Renaissance Surgical Centers - South Texas, L.L.P. Renaissance Surgical Centers - South Texas, Inc. Renaissance Surgical Center South Texas, L.L.P. And Renaissance Healthcare Systems, Inc. v. Eva Nelda Jimenez, Individually and as of the Estate of Mario M. Jimenez, M.D., Natalia Celeste Jimenez, and Antonio Manuel Jimenez

NUMBER 13-07-121-CV

COURT OF APPEALS

THIRTEENTH DISTRICT OF TEXAS

CORPUS CHRISTI - EDINBURG

RENAISSANCE SURGICAL CENTERS - SOUTH
TEXAS, L.L.P., RENAISSANCE SURGICAL
CENTERS - SOUTH TEXAS, INC., RENAISSANCE
SURGICAL CENTER SOUTH TEXAS, L.L.P., AND
RENAISSANCE HEALTHCARE SYSTEMS, INC., Appellants,

v.

EVA NELDA JIMENEZ, INDIVIDUALLY AND AS
EXECUTRIX OF THE ESTATE OF MARIO M.
JIMENEZ, M.D., NATALIA CELESTE JIMENEZ,
AND ANTONIO MANUEL JIMENEZ, Appellees.

On appeal from the 332nd District Court of Hidalgo County, Texas.

MEMORANDUM OPINION
Before Justices Yañez, Rodriguez and Benavides
Memorandum Opinion by Justice Benavides

Appellants, Renaissance Surgical Centers–South Texas L.L.P., Renaissance

Surgical Centers–South Texas, Inc., Renaissance Surgical Center South Texas, L.L.P.,
and Renaissance Healthcare Systems, Inc. (collectively “Renaissance”), appeal the denial

of their motion to dismiss health care liability claims brought by appellees, Eva Nelda

Jimenez, individually and as executrix of the estate of Mario M. Jimenez, M.D., Natalia

Celeste Jimenez, and Antonio Manuel Jimenez (the Jimenezes). By a single issue,

Renaissance argues that the expert reports submitted by the Jimenezes do not constitute

a good-faith effort to comply with the expert report requirements. See TEX . CIV. PRAC . &

REM . CODE ANN . § 74.351(a), (l), (r)(5)-(6) (Vernon 2005). We affirm, in part, and reverse

and remand, in part.

I. Background

Mario Jimenez, M.D., underwent surgery for liposuction, abdominoplasty, and

umbilical hernia repair on April 13, 2004. The surgery was performed by Rafael A. Avila,

M.D., at Renaissance’s ambulatory surgical center in Edinburg, Texas. As part of the

surgery, Jimenez required anesthesia, including epidural Duramorph. The manufacturer’s

warning states that after receiving Duramorph, the patient should be observed in “a fully

equipped and staffed environment for at least 24 hours after the initial dose.”

Nevertheless, Jimenez was discharged and allowed to return home within the first 24 hours

after his surgery. Within 24 hours after his surgery, Jimenez suffered symptoms of fat

emboli and died.

On June 26, 2006, the Jimenezes brought suit against Renaissance,1 Avila, and the

1
The Jim enezes initially brought suit against eight different entities: (1) Edinburg Surgery Center, L.P.
d/b/a Surgical Center of South Texas; (2) Edinburg Am bulatory Surgical Center, Inc.; (3) Renaissance Surgical
Centers–South Texas, L.L.P. d/b/a Renaissance Surgical Center of South Texas; (4) Renaissance Surgical
Centers–South Texas, Inc.; (5) Renaissance Surgical Center South Texas, L.L.P. d/b/a/ Renaissance Surgical
Center of South Texas; (6) Renaissance Surgical Centers, Inc.; (7) Universal Health Services, Inc.; and (8)
Renaissance Health Care System s, Inc.

The Jim enezes later nonsuited three of those entities: Edinburg Surgery Center, L.P. d/b/a Surgical
Center of South Texas; Edinburg Am bulatory Surgical Center, Inc.; and Universal Health Services, Inc. Four

2
nurses, Tammy Rivera, RN, Mary Barrerra, RN,2 and John C. Rhinehart, CRNA,3 alleging

health-care liability claims. The petition specifically alleged that Renaissance “provided

medical health care and treatment to Jimenez through its employees, servants, agents,

and/or representatives acting in the scope of their employment of their agency with

[Renaissance].” The petition alleged that Rhinehart was acting as Renaissance’s

employee or agent and that Renaissance was liable for his actions under the doctrine of

respondeat superior. The Jimenezes also alleged direct liability theories against

Renaissance for improperly discharging Jimenez and for negligent supervision.

