Diagnostic Healthcare Services D/B/A Onsite Balance Solutions, LLC v. Dianne Jackson

COURT OF APPEALS

THIRTEENTH DISTRICT OF TEXAS

CORPUS CHRISTI - EDINBURG

NUMBER 13-15-00170-CV

DIAGNOSTIC HEALTHCARE SERVICES D/B/A
ONSITE BALANCE SOLUTIONS, LLC, Appellant,

v.

DIANNE JACKSON, Appellee.

NUMBER 13-15-00171-CV

P. PALIVELA RAJU, M.D., Appellant,

v.

DIANNE JACKSON, Appellee.

On appeal from the 23rd District Court
of Matagorda County, Texas.

MEMORANDUM OPINION
 Before Chief Justice Valdez and Justices Rodriguez and Longoria
Memorandum Opinion by Justice Rodriguez
Appellants, Diagnostic Healthcare Services, d/b/a Onsite Balance Solutions, LLC,

(OBS) and P. Palivela Raju, M.D., appeal the trial court’s orders denying their motions to

dismiss appellee Dianne Jackson’s claims pursuant to section 74.351 of the Texas Civil

Practice and Remedies Code for failure to file an expert report in good faith. 1 TEX. CIV.

PRAC. & REM. CODE ANN. § 74.351 (West, Westlaw through Ch. 46, 2015 R.S.). We

affirm.

I. BACKGROUND

Jackson saw Dr. Raju, an ear, nose, and throat specialist, complaining of vertigo.

On March 28, 2012, Jackson underwent balance testing at Dr. Raju’s office, which Dr.

Raju scheduled with OBS, a third-party, non-physician, medical service provider. OBS

employee Danny Hertzer seated Jackson in a chair to perform a “caloric stimulation” test.2

After that test was completed but before Jackson began the vertigo test, Jackson fell

backwards in the chair and allegedly suffered injury to her knee and shoulder. Though

the testing took place at Dr. Raju’s office, neither Dr. Raju nor any member of his staff

was present during the testing or when Jackson fell.

Jackson sued OBS and Dr. Raju under Chapter 74 of the civil practice and

1
Appellants filed separate appeals. However, because they involve the same underlying facts
and issues, we address Cause No. 13-15-00170-CV and No. 13-15-00171-CV in one memorandum
opinion.

2 According to Jackson, a “caloric stimulation” test stimulates the acoustic nerve by delivering cold

or warm water or air into the ear canal.

2
remedies code.3 In support of her claims, Jackson attached to her original petition an

expert report and curriculum vitae from orthopedic surgeon Arnold Ravdel, M.D. Dr.

Ravdel opined that Dr. Raju was required to ensure that all medical equipment was

properly maintained, in working order, and that his patients were supervised at all times,

either by himself or his staff, when medical tests are being performed. Dr. Ravdel further

opined that the chair from which Jackson fell was poorly maintained and/or malfunctioning

and noted that Dr. Raju did not supervise OBS’s testing. Though Dr. Ravdel’s report

referenced OBS in passing, the report addressed neither the standard of care applicable

to OBS nor any breach of that standard.

Dr. Raju timely objected to Dr. Ravdel’s report. Jackson did not file an amended

report, and Dr. Raju subsequently filed a motion to dismiss Jackson’s lawsuit against him.

OBS did not object to Dr. Ravdel’s report and instead filed a motion to dismiss Jackson’s

lawsuit against it. The trial court denied appellants’ motions to dismiss. This appeal

followed.

II. APPLICABILITY OF THE TEXAS MEDICAL LIABILITY ACT

As a preliminary matter, Jackson contends that her claims are not claims of

professional negligence such that they are subject to the expert report requirements found

in section 74.351(a) of the civil practice and remedies code. See id. § 74.351(a).

Specifically, Jackson pled claims for general negligence and premises liability against

appellants that she maintains are the appropriate causes of action going forward.

Because we must determine the applicability of the Texas Medical Liability Act

3 By amended petition Jackson also alleged claims for general negligence and premises liability.
3
(TMLA) to Jackson’s claims, which is a question of law, we apply a de novo standard of

review. See Tex. W. Oaks Hosp., LP v. Williams, 371 S.W.3d 171, 177 (Tex. 2012).

