Opinion issued March 28, 2019

In The

Court of Appeals 

For The 

First District of Texas 

————————————

NO. 01-17-00827-CV

———————————

NEW MEDICAL HORIZONS, II, LTD. D/B/A CYPRESS FAIRBANKS 

MEDICAL CENTER, ANAND BALASUBRAMANIAN, M.D., AND DOAN 

K. NGUYEN, M.D., Appellants

V.

VICKIE MILNER, Appellee

On Appeal from the 61st District Court

Harris County, Texas

Trial Court Case No. 2016-79980

O P I N I O N

Appellee Vickie Milner, a diabetic, was admitted to Cypress Fairbanks 

Medical Center for a left-foot infection. She alleges that the negligence of appellants 

Anand Balasubramanian, M.D., Doan K. Nguyen, M.D., and the nursing staff of 
2

New Medical Horizons, II, LTD D/B/A Cypress Fairbanks Medical Center led to a 

gangrenous condition, resulting in amputation of her great toe followed by a 

protracted recovery.

The appellants moved to dismiss Milner’s healthcare liability claims, claiming 

that her expert’s report was inadequate. In this interlocutory appeal, Dr. 

Balasubramanian, Dr. Nguyen, and the Medical Center contend that the trial court 

abused its discretion in denying their motions to dismiss. In his three issues, Dr. 

Balasubramanian argues that the trial court abused its discretion by denying his 

motion to dismiss because: (1) the report of Milner’s expert, Marc E. Mitchell, M.D., 

failed to establish his qualifications to provide an expert report as to Dr. 

Balasubramanian; (2) Dr. Mitchell’s report failed to provide a sufficient opinion on 

the applicable standard of care and breach as to Dr. Balasubramanian; and (3) Dr. 

Mitchell’s report failed to link Milner’s damages to any specific breach by Dr. 

Balasubramanian.

In his sole issue, Dr. Nguyen argues that the trial court abused its discretion 

by denying his motion to dismiss because Dr. Mitchell’s causation opinions are 

conclusory. In its sole issue, the Medical Center argues that the trial court abused its 

discretion by finding Dr. Mitchell’s expert report sufficient and denying its motion 

to dismiss because Dr. Mitchell’s report failed to provide the necessary fair summary 
3

of the standard of care applicable to the Medical Center’s nursing staff, a breach of 

any applicable standard of care, and causation of any injuries by such a breach.

We affirm the trial court’s orders. 

Background

The medical records are not before us, and we accept the factual statements in 

Dr. Mitchell’s expert report for the limited purpose of this appeal. See Marino v. 

Wilkins, 393 S.W.3d 318, 320 n.1 (Tex. App.—Houston [1st Dist.] 2012, pet. 

denied).

On March 22, 2015, Milner presented to the Medical Center’s Emergency 

Department with an infected left foot. Her diabetic status was known by the 

healthcare providers. Her foot was noted to be swollen and “blood red with some 

black.” She was admitted to the Medical Center that same day under the care of Dr. 

Balasubramanian, an internal medicine physician who was Milner’s attending 

physician during her hospitalization. Significant findings included hyperglycemia, 

an elevated white blood count, and x-ray evidence of a metallic foreign body in her

left foot. Milner was treated with intravenous antibiotics. Dr. Balasubramanian 

ordered an infectious disease consultation (which was performed on March 23, 

2015), and he also noted that the pulse in Milner’s left foot was difficult to palpate. 

On March 24, 2015, Dr. Balasubramanian ordered a surgical consultation with Dr. 
4

Nguyen, who recommended removal of the foreign body and incision and 

debridement of the left distal foot.

On March 25, 2015, Milner underwent incision and drainage of the foot by 

Dr. Nguyen. Noted findings by Dr. Nguyen included that Milner was at high risk for 

the possibility of eventually losing her toes because of her diabetes and poor 

circulation. The dorsal tissue on the plantar aspect of the great toe was found to be 

blackish. After the surgery, Dr. Nguyen noted that Milner tolerated the procedure 

well and that his plan was for her to undergo wound care and observation.

In the days following the March 25 surgery, there appears to have been little 

or no physician follow-up or observation of the condition of Milner’s foot wound. 

Dr. Mitchell stated that he saw no evidence in the medical record that Dr. 

Balasubramanian ever examined the wound until March 30, after Milner was 

scheduled to be discharged home. There was also little or no documented wound 

care to indicate whether the wound treatment plan was working. Milner was 

scheduled to be discharged home on March 30, but when her daughter arrived to 

pick her up from the Medical Center, it was discovered that Milner had a gangrenous 

diabetic left-foot infection. Dr. Balasubramanian requested a vascular consult that 

day.

A March 31, 2015 CT scan showed occlusion of the distal superficial femoral 

artery, and Milner was moved to the ICU. On April 10, 2015, she underwent 
5

amputation of her great toe. On April 5, 2016, Milner had “left above-the-knee 

femoral popliteal bypass surgery.” Her preoperative diagnosis was critical limb 

ischemia and prior amputation of her great toe. She has continued to require 

debridement procedures on her left foot.

Milner filed suit, and within the 120-day deadline of section 74.351(a) of the 

Civil Practice and Remedies Code, she provided the defendants with Dr. Mitchell’s

original expert report and then an amended report. The defendants objected that 

these reports failed to satisfy section 74.351(r)(6); the trial court agreed but granted

Milner a thirty-day extension to serve a sufficient report under section 74.351(c).

Milner then provided Dr. Mitchell’s second amended report, which supersedes his 

initial and first amended reports. See Cornejo v. Hilgers, 446 S.W.3d 113, 124 n.11 

(Tex. App.—Houston [1st Dist.] 2014, pet. denied). The defendants objected to Dr. 

Mitchell’s second supplemental report (referred to in this opinion as Dr. Mitchell’s 

report) and moved to dismiss Milner’s claims for her alleged failure to serve a 

sufficient expert report under section 74.351. The trial court overruled the objections 

and denied the motions to dismiss, and this interlocutory appeal followed.

Chapter 74 Expert Reports

Section 74.351 of the Texas Medical Liability Act (TMLA) provides that no 

medical negligence cause of action may proceed until the plaintiff has made a goodfaith effort to demonstrate that a qualified medical expert believes that a defendant’s
6

conduct breached the applicable standard of care and caused the claimed injury. See

TEX.CIV. PRAC.&REM.CODE § 74.351(l), (r)(6). “[T]he purpose of the expert report 

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

litigation, not to dispose of potentially meritorious claims.” Abshire v. Christus 

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

To constitute a good-faith effort, the report must provide enough information 

to fulfill two purposes: (1) inform the defendant of the specific conduct that the 

plaintiff has called into question; and (2) provide a basis for the trial court to 

conclude that the claim has merit. Baty v. Futrell, 543 S.W.3d 689, 693–94 (Tex. 

2018); Am. Transitional Care Ctrs. of Tex., Inc. v. Palacios, 46 S.W.3d 873, 878–

79 (Tex. 2001). A report that merely states the expert’s conclusions about standard 

of care, breach, and causation does not fulfill these two purposes. Palacios, 46 

S.W.3d at 879. The expert must explain the basis for his statements and link his 

conclusions to the facts. Bowie Mem’l Hosp. v. Wright, 79 S.W.3d 48, 52 (Tex. 