On October 24, 2006, within 120 days after filing suit, the Jimenezes served three

expert reports on Renaissance.4 On November 14, 2006, Renaissance filed a motion to

dismiss under section 74.351(b) of the Texas Civil Practice and Remedies Code. Id. §

74.351(b). Renaissance argued that the reports did not constitute a good-faith effort to

comply with the definition of an expert report. See id. § 74.351(a), (l), (r)(5)-(6).

The Jimenezes filed a written response on December 18, 2006. In it, the Jimenezes

argued that Renaissance was required to file objections to the expert reports within 21

days after they were served, as required under Texas Civil Practice and Remedies Code

section 74.351(a). Id. § 74.351(a). They argued that a motion to dismiss did not satisfy

this requirement, and therefore, Renaissance waived its objections to the sufficiency of the

of the rem aining five entities m oved to dism iss the Jim enezes claim s and are parties to this appeal, as
identified above. The rem aining entity, Renaissance Surgical Centers, Inc., is not a party to this appeal.

2
The Jim enezes nonsuited Rivera and Barrera as well.

3
Rhinehart m oved to dism iss the Jim enezes’s claim s, and the trial court denied that m otion on March
22, 2007. Rhinehart has not appealed this ruling and is not party to this appeal.

4
The reports are set out in full below, along with the relevant analysis.

3
reports. The Jimenezes also argued that the three reports satisfied the expert report

requirements.

The trial court held hearings on December 19, 2006 and February 1, 2007.5 On

February 2, 2007, the trial court orally denied the motion to dismiss. It signed a formal

order denying Renaissance’s motion on March 22, 2007, and this interlocutory appeal

ensued. See id. § 51.014(a)(9) (Vernon 2008).

II. Jurisdiction

We must first address our jurisdiction over this interlocutory appeal. The Jimenezes

argue that we lack jurisdiction because section 51.014(a)(9) of the civil practice and

remedies code allows an appeal from an order that denies relief sought under section

74.351(b) or that grants relief sought under section 74.351(l) of the code. See id. They

argue that although Renaissance asked the trial court to dismiss under section 74.351(b),

in substance, Renaissance’s motion complained that the reports did not constitute a good

faith effort to comply with the definition of an expert report under section 74.351(l).

Because the trial court did not grant Renaissance’s motion under section 74.351(l), the

Jimenezes argue that we lack jurisdiction over this appeal. See id.

Since the filing of the Jimenezes’ brief, however, the Texas Supreme Court has

rejected the Jimenezes’ construction of the statutes. See Lewis v. Funderburk, 253

S.W.3d 204, 207-08 (Tex. 2008). The supreme court held that when a report is insufficient

under section 74.351(l), it is the same as if a report had not been served at all, and the

health care provider may move to dismiss under section 74.351(b) if a sufficient report is

5
The hearing transcripts do not appear in the record. However, neither party argues that any
evidence or argum ents necessary to the resolution of this appeal were presented at the hearing.

4
not filed within 120 days after suit is filed. Id. Accordingly, we have jurisdiction over this

appeal. Id.

III. Waiver

Before we address the reports, we must also address the Jimenezes’ argument that

Renaissance waived any objections to the expert reports by failing to file objections within

21 days after the expert reports were served. Texas Civil Practice and Remedies Code

section 74.351(a) states: “Each defendant physician or health care provider whose

conduct is implicated in a report must file and serve any objection to the sufficiency of the

report not later than the 21st day after the date it was served, failing which all objections

are waived.” TEX . CIV. PRAC . & REM . CODE ANN . § 74.351(a). The Jimenezes argue that

rather than filing objections to their expert reports, Renaissance merely moved to dismiss.

According to the Jimenezes, objections are important because they allow the plaintiff to

correct any deficiencies in the reports. They argue that there is no provision in the statue

that allows for the filing of a motion to dismiss as an alternative manner to address

complaints as to the contents of an expert report. They reason, therefore, that

Renaissance has waived all its complaints.

