Angela Cornejo and Carlos Portillo v. Stephen J. Hilgers, M.D.

Opinion issued August 14, 2014

In The

Court of Appeals
For The

First District of Texas
————————————
NO. 01-13-00752-CV
———————————
ANGELA CORNEJO AND CARLOS PORTILLO, Appellants
V.
STEPHEN J. HILGERS, M.D., Appellee

On Appeal from the 190th District Court
Harris County, Texas
Trial Court Case No. 2012-69538

OPINION

In this interlocutory appeal,1 appellants, Angela Cornejo and Carlos Portillo,

challenge the trial court’s dismissal of their health care liability claims 2 against

1
See TEX. CIV. PRAC. & REM. CODE ANN. § 51.014(a)(10) (Vernon Supp. 2013).
2
See id. § 74.001(a)(13) (Vernon Supp. 2013).
appellee, Stephen Hilgers, M.D. 3 In two issues,4 Cornejo and Portillo contend that

the trial court erred in dismissing their claims against Dr. Hilgers on the grounds

that one of their medical experts is not qualified to opine on the issue of causation

and both of their medical expert reports 5 are insufficient as to causation.

We reverse and remand.

Background

In their amended petition, Cornejo and Portillo allege that on December 2,

2010, Cornejo, who was forty weeks’ pregnant, presented at St. Joseph Medical

Center with gestational hypertension and headaches. Dr. Hilgers, an obstetrics and

gynecology resident, examined Cornejo and conducted an ultrasound and

electronic fetal monitoring, which, at 8:28 p.m., showed increasing contractions

and an irregularity in the fetal heart rate. Nevertheless, Hilgers discharged Cornejo

at 8:40 p.m., with instructions to return in four days.

3
Defendants Mae Kathleen Borchardt, M.D., formerly known as Mae Kathleen
Hayes, M.D., John Cecil McBride, M.D., Bridgette Parish, M.D., Danielle
Niemeyer, R.N., Jamie Respondek, R.N., Mayoor Bhatt, M.D., Sharon Ann
Woodson, R.N., and St. Joseph Medical Center are not parties to this appeal.
4
Although Cornejo and Portillo present three issues, their first issue, in which they
generally challenge the trial court’s order dismissing their claims is, in fact, part of
their second and third issues. Accordingly, we address Cornejo and Portillo’s two
substantive issues.
5
See TEX. CIV. PRAC. & REM. CODE ANN. § 74.351(a) (Vernon Supp. 2013).

2
 Cornejo returned to St. Joseph thirteen hours later with elevated blood

pressure, headaches, “visual disturbances,” and reporting decreased fetal activity.

It was determined that the onset of Cornejo’s labor occurred at 5:00 a.m. on

December 3rd. Nurses J. Respondek and D. Niemeyer placed Cornejo on a fetal

heart rate monitor, the readings of which were “reassuring, with good variability.” 6

Minutes later, however, there was a “dramatic decrease in fetal heart rate

variability,” and Cornejo was taken to labor and delivery. At 11:10 a.m., Drs. K.

Hayes and B. Parish attended Cornejo, whose membranes were artificially

ruptured, and they noted the presence of “thick meconium.” Shortly thereafter, the

fetal monitor showed “minimal variability” and “late decelerations.” 7 At 11:20

a.m., Cornejo signed consent forms for a Cesarean section delivery. St. Joseph

personnel then repositioned Cornejo and continued to monitor the fetal heart strip,

which showed “occasional late decelerations” with “no accelerations of the fetal

6
A baby’s heart rate is monitored as a means of assessing the baby’s oxygenation,
including oxygenation of the baby’s brain. See Morrell v. Finke, 184 S.W.3d 257,
262 (Tex. App.—Fort Worth 2005, pet. denied). A fetal heart monitor strip is read
at regular intervals to determine whether the baby’s heart rate reflects “hypoxia,” a
deficiency of oxygen reaching the tissues of the body that could lead to depletion
of the baby’s oxygen reserves over time, resulting in brain damage. See id. A
fetal heart monitor strip will be either “reassuring” or “nonreassuring.” See id.
Following a contraction, “reassuring” accelerations show that the baby is
oxygenated and tolerating labor. See id. at 263. A normal variation in the fetal
heart rate is also a reassuring sign of fetal well-being. See id. at 262–63.
7
In his medical expert report, Dr. Michael L. Hall, Cornejo and Portillo’s expert,
explained that “[d]ecreased long-term fetal heart rate variability” and “persistent
late decelerations” in a baby’s heart rate are “nonreassuring” and can be
“ominous” signs of hypoxia or asphyxia.

3
heart.” Cornejo was sent to the operating room shortly after 1:00 p.m., and her

baby was delivered at 1:41 p.m. Although the baby was “blue” and did not cry,

she was resuscitated.

