Navarro Hospital, L.P. D/B/A Navarro Regional Hospital v. Charles Washington and Gwendolyn Washington, Each Individually and as Next Friends of Charles Donell Washington

IN THE
TENTH COURT OF APPEALS

No. 10-13-00248-CV

NAVARRO HOSPITAL, L.P. D/B/A
NAVARRO REGIONAL HOSPITAL,
Appellant
v.

CHARLES WASHINGTON AND GWENDOLYN
WASHINGTON, EACH INDIVIDUALLY AND AS
NEXT FRIENDS OF CHARLES DONELL WASHINGTON,
Appellees

From the 13th District Court
Navarro County, Texas
Trial Court No. D12-21439 CV

MEMORANDUM OPINION

In this appeal, appellant, Navarro Hospital, L.P. d/b/a Navarro Regional

Hospital, complains about the trial court’s denial of its motion to dismiss a health-care

liability claim brought by appellees, Charles Washington and Gwendolyn Washington,

each individually and as next friends of Charles Donell Washington (“Donell”). In two

issues, appellant challenges appellees’ expert reports as not constituting a good faith
effort. See TEX. CIV. PRAC. & REM. CODE ANN. § 74.351(r)(6) (West Supp. 2013). We

affirm.

I. BACKGROUND

In their original petition, appellees asserted health-care liability claims against

appellant and two doctors, Douglas B. Hibbs, M.D. and James Goodman, M.D., among

others.1 In particular, appellees alleged that Donell was an accomplished musician

“who had a full and active life” when he was admitted to Navarro Regional Hospital on

July 13, 2010. At the time, Donell complained of difficulty breathing, dizziness, nausea,

vomiting, and pain in his throat and right ear. Appellees noted that Donell appeared

depressed and had difficulty with verbal expression when he was admitted to the

hospital. Nevertheless, Donell was stable at that time. Dr. Hibbs was the attending

physician, and he ordered that Donell be given IV fluids, insulin, and medications to

address his agitation and restlessness.

Donell was taken to the ICU, and he remained there the following day. Doctors

noted that Donell became increasingly agitated and unresponsive to verbal stimuli.

They also observed increases in Donell’s blood pressure and heart rate.

At approximately 2:25 a.m. on July 15, 2010, Donell’s heart rate and oxygen

saturation dropped suddenly, and he was placed on 100% oxygen via mask. Five

1 Drs. Hibbs and Goodman are not parties to this appeal.

Navarro Hospital, L.P. v. Washington Page 2
minutes later, Donell’s heart rate decreased to 39, and a Code Blue was called. Doctors

commenced chest compressions, and an ambubag was used to ventilate Donell.

Drs. Hibbs and Goodman tried multiple times to intubate Donell, but they were

unsuccessful in their attempts. According to appellees, no one tried to use the

“‘difficult airway’ equipment that is standard and sometimes necessary to achieve

intubation of a patient such as Donell.” Appellees further asserted that this “equipment

was unavailable or was otherwise not brought to the room. The responsibility for

having such equipment and assuring hospital staff bring it to the room rests with the

corporate defendants.”

Approximately forty-five minutes after the Code Blue was called, a Dr. Stevener

arrived and successfully intubated Donell. However, by the time that he was intubated,

Donell suffered extensive and permanent brain damage.2 Appellees argued that

Donell’s brain damage was caused by “the needless delay in getting Donell ventilated.”

Based on these facts, appellees asserted negligence and gross-negligence causes

of action against Drs. Hibbs and Goodman and appellant, among others. With respect

to appellant, appellees contended that appellant “failed to have the difficult airway

equipment readily available, and failed to have and/or enforce adequate policies related

to such equipment. These failures resulted in Donell needlessly suffering severe,

permanent brain damage.” Appellant responded by filing an original answer denying

2At the hearing on appellant’s motion to dismiss, counsel for appellees stated that Donell is now
deceased.

Navarro Hospital, L.P. v. Washington Page 3
each of the allegations contained in appellees’ original petition and asserting special

exceptions and numerous affirmative defenses.

