Reversed and Remanded in Part and Affirmed in Part; Opinion Filed April 

29, 2022

In The

Court of Appeals

Fifth District of Texas at Dallas

No. 05-20-00054-CV

DONNA VICKERS, INDIVIDUALLY, AS THE REPRESENTATIVE FOR 

ALL WRONGFUL DEATH BENEFICIARIES, AND AS AN HEIR AT LAW 

AND REPRESENTATIVE OF THE ESTATE OF JERRY VICKERS, 

DECEASED, Appellant

V.

EPIC HEALTH SERVICES, INC., AOC SENIOR HOME HEALTH CORP., 

D/B/A ANGELS OF CARE AND/OR ANGELS OF CARE PEDIATRIC 

HOME HEALTH AND AMERIGROUP CORPORATION, Appellees

On Appeal from the 298th Judicial District Court

Dallas County, Texas

Trial Court Cause No. DC-15-14547

MEMORANDUM OPINION

Before Justices Reichek, Nowell, and Carlyle

Opinion by Justice Nowell

This is an appeal from an order dismissing health care liability claims for 

inadequate expert reports under Chapter 74 of the civil practice and remedies code. 

Appellant argues she timely supplemented the expert reports after the trial court 

granted an extension and that the reports are sufficient to meet the statutory 

requirements. We agree that the reports were timely supplemented and conclude the 

reports are sufficient as to Epic Health Services, Inc. (Epic) and AOC Senior Home 
–2–

Health Corp. (AOC) but not as to Amerigroup Corporation (Amerigroup). We 

reverse the trial court’s order as to Epic and AOC and remand the claims against 

those parties to the trial court for further proceedings. We affirm the trial court’s 

order dismissing appellant’s claims against Amerigroup.

Background

We take this background from appellant’s expert reports. Donna Vickers’s 

husband, Jerry Vickers, was diagnosed with amyotrophic lateral sclerosis (ALS) in 

2010. As the disease progressed, Jerry Vickers could not breathe on his own and 

could not swallow. By 2013, he was dependent on a ventilator and feeding tube and 

required complete support for all activities of daily living. He was completely 

paralyzed by 2014.

Epic began providing home health nursing services to Jerry Vickers in early 

2014. Despite his paralysis, Jerry could still blink and was able to communicate with 

the aid of a computer. He was also able to take and complete online courses. 

However, in July 2015, Epic unilaterally terminated its services and stopped sending 

staff to the Vickers’s home on July 6, 2015. Donna attempted to obtain adequate 

skilled home nursing after Epic’s termination but was unable to do so. Less than 

three weeks after Epic’s termination, Jerry died.

After Epic terminated its services, Donna contracted with AOC to provide

sixty hours per week of skilled nursing care with a start date of July 9, 2015. AOC, 

however, failed to provide adequate skilled nursing care for Jerry. Several nurses 
–3–

were selected but they lacked sufficient experience to care for a paralyzed ALS 

patient. 

Amerigroup administered Jerry’s Medicaid services. Amerigroup refused to 

approve a different home health care service with the needed respiratory therapist 

because that group was out of network. On July 22, 2015, Jerry suffered a cardiac 

arrest and sustained brain damage. He was declared brain dead on July 28, 2015. 

Vickers filed this suit against Epic, AOC, and Amerigroup on December 3, 

2015. Vickers timely served Epic and AOC with expert reports and curricula vitae 

from registered nurses Yvette C. Rodgers-Musial and Mary Beth Geise on the 

standard of care and breach and from Dr. Peter Gailiunas, Jr on causation. Epic and 

AOC objected to Gailiunas’s reports on the basis that he was not qualified and his 

reports were insufficient on causation. They did not object to the standard of care 

and breach of the standard of care reports from the two nurses. Vickers timely served 

Amerigroup with expert reports and curricula vitae from Dr. Patrick Daly and nurse 

Geise on August 31, 2016. Amerigroup objected to the qualifications of these experts 

and to Daly’s report as to standard of care and causation. 

Epic and AOC contend that the trial court orally granted Vickers a 30-day 

extension to correct deficiencies in Gailiunas’s report at the September 16, 2016 

hearing on their objections. At the hearing, the judge stated she was “going to allow 

you 30 days to correct any deficiencies in the reports” but the judge did not sign a 

written order at that time. Vickers did not serve a supplemental report within 30 days 
–4–

of that hearing but did serve a report and curriculum vitae from Dr. Robert Todd, a 

neurologist, on December 21, 2016.

Epic and AOC objected to the timeliness of Todd’s report and moved to 

dismiss Vickers’s claims against them. Epic also objected to Todd’s qualifications

and the sufficiency of his report. After a hearing on February 3, 2017, the trial court 

signed an order granting Epic’s motions to dismiss. However, the court vacated this 

order on March 21, 2018 and signed a written order granting Vickers 30 days to cure 

any deficiencies in the reports. 

Vickers served Epic, AOC, and Amerigroup with a supplemental report from 

Todd on April 20, 2018. Each of the defendants filed objections to Todd’s 

supplemental report. The trial court dismissed Vickers’s claims against Amerigroup 

at a hearing on August 24, 2018. By an order signed October 26, 2018, the trial court 

granted Epic’s objections to Todd’s supplemental report and its motion to dismiss. 

On December 10, 2019, the trial court signed an order dismissing the claims against 

AOC, resulting in a final judgment. Vickers then filed this appeal. 