Cornejo’s baby was later diagnosed with hypoxic-ischemic encephalopathy,

a severe, permanent brain injury caused by a lack of oxygen and blood flow. 8 At

two months of age, she showed a history of renal injury, secondary to metabolic

acidosis and hypoxic injury, and mild spasticity in all extremities. At two years of

age, she presented with seizures and significant developmental impairment.

Cornejo and Portillo sued Dr. Hilgers for negligence, seeking damages for

past and future medical expenses and mental anguish. To support their claims,

they timely filed and served upon Hilgers medical expert reports 9 authored by

Michael L. Hall, M.D., Jerry J. Tomasovic, M.D., and Bradley A. Yoder, M.D.

Hilgers objected to Drs. Hall’s and Tomasovic’s reports on the ground that they

failed to sufficiently address the element of causation. Hilgers also objected to

Hall’s report on the ground that Hall is not qualified to opine on the issue of

causation. The trial court sustained Hilgers’s objections and allowed Cornejo and

Portillo thirty days to file and serve amended reports. Cornejo and Portillo

stipulated that Dr. Yoder’s expert report would not be offered as to Hilgers.

8
See Morrell, 184 S.W.3d at 275 & n.12.
9
See TEX. CIV. PRAC. & REM. CODE ANN. § 74.351(a).

4
 Cornejo and Portillo then filed and served Dr. Hall’s amended medical

expert report. As Dr. Hilgers notes in his brief on appeal, Hall’s curriculum vitae

does not appear in the record before us. In his amended report, however, Hall

notes that he is board certified in obstetrics and gynecology, is licensed to practice

medicine in the state of Colorado, is affiliated with several hospitals, and serves as

an assistant clinical professor at the University of Colorado. Hall further states:

I am familiar with the standard of care applicable to the
management of medical and obstetrical complications in pregnancy,
management of labor, use of Pitocin, interpretation of electronic fetal
monitoring (EFM), abnormal fetal heart rate patterns, and evidence of
fetal hypoxia as predicted by the fetal heart rate pattern. I am also
very well aware, that regardless of who is caring for the laboring
patient, whether Ob/Gyn, resident, or labor and delivery nurse, that
the standards of care regarding recognition of ominous findings on
fetal monitor strip are the same. . . .
As an obstetrician, I have cared for numerous pregnant patients
with the same or similar clinical circumstances as those [Cornejo]
presented with. . . . I have taught nurses and residents fetal monitoring
and have worked closely with nurses and residents for 34 years, and I
am familiar with what reasonable and prudent nurses, residents and
obstetricians would or would not do in response to abnormal
electronic fetal heart patterns and management of Pitocin. The
standards of care in the interpretation of electronic fetal monitoring,
recognition of abnormal patterns, and recognition of the need for
intervention [are] the same across these professionals, although the
roles of each may be different in intervening for the same.
....
Based on my education, training, years of experience,
familiarity with the medical literature and my board certification in
OB/GYN, I am familiar with the probable causes of . . . hypoxic-
ischemic injuries in babies generally and with the probable causes of
the injuries to [Cornejo’s baby] in this case. Specifically, during my
many years of practice, I . . . read the medical literature, reviewed case

5
 studies and have followed the care for babies with the same or similar
clinical presentation as [Cornejo’s baby]. I have kept current on the
medical studies and literature regarding babies who have suffered
hypoxic-ischemic encephalopathy (HIE) from events at or around the
time of birth. I have also seen infants in my education, training and
experience who have suffered from hypoxic-ischemic encephalopathy
(HIE) from events at around the time of birth.

Dr. Hall goes on to explain that he reviewed Cornejo’s prenatal records,

labor and delivery records, and the electronic fetal monitor strip. He notes that the

applicable standard of care for Dr. Hilgers was to recognize certain risk factors

with which Cornejo presented and are “well known to increase the risk of fetal

intolerance to the uterine environment, increasing the foreseeability of progressive

hypoxia and ischemia and need for expeditious delivery of the fetus.” Specifically,

Cornejo, prior to the time that Hilgers discharged her, presented with decreased

fetal movement, gestational hypertension, suspected intrauterine growth restriction,

and late deceleration on the electronic fetal monitor. Due to the risk factors

present, and because there was a “late deceleration just prior to the end of the fetal

monitor strip” at 8:28 p.m. on the evening that Hilgers examined Cornejo, Hall

opines that Hilgers had a duty to admit Cornejo to the hospital, rather than

discharge her, and continue to monitor the fetal heart rate, the fetus for progressive

hypoxia and ischemia, and the need to expedite delivery.