Appellees subsequently filed expert reports from Edward Panacek, M.D. and

Arthur S. Shorr, MBA, FACHE. Appellant filed objections to both expert reports and a

motion to dismiss appellees’ claims. Thereafter, the trial court conducted a hearing on

appellant’s motion to dismiss and ultimately denied the motion. The trial court also

signed an order deeming appellees’ expert reports adequate. This interlocutory appeal

followed. See id. § 51.014(a)(9) (West Supp. 2013) (permitting the appeal of an

interlocutory order from a district court that “denies all or part of the relief sought by a

motion under Section 74.351(b)”).

II. STANDARD OF REVIEW & APPLICABLE LAW

We review a trial court’s denial of a motion to dismiss under section 74.351 for an

abuse of discretion. Bowie Mem’l Hosp. v. Wright, 79 S.W.3d 48, 52 (Tex. 2002); Am.

Transitional Care Ctrs. of Tex., Inc. v. Palacios, 46 S.W.3d 873, 875 (Tex. 2001). A trial court

abuses its discretion if it acts in an arbitrary or unreasonable manner or without

reference to any guiding rules or principles. Walker v. Gutierrez, 111 S.W.3d 56, 62 (Tex.

2003); Downer v. Aquamarine Operators, Inc., 701 S.W.2d 238, 241-42 (Tex. 1985).

Section 74.351 of the Texas Civil Practice and Remedies Code provides that

within 120 days of filing a health-care liability claim, a claimant must serve a

curriculum vita and one or more expert reports regarding every defendant against

Navarro Hospital, L.P. v. Washington Page 4
whom a health-care claim is asserted. See TEX. CIV. PRAC. & REM. CODE ANN. § 74.351(a);

see also Hillcrest Baptist Med. Ctr. v. Payne, No. 10-11-00191-CV, 2011 Tex. App. LEXIS

9182, at *6 (Tex. App.—Waco Nov. 16, 2011, pet. denied) (mem. op.). The expert report

must contain,

a fair summary of the expert’s opinions as of the date of the report
regarding the applicable standards of care, the manner in which the care
rendered by the physician or health care provider failed to meet the
standards, and the causal relationship between that failure and the injury,
harm, or damages claimed.

TEX. CIV. PRAC. & REM. CODE ANN. § 74.351(r)(6); see Palacios, 46 S.W.3d at 877. If a

plaintiff timely files an expert report and the defendant moves to dismiss because of the

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

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

the definition of an expert report in [section 74.351(r)(6)].” Wright, 79 S.W.3d at 51-52;

see Palacios, 46 S.W.3d at 878.

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. Wright, 79 S.W.3d at 52-53 (noting that “magical

words” are not necessary to provide a fair summary of the standard of care, breach of

that standard, and causation); see 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

Navarro Hospital, L.P. v. Washington Page 5
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.”). The trial court should

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

should be contained within the document’s four corners. Wright, 79 S.W.3d at 52 (citing

Palacios, 46 S.W.3d at 878).

An expert report, however, does not need to marshal all of the plaintiff’s proof; it

may be informal, and the information presented need not meet the requirements of

evidence offered in summary-judgment proceedings or in trial. See Spitzer v. Berry, 247

S.W.3d 747, 750 (Tex. App.—Tyler 2008, pet. denied); see also Bakhtari v. Estate of Dumas,

317 S.W.3d 486, 496 (Tex. App.—Dallas 2010, no pet.). Moreover, “[e]xpert reports can

be considered together in determining whether the plaintiff in a health[-]care liability

action has provided adequate expert opinion regarding the standard of care, breach,

and causation.” Salais v. Tex. Dep’t of Aging & Disability Servs., 323 S.W.3d 527, 534 (Tex.

App.—Waco 2010, pet. denied); see Walgreen Co. v. Hieger, 243 S.W.3d 183, 186 n.2 (Tex.

App.—Houston [14th Dist.] 2007, pet. denied); see also TEX. CIV. PRAC. & REM. CODE

ANN. § 74.351(i).

III. APPELLEES’ EXPERT REPORTS

In its first issue, appellant contends that the trial court erred in denying its

motion to dismiss because appellees’ expert reports failed to establish the standard of

care and alleged departures from the standard of care. More specifically, appellant

Navarro Hospital, L.P. v. Washington Page 6
argues that: (1) Dr. Panacek and Shorr are not qualified to render opinions as to the

standards of care and the alleged departures from the standards of care; (2) Dr.

Panacek’s report fails to adequately set forth the applicable standard of care; (3) Dr.

