Hickory Trail Hospital, L.P. D/B/A Hickory Trail Hospital v. Christopher Webb and Melissa Hayes Individually and as Next of Friends for H.H., a Minor

Reverse, Render, and Remand; Opinion Filed February 21, 2017

In The
Court of Appeals
Fifth District of Texas at Dallas
No. 05-16-00663-CV

HICKORY TRAIL HOSPITAL, L.P. D/B/A HICKORY TRAIL HOSPITAL, Appellant
V.
CHRISTOPHER WEBB AND MELISSA HAYES INDIVIDUALLY AND AS NEXT OF
FRIENDS FOR H.H., A MINOR, Appellees

On Appeal from the 101st Judicial District Court
Dallas County, Texas
Trial Court Cause No. DC-15-01512

MEMORANDUM OPINION
Before Justices Lang, Brown, and Whitehill
Opinion by Justice Lang
This is an interlocutory appeal by Hickory Trail Hospital, L.P., d/b/a Hickory Trail

Hospital (“Hickory Trail”) of the denial of its motion to dismiss the health care liability claims of

appellees, Christopher Webb and Melissa Hayes, for failure to serve expert reports that comply

with section 74.351(b) of the Texas Civil Practice and Remedies Code. See TEX. CIV. PRAC. &

REM. CODE § 74.351(b). Specifically, appellant Hickory Trail contends the trial court abused its

discretion because the expert report provided by appellees is inadequate in two ways: (1) the

expert report “failed to illustrate [Dr. Dunn’s] qualifications to offer the opinions . . . regarding

the standard of care for a hospital’s policies and procedures;” and (2) the expert report failed to

“provide, in a non-conclusory fashion, an opinion that provides a causal link between the alleged
breach of the standard of care and the damages claimed.” Appellees contend the trial court did

not abuse its discretion by denying appellant’s motion to dismiss.

We decide appellant’s issue in its favor. For the reasons identified below, we reverse the

trial court’s May 31, 2016 order denying appellant’s motion to dismiss, render judgment

dismissing appellees’ claims against appellant with prejudice. Further, we remand this case to the

trial court to determine any reasonable attorney’s fees and costs to be awarded to appellant

pursuant to section 74.351(b)(1) of the civil practice and remedies code. TEX. CIV. PRAC. & REM.

CODE ANN. 74.351(b)(1); TEX. R. APP. P. 43.2. Because all issues are settled in law, we issue this

memorandum opinion. TEX. R. APP. P. 47.4.

I. Factual and Procedural Context

On March 10, 2014 a minor (“H.H.”) was admitted to Hickory Trail Hospital. Appellees

allege that a mental health technician employed by appellant Hickory Trail entered H.H.’s room

and sexually assaulted her on March 14–15, 2014. On February 6, 2015, appellees filed a

healthcare liability lawsuit against Hickory Trail alleging negligence. Hickory Trail timely

answered on April 21, 2015.

Appellees served appellant Hickory Trail with an expert report by Mr. Richard Bays, a

nurse, on August 14, 2015. Hickory Trail objected to the report as inadequate and filed a motion

to dismiss appellees’ claims for “failure to provide an adequate expert report” as required by

Texas Civil Practice & Remedies Code § 74.351. Appellees responded to appellant’s objections

and simultaneously filed a motion for a thirty day extension to cure any deficiencies in the expert

report. TEX. CIV. PRAC. & REM. CODE § 74.351(c). The trial court sustained Hickory Trail’s

objections, but denied its motion to dismiss. The trial court also granted appellees a thirty day

extension to cure the deficiencies in the expert report.

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 On April 21, 2016 appellees timely provided appellant Hickory Trail with a supplemental

export report by Dr. Mitchell Dunn and his curriculum vitae (“CV”). Then, on April 29, 2016,

appellant filed amended objections to Dr. Dunn’s expert report and CV and a motion to dismiss,

arguing that the report was inadequate. Appellant contended that Dr. Dunn’s report and CV were

inadequate in two ways: (1) Dr. Dunn’s “report and curriculum vitae failed to illustrate his

qualifications to offer the opinions in his report, specifically, Dr. Dunn’s opinions regarding the

standard of care for a hospital’s policies and procedures;” and (2) Dr. Dunn’s report “failed to

provide, in a non-conclusory fashion, an opinion that provides a causal link between the alleged

breach of the standard of care and the damages claimed.” The trial court overruled appellant’s

objections and denied appellant’s motion to dismiss on May 31, 2016. Hickory Trail filed its

Notice of Appeal on June 6, 2016.

