Affirmed and Memorandum Opinion filed August 9 , 2022.

In The 

## Fourteenth Court of Appeals

NO. 14

- 20

- 00186

- CV

REGINA ANN VARKEY, I NDIVIDUALLY AND AS T HE REPRESENTATIVE OF TH E ESTATE OF ANIL C. VARKEY, DECEASED AND ANGELIN A GINA VARKEY , App ellant s
V
. DR. AYYASH Y. MELHEM , M D ; HYE JUNG LEE, R N ; TENAKA M. BASILE, R N ; AND SAMUEL S . DIZON, R N , Appellee s
On Appeal from the 11th District Court Harris County, Texas Trial Court Cause No. 2019

- 11347

MEMORANDUM OPINION

In this health care liability ca se , app ellants , family members of a dec eased patient, challenge the trial court ’ s final judgment dismissing wrongful death a nd survival claims against appellees health care providers (a doctor and three nurses) based on deficiencies in their expert report s

. A f ter revi ew , we conclude the expert reports are deficient in various respects : as to one nurse , th e reports lack baseline2

details to discern the factual basis of the claim ; as to a claim against another nurse , the reports only provi de opinions on t wo of the th ree r eq uired elements (standard of care and breach) ; and as to all the health care providers , the r eports lack a causation opinion that support s the wrongful death claims ass erted in the case

. We affirm.

I. F ACTUAL AND P R OCEDURAL B A CKGROUND
On the eve nin g of Fe bruary 11, 2017, for the third time in three months, Anil Varkey ’ s failing health brought hi m to Memorial Hermann Health System d/b/a Memorial Herman n Southeast (MHS)

. 1 When he first arrived, he complained of left

- foot pain joined by a foul odo r a n d drainage ; emergency room records report a

“ large gaping ulcer ” on his left heel. The infection was new, but his foot issue , along wit h a host of other health concerns, had been ongoing

. Varkey, 47

- years old at the time of his hosp ital a d mission, wa s o n record fo r having “ multiple falls,
unstea d y balance and gait, hypertension , diabetes, renal failure, con g est ive heart failure, stent placement, and vision impairment. His “ a ctive problems ” included: cellulitis, clostridium difficile, diab e tes, end

- st a g e renal disease on hemod ialysis, hypertensi o n, and MRSA

. By the early mor ning hour s the next day, when X

- rays revealed a new calcaneal facture , Varkey ’ s emergency room doctor transferred him to the hospital

. During his stay, Mr. Varkey was seen by vari o u s MHS nurses and physicians, including the a ppe llees

— Taneka Basile , Samuel Dizon, Hye J ung Lee , all re gistered nurses (the “ Nurses ” ) , and Dr. Ayyash Mel hem , a hospitalist. Chronologically, the y were involve d with Varkey as follows:

• Nurse B asile cared f

o r Varkey during his emergency room stay . T h e

1 All facts regarding the treatment discussed h ere der ive from what is provided in the expert report s at issue

.3 r eport indicates that Basile first assessed Varkey ’ s fall risk , scoring Varkey at a “ 0 ” or as a “ low fall risk ”

. 2

• Dr. Melhem a dmit ted Varkey into the hospital after c onf erring with Varkey ’ s emerg ency room d o c t or . Melhem reviewed Varkey ’ s medical re cor d s , prepared his “ history and physical ” in cons ultation with Mr. Varkey , and ordered additional medications

. I t i s unc lear whether card ia c monitor ing was ordered due to lack of documentation

.

• Nurse Dizon cared f

or Varkey during his hospital stay. The expe rt report indicates Nurse Di zon conducted a fall assessment , but do es not indicate the time or score for a ny such assessment

.

• Nurse Lee also cared for Va rkey during his hospital stay

. According
to the expert r e po rt, Lee administered medications twice th e night before he was found on the floor , and conducted a fall assessment the night before

. On F ebruary 13 at 5:20 a.m. , Varkey was assisted to the bathroom by a different nurse

. Approximately 40 m inutes later , he was found on the floor of his hospital ro om in cardiac arrest . Though he was resusc itated , h e suffered an anoxic brain injury, was int ubated and placed on mechan ical ventilation. He was transferred to a local rehabilitation facility wher e he passed a w ay on March 9, 2017

. Lawsuit Mr. Varkey ’ s widow , Regina Ann Varkey, appearing i ndividually and as personal r epresentative of his estate and his daughter, Angelina Gina Varkey

