North Cypress Medical Center Operating Company, Ltd., D/B/A North Cypress Medical Center and Dr. Ozochukwu Odili v. Randy White

Affirmed and Memorandum Opinion filed January 13, 2022.

In The

Fourteenth Court of Appeals

NO. 14-20-00004-CV

NORTH CYPRESS MEDICAL CENTER OPERATING COMPANY, LTD.,
D/B/A NORTH CYPRESS MEDICAL CENTER AND DR. OZOCHUKWU
ODILI, Appellants
V.

RANDY WHITE, Appellee

On Appeal from the 189th District Court
Harris County, Texas
Trial Court Cause No. 2019-14054

MEMORANDUM OPINION

In this interlocutory appeal, appellants Ozochukwu Odili, M.D., (“Dr.
Odili”) and North Cypress Medical Center Operating Company, Ltd. D/B/A North
Cypress Medical Center (“Hospital”) appeal the denial of their motions to dismiss
the health-care liability claims of appellee Randy White. In three issues, Dr. Odili
argues the trial court erred when it allowed White to amend his expert report and
denied his motion to dismiss. In two issues, the Hospital argues that the trial court
erred when it overruled its objections to White’s expert report and denied its
motion to dismiss and that the appropriate remedy, after White was permitted to
amend his expert report once, is rendition of judgment and remand for the
assessment of attorney’s fees and costs. We affirm.

I. BACKGROUND

On March 11, 2017, White was admitted to the emergency department of the
Hospital after a toolbox fell on his hand. White was diagnosed with a six-
centimeter laceration to his thumb and an open intra-articular distal phalanx
fracture with extension into the proximal phalanx of the thumb. Dr. Odili, an
emergency room physician, treated White for his injury at the Hospital and, on that
same day, referred White for an orthopedic consultation on March 13, 2017. On
March 13, 2017, White sought treatment with a different orthopedic surgeon and
was scheduled for surgery on March 16, 2017. During surgery, it was discovered
that White’s wound was infected. The surgery was aborted, and an incision and
drainage procedure was performed. White underwent two subsequent incision and
drainage procedures on March 30, 2017, and April 2, 2017.

On February 25, 2019, White sued Dr. Odili and the Hospital for negligence
in the treatment of his injury. In his live petition, White alleges that the proper
standard of care for his injury required Dr. Odili to immediately send White for
examination and care by a specialist in hand injuries, and that White should have
been rushed to surgery. White alleged that as a result of the delay in treatment, he
suffered multiple complications and expenses, permanent injury to his thumb, and
an impairment rating of nine percent. White alleged that Dr. Odili and the Hospital
were negligent by failing to refer White to a hand specialist immediately for
examination and care of White’s hand; by failing to refer White to emergency
surgery immediately or within twenty-four hours; and in White’s follow up care.

2
White further alleged that Dr. Odili and the Hospital were grossly negligent, and
that the Hospital was, under various theories, vicariously liable for Dr. Odili’s
negligence.

On March 21, 2019, White served Dr. Odili with an expert report authored
by Ramesh Srinivasan, M.D., (“Dr. Srinivasan”), a board-certified orthopedic
surgeon. On May 6, 2019, White served the Hospital with Dr. Srinivasan’s expert
report.1

Dr. Odili and the Hospital each filed timely objections to Dr. Srinivasan’s
expert report on April 8, 2019, and May 24, 2019, respectively. See Tex. Civ. Prac.
& Rem. Code Ann. § 74.351(a) (providing that a party must object to a plaintiff’s
expert report within twenty-one days). Dr. Odili objected to the report on the basis
that Dr. Srinivasan was not qualified to opine on Dr. Odili’s standard of care or
breach of the standard of care because Dr. Srinivasan’s letter and CV do not reflect
education, training, or experience as an emergency room physician, and that Dr.
Srinivasan’s experience as an orthopedic surgeon does not “overlap” with the
discipline of emergency medicine. Dr. Odili further objected to the report, averring
that the report did not meet the statutory requirements regarding the standard of
care, breach of the standard of care, and causation. Dr. Odili further argued that the
report advanced by White was not a deficient report under the statute, but rather it
was not an expert report at all under the statute. The Hospital objected to the expert
report on the basis that it did not address the standard of care applicable to nursing
staff or the Hospital, breach of the standard of care by the Hospital, and causation
as to the Hospital.