The TMLA defines the procedural requirements for bringing a health care liability claim

(HCLC) in Texas and is codified under Chapter 74 of the Texas Civil Practice and

Remedies Code. See TEX. CIV. PRAC. & REM. CODE ANN. §§ 74.001, et. seq. (West,

Westlaw through Ch. 46, 2015 R.S.). A claim is an HCLC when it is:

A cause of action against a health care provider or physician for treatment,
lack of treatment, or other claimed departure from accepted standards of
medical care, or health care, or safety or professional or administrative
services directly related to health care, which proximately results in injury to
or death of a claimant, whether the claimant’s claim or cause of action
sounds in tort or contract.

Id. § 74.0001(a)(13). Whether a case is an HCLC is determined by the nature of the acts

or omissions causing the alleged injuries. See Williams, 371 S.W.3d at 176. The

statutory requirements of the TMLA cannot be circumvented by artful pleading. Harris

Methodist Fort Worth v. Ollie, 342 S.W.3d 525, 527 (Tex. 2011). “An HCLC contains

three basic elements: (1) a physician or health care provider must be a defendant; (2)

the claim or claims at issue must concern treatment, lack of treatment, or a departure

from accepted standards of medical care, or health care, or safety or professional or

administrative services directly related to health care; and (3) the defendant’s act or

omission complained of must proximately cause the injury to the claimant.” Williams,

371 S.W.3d at 179–80.

The TMLA sets out several types of HCLCs: in addition to claims involving

treatment and lack of treatment, the Act contemplates claims for alleged “departure[s]

from . . . safety . . . .” Id. at 180 (citing TEX. CIV. PRAC. & REM. CODE § 74.001(a)(13)).

4
“[S]afety, undefined in the statute, is commonly understood to mean protection from

danger and that the ‘specific source of that danger . . . is without limitation.’” Id. at 185.

Therefore, the safety component of HCLCs need not be directly related to the provision

of health care. Id. at 186 (recognizing that construing the statute to give safety its

“common meaning” encompasses premises liability claims). However, we do look to the

nature of the alleged “acts or omissions” to distinguish an HCLC from a claim or ordinary

negligence—at a minimum, “there must be a substantive nexus between the safety

standards allegedly violated and the provision of healthcare” that constitutes more than a

“but for” relationship. Ross v. St. Luke’s Episcopal Hosp., 462 S.W.3d 492, 503–04 (Tex.

2015); see Methodist Health Care Sys. of San Antonio, Ltd., v. Dewey, 423 S.W.3d 516,

519 (Tex. App.—San Antonio 2014, pet. denied) (interpreting Williams narrowly to govern

cases that involve safety claims that are indirectly related to healthcare).

Jackson’s claims meet the three basic requirements for an HCLC: (1) she sued

her physician, Dr. Raju, and her non-physician health care provider, OBS; (2) the claims

involve an alleged departure from accepted standards of safety; and (3) Jackson’s

pleadings allege that the acts and/or omissions of appellants proximately caused her

injuries. See Williams, 371 S.W.3d at 179–80. Jackson’s claims occurred while

undergoing testing for vertigo. The testing was recommended by her treating physician,

scheduled by her physician, and took place in his office. During her testing, the balance

chair, a medical device used in the testing, allegedly broke causing Jackson’s fall.

Jackson’s claims are, at the very least, indirectly related to healthcare. See Ross, 462

S.W.3d at 503–04; Dewey, 423 S.W.3d at 519. Therefore, we determine that Jackson’s

5
claims that appellants failed to maintain the balance testing chair in a proper condition

and failed to adequately supervise the balance testing are HCLCs and are subject to the

requirements of the TMLA. See Williams, 371 S.W.3d at 185–86.

III. STANDARD OF REVIEW

We review a trial court’s denial of a motion to dismiss a claimant’s cause of action

under the TMLA for an abuse of discretion. Jelinek, 328 S.W.3d at 539. A trial court

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

to any guiding rules or principles. Downer v. Aquamarine Operators, Inc., 701 S.W.2d

238, 241–42 (Tex. 1985).