2 The score was assessed u nde r the Johns H opk i ns Fall Risk Assessment To ol

.4

(collectively the “ Vark ey Parties ” ) brought a health care liabili ty lawsuit a g a in st MHS and various doctors and nurses , inc luding appellees, ( collectively the “ MHS Parties ” ) t hat cared for Mr. Varkey during his last s tay. Their petition allege s that the MSH P arties failed to assess Mr. Varkey ’ s fall risk an d failed to implement an d

en force policies and procedures related to t he management, treatment and care of

“ patient[s] with known he alth issues ”

. Aiming to comply w ith Chapter 74, upon filing their petit ion, the Varkey Parties served reports from two expert s : Dr. John Darren Clar k , M D , and Madison Chollett, R N , BSN

. After answering the lawsuit, the Nurses successfully objected to the expert reports . The court ordered that Vark ey cure deficie ncies in the report s, p rompting Varkey to serve new reports f rom each expe rt.
Unsatisf i e d w ith the changes, the Nurses again filed motions to dismiss based on deficiencies in the amended reports

. The N urses argue d that the two expert re ports fail ed to address the standard s of care a nd alleged breach es of those standard s of ca re with suffic i e nt specificity as to each nurse

. The Nurse s also asserted a two

- pronged attack on the amended reports ’ causation opinions : challeng ing Cholle tt ’ s qualification s as a nurse to render a n exp ert causation

o pinion, and challenging Clark ’ s causation o pinion s a s c onclusory.
Dr. Melhem also filed a motion to dismiss based on alleged deficiencies in the amended reports. Melhem argued that Dr. Clark ’ s reports fai l ed to provide a good faith summary o f his opinions as to th e standard of care, breach and ca usation

a ppl icable to Dr. Melhem.

The trial c ourt issued orders granting both motions to dismiss, which form the basis Varkey ’ s appeal , claiming t hat the trial cou rt abused its discretion. 3

3 Upon inspection of the record, we determined that the case lacked finality in the absence of5 I II. I SSUE AND A NALYS IS The only issue befor e us is whether the trial co u rt a bused it s discretion in granting the Nurses ’ and Dr. Melhem ’ s motion s to dism iss based on deficient expert reports

. A. Standard of Review We apply an a buse

- of

- discretion standard when reviewing a tria l court ’ s decision as to the adequacy of a n expert r epo r t. See Van Ness v. ETMC F irst Physicians , 46 1 S.W.3d 140, 142 (Tex. 2015) (per curiam) . The trial court abuses its discretion if it acts arbitrarily, unreasonably, or without reference to guiding rul es or principles. See Bowie Mem ’ l Hosp. v . Wright , 79 S .W. 3d 48 , 52 (Tex. 2002). Although we ma y no t substitute our judgment for that of the trial court, the trial court has no discretion in determining wh at the law is or applying the law to the facts. Id. ; Sanjar v. Turner , 252 S.W.3d 460, 463 (Tex. Ap p

. — H o ust on [1 4th Dist.] 2008, n o pet.)

. B. The Exp ert Reports

Chollett ’ s s tandard of c are and b reach opinions offered to support the claims

against Dizo n, Le e and Basile Chollett ’ s 4 Report sets out standards of care for two stages of nursing c are :

nonsuit orders relating to other defendants and unaddressed requests for attorney s ’ fees

. The appeal was abated to allow the part i es an opp ortunity to bring those matters to judgment. The trial court signed or ders on July 18, 2022 that disposed of all claims, resulting in a final judgment.

4 Chollet ’ s report and CV show that she is a licensed nurse with a b ac helor ’ s d egree ( wit h the relevant nursi ng cou rsewo rk ) practicing as a charge nurse and nurse assistant manager at HCA Houston Hea l thcare Clear Lake

. He r eight and a hal f years of nursing experience have been “ in the acute care clinical set ting where she h as worked with tele metry, orthopedic , a nd fal l ris k patients. ” In the area of fall

- risk assessment and care, Chollett ’ s report a n d CV es tablish that she has evaluated h undreds of patients for fall risks, that s he regularly uses “ such tools as the John Ho pk ins Fall Risk Asse ssment Tool to calcula te fa ll r isk scores ” , that she regularly teaches others how to use it, that she has atte n ded hos pital fall

- risk a nalyst meetings , and developed her6

the firs t st ag e

— fall risk

- assessment , and the second stage

— t he implementation of precautions and interventions after appropriate assessments are made. The report
pro vides that a ppropriate f all risk assessment is genera lly consistent with an accurate appli cation o f th e Johns H opkins Fall Risk Assessment Tool, whic h requir es evaluation of any procedure performed on a patient , specific comorbidities , medications, fall h istory, and other categories