1
The Hospital states in its brief that it was served with the original expert report on July
10, 2019; however, this date is incorrect because the Hospital filed its objections to the original
expert report on May 24, 2019. In its objections filed in the trial court, the Hospital states that it
was served with the expert report on May 6, 2019.

3
 On July 30, 2019, Dr. Odili filed a motion to dismiss White’s claims on the
basis that Dr. Srinivasan’s report was not an expert report under the statute and was
incapable of cure. See id. § 74.351(b)(2) (providing that if an expert report has not
been served within the statutory 120-day period as to a defendant physician or
health care provider, the court then, on the motion of the affected physician or
healthcare provider, shall enter an order that dismisses the claim with prejudice
with respect to the physician or health care provider); see also id. § 74.351(a)
(providing that claimant in health care liability claim must serve on the defendant
one or more expert reports within 120 days after the date each defendant’s answer
is filed). On September 23, 2019, the trial court sustained Dr. Odili’s objections in
part, granted White thirty days to file an amended expert report, and informed Dr.
Odili that it would consider his motion to dismiss after an amended report was
filed. See id. § 74.351(c) (“If an expert report has not been served within the period
specified by [§ 74.351(a)] because elements of the report are found deficient, the
court may grant one 30-day extension to the claimant in order to cure the
deficiency.”).

On October 22, 2019, White served appellants with Dr. Srinivasan’s
amended expert report. On November 1, 2019, the Hospital objected to Dr.
Srinivasan’s amended report and filed its own motion to dismiss. Specifically, the
Hospital argued that the amended expert report failed to address the standard of
care, breach of the standard of care, and causation as to the Hospital and failed to
provide any factual basis for Dr. Srinivasan’s conclusion that the Hospital did not
have hand-fellowship trained surgeons on staff.

On November 6, 2019, Dr. Odili filed his objections to the amended expert
report and a second motion to dismiss. Dr. Odili objected to the amended report on
the grounds that (1) Dr. Srinivasan was not qualified to opine on Dr. Odili’s

4
standard of care or breach of the standard of care, and (2) the amended report had
“no opinions on proximate cause other than the statement that there was
causation.” Dr. Odili also argued that Dr. Srinivasan’s “amended ‘report’ does not
qualify as an expert report” and that White’s suit should be dismissed for failing to
comply with the statutory requirements.

On December 16, 2019, following a hearing, the trial court signed an order
denying Dr. Odili and the Hospital’s objections to Dr. Srinivasan’s expert report
and their motions to dismiss. This interlocutory appeal followed. See id.
§ 51.014(a)(9) (authorizing interlocutory appeal of the denial of a motion to
dismiss filed pursuant to Texas Civil Practice and Remedies Code § 74.351(b)).

II. DISCUSSION

A. APPLICABLE LAW

The Texas Medical Liability Act (“TMLA”) is codified in Chapter 74 of the
Texas Civil Practice and Remedies Code. See Tex. Civ. Prac. & Rem. Code Ann.
§§ 74.001–74.507. Section 74.351 provides that a plaintiff in a health care liability
suit must serve the medical defendant with a statutorily-compliant expert report
accompanied by the expert’s curriculum vitae (“CV”). See Tex. Civ. Prac. & Rem.
Code Ann. § 74.351. If a plaintiff fails to do so within 120 days after the
defendant’s original answer is filed, then the trial court must dismiss the claim with
prejudice on the defendant’s motion. Baty v. Futrell, 543 S.W.3d 689, 692 n.1
(Tex. 2018); see Tex. Civ. Prac. & Rem. Code Ann. § 74.351(a), (b)(2).