On appeal appellant Hickory Trail asserts the expert report appellees provided is

inadequate for the same reasons argued in the trial court. We conclude the trial court abused its

discretion in denying appellant’s motion. Accordingly, we reverse the trial court’s order and

render judgment dismissing appellees’ claims with prejudice.

II. Dismissal Pursuant to Chapter 74

Appellant argues the trial court abused its discretion in failing to grant its motion to

dismiss because Dr. Dunn was not qualified to provide opinions on the standard of care and

because Dr. Dunn’s opinions as to causation in his expert report are conclusory. Appellees

respond that “Dr. Dunn’s CV standing on its own clearly illustrate that he is more than qualified

to offer opinions regarding the subject matter” and that “his report is not conclusory and it

clearly outlines to Appellant how if Appellant had had policies and procedures in place that

[H.H.] would not have been sexually assaulted by its employee.” Appellees assert that Dr. Dunn

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“is absolutely an expert with knowledge, skill, experience, training, or education of general

policies at psychiatric hospitals.”

A. Standard of Review

“Generally, we review a trial court’s order on a motion to dismiss a health care liability

claim under chapter 74 for an abuse of discretion.” Nexion Health at Duncanville, Inc. v. Ross,

374 S.W.3d 619, 622 (Tex. App.—Dallas 2012, pet. denied) (citing Jernigan v. Langley, 195

S.W.3d 91, 93 (Tex. 2006); Am. Transitional Care Ctrs. of Tex. v. Palacios, 46 S.W.3d 873, 875

(Tex. 2001)). This Court also “review[s] a trial court’s rulings on the adequacy of an expert

report under an abuse-of-discretion standard.” Hollingsworth v. Springs, 353 S.W.3d 506, 512

(Tex. App.—Dallas 2011, no pet.) (citing Palacios, 46 S.W.3d at 877). “Under this standard, we

must determine whether the trial court acted arbitrarily and without reference to any guiding

rules or principles.” Ross, 374 S.W.3d at 622 (citing Downer v. Aquamarine Operators, Inc., 701

S.W.2d 238, 241–42 (Tex. 1985)); see Bowie Mem’l Hosp. v. Wright, 79 S.W.3d 48, 52 (Tex.

2002). In reviewing a trial court’s decision under this standard, we do not “substitute our

judgment for the trial court’s judgment.” House v. Jones, 275 S.W.3d 926, 928 (Tex. App.—

Dallas 2009, pet. denied) (citing Wright, 79 S.W.3d at 52). “Nor can we find the trial court

abused its discretion merely because we would have decided the matter differently.” Id. (citing

Cayton v. Moore, 224 S.W.3d 440, 444 (Tex. App.—Dallas 2007, no pet.)).

“Under an abuse of discretion standard, ‘close calls must go to the trial court.’” Hickory

Trail Hospital, L.P. v. Loya, No. 05–16–00453–CV, 2016 WL 7376559, at *3 (Tex. App.—

Dallas Dec. 20, 2016) (mem. op.) (citing Larson v. Downing, 197 S.W.3d 303, 304 (Tex. 2006)

(per curiam)). However, “[a] trial court has no discretion when determining what the law is or in

applying the law to the facts.” Baylor Med. Ctr. at Waxahachie, Baylor Health Care Sys. v.

Wallace, 278 S.W.3d 552, 555–56 (Tex. App.—Dallas 2009, no pet.) (citing Cayton, 224 S.W.3d

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at 445). “A clear failure by the trial court to analyze or apply the law correctly will constitute an

abuse of discretion.” Id. at 556 (citing Cayton, 224 S.W.3d at 445).

B. Applicable Law–Adequacy of a Medical Expert’s Report

“Section 74.351(a) of the civil practice and remedies code provides in relevant part that

‘[i]n a health care liability claim, a claimant shall, not later than the 120th day after the date the

original petition was filed, serve on each party or the party’s attorney one or more expert reports,

with a curriculum vitae of each expert listed in the report for each physician or health care

provider against whom a liability claim is asserted.’” Ross, 374 S.W.3d at 622 (citing TEX. CIV.

