El Paso Specialty Hospital, Ltd. v. Maria T. Gurrola, Individually and on Behalf of All Wrongful Death Beneficiaries, and as Representative of the Estate of Oscar Gurrola

COURT OF APPEALS
EIGHTH DISTRICT OF TEXAS
EL PASO, TEXAS

EL PASO SPECIALTY HOSPITAL LTD., §

Appellant, § No. 08-15-00282-CV

v. § Appeal from the

MARIA GURROLA, INDIVIDUALLY § 448th District Court
AND ON BEHALF OF ALL
WRONGFUL DEATH BENEFICIARIES, § of El Paso County, Texas
AND AS REPRESENTATIVE OF THE
ESTATE OF OSCAR GURROLA, § (TC# 2014DCV3560)
DECEASED,
§
Appellee.

OPINION

This is a healthcare liability case subject to the Texas Medical Liability Act.

TEX.CIV.PRAC.&REM.CODE CH. 74 (West 2011). On November 9, 2012, Mr. Oscar Gurrola

underwent a non-surgical manipulation of his shoulder which was performed under anesthesia at

El Paso Specialty Hospital, was discharged, suffered cardiac arrest, and died. His wife, Maria

Gurrola, sued El Paso Specialty Hospital, Dr. Scott A. Protzman, El Paso Orthopaedic Surgery

Group, and Nurse Anesthetist Fred Utter, CRNA.1 Maria timely served Dr. Michael Koumjian’s

expert reports on the defendants. The trial court heard the defendants’ objections to the expert

1
The other defendants challenge the trial court’s overruling of their objections to the expert’s reports in a separate
appeal. See Scott A. Protzman, M.D., El Paso Orthopaedic Surgery Grp., P.A., and Fred Utter, CRNA v. Maria
Gurrola, Indiv. & On Behalf of all Wrongful Death Beneficiaries, & as Representative of the Estate of Oscar Gurrola,
Deceased, No. 08-15-00281-CV.
reports and motion to dismiss Maria’s suit. TEX.CIV.PRAC.&REM.CODE ANN. § 74.351(b)(West

Supp. 2015).

In this interlocutory appeal the Hospital asks us to determine whether the trial court abused

its discretion when it overruled the Hospital’s objections to Dr. Koumjian’s expert report and

denied its motion to dismiss. TEX.CIV.PRAC.&REM.CODE ANN. § 51.014(a)(9)(West Supp.

2015). The Hospital identifies two issues for resolution. In Issue One, the Hospital asserts

Dr. Koumjian’s expert report is inadequate because it is conclusory and fails to satisfy the

statutory requirements for establishing causation. In Issue Two, the Hospital asserts

Dr. Koumjian’s expert report and curriculum vitae fail to establish his qualifications to render

expert opinions regarding the standard of care applicable to post-operative care for orthopaedic

procedures and causation, such that the trial court was left to impermissibly infer whether

Dr. Koumjian was qualified to render his opinion. See TEX.CIV.PRAC.&REM.CODE ANN.

§ 74.351(r)(5)(B), (C)(West Supp. 2015); TEX.CIV.PRAC.&REM.CODE ANN. § 74.402 (West

2011).

We conclude the trial court did not abuse its discretion in overruling the Hospital’s

objections and denying its motion to dismiss Dr. Koumjian’s expert report regarding the

Hospital’s conduct, and affirm the trial court’s ruling.

BACKGROUND

The basis of Maria’s claim, and the focus of Dr. Koumjian’s report, involves Oscar’s

post-procedure tachycardia as well as the acts or omissions of the Hospital’s employees or agents

in relation thereto, specifically with regard to the failure to monitor, diagnose, care for and treat the

condition. Maria alleges that while Oscar was under the care of the defendants, he developed

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symptoms of congestive heart failure but was discharged home where he suffered a cardiac arrest,

was cared for by emergency personnel, and transported to another medical facility where he was

pronounced dead. An autopsy revealed that Oscar died from severe coronary atherosclerosis.

DISCUSSION
Standard of Review

We review the trial court’s ruling on the adequacy of an expert’s report for an abuse of

discretion. Am. Transitional Care Ctrs. of Tex., Inc. v. Palacios, 46 S.W.3d 873, 877 (Tex. 2001);

Tenet Hospitals Ltd. v. Boada, 304 S.W.3d 528, 533 (Tex.App.--El Paso 2009, pet. denied).