Standard of Review

We review a trial court’s order on a motion to dismiss a health care liability 

claim based on the sufficiency of an expert’s report for an abuse of discretion. 

Abshire v. Christus Health Se. Tex., 563 S.W.3d 219, 223 (Tex. 2018) (per curiam). 

A trial court abuses its discretion if it acts in an arbitrary or unreasonable manner 
–5–

without reference to guiding rules or principles. Jelinek v. Casas, 328 S.W.3d 526, 

539 (Tex. 2010).

Applicable Law

Chapter 74 of the Texas Civil Practice and Remedies Code requires claimants 

in health care liability cases to serve an expert report on each defendant within 120 

days of their answer. TEX.CIV. PRAC.&REM.CODE § 74.351.1 The report must fairly 

summarize “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). The purpose 

of this requirement “is to weed out frivolous malpractice claims in the early stages 

of litigation, not to dispose of potentially meritorious claims.” Abshire, 563 S.W.3d 

at 223.

“Importantly, the trial court need only find that the report constitutes a ‘good 

faith effort’ to comply with the statutory requirements.” Id. (citing TEX. CIV. PRAC.

& REM. CODE § 74.351(l)). “[A]n expert report demonstrates a ‘good faith effort’ 

when it ‘(1) inform[s] the defendant of the specific conduct called into question and 

(2) provid[es] a basis for the trial court to conclude the claims have merit.’” Id.

1

Section 74.351 was amended effective September 1, 2021, but those amendments apply only to 

actions commenced after the effective date. See Act of April 19, 2021, 87th Leg., R.S., ch. 167, §§ 4–5, 

2021 Tex. Sess. Law Serv. Ch. 167 (eff. Sept. 1, 2021). All references to section 74.351 in this opinion are 

to the section as it existed at the time this action was commenced.
–6–

(quoting Baty v. Futrell, 543 S.W.3d 689, 693–94 (Tex. 2018)). A report “need not 

marshal all the claimant’s proof,” but “a report that merely states the expert’s 

conclusions about the standard of care, breach, and causation” is insufficient. Id. The 

“court’s job at this stage of the litigation is not to weigh the report’s credibility; that 

is, the court’s disagreement with the expert’s opinion does not render the expert 

report conclusory.” Id. at 226.

In addition, “the expert report must make a good-faith effort to explain, 

factually, how proximate cause is going to be proven,” although the report need not 

use the words “proximate cause,” “foreseeability,” or “cause in fact.” Columbia 

Valley Healthcare Sys., L.P. v. Zamarripa, 526 S.W.3d 453, 460 (Tex. 2017). 

“‘[T]he expert must explain the basis of his statements to link his conclusions to the 

facts.’” Id. (quoting Earle v. Ratliff, 998 S.W.2d 882, 890 (Tex. 1999)). “[C]ourts 

must view the report in its entirety, rather than isolating specific portions or sections, 

to determine whether it includes” the required information. Baty, 543 S.W.3d at 694.

To establish a causal relationship between the injury and the defendant’s 

negligent act or omission, the expert report must show the defendant’s conduct was 

a substantial factor in bringing about the harm, and, absent this act or omission, the 

harm would not have occurred. Mitchell v. Satyu, No. 05-14-00479-CV, 2015 WL 

3765771, at *4 (Tex. App.—Dallas June 17, 2015, no pet.) (mem. op.). Causation is 

generally established through evidence of a “reasonable medical probability” that 

the injury was caused by the negligence of the defendant, meaning that it is more 
–7–

likely than not that the ultimate harm or condition resulted from such negligence. 

See id. “An expert may show causation by explaining a chain of events that begins 

with a defendant doctor’s negligence and ends in injury to the plaintiff.” Id. The 

report must explain “to a reasonable degree, how and why the breach [of the standard 

of care] caused the injury based on the facts presented.” Jelinek, 328 S.W.3d at 539–

40; see also Quinones v. Pin, 298 S.W.3d 806, 814 (Tex. App.—Dallas 2009, no 

pet.) (to satisfy Chapter 74’s causation requirement, expert report must include fair 

summary of expert’s opinion regarding causal relationship between breach of 

standard of care and injury, harm, or damages claimed). “We determine whether a 

causation opinion is sufficient by considering it in the context of the entire report.” 

Mitchell, 2015 WL 3765771, at *4 (internal quotation omitted).

Analysis

A. Epic and AOC

In her first issue, Vickers argues that the trial court abused its discretion by 

granting Epic’s and AOC’s objections and motions to dismiss. 

1. Timeliness

The first matter we must address is the timeliness of the expert reports. Epic 

and AOC argue the trial court orally granted a 30-day extension at the September 

16, 2016 hearing and Todd’s expert reports were not served within that time. 

A claimant in a health care liability claim must serve an expert’s report and 

curriculum vitae on each defendant within 120 days after the defendant answers the 
–8–

suit. TEX. CIV. PRAC. & REM. CODE § 74.351(a). The defendant must file and serve 

any objections to the sufficiency of the report within 21 days after the date the report 

is served or the date the defendant answered the suit, whichever is later. Id. If the 

report is found deficient, the trial court may grant the claimant one 30-day extension 

to cure the deficiencies. Id. § 74.351(c). “If the claimant does not receive notice of 

the court’s ruling granting the extension until after the 120-day deadline has passed, 

then the 30-day extension shall run from the date the plaintiff first received the 

notice.” Id.