Panacek’s opinions about the breach of the standard of care are inadequate and based

on speculation and conjecture; and (4) Shorr’s report fails to specify the applicable

standard of care and breach. In its second issue, appellant asserts that Dr. Panacek and

Shorr are unqualified to opine as to causation and that their reports do not adequately

explain the causation element.

a. The Qualifications of Experts in Health-Care Liability Claims

Section 74.351(r)(5) of the Texas Civil Practice and Remedies Code provides that

an “expert” in a health-care liability claim is:

(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 . . . .

TEX. CIV. PRAC. & REM. CODE ANN. § 74.351(r)(5)(B)-(C). Section 74.402 states the

following, in pertinent part:

(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

Navarro Hospital, L.P. v. Washington Page 7
 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;

(2) 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; 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.

Id. § 74.402(b)-(c) (West 2011). Moreover, section 74.402(a) describes the following as

“practicing health care”:

(1) training health care providers in the same field as the defendant health
care provider at an accredited education institutional; 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.
Navarro Hospital, L.P. v. Washington Page 8
Id. § 74.402(a).

In light of the foregoing statutes, the Texas Supreme Court has stated that a

professional need not be employed in the particular field about which he is testifying so

long as he can demonstrate that he has knowledge, skill, experience, training, or

education regarding the specific issue before the court that would qualify him to give

an opinion on that subject. Broders v. Heise, 924 S.W.2d 148, 153-54 (Tex. 1996); see TEX.

CIV. PRAC. & REM. CODE ANN. § 74.402 (West 2011) (listing the requirements for an

expert to be considered qualified in a suit against a health-care provider); see also TEX. R.

EVID. 702 (allowing experts to testify based on their “knowledge, skill, experience,

training, or education”). “[W]hen a party can show that a subject is substantially

developed in more than one field, testimony can come from a qualified expert in any of

those fields.” Broders, 924 S.W.2d at 154.

Qualifications of an expert must appear in the expert reports and curriculum

vitae and cannot be inferred. See Salais, 323 S.W.3d at 536; see also Estorque v. Schafer, 302

S.W.3d 19, 26 (Tex. App.—Fort Worth 2009, no pet.) (citing Olveda v. Sepulveda, 141

S.W.3d 679, 683 (Tex. App.—San Antonio 2004, pet. denied)). Analysis of the expert’s

qualifications under section 74.351 is limited to the four corners of the expert reports

and the expert’s curriculum vitae. See TEX. CIV. PRAC. & REM. CODE ANN. § 74.351(a); In

re McAllen Med. Ctr., Inc., 275 S.W.3d 458, 463 (Tex. 2008) (considering an expert’s

curriculum vita and report in determining whether the expert was qualified to opine
Navarro Hospital, L.P. v. Washington Page 9
about plaintiff’s negligent-credentialing cause of action); Polone v. Shearer, 287 S.W.3d

229, 238 (Tex. App.—Fort Worth 2009, no pet.); see also Lewis v. Funderburk, No. 10-05-

00197-CV, 2008 Tex. App. LEXIS 9761, at *6 (Tex. App.—Waco Dec. 31, 2008, pet.

denied) (mem. op.).

Merely being a physician is insufficient to qualify as a medical expert. See

Broders, 924 S.W.2d at 152; see also Hagedorn v. Tisdale, 73 S.W.3d 341, 350 (Tex. App.—

Amarillo 2002, no pet.) (“Every licensed doctor is not automatically qualified to testify

as an expert on every medical question.”). But we defer to the trial court on close calls

concerning an expert’s qualifications. See Larson v. Downing, 197 S.W.3d 303, 304-05

(Tex. 2006); see also Broders, 924 S.W.2d at 151 (“The qualification of a witness as an

expert is within the trial court’s discretion. We do not disturb the trial court’s discretion

absent clear abuse.”).