The Jimenezes do not argue that the motion to dismiss was untimely; it was not.

Id. Apparently, they believe that Renaissance should have filed a separate document

raising objections to the report. If the circumstances of this case were different, we might

agree with the Jimenezes’ reasoning. A health care provider must raise any objections to

the reports within 21 days after they are served, or any complaints are waived. Id.

Furthermore, a health care provider cannot move to dismiss until the 120-day deadline for

serving the reports has passed. Id. § 74.351(b). Thus, if a plaintiff chooses to serve its

5
expert reports well before the 120-day deadline, a health care provider must still file

objections to the report within 21 days after they are served, even though a motion to

dismiss cannot yet be filed. Id. § 74.351(a). So, for example, if a plaintiff files suit on day

one and serves its expert reports on day 70, the health care provider must file written

objections to the report on or before day 91, even though the provider cannot move to

dismiss until after day 120. Id. § 74.351(a). In those circumstances, the objections must

necessarily be separate from the motion to dismiss. The objections, under those

circumstances, allow the plaintiff to correct any deficiencies in the report and re-serve the

report before the 120-day deadline. Id.

However, in the context of the facts of this case, the Jimenezes’ arguments and

reasoning do not make sense. The reports were served on October 24, 2006, exactly 120

days after suit was filed. Even if Renaissance had filed objections to the report on the day

that the Jimenezes served the reports, it would have been too late to correct the reports.

See id. Renaissance filed its motion to dismiss on November 14, 2006, which was 21 days

after the reports were served.

The Jimenezes have not cited a single case that holds that a motion to dismiss in

this context is an insufficient method to raise objections to the reports, nor have we located

any. Moreover, the statute does not require a separate filing when the 120-day deadline

has passed, and we see no reason to require one. The motion to dismiss clearly sets out

Renaissance’s complaints about the reports, and the Jimenezes do not suggest that

Renaissance’s complaints were unclear or lacked specificity. The Jimenezes were able

to address all of the complaints in their response to the motion. Separately-filed objections

would have served no additional purpose. See TEX . R. APP. P. 33.1(a)(1) (stating error is

6
preserved when a timely request, objection, or motion states the grounds therefor with

sufficient specificity to make trial court aware of complaint). We hold that Renaissance

properly preserved its arguments as to why the reports are insufficient and did not waive

error.

IV. Expert Reports

We now turn to the substance of the reports. By a single issue, Renaissance

argues that the trial court erred in denying its motion to dismiss because the Jimenezes

failed to make a good-faith effort to serve “expert reports” as required by section 74.351

of the civil practice and remedies code. TEX . CIV. PRAC . & REM . CODE § 74.351(a), (l),

(r)(5)-(6).

A. Standard of Review and Applicable law

We review the trial court’s decision to deny a motion to dismiss under an abuse of

discretion standard. Am. Transitional Care Ctrs. of Tex., Inc. v. Palacios, 46 S.W.3d 873,

877-78 (Tex. 2001). The trial court is limited to reviewing the information within the four

corners of the report. Id. at 878. “An abuse of discretion occurs when a trial court acts in

an arbitrary or unreasonable manner or without reference to any guiding principles.” Moore

v. Sutherland, 107 S.W.3d 786, 789 (Tex. App.–Texarkana 2003, pet. denied) (citing

Garcia v. Martinez, 988 S.W.2d 219, 222 (Tex. 1999)). An appellate court may not reverse

for abuse of discretion simply because it would have decided the matter differently.

Downer v. Aquamarine Operators, Inc., 701 S.W.2d 238, 242 (Tex.1985).

“With respect to resolution of factual issues or matters committed to the trial court's

discretion, for example, the reviewing court may not substitute its judgment for that of the

trial court.” Walker v. Packer, 827 S.W.2d 833, 839 (Tex.1992). The appellant must

7
“establish that the trial court could reasonably have reached only one decision.” Id. at 840.

Conversely, a trial court has no discretion in determining what the law is or in applying the

law to the facts. “[A] clear failure by the trial court to analyze or apply the law correctly will

constitute an abuse of discretion.” Id.

