Methodist Healthcare System of San Antonio, Ltd., L.L.P. D/B/A Methodist Children's Hospital of South Texas, Robert Gonzalez, and Rodney Sheffield v. Emily Belden

Fourth Court of Appeals
San Antonio, Texas
MEMORANDUM OPINION
No. 04-14-00215-CV

METHODIST HEALTHCARE SYSTEM OF SAN ANTONIO, LTD., L.L.P.
d/b/a Methodist Children’s Hospital of South Texas, Robert Gonzalez, Rodney Sheffield,
Jatin N. Patel, D.O., and Pediatrix Medical Services, Inc.
Appellants

v.

Emily BELDEN,
Appellee

From the 288th Judicial District Court, Bexar County, Texas
Trial Court No. 2012-CI-18164
Honorable David A. Canales, Judge Presiding

Opinion by: Catherine Stone, Chief Justice

Sitting: Catherine Stone, Chief Justice
Marialyn Barnard, Justice
Patricia O. Alvarez, Justice

Delivered and Filed: October 29, 2014

AFFIRMED

Methodist Healthcare System of San Antonio, Ltd., L.L.P. d/b/a Methodist Children’s

Hospital of South Texas, Robert Gonzalez, Rodney Sheffield, Jatin N. Patel, D.O., and Pediatrix

Medical Services, Inc. appeal the trial court’s order denying their motions to dismiss which

challenged the adequacy of the expert reports served in the underlying cause alleging health care

liability claims. Methodist contends the claims against it and its employees, Robert Gonzalez and

Rodney Sheffield, should be dismissed because the experts were not qualified and their opinions
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were speculative or conclusory. Similarly, Pediatrix Medical Services, Inc. and its employee Jatin

N. Patel, D.O. contend the expert reports against them were deficient because the experts were not

qualified to testify regarding causation and their opinions on causation were conclusory. We

overrule these contentions and affirm the trial court’s order.

BACKGROUND

Emily Belden filed the underlying health care liability claims individually and on behalf of

her son, W.B., who sustained severe brain damage as a result of a cardiac arrest he experienced

while recovering from a surgical repair of a congenital heart defect. W.B. was four-months-old at

the time of the surgery.

With regard to Dr. Patel and his employer Pediatrix, Belden’s petition alleged that Dr. Patel

“breached the standard of care by failing in the following duties, which prevented the appropriate

medical intervention from taking place and contributed to [W.B.’s] injuries: (1) failing to cool the

patient to slow the rate of JET; (2) using Esmolol and increasing the dose at an unsafe rate to an

inappropriate dose, in a dangerous manner; and (3) acquiescing in and continuing the course of

treatment being followed by Drs. Lopez and Tenner, 1 even though this was below the standard of

care and represented a departure from his recommendations.” With regard to Gonzalez and

Sheffield, and their employer Methodist, Belden’s petition alleged that they “breached the standard

of care by failing in the following duties, which contributed to [W.B.’s] injuries: (1) failing to

provide, within thirty minutes of being requested, an ECMO 2 team, causing a delay in [W.B.]

being connected to the ECMO. This may, as the evidence will show, be a result of one or more of

1
Although Drs. Lopez and Tenner, and their employer Children’s Critical Care Specialists, PLLC, are also defendants
in the underlying cause, they are not parties to this appeal.
2
“ECMO” is an acronym for extracorporeal membrane oxygenation. An ECMO machine pulls the patient’s blood
and removes carbon dioxide and infuses oxygen before returning the blood to the patient.

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the following: (a) failing to timely notify the ECMO team; and/or, (b) the ECMO team’s failure to

respond in a timely manner.”

The trial court found Belden’s initial expert reports to be deficient, but granted Belden

thirty days to cure the deficiencies. After Belden filed new and supplemental reports, the trial

court denied the subsequent motions to dismiss.