Under an abuse of discretion standard, the appellate court defers to the trial court’s factual

determinations if they are supported by evidence, but reviews the trial court’s legal determinations

de novo. See Stockton v. Offenbach, 336 S.W.3d 610, 615 (Tex. 2011)(citing In re Labatt Food

Serv., L.P., 279 S.W.3d 640, 643 (Tex. 2009)). A trial court abuses its discretion if it rules

without reference to guiding rules or principles. Samlowski v. Wooten, 332 S.W.3d 404, 410

(Tex. 2011).

I. Expert Qualifications

We first address Issue Two, in which the Hospital asserts Dr. Koumjian is not

qualified to render expert opinions. To opine on whether a health care provider other than

a physician has departed from accepted standards of health care, the Healthcare Liability

Act requires that an expert must be a person who:

(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;

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 (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.

TEX.CIV.PRAC.&REM.CODE ANN. § 74.402(b); TEX.CIV.PRAC.&REM.CODE ANN.

§ 74.351(r)(5)(B). To opine on causation in any healthcare liability claim, an expert must

be 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)(C).

An expert report or its required accompanying curriculum vitae must show that the expert

is qualified to opine on the subject matter at issue. TEX.CIV.PRAC.&REM.CODE ANN.

§ 74.351(a); In re McAllen Med. Center, Inc., 275 S.W.3d 458, 463 (Tex. 2008). The medical

expert need not practice in the same specialty as the defendant in order to qualify as an expert.

Roberts v. Williamson, 111 S.W.3d 113, 122 (Tex. 2003). However, not every licensed physician

is always qualified to testify on every medical question. Broders v. Heise, 924 S.W.2d 148, 152

(Tex. 1996).

To determine whether an expert report is sufficient to demonstrate the qualifications of the

expert to opine, the trial court should focus on the medical expert’s “knowledge, skill, experience,

training, or education” concerning 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 153-54 (applying

Texas Rule of Evidence 702); see also Tenet Hospitals, Ltd. v. Garcia, 462 S.W.3d 299, 306

(Tex.App.--El Paso 2015, no pet.)(application of rules of evidence in assessing expert’s

qualifications to opine on causation as set forth in Section 74.351(r)(5)(C) pertains only to expert’s

qualifications and does not extend to expert’s opinion). The focus of the trial court should not be

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on the specialty of the medical expert. Roberts, 111 S.W.3d at 122. A medical expert from one

specialty may be qualified to testify if he has practical knowledge of what is traditionally done by

medical experts of a different specialty under circumstances similar to those at issue in the case.

Pediatrix Med. Services Inc. v. De La O, 368 S.W.3d 34, 40 (Tex.App.--El Paso 2012, no pet.). If

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

practitioner familiar with the subject may testify as to the standard of care. Id. at 40. The trial

court must ascertain that the expert does indeed possess the expertise on the subject for which he is

giving an expert opinion. Palafox v. Silvey, 247 S.W.3d 310, 316 (Tex.App.--El Paso 2007, no

pet.). The proffered medical expert’s qualifications must be evident from the four corners of his

expert report and curriculum vitae. See Palacios, 46 S.W.3d at 878. We cannot infer causation

either by filling in missing gaps or by guessing what an expert likely meant or intended. Tenet

Hosps. Ltd. v. Bernal, 482 S.W.3d 165, 171 (Tex.App.--El Paso 2015, no pet.); Tenet Hosps, Ltd.

v. Garcia, 462 S.W.3d 299, 310 (Tex.App.--El Paso 2015, no pet.)(citing Bowie Mem’l Hosp. v.

Wright, 79 S.W.3d 48, 52 (Tex.2002)).

Dr. Koumjian’s Qualifications

We first address Issue Two in which the Hospital challenges Dr. Koumjian’s qualifications

to provide an expert opinion in this case. The Hospital first asserts that Maria’s complaint in the

trial court is limited to Oscar’s post-operative care after the performance of an outpatient shoulder

manipulation, and argues that Dr. Koumjian has failed to establish within his report and

curriculum vitae that he is qualified to render expert opinions regarding the standard of

post-procedure care for this type of outpatient procedure. The Hospital suggests that

Dr. Koumjian’s expert report and curriculum vitae leave us to impermissibly infer his familiarity

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with non-cardiovascular, orthopaedic procedures.