The trial court conducted a hearing on Epic’s and AOC’s objections on 

September 16, 2016. After the attorneys completed their arguments, the court stated 

the following:

THE COURT: Thank you. I’m going to allow you 30 days to correct 

any deficiencies in these reports. I think you know from some of the 

questions I’ve asked and some of the responses you’ve received pretty 

much what those are. So, you know, get your 30 days, and we’ll see 

where we are.

Vickers’s attorney asked, “Do you want us to give you anything? Do you want 

us to give you copies of the order, or do you have that?” The judge responded, “Yes. 

If you have an order, if you will please circulate it to counsel.” AOC’s counsel then 

asked if “the 30 days is as to both defendants who have motions pending today?” 

The court confirmed that it did.
–9–

The parties were unable to agree on the form of a written order following the 

hearing and submitted competing proposed orders to the court. The court, however, 

did not sign an order at that time. 

On December 21, 2016, Vickers served Epic and AOC with Todd’s expert 

report on causation and his curriculum vitae. Epic objected to Todd’s report on 

January 10, 2017, contending the report was not timely, Todd was not qualified, and 

his report was insufficient on causation. On January 11, 2017, AOC moved to 

dismiss on the basis that Todd’s report was not timely filed.

On February 3, 2017, the trial court signed an order granting Epic’s motions 

to dismiss and dismissing Vickers’s claims against Epic. Vickers moved to vacate 

that order on February 10, 2017. On March 21, 2018, the trial court signed a written 

order vacating the February 3, 2017 order and granting Vickers 30 days to correct 

any deficiencies in the reports.

2 Vickers served supplemental reports from Todd on 

each of the defendants on April 20, 2018. 

Epic and AOC argue that the context of the trial court’s statement at the 

September 16, 2016 hearing indicates a present decision to grant a 30-day extension 

from the date of the hearing. We disagree. “A trial court renders judgment orally 

when it announces rendition as a present act and not as an ‘intention to render 

2 On October 26, 2018, the trial court signed an order clarifying that this order sustained Epic’s 

objections to Todd’s December 2016 report, granted Vickers 30 days from March 21, 2018 to correct any 

deficiencies in Todd’s report, and vacated the February 3, 2017 order dismissing Vickers’s claims with 

prejudice.
–10–

judgment in the future.’” State v. Naylor, 466 S.W.3d 783, 788 (Tex. 2015) (quoting 

S & A Rest. Corp. v. Leal, 892 S.W.2d 855, 858 (Tex. 1995) (per curiam)). The 

words used by the trial court must clearly indicate the intent to render judgment at 

the time the words are expressed. Leal, 892 S.W.2d at 858.

Here, the court stated she was “going to allow” Vickers 30 days, indicating a 

future action. When specifically asked about an order, the court responded, “Yes. If 

you have an order, will you please circulate it to counsel.” This indicates the court 

expected to sign a written order circulated and approved by counsel. We conclude 

the trial court did not grant an extension from the date of the hearing, but indicated 

she was “going to allow” Vickers 30 days after a written order to correct any 

deficiencies in the report. See Mem’l Hermann Health Sys. v. Heinzen, 584 S.W.3d 

902, 908–09 (Tex. App.—Houston [14th Dist.] 2019, no pet.) (holding oral 

statements “I will give you 30 days” and “I’m going to go ahead and grant the 

objections and give you 30 days, and I’ll—I’ll sign the order” expressed the court’s 

intention to grant an extension in the future); Lopez v. Brown, 356 S.W.3d 599, 602–

03 (Tex. App.—Houston [14th Dist.] 2011, no pet.) (“[T]he notice [of the court’s 

ruling] provided for in section 74.351(c) must be in the form of a written order, rather 

than a trial court’s mere oral pronouncement from the bench.”). Vickers served 

Todd’s December 2016 report in anticipation of a written order granting her a 30-

day extension and was timely when that order was later signed on March 21, 2018. 

Vickers then served Todd’s supplemental report on April 20, 2018, within 30 days 
–11–

of the order granting the extension. We conclude that both of Todd’s reports were 

timely. 

2. Qualifications

Vickers argues the trial court abused its discretion by concluding that Todd 

was not qualified to give an opinion on causation. 

To qualify as an expert witness on the issue of cause of injury, harm, or 

damages in a health care liability claim, an expert must be “a physician who is 

otherwise qualified to render opinions on such causal relationship under the Texas 

Rules of Evidence.” TEX. CIV. PRAC. & REM. CODE § 74.351(r)(5)(C). Likewise, 

under section 74.403(a), “a person may qualify as an expert witness on the issue of 

the causal relationship between the alleged departure from accepted standards of 

care and the injury, harm, or damages claimed only if the person is a physician and 

is otherwise qualified to render opinions on that causal relationship under the Texas 

Rules of Evidence.” Id. § 74.403(a). Texas Rule of Evidence 702 requires an expert 

witness to be qualified on the basis of “knowledge, skill, experience, training, or 

education.” TEX. R. EVID. 702. In determining whether an expert is qualified to give 

a Chapter 74 report, we consider only the four corners of the expert report and the 

curriculum vitae. See Abshire, 563 S.W.3d at 223; Heinzen, 584 S.W.3d at 916. 