STANDARD OF REVIEW AND EXPERT REPORT REQUIREMENTS

We review the trial court’s decision regarding the adequacy of an expert report under an

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

Stephanie M. Philipp, P.A. v. McCreedy, 298 S.W.3d 682, 686 (Tex. App.—San Antonio 2009,

no pet.). An abuse of discretion occurs when a trial court acts arbitrarily or unreasonably and

without reference to any guiding rules or principles. Bowie Mem’l Hosp., 79 S.W.3d at 52;

McCreedy, 298 S.W.3d at 686.

A plaintiff asserting a health care liability claim is required to file an expert report

containing “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.” TEX. CIV. PRAC. & REM. CODE ANN. § 74.351(r)(6) (West Supp. 2014). To

comply with the statutory requirements, the report need only 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.

Am. Transitional Care Ctrs. of Tex., Inc. v. Palacios, 46 S.W.3d 873, 879 (Tex. 2001). The expert

report is required to be adequate with regard to only one liability theory within a cause of action

in order for the claimant to proceed with the entire cause of action against the defendant. Certified

EMS, Inc. v. Potts, 392 S.W.3d 625, 631 (Tex. 2013); cf. Pedroza v. Toscano, 293 S.W.3d 665,
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669 (Tex. App.—San Antonio 2009, no pet.) (testifying expert not limited to acts or theories of

negligence mentioned in 74.351 report).

METHODIST: STANDARD OF CARE AND BREACH

Methodist, Gonzalez, and Sheffield (collectively “Methodist”) contend four experts, a

nurse and three doctors, were not qualified to opine on: (1) the standards of care applicable to

ECMO personnel; and (2) the failure to meet those standards. With regard to a fifth expert, Dr.

Cory M. Alwardt, PhD, CCP, Methodist contends his opinions regarding the alleged breach of the

standard of care are conclusory and speculative.

A. Qualifications on Standard of Care and Breach

An expert is qualified to testify if the expert has the 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.” Broders v. Heise, 924 S.W.2d 148, 153 (Tex. 1996). In this

case, the specific issue before the court with regard to Methodist was the alleged failure of the

ECMO team to respond in a timely manner. Thus, to be qualified to testify regarding the applicable

standard of care on this issue, the expert reports would need to show within their four corners that

the expert is qualified to render an opinion on the response time required of an ordinarily prudent

hospital. See Tenet Hospitals Ltd. v. Love, 347 S.W.3d 743, 750-51 (Tex. App.—El Paso 2011,

no pet.) (noting working in a hospital setting and serving on hospital committees does not

demonstrate expert is qualified to render opinion on policies and procedures established by hospital

in the absence of information that the expert had been involved in determining type of hospital

policies and procedures in question); Hendrick Med. Ctr. v. Conger, 298 S.W.3d 784, 788 (Tex.

App.—Eastland 2009, no pet.) (noting expert report as to hospital must show expert’s knowledge,

training, or experience concerning the applicable standard of care involving the formulation of

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hospital policies and procedures and what ordinarily prudent hospital would do under same or

similar circumstances).

With regard to the standard of care involving an ECMO team’s response time, Belden

argues that Dr. Alwardt and the nurse, Loyne Jacobs McCullough, MS, RN, CNOR, were qualified

to testify regarding the standard of care. Methodist does not challenge Dr. Alwardt’s

qualifications; 3 therefore, we turn our attention to Nurse McCullough’s qualifications.

In her report, Nurse McCullough states, “I have managed staffing issues at Brackenridge

Hospital, dealing with on-call issues and St. David’s Hospital surgery center. As noted in my

resume, I have experience with policy/procedures not only in the perioperative setting but with

establishing Rules and Regulations for the (Texas Department of Health) Texas Health and Human

Services.” Nurse McCullough’s CV shows: (1) from 2002 to the present, she has contracted with

surgery centers “doing audits rewrite/write policies and procedures;” (2) from 1990 to 1999, Nurse

McCullough was the nurse manager at St. David Medical Center where she was responsible for

“coordinating all aspects of the surgery center” and for the “policy/procedure committee;” and (3)

from 1981 to 1990, Nurse McCullough was the inservice coordinator at Bailey Square Surgical

Center where she “[o]riented all new employees, providing all teaching, wrote and enforced

policies.”