We disagree with these assertions. In her petition, Maria asserts that: (1) the Hospital

knew or should have known that Oscar was at risk for “developing a cardiac arrest because of

severe coronary disease;” (2) while Oscar was at the Hospital, the standard of care included proper

assessment and treatment to prevent a patient like Oscar from “developing a cardiac arrest because

of severe coronary artery disease;” (3) the Hospital violated the standard of care by failing to

provide proper assessment and treatment to prevent Oscar’s cardiac arrest and death; and (4) at all

relevant times, the Hospital acted by and through its employees and agents and are vicariously

liable for their negligent acts and omissions. 2 There is no question that Maria’s complaint

addresses Oscar’s status as an at-risk cardiac patient, and challenges the Hospital’s compliance

with the proper standard of care to be provided him as an at-risk cardiac patient. Therefore,

pursuant to Section 74.351(r)(5)(B), Dr. Koumjian must establish that he is qualified under the

requirements of Section 74.402(b) to testify as an expert witness on the issue of whether the

defendant health care provider departed from accepted standards of care.

TEX.CIV.PRAC.&REM.CODE ANN. § 74.351(r)(5)(B); TEX.CIV.PRAC.&REM.CODE ANN.

§ 74.402(b).

Applicable Law

In a suit involving a health care liability claim against a health care provider, a person may

2
Although for simplicity we address Appellant Hospital as the health care provider, we analyze the sufficiency of the
expert report only with respect to the actions of the Hospital’s employees and agents in Maria’s vicarious liability
claim. See Certified EMS, Inc. v. Potts, 392 S.W.3d 625, 626 (Tex. 2013)(defendant did not challenge adequacy of
expert report as to its vicarious liability); TTHR Ltd. Partnership v. Moreno, 401 S.W.3d 41, 45 (Tex. 2013)(expert
report is analyzed as to physician’s actions, and plaintiff’s claims that hospital was vicariously liable for the
physician’s actions may proceed if expert report regarding physician’s actions adequately address the standard of care,
breach, and causation as to physician); see also Tenet Hosp. Ltd. v. Bernal, 482 S.W.3d 165, 174 (Tex.App.--El Paso
2015, no pet.)(expert must consider both the pleadings and the medical record in formulating opinion, but is not
required to address hospital’s vicarious liability for physician’s acts or omissions in order for expert’s report to be
adequate)(citing Loaisiga v. Cerda, 379 S.W.3d 248, 261 (Tex. 2012)).
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qualify as an expert witness on the issue of whether the health care provider departed from

accepted standards of care only if the person:

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

(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. [Emphasis added].

TEX.CIV.PRAC.&REM.CODE ANN. § 74.402(b). “Practicing health care” includes: (1) training

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

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

certified, or registered in the same field as the defendant health care provider.

TEX.CIV.PRAC.&REM.CODE ANN. § 74.402(a).

In determining whether a witness is qualified on the basis of training or experience, the

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

witness: (1) is certified by a licensing agency of one or more states of the United States or a

national professional certifying agency, or has other substantial training or experience, in the area

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

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

determining whether an expert is qualified to offer expert testimony on the issue of whether the

defendant health care provider departed from accepted standards of medical care, the court shall

apply the criteria specified in Subsections (a), (b), and (c) but may depart from those criteria if,

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under the circumstances, the court determines that there is a good reason to admit the expert's

testimony. TEX.CIV.PRAC.&REM.CODE ANN. § 74.401(d). If it departs from the specified

criteria, the court shall state on the record its reason for admitting the testimony. Id.

Analysis
Qualifications to Opine on Standard of Care and Causation

Maria filed Dr. Koumjian’s expert report regarding the Hospital as well as his curriculum

vitae. Dr. Koumjian’s curriculum vitae indicates that he has been licensed to practice medicine

since 1978, is currently the Chief of Surgery at Sharp Grossmont Hospital, has appointments as

attending staff, consulting staff, provisional staff, or transitional staff in cardiothoracic surgery at

seven hospital facilities, is board certified in Thoracic Surgery, and also conducts a private practice

in cardiovascular and thoracic surgery. Thus, he was licensed and practicing medicine as a

cardiovascular and thoracic surgeon and as Chief of Surgery at the time of his expert report and at

the time Maria’s claim arose. He has previously served as Chief of the Cardio-Thoracic Section

of Scripps Mercy Hospital, and has served as a District Counselor for the American College of

Cardiologists. Dr. Koumjian has completed residencies in general surgery and cardiothoracic

surgery, as well as fellowships involving cardiac surgery, cardiac transplantation, and cardiac

“valve.” He has lectured on the intra-operative use of inotrophic agents during and immediately

post-cardiopulmonary bypass, and has served as an assistant clinical professor of surgery for the

University of California at San Diego’s Department of Cardiac Surgery.