The goal is “to deter frivolous lawsuits by requiring a claimant early in
litigation to produce the opinion of a suitable expert that his claim has merit.”
Columbia Valley Healthcare Sys., L.P. v. Zamarripa, 526 S.W.3d 453, 460 (Tex.
2017) (citing Scoresby v. Santillan, 346 S.W.3d 546, 552 (Tex. 2011)); see also

5
Abshire v. Christus Health Se. Tex., 563 S.W.3d 219, 223 (Tex. 2018) (per
curiam). Therefore, an expert report is a low threshold a person bringing a claim
against a health care provider must cross merely to show that his claim is not
frivolous. Loaisiga v. Cerda, 379 S.W.3d 248, 264 (Tex. 2012).

An “expert report” under the TMLA means:

a written report by an expert that provides 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.
Id. § 74.351(r)(6).

“A trial court must sustain a challenge to a report’s adequacy if the report
does not represent an objective good faith effort to provide a fair summary of the
applicable standard of care, the defendant’s breach of that standard, and how that
breach caused the patient’s harm.” Miller v. JSC Lake Highland Operations, LP,
536 S.W.3d 510, 513 (Tex. 2017) (per curiam) (internal quotation marks omitted);
see Tex. Civ. Prac. & Rem. Code Ann. § 74.351(l), (r)(6). “A good-faith effort
must ‘provide enough information to fulfill two purposes: (1) it must inform the
defendant of the specific conduct the plaintiff has called into question, and (2) it
must provide the basis for the trial court to conclude that the claims have merit.”
Miller, 536 S.W.3d at 513 (quoting Bowie Mem’l Hosp. v. Wright, 79 S.W.3d 48,
52 (Tex. 2002) (per curiam)). All information needed for this inquiry is found
within the four corners of the expert report, which need not marshal all of the
plaintiff’s proof. Jelinek v. Casas, 328 S.W.3d 526, 539 (Tex. 2010) (citing Am.
Transitional Ctrs. of Tex., Inc v. Palacios, 46 S.W.3d 873, 879 (Tex. 2001)). A
report that merely states the expert’s conclusions about the standard of care,
breach, and causation does not fulfill these two purposes. Palacios, 46 S.W.3d at
6
879; New Med. Horizons, II, Ltd. v. Milner, 575 S.W.3d 53, 60 (Tex. App.—
Houston [1st Dist.] 2019, no pet.); see Scoresby, 346 S.W.3d at 556 (“No particular
words or formality are required, but bare conclusions will not suffice.”).

A plaintiff is required to timely file an adequate expert report as to each
defendant in a health care liability claim, but the plaintiff is not required to file an
expert report as to each liability theory alleged against that defendant. See TTHR
Ltd. P’ship v. Moreno, 401 S.W.3d 41, 44 (Tex. 2013); Certified EMS, Inc. v.
Potts, 392 S.W.3d 625, 632 (Tex. 2013).

B. STANDARD OF REVIEW

We review a trial court’s ruling on the sufficiency of an expert’s report and
on a motion to dismiss under the expert-report rule for an abuse of discretion.
Jelinek, 328 S.W.3d at 539; see Tex. Civ. Prac. & Rem. Code Ann. § 74.351;
Miller, 536 S.W.3d at 512. Likewise, we review a trial court’s determination that
an expert is qualified under an abuse of discretion standard. Rosemond v. Al-Lahiq,
362 S.W.3d 830, 833 (Tex. App.—Houston [14th Dist.] 2012, pet. denied); see
Larson v. Downing, 197 S.W.3d 303, 304–05 (Tex. 2006) (per curiam). A court
abuses its discretion if it acts in an arbitrary or unreasonable manner and without
reference to any guiding rules or principles. Crawford v. XTO Energy, Inc., 509
S.W.3d 906, 911 (Tex. 2017).