Methodist contends that Nurse McCullough was required to show experience directly with

ECMO teams; however, Nurse McCullough states “the standard of care is that any hospital staff –

RN, OR Tech, Perfusion Tech, whatever the title-, when they are on call for the hospital/facility

that the person called be at the hospital within thirty (30) minutes from the time they are called.”

3
Dr. Alwardt’s report states that he has been “an ECMO coordinator for the previous 2 years, and the prior 3 years I
was the supervisor to the ECMO coordinator. In these roles, I have been responsible for maintaining policies and
procedures of staffing for ECMO and have dealt with on-call issues.”

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Because the standard of care is applicable to all on-call personnel, and Nurse McCullough has

experience in managing hospital staffing issues, dealing with on-call issues, and the writing and

teaching of policies and procedures for hospitals, the report is sufficient to show that Nurse

McCullough was qualified to testify regarding the applicable standard of care and its breach.

Accordingly, we hold that the trial court did not abuse its discretion in determining Dr.

Alwardt and Nurse McCullough were qualified to testify regarding the standard of care applicable

to Methodist and the manner in which the care rendered by Methodist failed to meet that standard.

B. Speculative or Conclusory Opinions on Breach

Methodist does not challenge the standard of care set forth in the expert reports. The

standard of care requires that on-call staff arrive at the patient’s bedside within thirty minutes from

the time they are called. Methodist contends that the experts’ opinions regarding the breach of the

applicable standard of care are speculative or conclusory because they state Gonzalez and Sheffield

were not at W.B.’s bedside within thirty minutes; however, they provide no factual support for this

conclusion or the factual support that is provided is speculative.

“[L]iability in a medical malpractice suit cannot be made to turn upon speculation or

conjecture.” Hutchinson v. Montemayor, 144 S.W.3d 614, 618 (Tex. App.—San Antonio 2004,

no pet.). An opinion is speculative if an expert’s opinion is not supported by the established facts

but only by an assumption regarding the underlying facts. See Cooper v. Arizpe, No. 04-07-00734-

CV, 2008 WL 940490, at *3 (Tex. App.—San Antonio Apr. 9, 2008, pet. denied) (mem. op.)

(citing Murphy v. Mendoza, 234 S.W.3d 23, 28 (Tex. App.—El Paso 2007, no pet.)). Moreover,

an expert must explain the basis of his statements and link his conclusions to the facts in order for

his opinions not to be conclusory. Jelinek v. Casas, 328 S.W.3d 526, 539 (Tex. 2010).

Methodist contends the expert reports either conclusively state that Gonzalez and Sheffield

did not arrive at W.B.’s bedside within thirty minutes or rely on speculation regarding the time
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Gonzalez and Sheffield were paged by the hospital. Nurse McCullough’s report states that the

code was initiated at 18:38, and the surgeon was called thirty minutes into the code which would

be 19:08. Her report further states:

There is no documentation that specifically states that the OR staff, including the
perfusionists, were also called at this time, but from experience there would be no
point in having the surgeon come if there were no OR staff to assist him should he
need to do surgery of any sort.
The cardiovascular surgeon, Dr. Kupferschmid arrived at the bedside at 19:25,
which took him 20 to 25 minutes. An OR staff person went to the bedside scrubbed
in to assist the surgeon prepare for ECMO (extracorporeal membrane oxygenation).
The surgeon waited 28 minutes for the OR perfusionists to arrive to assist the
surgeon in placing the patient on ECMO.

Nurse McCullough further refers, however, to the surgeon’s note which stated that he was called

at “7PM” and that “the ECMO team was called prior to his being called.” Nurse McCullough

notes that Gonzalez and Sheffield did not arrive at the bedside until 19:53 or 7:53.

