.

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standard of care is applied to each. See In re Stacy K. Boone, P.A., 223 S.W.3d 398, 405-

06 (Tex.App.–Amarillo 2006, no pet.) (holding single standard of care applied to defendant

doctors and physician’s assistant sufficient because all were involved in administering

treatment).

The cases relied upon by Solis, Rizzo, and Cardiologists of Lubbock, P.A. are

inapposite. See Kettle v. Baylor Medical Center at Garland, 232 S.W.3d 832, 838-39

(Tex.App.–Dallas 2007, no pet.); Gray v. Chca Bayshore L.P., 189 S.W.3d 855, 859

(Tex.App.–Houston [1st Dist.] 2006, no pet.); Taylor v. Christus Spohn Heath Sys. Corp.,

169 S.W.3d 241, 246 (Tex.App.–Corpus Christi 2004, no pet.); Rittmer v. Garza, 65

S.W.3d 718, 722-23 (Tex.App.–Houston [14th Dist.] 2001, no pet.); Whitworth v.

Blumenthal, 59 S.W.3d 393, 396 (Tex.App.–Dallas 2001, pet. dism’d).

In Kettle and Gray, the appellate courts held the expert reports were deficient

because they failed to give an explanation of the treatment required to fulfill the applicable

duty. Kettle, 232 S.W.3d at 838-839 (report merely stated physicians had a duty to

diagnose and treat patient’s condition); Gray, 189 S.W.3d at 859 (report stated only that

physicians and nursing staff had duty to monitor). Here, Shadoff’s report states the

standard of care, the clinical indicators that should have prompted treatment (patient with

newly implanted aortic mechanical prosthesis and history of atrial fibrillation), and the

treatment that should have been administered (warfarin therapy with a prescribed low dose

aspirin) to satisfy the duty of care.

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 Recognizing that an expert report must contain a standard of care for each

defendant, Taylor does not expressly prohibit applying the same standard of care to more

than one health care provider if, as in the present case, they all owed the same duty to the

patient. See Taylor, 169, S.W.3d at 245-46. Rittmer does not apply because the appellant

admitted the report failed to meet the causation element while the report lacked specificity

as to the standard of care applicable to different portions of surgery performed by two

physicians. 65 S.W.3d at 722-23. In Whitworth, the report completely failed to identify any

particular defendant to which it applied. 59 S.W. 3d at 398. Here, Shadoff’s report offers

specific guidance as to what should have been done differently by Solis, Rizzo, and

Cardiologists of Lubbock, P.A. to meet their individual duty of care. See Palacios, 46

S.W.3d at 880. In sum, we cannot say the trial court abused its discretion by finding

Johnson’s expert report constituted a good faith effort to set forth the applicable standard

of care for Solis, Rizzo, and Cardiologists of Lubbock, P.A. See Boone, 223 S.W.3d at

405-06.

Neither can we say that the trial court erred by finding Johnson’s expert report met

the breach and causation requirements as to Solis, Rizzo, and Cardiologists of Lubbock,

P.A. Having opined as to their duty of care and the care required to fulfill that duty, Shadoff

opines these Appellants breached their duty by failing to coordinate her care, prescribe an

anticoagulation therapy of warfarin and aspirin on discharge, schedule a subsequent blood

test to monitor anticoagulation, or establish an outpatient plan for such treatment. As a

result, Shadoff opines Johnson suffered an embolic event, or stroke, with the “embolus

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arising from the mechanical aortic valve prosthesis” due to lack of appropriate

anticoagulation.16

Here again, the report adequately informs Solis, Rizzo, and Cardiologists of

Lubbock, P.A. of the specific conduct Johnson calls into question. That the report also

includes these defendants with Springer does not render its discussion of the alleged

breaches inadequate. The Shadoff report links the harm to the breach in a manner that

is not merely conclusory. See Boone, 223 S.W.3d at 406-07; Wells, 202 S.W.3d at 467.

While Solis, Rizzo, and Cardiologists of Lubbock, P.A. disagree with the amount of detail

in the report, an expert report required by § 74.351(a) need not be formal and its

information need not meet the evidentiary requirements required in a summary judgment

proceeding or at trial. Palacios, 46 S.W.3d at 879. We conclude the trial court did not

abuse its discretion by finding the Shadoff report constitutes a good faith effort to inform

Solis, Rizzo, and Cardiologists of Lubbock, P.A. of the specific conduct called into question

and provides a sufficient basis to conclude that the claims against them have merit.

16
Shadoff’s statement that, while Johnson’s injury was caused by a stroke due to an
embolus arising from the mechanical valve, he “cannot exclude a concomitant paroxysm
of atrial fibrillation, as well,” does not render his report conclusory under Bowie as Solis
suggests. The Bowie Court held the expert report was deficient on causation where the
report simply opined that the patient might have had “the possibility of a better outcome”
if an x-ray had been read properly without explaining how Bowie’s conduct caused injury
to the patient. 79 S.W.3d at 53. Just because Shadoff also describes the possibility there
was a subordinate or incidental cause for her harm does not render his expert report
conclusory. This is particularly so where Shadoff also states that the prophylactic
treatment with anticoagulation is the same for either condition.

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 For the first time on appeal, Cardiologists of Lubbock, P.A. also assert Johnson’s

report is technically deficient because the report mentions “Cardiologists Associates of

Lubbock” and not the named defendant in the suit, “Cardiologists of Lubbock, P.A.” In

addition, Solis also asserts that, even if vicarious liability is being asserted by Johnson

against Cardiologists of Lubbock, P.A., a proper expert report has not been provided to

Solis. The record does not reflect that these arguments were plead or presented to the

trial court for a ruling. To preserve error for appeal, a party must make a timely, specific

objection or motion to the trial court that states the grounds for the ruling sought with

sufficient specificity and complies with the rules of evidence and procedure. See Tex. R.

App. P. 33.1(a). If an argument is presented for the first time on appeal, it is waived. Id.;

Marine Transport Corp. v. Methodist Hospital, 221 S.W.3d 138, 147 n.3

(Tex.App.–Houston [1st Dist.] 2006, no pet.).

Accordingly, this issue is overruled.

CONCLUSION

Having overruled Medical Group’s issues, we affirm the trial court’s order.

Patrick A. Pirtle
Justice

Quinn, C.J., concurs in the result.

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