C. DR. ODILI’S APPEAL

1. Dr. Srinivasan’s Original Expert Report

In his first issue, Dr. Odili argues that Dr. Srinivasan’s original report was
not an “expert report” as required by the TMLA. Specifically, Dr. Odili argues that
Dr. Srinivasan was not qualified to opine on the relevant standard of care and that
the original report did not set out the standard of care, the breach of the standard of

7
care, or causation. As a result, Dr. Odili argues, Dr. Srinivasan’s original report
was “no report”—i.e., not a deficient report—and White failed to comply with the
statutory requirement that an expert-report be served on the medical defendant
within 120 days of their answer.2 See Tex. Civ. Prac. & Rem. Code Ann.
§ 74.351(a), (b)(2). Thus, Dr. Odili argues, the trial court was required to dismiss
White’s claims for failure to comply with the TMLA’s expert-report requirement.
See Tex. Civ. Prac. & Rem. Code Ann. § 74.351 (a), (b)(2), (r)(6); see also CHCA
Clear Lake, L.P. v. Stewart, No. 01-19-00874-CV, 2021 WL 3412461, at *13 (Tex.
App.—Houston [1st Dist.] Aug. 5, 2021, no pet.) (mem. op.) (“An expert report by
a person not qualified to testify does not constitute a good-faith effort to comply
with the TMLA’s definition of an expert report and warrants dismissal.”).

An expert report must at a minimum (1) be timely served, (2) contain the
opinion of a qualified expert, and (3) implicate the defendant’s conduct. Scoresby,
346 S.W.3d at 557. Here, Dr. Odili filed his answer to White’s suit on March 12,
2019, and White timely served Dr. Srinivsan’s original expert report on Dr. Odili
within 120 days of Dr. Odili’s answer on March 21, 2019. However, Dr. Odili
argues that Dr. Srinivisan, an orthopedic surgeon, was not qualified to opine on the
standard of care owed by Dr. Odili, an emergency room physician. See id.

In a health-care liability suit, a person may qualify as an expert witness on
the issue of whether the physician departed from the accepted standards of medical
care only if the person is a physician who: (1) is practicing medicine at the time
testimony was given or when the claim arose; (2) has knowledge of the accepted
standards of medical care 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
2
Dr. Odili filed his answer to White’s suit on March 12, 2019. White served appellants
with Dr. Srinivasan’s amended expert report over 120 days later on October 22, 2019. See Tex.
Civ. Prac. & Rem. Code Ann. § 74.351(a), (b)(2).

8
experience to offer an expert opinion regarding those accepted standards of
medical care. Rosemond, 362 S.W.3d at 834 (citing Tex. Civ. Prac. & Rem. Code
Ann. §§ 74.401(a), 74.351(r)(5)(A)). Dr. Odili contends that Dr. Srinivasan is not
qualified to render an expert opinion regarding the claims against Dr. Odili because
Dr. Srinivasan was not actively practicing emergency medicine at the time the
claim arose or at the time of his report.

“To clarify the required qualifications, an expert must show the ‘accepted
standards of medical care for the diagnosis, care, or treatment of the illness, injury,
or condition involved in the claim.’” Mem’l Hermann Health Sys. v. Heinzen, 584
S.W.3d 902, 916 (Tex. App.—Houston [14th Dist.] 2019, no pet.) (quoting Tex.
Civ. Prac. & Rem. Code Ann. § 74.401(a)(2)) (emphasis in original). “By its plain
language, the statute does not focus on the defendant doctor’s area of expertise, but
on the condition involved in the claim.” Id.; see Blan v. Ali, 7 S.W.3d 741, 746
(Tex. App.—Houston [14th Dist.] 1999, no pet.).

The “illness, injury, or condition” involved in White’s claim is an open
intra-articular distal phalanx fracture with extension into the proximal phalanx of
the thumb. Thus, to offer an expert opinion, Dr. Srinivasan must be qualified on
the basis of training and experience to offer an expert opinion regarding the
accepted standards of medical care and diagnosis, care, or treatment of an open
intra-articular distal phalanx fracture with extension into the proximal phalanx of
the thumb. See Tex. Civ. Prac. & Rem. Code Ann. § 74.401(a)(2); Heinzen, 584
S.W.3d at 916–17. And to determine whether Dr. Srinivasan is qualified on the
basis of training or experience to offer an expert opinion on the standards of care
for the diagnosis, care, or treatment of White’s injury, the trial court was required
to considered whether, at the time the claim arose or at the time he authored the
report, Dr. Srinivasan had substantial training and experience in “an area of

9
medical practice relevant to the claim” and was actively practicing medicine in
rendering medical services “relevant to the claim.”