We conclude Nurse McCullough’s report is neither speculative nor conclusory regarding

Methodist’s breach of the standard of care. Nurse McCullough links her conclusion that Gonzalez

and Sheffield failed to arrive at W.B.’s bedside within thirty minutes to the factual timeline

provided in her report. Moreover, the surgeon’s note provides the factual basis to support Nurse

McCullough’s understanding that Gonzalez and Sheffield were called at substantially the same

time as the surgeon, or at least by 19:22 or 7:22, which would be more than thirty minutes before

they arrived at W.B.’s bedside at 19:53 or 7:53. Although Methodist contends the surgeon’s note

regarding the time the ECMO team was called is his “own speculation,” nothing in the record

supports Methodist’s assumption that the surgeon’s note is speculation. As the Texas Supreme

Court recently noted, “an expert report does not require litigation-ready evidence” and “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.” Potts, 392 S.W.3d at 630-31. In this case, the

statement in the surgeon’s note is a statement of fact that provided sufficient factual support for
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Nurse McCullough’s opinion, and her reliance on the note did not make her opinion as to

Methodist’s breach conclusory or speculative.

Dr. Alwardt similarly refers to Dr. Kupferschmid’s note that the ECMO team was called

prior to 19:00, and the CPR flowsheet indicating Gonzalez and Sheffield arrived at 19:53, to opine

that Gonzalez and Sheffield failed to arrive at W.B.’s bedside within the requisite thirty minute

period. Accordingly, his opinion also is neither speculative nor conclusory for the same reasons

stated with regard to Nurse McCullough.

Therefore, we hold that the trial court did not abuse its discretion in determining that Dr.

Alwardt and Nurse McCullough’s opinions regarding Methodist’s breach were not conclusory or

speculative.

QUALIFICATIONS ON CAUSATION

Methodist and Pediatrix both complain that the experts were not qualified to opine on

causation because they were not qualified to opine on the causes of neurological or brain injuries.

As previously noted, an expert is qualified to testify if the expert has the 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.” Broders, 924 S.W.2d at 153. A

medical expert from one specialty may be qualified to testify about another specialty if the expert

has practical knowledge about what medical experts in the other specialty traditionally do under

circumstances similar to those at issue in the case. Pediatrix Med. Servs. Inc. v. De La O, 368

S.W.3d 34, 40 (Tex. App.—El Paso 2012, no pet.). The expert’s qualifications must, however, be

evident from the four corners of the expert report and curriculum vitae. Id. The question presented

is whether Dr. Stern and Dr. Chang have established from the four corners of their expert reports

and CVs that they have knowledge, skill, experience, training, or education regarding the cause of

neurological or brain injuries.
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A. Dr. Stern

Dr. Stern’s report reflects that he is board certified in pediatric cardiology and is employed

as an interventional cardiologist. Dr. Stern states his areas of interest are in therapeutic cardiac

catherization, congestive heart failure, pulmonary hypertension, and care of the post-operative

patient. Dr. Stern states that he has twenty-three years of experience as a pediatric cardiologist,

including the care of post-operative pediatric patients.

With regard to causation, Dr. Stern states in his second supplemental report:

Inadequate cardiac function during cardiac arrest is associated with severe acidosis
and hypoxemia and leads to end organ dysfunction including hypoxic ischemic
brain injury if not corrected promptly. Decreased perfusion to the brain deprives it
of oxygen and glucose resulting in the development of a hypoxic-ischemic state
that causes neuronal death and irreversible brain injury. Cerebral ischemia during
cardiac arrest results in global injury to the brain or encephalopathy, a condition in
which the entire brain does not receive enough oxygen.

Due to prolonged cardiac arrest, severe prolonged acidosis (pH less than 6.82 for
at least 31 minutes), severe hypoxemia and delay in getting [W.B.] on ECMO,
[W.B.] developed severe hypoxic-ischemic encephalopathy that caused significant
irreversible brain damage.

