## In the Court of Appeals Second Appellate District of Texas

a t F ort Worth

___________________________

No. 02

- 23

- 00094

- CV

___________________________

On Appeal from the 153rd District Cour t Tarrant Co unty, T exa s Trial Court No. 153 -3 3401 8- 22

Before Birdwell, Bassel, and Wallach, JJ. Memorandum Opinio n by Justice Birdwell 

### D R



### . J A MIE 

### S INGLEY 

### ; DDS D ENTURES 

### & I MPLANT 

### S OLUTIONS 

### ; A FFORDABLE 

### D ENTURES 

### & I MPLANTS



### , F ORT 

### W ORTH 

### P.A. ; A FFORDABLE


### D ENTURES 

### & I MPLANTS



### , T EXAS 

### PLLC ; A ND 

### DDS D ENTU RES AND



### I M PLANTS



### , Appellants

V



### .

G REG 

### S TAATS



### , A ppellee2 MEMORANDUM OPINION

Appellee Dr. Jami e Singley p erformed a denta l- implant procedure on Appellant

Greg Staats

, and soon thereafter, Staats developed a fever . H e s ought treatment from

his primary care physician

, and later , he reported his fe ver to Dr. Si n gle y. But

a ccording to Staats, Dr . Singley “r ef used ” to ex amine hi m. L ess tha n forty -e ight

hours after this alleged “ refus[al] ,” Staa ts went to the h ospital and wa s diagnosed with

a live r abscess

.

Staats sued Dr. Singley

, along with Dr. Singley ’ s dental practi ce (D DS De ntu res

and Imp l ant Solutions) and several relate d dental -i mplant companies ( collectively,

Dr . Sing ley) . T o comply wi th the Medical Liability Act (MLA), Staats served

Dr. Sin gley wi th two expert reports

. 1 See T ex. Civ. Prac. & Rem. Code Ann.

§ 74.351( a)

. B oth reports a llege that Dr. Singley ’s postoper ative fail ure to exam ine

1 The MLA applies to health care liability claims brought against dentists for injury or death p roximately caused by their breach of prof es sion ally accepted

standards of care. See Tex. C iv. Prac. & Rem. Code Ann. § 74.001 ( a) (1 0) (defining “[h] ealth care”), (a) (12)(A)(ii) (defining “[h] ealth care provider” to include “a dentist”), (a

) (13) (defi ning “[h] eal th care lia bility claim”). And the d ental

- impl ant surgery specifically performed by Dr. Si ngley is a List A Procedure su bject to t he MLA’s

informed

- consent and disclosure requirements

. See id. §§ 74.101

– .107 ; 25 Tex.

Admin. Code A nn. § 601. 2 (u)(4)(B) (2023) (Tex. M ed. Disclosure Panel, Pr oc edures Requiri ng Full Disclosure of Specific R isks and Hazards

— List A) (listin g risk s inherent in dental

- implant surgery subject to disclosure for informed

- consent purposes). Accordingly, as a p redicate to prosecuting his health care liability claim

aga in st Dr. Singley

, the MLA required Staats to ser ve one or more expert reports

set ting forth, individually or in combination, the prima facie basis for his claim. See

Ranso m v. Eaton

, 503 S.W.3d 4 11, 411

– 12 ( Tex. 2016) ( applying MLA’s expert

- report requi re me nt to health care liab ility claim alleged against dentist ); see also Gorm ley v. Stov er , 907 S.W.2d 448, 449

– 50 (Tex. 199 5) (applying MLA’s statute of limitations for

health ca re liability claims to claim against dentist for postop erative negligence)

.3 Staats breached the s tandard of c are

. Dr. Singley moved to dismiss based on the

reports’ inadequacy on causation

, but t he trial court denied the m otion

.

Be cau se neither of S t aats ’ s expert rep orts identifies how or wh y Dr. Singley ’ s

alleged bre ach of the standar d of care

— her alleged postoperat ive refus al to e xamine

Staats

— caused or worsen ed S taats ’s liv er abscess or resulte d in any other damage , we

will reverse and remand

.