Dr. Srinivasan is a board-certified orthopedic surgeon, and Dr. Odili does
not dispute that Dr. Srinivasan is qualified to address the accepted standards of
medical care for the diagnosis, care, and treatment, of the injury suffered by White;
instead, Dr. Odili contends that Dr. Srinivasan failed to show any experience,
training, or education in emergency medicine.

Dr. Srinivasan’s original expert report did not provide any commentary on
his qualifications, but his attached CV provided that: (1) he has been working for
the preceding seven years as a staff hand, upper extremity, and microvascular
surgeon and as the associate fellowship director for the hand and upper extremity
fellowship at The Hand Center of San Antonio; (2) before his most recent
employment, he taught for six years at the Department of Orthopedic Surgery at
the University of Texas in San Antonio; (3) he is board certified by the American
Board of Orthopedic Surgery and has Hand Certificate of Added Qualification; and
(4) he completed his medical residency in orthopedic surgery followed by a hand,
upper extremity, and microvascular surgery fellowship. See Mem’l Hermann
Healthcare Sys. v. Burrell, 230 S.W.3d 755, 758 (Tex. App.—Houston [14th Dist.]
2007, no pet.) (“[O]ur analysis of the qualifications of an expert report under
section 74.351 is limited to the four corners of the expert’s report and curriculum
vitae.”).

Given Dr. Srinivasan’s CV, we cannot conclude that the trial court abused
its discretion in finding Dr. Srinivasan qualified to render an expert opinion
concerning White’s claims against Dr. Odili. See Tex. Civ. Prac. & Rem. Code
Ann. § 74.401(a)(2); Heinzen, 584 S.W.3d at 916–17 (concluding that board
certified ophthalmologist was qualified to render an expert opinion concerning

10
emergency room physician’s treatment of acute angle-closure glaucoma); see also
Roberts v. Williamson, 111 S.W.3d 113, 121–22 (Tex. 2003) (concluding that
pediatrician had experience and expertise regarding the specific causes and effects
of plaintiff’s injuries and could therefore provide expert testimony in suit against
neurologist). Furthermore, we conclude that Dr. Srinivasan’s original expert report
implicated Dr. Odili’s conduct. See Scoresby, 346 S.W.3d at 557. Specifically, Dr.
Srinivasan’s original expert report provided that “White was seen in the
Emergency Department at North Cypress Medical Records [sic]” and “was
evaluated by Dr. Odili,” and the report is directed at the “initial care” White
received at the Hospital. Thus, we conclude that Dr. Srinivasan’s original report
was an expert report under the TMLA. See id.

To the extent that Dr. Odili argues that inadequacies in the standard of care,
breach of the standard of care, and causation in the original expert report rendered
it “no report,” we note that these objections go to the adequacy of an expert report
under the statute. See Ogletree v. Matthews, 262 S.W.3d 316, 322 (Tex. 2007).
Here, Dr. Srinivasan’s original report was timely served, contained the opinions of
a qualified expert, and implicated Dr. Odili’s conduct. See Scoresby, 346 S.W.3d at
557. Thus, we reject Dr. Odili’s argument that the original report was not a report
under the TMLA and overrule his first issue.

2. Opportunity to Amend Dr. Srinivasan’s Original Expert Report

In its second issue, Dr. Odili argues that the trial court abused its discretion
when it granted White an extension to cure any deficiencies in Dr. Srinivasan’s
original expert report. See Tex. Civ. Prac. & Rem. Code Ann. § 74.351(c).

The TMLA does not require dismissal of deficient but curable reports.
Ogletree, 262 S.W.3d at 320. “[A] 30-day extension to cure deficiencies in an
expert report may be granted if the report is served by the statutory deadline, if it
11
contains the opinion of an individual with expertise that the claim has merit, and if
the defendant’s conduct is implicated.” Scoresby, 346 S.W.3d at 557; see Tex. Civ.
Prac. & Rem. Code Ann. § 74.351(c). Furthermore, the decision to grant a thirty-
day extension is not appealable. Ogletree, 262 S.W.3d at 319; see Tex. Civ. Prac.
& Rem. Code Ann. § 51.014(a)(9) (providing that an appeal may not be taken from
an order granting an extension under § 74.351). Therefore, we conclude that we
lack jurisdiction to review the trial court’s order granting White thirty days to
amend any deficiencies in Dr. Srinivasan’s original expert repot. We overrule Dr.
Odili’s second issue.