As a board certified pediatric cardiologist with twenty-three years of experience, we

conclude Dr. Stern is qualified to testify about the complications of cardiac arrest, including

neurological injuries that result when a cardiac arrest leads to acidosis, hypoxemia, and the

deprivation of oxygen to the brain. See Livingston v. Montgomery, 279 S.W.3d 868, 877 (Tex.

App.—Dallas 2009, no pet.) (holding board certified OB/GYN’s expertise in managing labor and

delivery qualified him to opine “on the causal relationship between labor and delivery and the

complications that stem from labor and delivery, including a newborn’s neurological injuries”);

Comstock v. Clark, 09-07-300-CV, 2007 WL 3101992, at *4 (Tex. App.—Beaumont Oct. 25,

2007, pet. denied) (mem. op.) (holding anesthesiologist qualified “to express general opinion that

a significant deprivation of oxygen causes brain injury”); Sloman-Moll v. Chavez, No. 04-06-

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00589-CV, 2007 WL 595134, at *4 (Tex. App.—San Antonio Feb. 28, 2007, pet. denied) (mem.

op.) (holding physician trained as surgeon also trained to manage surgical complications); but see

Tenet Hospitals Ltd. v. De La Riva, 351 S.W.3d 398, 407 (Tex. App.—El Paso 2011, no pet.)

(holding OB/GYN not qualified to opine “on the standard of care and causation as to infant

hypoxia, neonatal resuscitation, and ischemic insult”).

B. Dr. Chang

Dr. Chang is a pediatric cardiologist with a sub-board certification in pediatric cardiology.

He has been “actively involved in the care of over 10,000 pediatric patients with different types of

congenital heart disease before and after heart surgery as an attending in the cardiac intensive care

unit and as an attending pediatric cardiologist with clinical interest in postoperative cardiac patients

for over 20 years.” Dr. Chang has served as the organizing chair of numerous national and

international meetings in cardiac intensive care and heart failure, “both areas with a myriad of

discussions on post-operative care diagnosis and management.” Finally, Dr. Chang has published

manuscripts in the area of perioperative care since 1990 and has served as the editor for the journal

Pediatric Critical Care Medicine.

With regard to causation, Dr. Chang concludes that the breaches of the postoperative

standard of care “were the proximate causes that [led to W.B.’s] cardiac arrest and subsequent

anoxic brain and severe neurological injury (as a result of low perfusion from the cardiac arrest).”

Dr. Chang further states:

…. These breaches in standard of care were the proximate cause of
[W.B.’s] cardiac arrest, which is the cessation of spontaneous heart beat and
contraction that result in no forward motion of the blood in the circulation.

This lack of circulation, even if accompanied by adequate cardiopulmonary
resuscitation, will lead to a lower perfusion state than normal and therefore a
decreased blood flow to the brain and other organs. This decrease in flow to the
organs can only be adequately ameliorated with the institution of extracorporeal

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membrane oxygenation, which was not instituted until about 90 minutes into the
cardiac arrest.

The decreased blood flow to the brain and therefore oxygen to the brain eventually
resulted in the unfavorable sequelae of anoxic brain injury. This injury is a direct
result of lack of adequate blood flow and sufficient oxygen to the brain tissue and
brain cells. The injury then leads to severe neurological damage as the cells in the
brain die as a direct result of lack of blood flow and oxygen.

Similar to Dr. Stern, we conclude Dr. Chang also was qualified to render this causation

opinion because his expertise as a pediatric cardiologist qualified him to testify about the

complications of cardiac arrest, including neurological injuries that result when a cardiac arrest

leads to the deprivation of oxygen to the brain. See Livingston, 279 S.W.3d at 877; Comstock,

2007 WL 3101992, at *4; Sloman-Moll, 2007 WL 595134, at *4.

C. Conclusion

Based on the foregoing, we hold that the trial court did not abuse its discretion in

determining that both Dr. Stern and Dr. Chang were qualified to render opinions regarding the

complications resulting from cardiac arrest, including the deprivation of oxygen to the brain and

resulting neurological complications.