PRAC. & REM. CODE ANN. § 74.351(a)). “An expert report required by chapter 74 is meant to

serve two purposes: (1) to ‘inform the defendant of the specific conduct the claimant is

questioning’ and (2) to ‘provide a basis for the trial court to conclude that the claims have

merit.’” Id. at 623 (citing Leland v. Brandal, 257 S.W.3d 204, 206–07 (Tex. 2008)). “If, as to a

defendant physician or health care provider, an expert report has not been served within the

specified time period, ‘the court, on the motion of the affected physician or health care provider,

shall . . . enter an order that . . . dismisses the claim with respect to the physician or health care

provider, with prejudice to the refiling of the claim.’” Id. at 622 (citing TEX. CIV. PRAC. & REM.

CODE ANN. § 74.351(b)).

“Chapter 74 defines ‘claim’ as ‘a health care liability claim.’” Id. at 623 (citing TEX. CIV.

PRAC. & REM. CODE ANN. § 74.351(r)(2)). In turn, a “health care liability claim” is defined as

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.

TEX. CIV. PRAC. & REM. CODE ANN. § 74.001(a)(13). “Expert report” is defined in chapter 74 as

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
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 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). “A court shall 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). “A valid expert report has

three elements: it must fairly summarize the applicable standard of care; it must explain how a

physician or health care provider failed to meet that standard; and it must establish the causal

relationship between the failure and the harm alleged.” Certified EMS, Inc. v. Potts, 392 S.W.3d

625, 630 (Tex. 2013) (citing TEX. CIV. PRAC. & REM. CODE ANN. § 74.351(r)(6) (West 2011)).

“If a report omits any of the statutory elements, it cannot be a good faith effort.” Cayton, 224

S.W.3d at 445 (citing Eichelberger v. Mulvehill, 198 S.W.3d 487, 489 (Tex. App.—Dallas 2006,

pet. denied)).

“A report need not marshal all the plaintiff's proof, but it must include the expert's

opinion on each of the elements identified in the statute.” Palacios, 46 S.W.3d at 878 (decided

under section 13.01 of the predecessor statute, the Medical Liability and Insurance Improvement

Act, previously codified at article 4590i of the Texas Revised Civil Statutes); see Loaisiga v.

Cerda, 379 S.W.3d 248, 257–58 (Tex. 2012) (applying Palacios’s expert report analysis to the

TMLA). “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. “Also, it is the substance of the opinions, not the technical words

used, that constitutes compliance with the statute.” Baylor Univ. Med. Ctr. v. Rosa, 240 S.W.3d

565, 570 (Tex. App.—Dallas 2007, pet. denied) (citing Ehrlich v. Miles, 144 S.W.3d 620, 626–

27 (Tex. App.—Fort Worth 2004, pet. denied)). “In determining a report's sufficiency, the court

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may not look beyond the report itself because all information relevant to the inquiry should be

contained [within] the document’s four corners.” Christian Care Ctrs., Inc. v. Golenko, 328

S.W.3d 637, 641 (Tex. App.—Dallas 2010, pet. denied) (citing Palacios, 46 S.W.3d at 878).

1. Qualifications of a Medical Expert

For purposes of the expert report, “a person giving opinion testimony regarding whether a

health care provider departed from accepted standards of health care” must be qualified to

testify. TEX. CIV. PRAC. & REM. CODE § 74.351(r)(5)(B). Section 74.402(b) provides that a

person is qualified to testify 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.

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

“The proponent of an expert report has the burden to show that the expert is qualified.”

Hendrick Medical Ctr. v. Conger, 298 S.W.3d 784, 786 (Tex. App.—Eastland 2009, no pet.)

(citing Broders v. Heise, 924 S.W.2d 148, 151–52 (Tex. 1996)).

“Section 74.402(b) makes it clear that different standards of care apply to physicians and

health care providers.” Wallace, 278 S.W.3d at 558 (citing Simonson v. Keppard, 225 S.W.3d

868, 872 (Tex. App.—Dallas 2007, no pet.)).

When a physician fails to state in his expert report or affidavit that he has knowledge of
the standard of care applicable to the specific types of health care providers involved in
the claim, or that he has ever worked with or supervised the specific types of health care
providers involved in the claim, the physician is not qualified on the issue of whether the
health care provider departed from the accepted standards of care for health care
providers.
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Id. However, “‘expert qualifications should not be too narrowly drawn.’” Golenko, 328 S.W.3d

at 643 (quoting Downing, 197 S.W.3d at 305). “Rather, the trial court should determine whether

the proffered expert has ‘knowledge, skill, experience, training, or education regarding the

specific issue before the court which would qualify the expert to give an opinion on that

particular subject.’” Id. (quoting Broders, 924 S.W.2d at 153–54 (Tex. 1996)). “The focus is on

whether the expert’s expertise goes to the very matter on which he is to give an opinion.” Id.