2002). It has been recognized that the supreme court “has construed the TMLA as 

setting a relatively low bar as to what comprises an adequate expert report.” Baty,

543 S.W.3d at 698 (Johnson, J., dissenting).

In determining whether the report meets these requirements, the court should 

look no further than the report itself because all of the information relevant to the 

inquiry must be contained within the report’s four corners. Bowie Mem’l Hosp., 79 
7

S.W.3d at 52. The expert report is not required to marshal all of the plaintiff’s proof 

necessary to establish causation at trial. Id. An expert report does not have to meet 

the same requirements as the evidence offered in a summary-judgment proceeding 

or at trial. Miller v. JSC Lake Highlands Operations, LP, 536 S.W.3d 510, 517 (Tex. 

2017) (per curiam). The “only question” is whether the report provides “enough 

information” for the trial court to conclude that it constitutes a good-faith effort. Id.; 

see also Baty, 543 S.W.3d at 696–97. We are also mindful that expert-report 

challenges are made at an early, pre-discovery stage in the litigation. See Baty, 543 

S.W.3d at 697 & n.10 (rejecting argument that expert report was inadequate,

concluding that expert report sufficed “particularly in light of the purposes the report 

is intended to serve” at an early stage in litigation, and stating “additional detail is 

simply not required at this stage of the proceeding”).

Standard of Review

We review a trial court’s ruling on a motion to dismiss for an abuse of 

discretion. Abshire, 563 S.W.3d at 223; Palacios, 46 S.W.3d at 875. “A trial court 

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

reference to any guiding rules or principles.” Bowie Mem’l Hosp., 79 S.W.3d at 52.

As a court reviewing matters committed to the trial court’s discretion, we may not 

substitute our own judgment for that of the trial court merely because we would have 

ruled differently. See id. When reviewing decisions that fall within the trial court’s 
8

discretion, “[c]lose calls must go to the trial court.” Larson v. Downing, 197 S.W.3d 

303, 304 (Tex. 2006) (per curiam).

Analysis

Qualifications

In his first issue, Dr. Balasubramanian, an internal medicine physician, 

contends that the expert report of Dr. Mitchell, a vascular surgeon, failed to establish 

Dr. Mitchell’s qualifications to provide an expert report as to Dr. Balasubramanian. 

Dr. Mitchell, a medical doctor who obtained his medical degree from 

Georgetown University School of Medicine, is a fellowship-trained and boardcertified vascular surgeon and general surgeon. He has over twenty years of 

experience in an academic medical center, where he is actively involved in the 

training of medical students, has a busy clinical practice, and routinely cares for 

patients with conditions similar to Milner’s. His report states:

Specifically, I have treated, performed surgery, and managed the care 

of many patients with diabetic foot wounds. I am very familiar with the

accepted standards of medical care for the treatment of a foreign body

in the foot of a diabetic patient. Caring forsuch wounds involves a team

approach. I work closely with wound care nursing staff and rely on 

wound care nursing staff to document the condition of a wound and

advise me when a wound is deteriorating. In light of my training,

knowledge, experience and qualifications as set forth above, I am

familiar with the standard of care for an admitting hospital, wound care 

nurse, attending physician and surgeon with respect to the care and 

treatment of Vickie Milner in March, 2015. I am familiar with the 

responsibilities and duties these parties provide to a patient with the

signs, symptoms and history Vickie Milner presented with in March,

2015.
9

Regarding the standards of care applicable to Dr. Balasubramanian and to Dr. 

Nguyen, an orthopedic surgeon, Dr. Mitchell’s report states:

These standards of care apply to any physician treating an infected foot 

in the presence of a foreign body in a diabetic patient, regardless of the 

physician’s specialty. Any attempt to create a superficial difference in 

the standards of care between what would have been expected of an 

internist and what would have been expected of an orthopedic surgeon, 

when faced with the facts and circumstances of this case, is a red 

herring. The standards of care and failures to meet the appropriate 

standards of care set out in my report, are standards basic to the general 

practice of medicine that any general practitioner or resident treating 

diabetic patients with foot infections should know. There is nothing 

novel about the applicable standards of care for treating a patient with 

conditions similar to those of Vickie Milner in March, 2015.

Dr. Balasubramanian specifically argues that Dr. Mitchell provides no 

explanation for how he is qualified to render an opinion on the standard of care for 

an attending physician who is board certified in internal medicine. Regarding Dr. 

Mitchell’s assertions that he is familiar with treating treating injuries like Milner’s 

and that he is familiar with the standard of care applicable to all healthcare providers 

who would treat those injuries, Dr. Balasubramanian argues that Dr. Mitchell’s 

assertions are not supported and are conclusory.

In a healthcare liability suit, whether an expert witness is qualified to offer an 

expert opinion under the relevant statutes and rules lies within the sound discretion 

of the trial court. Puppala v. Perry, 564 S.W.3d 190, 202 (Tex. App.—Houston [1st 

Dist.] 2018, no pet.). The expert’s qualifications must appear in the four corners of 
10

the expert report or in the expert’s accompanying curriculum vitae. Id. “An expert 

report by a person not qualified to testify does not represent a good-faith effort to 

comply with the definition of an expert report.” Mettauer v. Noble, 326 S.W.3d 685, 

693 (Tex. App.—Houston [1st Dist.] 2010, no pet.).

To qualify as an expert for the purpose of an expert report against a physician, 

a person must be a physician who:

(1) is practicing medicine at the time such testimony is given or was 

practicing medicine at the time the claim arose;

(2) has knowledge of accepted standards of medical care for the 

diagnosis, care, or treatment of the illness, injury, or condition 

involved in the claim; and

(3) is qualified on the basis of training or experience to offer an 

expert opinion regarding those accepted standards of medical 

care.

TEX. CIV. PRAC. & REM. CODE § 74.401(a); see id. § 74.351(r)(5)(A) (defining 

“expert” qualified to give opinion on “whether a physician departed from accepted 

standards of medical care” as “an expert qualified to testify under the requirements 

of Section 74.401”). Section 74.401(c) further provides that in determining whether 

an expert witness is qualified based on his training and experience, a trial court shall 

consider whether the witness is “board certified or has other substantial training or 

experience in an area of medical practice relevant to the claim,” and whether he “is 

actively practicing medicine in rendering medical care services relevant to the 

claim.” Id. § 74.401(c).
11

The expert must do more than show that he is a physician, but he “need not 

be a specialist in the particular area of the profession for which testimony is offered.” 

Owens v. Handyside, 478 S.W.3d 172, 185 (Tex. App.—Houston [1st Dist.] 2015, 

pet. denied). The critical inquiry is “whether the expert’s expertise goes to the very 

matter on which he or she is to give an opinion.” Broders v. Heise, 924 S.W.2d 148, 

153 (Tex. 1996); see Mangin v. Wendt, 480 S.W.3d 701, 707 (Tex. App.—Houston 

[1st Dist.] 2015, no pet.).

Also, a physician may be qualified to provide an expert report even if his 

specialty differs from that of the defendant if he “has practical knowledge of what is 

usually and customarily done by other practitioners under circumstances similar to 

those confronting the malpractice defendant,” or “if the subject matter is common to 

and equally recognized and developed in all fields of practice.” Keo v. Vu, 76 S.W.3d 

725, 732 (Tex. App.—Houston [1st Dist.] 2002, pet. denied). “‘[T]he applicable 

‘standard of care’ and an expert’s ability to opine on it are dictated by the medical 

condition involved in the claim and by the expert’s familiarity and experience with 

that condition.’” Lee v. Le, No. 01-18-00309-CV, 2018 WL 4923938, at *4 (Tex. 

App.—Houston [1st Dist.] Oct. 11, 2018, no pet.) (mem. op.) (quoting Barber v. 

Dean, 303 S.W.3d 819, 826 (Tex. App.—Fort Worth 2009, no pet.)).