CONCLUSORY OPINIONS ON CAUSATION

Methodist and Pediatrix also both complain that the experts’ opinions on causation were

conclusory. As previously noted, a report is not conclusory if the expert explains the basis of his

statements and links the conclusions to the facts. Jelinek, 328 S.W.3d at 539.

A. Methodist

Methodist contends the experts’ opinions regarding causation are conclusory because the

experts simply state that the delay in the arrival of the ECMO team “exacerbated” the injuries W.B.

would still otherwise have suffered. Methodist contends the experts fail to explain how the delay

caused the injuries to be worse than what would have occurred in the absence of a delay.

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Based on this court’s request, the attorneys for Methodist and Belden spent a considerable

amount of time during oral argument discussing this court’s holding in Jones v. King, 255 S.W.3d

156 (Tex. App.—San Antonio 2008, pet. denied). In Jones, the plaintiff suffered complications

after a surgical implant, including meningitis, and the experts opined that the failure to detect the

meningitis and the delay in treating the meningitis for forty-eight hours caused it to become worse

and result in numerous additional complications. 255 S.W.3d at 158-59. This court held the

opinion was conclusory, asserting that the expert failed “to link any delay in diagnosis to any

additional pain and suffering or exacerbation of the meningitis than what would have occurred in

the face of an earlier diagnosis.” Id. at 159-60. This court further asserted, “while it may be

facially appealing to infer additional pain and suffering resulted from the alleged delay in

diagnosis, the trial court is not permitted to rely on such speculation in determining the adequacy

of the report.” Id. at 160. This court finally noted that the expert failed to provide any baseline or

explain how “earlier treatment would have been effective in shortening the duration of the

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

damages.” Id. 4

In this case, Dr. Stern’s second supplemental report contains W.B.’s blood gas values from

the medical records showing W.B.’s status at 19:20, around the time the surgeon arrived at the

bedside, and at 19:51, immediately before Gonzalez and Sheffield arrived. The blood gas values

show the pH level decreased from 6.81 at 19:20 to 6.70 at 19:51. Dr. Stern explains acidosis is

severe at a pH level of 6.82, and that W.B.’s blood values demonstrated “a worsening in pH due

to severe, worsening metabolic acidosis.” Finally, Dr. Stern explains that “severe, prolonged

4
The Fort Worth court has criticized the decision in Jones in the context of a misdiagnosis, stating an expert report is
sufficient on causation “when the report sufficiently links a misdiagnosis to pain that is prolonged until a correct
diagnosis is made and the correct treatment is given.” Foster v. Richardson, 303 S.W.3d 833, 841 (Tex. App.—Fort
Worth 2009, no pet.).

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acidosis (pH less than 6.82 for at least 31 minutes)” “leads to end organ dysfunction including

hypoxic ischemic brain injury.” By showing that W.B.’s acidosis worsened during the period of

delay before Gonzalez and Sheffield arrived, Dr. Stern provided a factual basis for his conclusion

that the delay exacerbated or was a contributing factor to the extent of the acidosis W.B.

experienced and his subsequent injuries.

Dr. Chang’s supplemental report also concludes Gonzalez’s and Sheffield’s delay in

arriving at the hospital “caused a delay in transfer from mechanical support to ECMO and caused

an exacerbation of [W.B.’s] anoxia, acidosis, and subsequent anoxic brain injury.” In addition,

Dr. Chang explains how earlier treatment would have been effective in shortening the duration of

the acidosis. Dr. Chang explains that blood flow to the organs after a cardiac arrest will be

experienced even with adequate cardiopulmonary resuscitation, and “[t]his decrease in flow to the

organs only can be adequately ameliorated with the institution of extracorporeal membrane

oxygenation”, i.e., ECMO. Therefore, in the absence of the ECMO team, the surgeon was unable

to take the only action that could ameliorate the continued decrease in flow of oxygen to the organs.