1. Dr. Panacek’s Qualifications

On appeal, appellant complains that Dr. Panacek is not qualified to render an

opinion in this case because he failed to explain his qualifications for rendering an

opinion about the equipment which a hospital should make available in ICU and ER

units, as well as “protocols, policies and procedures to assure that medical personnel

and staff are aware of and trained to utilize” such equipment. As noted above, this case

involved a patient that required advanced airway management and equipment in

Navarro Hospital, L.P. v. Washington Page 10
response to a Code Blue. In the qualifications section of his expert report, Dr. Panacek

stated the following:

I am a physician licensed to practice medicine by the state of California. I
received the MD degree at the University of South Alabama College of
Medicine in Mobile AL in 1981. I am a Diplomate of the American Board
of Internal Medicine, the National Board of Medical Examiners, the
American Board of Emergency Medicine and am a Diplomate in Critical
Care Medicine. I am an instructor in Advanced Cardiac Life Support, and
Advanced Trauma Life Support. I am a past Program Director of the
Emergency Medicine Residency program at the University of California
Davis Medical Center in Sacramento CA. I am a Professor of Emergency
Medicine at that same facility. My CV is attached to this report and is
incorporated by reference. I have extensive experience in establishing and
maintaining airways in patients, responding to Code Blues, and using
standards of care related to airway management during Code Blue
situations in the hospital setting, and these standards of care are common
to internal medicine, emergency medicine, and critical care medicine. I
am familiar with the medical treatment of a patient similar to Charles
“Donell” Washington in 2010 and am qualified by training and experience
to render opinions regarding the appropriateness of his medical
treatment.

The language above demonstrates that Dr. Panacek is a practicing doctor with a

medical license from California and describes his expertise in critical-care and

emergency medicine, especially with regard to airway management and responding to

Code Blue situations—the type of expertise involved in the claims asserted in this case.

Additionally, Dr. Panacek opines that he is familiar with the medical treatment of a

patient similarly situated as Donell in this case. As such, Dr. Panacek asserts that he is

qualified to render his opinion in his expert report based on experience, as well as

knowledge, skill, and education. Other language in his expert report, including his

Navarro Hospital, L.P. v. Washington Page 11
description of the standards of care involved in this case, indicates that he is familiar

with the actions and equipment necessary for the advanced airway management

involved here. Therefore, based on the language contained in Dr. Panacek’s expert

report, we cannot say that the trial court clearly abused its discretion by implicitly

concluding that Dr. Panacek is qualified to give an opinion on the subject matter

involved in this case. See TEX. CIV. PRAC. & REM. CODE ANN. § 74.402; see also Broders,

924 S.W.2d at 153.

2. Shorr’s Qualifications

Appellant also contends that Shorr is unqualified to opine on the standard of

care and causation in this case. In his report, Shorr states that he is Board Certified in

Hospital and Healthcare Administration and is a Fellow of the American College of

Healthcare Executives. He further states that he has worked as a healthcare

administrator for forty years, of which includes a sixteen-year stint in senior executive

management of acute-care hospitals. Additionally, Shorr recounts numerous executive

and academic positions he has held in the healthcare industry. Shorr also notes that he

has published numerous articles in peer-reviewed professional healthcare-

administration journals and that he has authored a textbook on administrative issues in

the healthcare industry. Furthermore, Shorr’s report reflects that he has been a provider

of consulting services to physicians and hospitals, “first as Arthur S. Shorr & Associates,

Navarro Hospital, L.P. v. Washington Page 12
Inc.: Consultants to Healthcare Providers, and currently as Shorr Healthcare

Consulting.”

Based on Shorr’s extensive experience in healthcare administration, and given

that Shorr is Board Certified in Hospital and Healthcare Administration and provides

consulting services to hospitals regarding administration services, we conclude that

Shorr is qualified to opine as an expert as to the standards of care and the

corresponding departures from the standards of care involving appellant’s alleged

failure to have difficult airway equipment available and appropriate policies in place to

ensure that such equipment is available to treating physicians and that hospital

personnel are trained how to use such equipment. See id. § 74.402(a)-(c); see also TEX R.

EVID. 702; Broders, 924 S.W.2d at 153-54. However, we do agree with appellant that

Shorr, a non-physician, is not qualified to opine as to causation in this matter. See id. §

74.403(a) (West 2011) (stating that only a physician is qualified to render causation

opinions in health-care liability claims); see also Petty v. Churner, 310 S.W.3d 131, 134

(Tex. App.—Dallas 2010, no pet.); Hieger, 243 S.W.3d at 186 n.2. We will now address

the adequacy of the expert reports.

b. Adequacy of the Expert Reports

With regard to the standard of care applicable to appellant, Dr. Panacek stated

the following:

Airway management is one of the most critically important skills for an
emergency or critical care practitioner to master because failure to secure
Navarro Hospital, L.P. v. Washington Page 13
 an adequate airway can quickly lead to death or disability. Endotracheal
intubation using rapid sequence intubation (RSI) is the cornerstone of
emergency airway management.