As stated in Dr. Mitchell’s report, he has treated, performed surgery on, and 

managed the care of many patients with diabetic foot wounds, and he therefore is 
12

familiar with the accepted standards of medical care for the treatment of patients like 

Milner. He further explains that the applicable standards of care “are standards basic

to the general practice of medicine that any general practitioner or resident treating 

diabetic patients with foot infections should know.” Based on these statements alone, 

the trial court could have reasonably concluded that Dr. Mitchell was qualified to 

provide standard-of-care opinions under the explicit provisions of section 74.401. 

See Lee, 2018 WL 4923938, at *4; Armenta v. Jones, No. 01-17-00439-CV, 2018 

WL 1095388, at *4–5 (Tex. App.—Houston [1st Dist.] Mar. 1, 2018, no pet.) (mem. 

op.).

Additionally, this court recently reiterated that the care and treatment of an 

open wound and infection are common to and equal in all fields of medicine,1 which 

comports with Dr. Mitchell’s opinion:

Here, the subject matter of the claim against Dr. Clavijo involves 

the standards of care in the treatment of an open wound and the 

prevention of infection. “[T]he care and treatment of open wounds and 

the prevention of infection are subjects common to and equally 

recognized and developed in all fields of practice, thus any physician 

familiar with and experienced in the subject may testify as to the 

standard of care.”; . . .

Clavijo v. Fomby, No. 01-17-00120-CV, 2018 WL 2976116, at *7 (Tex. App.—

Houston [1st Dist.] June 14, 2018, pet. denied) (mem. op.) (quoting Legend Oaks—

 

1 Dr. Balasubramanian’s reply brief concedes that “the medical issue being 

discussed is one of wound management. . . .”
13

S. San Antonio, L.L.C. v. Molina, No. 04-14-00289-CV, 2015 WL 693225, at *4 

(Tex. App.—San Antonio Feb. 18, 2015, no pet.) (mem. op.).

2

The trial court did not abuse its discretion in finding that Dr. Mitchell’s report 

established his qualifications to opine on the standard of care applicable to Dr. 

Balasubramanian. See id. at *6–9 (holding that trial court did not abuse its discretion 

in concluding cardiologist was qualified to testify on standard of care applicable to 

internist for treatment of open wound and infection prevention). We overrule Dr. 

Balasubramanian’s first issue.

Standard of Care and Breach

An expert report must provide a “fair summary” of the expert’s opinions 

regarding the (1) applicable standards of care, (2) manner in which the care rendered 

by the physician or health care provider failed to meet the standards, and (3) causal 

 

2 Clavijo also cited as support Khan v. Ramsey, No. 01-12-00169-CV, 2013 WL 

1183276, at *6 (Tex. App.—Houston [1st Dist.] Mar. 21, 2013, no pet.) (mem. 

op.) (holding that expert with over eighteen years of medical experience, 

including ambulatory, urgent, and emergent care, possessed specialized 

knowledge on subject matter common to and equally recognized and 

developed in all fields of practice, i.e., recognizing importance of patient 

history and infection process); Garza v. Keillor, 623 S.W.2d 669, 671 (Tex. 

Civ. App.—Houston [1st Dist.] 1981, writ ref’d n.r.e.) (“[T]he standard of 

care in the infection process . . . is common to and equal in all fields of 

medical practice.”); and Gonzalez v. Padilla, 485 S.W.3d 236, 243–44 (Tex. 

App.—El Paso 2016, no pet.) (care and treatment of open wounds and 

prevention of infection are common to and equal in all fields of medical 

practice). Clavijo, 2018 WL 2976116, at *7.
14

relationship between that failure and the injury, harm, or damages claimed. TEX.

CIV. PRAC. & REM. CODE § 74.351(r)(6); Miller, 536 S.W.3d at 513.

“In a medical malpractice negligence case, the standard of care is what a 

doctor of ordinary prudence in that particular field would or would not have done 

under the circumstances.” Windrum v. Kareh, No. 17-0328, — S.W.3d —, —, 2019 

WL 321925, at *3 (Tex. Jan. 25, 2019); see Palacios, 46 S.W.3d at 880. “To 

adequately identify the standard of care, an expert report must set forth ‘specific 

information about what the defendant should have done differently.’” Abshire, 563

S.W.3d at 226 (quoting Palacios, 46 S.W.3d at 880).

Dr. Balasubramanian. Dr. Balasubramanian’s second issue asserts that Dr. 

Mitchell’s report failed to provide a sufficient opinion on the applicable standard of 

care and breach. 

Regarding the standard of care applicable to Dr. Balasubramanian (and to Dr. 

Nguyen, who does not contest the standard of care and breach in this appeal) and its 

breach by Dr. Balasubramanian, Dr. Mitchell’s report states:

An infected foot in the presence of a foreign body in a diabetic patient 

is a surgical emergency. Surgical exploration with removal of the 

foreign body and surgical debridement should be done as soon as 

possible after the diagnosis is made, and within 24 hours at the latest. 

This is because the development and progression of the infected wound 

is often complicated by diabetic changes, such as neuropathy and 

vascular disease. Without early intervention, the wound can rapidly 

deteriorate, leading to amputation of the affected limb. Therefore, it is 

at this crucial early stage that physicians have the potential to curb what 

is often progression from mild infection to a more severe problem, with 
15

necrosis, gangrene and often amputation. If there is any doubt regarding 

diagnosis of peripheral vascular disease, the patient should be referred 

to a specialist for a full vascular assessment.

After surgical debridement, frequent wound assessment and bacterial 

control and moisture balance is required to prevent maceration and 

infection. Additionally, infection control and restoring pulsatile blood 

flow is critical for healing of the wound. This requires a team approach. 

Documentation of the size of the wound is important to determine if the 

wound is healing and the treatment plan is working. Debridement may 

be a one-off procedure or it may need to be ongoing for maintenance of 

the wound bed. The requirement for further debridement should be

determined each day following changing of dressings. [Emphases 

added.].

In stating his opinion on the applicable standard of care, Dr. Mitchell’s report 

states with sufficient detail what a physician should have done and explains why it 

was the standard of care; it provides “enough information” for the trial court to have 

concluded that the report constitutes a good-faith effort to set forth the applicable

standard of care as to Dr. Balasubramanian. See Miller, 536 S.W.3d at 517; see also

Baty, 543 S.W.3d at 696–97.

Dr. Balasubramanian’s actual complaint about Dr. Mitchell’s standard-of-care 

opinion is that Dr. Mitchell insufficiently explains why his articulated standard of 

care applies to Dr. Balasubramanian, an internist. This is a reiteration of Dr. 

Balasubramanian’s argument on Dr. Mitchell’s qualifications to provide a standardof-care opinion as to Dr. Balasubramanian. We rejected that argument above and 

reject this reiteration for the same reason.
16

Next, we address Dr. Balasubramanian’s assertion that Dr. Mitchell’s report 

insufficiently addresses Dr. Balasubramanian’s breach of the standard of care. The 

section of Dr. Mitchell’s report concerning Dr. Balasubramanian’s breach of the 

standard of care states:

An attending physician, and certainly an internist must be aware that an 

infected foot in the presence of a foreign body in a diabetic patient is a 

surgical emergency. Ms. Milner should have undergone surgical 

exploration with removal of the foreign body and wide surgical 

debridement as soon as possible after her March 22nd admission to the 

hospital, and within 24 hours at the latest. Dr. Balasubramanian 

breached the standard of care by waiting until March 24, 2015 to 

request a consult with a surgeon. The delay in getting Ms. Milner to 

surgery put her entire leg at risk for amputation and was a proximate 

cause of the great toe amputation, as well as, her long and protracted 

recovery and hospitalization. This is because diabetic foot wounds are 

known to rapidly deteriorate. By the time Dr. Balasubramanian referred 

Ms. Milner to surgery, her wound had become more necrotic and 

difficult to manage.