Dr. Chang then explains “the cells in the brain die as a direct result of lack of blood flow and

oxygen.” Thus, Dr. Chang explains that the earlier institution of ECMO was the only action that

would have ameliorated the decrease in the flow of blood and oxygen to the brain, thereby

preventing additional cells in the brain from dying.

Therefore, unlike the conclusory statements in Jones, both Dr. Stern and Dr. Chang explain

how the deterioration in the objective blood gas values or measurements during the period of delay

caused the exacerbation or worsening of W.B.’s injuries and how earlier implementation of the

ECMO would have prevented the acidosis from worsening and shortened the period in which W.B.

suffered from severe acidosis.

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B. Pediatrix and Dr. Patel

Pediatrix and Dr. Patel contend the expert reports are conclusory because they fail to

adequately link Dr. Patel’s alleged negligence to any causal effects. Asserting that the expert

reports globally discuss causation, Pediatrix and Dr. Patel argue that the reports do not link specific

alleged acts of negligence to specific causal effects. An expert report is not conclusory, however,

if it “describes what each appellant should have done and what happened because he or she failed

to do it.” Children’s Med. Ctr. of Dallas v. Durham, 402 S.W.3d 391, 403 (Tex. App.—Dallas

2013, no pet.).

Dr. Stern’s report states that the standard of care for W.B. was to: (1) cool his body

temperature to 35-36 degrees Celsius, “which itself may suffice to drop the rate of the abnormal

rhythm to provide better cardiac output;” (2) use Amiodarone “as a bolus and continuous infusion”

because it “has a better safety profile than Esmolol.” Dr. Stern states that Dr. Patel initially ordered

this appropriate treatment in his postoperative note which also directed that W.B. continue to

receive Milrinone. Despite Dr. Patel’s instructions, Dr. Tenner ordered an infusion of Esmolol,

which Dr. Lopez subsequently increased. Dr. Lopez also discontinued the Milrinone. Although

Dr. Patel initially stated the correct treatment plan, he subsequently acquiesced in the altered

treatment plan, and ordered W.B. to be kept off Milrinone and to increase the Esmolol. Dr. Stern

opines that Dr. Patel breached the standard of care by ordering W.B. to remain off Milrinone and

to increase the Esmolol. Dr. Stern then states that these breaches “were directly responsible for

[W.B.’s] cardio-respiratory arrest and subsequent anoxic brain injury.”

We disagree that Dr. Stern’s opinion is conclusory. He states that the use of Esmolol was

a breach because Amiodarone has a better safety profile. He further states that Milrinone needed

to be continued because it is “an inotropic agent that increases the force of contraction.” These

are factual statements that provide the basis for Dr. Stern to conclude that Dr. Patel’s acquiescence
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in the use of Esmolol and the discontinuation of Milrinone caused W.B.’s cardiac arrest and

subsequent brain injuries.

Dr. Chang also provides the basis for his conclusion that the breaches in the standard of

care by Dr. Patel, Dr. Tenner, and Dr. Lopez caused W.B.’s cardiac arrest, stating:

The unfavorable combination of instituting a beta blocker such as esmolol (a
negative inotrope) coupled with cessation of intravenous milrinone (a positive
inotrope) left the infant unsupported by any pharmacological means (without any
positive inotropy or contractility) for the heart, leading to an inevitable cardiac
arrest within a few hours.

Dr. Chang later explains in his report how the cardiac arrest resulted in “no forward motion of the

blood in the circulation” and how the lack of circulation would lead to decreased blood flow to the

brain and eventually to “anoxic brain injury.”

Based on the foregoing, we hold that the trial court did not abuse its discretion in

determining that Dr. Stern and Dr. Chang’s opinions regarding causation were not conclusory as

to Pediatrix and Dr. Patel.

CONCLUSION
The order of the trial court is affirmed.
Catherine Stone, Chief Justice

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