Tenet Hospitals Limited, a Texas Limited Partnership D/B/A Sierra Medical Center v. Mariva J. Barajas

COURT OF APPEALS
EIGHTH DISTRICT OF TEXAS
EL PASO, TEXAS

TENET HOSPITALS LIMITED, A §
TEXAS LIMITED PARTNERSHIP, No. 08-14-00048-CV
D/B/A/ SIERRA MEDICAL CENTER, §
Appeal from the
Appellant, §
County Court at Law No. 5
v. §
of El Paso County, Texas
MARIVA J. BARAJAS, §
(TC# 2013-DCV1930)
Appellee. §

OPINION

Appellant, Tenet Hospitals Limited, d/b/a/ Sierra Medical Center, appeals the trial court’s

denial of its motion to dismiss Appellee Mariva Barajas’s health care liability claim. Sierra

Medical Center (SMC) raises a single issue for our review. For the following reasons, we affirm

in part and reverse in part.

BACKGROUND

On March 17, 2011, Barajas underwent a total right knee replacement operation at SMC.

The following day, while still a patient at SMC, Barajas requested assistance to move from a

recliner to the bedside commode. A nurse attempted to help Barajas get up with a walker;

however, the recliner was not locked and Barajas “slid down” to the floor causing her

newly-operated knee to bend. A Hoyer lift was used to get Barajas, an obese patient, back into the
hospital bed. After the nurse notified Dr. Alvaro Hernandez, the doctor who had performed

Barajas’s knee replacement, of the fall, no new orders were given.

On March 21, 2011, Barajas was discharged from SMC and sent to Las Palmas Rehab

Hospital for therapy. On March 23, 2011, Barajas experienced some popping of the right knee,

her therapy was stopped, and x-rays were taken. The x-ray report was normal.

In April and May 2011, Barajas followed-up her care with Dr. Hernandez. On May 2,

2011, Barajas reported she was having pain and x-rays were taken. Barajas was diagnosed with

right patellar dislocation. On May 5, 2011, Dr. Hernandez performed right knee patellar

dislocation surgery on Barajas. On March 29, 2012, Barajas saw Dr. Charles Zaltz, Dr.

Hernandez’s partner, for a follow-up. In his medical note, Dr. Zaltz recorded that Barajas fell at

SMC the day after her right total knee replacement surgery and stated that the right patellar

dislocation and disruption of Barajas’s patellar mechanism found on May 2, 2011, was the result of

her fall at SMC on March 18, 2011.

In May 2013, Barajas sued SMC for medical negligence alleging that the hospital allowed

Barajas “to drop to the floor after the 3/17/11 surgery” and committed “[o]ther acts and/or

omissions of negligence.” Barajas timely served expert reports and the curricula vitae of

Registered Nurse Donna Holguin, and Drs. Rene Arredondo and John Allen. SMC subsequently

filed objections to the sufficiency of the three expert reports and moved to dismiss Barajas’s claim.

Specifically, SMC argued that Drs. Allen and Arredondo were not qualified to offer

opinions on the standard of care for registered nurses, and that their opinions as to causation were

conclusory. SMC similarly contended Nurse Holguin was unqualified to opine on the standard of

care for registered nurses in an acute care hospital setting, and that her report failed to adequately

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address the standard of care applicable to SMC’s nursing staff and any alleged breaches. After a

hearing, the trial court overruled SMC’s objections and denied its motions to dismiss. This

interlocutory appeal followed. See TEX. CIV. PRAC. & REM. CODE ANN. § 51.014(a)(9) (West

2008).

DISCUSSION

In its sole issue on appeal, SMC challenges the expert reports filed by Barajas.

Specifically, SMC contends that the expert reports are not authored by qualified experts and that

the reports are conclusory as to causation.

Standard of Review

A trial court’s decision to grant or deny a motion to dismiss under Section 74.351 is

reviewed for an abuse of discretion. See American Transitional Care Ctrs. of Tex., Inc. v.