....

The relevant standards of care for hospitals treating Donell Washington
during the admission of July 13, 2010 are such that the hospital must have
specialized intubation equipment immediately available in all ICU and ER
units, as well as available to each code blue. Such equipment includes
endotracheal tubes of various sizes, a laryngoscope with blades of various
sizes, Laryngeal Mask Airways, and naso- and oro-pharyngeal airways.
Difficult airway equipment must be quickly available as well. Further,
minimal standards of care require that the hospital have and/or enforce
adequate protocols, or policies and procedures to assure that medical
personnel and staff are aware of and trained to utilize this specialized
intubation equipment during code situations so that no patient goes
without oxygen for an inordinate amount of time.

Thereafter, Dr. Panacek described how appellant departed from the applicable

standard of care and caused Donell’s injuries. Specifically, Dr. Panacek noted that

appellant’s actions,

fell below applicable standards of care by failing to have specialized
intubation equipment immediately available for use on Donell
Washington. Further, they fell below applicable standards of care by
failing to have, or failing to enforce, protocols, polices, and procedures to
assure that medical personnel and staff were aware and trained to utilize
specialized intubation equipment during code situations. Had such
equipment been available it more likely than not would have been used
on Donell Washington at the beginning of his Code Blue.

And as a result of appellant’s alleged departures from the applicable standards of care,

Dr. Panacek stated the following, among other things:

Had applicable standards of care been used on Donnell Washington, the
hospital would have had the equipment identified above in a crash cart on
Navarro Hospital, L.P. v. Washington Page 14
 the unit where Donell Washington was located. When the Code Blue was
called the crash cart would have been rolled into the room very quickly by
the nurses as the Code Team was arriving. Drs. Goodman and Hibbs
would have taken steps to assure that an adequate airway was established
and maintained during the Code Blue. These physicians would have
intubated Donell Washington as soon as possible after they arrived at
Washington’s bedside by taking a laryngoscope from the crash cart,
putting the appropriate blade on it, and then putting the blade into the
patient’s mouth and into his larynx, visualizing his vocal cords and
inserting the plastic endotracheal tube into the patient’s throat. . . . At that
point, these physicians should have gone to an LMA or naso- or oro-
pharyngeal mask. An LMA is simply a tube with an inflatable mask on
one end that is inserted into the patient’s throat to achieve a seal over the
tracheal opening so that oxygen can be forced into the patient’s lungs.
Almost certainly, these physicians would have been able to adequately
ventilate this patient at that point. If for some reason, they could not
accomplish this, then the physicians should have used a scalpel and made
an incision in the anterior surface of Washington’s neck, identified and cut
through the cricothyroid membrane and intubated the patient through
this opening. At this point, Washington would have been ventilated
adequately until a definitive airway could be established. Brain damage
due to lack of oxygen would more likely than not have been avoided.

In order to comply with applicable standards of care,
CMS/Community Health Systems d/b/a Navarro Regional Hospital and
the operator of that hospital, which I understand to be Quorum Health
Resources, would have had specialized intubation equipment, to
specifically include the intubation equipment listed above, immediately
available in the ICU unit where Mr. Washington was being maintained at
the time the Code Blue was called. Moreover, Navarro Regional Hospital
should have had and/or enforced protocols or policies and procedures
assuring that the medical personnel and staff (including Drs. Goodman
and Hibbs) were aware of and trained to utilize this specialized intubation
equipment during a Code Blue. Had this occurred, then all of the
equipment listed above would have been physically present in Donell
Washington’s room and available for use by Drs. Goodman and Hibbs.
Unfortunately, the hospital failed to take these actions, thereby
proximately causing Mr. Washington’s injury.