After the March 25, 2015 surgery, it does not appear from the medical 

records that Dr. Balasubramanian examined the wound until March 30, 

2015 when Ms. Milner was scheduled to be discharged. At that point, 

it was discovered that Ms. Milner had a gangrenous diabetic left foot 

infection. Dr. Balasubramanian breached the standard of care by failing 

to follow-up and assess the condition of the wound. The lack of 

physician follow-up following surgery put Ms. Milner’s entire leg at 

risk for amputation and was a proximate cause of the great toe 

amputation, as well as, her long and protracted recovery and 

hospitalization. As stated above, diabetic foot wounds can, and do, 

rapidly deteriorate and must be managed in a timely and effective way 

with tissue debridement, inflammation and infection control, and 

moisture balance. A physician cannot simply abandon the patient 

following surgery and hope for the best.

On March 23, 2015 it was noted that Ms. Milner’s pulse in the affected 

left foot was difficult to palpate. At this time, Dr. Balasubramanian 
17

should have called into question Ms. Milner’s vascular status given her 

history of diabetes and ordered a vascular consult. This was critical to 

prevent any complications associated with ischemia. Dr. 

Balasubramanian breached the standard of care by waiting until March 

30, 2015 to order a vascular consult. This too put Ms. Milner’s entire 

leg at risk for amputation and was a proximate cause of the great toe 

amputation, as well as, her long and protracted recovery and 

hospitalization. This is because treating any severe ischemia is critical 

to wound healing, regardless of other interventions. Early referral to a 

vascular specialist likely would have resulted in earlier arterial 

reconstruction to improve blood flow and improve healing of the 

wound, which would have substantially reduced the risk of amputation.

Timely and effective wound management in this case, as described 

above, likely would have prevented the need for amputation of Vickie 

Milner’s great toe.

In summary, Dr. Mitchell opined that Dr. Balasubramanian: (1) failed to 

timely consult with a surgeon so that Milner could have undergone surgical 

exploration, with removal of the foreign body and wide surgical debridement,

within 24 hours of admission; (2) failed to request a vascular consult when the pulse 

in Milner’s affected foot was difficult to palpate; and (3) failed to follow up and 

assess the condition of the wound in the five days between surgery and her 

scheduled discharge.

Regarding Dr. Mitchell’s opinion that Dr. Balasubramanian breached the 

standard of care by failing to obtain a surgical consultation until two days after 

Milner’s admission, Dr. Balasubramanian asserts that the medical records reflect that 

he ordered the surgical consultation “within the relevant timeframe.” As stated

above, our review of the adequacy of Dr. Mitchell’s report is limited to the four 
18

corners of his report. Bowie Mem’l Hosp., 79 S.W.3d at 52; Palacios, 46 S.W.3d at 

878. The court’s role is not to determine the truth or falsity of the expert’s opinion, 

or the facts upon which the expert bases such opinions, but to act as a gatekeeper in 

evaluating the sufficiency of the report itself. Mettauer, 326 S.W.3d at 691. Further, 

a “court may not consider an expert’s credibility, the data relied upon by the expert, 

or the documents that the expert failed to consider at this pre-discovery stage of the 

litigation.” Curnel v. Houston Methodist Hosp.-Willowbrook, 562 S.W.3d 553, 562 

(Tex. App.—Houston [1st Dist.] 2018, no pet.). Thus, at this preliminary stage, a 

court does not determine an alleged factual dispute about the underlying medical 

records or the health care at issue. See id.; Holt v. Holt, No. 01-17-00008-CV, 2017 

WL 3483211, at *3 (Tex. App.—Houston [1st Dist.] Aug. 15, 2017, pet. denied)

(mem. op.); Mettauer, 326 S.W.3d at 690–92; see also Hood v. Kutcher, No. 01-12-

00363-CV, 2012 WL 4465357, at *4 (Tex. App.—Houston [1st Dist.] Sept. 27, 

2012, no pet.) (mem. op.) (“Whether an expert’s factual inferences made in the 

expert report are accurate is a question for the fact finder and should not be 

considered when ruling on a section 74.351 motion to dismiss.”); Gannon v. Wyche, 

321 S.W.3d 881, 885–93 (Tex. App.—Houston [14th Dist.] 2010, pet. denied) 

(rejecting argument that expert should not be allowed to rely on plaintiff’s statement 

that allegedly was “contrary to actual facts in the medical records”); id. at 892 

(“Accepting the premise that an expert’s report may not contradict the medical 
19

records in such a case would preclude a plaintiff from ever being able to satisfy the 

expert-report requirement.”).

Dr. Mitchell’s opinion is that Milner’s infected foot was a surgical emergency, 

that she needed surgery within 24 hours at the latest, and that Dr. Balasubramanian

breached the standard of care by failing to obtain a surgical consultation until two 

days after Milner’s admission. Dr. Mitchell concluded or inferred from the medical 

records that Dr. Balasubramanian ordered a surgical consultation with Dr. Nguyen 

on March 24, 2015, two days after Milner was admitted to the Medical Center. 

Dr. Balasubramanian next contends that Dr. Mitchell does not describe how 

Dr. Balasubramanian failed to follow up and assess the condition of Milner’s wound 

after the March 25 surgery. We disagree; according to Dr. Mitchell’s report, after 

the March 25 surgery, “it does not appear from the medical records that Dr. 

Balasubramanian examined the wound until March 30, 2015 when Ms. Milner was 

scheduled to be discharged. At that point, it was discovered that Ms. Milner had a 

gangrenous diabetic left foot infection.” 

Lastly, Dr. Balasubramanian asserts that Dr. Mitchell’s opinion that Dr. 

Balasubramanian failed to request a vascular consult is too vague because of Dr. 

Mitchell’s statement that if “there is any doubt regarding diagnosis of peripheral 

vascular disease, the patient should be referred to a specialist for a full vascular 
20

assessment.” But a court reviews the report “in its entirety,” Baty, 543 S.W.3d at 

695, and Dr. Mitchell clarifies later in his report:

On March 23, 2015 it was noted that Ms. Milner’s pulse in the affected 

left foot was difficult to palpate. At this time, Dr. Balasubramanian 

should have called into question Ms. Milner’s vascular status given her 

history of diabetes and ordered a vascular consult. This was critical to 

prevent any complications associated with ischemia. Dr. 

Balasubramanian breached the standard of care by waiting until March 

30, 2015 to order a vascular consult.

“More detail” is not required at this stage. See id. at 696; Lee, 2018 WL 

4923938, at *5. Dr. Mitchell’s report sufficiently identifies the “conduct being called 

into question.” Baty, 543 S.W.3d at 697; see Palacios, 46 S.W.3d at 875. Dr. 

Mitchell’s report on the standard of care and its breaches informs Dr. 

Balasubramanian of the specific conduct being called into question and provided the 

trial court with a basis to conclude that Milner’s claim has merit; it therefore satisfies 

the good-faith effort required by the statute. See id. We overrule Dr. 

Balasubramanian’s second issue.

Cypress Fairbanks Medical Center. In its sole issue, the Medical Center 

contends in part that Dr. Mitchell’s report failed to provide the necessary fair 

summary of the standard of care applicable to its nursing staff and the breach of the 

standard of care. Regarding the standard of care applicable to the Medical Center’s 

nursing staff and its breach, Dr. Mitchell’s report states:

After surgical debridement frequent wound assessment and bacterial 

control and moisture balance is required to prevent maceration. 
21

Additionally, infection control and restoring pulsatile blood flow is 

critical for healing of the wound. This requires a team approach. A 

physician may only see the patient once or twice per day and relies on 

the wound care nursing staff to document the condition of the wound. 