Palacios, 46 S.W.3d 873, 875 (Tex. 2001); Tenet Hospitals, Ltd. v. Boada, 304 S.W.3d 528, 533

(Tex.App. – El Paso 2009, pet. denied). A trial court only abuses its discretion when it acts in an

unreasonable or arbitrary manner, without reference to any guiding rules or principles. See

Walker v. Gutierrez, 111 S.W.3d 56, 62 (Tex. 2003); Boada, 304 S.W.3d at 533. A trial court acts

arbitrarily and unreasonably if it could have reached only one decision, but instead reached a

different one. See Teixeira v. Hall, 107 S.W.3d 805, 807 (Tex.App. – Texarkana 2003, no pet.);

Boada, 304 S.W.3d at 533. A trial court also abuses its discretion when it fails to analyze or apply

the law correctly. In re Sw. Bell Tel. Co., 226 S.W.3d 400, 403 (Tex. 2007) (citing In re Kuntz,

124 S.W.3d 179, 181 (Tex. 2003)); Boada, 304 S.W.3d at 533. However, a trial court does not

abuse its discretion merely because it decides a matter within its discretion differently than a

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

3
denied, 476 U.S. 1159, 106 S.Ct. 2279, 90 L.Ed.2d 721 (1986).

Applicable Law

“[A] claimant shall, not later than the 120th day after the date each defendant’s original

answer is filed, serve on that party or the party’s attorney 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.” See TEX. CIV. PRAC. & REM. CODE ANN. § 74.351(a)

(West 2011). If a plaintiff timely files an expert report and the defendant moves to dismiss

because of the report’s inadequacy, a trial court must grant the motion “only if it appears to the

court, after hearing, that the report does not represent an objective good faith effort to comply with

the definition of an expert report in Subsection (r)(6).” Id. § 74.351(l). The definition of an

expert report requires that the report contain 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) (West 2011). As the

“statute focuses on what the report discusses, the only information relevant to the inquiry is within

the four corners of the document.” Palacios, 46 S.W.3d at 878.

“In setting out the expert’s opinions on each of those elements, the report must provide

enough information to fulfill two purposes if it is to constitute a good faith effort.” Id. at 879.

The report must: (1) inform “the defendant of the specific conduct the plaintiff has called into

question;” and (2) “provide a basis for the trial court to conclude that the claims have merit.” Id.

If a report does not meet these purposes and omits any of the statutory requirements, it does not

constitute a good faith effort. Id. Nor does a report “that merely states the expert’s conclusions

4
about the standard of care, breach, and causation” fulfill these purposes. Id. Rather, the expert

must explain the basis of his statements to link his conclusions to the facts. Bowie Mem’l Hosp. v.

Wright, 79 S.W.3d 48, 52 (Tex. 2002). However, “a plaintiff need not present evidence in the

report as if it were actually litigating the merits.” Palacios, 46 S.W.3d at 879. “The report can

be informal,” that is, “the information in the report does not have to meet the same requirements as

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

THE PROFFERED EXPERTS’ QUALIFICATIONS

In Issue One, SMC argues that Nurse Holguin, and Drs. Allen and Arredondo lack the

qualifications to provide opinions on the standard of care for hospital floor nurses. SMC

maintains the curricula vitae and reports of the proffered experts fail to satisfy the requirements of

Section 74.402.

To be qualified as a medical expert on whether a hospital departed from an accepted

standard of health care, the proffered expert must satisfy the requirements of Section 74.402 of the

Civil Practice and Remedies Code. See TEX. CIV. PRAC. & REM. CODE ANN. § 74.351(r)(5)(B)

(West 2011). Section 74.402 provides that:

(b) In a suit involving a health care liability claim against a health care provider, a
person may qualify as an expert witness on the issue of whether the health care
provider departed from accepted standards of care only if the person:

(1) is practicing health care in a field of practice that involves the same type of
care or treatment as that delivered by the defendant health care provider, if the
defendant health care provider is an individual, at the time the testimony is
given or was practicing that type of health care at the time the claim arose;1

(2) has knowledge of accepted standards of care for health care providers for

1
We agree with the parties that this subsection of section 74.402 is inapplicable in this case because the health care
provider here is SMC, a hospital, and not an individual. See Renaissance Healthcare Sys., Inc. v. Swan, 343 S.W.3d
571, 588 (Tex.App. – Beaumont 2011, no pet.); TTHR, L.P. v. Coffman, 338 S.W.3d 103, 112 (Tex.App. – Fort Worth
2011, no pet.).
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 the diagnosis, care, or treatment of the illness, injury, or condition involved in
the claim; and

(3) is qualified on the basis of training or experience to offer an expert opinion
regarding those accepted standards of health care.

(c) In determining whether a witness is qualified on the basis of training or
experience, the court shall consider whether, at the time the claim arose or at the
time the testimony is given, the witness:

(1) is certified by a licensing agency of one or more states of the United States
or a national professional certifying agency, or has other substantial training or
experience, in the area of health care relevant to the claim; and

(2) is actively practicing health care in rendering health care services relevant to
the claim.