“In deciding whether an expert is qualified, the trial court ‘must ensure that those who

purport to be experts truly have expertise concerning the actual subject about which they are

offering an opinion.’” Reed v. Grandbury Hosp. Corp., 117 S.W.3d 404, 410 (Tex. App.—Fort

Worth 2003, no pet.) (citing Helena Chem. Co. v. Wilkins, 47 S.W.3d 486, 499 (Tex. 2001)).

“General experience in a specialized field is insufficient to qualify a witness as an expert.” Id.

(citing Pack v. Crossroads, Inc., 53 S.W.3d 492, 506 (Tex. App.—Fort Worth 2001, pet.

denied)).

2. Content of a Medical Expert’s Report

“A report cannot merely state the expert’s conclusions as to the standard of care, breach,

and causation.” Wallace, 278 S.W.3d at 557 (citing Palacios, 46 S.W.3d at 879; Hansen v. Starr,

123 S.W.3d 13, 20 (Tex. App.—Dallas 2003, pet. denied); Gray v. CHCA Bayshore L.P., 189

S.W.3d 855, 859 (Tex. App.—Houston [1st] 2006, no pet.); Garcia v. Marichalar, 198 S.W.3d

250, 254 (Tex. App.—San Antonio 2006, no pet.)). “A conclusory statement is one that

expresses a factual inference without stating the underlying facts on which the inference is

based.” Hendrick Medical Ctr., 298 S.W.3d at 789 (citing Arkoma Basin Exploration Co. v.

FMF Assocs. 1990–A, Ltd., 249 S.W.3d 380, 389 n. 32 (Tex. 2008)). Instead, “[t]he expert must

explain the basis for his statements and must link his conclusions to the facts.” Id. (citing Wright,

79 S.W.3d at 52; Gray, 189 S.W.3d at 859; Garcia, 198 S.W.3d at 254). “A trial court may not
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draw any inferences.” Wallace, 278 S.W.3d at 557 (citing Palacios, 46 S.W.3d at 879; Gray, 189

S.W.3d at 859). “Instead, the trial court must rely exclusively on the information contained

within the four corners of the report.” Id. (citing Palacios, 46 S.W.3d at 879; Gray, 189 S.W.3d

at 859). The expert must “explain, to a reasonable degree, how and why the breach caused the

injury based on the facts presented.” Jelinek v. Casas, 328 S.W.3d 529 (Tex. 2010).

C. Application of Law to the Facts

1. Dr. Dunn’s Qualifications

Appellant first contends the trial court abused its discretion by refusing to dismiss all of

appellees’ claims because “Dr. Dunn’s report and curriculum vitae fail to establish his

qualifications.” Appellant Hickory Trail argues that “Dr. Dunn fails to show how he is qualified

to opine as to what policies and procedures the psychiatric hospital should implement” and

“offers no information as to how he is qualified to opine as to what the standard of care for

hospital policies and procedures is.” Appellees respond by stating that, “Dr. Dunn is clearly

qualified to opine as [to] what [] policies and procedures should have been implemented at

Hickory Trail Hospital. . .” Mindful of the above standards, we examine the qualifications stated

in Dr. Dunn’s report.

Dr. Dunn states the following about his qualifications:

. . . I am a Board-certified psychiatrist with added qualifications in forensic
psychiatry. I currently work as the Medical Director of the Forensic Program at
Terrell State Hospital, and I have a part-time private practice in adult and forensic
psychiatry in Dallas, Texas. During my twenty one years at Terrell State Hospital,
I three times served as the acting Clinical Director. In addition, I currently serve
as the Assistant Clinical Director at the hospital. In those roles and as Medical
Officer of the Day, I have had the opportunity on many occasions to observe the
manner in which mental health technicians interact with patients of the opposite
sex. I am aware of written policies regarding the monitoring of female patients by
same sex staff, and I am also familiar with general polices and training that
mental health technicians should receive regarding entering the rooms of female
patients. . .