Section 74.351 requires that a plaintiff serve on each party “one or more expert

reports, with a curriculum vitae of each expert listed in the report for each physician or

health care provider against whom a liability claim is asserted.” Id. § 74.351(a). An “expert

report” is defined as

a written report by an expert that provides a fair summary of the expert’s
opinions as of the date of the report regarding 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. § 74.351(r)(6). A court must grant a motion to dismiss under section 74.351(b) if, after

the 120-day deadline has passed, it appears to the court that the report does not represent

an objective, good-faith effort to comply with the definition of an expert report. Id. §

74.351(l).

To qualify as 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.” Palacios, 46 S.W.3d at 879. “A report that merely states the

expert's conclusions about the standard of care, breach, and causation does not fulfill

these two purposes. Nor can a report meet these purposes and thus constitute a

good-faith effort if it omits any of the statutory requirements.” Id.

8
B. Vicarious Liability Claims

The Jimenezes brought suit against Renaissance alleging that Renaissance was

vicariously liable for the conduct of its CRNA, John Rhinehart.6 To support this claim, they

submitted the report of Alan R. Schneider, M.D., a board-certified anesthesiologist. It

stated:

The standard of care in this situation involving the administration of
epidural or spinal preservative free morphine is what a safe, reasonable, and
prudent anesthesia care provider would do when administering this drug.
This includes but is not limited to avoiding its usage in contraindicated
situations, insuring that no other sedative drugs are administered post
operatively without the knowledge of an anesthesia care provider, and that
this patient be monitored post-operatively in a skilled setting for at least 24
hours. A skilled setting would include any of the following[:] an intensive care
unit, a telemetry floor, or a regular nursing floor. However, wherever this
patient ends up, that location must be equipped to handle the complications
and side effects that arise when morphine is administered in that fashion.
These include pruritis, nausea, vomiting, sedation and respiratory
depression. There is NO situation which would allow for the patient to go
home on the day of surgery having received epidural morphine that very
same day. I have reviewed the anesthesia record of John Rhinehart CRNA
which includes the preop, intra-op, and post-operative time periods. The
patient was a 49 year old male who had an elective abdominalplasty,
liposuction, and umbilical hernia repair performed as an outpatient under a
combination of epidural analgesia and deep sedation with periods of general
anesthesia. According to the medical records he had an uneventful intra-
operative and immediate post-operative course. He was discharged from the
surgery center on the day of surgery.
The patient received several different drugs throughout his epidural
catheter including the local anesthetics Lidocaine and Marcaine, and the
narcotics Fentanyl and Duramorph. All are appropriate drugs to use,
however, the usage of epidural Duramorph, which is the trade name for
preservative free morphine, mandates that the patient be monitored for a
period of 24 hours. This monitoring needs to be in a setting that allows for
the diagnosis and treatment of the complications and side effects of this drug
when administered in this manner.
When John Rhinehart CRNA allowed this patient to go home on the

6
The Jim enezes did not subm it reports addressing the conduct of Dr. Avila or the other two nurses
that provided health care to Jim enez, or Renaissance’s vicarious liability for their conduct. Those parties have
been nonsuited.

9
 same day as receiving epidural Duramorph, he clearly violated the standards
of care necessary when administering this drug. If this patient had been
monitored post-operatively in a proper setting, the symptoms he exhibited at
home more likely than not would have been appreciated and treated in a
more timely manner by trained professionals.

The Jimenezes limited the use of this report to their vicarious liability claims against

Renaissance—they do not rely on this report to support their direct liability theories.7

Renaissance argues that Schneider’s report merely refers to Rhinehart’s actions

and does not refer to Renaissance. It argues that “[w]hether or not the claims against the

health care provider are brought under theories of agency or respondeat superior, they are

still required to be supported by an expert report.” In other words, Renaissance argues

that the expert report must specifically identify Renaissance and, to the extent the claim

is based on vicarious liability, explain how Renaissance is vicariously liable. Because

Schneider’s report does neither, Renaissance argues that the Jimenezes cannot rely on

this report to satisfy the expert report requirement.