I

. Background

O n J une 16, 202 0, Dr. Singley performed a dental

- imp lant procedu re on Staa ts

.

The next day , S taat s dev eloped a high f ever. At the time

, COVID

- 19 wa s a significant

pu blic health concern , but a ccording to S taat s , he tested negative for COV ID

- 19

.

About a week later, on June 23, Staat s consulted his primary c are p hysician,

who di agnosed him with a “v iral syn dro me ” and treated him with va rio us

medic ations

. Staat s’ s fe ver persisted , so after another week , Sta at s r eturned to his

primary care physician a nd was treated with additional medication for wha t w as still

b elieved to be a “ viral syndr ome. ”

A round tha t s ame time

, on June 29

, Staats contacted Dr. Single y and reported

his fever

. 2 The parties dispute how Dr. Singley responded

. A cc ordi ng to Sta ats, Dr.

Single y “ refused to examine hi m” out of a fear of c ont r acting COVID

- 19

, and she

2 It is unclear whether Staa ts returned to his primary care phys ician befo re or

a fter cont acting Dr. Singley on that date

.4 in stead referre d him back to his primary care ph ysician. Dr. Singley contends she saw

him. 3

Within forty

- eight hours of t his alleged “ refus[a l] ” and referral, 4 Staat s went to

the emergency r oom , where he was diagnosed with a nd t re at ed for a liver a bsces s. 5

Sta a ts su ed Dr. Singley for dental m alpractice based on Dr. Si ngley ’ s alleged

fail ure to diagno se his con dition and fail ure to treat his post operative complications,

am ong other things

. Staat s t hen serv ed Dr. Singley with two ex pert rep or ts pursuant

to the ML A

. See id

.

3 One of Staats ’s expert repor ts indicates that he “ pres e nt[ed] to [D r. Singley ’ s]

office ” but was “ advi[sed]

. . . to se e a p hy sicia n” and “ [n] o examination [w as ]
conducted. ” The other expert report in dicates that Staat s “ ca lled ” Dr. Singley and

that an “ initial appointment was offered and then r etrac t ed [,] and he was re ferred to

see his primary [car e] physician. ” In her briefing, Dr. S ingley

, “stron gly disputes that

she did not see the patient .”

4 Staa ts ’s pleadings and expert reports diff er in the n umber of da ys that passed

betw e en Staats ’s conversation with Dr. Sin gley and his presentation at the h ospit al

. Staa ts ’s live petition alleg es that

, after cont a cting Dr. Singley, he went to th e
emergency roo m “ [t]he next day ,” but o ne of his exp ert reports in dicates that he went

to the ho spital two days later

.

5 An “ab scess” is “a localized collection of pus surrounded by inflamed tissue.”

Ab scess , Merriam

- Webster’s Medical Dictionary (2016). Staats ’s live petition alleges

that he had sepsis, b ut his e xp ert re ports do not mention or discuss this. See Jackson v. Kindr ed Hosps. Ltd. P’ ship

, 565 S.W.3d 75, 86 (Tex. App.

— Fort Worth 2018, pet. de nied) (describing sepsis as an infection in the blood); Cunningham v. H aroona , 382
S.W.3d 492, 500, 5 14 ( Tex. App. —Fort Worth 2012, pet. denied) (same)

. Similar ly,

Staats ’s trial court pleadings and appellate brief repeatedly mention a severe infection

. His expert rep ort s, though

, talk in terms of Staats ’s liver abscess

, which was Sta a ts ’s

“a dmitting di agno sis ” at the hospital

. Neither expert explain s th e relationship
between an infection ge nerally

, sepsis specifically

, and a live r abscess

.5 In Staats ’ s expert reports, Dr

. James Melville and Dr. David Wi tt 6 opine that

St aat s’s liver abscess was “[ p]ossibl[y] ” or “ likely rel ated to th e dental pr o ce dure ” and

that “ Dr. Sin gley ’ s refusal t o see an d e xam ine Mr . Staats af ter [the] proc edure

. . . fell

be low the standard of care .”