Navarro Hospital, L.P. v. Washington Page 15
 It is my opinion beyond a reasonable medical probability, based on
my training and education and experience, that the negligent acts of Dr.
Goodman, Dr. Hibbs, and Navarro Regional Hospital . . . outlined above
were each a proximate cause of Mr. Washington’s profound brain damage
and related sequelae. It is well accepted in the medical community at
large that the brain requires a constant flow of oxygen to function
normally. When the flow of oxygen is cut-off—and in a patient who is
unconscious and not breathing—the blood oxygen levels drop. At a
certain point, the low oxygen state causes the cells of the body to go into
anaerobic respiration, rather than aerobic respiration based on the oxygen
supply. This produces lactic acid as a by-product of anaerobic respiration.
The lactic acid builds up and brain cells begin to die. A hypoxic-anoxic
injury occurs when the flow of blood is disrupted, essentially starving the
brain and preventing it from performing vital biomechanical processes.
With complete cessation of oxygenation, the cells of the brain begin to die
in approximately 4 to 6 minutes. Brain-cell death is not reversible. When
oxygen deprivation is severe enough, a profound hypoxic-anoxic brain
injury results via this mechanism of injury. This is what happened to
Donell Washington as a result of his being without an adequate airway for
approximately 46 minutes during the Code Blue. Subsequent workup
confirmed this diagnosis of hypoxic-anoxic encephalopathy. Specifically,
an MRI on July 16, 2010 showed extensive cortical and deep gray
abnormalities, and overall configuration and findings suspicious for
hypoxic ischemic injury or global anoxic event. On July 28, 2010, CT of
Mr. Washington’s head showed abnormalities involving bilateral
lentiform and caudate nuclei consistent with anoxic brain injury, with
subacute petechial hemorrhage. EEG findings were deemed to show a
pattern that was “consistent with our diagnosis of hypoxic
encephalopathy.” The brain damage is permanent and quite severe.

Shorr, on the other hand, mentioned that appellant is directly responsible for

providing safe and effective healthcare services and are liable for the negligence of Drs.

Goodman and Hibbs. Shorr stated that the relevant standards of care for hospitals are

to ensure that its staff are competent and adequately trained to appropriately manage

Donell’s airway during a Code situation and that it should have and/or enforce

Navarro Hospital, L.P. v. Washington Page 16
protocols, policies, or procedures to assure that medical personnel and staff “are aware

of and trained to utilize this specialized intubation equipment during code situations so

that no patient goes without oxygen for an inordinate amount of time.” In support of

his opinion on the standard of care, Shorr cites to numerous regulations and

accreditation standards for hospitals, including those pertaining to hospital

accountability for patient care, hospital requirements to have supplies and equipment

needed for patient care readily available, duties of hospital staff to recognize and

respond to changes in a patient’s condition, and duties of the hospital to ensure that all

staff are competent to carry out patient treatment.

After reviewing the four corners of the proffered expert reports, we conclude

that the reports inform appellant of the specific conduct that appellees have called into

question—appellant’s failure to: (1) have specialized intubation equipment readily

available at the time the Code Blue was called; and (2) have or enforce protocols,

policies, or procedures for ensuring that personnel are aware of and trained to utilize

such equipment—and provide the trial court with a basis to conclude that the claims

have merit. See TEX. CIV. PRAC. & REM. CODE ANN. § 74.351(r)(6); Wright, 79 S.W.3d at

52-53; Palacios, 46 S.W.3d at 879; see also Salais, 323 S.W.3d at 534; Hieger, 243 S.W.3d at

186 n.2. And to the extent that appellant complains that certain aspects of the expert

reports are deficient, we emphasize that the reports need not marshal all of appellees’

Navarro Hospital, L.P. v. Washington Page 17
proof or meet the same requirements as evidence offered in summary-judgment

proceedings or in trial. See Bakhtari, 317 S.W.3d at 496; see also Spitzer, 247 S.W.3d at 750.

Based on the foregoing, we cannot say that the trial court acted in an arbitrary or

unreasonable manner or without reference to guiding rules and principles when it

denied appellant’s motion to dismiss. See Walker, 111 S.W.3d at 62; see also Downer, 701

S.W.2d at 241-42. Accordingly, we cannot conclude that the trial court abused its

discretion in denying appellant’s motion to dismiss. See Wright, 79 S.W.3d at 52; see also

Palacios, 46 S.W.3d at 875. We overrule both of appellant’s issues on appeal.

IV. CONCLUSION

Having overruled both of appellant’s issues on appeal, we affirm the judgment

of the trial court.

AL SCOGGINS
Justice

Before Chief Justice Gray,
Justice Davis, and
Justice Scoggins
Affirmed
Opinion delivered and filed May 8, 2014
[CV06]

Navarro Hospital, L.P. v. Washington Page 18