TEX. CIV. PRAC. & REM. CODE ANN. § 74.402(b)(c) (West 2011). “Practicing health care”

includes:

(1) training health care providers in the same field as the defendant health care
provider at an accredited educational institution; or

(2) serving as a consulting health care provider and being licensed, certified, or
registered in the same field as the defendant health care provider.

Id. § 74.402(a).

Not every licensed physician is automatically qualified to testify on every medical

question. Tenet Hospitals Ltd. v. Love, 347 S.W.3d 743, 749-50 (Tex.App. – El Paso 2011, no

pet.) (citing Broders v. Heise, 924 S.W.2d 148, 152 (Tex. 1996)). In determining whether a

witness is qualified to testify as an expert, the trial court focus should be on whether the expert has

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

which would qualify the expert to give an opinion on that particular subject. Id. at 750.

Accordingly, a medical expert from one specialty may be qualified to provide an opinion if he has

practical knowledge of what is commonly done by doctors of a different specialty. Id. If the

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subject matter is common to and equally recognized and developed in all fields of practice, any

physician familiar with the subject may testify as to the standard of care. Caviglia v. Tate, 365

S.W.3d 804, 810 (Tex.App. – El Paso 2012, no pet.) (citing Keo v. Vu, 76 S.W.3d 725, 732

(Tex.App. – Houston [1st Dist.] 2002, pet. denied)).

Nevertheless, the proffered medical expert’s expertise must be evident from the four

corners of his report and curriculum vitae. See generally Palacios, 46 S.W.3d at 878; Christus

Health Southwest Texas v. Broussard, 267 S.W.3d 531, 536 (Tex.App. – Beaumont 2008, no pet.).

The expert’s qualifications must appear in the report and cannot be inferred. See Salais v. Texas

Dep’t of Aging & Disability Servs., 323 S.W.3d 527, 536 (Tex.App. – Waco 2010, pet. denied).

Whether a witness is qualified “to serve as an expert is within the trial court’s discretion.”

Palafox v. Silvey, 247 S.W.3d 310, 314 (Tex.App. – El Paso 2007, no pet.). An expert report by a

person unqualified to testify does not constitute a good faith effort to comply with the statutory

definition of an expert report. Foster v. Zavala, 214 S.W.3d 106, 116 (Tex.App. – Eastland 2006,

pet. denied) (citing In re Windisch, 138 S.W.3d 507, 511 (Tex.App. – Amarillo 2004, orig.

proceeding) (examining predecessor to Section 74.351)).

Nurse Holguin’s Report

SMC contends Nurse Holguin is unqualified to testify as an expert on the standard of care

for hospital floor nurses providing post-surgical care to patients in March 2011 because “Nurse

Holguin does not meet the knowledge requirements of Section 74.402(b)(2).” SMC also asserts

Nurse Holguin is not qualified to opine on the applicable standard of care based on her training and

experience. In essence, SMC argues Nurse Holguin does not satisfy Section 74.402(b)(3). See

TEX. CIV. PRAC. & REM. CODE ANN. § 74.402(b)(3) (West 2011).

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 Pursuant to Section 74.402(b)(2), Nurse Holguin may qualify as an expert witness on the

issue of whether SMC departed from accepted standards of care only if she has “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[.]” Id. § 74.402(b)(2). This case involves the

post-operative care of an obese hospital patient who had total right knee replacement surgery.

Barajas’s alleged that due to the negligence of SMC and its floor nurses she required additional

knee surgery after SMC and its floor nurses failed to prevent her from falling to the floor as she

was assisted from a recliner to the bedside commode.

Nurse Holguin’s curriculum vitae reflects that she has a B.S.N. and M.S.N., and that she

has worked in various nursing positions at several acute care hospitals including SMC. From

1991 to 1996, she held the title of Director of Quality Management at Providence Memorial

Hospital where she was in charge of quality management, risk management, safety, “ProvCare and

Infection Control.” She also worked as the Director of Nursing Services at a long-term care

facility where she oversaw all aspects of nursing client care. From 1999 to January 31, 2011,

Nurse Holguin was the Senior Director of Quality Improvement and Occupational Health at an

ambulatory clinic where she acted as the Director of Nursing, Infection Control Nurse, Safety

Officer, and Director of the facility Safety Program.

In her expert report, we note Nurse Holguin does not expressly state she is familiar with the

standard of care for nurses for the prevention of falls of obese patients in a hospital setting nor does

she state that she has knowledge of the applicable standard of care. However, she does detail

knowledge of what SMC floor nurses should have done when assisting an obese patient, who had

recently had a total knee replacement, move from a recliner to the bedside commode.