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 Appellees rely on Dr. Dunn’s statements in his report that he is “aware of written policies

regarding the monitoring of female patients by same sex staff” and is “familiar with general

policies and training that mental health technicians should receive regarding entering the rooms

of female patients.” Appellees urge that “as Medical Director one’s job duties focus on

institutional policies, protocols, and procedures of facility and its employees” and thus, Dr. Dunn

is “absolutely an expert with knowledge, skill, experience, training, of education of general

policies at psychiatric hospitals.” We disagree.

The applicable standard of care in this case is as to formulating and implementing

policies and procedures in a psychiatric hospital. So, the relevant question is whether Dr. Dunn is

knowledgeable or experienced about that standard of care. The case of Reed v. Granbury Hosp.

Corp. provides guidance for our decision. See Reed, 117 S.W.3d at 409. In Reed, the Fort Worth

court of appeals concluded that a trial court did not abuse its discretion in striking the expert

testimony because, although the expert physician had expertise in administering the stroke

medication, he lacked “any special knowledge about what protocols, policies, or procedures a

hospital of ordinary prudence, with the Hospital’s capabilities, would have had in place” for

administration of the particular stroke medication. Id. at 410–12. There was “no evidence in

either [the expert’s] affidavit or his deposition testimony that he knew what any other hospital’s

protocols were concerning the administration of t-PA to strike patients.” Id. at 411.

The rule is clear, “Qualifications cannot be inferred.” Millbrook Healthcare and

Rehabilitation Ctr. v. Edwards, No. 05–14–00202-CV, at *3 (Tex. App.—Dallas Feb. 11, 2015,

no pet.) (mem. op.) (citing Baylor Coll. of Med. v. Pokluda, 283 S.W.3d 110, 117 (Tex. App.—

Houston [14th Dist.] 2009, no pet.)). “When a physician fails to state in his expert report or

affidavit that he has knowledge of the standard of care applicable to the specific types of health

care providers involved in the claim, or that he has ever worked with or supervised the specific

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types of health care providers involved in the claim, the physician is not qualified on the issue of

whether the defendant health care provider departed from the accepted standards of care.” Id.

(citing Wallace, 278 S.W.3d at 558).

Dr. Dunn states that he is “aware of written policies regarding the monitoring of female

patients by same sex staff” and is “familiar with general policies and training that mental health

technicians should receive regarding entering the rooms of female patients.” However, Dr. Dunn

does not state anywhere that he is familiar with the formulation or implementation of policies

and procedures. Therefore, Dr. Dunn has not shown himself qualified to render such an opinion

on the standard of care.

In their brief appellees ask this Court to assume that because one is a Medical Director

one’s job duties “focus on institutional policies, protocols, and procedures . . .” We cannot make

such an assumption. See Tenet Hospitals Ltd. v. Love, 347 S.W.3d 743, 750 (Tex. App.—El Paso

2011, no pet.) (“[I]t is not enough to summarily state [the expert’s] ‘knowledge’ when the reports

and curricula vitae fail to demonstrate how the experts gained the requisite experience or

training.”). The language presented within the four corners of Dr. Dunn’s report and CV does not

articulate how Dr. Dunn is qualified to opine on the standard of care applicable to a psychiatric

hospital in formulating and implementing policies and procedures.1

Accordingly, we conclude the trial court abused its discretion in denying the motion to

dismiss on this basis. We agree with Hickory Trail on its first argument.

1
See Hendrick Medical Ctr., 298 S.W.3d at 788–89 (although expert was a board certified internist, an emergency
room physician and medical director, an ICU “attending,” and director of hospitalists and emergency room
physicians, the court of appeals concluded the expert did not demonstrate he had knowledge, training, or experience
concerning the applicable standard of care, which in that case was the formulation of hospital policies and
procedures in an ICU setting specifically).

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 2. Dr. Dunn’s Opinion on Causation

Appellant next contends the trial court abused its discretion by denying its motion to

dismiss because “Dr. Dunn’s opinion regarding causation is entirely conclusory.” Appellant

asserts that Dr. Dunn’s report “offers no explanation as to how the existence of a policy and

procedure, of any sort, would have prevented plaintiff H.H.’s alleged injuries” and thus, “does

not pass the ‘how and why’ test.” Appellees respond by arguing that Dr. Dunn is “very clear in

his report that in his professional opinion with a reasonable degree of medical certainty that

Hickory Trail Hospital’s lack of proper training and lack of policies and procedures created an

environment that allowed Shawn Mcafee to remain in H.H.’s room for an extended amount of

time.” Appellees then reassert and rely on a conclusion from Dr. Dunn’s report: “Proper

supervision of Shawn Mcafee, combined with appropriate training and policies regarding going

into the bedrooms or bathrooms of opposite sex patients, would have prevented Shawn Mcafee

from having the opportunity to sexually assault [H.H.].” We disagree with appellees’ assessment.