In his expert report, Dr. Koumjian states his medical practice involves the diagnosis and

treatment of coronary artery disease under the same or similar circumstances here, and

Dr. Koumjian states he is familiar with the standard of care concerning the evaluation of both the

risk and prevention of death caused by severe coronary atherosclerosis under the same or similar

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circumstances in this case. He is also familiar with the evaluation, consultation, diagnosis, and

treatment of patients who are at risk for death caused by atherosclerosis. Dr. Koumjian consults

and works with other health care providers concerning patients who are at risk and have symptoms

associated with severe coronary artery disease, and is familiar with the standard of care for the

evaluation, consultation, diagnosis, and treatment of patients who are at risk for death caused by

severe coronary atherosclerosis. He works closely with nurses who evaluate at-risk patients who

have symptoms associated with severe coronary artery disease under the same or similar

circumstances presented in this case, and is familiar with the nursing standard of care for reporting

to physicians the symptoms associated with coronary artery disease under the same or similar

circumstances as presented in this case, the diagnosis, care, or treatment of which is involved in

Maria’s claim.

Dr. Koumjian has demonstrated that at the time his testimony was given, he was practicing

healthcare in a field of practice that involves the same type of care or treatment as that delivered by

the defendant healthcare provider, if the provider is an individual, or was practicing that type of

health care at the time the claim arose. TEX.CIV.PRAC.&REM.CODE ANN. §§ 74.351(r)(5)(B);

TEX.CIV.PRAC.&REM.CODE ANN. § 74.402(a), (c). He has sufficiently demonstrated that he has

knowledge of the accepted standards of medical care for the diagnosis, care, or treatment of the

illness, injury, or condition involved in Maria’s claim, and is qualified on the basis of training or

experience to offer an expert opinion regarding the accepted standards of medical care.

TEX.CIV.PRAC.&REM.CODE ANN. § 74.351(r)(5)(B); TEX.CIV.PRAC.&REM.CODE ANN.

§ 74.402(b)(2), (3).

Qualifications to Opine on Causation

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 The Hospital also complains that Dr. Koumjian has failed to sufficiently demonstrate that

he is qualified to render an expert opinion on the causal nexus of Oscar’s death, asserts that he has

failed to mention that he possesses any causation expertise, and specifically complains that he fails

to discuss “post-operative” care for shoulder manipulation, noting that Dr. Koumjian’s report

speaks in terms of the applicable standards of care without specific reference to his “causation

expertise.” That Dr. Koumjian’s expert report speaks in terms of standard of care but does not

specifically speak in terms of causation does not necessarily render his report deficient in

demonstrating his qualifications to opine on causation. Moreover, as we have noted, Maria’s

petition challenges the adequacy of care administered to Oscar as an at-risk cardiac patient. We

will therefore address whether Dr. Koumjian has demonstrated his qualifications to opine on

causation in that regard.

To opine on causation in any healthcare liability claim, an expert must be 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)(C); TEX.CIV.PRAC.&REM.CODE

ANN. § 74.401(a). Rule of Evidence 702 provides that a witness who is qualified as an expert by

knowledge, skill, experience, training, or education may testify in the form of an opinion if the

expert’s scientific, technical, or other specialized knowledge will help the trier of fact to

understand the evidence or determine a fact issue. See TEX.R.EVID. 702. Section

74.351(r)(5)(C) incorporates the rules of evidence in the context of the expert's qualifications, not

the substance of the opinion itself. Garcia, 462 S.W.3d at 306. Consequently, Rule 702’s

requirement that the witness must be qualified by “knowledge, skill, experience, training, or

education” applies here. Id.

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 That an expert is qualified to opine on the subject matter at issue may be shown in the

expert’s report or its required accompanying curriculum vitae. TEX.CIV.PRAC.&REM.CODE ANN.

§ 74.351(a); In re McAllen Med. Center, Inc., 275 S.W.3d at 463. Although the Hospital has

focused its complaints in the context of alleged inadequacies in Dr. Koumjian’s report, we have

examined and addressed Dr. Koumjian’s report and curriculum vitae, and find that he has

adequately shown that he is qualified by knowledge, skill, experience, training, or education to

opine on causation on the matter at issue.