According to his report and curriculum vitae, Todd is board certified in 

neurology and a diplomate of the American Board of Psychiatry and Neurology. He 

is licensed in New York and has been practicing for nineteen years. He received one 
–12–

year of training in internal medicine and three years of training in neurology. He 

states he was trained to care for ALS patients with pulmonary diseases and treats 

ALS patients in his practice, all of whom have pulmonary diseases. He treats “ALS 

patients with severe pulmonary problems such as respiratory dependent patients like 

Jerry Vickers.” 

Todd explained:

There is no such thing as an amytropic lateral sclerosologist. Patients 

with ALS are treated symptomatically by specialists who are experts in 

whatever organ system is most affected by their ALS. In Mr. Vickers’

case the life-threatening condition I was asked to report on involved his 

pulmonary care. Patients who cannot breathe on their own and are on 

full time ventilator support need around the clock minute by minute 

pulmonary support to survive. Since I have been responsible for and 

taken care of many patients who are completely ventilator dependent, I 

am familiar with the standard of care both with hospitalized patients 

and home healthcare patients who are completely ventilator dependent.

Epic and AOC contend this paragraph shows that Todd is not qualified 

because he is not a pulmonologist. However, the proper inquiry concerning whether 

a physician is qualified to testify is not the physician’s area of practice but the stated 

familiarity with the issues involved in the claim before the court. Pediatrix Med. 

Group, Inc. v. Robinson, 352 S.W.3d 879, 883–84 (Tex. App.—Dallas 2011, no 

pet.). Todd’s report shows his familiarity with the pulmonary problems of ventilatordependent ALS patients and describes his specialized knowledge of the pulmonary 

hygiene required to keep such patients healthy. Todd is a neurologist treating ALS 

patients, like Jerry Vickers, who are completely ventilator dependent. He is familiar 
–13–

with the standard of care for both hospitalized and home health care patients who 

are completely ventilator dependent. See Whisenant v. Arnett, 339 S.W.3d 920, 927–

28 (Tex. App.—Dallas 2011, no pet.) (anesthesiologist qualified on causation in 

claim that defendant anesthesiologist failed to remove portion of broken needle after 

discography procedure causing wound infection); Adeyemi v. Guerrero, 329 S.W.3d 

241, 247 (Tex. App.—Dallas 2010, no pet.) (although not every physician is 

qualified to testify on every medical question, “we must be careful not to draw expert 

qualifications too narrowly”); Livingston v. Montgomery, 279 S.W.3d 868, 875–76 

(Tex. App.—Dallas 2009, no pet.) (OB/GYN qualified to give opinion on standard 

of care and causation in case alleging defendants’ negligence during labor and 

delivery caused neurological injuries to child).

Epic and AOC next contend that Todd’s reports do not show he has 

specialized knowledge on the pulmonary problems faced by ALS patients. We 

cannot agree. Todd’s reports detail his specialized knowledge about the breathing 

process and the pulmonary hygiene necessary to keep a ventilator-dependent person 

alive and healthy. He explained:

The human lungs are not simply a bellows whereby air comes in and 

air goes out. Much more happens during the breathing cycle. The air 

passages (or bronchial tubes) are lined with tiny hair-like structures 

called cilia. The mucosa lining these air passages secretes mucus. When 

a breath is taken in, more than air enters the lungs. There are bacteria,

microscopic particles, and foreign debris which also enter the air 

passages. The mucus traps these before they can enter the air sacks 

(alveoli). They are then removed passively by gravity and as we change 

positions, and actively by the cilia moving the debris up and out of the 
–14–

lungs. These processes, along with us coughing, occasionally deep 

breathing, and clearing our throat, work together to keep our lungs 

healthy. Mr. Vickers could not do any of the above actions on his own. 

He had to rely on external sources to remain alive. This included a 

ventilator which forced air into and out of his lungs 24 hours a day 7 

days a week. However, it takes much more than that to keep a person 

alive and healthy who is ventilator dependent. It requires around the

clock pulmonary hygiene (cleansing or toilet). Let me describe what 

this entails.

1. Postural drainage and percussion. This means they frequently 

repositioned the patient at least every 2 hours. They also beat on his 

back and his chest to loosen his secretions. This prevents pooling of 

debris in the lungs.

2. They put saline down the tracheostomy tube and into his lungs. They 

used a cough assistance device and they suctioned the saline from his 

lungs which loosened the secretions and brought them out. This 

prevents obstruction of the bronchi which lead to atelectasis and 

pneumonia.

3. They gave him IPPB treatments. This is done with a ventilator and is 

intermittent positive pressure breathing treatments. It gives the patient 

deep breaths and keeps the alveoli open.

4. They did tracheostomy care. This involves cleaning and sterilizing 

around the tracheostomy opening to prevent infections which would 

spread into his lungs.

5. Other treatments on a PRN basis as ordered by his pulmonary 

doctors.

6. They got him out of bed and into a chair several times a day. They 

also changed his position in the bed. This helped his circulation, and it 

helped to keep his lungs clear.

The above treatments were done on a very regular basis at least two to 

three times per shift and sometimes more often depending on his 

condition at that time.

The central question in determining whether an expert is qualified is whether 

the expert has “knowledge, skill, experience, training, or education regarding the 
–15–

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

that particular subject.” Broders v. Heise, 924 S.W.2d 142, 153 (Tex. 1996). Epic’s 

and AOC’s alleged failure to provide skilled nurses to perform this pulmonary 

hygiene for up to 60 hours a week is the crux of Vickers’s claim against them. 