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Specifically, Nurse Holguin’s expert report provides:

Next Nursing note is on 3-18-2011 1330 by April Hurtado (no clinical designation
noted). According to the patient she had been “assisted up into a chair earlier by 6
or 7 staff members.” The Nursing Note at 1330 states “Patient called for
assistance to bedside commode was sitting in recliner chair, attempted to help
patient with walker and the chair was not locked, patient slid down to floor knee did
bend, patient okay.”

This event/fall occurred on 3-18-2011 the first day after the total knee replacement
procedure. Any nursing staff member entering this patients’ room should have
taken note of the patient[’]s size and could easily have asked the patient how much
assistance had been provided earlier to help her into the recliner chair. These two
pieces of information would have provided the basis for indicating whether more
help was needed to safely assist this patient rather than receiving assistance from
one female staff, who was reportedly in a state of advanced pregnancy. The
patient reports that she asked whether more help should be summoned but was told
by the person in the room that more help was not necessary.

The nurses note indicates that the “chair was not locked” – another failure on the
part of the staff member who undertook this assist – not assuring that the chair
would not move as the patient attempted to stand up from the sitting position to a
standing position to use the walker to then move to the bedside commode.

Instead of being safely moved from the chair to the bedside commode the patient
went down to the floor and the newly operated knee “bent”, according to the
documentation. The staff member who had undertaken the transfer did not keep
the patient safe from going to the floor and while going to the floor the knee bent.

…

Had proper assessment been done prior to the unidentified staff member attempting
to assist Ms. Barajas this unfortunate “fall” should not have occurred. The staff
member failed to provide for this patient[’]s safety. Ms. Barraza [sic] was
provided with and signed a “Patient Safety Tips” form on admission to the hospital.
This form indicates that the patient is to: “Call for help before getting up from a
chair or bed” and yet when Ms. Barajas did call for help she was not kept safe
because the assisting person did not take into account all of the factors about her
that would have indicated the need for the assistance of more than one person. A
staff member skilled in the postoperative care of Total Knee Patients should have
been called on to make a determination of what type of assistance was needed if the
person at the bedside was unable to determine what would be safest for this patient.

Nursing Care of this newly operated orthopedic patient was not appropriate/not

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 adequate since the patient was not kept safe and ended up on the floor which was
NOT the desired outcome of a transfer from a chair to a bedside commode.

Because of her experience as a registered nurse as set forth in her curriculum vitae and the detailed

description of the applicable standard of care for floor nurses contained in her report, the trial court

could have reasonably concluded that Nurse Holguin has “knowledge of accepted standards of

care for health care providers for the diagnosis, care, or treatment of the illness, injury, or condition

involved in [Barajas’s] claim[.]” See TEX. CIV. PRAC. & REM. CODE ANN. § 74.402(b)(2). As

such, we conclude Barajas satisfied Section 74.402(b)(2).

To determine whether a witness is qualified “on the basis of training or experience,” the

court shall consider “whether, at the time the claim arose or at the time the testimony is given, the

witness: (1) is certified by a licensing agency…or has other substantial training or experience, in

the area of health care relevant to the claim; and (2) is actively practicing health care in rendering

health care services relevant to the claim.” TEX. CIV. PRAC. & REM. CODE ANN. § 74.402(c)

(West 2011). SMC argues Nurse Holguin in not a qualified expert because “[she] is not a licensed

nurse and it is unclear whether she was a licensed nurse when she gave her opinions as her

[curriculum vitae] does not show when she was licensed.” SMC maintains Nurse Holguin’s

curriculum vitae shows she did not have substantial training or experience as a hospital floor nurse

at the time Barajas’s claim arose on March 18, 2011, or on September 9, 2013, at the time she gave

her expert opinion. SMC also advances that Nurse Holguin’s report and curriculum vitae do not

reflect she was actively practicing health care at the time the claim arose or at the time she gave her

report.

Despite SMC’s argument to the contrary, Nurse Holguin’s curriculum vitae clearly

indicates she was certified by a licensing agency on March 18, 2011, at the time Barajas’s claim

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arose as it shows that she is licensed by the Texas Board of Nursing and that her license would

expire on August 31, 2013. Accordingly, Nurse Holguin meets the first prong of section

74.402(c).

Under the second prong of Section 74.402(c), Nurse Holguin must be “actively practicing

health care in rendering health care services relevant to the claim.” Id. § 74.402(c)(2). SMC

contends Nurse Holguin cannot meet the second prong because she was not actively practicing

health care at any relevant time.