IV. “NO REPORT” OR “DEFICIENT REPORT” AS TO OBS

By its first three issues, OBS contends Jackson’s expert report constituted “no

report” as to OBS and, thus, the trial court abused its discretion when denied OBS’s

motion to dismiss. Specifically, OBS argues that the report filed by Jackson failed to (1)

primarily implicate OBS, (2) failed to set forth any breach of the standard of care or

causation analysis as to OBS, and (3) failed to provide any explanation of how different

care by OBS would have prevented the alleged injuries.

A. Applicable Law

The Texas Civil Practice and Remedies Code provides that “within 120 days of

suit, a plaintiff must serve expert reports for each physician or health care provider against

whom a liability claim is asserted.” Ogletree v. Matthews, 262 S.W.3d 316, 319 (Tex.

2007) (citing TEX. CIV. PRAC. & REM. CODE ANN. § 74.351(a)). If a plaintiff does not file a

timely report, “a trial court ‘shall’ grant the defendant’s motion to dismiss the case with

6
prejudice.” Id. “But if a report is served, each defendant physician or health care

provider whose conduct is implicated must file and serve any objection to the sufficiency

of the report not later than the 21st day after the date it was served, failing which all

objections are waived.” Id. (internal quotations omitted). A defendant is only required

to object to the sufficiency of the report if implicated therein—otherwise, there is no report

filed as to that defendant and a motion to dismiss is appropriate. E.g., Thomas v. Torrez,

362 S.W.3d 669, 672 (Tex. App.—Houston [14th Dist.] 2011, pet. dism’d).

The Texas Supreme Court has held that to qualify as a report pursuant to section

74.351(a), the expert report need only (1) be served by the statutory deadline, (2) contain

the opinion of an individual with expertise that the claim has merit, and (3) implicate the

defendant’s conduct. Scoresby v. Santillan, 346 S.W.3d 546, 557 (Tex. 2011); Laredo

Tex. Hosp. Co., L.P. v. Gonzalez, 363 S.W.3d 255, 257 (Tex. App.—San Antonio 2012,

no pet.). It is recognized that a claimant can fail to serve an expert report as to a

defendant when “a claimant serves a report in an attempt to satisfy all the requirements

for an expert report” as to other defendants, but the report does not implicate the conduct

of the defendant in question. Thomas, 362 S.W.3d at 672 (concluding that multiple

passing references to a named defendant in an expert report were not sufficient to

implicate that defendant and it was “no report” as to her); see also Bogar v. Esparza, 257

S.W.3d 354, 364–69, 373 (Tex. App.—Austin 2008, no pet.); Rivens v. Holden, 257

S.W.3d 332, 338–39 (Tex. App.—Houston [1st Dist.] 2008, pet denied); Apodaca v. Ruso,

228 S.W.3d 252, 255–58 (Tex. App.—Austin 2007, no pet).

Analyzing the third Scoresby factor, a report does not “implicate” a particular health

7
care provider’s conduct merely because the provider is a defendant in the lawsuit. See

Scoresby, 346, S.W.3d at 557; Ogletree, 262 S.W.3d at 322–23; see also Thomas, 362

S.W.3d at 672; Bogar, 257 S.W.3d at 373; Rivenes, 257 S.W.3d at 338–39; Apodaca,

228 S.W.3d at 255–58. The term “implicated” is not defined in Chapter 74. Section

74.001 provides that, “[a]ny legal term or word of art used in this chapter, not otherwise

defined in this chapter, shall have such meaning as consistent with the common law.”

TEX. CIV. PRAC. & REM. CODE ANN. § 74.001(b). The term “implicate” is defined in

common usage as “[t]o show (a person) to be involved in.” Beckwith v. White, 285

S.W.3d 56, 62 (Tex. App.—Houston [1st Dist.] 2009, no pet). “Although somewhat

loosely defined at common law, a defendant's conduct is implicated when an expert report

is ‘directed primarily’ to care provided by the defendant, and the report informs the

defendant of specific conduct called into question and provides a basis for the trial court

to determine that the claim has merit.” Id. (internal citations omitted) (citing Ogletree,

262 S.W.3d at 318 (Tex. 2007); Am. Transitional Care Ctrs. of Tex., Inc. v. Palacios, 46

S.W.3d 873, 876–80 (Tex. 2001)); see also Thomas, 362 S.W.3d at 672. If a report does

not implicate the conduct of each defendant, then it fails the three prong test set forth in

Scoresby, and is “no report,” as to the “un-implicated” defendant, thereby mandating

dismissal in that defendant’s favor. See Scoresby, 346 S.W.3d at 556–57; Thomas, 362

S.W.3d at 672.