Dr. Hall further opines that Dr. Hilgers breached “the standard of care of any

resident providing obstetrical services” by:

6
 • “failing to recognize the risk factors at the time of the premature
discharge on December 2, 2010, discuss those with the ‘OB/GYN
specialist’ and admit [Cornejo] to the Hospital”;
• “discontinuing fetal heart rate monitoring on December 2, 2010, in
the face of a late deceleration (a potentially ominous finding
suggestive of uteroplacental insufficiency given the risk factors
discussed above)”;
• “failing to continuously monitor the fetal heart rate patterns on the
evening and morning of December 2–3, 2010”; and
• “failing to deliver [Cornejo’s baby] due to a progressively
deteriorating fetal status which would have been evident on fetal
monitoring.”

He added:

We know that the deterioration would have been evident given the
difference in the quality of the fetal monitor tracing . . . between
December 2, 2010 before the late deceleration at the end and the
tracing the following morning when she presented again to the
Hospital. Tracings do not suddenly become nonreassuring unless
there is an acute cord accident that we know did not occur in this case.
In reasonable medical probability, there was plenty of opportunity to
see the deterioration occur had she been monitored, and any ordinary,
reasonably prudent obstetrician (or resident acting under his or her
supervision), would have delivered [Cornejo’s baby] before she
actually presented again the following morning according to the
chronology.

As to causation, Dr. Hall opines that Dr. Hilgers “should have known” that

the risk factors present in this case “may foreseeably cause fetal intolerance even to

normal labor which may induce sufficient stress to produce a lack of blood flow to

the fetus (hypoxia), which foreseeably may produce acidosis (asphyxia), which

may foreseeably cause brain injury.” And he notes that,

7
 [Cornejo’s baby] suffered progressive hypoxia and acidosis, as a
result of the delay in delivery caused by Dr. Hilgers’[s]. . . breaches in
the standard of care. Because [Cornejo] was not kept overnight, she
arrived in a more critical state, setting into motion a chain of events
which required more timely action after [she] returned [the next
morning] with a persistently and progressively abnormal electronic
fetal monitor pattern which was not resolved.

Dr. Hall further opines that,

more likely than not, had [Cornejo’s baby] been delivered by Dr.
Hilgers and/or the OB/GYN specialist assigned to supervise him, she
would have been neurologically intact at the time of birth, would not
have had difficulty with the newborn resuscitation, would not have
developed pneumothoraces, would not have had an additional episode
of documented severe metabolic acidosis, and would likely be normal
today. . . .
....
[T]he care rendered [Cornejo] by Dr. Hilgers was deficient—falling
well below the standard of care owed to this patient. . . . Within a
reasonable degree of medical probability, the negligent breaches in the
standard of care by . . . Dr. Hilgers substantially contributed to the
direct and proximate cause of the hypoxic ischemic encephalopathy
noted in [Cornejo’s baby].

Cornejo and Portillo also filed and served Dr. Hilgers with Dr. Tomasovic’s

amended expert report. Although Tomasovic’s curriculum vitae also does not

appear in the record before us, he, in his amended report, notes that he is a board-

certified pediatric neurologist and has been in private practice for twenty-eight

years. He “remain[s] actively supportive of two major medical center neonatal

intensive care units and [has] been involved in the care of neonates and infants

who have experienced hypoxic-ischemic encephalopathy and hypoglycemia.”

8
 Dr. Tomasovic notes that he met with Cornejo’s child on January 15, 2013

to address her “current neurologic condition as it relates to events involving her

birth and subsequent treatment, and whether there is medical causation between

such treatment” and her condition. After noting his discussion with her parents

about the child’s behavior and development and his own observations, Tomasovic

states that the child’s “findings [are] consistent with microcephaly, a mild

hemiparesis with motor coordination issues, and an encephalopathic condition with

impaired expressive language.” He concludes that “it is medically probable” that

when she reaches adulthood, Cornejo’s child “will not be able to be independent or

employable.”

After his review of Dr. Hall’s report and the medical records of Cornejo and

her baby, Dr. Tomasovic observes that “Cornejo was evaluated on December 2nd,

2010, for transient blood pressure elevations which were stable resulting in her

discharge home on that date at 20:29 hours.” Although he cannot “address

whether the standard of care was breached in doing so,” he is able to opine that

“the late deceleration of the fetal heart most likely relates to the beginning of a

period of hypoxia.” He further opines that, “to a reasonable degree of medical

probability (and in reliance upon the expert opinions of Dr. Hall), . . . [Cornejo’s

baby] suffered a significant portion of her injuries due to the failure to deliver her

before progressive hypoxia and ischemia deprived her brain tissue of well-

9
oxygenated blood and neuro[l]ogic injury occurred in utero.” And, “[h]ad she

been monitored throughout the night rather than discharged by Dr. Hilgers and the

hospital personnel, . . . her progressive intolerance of the uterine environment

would have been evident and the opportunity would have presented itself to deliver

her timely (as opined by Dr. Hall) and before permanent [and] irreversible brain

damage occurred.” “In other words,” according to Tomasovic, “had she been

delivered before her mother presented again the next morning to the Hospital, she

would not have suffered her injuries.”