3. Dr. Srinivasan’s Amended Expert Report

In his third issue, Dr. Odili argues that the trial court abused its discretion
when it denied his motion to dismiss White’s lawsuit following Dr. Srinivasan’s
amended expert report because the amended report fails to meet the statutory
requirements.3 Specifically, Dr. Odili argues the trial court should have granted his
motion because the amended expert report fails to establish causation. Dr. Odili
concedes that the amended report provides the applicable standard of care and the
breach of that standard of care.

a. Proximate Causation

The causal relationship required in a healthcare-liability claim is proximate
causation. See Tex. Civ. Prac. & Rem. Code Ann. § 74.001(a)(13) (defining
“health care liability claim” as a cause of action for physician’s or healthcare
provider’s breach of the standard of care “which proximately results in injury to or
death of a claimant”). Proximate cause has two components: (1) foreseeability and
3
Dr. Odili also argues that his motion to dismiss based on the amended report should
have been granted because Dr. Srinivasan was not qualified to opine on the standard of care and
breach of the standard of care. Because we have previously concluded that the trial court did not
abuse its discretion in finding Dr. Srinivasan qualified, we reject this argument.

12
(2) cause-in-fact. Id. Accordingly, an expert report under the TMLA must explain
both foreseeability and cause-in-fact. See Miller, 536 S.W.3d at 515 (citing
Zamarripa, 526 S.W.3d at 460). A healthcare provider’s breach was a foreseeable
cause of the plaintiff’s injury if a healthcare provider of ordinary intelligence
would have anticipated the danger caused by the negligent act or omission. See
Price v. Divita, 224 S.W.3d 331, 336 (Tex. App.—Houston [1st Dist.] 2006, pet.
denied) (citing Doe v. Boys Clubs of Greater Dall., Inc., 907 S.W.2d 472, 478
(Tex. 1995)). For a negligent act or omission to have been a cause-in-fact of the
harm, the act or omission must have been a substantial factor in bringing about the
harm, and absent the act or omission—i.e., but for the act or omission—the harm
would not have occurred. Zamarripa, 526 S.W.3d at 460.

Although the report need not use “proximate cause,” “foreseeability,” or
“cause in fact” to satisfy the TMLA’s requirements and show how and why a
breach of the standard of care caused injury, the expert report must make a good-
faith effort to explain, factually, how proximate cause will be proven. Id. Without
factual explanations, a report amounts to “nothing more than the ipse dixit of the
experts” and is “clearly insufficient.” Id. at 461; see, e.g., Jelinek, 328 S.W.3d at
540. An expert report may not have an analytical gap or missing link between the
expert’s allegation that the healthcare provider defendant breached the standard of
care and the plaintiff’s injuries. See Wright, 79 S.W.3d at 53; see, e.g., Humble
Surgical Hosp., LLC v. Davis, 542 S.W.3d 12, 23–26 (Tex. App.—Houston [14th
Dist.] 2017, pet. denied) (concluding that expert’s “opinion on causation contains
analytical gaps and missing links which render his opinion conclusory”). To
determine whether the expert’s causation conclusion is detailed enough, we read
the expert’s conclusion on causation in the context of the entire report, not
piecemeal or in a vacuum. Harvey v. Kindred Healthcare Operating, Inc., 578

13
S.W.3d 638, 653 (Tex. App.—Houston [14th Dist.] 2019, no pet.).

Here, Dr. Srinivasan stated in his amended report that he reviewed Dr.
Odili’s preoperative notes and the operative and postoperative reports by Mark
Ciagla, M.D., from the surgery performed on White’s hand. He further stated:

On March[] 11[,] 2017, Mr. Randy White was seen in the Emergency
department at North Cypress. According to the medical records, he
was evaluated by Dr. Uzochukwu [Odili], an Emergency Medicine
Physician. Physical examination was notable for 6cm skin laceration,
normal functioning tendons, normal vascularity and x-rays indicative
of an open intra-articular distal phalanx fracture with extension into
the proximal phalanx of the thumb. Medical records state that Dr.
[Odili] treated Mr. White’s injuries with irrigation, suturing[,] and
scheduled follow-up with Dr. Tanous (an orthopedic surgeon) on
Monday, 3/13/2017.
Mr. White saw Dr. Ciagla (an Orthopedic surgeon) on 3/13/2017 who
recommended surgery including ORIF. Surgery was performed March
16, 2017 (5 days after initial injury). Intraoperative findings were
notable for copious pus which caused Dr. Ciagla to abort the case
after incision and drainage. Picc line was placed and IV antibiotics
were started.
On 3/30/2017, repeat l+D was performed by Dr. Ciagla. Minimal
purulence was noted but no fixation was placed.
On 4/2/2017, Dr. Ciagla performed the 3rd incision and drainage
without fixation placed.
On 4/17/2017, Dr. Ciagla saw Mr. White, 18 days postop. Plan was
for CT scan at 8 weeks postop.
No other relevant records are available for my review such as copy of
xrays or CT scan or OT notes indicating the patient's final range of
motion, stability, or strength. However, he did receive an impairment
rating of 9%.
The standard of care in an ER setting for an injury such as Mr. White's
(grade 2 open intraarticular thumb fracture involving the distal and
proximal phalanx) is immediate consultation with a hand-fellowship
trained surgeon. There was a breach in the standard of care by Dr.
[Odili] for not immediately consulting a hand-fellowship trained
14
 surgeon or North Cypress for not having hand[-]fellowship trained
surgeons available to Dr. [Odili] for consultation.
Open fractures of this type are taken to the operating room within 24
hours of initial evaluation for treatment to avoid risk of infection and
subsequent nonunion, malunion, hardware failure, stiffness pain,
arthritis, and loss of strength. Alternatively, if the wound is grossly
clean and irrigated with 1L of Normal Saline it can be referred in
delayed fashion to a hand fellowship trained surgeon after
consultation.[] The medical reasons I have reviewed do not indicate a
medical reason that Mr. White’s case could not have been reviewed
with a hand fellowship trained surgeon. Instead, Mr. White was
referred to a non hand fellowship-trained surgeon. In all medical
probability, Mr. White would not have ended up with an infection and
subsequent impairment if Dr. [Odili] had obtained a grossly clean
wound or provided immediate referral for surgery to a hand-
fellowship trained surgeon.
Concerning foreseeability, Dr. Srinivasan’s report provides that patients with
White’s injury are taken to the operating room within twenty-four hours of initial
evaluation for treatment to avoid infection and other complications. See Abshire,
563 S.W.3d at 223–25; Miller, 536 S.W.3d at 515. As to cause-in-fact, Dr.
Srinivasan opined that White would not have ended up with an infection and
subsequent impairment if White had been immediately referred for surgery to a
hand-fellowship trained surgeon. See Zamarripa, 526 S.W.3d at 460.

Dr. Srinivasan’s amended report provides how and why the alleged
negligence—i.e., Dr. Odili’s failure to immediately refer White for surgery to a
hand-fellowship trained surgeon—caused White’s complained of injury. See
Abshire, 563 S.W.3d at 223–25; Zamarripa, 526 S.W.3d at 460. Dr. Srinivasan’s
report explains the basis of his conclusion, links his conclusion to the facts, and
provides enough information to inform Dr. Odili of the specific conduct White has
called into question and for the trial court to conclude that the claims have merit.
See Abshire, 563 S.W.3d at 223–25; Bowie Mem’l Hosp., 79 S.W.3d at 52;

15
Palacios, 46 S.W.3d at 897. After reviewing Dr. Srinivasan’s amended report, we
conclude that the trial court could have reasonably determined that the amended
expert report represented a good-faith effort to summarize the causal relationship
between Dr. Odili’s failure to meet the applicable standard of care and White’s
injury. See Abshire, 563 S.W.3d at 223–25; Harvey, 578 S.W.3d at 653–54; see
also Gonzalez v. Padilla, 485 S.W.3d 236, 252–53 (Tex. App.—El Paso 2016, no
pet.) (holding expert report was adequate when expert opined that “the failure to
timely establish an appropriate treatment plan which provided for infection
prevention” caused patient to develop infection resulting in amputation of his leg).