We look only to the four corners of the expert’s report and curriculum vitae in

deciding whether the statutory standard has been met. See Mem’l Hermann Healthcare

Sys. v. Burrell, 230 S.W.3d 755, 758 (Tex. App.—Houston [14th Dist.] 2007, no pet.);

8
Apodaca, 228 S.W.3d at 257 (noting that when reviewing whether an expert report

complies with the statutory requirements, appellate courts may only consider the four

corners of the report itself).

B. Discussion

Jackson filed Dr. Ravdel’s written report within the 120-day window provided by

statute. See TEX. CIV. PRAC. & REM CODE ANN. § 74.351(a). Therefore, if Dr. Ravdel’s

report satisfies the three-prong Scoresby test and merely contains curable deficiencies,

then OBS waived any objection to the report by failing to object within twenty-one days.

See id.; Scoresby, 346 S.W.3d at 557. However, if Dr. Ravdel’s report did not satisfy the

Scoresby test, then the report is “no report,” and the trial court abused its discretion by

denying OBS’s motion to dismiss. See TEX. CIV. PRAC. & REM CODE ANN. § 74.351(a);

Scoresby, 346 S.W.3d at 557; Laredo Tex. Hosp., 363 S.W.3d at 258–59.

We review the four corners of Dr. Ravdel’s expert report and curriculum vitae to

determine whether the report satisfied the Scoresby test. See Burrell, 230 S.W.3d at

758. OBS does not challenge Dr. Ravdel’s report on the first two prongs; instead, OBS

contends that Dr. Ravdel’s report fails to implicate the conduct of OBS and thus fails the

third prong. See TEX. CIV. PRAC. & REM CODE ANN. § 74.351(a); Scoresby, 346 S.W.3d

at 557; Laredo Tex. Hosp., 363 S.W.3d at 258–59.

Though Dr. Ravdel’s report was clearly critical of Dr. Raju, it was less specific

regarding OBS. We reproduce Dr. Ravdel’s report in relevant part.

I have reviewed the medical records in this case and conferred with
you about the injuries sustained to Ms. Dianne Jackson on or about March
28th, 2012, when she was injured on the premises of Dr. P.P Raju’s medical
practice, when Onsite Balance Solutions administered a vertigo test using

9
a medical chair that was not properly maintained.

The test was conducted by staff from Onsite Balance Solutions on
Dr. Raju’s premises. The patient was placed in a rotating chair and was
not supervised by staff from Dr. Raju’s office after being placed in the chair.
Instead, the supervision was provided by Onsite Balance Solutions, hired
by Dr. Raju’s Office to administer the test. The chair improperly rolled after
Ms. Jackson was seated in it, causing the patient to fall out of the chair and
sustain an injury to her left knee and shoulder. Subsequent to her fall, the
patient was treated for both injuries. Although she had existing problems
to her knee prior to the fall her knee was asymptomatic prior to the fall on
March 28, 2012. As a result of the injury to her left shoulder joint and left
knee, patient required surgery to repair the damage.

....

This report is to detail my findings and conclusions based on the
medical records reviewed. All of the opinions expressed in this report are
within reasonable medical probability and based on my education, training
and experience as a surgeon and physician, including particularly my
experience and knowledge about orthopedic injuries, complications and
surgery. After reviewing the medical records and information in this case,
including medical records from Brazoria County Surgical Center,
Brazosport Regional, Dr. Feaver, Dr. Hoffman, Dr. Raju, and Rehabilitation
and Wellness Center, in all reasonable medical probability, the torn medical
and lateral menisci found in the left knee joint, and the partial thickness
rotator cuff tear, with labral, glenoid tear, is a direct result of the fall on March
28th, 2012, when Plaintiff was seated in what appears to be a poorly
maintained or malfunctioning chair in the control of Dr. Raju and operated
by Onsite Balance Solutions.