. If the score of the

ass essment yields a “ high fall risk pati ent ” , im p lem en tation of inte rventions such requiring that a nurse be in ar ms

- length distanc e when out of bed, nurse assistance when the patient is walking, making a bedside commode available when two nurses are not available t o assist, and the activation o f a bed a lar m or moni tor when patie nt is up without assista n ce. Chollett ’ s report also sets out other implementation standards, such that the nursing staff act “ as a patient advocate ” ,

“ dele gate tasks ” , and “ give medications as ordered ”

. Breach of the stan dards o f ca re is set out i n the “ conclusion ” section, where the report states that ea ch of the Nurses “ failed to perform a correct f all risk assessment according to the Johns Hopkins Fall Risk Assessment Tool ” , and that

“ e ach failed at varying times to con sider t h e f act that Mr. Varkey had a history of multiple fa l ls, an unsteady gait, a new fract ure in his left foot

. . . ”

. 5

Clark ’ s c ausation opinions offered to suppo rt the Varkey Parties ’ claims against

Dizo n, Lee and Basil

e
D r. Clark ’ s 6 second expert repo rt adop t s t he standa rd of care and breach

hospital ’ s post

- fall c hecklist

. 5 Because Chollett ’ s amended repo rt does n ot contain any causation opinions, the iss ue as to
w hether her qualifications p ermit her to render such opinions is moot

. 6 Dr. Clar k ’ s report and CV show that h e finished his residency as a Chief Resident in an internal medicine pr ogram, that he h as 20

- y ea rs ’ exper ience practicing as a hospi tali st, is board

- certified in internal medicine and hospice and palliative medicin e , served as a member and in leadership positions in medical organizations devoted to hospita l medicine , where he has served on s everal7

opinions of Choll e tt ’ s report, and w ithout specifically naming any of the N urse s , provides as follows: It is my expert med ic al opinion based upon a reasonable degree of medical certai nty that if the nurses identi f ied in t he exp ert re port of Madison Chollett, RN, BSN had r e cognized Mr. Varkey as being a patient at high risk of falls, he would have had increased safety
measures i n place and more frequent monitoring from the nursing staff and his fall would have been recogni z ed soo ner or never happened. The failure to pr ovide this patient with a room sitter, the failure to place the patient in direct view of the nursing station ( wh en possible), the failure to activate the patient ’ s bed ala rm, and the failure to adhere to phys i cia ns orders when administering pain medicatio ns we r e each substantial acts of negligence that individually or collectively increased the risk of falls and r es ulted in the nursing staff having no idea just how long Mr. Varkey had been lying on the floor
o f hi s h ospita l room in cardiac arrest before th e nur s es found him and called a Code Blue. A pulse was able to be restored with resuscitation, but the severity o f his brain damage was far too extensive to support life an d Mr. Varkey succumbed to his highly p rev ent able a nd foreseeable injuries on March 9, 201 9

. It is unknown exactly how long Mr. Varkey was on the floor experiencing cardiorespiratory arrest. He ha d apparently been assisted to t he bathroom at around 5:20 AM, and that was the last contact docume n ted wi th Mr. Varkey from the nursing staff. He coul d have easily been on the floor without effective blood flow for over 30 minutes

. The failure of the nurse s to appropriately recognize Mr. Varkey as a high fall risk c ertainly delayed the time that it too k be for e he w a s discovered on the ground and thus wo u ld increase the chance of death or severe neurological injury from anoxic encephalopathy due to delayed a d ministration of resuscitative measures. In other words, ever y minute that Mr. Varkey was o n the g r oun d

co mmittees including a peer review com mitt ee

. The rep ort states he is familiar with the standard of care and best pract i ces for patient safety, and that he reg ularly cares for patients presenting with multiple se rious medical condit ions

.8

w ithout being recognized made him more likely t o suffer death or
severe ne urological impairment from his cardiac arrest. In all reasonable medical proba bility, if he would have been recognized as a high fall risk and had been monitored with a cardiac mon ito r, as was apparently the routine on that floo r , then his fall and/or cardiac arrest would have been recognized immediately le ading to code blue activat ion and prompt administration of resuscitative measures that would have re

- established circ ulation for Mr . Vark ey and prevented his prolonged lack of o xygen and anoxic brain injury. This would have improved the response time to his cardiac arrest, and
resu scitation would have started sooner, resulti ng in increased c hance of survival and decrease d risk o f b rai n inju ry In all reasonable medical probabilit y , if Mr. Varkey had bee n properly assessed as a high fall risk and treated as such, his cardiac arrest
wo uld have been recognized much sooner, leading to quicker inte rvention. such, as defibrillat ion, me d ica tio ns, an d CPR, with improved likelihood of surv i val and less likelihood of brain injury