To the extent we have addressed Dr. Koumjian’s qualifications by knowledge, skill,

experience, training, or education as presented within the four corners of his expert reports, we

need not repeat them here. However, in addition to stating that his “practice of medicine involves

the diagnosis and treatment of coronary artery disease, under the same or similar circumstances as

in this case,” Dr. Koumjian also notes his familiarity with the standard of care for the prevention of

death under the same or similar circumstances as those of Oscar.

Dr. Koumjian’s qualifications to opine on the standards of care, breach of those standards,

and causation arising from such breach with regard to the claims in this case are evident within the

four corners of his expert report and curriculum vitae. See Palacios, 46 S.W.3d at 878.

Consequently, because Dr. Koumjian’s expert report shows that he is a physician having

knowledge and experience concerning the subject of his opinion, we conclude the trial court did

not abuse its discretion in determining that Dr. Koumjian was qualified to offer an opinion on the

applicable standards of care, breach of those standards, and the causation of Oscar’s cardiac arrest

and death. Issue Two is overruled.

II. Expert Report on Causation

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 In Issue One, the Hospital challenges Dr. Koumjian’s expert report regarding causation.

Before proceeding with our analysis of the Hospital’s causation complaint, we observe that at the

conclusion of Issue Two, the Hospital complains that Dr. Koumjian’s expert report is fatally

deficient with respect to any direct liability claims against it, and contends the trial court abused its

discretion when it failed to dismiss Maria’s “direct liability claims.” We address the Hospital’s

direct-liability complaint here because it challenges the sufficiency of Dr. Koumjian’s expert

report rather than his qualifications to opine which we addressed in Issue Two above.

As Maria correctly notes, her pleadings do not assert direct liability against the Hospital but

instead allege, “At all relevant times, Defendants El Paso Specialty Hospital and El Paso

Orthopaedic Surgery Group acted by and through its employees and agents and are vicariously

liable for their negligent acts and omissions.” Even if Maria had pleaded a direct liability theory

at the time of the expert report, full development of all liability theories is not required at the expert

report stage. See Certified EMS, Inc. v. Potts, 392 S.W.3d 625, 632 (Tex. 2013). Rather, when

an expert report adequately addressing at least one pleaded liability theory satisfies the statutory

requirements, the trial court must not dismiss it. Id.

A plaintiff asserting a health care liability claim must serve each defendant with an expert

report that includes “a fair summary of the expert’s opinions . . . 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 damage

claimed.” TEX.CIV.PRAC.&REM.CODE ANN. § 74.351(r)(6); Van Ness v. ETMC First Physicians,

461 S.W.3d 140, 141 (Tex. 2015); Bustillos v. Rowley, 225 S.W.3d 122, 130 (Tex.App.--El Paso

2005, pet. denied)(expert report need not include full statement of applicable standard of care and

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how it was breached; fair summary must set out what care was expected, but not given)(citing Am.

Transitional Care Ctrs. of Tex., Inc. v. Palacios, 46 S.W.3d 873, 880 (Tex. 2001)). A court is

required to grant a motion challenging the adequacy of an expert report only if it appears to the

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

the definition of an expert report in Subsection (r)(6). TEX.CIV.PRAC.&REM.CODE ANN.

§ 74.351(l); Van Ness, 461 S.W.3d at 141. A report is a good faith effort if it provides adequate

information to inform the defendant of the specific conduct the plaintiff has called into question,

provides a basis for the trial court to conclude that the claims have merit, and does not contain a

material deficiency. Van Ness, 461 S.W.3d at 141-42.

The evidence in the expert report need not be the same evidence as if the merits of the claim

are being litigated. Palacios, 46 S.W.3d at 879; Tenet Hosps. Ltd. v. Barajas, 451 S.W.3d 535,

540 (Tex.App.--El Paso 2014, no pet.). Rather, the expert’s report can be informal and the

information contained therein “does not have to meet the same requirements as the evidence

offered in a summary-judgment proceeding or at trial.” Palacios, 46 S.W.3d at 879; Barajas, 451

S.W.3d at 540. However, an expert must explain, based on facts set out in the report, how and

why the breach caused the injury. Van Ness, 461 S.W.3d at 142, citing Jelinek v. Casas, 328

S.W.3d 526, 539–40 (Tex. 2010). A bare expert opinion that the breach caused the injury will not

suffice. Van Ness, 461 S.W.3d at 142.