Dr. Dunn’s report states that appellant Hickory Trail breached the above standard of care

by “not having policies for its mental health technicians interacting with patients of the opposite

sex” and by “not training its mental health technicians about the need to stay out of the bedrooms

of opposite gender patients unless a medical emergency requires that they enter the room.” Thus,

he concludes, “The lack of such policies and training was the proximate cause of [H.H.’s]

injuries and the proximate cause of its employee (Shawn Mcafee) having the opportunity to

sexually assault [H.H.].” According to Dr. Dunn, this is because the “lack of proper training and

lack of policies and procedures created an environment that allowed Shawn Mcafee to be in

[H.H.’s] room for an extended period of time, giving him the opportunity to sexually assault her

in the bathroom.” “Proper supervision of Shawn Mcafee, combined with appropriate training and

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policies regarding going into the bedrooms or bathrooms of opposite sex patients, would have

prevented Shawn Mcafee from having the opportunity to sexually assault [H.H.].”2

We first address the absence of policies and procedures. Dr. Dunn’s statements assert that

Hickory Trail should have implemented policies and procedures and that Hickory Trail breached
2
Dr. Dunn states the following as to the standard of care:

When a patient is admitted to a psychiatric hospital, the hospital has the responsibility to provide a
safe and therapeutic environment to the patient. Because some psychiatric patients may engage in
inappropriate sexual behaviors, it is important for the staff to abide by generally accepted polices
regarding staff interaction with patients of the opposite gender. A male mental health technician
should not go into the room of a female patient unless there is a specific need to go into the room.
He should only stay in the room for as long as is absolutely necessary to perform a specific task.
He should never close the door to the room unless a female staff member is also present in the
room. And there is absolutely no reason that a male staff member should go into a female patient's
restroom, unless the patient is having a medical emergency in the restroom. These are general
policies that should be in place at all psychiatric units, both for adolescents and adults. These
policies protect both the patients and the staff, as they protect the patients from inappropriate
sexual behavior by the staff and they protect the staff from unwarranted allegations by the patients.
There is never a reason for a male staff member to engage in sexually explicit discussions with a
female patient. Under no circumstances is it acceptable for hospital employees to ever engage in
any sexual contact with a patient, regardless of age or consent.

Dr. Dunn then addresses the alleged breach of the standard of care:

Hickory Trail Hospital violated the standard of care by not having policies for its mental health
technicians interacting with patients of the opposite sex. Hickory Trail Hospital also violated the
standard of care by not training its mental health technicians about the need to stay out of the
bedrooms of opposite gender patients unless a medical emergency requires that they enter the
room. A “fifteen minute check,” if done by a mental health technician of the opposite gender, can
be done from the doorway without fully entering the patient’s room at all.

There is a dispute regarding the facts of this case. Shawn Mcafee denies that he ever went into the
bathroom with [H.H.] or that he engaged in sexual activity with her. Even if no sexual acts
occurred, Hickory Trail Hospital was still in violation of the standard of care by creating an
atmosphere in which a male mental health technician would have the opportunity to remain for
“too long” in the bedroom of an adolescent female patient.

Finally, Dr. Dunn states the following regarding causation:

It is my opinion, to a reasonable degree of medical certainty, that Hickory Trail Hospital's lack of
proper training and lack of policies and procedures created an environment that allowed Shawn
Mcafee to be in [H.H.’s] room for an extended period of time, giving him the opportunity to
sexually assault her in the bathroom. Proper supervision of Shawn Mcafee, combined with
appropriate training and policies regarding going into the bedrooms or bathrooms of opposite sex
patients, would have prevented Shawn Mcafee from having the opportunity to sexually assault
[H.H.]. If Shawn Mcafee was indeed fired for staying in the patients' room for too long, then a
policy and appropriate training should have been in place to explain to the employees why being
in the rooms of opposite sex patients is not allowed. The lack of such policies and training was the
proximate cause of [H.H.’s] injuries and the proximate cause of its employee (Shawn Mcafee)
having the opportunity to sexually assault [H.H.].