. C lark ’ s standard of care and breach opinions , and causation o p in ions offered to support the Varkey Parties ’ claims ag ainst Dr . Melhem Clark ’ s first report is the o nly re port t hat relates to the Varkey Parties ’ clai m s against Dr. Melhem. Thou gh Dr. M elhem is only mentioned by name in the background section, he i s descr ibed as Varkey ’ s admitting ph ysician in that section and his opinions on standard of care, breach a nd cau sation pertain to health care at the time of h is admission. Clark ’ s first report provides that the standard of care , in light of Varkey ’ s known medi cal issues at the time of his admission, required that ( a ) Va rkey should have been placed o n a con t inu ous cardi ac monitoring , and that ( b ) Varkey shou l d have been classified as a high fall risk.
In turn, as to breach of the continuous monit oring standard , Clark opines that

“ fai ling to monitor a patient like Mr. Var key with end

- stage renal disea se, his t ory of prema ture ventricular contractions and tachy c ardia, and known cardiomyopathy would fall below the standard of care ”

. Clark also opine s b ecause it wa s not clear from the med ical records and affidavits if such mo nitoring was ordered that if i t9

was o r der ed , it wa s a violation of the standard of care n o t to have that documented by the nursing staff. 7

As to breach of the fall

- risk standard, t he report sta tes “ [Varkey ’ s] inaccurat e fall risk scoring and lack of more a ggressive interventions to de crease
t he ris k of f

all is a violation of the standard of c a re. ”

The section of report titled “ Proximate Cause ” begins by noting that Varkey

was “ found on the floor w ithout a pulse ” , “ success fully resuscita ted ” , but “ su ffered

sev ere brain injury from lack of eff e cti ve blood flow and oxygenation to his br ain ” and “ was eventually discharged to a rehabilitation facility but ultimately died from his injuries. ” The section goes on to analyze the ca use s of the cardiac event : first disc arding causes he considers unlik e l y s uch as ac ute myocardial infraction, pulmonary em boli sm , ac u te coronary syndrome , sepsis before conclud ing “ more likely than not , the cause of [Varkey ’ s ] c ar d iorespiratory arrest was fatal cardiac
arry thmia. ” The repor t states that had Varkey ’ s hear t b een pr oper ly monitor ed his

“ arrest and suspected ar rhyt hmia would have been recognized sooner. ” Like his causation opinions for th e Nurses, Clark ’ s c oncluding paragraph applicable to Dr. Melhem causally l ink alleged breac h es of the standar d of car e with “ imp rov ed ” or

“ increased ” “ chance s ” or “ likelihood ” of n ot dying or suffering his injuries : [I ] f Mr. Varkey had been recognized as being a pat ient at high risk of falls , he would have had inc reased m onito ring from the nursi ng staff and his fall woul d have b een re cogniz ed sooner. This would have improved th e re sp onse time to his cardiac arrest, and resuscitation would hav e started sooner, resulting in increased c hance of survival and decreased risk of brain injury. If , as s tated by Mr. Varkey ’ s wife and fr i end , h e had cardiac monitoring in place that w as no t be ing attended to by the nursing staff, that is certainly a significant violation

7 A lthou gh ther e ’ s nothing i n the medical records to in dica te that Vasrkey was on continuous
c ardiac monitoring, affidavits from family m e mbers state that cardiac leads had been attached to Varkey.10

of the standard of care. In all reasonable probability, if Mr. Varkey was on continuou s cardiac monitoring that was bei n g e ffe ctivel y managed by the nursing staff, and/or if h e had been properly assessed as a high fall risk and treated as such, his cardiac arrest would ha ve been recognized much sooner, leading to qui cker intervention such a s defibrillation medicatio ns, and CPR , w ith im

proved likelihood of survival and less like lihood of brain injury

.
C. Chapter 74 ’ s “ Good

- Faith ” Requirements

Under section 74.351, a claimant, no t later than the 120th day after t he date a health

- care liabili ty claim is filed, must se rve on e ach pa rty on e or more expert witness reports addres sing liability and causati on. Tex. Civ. Prac. & Rem. Code Ann. § 74.351(a), (

j) ; Lewis v. Funderburk , 253 S .W.3d 204, 205 (Tex. 2008). The statute defines a n “ ex pert report ” a s [A] written report by an e xpe rt that p rovid es a fair summary of the
e xpert ’ s opinions as of the date of the report regarding applicable standards of ca re, the manner in which the care r endered by the physician or h ealth care provider failed to meet the s tanda rds, and the causal re l ati onship be tween tha t failure and the inju ry, harm, or damages claimed.