Section 74.402(a) defines “practicing health care” as including “(1) training health care

providers in the same field as the defendant health care provider at an accredited educational

institution; or (2) serving as a consulting health care provider and being licensed, certified, or

registered in the same field as the defendant health care provider.” Id. § 74.402(a)(1)-(2).

While nothing in Nurse Holguin’s curriculum vitae or report indicate that she has experience

training health care providers at an accredited education institution, they do show that she is a

licensed, registered nurse, who is serving as a consulting health care provider. In her expert

report, Nurse Holguin states, “I have reviewed the Nurses Notes and other portions of the Medical

Record of ... Barajas…. In order to determine whether the Nursing Care provided to … Barajas

was appropriate on 3-18-2011 when she was being assisted up out of a chair.” Thus, it is clear

Nurse Holguin was serving as a consulting health care provider at the time she gave her testimony

in September 2013.2

Relying on Certified EMS Inc. v. Potts, 355 S.W.3d 683, 690 (Tex.App. – Houston [1st

Dist.] 2011), aff’d, 392 S.W.3d 625 (Tex. 2013), Barajas argues that because Nurse Holguin was a

licensed nurse at the time the claim arose and is a nurse consultant witness, she is sufficiently
2
We note SMC does not dispute Barajas’s statement that Nurse Holguin served as nurse consultant expert witness.
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qualified to be an expert under Section 74.402(a)-(c). In Potts, the appellant objected to a nurse’s

qualifications to render an expert opinion because she failed to state that she actively practiced in a

field requiring her to provide nursing care in a hospital setting. Id. at 690. After looking at the

nurse’s curriculum vitae and report, the appellate court found the trial court did not abuse its

discretion in determining that a nurse was qualified to offer an expert report. Id. The facts in

Potts are distinguishable from the facts in this case.

In Potts, the trial court found no abuse of discretion because the nurse’s curriculum vitae

stated that “she is a ‘Nurse Consultant/Expert Witness’ and a ‘Quality Review Nurse’ for the

Texas Department of Aging and Disability Services,” and both the curriculum vitae and report

showed that “she is licensed as a nurse and holds a number of nursing certifications.” Id. Here,

it is unclear whether Nurse Holguin was licensed at the time she gave her expert testimony

(September 9, 2013), as her curriculum vitae reflects that the expiration date of her nursing license

was August 31, 2013. Additionally, nothing in Nurse Holguin’s curriculum vitae or report reveal

that she served as a consulting health care provider at the time Barajas’s claim arose. As such, we

conclude Nurse Holguin failed to satisfy the second prong of section 74.402(c) and therefore, the

trial court abused its discretion in determining Nurse Holguin was qualified to offer an expert

report pursuant to Section 74.402(b)(3). See TEX. CIV. PRAC. & REM. CODE ANN. § 74.402(b)(3).

Dr. Allen’s Report

Dr. Allen’s curriculum vitae shows that he is a British trained orthopaedic surgeon and is

actively licensed in New Mexico. As part of his medical practice in the United States, Dr. Allen

has, in part, worked as an Orthopaedic Fellow at Children’s Hospital Medical Center and an

Associate in Orthopaedics at Massachusetts General Hospital in Boston. He has served as an

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Instructor in Orthopaedics at Harvard University. He has acted as a consultant for Liberty Mutual

Rehabilitation Center and Eunice Kennedy Shriver Center for Mental Retardation in Boston. He

has worked as an orthopaedic surgeon in various capacities in both the United States and United

Kingdom. His current office is located in Albuquerque.

In his report, Dr. Allen provided the following standard of care:

The standard of care for the floor nurse at Sierra Medical Center is to use assistance
(other personnel) to assist an obese patient back from an unlocked recliner chair to
bed and to lock that chair before the patient attempts to stand up.

The nurse at Sierra Medical Center breached the standard of care by not assuring
the recliner chair was locked before Ms. Barajas attempted to stand at around 1330
on 03/18/2011. The nurse also breached the standard of care by not seeking
assistance of other nurses or aides to assist Ms. Barajas to ambulate from the chair
to the bedside commode as she was an obese, newly postoperative knee patient.

Dr. Allen states his education and experience are relevant to the review of the medical care Barajas

received by nurses at SMC. He further states that:

During the many years of [his] orthopedic surgery practice [he has] evaluated
patients who have fallen after surgery and ha[s] interacted with hospital nursing
staff on prevention of falls by patients before and after surgery, including patients
who are obese.