Documentation of the size of the wound is important to determine if the 

wound is healing and the treatment plan is working. Recording the size, 

depth, appearance and location of the wound establishes a baseline for 

treatment, and monitoring any response to interventions. The wound 

care nursing staff must notify physicians if the wound is deteriorating. 

Debridement may be a one-off procedure or it may need to be ongoing 

for maintenance of the wound bed. The requirement for further 

debridement should be determined after each dressing change. This can 

only occur with prompt communication between the wound care 

nursing team and the treating physicians. Once the wound progresses 

to the state of gangrene, it is often too late to curb life threatening 

infection without amputation of the affected limb.

. . . .

In the days following the March 25th surgery there appears to have been 

little or no documented wound care or follow-up of the condition of the 

wound. The nurses and wound technicians at Cypress Fairbanks 

Medical Center breached the standard of care by failing to timely

provide wound care and assessment following the March 25, 2015 

surgery, and by failing to timely report the declining condition of Ms.

Milner’s wound to physicians allowing same to become gangrenous by 

March 30, 2015. The failure to timely provide wound care and alert 

physicians of the declining condition of the wound following the March 

25, 2016 surgery put Ms. Milner’s entire leg at risk for amputation and

was a proximate cause of the great toe amputation, as well as, her long 

and protracted recovery and hospitalization. This is because diabetic

foot wounds can, and do, rapidly deteriorate in light of diabetic 

changes, such as neuropathy and vascular disease. Once the wound 

progresses to the state of gangrene, it is often too late to curb life

threatening infection without amputation of the affected limb. 

Therefore, the wound must be managed in a timely and effective way 

with tissue debridement, inflammation and infection control, and 

moisture balance. This requires a team approach, including prompt 

communication with the treating physicians when the wound is not 

healing as desired. Timely and effective wound management, including 
22

communication with physicians when the wound was declining, likely 

would have prevented the need for amputation of Ms. Milner’s great

toe. [Emphases added.].

“The standard of care is defined by what an ordinarily prudent healthcare 

provider would have done under the same or similar circumstances.” Clavijo, 2018 

WL 2976116, at *13 (citing Palacios, 46 S.W.3d at 880); see Peabody v. Manchac, 

No. 14-17-00646-CV, — S.W.3d —, —, 2018 WL 6836864, at *3 (Tex. App.—

Houston [14th Dist.] Dec. 27, 2018, no pet. h.).

The Medical Center argues that Dr. Mitchell’s opinion on the applicable 

standard of care and its breach lacks the specificity and detail required to satisfy the 

fair-summary standard. We disagree. Dr. Mitchell opined that the Medical Center’s 

nursing staff should have: (1) performed frequent wound assessment; 

(2) documented the condition of the wound; and (3) promptly notified physicians if 

the wound was deteriorating. Dr. Mitchell then opined that the Medical Center

nurses and wound technicians breached the standard of care by (1) failing to timely 

provide wound care and assessment; (2) failing to document the condition of the 

wound; and (3) failing to timely report the declining condition of the wound to 

physicians. Dr. Mitchell’s opinions are supported by his statement that, from the 

medical records, “there appears to have been little or no documented wound care or 

follow-up of the condition of the wound” in the days following the March 25 surgery 
23

and by the fact that Milner’s wound had become gangrenous by March 30, which 

was discovered only as she was being discharged and picked up by her daughter.

Dr. Mitchell could infer the standard-of-care breaches from the lack of 

documentation in the medical records and the gangrenous condition on March 30. 

See Hood, 2012 WL 4465357, at *5–6 (holding expert could infer from lack of 

documentation in medical records that thorough wound cleaning did not occur and 

breached standard of care); Azle Manor, Inc. v. Vaden, No. 02-08-00115-CV, 2008 

WL 4831408, at *6 (Tex. App.—Fort Worth Nov. 6, 2008, no pet.) (mem. op.) 

(holding expert could draw inferences from what was not in patient’s medical 

records), overruled in part on other grounds by Certified EMS, Inc. v. Potts, 392 

S.W.3d 625 (Tex. 2013); see also Bay Oaks SNF, LLC v. Lancaster, 555 S.W.3d 

268, 273–74, 280–84 (Tex. App.—Houston [1st Dist.] 2018, pet. filed) (affirming 

trial court’s approval of expert report that relied in part on lack of documentation of 

required care to prevent pressure ulcers).

The Medical Center further argues that Dr. Mitchell’s report could have 

provided more detail: 

What is ‘timely’ under the circumstances? What sort of ‘wound’ care 

should the nurses have provided? How often should Cypress Fairbank’s 

staff have been assessing the wound? Who should have reported the 

wound’s condition to the physicians, and when should they have 

reported it?
24

But as Milner also correctly points out, in Hood, a similar wound-care case, this 

court rejected similar complaints. See Hood, 2012 WL 4465357, at *3–7. And as the 

supreme court stated in Baty, while an expert report can arguably provide “an 

additional degree of specificity,” “[a]dditional detail is simply not required at this 

stage of the proceedings.” Baty, 543 S.W.3d at 697 & n.10; see Lee, 2018 WL 

4923938, at *5. 

Dr. Mitchell’s report on the standard of care and its breach gave the trial court

a sufficient basis to reasonably conclude that Milner’s claims against the Medical

Center have merit and advised the Medical Center of the conduct that Milner,

through her expert, has called into question. Baty, 543 S.W.3d at 697; Palacios, 46

S.W.3d at 875. We overrule those portions of the Medical Center’s sole issue.

Causation

Dr. Balasubramanian, Dr. Nguyen, and the Medical Center each contend that 

Dr. Mitchell’s report on causation is inadequate.

For causation, the expert report must explain “how and why” the physician’s 

or healthcare provider’s breach proximately caused the plaintiff’s injury. Columbia 

Valley Healthcare Sys., L.P. v. Zamarripa, 526 S.W.3d 453, 459–60 (Tex. 2017).

“In satisfying this ‘how and why’ requirement, the expert need not prove the entire 

case or account for every known fact; the report is sufficient if it makes ‘a good-faith 
25

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).

The report need not use the words “proximate cause,” “foreseeability,” 

or “cause in fact.” “[A] report’s adequacy does not depend on whether 

the expert uses any particular ‘magical words.’”

. . . .

Proximate cause has two components: (1) foreseeability and (2) causein-fact. For a negligent act or omission to have been a cause-in-fact of 

the harm, the act or omission must have been a substantial factor in 

bringing about the harm, and absent the act or omission—i.e., but for 

the act or omission—the harm would not have occurred.

This is the causal relationship between breach and injury that an expert 

report must explain to satisfy the Act.

Zamarripa, 526 S.W.3d at 460 (footnoted citations omitted).

A causation opinion must provide a “straightforward link” between the 

alleged breach of the standard of care and the claimed injury. See Abshire, 563

S.W.3d 225. The court’s role is to determine whether the expert has explained how 

the negligent conduct caused the injury. Id. at 226.

Dr. Balasubramanian. In his third issue, Dr. Balasubramanian contends that 

Dr. Mitchell’s report on causation is insufficient because it is “speculative, contains 

analytical gaps in its causal links, and relies on assumptions.” He also contends that 

Dr. Mitchell’s report only suggests that Milner’s amputation was preventable, that it 

impermissibly “works backward” from a bad outcome to establish causation, and 

that it fails to exclude other possible causes. In short, Dr. Balasubramanian argues 
26

that Dr. Mitchell does not tie Dr. Balasubramanian’s alleged breaches to the 

outcome, resulting in an “impermissible analytical gap” and lack of sufficient 

specificity to inform Dr. Balasubramanian of how his alleged breaches caused the 

outcome.