Section 74.351 requires that the plaintiff serve on each defendant whose conduct

is implicated by a health-care liability claim an expert report that sets forth the standard of

care, breach of that standard, and causation. TEX . CIV. PRAC . & REM . CODE ANN . §

74.351(a), (r)(6). When a plaintiff’s claim against a hospital is not for direct negligence, but

is based on the conduct of an employee through the doctrine of respondeat superior, the

expert report need not identify the hospital by name or include an opinion about how the

employee was acting in the course and scope of employment for the hospital. Univ. of

Tex. Sw. Med. Center v. Dale, 188 S.W.3d 877, 879 (Tex. App.–Dallas 2006, no pet.). In

fact, a medical expert would not be qualified to render such an opinion on the legal issue

7
It is undisputed that Schneider’s report does not address Renaissance’s direct liability.

10
of vicarious liability. Id. 879 n.1; see also In re CHCA Conroe, L.P., No. 09-04-453-CV,

2004 WL 2671863, at *1 (Tex. App.–Beaumont Nov. 23, 2004, orig. proceeding) (mem.

op.) (“The conduct by the hospital on which the agency relationship depends is not

measured by a medical standard of care. These are principles of agency law on which no

expert report is required.”). 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 as against the hospital to satisfy the

expert report requirement for the vicarious liability claims. Dale, 188 S.W.3d at 879; see

also Casados v. Harris Methodist H-E-B, No. 02-05-080-CV, 2006 WL 2034230, at *4 (Tex.

App.–Fort Worth 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).

Renaissance cites CHCA Mainland, L.P. v. Burkhalter for the proposition that a

report cannot merely point to an employee’s negligence to satisfy the expert report

requirements for a hospital, even though the hospital’s liability is based on respondeat

superior. 227 S.W.3d 221, 228 (Tex. App.–Houston [1st Dist.] 2007, no pet.). In CHCA

Mainland, the Houston First Court of Appeals stated:

The Burkhalters argue that because they allege in their petition that Dr.
Armstrong was acting as the hospital's “agent, servant, and/or employee,”
that “each statement regarding Dr. Armstrong may implicate Mainland.”
However, the Burkhalters cite no authority for the proposition that, by alleging
in a petition that a doctor is acting as an “agent, servant, and/or employee”
of a hospital, an expert report may be adequate under section 74.351 in
regard to a hospital. Moreover, Mainland notes that “Dr. Fullerton did not
state that his opinions against Dr. Armstrong would also apply against the
hospital because of the Burkhalters' pleading that Dr. Armstrong was an
agent of the hospital.” Because Dr. Fullerton's expert report omits at least

11
 one of the three specifically enumerated requirements of section 74.351(r)(6)
in regard to Mainland, it cannot constitute an objective good faith effort to
meet the statutory requirements.

Id.; cf. Packard v. Guerra, 252 S.W.3d 511, 531 (Tex. App.–Houston [14th Dist.] 2008, pet.

filed) (holding trial court properly considered expert report by lawyer who “connected the

dots” between entities and their responsibilities for health-care liability claim).

In a later opinion, however, the same court8 held that

[w]hen a plaintiff sues more than one defendant, the expert report must set
forth the standard of care for each defendant and explain the causal
relationship between each defendant's individual acts and the injury . . . .
This includes a hospital if a plaintiff is alleging that the hospital itself was
directly negligent, rather than just alleging that the hospital was liable due to
vicarious liability.

Univ. of Tex. Med. Branch v. Railsback, No. 01-00729-CV, 2008 WL 1747902, at *3 (Tex.

App.–Houston [1st Dist.] Apr. 17, 2008, no pet.). The court went on to review the expert

reports submitted by the plaintiff, and it concluded that an expert report, which discussed

only the standards of care, breach, and causation related to actions of a doctor and the

nursing staff, was sufficient to satisfy the expert report requirement for the hospital based

on the plaintiff’s vicarious liability theories. Id. at *9 (“Dr. Ghadially informed UTMB of its

vicarious liability by the failure of both Dr. Ivey and the nursing staff to properly maintain

and pad the tourniquet and make sure that Railsback's peroneal nerve was carefully

padded and protected.”).

The Jimenezes argue that CHCA Mainland is distinguishable because in that case,

the expert report did not set forth the standard of care, breach, or causation required for

the hospital or its staff and nurses. CHCA Mainland, L.P., 227 S.W.3d at 228. In other

8
In fact, Railsback and CHCA Mainland were authored by the sam e justice.

12
words, CHCA Mainland did not hold that a plaintiff’s expert report must specifically allege

vicarious liability within the report. Id. Rather, in CHCA Mainland, the expert report was

deficient with respect to the employee on which the hospital’s vicarious liability was based.