SMC contends Dr. Allen “fails to meet the requirements to qualify as an expert in this

case” because the four corners of his curriculum vitae and report fail to demonstrate that he is

qualified to opine on the standard of care for hospital floor nurses furnishing post-surgical care to

hospital patients or that he was actively rendering medical care services when the claim arose in

March 2011, or when he offered his opinion in September 2013. Although SMC relies on this

Court’s decision in Love to support their argument, we find Love is distinguishable. In Love, we

held the curricula vitae and reports of two physicians failed to show they were qualified to opine

on hospital administration procedures regarding staffing specialists and transferring patients

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because the curricula vitae and reports contained only one sentence stating that the experts were

familiar with the responsibilities, duties, and expectations a hospital provides to its patients.

Love, 347 S.W.3d at 750-51. We also noted the curricula vitae and reports merely recited that the

doctors were specialists who served on various committees, but failed to demonstrate whether

their experience involved setting hospital policies and procedures, requiring hospitals to staff

certain specialists, or running a hospital. Id. at 751.

Here, the four corners of Dr. Allen’s curriculum vitae and report indicate he is an

orthopaedic surgeon actively licensed in New Mexico, that he has an office in Albuquerque, and

that he has worked as an orthopaedic surgeon in various capacities. Moreover, Dr. Allen states

that during his practice as an orthopaedic surgeon, he has evaluated patients who have fallen after

surgery and that he has interacted with hospital nursing staff on pre- and post-operative fall

prevention of patients, which included obese patients. Thus, unlike the experts in Love, Dr.

Allen’s curriculum vitae and report explain why and how he is qualified to render an opinion on

the applicable standard of care.

SMC also argues Dr. Allen is unqualified to give expert testimony because he is not

actively practicing health care in rendering health care services related to the claim. See TEX.

CIV. PRAC. & REM. CODE ANN. § 74.402(c)(2) (West 2011). As already discussed above,

“practicing health care” includes “(1) training health care providers in the same field as the

defendant health care provider at an accredited educational institution; or (2) serving as a

consulting health care provider and being licensed, certified or registered in the same field as the

defendant health care provider.” Id. § 74.402(a)(1)-(2). It is clear Dr. Allen’s curriculum vitae

reflects he is a licensed orthopaedic surgeon who, in the past, has acted as a consultant health care

14
provider and trained orthopaedic students at Harvard. However, we do not find any indication he

was serving as a consultant health care provider or training health care providers in the same field

at an accredited educational institution at the time Barajas’s claim arose or at the time Dr. Allen

gave his testimony. See Select Specialty Hospital-Houston Ltd. Partnership v. Simmons, No.

01-12-00658-CV, 2013 WL 3877696, at *5 n.2 (Tex.App.—Houston [1st Dist.] Jul 25, 2013, no

pet.) (expert nurse was qualified as her curriculum vitae demonstrated she was currently working

as a nurse consultant).

Accordingly, we find the trial court abused its discretion in determining that Dr. Allen was

qualified to opine on the applicable standard of care and that he was actively practicing health care

at the time the claim arose or his testimony was given as set out in sections 74.402(a) and (c).

Dr. Arredondo’s Report

SMC challenges Dr. Arredondo’s report on the same grounds as Dr. Allen’s report. SMC

contends Dr. Arredondo’s curriculum vitae “fails to provide information on his education,

experience and training that qualifies him to opine on hospital floor nurses assisting hospital

patients post-surgery.” SMC argues Dr. Arredondo is precluded from qualifying as an expert

because he is not actively practicing health care.

In determining whether Dr. Arredondo meets the requirements of Section 74.402(b)(3), we

look at whether he is (1) certified by a licensing agency or has substantial training or experience

relevant to the claim, and (2) whether he is actively practicing health care relevant to the claim.

See TEX. CIV. PRAC. & REM. CODE ANN. § 74.402(c). According to his curriculum vitae, Dr.

Arredondo is licensed by the Texas State Board of Medical Examiners. From 1975 to 2009, Dr.

Arredondo’s private practice was limited to orthopaedic surgery and physical rehabilitation. In

15
his expert report dated August 23, 2013, Dr. Arredondo states that he reviewed Barajas’s case and

was submitting his preliminary report. He goes on to state that he is an orthopaedic surgeon, that

he has been an orthopaedic surgeon since 1975, and that he is board certified by the American

Board of Orthopaedic Surgery. He also states that his education and experience are relevant to

the review of medical care rendered by nurses at SMC to Barajas.