Dr. Singley move d to dismiss under the MLA

, argu ing tha t the expert rep orts

were inadequate be c ause, among other things

, they failed to explain the caus al

connection be twe e n Dr. Singley ’s breach

— i.e., her alleged r efu sal to conduct a

post operat ive examin ation of S taat s— and Staats ’ s injury. See id. § 74.351 (b) , (r) (6)

.

Staats, th oug h, claimed that the reports de scribe d how Dr. Singley “ ab andoned [ her]

patien t from treating him p ostoperatively for a condition caused by the den tal

procedure .” A fter a hearing, the trial court denied Dr. Singley ’s dism issal motion

.

Dr. Singley appeal s. See id. § 51.014(a)(9).

II

. Governi n g La w and S tandard of R eview

Unde r th e MLA , a claiman t a sse rting a health car e liability claim m ust serve

eac h he alth care provider with a timely

, ade quate exper t report e arly in t he

procee di n gs

. See id. § 74.351(a) ; Baty v. F utre ll , 543 S.W.3d 689, 692 (Tex. 2018)

. If th e

report i s untimely or ina d equate

, then upon the defendant ’ s motion, the tri a l court

6 Dr. Melville is a dental surgeon , and Dr. Witt is a physicia n who is board

ce rtifi ed in infect ious diseases and int ernal medicine. The experts ’ qualifications are

not at issue in this appeal ; altho ugh Dr. Singley criticizes such qualific a tio ns in a fo otnote of her brief

, the iss ue is not pre sented for our review.6 must dismiss t he claim

. 7 S ee T ex. Civ. P ra c. & Rem. C ode Ann. § 74.351(b )

, ( l ) ; B aty

,

543 S.W. 3d at 692

– 93

.

A n expert report i s inadequate if “ it ap pears to the [trial] c ourt, aft er he aring,

t hat the repo rt doe s not represent an obj ec tive goo d fai th effort to comp ly with the

[MLA’s ] de finitio n of an exp ert report.” Tex. Civ . Prac. & R em. Code Ann.

§ 74.351( l ) . The MLA ’s definit ion of an expert re port

, in turn , re qu ires “ a f air

summary of the expert ’ s opi nions . . . r egarding applica ble stand ar ds of care, the

mann er in which the care rend ered b y the physician or health ca re provider fail ed to

meet t he standards, an d the causal re lations hip between that failu re and th e injury,

harm, or damages c l aimed. ” Id

. § 74 .351 (r) (6) ; see Baty , 543 S.W.3d at 6 93

– 94 (noting

that expert report must “ inf orm[] the defendant of the specifi c conduct called in to

quest ion and

. . . provid [e] a basis for the trial court to conclude the claims have

m erit ”)

.

I n addr essing “ the causal relationship ,” Tex. Civ . Prac. & Rem

. Code Ann.

§ 74.351 (r) (6) , the expert rep ort “mu st explain, based on facts set out in the r epo rt,

how and why [ the h ealth care provide r’ s] breach [of the standard of care] caused the

injury .” Columbi a Valley Hea lthcar e Sys., L.P. v. Zamarripa , 526 S .W.3d 453, 459

– 60

(Tex. 2017) (quoting Van N ess v. ET MC First Physicians , 461 S.W .3d 140, 142 (Te x.

2015) )

. C ausation “ has two components : (1) foreseeability and (2) cause

- in

- fact

. ” Id.

7 If the report is inadequate

, the trial court may g ran t a 30

- day extension to allo w the claimant to cure the deficiency

. Tex. Civ. Prac. & Rem. Code Ann. § 74.351 (c)

.7 at 460 (quoting R odriguez

- Esc obar v. Goss , 392 S.W.3d 109, 1 13 (Tex . 2 01 3) ). F or the

latter component (cause

- in -f act)

, the expert must clarify why , “ absent the act or

omissio n— i.e.

, but fo r the act or omiss ion

— the harm would not have occurred. ” Id.

( italics removed) (quoting Rodrigu ez

- Escobar , 392 S.W. 3d at 113 )

. “ A bare expert

opinion that the bre ach caused the injury will not suffice. ” Va n N ess , 46 1 S.W.3d at

142

.