Dr. Hilgers moved to dismiss Cornejo and Portillo’s claims on the grounds

that Dr. Hall “is not qualified to address causation” and the amended medical

expert reports by Drs. Hall and Tomasovic are insufficient as to the element of

causation because they are “inherently grounded in speculative assumptions.”

Specifically, Hilgers argued that the experts’ theories that “had [Cornejo] been

kept in the hospital longer on 12/2, the fetal heart tracing would, at some point or

points that night, have shown a pattern indicative of fetal deterioration,” and,

“based on the assumed patterns on the heart tracing, at some unspecified time

during the night of 12/2 or the early morning of 12/3, a health care provider would

have interpreted the situation as requiring a cesarean delivery and proceeded with

delivery” were conjectural. After a hearing, the trial court, without stating its

10
reasons, granted Hilgers’s motion to dismiss Cornejo and Portillo’s health care

liability claims.

Standard of Review

We review a trial court’s decision on a motion to dismiss a health care

liability claim for an abuse of discretion. See Am. Transitional Care Ctrs. of Tex.,

Inc. v. Palacios, 46 S.W.3d 873, 875 (Tex. 2001); Gray v. CHCA Bayshore L.P.,

189 S.W.3d 855, 858 (Tex. App.—Houston [1st Dist.] 2006, no pet.). A trial court

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

reference to guiding rules or principles. Jelinek v. Casas, 328 S.W.3d 526, 539

(Tex. 2010). When reviewing matters committed to a trial court’s discretion, we

may not substitute our own judgment for that of the trial court. Bowie Mem’l

Hosp. v. Wright, 79 S.W.3d 48, 52 (Tex. 2002). A trial court does not abuse its

discretion merely because it decides a discretionary matter differently than an

appellate court would in a similar circumstance. Harris Cnty. Hosp. Dist. v.

Garrett, 232 S.W.3d 170, 176 (Tex. App.—Houston [1st Dist.] 2007, no pet.).

Sufficiency of Expert Reports

In their two issues, Cornejo and Portillo argue that the trial court erred in

dismissing their claims against Dr. Hilgers because, contrary to his assertions, Dr.

11
Hall is qualified to opine on the issue of causation and both Drs. Hall and

Tomasovic adequately address the issue in their amended medical expert reports.10

A health care liability claimant must timely provide each defendant health

care provider with an expert report. See TEX. CIV. PRAC. & REM. CODE ANN.

§ 74.351 (Vernon Supp. 2013); Gray, 189 S.W.3d at 858. The report must provide

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 health

care provider failed to meet the standard, and the causal relationship between that

failure and the injury, harm, or damages claimed. See TEX. CIV. PRAC. & REM.

CODE ANN. § 74.351(r)(6). The expert report requirement may be satisfied by

utilizing more than one expert report, and a court may read the reports together.

See id. § 74.351(i).

If a defendant files a motion to dismiss challenging the adequacy of a

claimant’s expert report, a trial court must grant the motion if it appears, after a

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

with the definition of an expert report or is not sufficiently specific to provide a

basis for the trial court to conclude that the claims have merit. Id. § 74.351(l);

Scoresby v. Santillan, 346 S.W.3d 546, 555–56 (Tex. 2011). In setting out the

expert’s opinions, the report must provide enough information to fulfill two

10
The applicable standard of care and the manner in which Dr. Hilgers allegedly
breached that standard are not at issue in this appeal.

12
purposes: first, it must inform the defendant of the specific conduct the plaintiff

has called into question, and, second, it must provide a basis for the trial court to

conclude that the claims have merit. Scoresby, 346 S.W.3d at 553–54.

Dr. Hall’s Qualifications

In their second issue, Cornejo and Portillo argue that, to the extent the trial

court granted Dr. Hilgers’s motion to dismiss their claims on the ground that Dr.

Hall is not qualified to address the issue of causation, it erred because Hall’s

extensive expertise and training qualify him “to recognize the risk and to prevent

the injury” suffered by Cornejo’s baby and “to understand the causal link to” the

baby’s “neurologic injury” due to Hilgers’s breach of the pertinent standard of

care. In his motion to dismiss Cornejo and Portillo’s claims, Hilgers argued that

Hall “is not qualified to address causation” because he “is not certified in

neonatology, pediatric neurology, or maternal-fetal medicine.” And he complained

that Hall “does not treat newborns.”

To be qualified to opine on the causal relationship between a defendant-

physician’s alleged failure to meet an applicable standard of care and a plaintiff’s

injury, the author of an expert report must be a physician who is qualified to render

opinions on such causal relationships under the Texas Rules of Evidence. TEX.