Id. We agree with this interpretation, and Railsback’s citation to CHCA Mainland confirms

it is correct.

In Railsback, the court distinguished between allegations of a hospital’s direct

negligence and vicarious liability and cited to CHCA Mainland with the following

parenthetical: “(holding that report did not satisfy required elements of expert report when

hospital sued for negligence).” Railsbeck, 2008 WL 1747902, at *3. In the same citation,

it referred to Dale with the following parenthetical: “(concluding that plaintiffs need not

mention hospital in expert report when plaintiffs limited their claim against hospital to

vicarious liability for employees).” Id. Thus, the Houston Court of Appeals has recognized

that CHCA Mainland merely stands for the proposition that the report in that case did not

satisfy all the required elements for an expert report as to the employee—not for the

proposition that Renaissance urges.

Accordingly, we hold that the trial court did not abuse its discretion by relying on

Schneider’s report to satisfy the expert report requirements with regard to the Jimenezes’

claims against Renaissance, to the extent that those claims are based on Renaissance’s

vicarious liability for Rhinehart’s actions. Renaissance has not raised any other challenge

to the sufficiency of Schneider’s report in this appeal; thus, we affirm the trial court’s order

denying Renaissance’s motion to dismiss with respect to the vicarious liability claims.

C. Direct Liability Claims

The Jimenezes also pleaded that Renaissance was directly liable for negligently

13
discharging Jimenez and for negligently failing to supervise its employees. To satisfy the

expert report requirement for these direct liability claims, the Jimenezes submitted the

report of David S. Lopez, FACHE9 on Renaissance’s negligence, and the report of Jose

Perez, M.D., to establish causation. First, Renaissance argues that Lopez is not qualified

to render an opinion because he lacks experience in “the diagnosis, care, treatment of the

illness, injury, or condition involved in the claim.” Second, Renaissance argues that

Lopez’s report fails to set forth a standard of care for a hospital. Finally, Renaissance

argues that Perez’s opinion on causation is conclusory.10

1. Lopez’s Qualifications

Lopez’s report does not address his qualifications; rather, Lopez’s qualifications are

set out in the curriculum vitae that was attached to his report. The curriculum vitae

indicates that Lopez is not a physician, but rather, he has a Bachelor of Science Degree

in business administration and a Master of Science Degree in Health Care Administration.

Lopez currently serves as the president and chief executive officer of the Harris

County Hospital District. Prior to this employment, Lopez served as the executive vice

president and chief operating officer of the hospital district, and he also served as the

senior executive director of the University of Texas Medical Branch at Galveston. In these

positions, under his “major accomplishments,” Lopez lists significant experience in the

hospitals’ financial management. For example, Lopez states that he developed an

accountability reporting system which resulted in a reduction of overtime hours and a

9
FACHE is an acronym for Fellow in the Am erican College of Health Care Executives.

10
Although Perez’s report discusses a standard of care, the Jim enezes represented to the trial court
that they were subm itting Perez’s report solely on the issue of causation and not to establish liability. The
Jim enezes do not argue on appeal that Perez’s report can be considered to establish the standard of care
applicable to Renaissance.

14
reduction of man-hours, which further resulted in savings to the hospital. Additionally, he

implemented an overall expense assessment program.

Prior to this experience, Lopez served as a consultant for Healthcare Services in

Corpus Christi. He identifies the following experience at that job: (1) submitting an

application for a Health Maintenance Organization to the Texas Department of Insurance;

(2) examining the strategic direction of a rehabilitation program so as to allow the program

to receive managed care reimbursement; (3) recommended methods to enhance the

utilization of product lines created by MAPA;11 (4) made recommendations to improve a

home health agency’s overall profits; (5) assisted the Nueces County Hospital District in

transitioning from its status as a health care provider to a payer for services and

represented the district at meetings with the Texas Department of Health.

Lopez’s employment history continues in various administrative capacities in various

other hospitals, and under each job title, he lists similar experience in the financial

operation of the various hospitals. Nowhere in his resume does Lopez indicate that he has

experience developing or implementing standards for discharging a patient or how to

properly monitor a patient, or the standards applicable to a nurse or other employee who

has discharged a patient that received an anesthetic.