Like Dr. Allen, Dr. Arredondo explains that: “During the many years of [his] orthopedic

surgery practice, [he has] evaluated patients who had falls after surgery. Over the many years of

[his] orthopedic surgery practice, [he has] interacted with hospital floor nurses about prevention of

falls in obese, post-operative patients.” Dr. Arredondo also sets forth the identical standard of

care and explanation of how the standard of care was breached as provided by Dr. Allen in his

expert report.

Dr. Arredondo’s curriculum vitae and report show that he is certified by a licensing

agency, and possesses substantial training or experience relevant to Barajas’s claim. The

curriculum vitae and report also demonstrate Dr. Arredondo is actively practicing health care as he

expressly states “I am an orthopedic surgeon. I have been an orthopedic surgeon since 1975. I

am board certified by the American Board of Orthopaedic Surgery.” Moreover, Dr. Arredondo’s

statement that he has reviewed Barajas’s case and was submitting his preliminary report

establishes he was serving as a consultant at the time he gave his expert testimony. Based on the

four corners of the curriculum vitae and report, we find no abuse of discretion as the trial court

could have reasonably concluded that Dr. Arredondo satisfied both prongs of Section 74.402(c)

and determined that he was qualified as an expert under Section 74.402(b)(3). See TEX. CIV.

PRAC. & REM. CODE ANN. § 74.402(c); Potts, 355 S.W.3d at 690 (finding no abuse of discretion in

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trial court’s determination that nurse was qualified to offer an expert report because her curriculum

vitae stated that “she is a ‘Nurse Consultant/Expert Witness’ and a ‘Quality Review Nurse’ for the

Texas Department of Aging and Disability Services,” and both the curriculum vitae and report

showed that “she is licensed as a nurse and holds a number of nursing certifications”).

CAUSATION

SMC contends the trial court abused its discretion because the proffered expert reports are

conclusory on the issue of causation. SMC also maintains Nurse Holguin’s report is improper

because she, as a non-physician, is not legally qualified to opine on medical causation. We agree

that a nurse is not qualified to opine on medical causation. See TEX. CIV. PRAC. & REM. CODE

ANN. § 74.351(r)(5)(C) (West 2011); Boada, 304 S.W.3d at 543 (finding nurse unqualified to

provide expert opinion on causation).

In response, Barajas maintains Nurse Holguin’s opinion is not on causation, but on the

standard of care and breach of that standard. We agree with Barajas. Nothing in Nurse

Holguin’s report summarizes the causal relationship between the breaches of the applicable

standards of care and the alleged injuries, harms, and damages suffered by Barajas. See TEX. CIV.

PRAC. & REM. CODE ANN. §§ 74.351(r)(6), 74.403(a). Accordingly, SMC’s contention is without

merit. We now address the reports of Drs. Allen and Arredondo to determine whether their

opinions on causation are conclusory.

SMC argues the reports of Drs. Allen and Arredondo do not represent a good faith effort to

comply with the statutory requirements. According to SMC, the opinions of Drs. Allen and

Arredondo are conclusory because “they wholly fail to provide any causal link between the

bending of a knee from sliding down a chair and a right patellar dislocation of the knee diagnosed

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almost two months later.” SMC further argues “[t]he reports…are completely devoid of any

factual statements explaining how bending the knee caused the right patellar dislocation…other

than the conclusion that it did.”

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 this 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 mere provision of some insight into the plaintiff’s

claims does not adequately address causation. Wright, 79 S.W.3d at 53. Under Palacios, an

expert report does not need to conclusively prove the case, however, we cannot infer causation.

The report cannot “merely state conclusions about any of the elements.” Castillo v. August, 248

S.W.3d 874, 883 (Tex.App. – El Paso 2008, no pet.). There are no magic words required to

establish causation. Wright, 79 S.W.3d at 53. However, the expert report must explain the basis

for the causation opinions by linking the expert’s conclusions to the alleged breach. Id.

Drs. Allen and Arredondo’s reports indicate the doctors reviewed Barajas’s medical

records from SMC, Las Palmas Rehab Hospital, Las Palmas Medical Center, Orthopaedic

Surgeons Associates, and Nurse Holguin’s report. The doctors state that in their opinion as

orthopedic surgeons, “the fall that Ms. Barajas suffered” on March 18, 2011 at SMC “was the

proximate cause of the right patellar dislocation” and tearing “that Dr. Hernandez found” in

surgery on May 5, 2011. According to both physicians, the March 18, 2011 fall “resulted in pain

to Ms. Barajas,” the need for right knee repair surgery on May 5, 2011, and “rehabilitation, with

associated medical costs.”