The standards of care that apply to this case are as follows:

Physician: Dr. Raju, as the owner and sole physician at medical
practice located at 1410 Avenue F, Bay City, Texas 77414 is required
to ensure that all medical equipment is properly maintained, in
working order, and that his patients are supervised by himself or
qualified medical staff at all times when medical tests are being
performed. On March 28, 2012, Ms. Jackson was seated in a poorly
maintained and/or malfunctioning medical chair used to test for
vertigo. During the test, conducted by Onsite Balance Solutions,
neither Dr. Raju nor his office staff were present when Onsite
Balance Solutions performed the medical testing which lead to Ms.
Jackson’s fall.

10
 Nursing Staff: Nursing staff should ensure that all medical devices
under their care and/or control are in proper operating order. Here,
not only did the nursing staff fail to ensure that the medical device
used to test Ms. Jackson for vertigo was functioning properly, but
they failed to supervise its operation when the test was conducted by
staff from Onsite Balance Solutions.

While the determination of whether or not Dr. Ravdel’s report implicated OBS is a close

call in this case, we cannot say that the trial court acted arbitrarily or without reference to

any guiding rules or principles when it denied OBS’s motion to dismiss.4 See Scoresby,

346 S.W.3d at 557. According to Scoresby, Jackson was required to serve an expert

report implicating each defendant pursuant to the TMLA—we determine it did. See TEX.

CIV. PRAC. & REM. CODE ANN. § 74.351(a), (r)(6); Scoresby, 346 S.W.3d at 557. Dr.

Ravdel’s report states that OBS “administered a vertigo test using a medical chair that

was not properly maintained,” and later states that Jackson’s injuries resulted because

she was seated in a poorly maintained or malfunctioning chair “operated” by OBS. This

language includes more than a “passing mention” of OBS’s activities, informs OBS of

specific conduct called into question, and provides a basis for the trial court to determine

if Jackson’s claim has merit. See Beckwith, 285 S.W.3d at 62; see also Thomas, 362

S.W.3d at 672. Although OBS was not included in the applicable “standard of care”

section, Dr. Ravdel’s report mentioned OBS a total of seven times and clearly stated that

OBS conducted, administered, and supervised the testing that led to Jackson’s fall. The

report filed by Jackson did not comply with the statutory requirements of section

4 In denying OBS’s motion to dismiss, the trial court order stated that OBS’s failure to object to Dr.

Ravdel’s report within the twenty-one day window waived its complaints, impliedly finding that Dr. Ravdel’s
report did not constitute “no report” as to OBS.

11
74.351(r)(6) as to OBS—but it does constitute a report. We conclude that Dr. Ravdel’s

report implicates OBS and therefore satisfies the third prong of the Scoresby test. See

Scoresby, 346 S.W.3d at 557. The trial court therefore did not abuse its discretion when

it denied OBS’s motion to dismiss.

We overrule OBS’s first issue. We do not reach its second and third issues on

appeal because OBS waived any complaint to the sufficiency of the report when it failed

to object within twenty-one days as required by section 74.351(a). See TEX. CIV. PRAC.

& REM. CODE ANN. § 74.351(a), TEX. R. APP. P. 47.1.

V. GOOD FAITH REPORT AS TO DR. RAJU

Dr. Raju, by four issues, contends the trial court abused its discretion when it

denied his motion to dismiss Jackson’s HCLC against him for failing to file a good faith

report as required by statute. Specifically, he contends that Dr. Ravdel is not qualified

to render opinions regarding balance testing for vertigo and that Dr. Ravdel’s report failed

to meet the statutory requirements because it was conclusory and based on mere

assumptions. Dr. Raju does not contend, as did OBS, that Dr. Ravdel’s report was “no

report,” but instead asks this Court to determine that the report was deficient and not

made in good faith.