Analysis

Dr. Koumjian set out the following facts in his report as those on which he based his

opinions. Oscar’s cardiologist, Dr. Gregorio J. Castillo, examined him on October 29, 2012.

Dr. Castillo noted that Oscar was scheduled for surgery the following week, that his blood sugars

13
were elevated after increasing the dose of medication, that his blood pressure was 110/70, and his

pulse was 63. Although Oscar had no symptoms of dizziness or syncope, Dr. Castillo observed

that Oscar had uncontrolled diabetes and atherosclerotic cardiovascular disease. Dr. Castillo

noted that Oscar did not have a medical contraindication for surgery under general anesthesia for

treatment of his right shoulder adhesive capsulitis, but indicated that Oscar would require close

monitoring because of his history of coronary artery disease.

On November 9, 2012, Oscar went to El Paso Specialty Hospital for a right shoulder

therapeutic manipulation under general anesthesia and an injection of anesthetic, steroid, and

arthrogram. Dr. Scott Protzman, an orthopaedic surgeon, and Nurse Anesthetist Fred Utter

performed the orthopaedic procedure. Oscar’s pre-anesthesia blood pressure was 128/90, and his

heart rate was 84. The anesthesia was started at 9:05 a.m., and the procedure was commenced at

9:21 a.m. The procedure ended at 9:30 a.m., and Oscar was in the recovery room at 9:42 a.m. At

that time, his heart rate was 82, and his respirations were 18. Anesthesia was ended eight minutes

later at 9:50 a.m.

In the recovery room, Oscar complained of increasing pain. He subsequently underwent a

block for post-operative pain, with anesthesia commending at 11:20 a.m. and ending at 11:45 a.m.

Dr. Koumjian’s expert report does not identify the person who administered this anesthesia to

Oscar. In the recovery room, Oscar’s blood pressure was 163/91, and his heart rate had increased

to 91. Oscar told the recovery room nurse that he was feeling dizzy and very sleepy. The nurse

informed Oscar that his symptoms were normal, and noted to Oscar and Maria that although

Oscar’s blood pressure was high, that was normal as well. The unidentified recovery room nurse

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did not notify a physician about Oscar’s reported symptoms, and at approximately 12:50 p.m., “the

nurse” instructed Oscar and Maria to return home.

As instructed, Oscar and Maria returned home. Maria assisted Oscar out of their car and

into their home, and at approximately 2 p.m., Maria left to run errands. When Maria returned

home, she found Oscar unresponsive and called 9-1-1. Emergency medical services arrived at

4:30 p.m., initiated cardio-pulmonary resuscitation on Oscar, and transported him to a hospital,

arriving there at 4:47 p.m. Cardio-pulmonary resuscitation was discontinued at 4:59 p.m., and

Oscar was pronounced dead. An autopsy report shows that Oscar died from severe coronary

atherosclerosis, and the certificate of death identifies Oscar’s immediate cause of death was severe

coronary artery disease.

In his report, Dr. Koumjian explains that Oscar was at risk for death due to severe coronary

artery disease which the Hospital’s nursing staff knew or should have known as Oscar had a

diagnosis of atherosclerotic disease, coronary artery stents, uncontrolled diabetes, and

hypertension, all of which Dr. Koumjian states are well-known risk factors for heart failure and

ventricular tachycardia “which could lead to cardiac arrest if not promptly diagnosed and treated.”

According to Dr. Koumjian, ventricular tachycardia is a fast heart rhythm that starts in the

ventricles of the lower part of the heart, and records show that Oscar, more likely than not,

developed post-procedure ventricular tachycardia. At that time, Oscar experienced a significant

change of blood pressure, an elevated heart rate and dizziness, which are signs and symptoms of

ventricular tachycardia “which if not treated could lead to cardiac arrest.” Dr. Koumjian explains

that under the appropriate standard of care, a STAT cardiac workup, including an EKG, would

have shown ventricular tachycardia, which in turn would have required immediate treatment in the

15
form of defibrillation, intubation, and mechanical ventilation. According to Dr. Koumjian, the

performance of these measures more likely than not would have prevented Oscar’s cardiac arrest.

The Hospital complains that the expert report presents a conclusory assertion of causation,

and notes that in order to satisfy the causation element, an expert’s report “must provide

information linking the defendant’s purported breach of the standard of care to the plaintiff’s

injury.” See Bowie Mem’l Hosp. v. Wright, 79 S.W.3d 48, 53 (Tex. 2002); Tenet Hosps., Ltd. v.