The supreme court does not use the term “analytical gap” in the context of 

section 74.351 expert reports, but it has noted that some courts of appeals do.3

Abshire, 563 S.W.3d at 225, n.10. 

It appears that the courts have generally used this term to mean a failure 

to link the breach of the standard of care to the injury, which comports 

with this Court’s discussion of chapter 74’s expert report requirements 

with respect to causation. See Zamarripa, 526 S.W.3d at 460 (holding 

that an expert report sufficiently addresses causation where it 

“explain[s] the basis of [the expert’s] statements to link [the] 

conclusions to the facts”).

Id. We will follow the supreme court and decline to analyze the causation issue with 

the term “analytical gap.” 

Dr. Balasubramanian’s assertion that Dr. Mitchell’s report has a fatal oneweek gap concerning Milner’s care between March 25 and March 30 is premature. 

Cf. Puppula, 564 S.W.3d at 201 (“But the absence of an opinion stating with 

specificity at what point in the continuum of disease progression an intervention 

 

3 The term arose from and is used in the area of expert-opinion reliability. See

Gammill v. Jack Williams Chevrolet, Inc., 972 S.W.2d 713, 726–27 (Tex. 

1998) (deeming expert testimony unreliable when “there is simply too great 

an analytical gap between the data and the opinion proffered”).
27

would have proven timely does not cause these experts’ causation opinion to be 

conclusory at this early stage of evaluation.”). Further, Dr. Mitchell was not required 

to exclude or rule out other possible causes of Milner’s injuries in his expert report. 

Curnel, 562 S.W.3d at 562 (quoting Baylor Med. Ctr v. Wallace, 278 S.W.3d 552, 

562 (Tex. App.—Dallas 2009, no pet.) (“Nothing in section 74.351 suggests the 

preliminary report is required to rule out every possible cause of the injury, harm, or 

damages claimed.”)).

Regarding Dr. Balasubramanian’s alleged failure to timely consult with a 

surgeon so that Milner could have undergone surgery within 24 hours of admission, 

Dr. Mitchell’s report explains “how and why” this failure caused the amputation of 

her great toe. It first states that a diabetic patient’s foot infection is a “surgical 

emergency” that requires surgical treatment within 24 hours because “diabetic foot 

wounds are known to rapidly deteriorate.” “Without early intervention, the wound 

can rapidly deteriorate, leading to amputation of the affected limb. Therefore, it is at 

this crucial early stage that physicians have the potential to curb what is often 

progression from mild infection to a more severe problem, with necrosis, gangrene 

and often amputation.”

As a result, Dr. Mitchell then opines, the “delay in getting Ms. Milner to 

surgery put her entire leg at risk for amputation and was a proximate cause of the 

great toe amputation, as well as, her long and protracted recovery and 
28

hospitalization.”

4 To further support his opinion that Dr. Balasubramanian’s delayed 

surgical consultation was a cause of the great-toe amputation, Dr. Mitchell notes that 

at the time of the allegedly delayed surgery, the “dorsal tissue on the plantar aspect 

of the great toe was found to be blackish” by the surgeon, Dr. Nguyen. Dr. Mitchell 

concludes that Dr. Balasubramanian’s breach “was a proximate cause of Ms. 

Milner’s amputation and long and protracted recovery and hospitalization. I am of 

the medical opinion that Ms. Milner more likely than not would not have required 

amputation and extended hospitalization with prompt and proper care and 

assessment of the wound as described above.”

Dr. Mitchell sufficiently addresses foreseeability. In explaining why a 

diabetic’s foot infection with a foreign body is a surgical emergency, he states that 

“diabetic foot wounds are known to rapidly deteriorate,” further explaining that this 

is “because the development and progression of the infected wound is often 

complicated by diabetic changes, such as neuropathy and vascular disease.”

Dr. Mitchell sufficiently describes the causal relationship because he explains 

the factual basis for his opinions and he links Dr. Balasubramanian’s alleged 

conduct—the delayed surgical consultation—with Milner’s subsequent 

development of gangrene and the amputation. See Peabody, — S.W.3d at —, 2018 

 

4 While not required, see Zamarripa, 526 S.W.3d at 460, Dr. Mitchell’s report 

contains and relies on an accurate definition of proximate cause.
29

WL 6836864, at *7, 14; Clavijo, 2018 WL 2976116, at *11; Holt, 2017 WL 

3483211, at *4; Hood, 2012 WL 4465357, at *6. This causation opinion provides 

the “how and why” and a “straightforward link” between the alleged breach of the 

standard of care and the claimed injury. See Abshire, 563 S.W.3d at 225; Peabody, 

— S.W.3d at —, 2018 WL 6836864, at *7, 14.

Regarding Dr. Balasubramanian’s alleged failure to request a vascular 

consultation when the pulse in Milner’s affected foot was difficult to palpate on 

March 23, Dr. Mitchell’s report explains that this “too put Ms. Milner’s entire leg at 

risk for amputation and was a proximate cause of the great toe amputation, as well 

as, her long and protracted recovery and hospitalization.” As part of foreseeability, 

he explains why: “[T]reating any severe ischemia is critical to wound healing, 

regardless of other interventions. Early referral to a vascular specialist likely would 

have resulted in earlier arterial reconstruction to improve blood flow and improve 

healing of the wound, which would have substantially reduced the risk of 

amputation.” And again, his report states elsewhere that “the development and 

progression of the infected wound is often complicated by diabetic changes, such as 

neuropathy and vascular disease.”

Dr. Mitchell sufficiently describes the causation element pertaining to Dr. 

Balasubramanian’s alleged failure to request a vascular consultation. Dr. Mitchell 

explains the factual basis for his opinions and links Dr. Balasubramanian’s failure
30

to request a vascular consultation with Milner’s subsequent development of 

gangrene and the amputation. See Peabody, — S.W.3d at —, 2018 WL 6836864, at 

*14 (concluding “it is reasonable to anticipate the consulting specialist doctor would 

comply with the standard of care”). This causation opinion likewise provides the 

“how and why” and a “straightforward link” between the alleged breach of the 

standard of care and the claimed injury.5

Because Dr. Mitchell’s expert report adequately links his conclusions with the 

underlying facts, the trial court could have reasonably concluded that it constitutes 

an objective, good-faith effort to provide a fair summary of his opinions with respect 

to the causal relationship between Dr. Balasubramanian’s alleged breaches and 

Milner’s injury. See Abshire, 563 S.W.3d at 225–26; Peabody, — S.W.3d at —, 

2018 WL 6836864, at *7, 14. We overrule Dr. Balasubramanian’s third issue.

Dr. Nguyen. In his sole issue, Dr. Nguyen asserts that Dr. Mitchell’s 

causation opinions are conclusory and contain an “analytical gap” or “missing link.”

Dr. Mitchell’s standard-of-care and causation opinions as to Dr. Nguyen are as 

follows:

 

5

If an expert report adequately addresses at least one liability theory, it satisfies 

the statutory requirements. See Certified EMS, Inc. v. Potts, 392 S.W.3d 625, 

630–32 (Tex. 2013). Because we have found two of Milner’s negligence 

theories in Dr. Mitchell’s expert report against Dr. Balasubramanian to be 

adequate, we need not further address the allegation that Dr. Balasubramanian

failed to follow up and assess the condition of the wound in the five days 

between surgery and Milner’s scheduled discharge.
31

Dr. Nguyen noted in his March 25, 2015 operative report that due to 

her diabetes, Ms. Milner was at high risk for possibly eventually losing 

her toes due to poor circulation. Nevertheless, he breached the standard

of care by failing to refer her to [a] vascular specialist to manage any 

ischemia. This put Ms. Milner’s entire leg at risk for amputation and

was a proximate cause of the great toe amputation, as well as, her long 

and protracted recovery and hospitalization. This is because treating 

any severe ischemia is critical to wound healing, regardless of other 

interventions. Early referral to a vascular specialist likely would have 

resulted in earlier arterial reconstruction to improve blood flow and

improve healing of the wound, which would have substantially reduced

the risk of amputation.