A trial cour t’s r uling on the adequacy of an expert report is re view ed for an

ab use of discretion

. Id. ; Jelinek v. Casas

, 328 S.W.3d 526, 539 (Tex. 2010)

.

I II . Di scussi on

In a s ingle appellate issue, Dr. Sin gley co ntend s that Staats ’s expert reports do

not adequatel y ad dre ss causati on, so the trial court a bused it s discretion by d enying

the motion to dismiss

. We ag ree.

T he expert reports do not iden tify an y damage

— physi cal, financial, or

other wise

— caus e d by Dr. Singley ’ s alleged postoperative negligence

. The only

damage S taats ’ s exp er t reports discuss is hi s liver abs cess. But both Dr . Melville and

Dr. Witt state that t he liver a bscess “ was very likely related to [St aats’ s] dent al

pro cedure ” 8

— not Staats ’s postoperative care. N either expert claim s that Dr. Sing ley

8 N either exp ert expl ain s the causal link between the denta l- implant procedure

and the liver abscess ; th e reports merely note the ab s cess ’s te mporal proximity to the

den tal p rocedure and state that abscesses are “ well recogn ized ” postoperative compli cations of de ntal s urgery

. Without such an explanation, a “well recognized” postoperative complication may si mply represent a risk inherent in the procedure th at

oc curs without the presence of negligence. See Felton v. Lovett

, 388 S .W.3d 6 56, 6628 negl igently performed the implant procedure that alleged ly caused the liver abscess

.

Rat her, they st ate tha t Dr. Singl ey ’ s neglig ence came later, a couple of weeks a fter the

implant procedu re, when she “ deviat ed f rom the standard of care requi red for a

postoperative patient in [h er ] refus als to evaluate Mr. Staats .” 9

Sta ats atte mpts to solve this issue by l um ping the impla nt procedure together

with Dr. S ingley ’s postope rativ e c are and treat ing both as a single incident

— a single

incident that , in his view, caused the liver abscess

. But Staats ca nnot reverse the sands

of time. Again, u nder St aats ’s own theory of the case, the source of his liver abscess

predate d Dr . Sing ley ’s alleged negligence by ap proximately two weeks. And b ut

- for

c ausa tion necessitates that the cause (i.e., the negligen ce) occurs prior to the injury. If

the injury is already in place be fo re the negligen t act io n is taken , then it cannot be said

(Tex. 2012) (“Inherent ris ks of treatment are thos e which are dir ectly related to the

treatment and occur without negligence.”). “ Negligence is never impu ted f rom results, nor is any inference thereof indulged in against a physician.” Kast er v. Woodson

, 123 S.W.2d 981, 982

– 83 (Te x. App.

— Austin 1938, writ ref’d) (quoting Floyd v. Michie

, 11 S.W.2d 657, 658 (Tex. App.

— Au stin 1928, no writ), and holding t hat a phy sician’s liability for i nfectious postoperative compli cations may not be inferred from their temporal proximity to the pro cedure in question but m ust be established by expert medical testimony describing both the source and the mechanism of the in fect ious

process and its causal r elationship with the treatmen t in question); see Ft. Wort h &

R.G. Ry. Co. v. McMurray

, 173 S.W. 92 9, 931

– 32 (Tex. App.

— For t Worth 1914, writ ref’d) ( rejecting expert medical testimony attri buting decedent’s fatal liver abscess to

un sanitary ditch water when experts testified to several “ theoretically supposable possibilities ” that could have causally l

inked ab s cess to water —e .g., malari a or typhoid

fever

— but experts gave no “ definite, positi ve opinion ” regar ding abscess ’s cause ).

9 We note that Staats’ s own postoperative conduct suggests that he did not think the dental

- implant procedure was the source of his fever because he d id not

contact Dr. Singley concerning his symptoms until well after he had already sought

treatment fr om his primary care physician

.9 that “ abse nt the [negl igent ] act or omission

. . . the harm wo ul d not have occurred

. ”

Columbia Valley Healthcare , 526 S.W.3d at 460 ( quoting Rodriguez

- Escobar , 392 S.W.3d at

113

, and summariz ing cau se

- in

- fact ).