Reading Todd’s reports and curriculum vitae as a whole shows he has the necessary 

knowledge, skill, experience, and training to render an opinion on causation in this 

case. Accordingly, the trial court abused its discretion to the extent it sustained 

Epic’s and AOC’s objections to Todd’s qualifications. 

3. Causation

Vickers next argues the trial court abused its discretion by sustaining Epic’s 

and AOC’s objections to Todd’s reports on causation. She contends that Todd’s 

reports adequately explain how and why Epic’s and AOC’s breaches of the standard 

of care proximately caused Jerry Vickers’s death. 

Epic and AOC did not object to the sufficiency of the reports as to the standard 

of care and breach of the standard. Thus, the only question is whether Todd’s reports 

represent a good faith effort to provide a fair summary of his opinion regarding the 

causal relationship between the breach of the standard of care and the alleged injury. 

See Quinones, 298 S.W.3d at 814. 

Nurse Rodgers-Musial explained the standard of care for Epic and AOC

regarding Jerry Vickers’s pulmonary care. His respiratory muscles were completely 

paralyzed and he required ventilator support 24 hours a day for seven days a week. 
–16–

To prevent infections and mucous plugs, he was given pulmonary cleansing several 

times a day. Epic nurses were trained to perform these skilled nursing functions and 

performed them while they were on duty. AOC nurses were trained to perform these 

services but did not perform them. According to Rodgers-Musial, Epic and AOC 

nurses were required to perform these functions sixty hours a week. Donna Vickers 

was responsible for these activities the rest of the time. Rodgers-Musial stated that 

these activities are so difficult and time consuming that no one person can constantly 

perform them no matter how hard they work or well-meaning they are. 

Rodgers-Musial explained the breach of the standard of care as to Epic and 

AOC. Both had a contractual duty to provide sixty hours of skilled nursing to Jerry 

Vickers. If Epic could no longer perform and AOC was unable to perform “their 

required duty, they were required to give Mrs. Vickers due notice in writing and an 

ample opportunity to secure the presence of other medical attendees who were 

qualified to provide Mr. Vickers essential care.” Her report also states, “Further, if 

Epic terminated their services to this critically ill patient, they were required to 

secure another in home nursing service capable of caring for a paralyzed ALS 

patient.” Epic’s breaches included the unilateral termination of their services without 

adequate notice as required by law and “failure to provide subsequent services to a 

critically ill patient when there was a necessity for constant, continuing medical 

attention.” 
–17–

Regarding AOC, Rodgers-Musial stated that Jerry Vickers did not receive the 

care AOC contracted to provide. “Several nurses were selected who lacked sufficient 

experience to care for a paralyzed ALS patient. By the time Angels of Care could 

provide a possibly suitable candidate, Mr. Vickers suffered a cardiac arrest and 

required emergency hospitalization.” AOC’s breaches included the unilateral 

severance of their services without adequate notice or “provision of adequate care” 

as required by law and “failure to provide satisfactory services to a critically ill 

patient when there was a necessity for constant, continuing medical attention.”

Todd’s causation opinions begin with the breaches of the standard of care 

described in the nurse reports. He stated that Epic stopped going to the Vickers’s 

home on July 6, 2015 and did not inform the Vickers of their unilateral termination 

of services as required by law. Further, they failed to obtain competent follow-up 

care as also required by law. “Were it not for these acts Mr. Vickers would have 

continued to receive his pulmonary hygiene and other vital services.” Further, Todd 

stated that AOC did not provide competent home health care services. AOC sent 

staff to the Vickers’s home “a couple of times” but they stayed only a few hours and 

were unable to perform the “pulmonary hygiene necessary to keep Mr. Vickers’s 

lungs clear.” “Were it not for [AOC’s] failure to provide competent staff Mr. Vickers 

would have continued to receive his pulmonary hygiene and other vital services.”

Todd’s reports explained the results: 

Therefore, over the next 2 to 3 weeks’ mucus, bacteria, and foreign 
–18–

debris began to build up in his lungs. This led to a cascade of 

complications.

First, the bronchi (breathing tubes) will not allow enough air to pass in 

and out of the alveoli. This leads to atelectasis which is a collapse of 

the lung tissue distal to the obstruction. In the atelectatic part of the lung 

pneumonitis forms because of bacteria within this closed space. 

Eventually, the amount of air reaching Mr. Vickers’ alveoli and 

diffusing into his bloodstream did not supply enough oxygen to keep 

vital tissues alive. In Mr. Vickers’ case this progression took about 2 

plus weeks. On the morning of Mr. Vickers cardiac event, based on 

reasonable medical probability, a mucus plug had formed and the 

oxygen level reaching his heart dropped too low and he suffered a fatal 

arrhythmia or a cardiac arrest. It was not apparent to Mrs. Vickers from 

his general condition that the cardiac arrest was imminent, but while 

receiving a breathing treatment on the morning of July 22 he suddenly 

became unresponsive. If Mrs. Vickers would have recognized Mr. 

Vickers’ deterioration, she would have had him hospitalized before this 

event. However, she was not a trained professional healthcare provider 

and did not recognize the serious nature of his condition. After 2 plus 

weeks of less than adequate pulmonary hygiene it only look a minimal 

decrease in his PO2 (oxygen level in his blood) to cause his heart 

muscle to cease functioning efficiently.

. . . .