CIV. PRAC. & REM. CODE ANN. §.74.351(r)(5); see also id. §.74.403(a) (Vernon

2011) (“[A] person may qualify as an expert witness on the issue of the causal

13
relationship between the alleged departure from accepted standards of care and the

injury, harm, or damages claimed only if the person is a physician and is otherwise

qualified to render opinions on that causal relationship under the Texas Rules of

Evidence.”).

An expert witness may be qualified on the basis of knowledge, skill,

experience, training, or education to testify on scientific, technical, or other

specialized subjects if the testimony would “assist the trier of fact” in

understanding the evidence or determining a fact issue. TEX. R. EVID. 702. Thus, a

plaintiff must show that her expert has “knowledge, skill, experience, training, or

education” regarding the specific issue before the court that would qualify the

expert to give an opinion on that particular subject. Broders v. Heise, 924 S.W.2d

148, 153–54 (Tex. 1996).

Whether an expert witness is qualified under rule 702 lies within the sound

discretion of a trial court. Id. at 151–52. Not every licensed physician is qualified

to testify on every medical question. Id. at 152–53. A physician need not practice

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. Roberts v. Williamson, 111 S.W.3d at 113. Analysis of the expert’s

qualifications to opine as an expert on the subject matter of the report is limited to

14
the four corners of the expert report or its accompanying 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).

Here, Cornejo and Portillo were required to establish that Dr. Hall is

qualified on the basis of “knowledge, skill, experience, training, or education” to

offer opinions concerning the causal link between the alleged breaches of the

standard of care by Dr. Hilgers and the injuries suffered by Cornejo’s baby. See

TEX. R. EVID. 702; Roberts, 111 S.W.3d at 122.

In his brief to this Court, Dr. Hilgers argues that Dr. Hall is not qualified to

render an opinion as to causation because he is not a perinatologist, neonatologist,

neurologist, “or any other medical specialist who routinely takes care of babies or

who diagnoses and treats brain injuries”; “does not say he provides ongoing

medical care or treatment to neonates (outside of the delivery process)”; “does not

say he diagnoses or treats babies with brain damage”; and “does not identify any

specific, relevant training or experience that would qualify him to provide expert

opinions about how Dr. Hilgers’[s] conduct on 12/2 caused [Cornejo’s baby’s]

injuries, sustained later.” And Hilgers complains that Hall is “not shown to be

qualified to address the opinions at the heart of his causation theory: what a fetal

monitor tracing ‘would have shown.’”

15
 Dr. Hall, in his expert report, explains that he is board certified in obstetrics

and gynecology, is licensed to practice medicine in the state of Colorado, is

affiliated with several hospitals, and serves as an assistant clinical professor at the

University of Colorado. He specifically states that he is “familiar with the standard

of care applicable to the management of medical and obstetrical complications in

pregnancy, management of labor, . . . interpretation of electronic fetal monitoring

(EFM), abnormal fetal heart rate patterns, and evidence of fetal hypoxia as

predicted by the fetal heart rate pattern.” Hall notes that, as an obstetrician, he has

“cared for numerous pregnant patients with the same or similar clinical

circumstances” as those Cornejo presented to Dr. Hilgers. Moreover, he has taught

residents fetal monitoring and has “worked closely with . . . residents for 34 years.”

And Hall specifically explained that he is “familiar with what reasonable and

prudent” residents and obstetricians “would or would not do in response to

abnormal electronic fetal heart patterns.”

Dr. Hall further notes that, based on his “education, training, years of

experience, familiarity with the medical literature[,] and . . . board certification in

OB/GYN,” he is “familiar with the probable causes of . . . hypoxic-ischemic

injuries in babies generally and with the probable causes of the injuries to

[Cornejo’s baby] in this case.” During his years of practice, he has “read the

medical literature, reviewed case studies and . . . followed the care for babies with

16
the same or similar clinical presentation” as Cornejo’s baby. Hall has “kept

current on the medical studies and literature regarding babies who have suffered

hypoxic-ischemic encephalopathy (HIE) from events at or around the time of

birth.” And he has “seen infants” in his “education, training and experience who

have suffered from hypoxic-ischemic encephalopathy (HIE) from events at around

the time of birth.”

Dr. Hall’s report demonstrates that he has specific expertise in the areas of

obstetrical complications in pregnancy, management of labor, interpretation of

electronic fetal monitoring, abnormal fetal heart rate patterns, and evidence of fetal

hypoxia as predicted by fetal heart rate patterns. And he specifically notes that he

is familiar, based on his education, training, and experience, with the probable

causes of hypoxic-ischemic injuries in babies generally and with the probable

causes of the injuries to Cornejo’s baby in this case. This is the type of expertise

involved in the claims asserted by Cornejo and Portillo in this case.