T his is not to say that post operativ e negligenc e cou ld not have contrib uted to

the liver abscess , worse n ed the abscess, or caused related damage. And , though not

S t aats ’ s pr imary argument, he allude s to this p ossibility as well

. He emphasi zes that

Dr. Si ngley “ fail [ ed ] to treat and diagnos e ” his live r a bs cess despite his “ deterior ating

condition

, ” which we l iberally construe a s arguing tha t Dr . S i ngley ’ s negligence

allowed hi m to deterior ate further

. See Tex. R. A pp . P. 38.9.

Yet

, Sta ats ’ s expert reports do not address how Dr. Singley ’ s examination of

h im on June 29 would have lessen ed the damage his liver abscess inflicted

. I n such

cases

— when “ the allegations are th at a pa tient, who had a pre

- existing condition

[ befo re the alleg e d negli gence ] , would have experienced a better outcome had earlier

di ag nos is or treatment been undertaken ”

— “ [t] he need to explain the causal

connection between breaches of the standards of ca re and the claimed injury or death

i s particular ly acute

. ” Nort h cutt v. Stephens , No. 02

- 21

- 00217

- CV, 2 022 WL 60720, at

*4 (Tex. App.

— F ort Worth Jan. 6, 2022, no pet.) ( mem. op.) ( holding exp ert report

inadequate )

.

H e re, Dr . Singley ’ s alleged refus al to examin e Staats delayed his diagnos is and

treatm ent by , at most, two day s ; he spoke to Dr. Singley on June 29, and on July 1

, he

we nt to th e hospital and received treatment

. Neither Dr . Melville nor Dr. Witt10 explain s wh at damage occurred betwe en June 29 and July 1 that Dr. Sing ley could

hav e prevented

. Se e Ngo v. Lewi s , No. 09

- 10

- 00140

- CV, 2010 WL 3518225, at *3 (Tex.

App.

— Beaumont Sep t. 9, 2010, no pet.) ( mem. op.) (holding expert report inadequate

when pro vider allegedly delaye d tests and sp ecialis t consultation but expert re port did

not explain how trea tment orresu lt woul d have been different if tests and

consul tation had occurred e arlie r) ; Taylor v. Fossett , 320 S.W.3d 570, 577 (Tex. App.

—

Dallas 2010 , no pet.) (holding expert report inadeq uate wh en expert did not explain

“t he impact of the alleged 48 -h our delay in re

- eval uation of [the patient ] on the nature

and severity of the unde rlyin g infection nor in what ma nner the infection developed

or changed in that period of time ne cessitating s urgery t hat otherwise would not have

been requi red”); Jones v. Ki ng , 255 S.W.3 d 156, 160 (Tex. App.

— San Antonio 2008,

pet. denied) (mem. op .) ( hold ing e xpert repo rt inadequate an d noting that expert

“d [id] not attempt to explain how [the patie nt ’s medical bills an d other damages ]

would not h ave occurre d if the diagnosis of meningiti s had o ccurred 48 hours

earlie r ”) ; c f. Ab shire v. Christus Health Se. Tex. , 563 S.W.3d 219, 22 4–26 ( Tex. 2018)

(holding expert rep ort adequate when expert opined that failure to properly assess

patient ’s medi cal hi s tory del ay ed diagnosis o f sp ina l injury w hich “a llowed the spinal

injury to progress to the point of paraplegi a ”)

.

In fact, Dr . Witt ’ s report see ms to indicate that delaying the diagnosis of

St aa ts ’ s liver abscess did n ot resul t i n any damage

. Although D r. Wit t cri ticize s

Staats ’s p rimary care p hysicia n ’s treatme nts

— describing s uch treatments as “ not11 mak [ing] muc h sen se ”— Dr . W itt state s tha t t hese nonsensical treatment s “ delayed an

accurat e diagnosi s a nd potentially confused the bacterial culture diagnosi s, [but tha t ]

fortunately no other harm wa s done .” So i f, as Staats claims, his primary care

physici an ’s fa ilu re to accurately dia gnose his postoperative condition delayed

treatment fo r approxim ately two weeks but c aused “n o other harm ,” then it is di fficult

to understand what ha rm Staats a llege s Dr. Si ngley caused by delay in g his treatment

for tw o da ys.