The cause of Mr. Vickers’ death was anoxic brain injury. He suffered 

this during his cardiac arrhythmia and/or cardiac arrest which occurred 

as a result of his pulmonary deterioration. The pulmonary deterioration 

occurred because of the lack of effective professional pulmonary 

hygiene over the 2 weeks prior to his arrest. It is my fervent opinion, 

based on reasonable medical probability, that Mr. Vickers would have 

lived considerably longer, and the family and he would be happy, and 

he would be productive if Epic Home Healthcare had continued to care 

for him 60 hours a week. It is unquestionably foreseeable that when 

Epic abandoned Mr. Vickers and did not secure competent follow up 

care his pulmonary condition would deteriorate, and this would and did 

lead to his cardiac arrest and his brain death.

Todd expressed a similar opinion as to AOC:

It is my fervent opinion that, based on reasonable medical probability, 
–19–

that Mr. Vickers would have lived considerably longer, and the family 

and he would be happy, and he would be productive if Angels of Care 

had provided him with well trained, competent staff, who could have 

done the required pulmonary and other services. It is unquestionably 

foreseeable that when Angels of Care failed to provide the above 

described competent care Mr. Vickers pulmonary condition would 

deteriorate, and this would and did lead to his cardiac arrest and his 

brain death.

Reading the reports together, they provide a straightforward link between the 

breaches of the standard of care and the injury. Jerry Vickers could not survive 

without the pulmonary hygiene services both Epic and AOC contracted to provide 

to him. Jerry Vickers did not receive the necessary pulmonary hygiene during the 

two weeks leading to his death because Epic stopped providing it and AOC did not 

provide qualified nurses to perform it. Without adequate pulmonary hygiene, mucus, 

bacteria, and foreign debris began to build up in Jerry Vickers’s lungs resulting in 

insufficient oxygen to keep his vital tissues alive. In Todd’s opinion, a mucus plug 

formed and the oxygen level reaching his heart dropped too low, leading to a cardiac 

event and eventually to brain death. 

Epic argues that it was not required to provide care to Jerry Vickers in 

perpetuity and that it could have been released from its obligations by complying 

with the Texas Administrative Code provisions. Epic also argues nothing in the 

reports shows that it had knowledge of AOC’s alleged inability to provide competent 

nursing services. But these arguments go to the standard of care and breach of that 

standard, not causation. The causation question is whether Epic’s failure to properly 
–20–

terminate its services and obtain competent follow-up care caused Vickers’s injury. 

Epic did not object to the reports on standard of care and breach of the standard, 

therefore we accept that it failed to properly terminate its services and to secure a 

competent home health service to provide adequate nursing care to Jerry Vickers. 

Further, Vickers does not contend that Epic was required to provide services forever, 

only that it was required to provide services until it properly terminated its services 

and obtained competent follow-up care to keep Jerry Vickers alive. 

Epic points to factual discrepancies between the reports as to when it stopped 

providing services and when AOC began services. But it is improper at this early 

stage of the litigation to consider the “quality of the evidence the experts used as the 

basis for their factual assumptions.” Aramada v. Yates, No. 05-20-00960-CV, 2021 

WL 5563763, at *9 (Tex. App.—Dallas Nov. 29, 2021, no pet.) (mem. op.) (quoting 

Quinones, 298 S.W.3d at 813). In essence, Epic contends Todd’s opinion is not 

credible because Epic’s conduct was too remote from Jerry Vickers’s death. But the 

supreme court has made clear that the reasonableness, believability, credibility, or 

weight of an expert’s report are not relevant at this preliminary stage of the litigation. 

Abshire, 563 S.W.3d at 226 (“[T]he court’s job at this stage of the litigation is not to 

weigh the report’s credibility; that is, the court’s disagreement with the expert’s 

opinion does not render the expert report conclusory.”); Miller v. JSC Lake 

Highlands Operations, LP, 536 S.W.3d 510, 516–17 (Tex. 2017) (per curiam) (“At 
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this preliminary stage, whether those standards appear reasonable is not relevant to 

the analysis of whether the expert’s opinion constitutes a good-faith effort.”).

AOC argued in the trial court that Todd’s second report was conclusory 

because it did not explain why Jerry Vickers’s death was not primarily caused by the 

natural progression of his ALS and did not discuss the most reasonable alternative 

cause of death. But a Chapter 74 expert report is not required to exclude all other 

possible causes or anticipate and rebut all defensive theories. See Aramada, 2021 

WL 5563763, at *9; Owens v. Handyside, 478 S.W.3d 172, 187 (Tex. App.—

Houston [1st Dist.] 2015, pet. denied). Nor must the report “rule out every possible 

cause of the injury, harm, or damages claimed.” Baylor Med. Ctr. at Waxahachie v. 

Wallace, 278 S.W.3d 552, 562 (Tex. App.—Dallas 2009, no pet.). The expert need 

not prove the entire case or account for every known fact; the report is sufficient if 

it makes “a good-faith effort to explain, factually, how proximate cause is going to 

be proven.” Abshire, 563 S.W.3d at 224 (quoting Zamarripa, 526 S.W.3d at 460).

Todd’s reports satisfy this standard. Moreover, the reports show that when he was 

receiving adequate services from Epic, Jerry Vickers did well and was essentially 

stable.