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the standard of care by failing to have these policies and procedures. Dr. Dunn suggests the

following policies should have been adopted:

 A male mental health technician should not go into the room of a female patient unless
there is a specific need to go into the room.
 He should only stay in the room for as long as is absolutely necessary to perform a
specific task.
 He should never close the door to the room unless a female staff member is also present
in the room.3
 And there is absolutely no reason that a male staff member should go into a female
patient's restroom, unless the patient is having a medical emergency in the restroom.

Dr. Dunn fails to explain how and why the absence of these suggested policies caused

H.H.’s injuries. See Hendrick Medical Ctr., 298 S.W.3d at 789–90; Gray, 189 S.W.3d at 859.

The Texas Supreme Court has stated that, “An expert cannot simply opine that the breach caused

the injury. Stated so briefly, the report . . . does not give the trial court any reasonable basis for

concluding that the lawsuit has merit.” Jelinek, 328 S.W.3d at 539. An expert must “go further

and explain, to a reasonable degree, how and why the breach caused the injury based on the facts

presented.” Id. at 539–40. Dr. Dunn fails to state how the absence of the listed policies would

have kept this particular incident from happening. Therefore, Dr. Dunn’s opinion is conclusory.

See Id. (concluding that the expert’s report was conclusory on causation when it offered “no

more than a bare assertion that Dr. Jelinek’s breach resulted in increased pain and suffering and a

prolonged hospital stay”).

We next address the alleged lack of supervision. Dr. Dunn states that proper supervision

of Shawn Mcafee would have prevented the incident. However, he fails to describe that

supervision. Without identification of what would constitute proper supervision, this Court

3
Appellees urge in their brief that, “it is abundantly clear that had a female staff member been present with Shawn
Mcafee in [H.H.’s] room it would defy reason for any reasonable person to believe that he would have had sexual
intercourse with her or received oral sex in front of another female employee.” We note, however, that Dr. Dunn did
not suggest in his report a policy in which a male mental health technician is always accompanied by a female
mental health technician when in the room of an opposite-sex patient.

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cannot determine if it is more likely than not that, had there been supervision, the incident would

not have occurred. See Quinones v. Pin, 298 S.W.3d 806, 815 (Tex. App.—Dallas 2009, no pet.)

(“In a medical-malpractice case, the element of causation requires proof that the breach of the

standard of care was, more likely than not, the cause of the injury.”).

Further, an expert report “must contain sufficiently specific information to demonstrate

causation beyond conjecture” and the report “must not be conclusory in its explanation of

causation; it must explain the basis of its statements sufficiently to link its conclusions to the

facts.” Taylor v. Fossett, 320 S.W.3d 570, 577 (Tex. App.—Dallas 2010, no pet.). By not

identifying how Hickory Trail’s failure to supervise Shawn Mcafee caused H.H.’s injuries, the

report does not “convincingly tie the alleged departure from the standard of care to specific facts

of the case.” See Gray, 189 S.W.3d 855. When a report fails to outline how a suggested action

“would have resulted in different care and treatment, or a different outcome” then there is “a

broad analytical gap between the alleged breach and the ultimate harm” and thus, the report is

“insufficient to establish causation.” See Love, 347 S.W.3d at 755; see also Loya, 2016 WL

7376559, at *5–6 (expert report explained why the outcome—in that case, why an individual

would not have been wrongly, involuntarily committed—would have been different, “had a

physician conducted a psychiatric assessment” rather than merely a “licensed professional

counselor intern”). Therefore, we conclude Dr. Dunn’s opinion that the lack of supervision

caused H.H.’s injuries is conclusory.

III. Conclusion

For the above reasons, we conclude the trial court abused its discretion in denying

appellant’s second motion to dismiss. Appellant’s issue is decided in its favor.

Accordingly, we reverse the trial court’s order denying appellant’s motion to dismiss,

render judgment dismissing appellees’ claims against appellant with prejudice, and remand this

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case to the trial court to determine any reasonable attorney’s fees and costs to be awarded to

appellants pursuant to section 74.351(b)(1) of the civil practice and remedies code.

/Douglas S. Lang/
DOUGLAS S. LANG
JUSTICE
160663F.P05

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