The primary care physician ’s inv ol vement raises anoth er complicating facto r

that S taats ’s e xpert reports do not address. When Staats reported his f ever to

Dr. Singley, his symp toms were a lready being treated ( albeit alleged ly nonsensically )

by his primary care ph ys i cian . N either Dr. M elville nor Dr. Witt explains why th e

standard of care require d Dr . Single y to intervene in Staats ’ s t rea tme nt wh en Staats ’s

fever was alre ady bein g treated by a nother he alth car e provider

. 10

In short, Staats ’s expert r eports provide n o exp lanation o f how or why the

ou tcome wou ld have been different if Dr. Singley had e xamined Staats on June 29

.

See Kark o utly v. Gu errero , No. 13

- 17

- 00097

- CV, 2017 WL 6379795, at * 3– 4 (Tex

.

10 Sta ats repeated ly states that he was “a bandoned ” by Dr. Si ngle y, but pat ient
abandonment requires

, among other things, the pro vider ’s severance of the relationship witho ut providing sufficient notice or the o pportunit y f or the patient to obtain adequate alte rnative med ical care

. T.L. v. Cook Child

. Med. Ctr

. , 607 S.W.3d 9,

56 (Tex. App.

— Fort Worth 2020, pet. denied) ( listing elements of patient

abandonment cla im ). Dr. Si ngley referred Staa ts to his primary care physician

, and although Dr. Witt as s erts that “ [a] referral to a primary [care ] physician for a potentia l

medical problem is not a resolution for [a] dental complicat ion, ” neither he nor Dr. Melville explain s why the ref erral was ina dequate

.12 App. —C orpus Christi

– Edinburg Dec. 14, 2017, no pet.) (m em. op.) ( co nc lud ing

similarly and hold ing expert report inadequate when pa tient alleged doctor was

neg ligent in delaying explorato ry surgery ); see also C olumbi a Valley Healthcare , 526

S .W.3d at 460 ( noting that expert report must address bu t- for causation )

. T he r eport s

d o not “r epresent an ob j ec tive good faith effort ” to summarize “ the causal

rela tions hip ”; t he tria l court abused it s discretio n by concluding ot herwise and by

denying Dr. Singley ’ s mo tion to d ismiss

. See Tex. Civ . Prac. & Rem. Code Ann.

§ 74.351(a) , (b) , ( l ), (r) ( 6)

. We sustain Dr. S i ngley ’ s sole issue.

IV . Conclusion

Staats ’s exp ert repo r ts are inadequate under the MLA , so we reverse the trial

court ’s order denying Dr. Singley ’ s mo tion to dismiss

. Id. But because the

deficiencies in Staats ’ s ex pert rep orts are not so overwhelming that a valid explanation

“would be impossib le,” t he trial court must be given the opp ortunity to consider

whether to dismiss Staats ’s case w ith prejudice or to g rant Sta ats an extension

. 11

Col umbi a Valley Healthcare , 52 6 S.W

. 3d at 461 ( concluding that, because e xpert report ’ s

deficiencies were curable

, “[t] he trial court

. . . must be given the opp ortu nity to

consider an extens ion ”) ; Karkoutly

, 2017 WL 6379795, at *4 ( similar, quoting Columbia

Vall ey Healthc a re ) ; s ee Tex. Civ . Prac. & Rem. Code Ann. § 74.35 1(c) (a uthorizing trial

court to grant 30

- da y extension to cure expert

- report deficiencies )

. We thus remand

11 Staats did not request an exten sion in the tr ial court, but he hints at his desire

for one on appeal. Cf. Northcu tt

, 2022 WL 60720, at *1 n.2, *4 ( remandi ng for

cons ide ration of extension de spi te claimants ’ failure to request one ).13 the case to the t rial court for fur ther proc eedings consistent with t his opinio n

. See

Tex. R. App. P. 43.2(d)

.

/s/ Wade Birdwell

Wa de B irdwel l Justice

Delivered : August 31, 2023