We conclude Todd’s reports represent a good faith effort to explain factually 

how proximate cause will be proven as to Epic and AOC. See Zamarripa, 526 

S.W.3d at 460. The trial court abused its discretion by sustaining Epic’s and AOC’s 

objections. We sustain Vickers’s first issue.
–22–

B. Amerigroup

Vickers’s last three issues concern the dismissal of her claims against 

Amerigroup. 

Initially, Vickers argues she was not required to satisfy the Chapter 74 expert 

report requirements because Chapter 74 does not apply to her claim against 

Amerigroup. We disagree. 

Vickers alleged in her petition that Jerry was enrolled in the Texas Medicaid 

program administered by Amerigroup. She also alleged that Amerigroup “failed to 

make timely and reasonable health-care treatment decisions of the treatment of Jerry 

Vickers.” Chapter 88 of the civil practice and remedies code applies to claims against 

managed care entities. See TEX. CIV. PRAC. & REM. CODE § 88.001(8). It provides: 

“A . . . managed care entity for a health care plan has the duty to exercise ordinary 

care when making health care treatment decisions and is liable for damages for harm 

to an insured or enrollee proximately caused by its failure to exercise such ordinary 

care.” Id. § 88.002(a). “Ordinary care” means, in the case of a managed care entity, 

“that degree of care that a . . . managed care entity of ordinary prudence would use 

under the same or similar circumstances.” Id. § 88.001(10). Chapter 88 provides that 

an enrollee who files an action under that chapter must comply with the requirements 

of section 74.351 as it relates to expert reports. Id. § 88.002(k). Because Vickers 

asserted a claim under Chapter 88, she was required to comply with the expert report 

requirements of section 74.351. Id.
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Next, Vickers contends that Todd’s supplemental report regarding 

Amerigroup was sufficient to satisfy the section 74.351 requirements. She contends 

Todd’s report shows he is qualified to opine on the standard of care for a Medicaid 

managed care organization. Todd’s report states:

With particular regard to Amerigroup’s conduct, I have interacted with

insurance company and third-party administrators in complex cases like

Jerry Vickers. Many times, I have had the opportunity to correspond 

with such persons as an advocate for my patients in persuading case 

managers of the medical necessity of treatment. I have worked with 

many case managers in developing care plans for complex cases, such 

as the one presented by Jerry Vickers’ case. Through this substantial 

interaction, I am familiar with the standards of care for case managers, 

who are charged with sometimes conflicting duties to balance the need 

for care with the expense of such treatment. Ultimately, case managers 

are medical professionals, bound to the bottom-line duty of all 

healthcare workers, to “do no harm.” Case management professionals 

in a Medicare managed care organization also have specific duties of 

care imposed upon them by statute and regulation, and I have 

familiarized myself with such regulatory standards of care which are 

set forth herein. Finally, I reviewed materials from Amerigroup itself, 

to determine its self-imposed duties and standards of care for the 

provision of case management services to patient/members. After

review of all of these materials, I can unequivocally state that I am able 

to discern and opine about the standard of care for the case management

professionals in Jerry Vickers’ case.

Todd’s report indicates that he has interacted with insurance companies and 

third-party administrators from the perspective of a physician advocating for his 

patients but does not address Vickers’s claim from the standpoint of a Medicaid 

managed care organization. He does not explain why his medical experience 

qualifies him as an expert on the standards applicable to a Medicaid managed care 

organization under the same or similar circumstances.
–24–

Just as “[m]erely working at a hospital and serving on hospital committees 

does not automatically qualify an expert to testify on matters of operating a hospital,” 

Nacogdoches Cty. Hosp. Dist. v. Felmet, No. 12-12-00393-CV, 2013 WL 6207838, 

at *4 (Tex. App.—Tyler Nov. 26, 2013, no pet.) (mem. op.), merely interacting with 

insurance companies and third-party administrators does not qualify Todd to testify 

as an expert on managed care entities. Todd does not indicate he has any experience, 

training, or expertise working for a managed care organization or identifying and 

applying standards of care for such organizations. See Tenet Hospitals Ltd. v. Love, 

347 S.W.3d 743, 750–51 (Tex. App.—El Paso 2011, no pet.) (holding physician 

expert failed to demonstrate qualifications to opine on hospital administration 

procedures regarding staffing physician specialists and transferring patients).

Neither the report nor the curriculum vitae indicate Todd is qualified to opine on the 

degree of care that a managed care entity of ordinary prudence would use under the 

same or similar circumstances. 

We conclude the trial court did not abuse its discretion in concluding that 

Todd was not qualified as an expert as to a Medicaid managed care organization 

such as Amerigroup. Accordingly, the trial court did not err by granting 

Amerigroup’s motion to dismiss. 

In the alternative, Vickers contends the trial court should have abated the case 

pursuant to section 88.003(e), which provides that the court in its discretion may 

order the parties to nonbinding dispute resolution and abate the action for no more 
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than thirty days. TEX.CIV. PRAC. & REM.CODE § 88.003(e). Subsection (e) however, 

is subject to subsection (f), which precludes abatement if the plaintiff has filed a 

pleading alleging that “harm to the enrollee has already occurred because of the 

conduct of the . . . managed care entity” and review “would not be beneficial to the 

enrollee.” Id. § 88.003(f). Here, Vickers alleged that: “As to Defendant Amerigroup 

Corporation, harm has already been caused by Defendant’s negligent conduct in the 

form of Jerry Vicker’s [sic] death and a review would not be beneficial to Plaintiff.” 