We agree with the Jimenezes that the civil practice and remedies code does not

require an expert opining on the negligence of a hospital to have a medical degree. TEX .

CIV. PRAC . & REM . CODE ANN . § 74.402 (Vernon 2005). However, the statute requires that

the expert have “knowledge of accepted standards of care for health care providers for the

diagnosis, care, or treatment of the illness, injury, or condition involved in the claim” and

11
This acronym is not explained in the record.

15
be “qualified on the basis of training or experience to offer an expert opinion regarding

those accepted standards of health care.” Id. § 74.402(b)(2), (3). Lopez opined that

Renaissance should have followed the package instructions for administering Duramorph

by keeping Jimenez overnight for observation,12 yet his curriculum vitae does not indicate

in any form or fashion that he has “training or experience” to offer an expert opinion on this

type of health care. Accordingly, there was nothing in the record to support the trial court’s

decision, and we hold that the trial court abused its discretion by holding that Lopez was

qualified to opine on the Jimenezes’ direct liability claims against Renaissance. Walker,

827 S.W.2d at 840. Because we hold that Lopez was not qualified to render an opinion

on Renaissance’s direct negligence, we need not analyze whether he properly stated the

standard of care.

2. Sufficiency of Perez’s Opinion on Causation

Renaissance further argues that Perez’s opinion on causation was conclusory and

does not constitute a good-faith effort to comply with the expert report requirements.

Renaissance argues that the report must detail specifically what actions could have been

performed to avoid the result. It argues that Perez’s report fails to identify what could have

been done in the hospital setting, had Jimenez remained at the hospital, that would have

12
Lopez’s report states:

A review of the inform ation provided reveals two (2) deviations from the "standard of care"
generally found in health care organizations. These are:

....

(2) The Surgical Center adm inistered an anesthetic agent to conduct the surgical
procedure. Since the agent utilized was Duram orph, the drug inform ation provided by the
m anufacturer clearly states that due to the potential risk of adverse effects "patients m ust be
observed in a fully equipped and staffed environm ent for at least 24 hours after the initial
dose." In Dr. Jim enez's case this did not occur. The Surgical Center should have followed
the recom m ended precautions for the use of this anesthetic.

16
saved Jimenez’s life.

Perez’s report stated:

Based on my review of the medical records, it is my opinion, based on
reasonable medical probability, that the lack of appropriate care and
treatment was a direct and proximate cause of the death of Mario Jimenez,
M.D. But for the inappropriate discharge of Mario Jimenez, M.D. from the
ambulatory surgical center on April 13, 2004, Mario Jimenez, M.D. would not
have expired on April 14, 2004. Had Mario Jimenez, M.D. been placed in a
hospital setting with the ability to provide supportive therapy and care to
timely treat the development of the fat emboli, it is my medical opinion that
more likely than not Mario Jimenez, M.D. would have survived the episode
that took his life on April 14, 2004.

Renaissance relies on Costello v. Christus Santa Rosa Health Care Corp. to support

its argument. 141 S.W.3d 245, 249 (Tex. App.–San Antonio 2004, no pet.). In Costello,

the trial court granted the hospital’s motion to dismiss. Id. at 247. The expert, Dr. Schilling,

opined that “[i]f this patient would have been appropriately triaged and evaluated, then in

all reasonable medical probability she would have survived.” Id. The San Antonio Court

of Appeals affirmed the trial court’s ruling that this statement was insufficient:

Although the Act only requires a “fair summary” of his opinions, Dr. Schilling’s
mere assertion that the patient would have survived is conclusory and is not
sufficient. Nowhere in Dr. Schilling’s report does he explain the causal
connection between Christus’[s] claimed omissions (failure to appropriately
triage and evaluate) and Lozano’s death. Dr. Schilling offers no explanation
of what medical information a more timely triage and evaluation would have
revealed, nor does he state what would have been done had Christus not
failed to act, what treatment would have or could have been available, that
the patient was a candidate for the unknown treatment, or that the unknown
treatment could have or would have been effective. Dr. Schilling’s report
fails to state how Christus’[s] failure to act was a substantial factor in bringing
about Lozano’s death and without which her death would not have occurred.

Id.