In Roberts v. Williamson, the Texas Supreme Court held that a board-

certified pediatrician was qualified to render an expert opinion as to a newborn

baby’s neurological injuries. 111 S.W.3d at 121–22. There, after their baby

suffered brain damage, parents sued two physicians, alleging that a malfunctioning

ventilator, delay in treatment, and failure to transfer the baby to a better-equipped

hospital combined to proximately cause the baby’s injuries. Id. at 115. The

17
physicians argued that the parents’ expert, Dr. McGehee, a board-certified

pediatrician, was not qualified to testify as to the nature and extent of the child’s

neurological injuries because he was not a neurologist. Id. at 121. The court

considered that McGehee held certifications in pediatric advanced life-support and

advanced trauma life-support, had studied the effects of pediatric neurological

injuries, and had extensive experience advising parents about the effects of such

injuries. Id. at 121–22. Accordingly, it held that the trial court did not err in

admitting McGehee’s testimony because, although he was not a neurologist, the

record reflected that he had experience and expertise regarding the specific causes

and effects of the injuries at issue. Id. at 122.

In Livingston v. Montgomery, parents sued five physicians after their child

suffered severe neurological injuries just prior to birth. 279 S.W.3d 868, 870 (Tex.

App.—Dallas 2009, no pet.). The parents alleged that the physicians failed to

“intervene in the face of fetal distress on non-reassuring fetal heart rate patterns.”

Id. The physicians argued that the parents’ expert, an obstetrician, was not

qualified to opine “as to causation of neurological injuries or conditions—much

less pediatric neurological injuries.” Id. at 873. The court explained that the issue

was not who was qualified to testify about whether a neurologist could have saved

the patient’s life by treating his neurological injuries. Id. at 877. Rather, the

causation issue related to the duty of health care providers to recognize potential

18
harm and take appropriate actions. Id. Because the parents’ expert had

experience in managing labor and delivery, his expertise 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. Id.

Here, based on his experience in managing obstetrical complications in

pregnancy and labor, interpreting electronic fetal monitoring and abnormal fetal

heart rate patterns, and recognizing fetal hypoxia as predicted by fetal heart rate

patterns, Dr. Hall is qualified to opine as to the causal relationship between a

newborn’s injuries and the failure of a resident or obstetrician to recognize

complications in pregnancy and take appropriate actions. The law does not require

him to be “certified in neonatology, pediatric neurology, or maternal-fetal

medicine” or “treat newborns” to be qualified to so opine. Accordingly, we hold

that the trial court, to the extent that it granted Dr. Hilgers’s motion to dismiss the

claims of Cornejo and Portillo on the ground that Hall is not qualified to opine on

the issue of causation, abused its discretion. See Keo v. Vu, 76 S.W.3d 725, 733

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

We sustain Cornejo and Portillo’s second issue.

Causation

In their first issue, Cornejo and Portillo argue that the trial court, to the

extent it granted Dr. Hilgers’s motion to dismiss their claims on the ground that

19
Drs. Hall and Tomasovic did not adequately address the issue of causation in their

amended medical expert reports, erred because what Hilgers’s “calls ‘speculation’

or ‘conjecture’ is, in fact, the physicians stating to a ‘reasonable [degree of]

medical probability’ what most likely caused” the injuries to Cornejo’s baby. In

his motion to dismiss Cornejo and Portillo’s claims, Hilgers argued that Hall and

Tomasovic’s amended medical expert reports do not adequately address the

element of causation because their causation theory “is inherently grounded in

speculative assumptions” and “conjecture.”

An expert report must provide a fair summary of the expert’s opinions

regarding the causal relationship between the failure of the health care provider to

provide care in accord with the pertinent standard of care and the injury, harm, or

damages claimed. See TEX. CIV. PRAC. & REM. CODE ANN. § 74.351(r)(6). In

assessing the sufficiency of a report, a trial court may not draw inferences; instead,

it must exclusively rely upon the information contained within the four corners of

the report. Wright, 79 S.W.3d at 52. “No particular words or formality are

required [in the expert report], but bare conclusions will not suffice.” Scoresby,

346 S.W.3d at 556.

A causal relationship is established by proof that the negligent act or

omission constituted a substantial factor in bringing about the harm and absent the

act or omission, the harm would not have occurred. Costello v. Christus Santa

20
Rosa Health Care Corp., 141 S.W.3d 245, 249 (Tex. App.—San Antonio 2004, no

pet.). However, an expert report need not marshal all of the plaintiff’s proof

necessary to establish causation at trial, and it need not anticipate or rebut all

possible defensive theories that may ultimately be presented to the trial court.

Wright, 79 S.W.3d at 52; Fortner v. Hosp. of the Sw., LLP, 399 S.W.3d 373, 383

(Tex. App.—Dallas 2013, no pet.). The expert must simply provide some basis

that a defendant’s act or omission proximately caused injury. Id. at 53. And the

expert must explain the basis of his statements and link his conclusions to the facts.