Between March 25th and March 30th (following the debridement

procedure) it does not appear from the medical records that Dr. Nguyen 

ever examined the wound. On March 30, 2015, it was discovered that 

Ms. Milner had a gangrenous diabetic left foot infection. Dr. Nguyen 

breached the standard of care by failing to follow-up and assess the 

condition of the wound. The lack of physician follow-up following 

surgery put Ms. Milner’s entire leg at risk for amputation and was a 

proximate cause of the great toe amputation, as well as, her long and 

protracted recovery and hospitalization. This is because diabetic foot 

wounds can, and do, rapidly deteriorate and must be managed in a 

timely and effective way with tissue debridement, inflammation and 

infection control, and moisture balance. Frequent wound assessment 

and bacterial control and moisture balance is required to prevent 

maceration. Debridement may need to be repeated for maintenance of 

the wound bed. The requirement for further debridement should be 

determined after each dressing change. A physician cannot simply 

abandon the patient following surgery and hope for the best. Timely 

and effective wound management in this case likely would have 

prevented the need for amputation of Ms. Milner’s great toe.

Dr. Nguyen relies on Humble Surgical Hospital, LLC v. Davis, 542 S.W.3d 

12 (Tex. App.—Houston [14th Dist.] 2017, pet. filed), to support his causation 
32

argument. We find this opinion unpersuasive for several reasons.6 First, it largely 

relies on the “analytical gap” argument in the Beaumont Court’s opinion in Abshire, 

which has been reversed. Id. at 23–26 (citing HealthSouth Rehabilitation Hosp. of 

Beaumont, LLC v. Abshire, 561 S.W.3d 193, 214–17 (Tex. App.—Beaumont 2017), 

rev’d, 563 S.W.3d 219 (Tex. 2018)). It is therefore questionable whether the 

Fourteenth Court’s opinion in Humble Surgical comports with the supreme court’s 

direction in Abshire on the review of causation reports:

Dr. Rushing explained how the nurses’ breach—failing to consistently 

document Abshire’s OI, particularly in light of her continued 

complaints of back pain—caused a delay in diagnosis and proper 

treatment and why that delay caused the issues that led to Abshire’s

paraplegia. Thus, the report adequately explained the links in the causal 

chain.

Despite this identified causal link, the court of appeals held that

the report was conclusory because it “fail[ed] to explain how the nurses’

alleged failure to document OI was a substantial factor in causing or 

exacerbating Abshire’s injuries . . . or that it would have changed the 

outcome.” 562 S.W.3d at 217. Specifically, the court observed that the 

physicians did not order tests or provide spinal treatment on either the 

November 22 or 23 visits, even though Abshire’s OI was noted during 

these visits. See id. at —. Therefore, the court held that Dr. Rushing’s 

“opinion that the nurses’ failure to chart Abshire’s history of OI caused 

Abshire’s injury rests on an analytic gap that renders his causation 

opinion as to the nurses conclusory.” Id. at 201.

We disagree that such an analytic gap exists. As explained above, 

Dr. Rushing’s report adequately links his conclusion with the 

 

6 The plaintiff’s petition for review in Humble Surgical is pending before the 

supreme court, and briefing on the merits was requested and has been 

completed. See Davis v. Humble Surgical Hosp., LLC, No. 18-0092 (Tex.), 

Petition for Review, filed Feb. 2, 2018.
33

underlying facts (failure to properly document Abshire’s medical 

history was a substantial factor in her delayed treatment and subsequent 

injury). Rather, it appears the court of appeals simply did not agree with 

his conclusions in light of Abshire’s overall course of treatment. 

However, the court’s job at this stage 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.

. . . .

In the same vein, with respect to causation, the court’s role is to 

determine whether the expert has explained how the negligent conduct 

caused the injury. Whether this explanation is believable should be 

litigated at a later stage of the proceedings.

The ultimate evidentiary value of the opinions proffered by Dr. 

Rushing and Nurse Aguirre is a matter to be determined at summary 

judgment and beyond. In this regard, the court of appeals improperly 

examined the merits of the expert’s claims when it identified what it 

deemed an “analytical gap.”

Abshire, 563 S.W.3d at 225–26 (footnote omitted).

Additionally, Peabody, a subsequent Fourteenth Court opinion that applied

the supreme court’s Abshire opinion, is persuasive. See Peabody, — S.W.3d at —, 

2018 WL 6836864, at *6, 8–11 (“The Texas Supreme Court recently approved a 

causation opinion in a similar expert report . . . . We look to the cases relied on by 

St. Luke’s with this more recent test in mind.”) (citing Abshire, 563 S.W.3d at 225–

26). Peabody, which similarly involved alleged delay in treatment, concluded that 

the experts’ causation opinions met the test in Abshire. See id., — S.W.3d at —,

2018 WL 6836864, at *8–14.
34

We have addressed Dr. Mitchell’s causation opinion as to Dr. 

Balasubramanian’s alleged failure to request a vascular consultation. For the same 

reasons, we conclude that Dr. Mitchell’s causation opinion as to Dr. Nguyen 

constitutes an objective, good-faith effort to provide a fair summary of his opinions 

with respect to the causal relationship between Dr. Nguyen’s alleged breach and 

Milner’s injury.7 We overrule Dr. Nguyen’s sole issue.

Cypress Fairbanks Medical Center. The Medical Center contends in the last 

part of its sole issue that Dr. Mitchell’s report failed to explain how its nursing staff 

caused Milner’s injury.

Dr. Mitchell’s report states the following on causation as to the Medical 

Center:

In the days following the March 25th surgery there appears to have been 

little or no documented wound care or follow-up of the condition of the 

wound. The nurses and wound technicians at Cypress Fairbanks 

Medical Center breached the standard of care by failing to timely

provide wound care and assessment following the March 25, 2015 

surgery, and by failing to timely report the declining condition of Ms.

Milner’s wound to physicians allowing same to become gangrenous by 

March 30, 2015. The failure to timely provide wound care and alert 

physicians of the declining condition of the wound following the March 

25, 2016 surgery put Ms. Milner’s entire leg at risk for amputation and

was a proximate cause of the great toe amputation, as well as, her long 

and protracted recovery and hospitalization. This is because diabetic 

foot wounds can, and do, rapidly deteriorate in light of diabetic 

 

7 As we did with Dr. Balasubramanian, we similarly need not address Dr. 

Nguyen’s causation argument on his alleged failure to follow up and assess 

the condition of the wound in the five days between surgery and Milner’s 

scheduled discharge.
35

changes, such as neuropathy and vascular disease. Once the wound 

progresses to the state of gangrene, it is often too late to curb life

threatening infection without amputation of the affected limb. 

Therefore, the wound must be managed in a timely and effective way 

with tissue debridement, inflammation and infection control, and 

moisture balance. This requires a team approach, including prompt 

communication with the treating physicians when the wound is not 

healing as desired. Timely and effective wound management, including 

communication with physicians when the wound was declining, likely 

would have prevented the need for amputation of Ms. Milner’s great

toe. [Emphases added.].