The Jimenezes, on the other hand, point to Moore v. Sutherland. 107 S.W.3d at

791. In that case, the trial court dismissed the plaintiff’s claims, holding that the plaintiff’s

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expert report on causation did not constitute a good-faith effort to comply. Id. at 788. The

expert’s report stated:

It is my opinion that Dr. Sutherland should have had a high index of
suspicion for a bile duct leak due to his dissection in this region. The patient
most likely developed her bile duct leak on 3/8/98 when she developed
abdominal pain and an increased need for narcotics. Most surgeons would
have instituted a diagnostic evaluation to rule out bile peritonitis between
3/9/98 and 3/13/98. Dr. Sutherland's failure to do so was below the standard
of care. Had the diagnosis of bile peritonitis been made before discharge
from the hospital, treatment would have prevented the patient's death.

Id. at 790. The court of appeals held that the expert’s statement that, “[h]ad the diagnosis

of bile peritonitis been made before discharge from the hospital, treatment would have

prevented the patient's death,” constituted a good-faith effort to satisfy the expert report

requirement for the causation element. Id. at 790-91. The court held that the statement

was not “a conclusion or a statement of a mere possibility . . . but is a positive statement

of fact.” Id. at 791.

As stated above, we review the trial court’s decision to deny Renaissance’s motion

to dismiss for an abuse of discretion. Palacios, 46 S.W.3d at 877-78. Even if we would

not have made the same decision, we must affirm the trial court’s decision unless it

appears that the trial court clearly failed to apply or to analyze the law correctly. Walker,

827 S.W.2d at 839. We agree with Moore’s analysis of the causation issue, and we hold

that under Moore, the trial court did not abuse its discretion by holding that Perez’s opinion

on causation constituted a good-faith effort. Moore, 107 S.W.3d at 791. Although Perez’s

report did not identify the specific treatments that could have been applied to Jimenezes’

fat emboli, the report states clearly that “[h]ad Mario Jimenez, M.D. been placed in a

hospital setting with the ability to provide supportive therapy and care to timely treat the

development of the fat emboli, it is my medical opinion that more likely than not Mario

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Jimenez, M.D. would have survived the episode that took his life on April 14, 2004.” This

was certainly enough to “inform the defendant of the specific conduct the plaintiff has

called into question” and “provide a basis for the trial court to conclude that the claims have

merit.” Palacios, 46 S.W.3d at 879; Moore, 107 S.W.3d at 791; see also Gelman v.

Cuellar, No. 13-07-00651-CV, 2008 WL 3522098, at *5 (Tex. App.–Corpus Christi Aug. 14,

2008, no pet. h.).

3. Appropriate Remedy

The trial court found the reports sufficient in all respects. Thus, the trial court had

no reason to consider whether to grant a thirty-day extension to cure defects in the report.

TEX . CIV. PRAC . & REM . CODE § 74.351(c) (allowing trial court to grant one thirty-day

extension to cure a defective report). The Texas Supreme Court has held that when the

court of appeals reverses a trial court’s determination that an expert report is sufficient, the

appropriate remedy is for the court of appeals to remand to the trial court to consider

whether to grant a thirty-day extension. See Leland v. Brandal, No. 06-1028, 2008 WL

2404958, at *2-4 (Tex. June 13, 2008).

Because we have held that Lopez was not qualified to render an opinion on

Renaissance’s direct negligence and that the Jimenezes have not offered another report

for this purpose, we remand to the trial court to consider whether to grant a thirty-day

extension to cure this deficiency.

V. Conclusion

We hold that the trial court did not abuse its discretion by relying on Schneider’s

report to satisfy the expert report requirements for the Jimenezes’ vicarious liability claims.

With respect to the Jimenezes’ direct liability claims, however, Lopez’s report did not

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constitute a good-faith effort to comply because the report did not demonstrate that Lopez

was qualified to render an opinion on Renaissance’s direct liability. The Perez report,

however, was a good-faith effort to satisfy the expert report requirement on the causation

element. Accordingly, we affirm, in part, and reverse and remand, in part, so that the trial

court may consider whether to grant a thirty-day extension to cure the deficiencies in

Lopez’s report.

___________________________
GINA M. BENAVIDES,
Justice

Memorandum Opinion delivered and
filed this the 28th day of August, 2008.

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