Garcia, 462 S.W.3d 299, 304 (Tex.App.--El Paso 2015, no pet.). This is the first purpose of a

good-faith effort to provide a fair summary of the expert’s opinion. See Palacios, 46 S.W.3d at

878-79. The Hospital contends that Dr. Koumjian’s use of the term “could” in the sentence,

“These were signs and symptoms of ventricular tachycardia which if not treated could lead to

cardiac arrest,” suggests that sometimes ventricular tachycardia does not lead to cardiac arrest, and

argues that he should have provided explanations of whether the condition had resolved itself

before the cardiac arrest, whether cycles of tachycardia may be followed by periods of regular

heart rhythm, why Oscar’s tachycardia was not well-tolerated, and how it led to arrest in the hours

immediately following Oscar’s discharge from the hospital. It also contends that Dr. Koumjian’s

opinion as to causation is deficient because he fails to explain why he believed timely treatment of

Oscar as a patient at risk for cardiac arrest would have been successful. The Hospital argues that

the report requires that the trial court infer that the ventricular tachycardia led to Oscar’s cardiac

arrest. See Palacios, 46 S.W.3d at 878-79. It also rightfully acknowledges that the second

purpose of a good faith effort to provide a fair summary of the expert’s opinion requires that the

report provide the trial court with enough information to evaluate whether a case has merit and also

acknowledges that given the temporal proximity of Oscar’s tachycardia symptoms while at the

16
hospital and his cardiac arrest several hours later, it may be very reasonable, but improper, to infer

that “the condition” did lead to Oscar’s cardiac arrest.

We disagree with the Hospital’s contentions regarding the adequacy of Dr. Koumjian’s

causation analysis. Again, to avoid dismissal, a plaintiff need not present evidence in the report

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

informal in that the information in the report does not have to meet the same requirements as the

evidence offered in a summary-judgment proceeding or at trial. Palacios, 46 S.W.3d at 879.

Dr. Koumjian’s expert report explains that the breach of the standards or care for

monitoring Oscar as an at-risk cardiac patient for the signs and symptoms of tachycardia, which

Dr. Koumjian explained can lead to cardiac arrest if untreated. He further explains that had the

standard of care been adhered to by performing a STAT cardiac workup and immediate treatment

with defibrillation, intubation, and mechanical ventilation, more likely than not, Oscar’s cardiac

arrest would have been prevented, but it was not.

We do not find the temporal proximity of the signs and symptoms of the tachycardia and

Oscar’s cardiac arrest that occurred mere hours, or less, after discharge to require the trial court to

make an improper inference as to causation. These facts differ significantly from those in Tenet

Hosps. Ltd. v. Bernal, 482 S.W.3d 165, 175 (Tex.App.--El Paso 2015, no pet.), in which we

concluded the expert report did not adequately explain how conditions arising in a surgery two and

one-half months prior to death caused the patient’s death, and differ from those in Clapp v. Perez,

394 S.W.3d 254 (Tex.App.--El Paso 2012, no pet.), in which we concluded that the expert report

failed to adequately link death to a failure to insert a naso-gastric tube during a procedure

performed two weeks earlier. Rather, we conclude the close proximity between the onset of

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Oscar’s tachycardia signs and symptoms, the improper monitoring, diagnosis, and treatment of

those signs and symptoms, the discharge of Oscar from the hospital despite the existence of those

signs and symptoms, and the event of Oscar’s cardiac arrest within hours after being told his

symptoms were normal and being sent home supports the trial court’s determination that

Dr. Koumjian’s expert report is adequate as to causation.

Because this expert report properly informs the Hospital of the specific conduct Maria has

called into question, and provides a basis for the trial court to conclude that her claims have merit,

it represents a good faith effort to provide a fair summary of Dr. Koumjian’s opinions on the

elements identified in the statute. Palacios, 46 S.W.3d at 878. Because the trial court acted

within its discretion in determining that Dr. Koumjian’s expert report was not conclusory but

represented a good-faith effort to comply with the Medical Liability Act, Issue One is overruled.

CONCLUSION

The trial court’s order is affirmed.

August 24, 2016
YVONNE T. RODRIGUEZ, Justice

Before McClure, C.J., Rodriguez, and Hughes, JJ.

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