Id. at 52.

In his amended medical expert report,11 Dr. Tomasovic notes that he

examined Cornejo’s child specifically to assess her “current neurologic condition

as it relates to events involving her birth and subsequent treatment, and whether

there is medical causation between such treatment” and her condition. He

11
The parties dispute whether Drs. Hall’s and Tomasovic’s original expert reports
should be considered with their amended reports in evaluating whether the doctors
adequately addressed the causation issue. Dr. Hilgers quotes extensively from the
original expert reports and points out inconsistencies between the original and
amended reports. Cornejo and Portillo argue that once they submitted amended
expert reports, the original reports were supplanted. An amended expert report
served after a thirty-day extension granted by the trial court, as here, supersedes
any initial report filed by the claimant. Otero v. Leon, 319 S.W.3d 195, 204–05
(Tex. App.—Corpus Christi 2010, pet. denied); HealthSouth Corp. v. Searcy, 228
S.W.3d 907, 909 (Tex. App.—Dallas 2007, no pet.) (holding that amended expert
report “supplants” previously filed report); see also Packard v. Guerra, 252
S.W.3d 511, 515–16, 534–35 (Tex. App.—Houston [14th Dist.] 2008, pet. denied)
(considering previously filed reports that were refiled and “supplemented”). Thus,
we consider only the amended expert reports in conducting our analysis.

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concludes that his findings are “consistent with microcephaly, a mild hemiparesis

with motor coordination issues, and an encephalopathic condition with impaired

expressive language” and “it is medically probable” that she “will not be able to be

independent or employable.”

In regard to causation specifically, Dr. Tomasovic opines that “the late

deceleration of the fetal heart most likely relates to the beginning of a period of

hypoxia” and “to a reasonable degree of medical probability (and in reliance upon

the expert opinions of Dr. Hall), . . . [Cornejo’s child] suffered a significant portion

of her injuries due to the failure to deliver her before progressive hypoxia and

ischemia deprived her brain tissue of well-oxygenated blood and neurolo[g]ic

injury occurred in utero.” And he emphasizes that, “[h]ad she been monitored

throughout the night rather than discharged by Dr. Hilgers and the hospital

personnel, . . . her progressive intolerance of the uterine environment would have

been evident and the opportunity would have presented itself to deliver her timely

(as opined by Dr. Hall) and before permanent [and] irreversible brain damage

occurred.” “In other words,” according to Tomasovic, “had she been delivered

before her mother presented again the next morning to the Hospital, she would not

have suffered her injuries.” He emphasizes that,

It is a legal fiction rather than a medical reality to suggest that any of
the health care providers responsible for making decisions regarding
delivery from the evening of December 2, 2010 until the time of [the
child’s] birth are not responsible, at least in part, for her neurological

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 injuries because they had not yet occurred. All are complicit in failing
to rescue her from a foreseeably progressive hostile uterine
environment which was the source of all of her injuries and
complications . . . .
In his amended medical expert report, Dr. Hall states his familiarity “with

the probable causes of . . . hypoxic-ischemic injuries in babies generally and with

the probable causes of the injuries to [Cornejo’s baby] in this case.” He notes that

Dr. Hilgers “should have known” that the risk factors present in this case “may

foreseeably cause fetal intolerance even to normal labor which may induce

sufficient stress to produce a lack of blood flow to the fetus (hypoxia), which

foreseeably may produce acidosis (asphyxia), which may foreseeably cause brain

injury.” And Hall emphasizes that,

[Cornejo’s baby] suffered progressive hypoxia and acidosis, as a
result of the delay in delivery caused by Dr. Hilgers’[s] . . . breaches
in the standard of care. Because [Cornejo] was not kept overnight,
she arrived in a more critical state, setting into motion a chain of
events which required more timely action after [she] returned [the
next morning] with a persistently and progressively abnormal
electronic fetal monitor pattern which was not resolved.

Dr. Hall further opines that,

more likely than not, had [Cornejo’s baby] been delivered by Dr.
Hilgers and/or the OB/GYN specialist assigned to supervise him, she
would have been neurologically intact at the time of birth, would not
have had difficulty with the newborn resuscitation, would not have
developed pneumothoraces, would not have had an additional episode
of documented severe metabolic acidosis, and would likely be normal
today. . . .
....

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 [T]he care rendered [Cornejo] by Dr. Hilgers was deficient—falling
well below the standard of care owed to this patient. . . . Within a
reasonable degree of medical probability, the negligent breaches in the
standard of care by . . . Dr. Hilgers substantially contributed to the
direct and proximate cause of the hypoxic ischemic encephalopathy
noted in [Cornejo’s baby].