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 In their reports, Drs. Allen and Arredondo provide an “Overview of Medical Care of

[Barajas]” which contains excerpts from Barajas’s medical records, including SMC’s nursing

notes. Both reports note that after having had right total knee replacement surgery, Barajas fell

and bent her newly-operated knee when she was assisted out of an unlocked recliner chair on

March 18, 2011. At that time, it was noted that Barajas was crying. On March 20, 2011, Barajas

was reported to be aching and unsteady. Both expert reports also note that Dr. Hernandez’s

discharge summary dated March 25, 2011, does not state he was informed Barajas had fallen and

bent her newly-operated knee.

In the “Opinions” section of their reports, after setting forth the applicable standard of care,

Drs. Allen and Arredondo state that the SMC nurse breached the standard of care by “not assuring

the recliner chair was locked before Ms. Barajas attempted to stand” and “by not seeking

assistance of other nurses or aides to assist Ms. Barajas to ambulate from the chair to the bedside

commode as she was an obese, newly post-operative knee patient.” Drs. Allen and Arredondo

then reference a note from Dr. Zaltz dated March 29, 2012, in which Dr. Zaltz stated that Barajas

fell down at SMC the day after her right total knee surgery, and noted that the right patellar

dislocation and disruption of the patellar mechanism that was found on May 2, 2011, was the result

of the March 18 fall. Drs. Allen and Arredondo expressly state that they agree with Dr. Zaltz’s

opinion of the cause of Barajas’s right patellar dislocation and that they agree with the statements

made in Nurse Holguin’s report.

We conclude that the reports of Drs. Allen and Arredondo adequately discuss causation so

as to inform SMC of the conduct Barajas has called into question and to provide a basis for the trial

court to conclude that Barajas’s claim has merit. See Palacios, 46 S.W.3d at 879. Drs. Allen and

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Arredondo’s reports on causation are not conclusory. The expert reports state what should have

been done by SMC and what happened as a result of their failure to adhere to the applicable

standard of care. Accordingly, we conclude Drs. Allen and Arredondo’s reports represented an

objective good faith effort to provide a fair summary of the causal relationship between SMC’s

actions and Barajas’s injury. See TEX. CIV. PRAC. & REM. CODE ANN. § 74.351(l); Palacios, 46

S.W.3d at 878-79.

Lastly, SMC contends Drs. Allen and Arredondo’s reports are also conclusory because

they fail to rule out other potential causes of Barajas’s injury. SMC points to Drs. Allen and

Arredondo’s reference to a note in Barajas’s medical record indicating that during rehab therapy

she experienced popping of her right knee. However, as correctly noted by Barajas, nothing in

Section 74.351 requires a preliminary expert report to rule out every possible cause of injury,

harm, or damages. See Baylor Med. Ctr. at Waxahachie, Baylor Health Care Sys. v. Wallace, 278

S.W.3d 552, 562-63 (Tex.App. – Dallas 2009, no pet.); TEX. CIV. PRAC. & REM. CODE ANN. §

74.351(s) (West 2011) (limiting discovery before an expert report and curriculum vitae are filed).

Moreover, a plaintiff need not present evidence in the report as if it were actually litigating the

merits. Wright, 79 S.W.3d at 52. As the Palacios court stated, “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.

The trial court therefore did not abuse its discretion in overruling SMC’s objections

regarding causation and denying its motions to dismiss. Palacios, 46 S.W.3d at 875; Boada, 304

S.W.3d at 533.

Issue One is sustained in part and overruled in part.

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 REMEDY

Because we have concluded that the trial court abused its discretion in overruling the

objections to Nurse Holguin’s and Dr. Allen’s reports on the basis of their respective

qualifications, and thereby, in denying SMC’s motion to dismiss, we remand the case to the trial

court to consider granting the thirty-day extension request by Barajas to cure the deficiencies in

Nurse Holguin’s and Dr. Allen’s reports. See Love, 347 S.W.3d at 757 (after concluding trial

court erred in overruling objections to expert report and in denying hospital’s motion to dismiss,

the appellate court determined the appropriate relief was to remand case to trial court for

consideration of whether deficiencies were curable and to determine whether to grant extension of

time).

CONCLUSION

We reverse the trial court’s judgment as to Nurse Holguin’s and Dr. Allen’s expert reports

and remand for proceedings consistent with this opinion. We affirm the trial court’s judgment as

it pertains to the expert report of Dr. Arredondo.

YVONNE T. RODRIGUEZ, Justice
November 21, 2014

Before McClure, C.J., Rodriguez, J., and Parks, Judge
Parks, Judge, sitting by assignment

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