Regarding the Medical Center’s standard of care, Dr. Mitchell’s report states 

the following, which also pertains to causation:

A physician may only see the patient once or twice per day and relies 

on the wound care nursing staff to document the condition of the wound. 

Documentation of the size of the wound is important to determine if the 

wound is healing and the treatment plan is working. Recording the size, 

depth, appearance and location of the wound establishes a baseline for 

treatment, and monitoring any response to interventions. The wound 

care nursing staff must notify physicians if the wound is deteriorating.

Debridement may be a one-off procedure or it may need to be ongoing 

for maintenance of the wound bed. The requirement for further 

debridement should be determined after each dressing change. This can 

only occur with prompt communication between the wound care 

nursing team and the treating physicians. Once the wound progresses 

to the state of gangrene, it is often too late to curb life threatening 

infection without amputation of the affected limb. [Emphases added.].

Dr. Mitchell concludes: “It is my opinion that Cypress Fairbanks Medical 

Center failed to use ordinary care in its treatment of Vickie Milner by failing to 

provide timely and appropriate wound care and wound assessment; and by failing to 

alert physicians of the declining condition of the wound.” He then includes the 
36

Medical Center with the physicians in his causation conclusion, stating that the 

Medical Center’s negligence (breach) “was a proximate cause of Ms. Milner’s 

amputation and long and protracted recovery and hospitalization. I am of the medical 

opinion that Ms. Milner more likely than not would not have required amputation 

and extended hospitalization with prompt and proper care and assessment of the 

wound as described above.” (Emphasis added).

Specifically, the Medical Center asserts that Dr. Mitchell’s report (1) does not 

explain how the nursing staff’s providing wound care would have halted the progress 

of Milner’s infection; (2) does not explain how the nursing staff would have 

anticipated that, as a result of their failure to provide proper wound care and 

management, the physicians would not themselves evaluate and manage Milner’s 

wound; (3) does not explain how alerting physicians would have changed the 

outcome and prevented Milner’s toe amputation; (4) does not show at what point in 

the timeline that alerting physicians would have allowed them to intervene to prevent 

the amputation; (5) does not explain how additional information from the nursing 

staff would have led the physicians to curb the progression of Milner’s infection if 

the physicians already had that information; and (6) requires the court to assume that 

the nursing staff’s communication to a physician would have caused the physician 

to take action that would have prevented the amputation.
37

The Medical Center contends that Dr. Mitchell does not explain how wound 

care would have halted the progression of Milner’s infection, and it makes the related 

contention that his report does not explain how alerting physicians would have 

changed the outcome and prevented Milner’s toe amputation. We disagree; his report 

states: 

Without early intervention, the wound can rapidly deteriorate, leading 

to amputation of the affected limb. Therefore, it is at this crucial early 

stage that physicians have the potential to curb what is often 

progression from mild infection to a more severe problem, with 

necrosis, gangrene and often amputation.

. . . .

Documentation of the size of the wound is important to determine if the 

wound is healing and the treatment plan is working. Recording the size, 

depth, appearance and location of the wound establishes a baseline for 

treatment, and monitoring any response to interventions. The wound 

care nursing staff must notify physicians if the wound is deteriorating.

. . . .

[D]iabetic foot wounds can, and do, rapidly deteriorate in light of 

diabetic changes, such as neuropathy and vascular disease. Once the 

wound progresses to the state of gangrene, it is often too late to curb 

life threatening infection without amputation of the affected limb. 

Therefore, the wound must be managed in a timely and effective way 

with tissue debridement, inflammation and infection control, and 

moisture balance. This requires a team approach, including prompt 

communication with the treating physicians when the wound is not 

healing as desired. Timely and effective wound management, including 

communication with physicians when the wound was declining, likely 

would have prevented the need for amputation of Ms. Milner’s great

toe. [Emphases added].
38

The Medical Center makes another related argument that Dr. Mitchell does 

not explain when alerting Milner’s physicians would have allowed them to intervene 

to prevent the amputation. But as we have already noted, the absence of such an 

opinion in an expert report at this early stage does not render the report deficient. 

See Puppala, 564 S.W.3d at 201.

Next, and relying in part on Curnel, the Medical Center contends that Dr. 

Mitchell does not explain how the nursing staff would have anticipated that, as a 

result of their failure to provide proper wound care and management, the physicians 

themselves would not evaluate and manage Milner’s wound, especially since Dr. 

Mitchell states that “physicians have the potential to curb what is often progression 

from mild infection to a more severe problem, with necrosis, gangrene and often 

amputation.” Dr. Mitchell’s report does explain this alleged omission. He states that 

wound care and management is a “team approach,” that the wound care nursing staff 

should document the “size, depth, appearance and location of the wound” and 

monitor the wound’s response to interventions, and that the physician “relies on the 

wound care nursing staff to document the condition of the wound.” As for Curnel, 

it is inapposite because it concluded that the causation report was deficient on causein-fact because the report stated that the subsequent treating physicians did have the 

additional information that the nursing staff allegedly failed to provide to them so 

that they could make the correct diagnosis. See Curnel, 562 S.W.3d at 567–68. And
39

Christus Health Gulf Coast v. Davidson, No. 15-15-00643-CV, 2016 WL 2935715, 

at *5 (Tex. App.—Houston [14th Dist.] May 17, 2016, no pet.) (mem. op.), also 

relied on by the Medical Center, is inapposite for the same reason.

The Medical Center’s last argument relating to the nursing staff’s alleged 

failure to alert and how it would have changed the outcome is that Dr. Mitchell’s 

opinion requires the court to assume that the nursing staff’s communication to a 

physician would have caused the physician to take action that would have prevented 

the amputation.8 Peabody addressed a similar argument, concluding “it is reasonable 

to anticipate the consulting specialist doctor would comply with the standard of 

care.” Peabody, — S.W.3d at —, 2018 WL 6836864, at *14. Dr. Mitchell plainly 

states how timely communication of wound deterioration to the physician and early 

intervention could have prevented amputation, explaining that at the crucial early 

stage, “physicians have the potential to curb what is often progression from mild 

infection to a more severe problem, with necrosis, gangrene and often amputation.”

Dr. Mitchell’s causation opinions as to the Medical Center are similar to his 

causation opinions as to Dr. Balasubramanian, which we have found sufficient. For 

the same reasons, we conclude that Dr. Mitchell sufficiently describes the causation 

element as to the Medical Center: Dr. Mitchell explains the factual basis for his 

opinions and he links the Medical Center nursing staff’s alleged conduct—failing to 

 

8 This argument largely relies on Humble Surgical, which is addressed above.
40

provide timely and appropriate wound care and wound assessment and failing to 

alert physicians of the declining condition of the wound—with Milner’s subsequent 

development of gangrene and the amputation. See Peabody, — S.W.3d at —, 2018 

WL 6836864, at *7; Clavijo, 2018 WL 2976116, at *11; Holt, 2017 WL 3483211, 

at *4; Hood, 2012 WL 4465357, at *6. Dr. Mitchell’s causation opinions provide the 

“how and why” and a “straightforward link” between the alleged breach of the 

standard of care and the claimed injury. The trial court could have reasonably 

concluded that his report constitutes an objective, good-faith effort to provide a fair 

summary of his opinions with respect to the causal relationship between the Medical 

Center’s alleged breaches and Milner’s injury. See Abshire, 563 S.W.3d at 225–26; 

Peabody, — S.W.3d at —, 2018 WL 6836864, at *7; Puppala, 564 S.W.3d at 200–

01. We overrule this last portion of the Medical Center’s sole issue.

Conclusion

We affirm the orders of the trial court.

Richard Hightower

Justice

Panel consists of Justices Lloyd, Kelly, and Hightower.