A. Applicable Law

As set out earlier, under the unambiguous language of section 74.351, a claimant

satisfies the “expert report” requirement as to a defendant only by properly serving, within

the 120-day time period, a report or reports that satisfy all the requirements for an “expert

report” as to that defendant. See TEX. CIV. PRAC. & REM. CODE ANN. § 74.351(a), (b), (i),

12
(r)(6).

Section 74.401 sets forth the statutory expert qualifications necessary to render an

opinion against a physician under the TMLA. See id § 74.401. In order to qualify as an

expert witness on the issue of whether a physician departed from accepted standards of

medical care, the expert must be currently practicing medicine with knowledge of the

accepted standards for the diagnosis, care, or treatment of the condition involved in the

claim, and be qualified on the basis of training or experience to offer an expert opinion

regarding those accepted standards of medical care. Id. at § 74.401(a)(1)–(3).

Trial courts must ensure that the purported expert actually has expertise

concerning the subject matter of their opinion. See Gammill v. Jack Williams Chevrolet,

Inc., 972 S.W.2d 713, 719 (Tex. 1998). Every licensed medical doctor is not

automatically qualified to testify as an expert on every medical question. See Broders v.

Heise, 924 S.W.2d 148, 152 (Tex. 1996). The expert’s knowledge or training must fit the

subject matter at issue. See id.

If the expert is qualified, the TMLA further dictates that the expert report include

the following content:

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). Failure to include the above content

renders an expert report deficient. Ogletree, 371 S.W.3d at 180. However, when an

expert report is challenged, the trial court may deny a motion to dismiss when the report

13
represents an objective good faith effort to comply with the definition of an expert report.

See TEX. CIV. PRAC. & REM. CODE ANN. § 74.351(l); Samlowski v. Wooten, 332 S.W.3d

404, 409 (Tex. 2011). The Texas Supreme Court has explained “that a ‘good faith effort’

in this context simply means a report that does not contain a material deficiency.

Therefore, an expert report that includes all the required elements, and that explains their

connection to the defendant's conduct in a non-conclusory fashion, is a good faith effort.”

Samlowski, 332 S.W.3d at 409–10 (internal citations omitted). In contrast, a conclusory

report or one that omits an element is not a good faith effort. Id. at 410 (citing Palacios,

46 S.W.3d at 879). A report need not marshal all of the plaintiff’s proof, but must include

the expert’s opinion on the standard of care, breach, and causal relationship. See Bowie

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

B. Dr. Ravdel’s Qualifications

Dr. Ravel served both his report and curriculum vitae on Dr. Raju. We look to the

four corners of those documents to determine if Dr. Ravdel is qualified to provide an

expert opinion in this case. See Burrell, 230 S.W.3d at 758. Dr. Ravdel is a board

certified orthopedic surgeon and has been practicing medicine for over forty years. It is

Dr. Raju’s position that Dr. Ravdel, as an orthopedic surgeon, is not qualified to provide

expert opinions on issues pertaining to vertigo and balance testing; he argues that Dr.

Ravdel’s report and curriculum vitae do not indicate that he has any training or experience

either providing or supervising balance tests in the evaluation of vertigo symptoms or the

maintenance of balance chairs used for such testing. In support of his position, Dr. Raju

has cited numerous cases in which physicians were prevented from providing expert

14
opinions outside of their specific areas of expertise. See Hansen v. Starr, 123 S.W.3d

13, 19 (Tex. App.—Dallas 2003, pet. denied) (finding that a doctor, board certified in

internal medicine, cardiology, and interventional cardiology, not qualified to provide an

expert opinion in the area of radiology based on the four corners of his report and

curriculum vitae); Chisholm v. Maron, 63 S.W.3d 903, 907 (Tex. App.—Amarillo 2001, no

pet.) (finding that a doctor was not qualified to provide an expert opinion regarding

orthopedic surgery based on his publication of medical articles); Clark v. HCA, Inc., 210

S.W.3d 1, 7–8 (Tex. App.—El Paso 2005, no pet) (finding that the trial court did not abuse

its discretion when it found the plaintiff’s expert was not qualified because the record did

not indicate the doctor’s current role in the relevant field or his experience with the

anticoagulation therapy at issue); In re Samonte, 163 S.W.3d 229, 237 (Tex. App.—El

Paso 2005, orig. proceeding) (noting that a report that failed to provide the expert’s

qualifications was not sufficient to “establish that the ostensible expert is qualified to

render an opinion on the acceptable standards of care at issue”).