Accordingly, Vickers was not entitled to an abatement.

In her third and fourth issues, Vickers argues that Chapter 74 is preempted by 

federal law because Amerigroup is a Medicaid payor and that the trial court erred by 

denying her motion for class certification of her claims against Amerigroup. 

After the trial court dismissed her claims against Amerigroup, Vickers filed a 

second amended petition alleging Amerigroup failed to comply with its obligations 

under federal law as a Medicaid managed care organization and seeking to certify a 

class action against Amerigroup. She also raised the preemption argument in her 

motion for rehearing of the court’s order dismissing Amerigroup. The trial court 

denied the motion for rehearing and confirmed its August 24, 2018 ruling dismissing 

Vickers’s claims against Amerigroup with prejudice.

According to her brief, “Appellant filed suit against Amerigroup asserting 

Chapter 74 health care liability claims that led to the untimely death of her husband.” 

She now argues this claim was preempted by federal law and that Amerigroup failed 
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to comply with its obligations under federal law as set forth in her second amended 

petition. She also argues the trial court erred by denying her request for class 

certification that was raised in her second amended petition. However, Vickers did 

not file the second amended petition until after the trial court dismissed her claims 

against Amerigroup with prejudice. Because the second amended petition was not 

filed until after the trial court dismissed Vickers’s claim against Amerigroup with 

prejudice, the petition was not properly before the court. 

A trial court cannot grant leave to amend pleadings after it has rendered 

judgment. See Midwest Compressor Sys. LLC v. Highland Imperial, Inc., No. 05-

19-01115-CV, 2021 WL 2548712, at *5 (Tex. App.—Dallas June 22, 2021, pet. 

denied) (mem. op.) (holding court did not abuse its discretion by denying motion to 

amend pleading filed after court pronounced it granted directed verdict); Rodriguez 

v. Crutchfield, 301 S.W.3d 772, 775 (Tex. App.—Dallas 2009, no pet.) (“[I]t is too 

late to amend the pleadings after judgment has been rendered.”); Prater v. State 

Farm Lloyds, 217 S.W.3d 739, 741 (Tex. App.—Dallas 2007, no pet.) (“A trial court 

cannot grant a motion to amend the pleadings once the court renders judgment.”). 

Thus, the trial court did not abuse its discretion by rejecting Vickers’s preemption 

argument and her motion for class certification. 

We overrule Vickers’s second, third, and fourth issues.
–27–

Conclusion

We conclude the trial court abused its discretion by granting Epic’s and 

AOC’s objections to Vickers’s expert reports. We also conclude the trial court did 

not abuse its discretion by granting Amerigroup’s objections to the expert reports. 

Accordingly, we reverse the trial court’s orders granting Epic’s and AOC’s 

objections and motions to dismiss and remand the claims against those parties to the 

trial court for further proceedings. We affirm the trial court’s order dismissing 

Vickers’s claims against Amerigroup. 

/Erin A. Nowell//

ERIN A. NOWELL

JUSTICE

200054f.p05
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Court of Appeals

Fifth District of Texas at Dallas

JUDGMENT

DONNA VICKERS, 

INDIVIDUALLY, AS THE 

REPRESENTATIVE FOR ALL 

WRONGFUL DEATH 

BENEFICIARIES, AND AS AN 

HEIR AT LAW AND 

REPRESENTATIVE OF THE 

ESTATE OF JERRY VICKERS, 

DECEASED, Appellant

No. 05-20-00054-CV V.

EPIC HEALTH SERVICES, INC., 

AOC SENIOR HOME HEALTH 

CORP., D/B/A ANGELS OF CARE 

AND/OR ANGELS OF CARE 

PEDIATRIC HOME HEALTH AND 

AMERIGROUP CORPORATION, 

Appellees

On Appeal from the 298th Judicial 

District Court, Dallas County, Texas

Trial Court Cause No. DC-15-14547.

Opinion delivered by Justice Nowell. 

Justices Reichek and Carlyle 

participating.

In accordance with this Court’s opinion of this date, the judgment of the trial 

court is AFFIRMED in part and REVERSED in part. The trial court’s October 26, 

2018 order sustaining defendant Epic Health Services, Inc.’s objections to plaintiff’s 

supplemental chapter 74 expert report and granting defendant’s motion to dismiss 

and the December 10, 2019 order granting defendant Angels of Care/Angels of Care 

Pediatric Home Health’s objections to Robert E. Todd’s Chapter 74 Report and 

motion to dismiss are REVERSED. The August 24, 2018 and November 16, 2018 

orders dismissing appellant’s claims against Amerigroup Texas, Inc. are 

AFFIRMED. We REMAND this cause to the trial court for further proceedings 

consistent with this opinion.
–29–

It is ORDERED that appellant Donna Vickers, individually, as the 

representative for all wrongful death beneficiaries, and as an heir at law and 

representative of the estate of Jerry Vickers, deceased, recover her costs of this 

appeal from appellees Epic Health Services, Inc. and AOC Senior Home Health 

Corp., d/b/a Angels of Care and/or Angels of Care Pediatric Home Health. It is 

further ORDERED that appellee Amerigroup Texas, Inc. recover its costs of this 

appeal from appellant Donna Vickers individually, as the representative for all 

wrongful death beneficiaries, and as an heir at law and representative of the estate 

of Jerry Vickers, deceased.

Judgment entered this 29th day of April, 2022.