We overrule Dr. Odili’s third issue.

D. THE HOSPITAL’S APPEAL

In its first issue, the Hospital argues that the trial court abused its discretion
in denying its objections to Dr. Srinivasan’s amended expert report and its motion
to dismiss. Specifically, the Hospital argues that the amended report failed to
address the standard of care, breach of standard of care, and causation regarding
White’s direct liability claims against the Hospital.

Here, White asserted direct and vicarious liability claims against the
Hospital. We note that the TMLA does not require an expert report as to each
liability theory alleged against the defendant. See, e.g., TTHR Ltd. P’ship, 401
S.W.3d at 44 (“[B]ecause the trial court did not abuse its discretion in finding
Moreno’s reports adequate as to her theory that [the hospital] is vicariously liable
for the doctor’s actions, her suit against [the hospital]—including her claims that
the hospital has direct liability and vicarious liability for actions of the nurses—
may proceed.”); Certified EMS, Inc., 392 S.W.3d at 632 (“[W]hen a healthcare
liability claim involves a vicarious liability theory, either alone or in combination
with other theories, an expert report that meets the statutory standards as to the
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employee is sufficient to implicate the employer’s conduct under the vicarious
theory. And if any liability theory has been adequately covered, the entire case may
proceed.”). For vicarious liability claims, a report that adequately implicates the
actions of that party’s agents or employees is sufficient. See Gardner v. U.S.
Imaging, Inc., 274 S.W.3d 669, 671–72 (Tex. 2008) (per curiam); see also
Methodist Hosp. v. Addison, 574 S.W.3d 490, 502 (Tex. App.—Houston [14th
Dist.] 2018, no pet.) (“Because we have determined that Dr. Cohen’s report
adequately addressed one theory of liability against Methodist, we need not
address Methodist’s remaining arguments . . . that the trial court abused its
discretion when it denied Methodist’s motion to dismiss.”); Hous. Methodist Hosp.
v. Nguyen, 470 S.W.3d 127, 130 (Tex. App.—Houston [14th Dist.] 2015, pet.
denied) (concluding that expert report containing expert opinion as to claims
against defendant physicians implicated the Hospital’s conduct under plaintiff’s
pleaded theory of vicarious liability); McAllen Hosps., L.P. v. Gonzalez, 566
S.W.3d 451, 458 (Tex. App.—Corpus Christi–Edinburg 2018, no pet.) (“When a
health care liability claim involves a vicarious liability theory, either alone or in
combination with other theories, and there is an expert report sufficient to support
that vicarious liability theory, the entire case may proceed past a motion to dismiss
based on the expert report rule.”). As previously concluded, Dr. Srinivasan’s
amended report adequately implicates the actions of Dr. Odili, a physician at the
Hospital. Therefore, we cannot conclude that the trial court abused its discretion
when it denied the Hospital’s motion to dismiss.4 See TTHR Ltd. P’ship, 401
S.W.3d at 44; Certified EMS, Inc., 392 S.W.3d at 632.

Because we conclude that the trial court did not err when it denied the
Hospital’s motion to dismiss, we need not address its argument regarding its
4
At oral argument before this court, the Hospital conceded that if the amended report was
sufficient as to Dr. Odili, then it was sufficient as to the Hospital.

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objections or its second issue. See Tex. R. App. 47.1.

We overrule the Hospital’s two issues.

III. CONCLUSION

Having overruled all of the issues on appeal, we affirm the trial court’s
order.

/s/ Margaret “Meg” Poissant
Justice

Panel consists of Chief Justice Christopher and Justices Jewell and Poissant.

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