Further, Hall explains in great detail how the effects of hypoxia and asphyxia are

cumulative and progressive, the role of fetal heart monitoring, and the medical

relationship between the late deceleration on the monitor in this case and the

injuries suffered by Cornejo’s baby.

In his appellate brief, Dr. Hilgers argues, as he did in his motion to dismiss,

that Drs. Hall’s and Tomasovic’s expert reports are insufficient because their

“proximate causation theory . . . is inherently grounded in speculative

assumptions.” Specifically, he characterizes their causation theory thusly: “had

[Cornejo] been kept in the hospital longer on 12/2, the fetal heart tracing would, at

some point or points that night, have shown a pattern indicative of fetal

deterioration,” and, “based on the assumed patterns on the heart tracing, at some

unspecified time during the night of 12/2 or the early morning of 12/3, a health

care provider would have interpreted the situation as requiring a cesarean delivery

and proceeded with delivery.” Hilgers notes that Tomasovic asserted no

“identifiable injury” to Cornejo’s baby during his treatment and neither expert

asserted that “the standard of care required [him] to deliver [Cornejo’s baby]

during his care.”

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 In their reports, however, Drs. Hall and Tomasovic do more than

“speculate.” They explain the link between the specific injuries suffered by

Cornejo’s baby and Dr. Hilgers’s alleged failure to recognize Cornejo’s risk factors

and the late deceleration on the fetal heart monitor, and his failure to take action—

by admitting Cornejo to the hospital and continuing the fetal monitoring. See

Jelinek, 328 S.W.3d at 539–40 (“[T]he expert must . . . explain, to a reasonable

degree, how and why the breach caused the injury based on the facts presented.”).

Hall opines that Hilgers’s failure to comprehend the dangers and take appropriate

action constituted a substantial factor in bringing about the injuries suffered by

Cornejo’s baby and, absent such omission, the harm would not have occurred.

Likewise, Tomasovic agrees that had Cornejo’s baby been monitored throughout

the night, rather than discharged by Dr. Hilgers and the hospital personnel, “her

progressive intolerance of the uterine environment would have been evident and

the opportunity would have presented itself to deliver her timely (as opined by Dr.

Hall) and before permanent [and] irreversible brain damage occurred.” Although

neither Hall nor Tomasovic opines that a specific injury to Cornejo’s baby

occurred during Hilgers’s treatment of Cornejo on December 2nd, it is sufficient

that, in their reports, the experts “state[] a chain of events that begin with a health

care provider’s negligence and end in personal injury.” McKellar v. Cervantes 367

S.W.3d 478, 485 (Tex. App.—Texarkana 2012, no pet.); see Patel v. Williams, 237

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S.W.3d 901, 905 (Tex. App.—Houston [14th Dist.] 2007, no pet.); Costello, 141

S.W.3d at 249.

In McKellar, Cervantes was a patient of Dr. McKellar and saw him regularly

for prenatal care of her high-risk twin pregnancy. 367 S.W.3d at 481. McKellar

admitted Cervantes to the hospital during the course of her pregnancy with

suspicion of preeclampsia. Id. When the twins were delivered via Caesarean

section the day after admission, one of the babies, “Alek,” was diagnosed with

encephalopathy. Id. Cervantes brought a health care liability claim against

McKellar, and her expert opined in his report that when a patient is admitted with

Cervantes’s conditions, the standard of care mandated that the fetal well-being be

assessed upon admission, yet Cervantes was not placed on an external fetal

monitor until more than twenty-eight hours after admission. Id. at 487. The expert

opined that McKellar’s failure to expeditiously discover and address the recurring

variable decelerations with absent long-term variability in Alek’s heart rate

resulted in brain damage. Id. at 486. The court of appeals held that the report

sufficiently put McKellar on notice of the conduct about which Cervantes

complained and further provided the trial court with a basis to conclude that her

claim against McKellar had merit. Id. at 490.

We conclude that Drs. Hall and Tomasovic, in their amended medical expert

reports, provided a fair summary of the causal relationship between Dr. Hilgers’s

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failure to meet the appropriate standard of care and the injuries suffered by

Cornejo’s baby. See TEX. CIV. PRAC. & REM. CODE ANN. § 74.351(r)(6). Thus, the

reports presented an objective, good faith effort to comply with the statute. Id.

§.74.351(l); Scoresby, 346 S.W.3d at 555–56. Accordingly, we hold that the trial

court, to the extent that it granted Hilgers’s motion to dismiss the claims of

Cornejo and Portillo on the ground that the reports did not adequately address the

issue of causation, abused its discretion.

We sustain Cornejo and Portillo’s first issue.

Conclusion

We reverse the order of the trial court and remand the case to the trial court

for further proceedings not inconsistent with this opinion.

Terry Jennings
Justice

Panel consists of Justices Jennings, Higley, and Sharp.

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