We determine, however, that the claims in this case are not specific to any area of

the practice of medicine, but instead address the general standard of care any medical

physician owes patients to properly maintain medical equipment and supervise medical

testing. We again note that this HCLC does not allege that Dr. Raju is liable for a

departure from accepted standards of medical care, or health care, but we instead

construe it as a claim that Dr. Raju departed from accepted standards of safety. See

TEX. CIV. PRAC. & REM. CODE ANN. § 74.001(13). As such, it is an understanding of the

standard of care regarding the proper maintenance of medical equipment at a physician’s

15
office and the standard of care involving the supervision of patient testing at a physician’s

office that is the relevant to our analysis. See, e.g., Palafox v. Silvey, 247 S.W.3d 310,

315, 319 (Tex. App.—El Paso 2007, no pet.) (noting that a doctor in a different field was

qualified to provide an expert report on the standard of care involved in charting the

dietary needs of elderly patients when the alleged injury involved an elderly patient who

choked after being placed on a regular diet at the hospital). Dr. Ravdel’s curriculum vitae

shows that he has been a private practitioner since 1970 and as such can address the

duties related to the safety of a patient that a private practitioner owes patients while

present at the office for medical services in this limited context. We conclude Dr. Ravdel

is qualified to provide an expert report regarding those topics. See Gammill, 972 S.W.2d

at 719; Palafox, 247 S.W.3d at 319.

We overrule Dr. Raju’s first issue.

C. “Good Faith Effort” in Expert Report

By his second, third, and fourth issues, Dr. Raju asserts that Dr. Ravdel’s report

failed to provide a fair summary of the standard of care and provided conclusory opinions

as to the standard of care and causation, contrary to section 74.351(r)(6). Specifically,

Dr. Raju contends that the vague and general statements of the standard of care and

causation did not constitute a good faith effort to comply with the expert report

requirement.

The issues involved in this “safety” HCLC are unique from other claims under the

TMLA because they do not criticize Dr. Raju’s medical assessment or treatment of

Jackson, rather they essentially involve claims that Dr. Raju departed from standards of

16
safety by failing to provide a safe environment for his patient’s treatment and evaluation.

With that as our basis, we review Dr. Ravdel’s report pursuant to section 74.351(r)(6) to

determine whether it contains the statutorily required elements under the TMLA. See

TEX. CIV. PRAC. & REM. CODE ANN. § 74.351(r)(6).

Dr. Ravdel identified the applicable standard of care when he stated that Dr. Raju,

as the owner and sole physician at his medical practice, was required to ensure that all

medical equipment is properly maintained, in working order, and that his patients are

supervised either by himself or his staff at all times while medical tests are being

performed. Dr. Ravdel went on to state that the balance chair Jackson was seated in for

balance testing was poorly maintained and/or malfunctioning and that neither Dr. Raju

nor any member of his staff was present during the medical testing, implicitly setting forth

the manner in which the care rendered by Dr. Raju was inadequate and in breach of the

standard of care. Finally, Dr. Ravdel’s report stated that the balance chair “improperly

rolled,” causing Jackson to fall and injure her shoulder and knee, which provided the

causal relationship between Dr. Raju’s failure to meet the standard of care and Jackson’s

alleged injuries. The mechanism of injury in this case is “simplistic”—Dr. Ravdel’s expert

report was not required to complicate an otherwise straightforward issue.

We determine that Jackson made an “objective good faith effort” to comply with

the definition of an expert report in section 74.351(r)(6), that his report set out an

appropriate standard of care, adequately addressed causation, and that the trial court did

not abuse its discretion in denying Dr. Raju’s motion to dismiss. See id. § 74.351(l),

(r)(6); Samlowski, 332 S.W.3d at 409–10.

17
 We overrule Dr. Raju’s second, third, and fourth issues.

VI. CONCLUSION

We affirm the trial court’s orders denying appellants’ motions to dismiss.

NELDA V. RODRIGUEZ
Justice

Delivered and filed the
31st day of August, 2015.

18