T ex . Civ. Prac. & Rem. Code Ann. § 74.351(r)(6)

. A trial court shall grant a

mot ion challenging the adequa cy of the expe rt re port if the report is not an objective g ood

- faith effort to comply wi th the definition of an expert report provided in section 74.351(r)(6). Id. §§ 74.351( l ), (r)(6). The law limit s the trial
court ’ s inquiry t o the four corners of the report. Jelin ek v. Casas , 328 S.W.3d 526, 539 (Tex. 2010). The report m u st contai n s ufficient specificity to inform the defendant of the conduct the plaintiff has called into question and to provid e a basis for the trial
court to conclude that the plai ntiff ’ s claims have merit. S ee i d. at 539 . Omission11

of an y of the statuto r y e lement s p revents the report from being a good

- faith effort. See i d. A report that merel y states the expert ’ s conclusions about the standard of care, b reach, and causation does not meet the s tatut ory requirements. S ee i d. In providing the expert ’ s op i nio ns on the se elements, the claimant need not marshal evidence as if actually litigating t he merits at trial or present suff icient evidence to avoid summ ary judgment. S ee i d.

A trial court m ust grant a motion to dismiss a plaintiff ’ s s uit if it appear s to the c our t that the expert report does not represent an objective good

- faith effort to

c omply with the definition of an ex pert report. Id. § 74.351(l) , (r)(6). If the plainti f f fails to ser ve a timely and compliant expert report, then the trial court sha ll dis mis s the claim with prejudice and shall award reasonable attorney ’ s fees and

costs to the defendant. Id. § 74.351(b)

. A compliant report must inc lude an explanation of th e basis for the expert ’ s statements and link the expert ’ s co nclu sions to the fac ts. Wr igh t , 79 S.W.3d at 52; Gannon , 321 S.W.3d at 897. A report that merely states the expert ’ s conclusions about the sta ndard of care, breach, and ca usation does not meet the statutory
requ irements. Palacios , 46 S.W.3d at 879; see Wri ght , 79 S.W.3d a t 53

. To c omp ly with these requirements, and constitute a “ good

- faith effort, ” a report must provide enough information to ful fill two purposes: (1) it mus t inform the defendant of the specific c onduct the plaintiff has called into question and (2) it

must pro vide a ba sis for the trial court to conclude that the claims have merit. Palacios , 46 S. W.3d at 879; Gannon v. Wyche , 321 S.W.3d 881, 889 (Tex. App.

— Ho uston [14th Dist.] 2010, p et. denied). T he report need not marshal all of the plainti ff ’ s proof, but t he report mu st include the expert ’ s opinion on each of the elements identified in the statu te: standard of care, breach, and causation. Palacios , 46 S.W.3 d at 878

– 79. Finally, we note “ multiple expert reports may be read12

together ” to dete rmin e whether th e st atutor y r equirements have been met. See A bshire v. Christus Health Se. Tex. , 56 3 S .W.3d 219, 2 2 3 (Tex

. 2018 ) ; Tex. Civ. Prac. & Rem. Code. § 74.351.

D. As to each he alth care provider , did the tr ial court abuse its discre tion in conclu ding that th e ex p ert s ’ opinio n s on standard o f ca re, breach of the standard of care , or causation were so deficient to fall short of an objective good

- fa ith effort to comply with section 74.351(r)(6) ’ s definition of an expert report?
1. The reports fai l t o identify parti c ula r fact s t o support a clai m ag ainst Nurse Dizon. The Nurses argue that the trial court ’ s dismissal of the claims against them
was pro per be cause the report s lack specificity

. See Norris v. Tenet H ouston Health Sys. , 14

- 04

- 01029

- CV, 2006 WL 1459958, at * 3 ( Tex. App.

— Houston [14th D ist. ] May 30, 2006, no pet.) ( “ An expert report asserting that multiple defendants are negligent must explai n how each defendant specifically breached the standard and how that breach caused or con tributed to th e plaintiff ’ s in j ury

. ” )

. Clar k ’ s report fails to identify the N urses individually

. His second report refers to the Nurses generally as “ the nurses identified in the expert report of Madison Chollett, RN, BSN ”

. C h ollett ’ s report states that Nu rse B asile conducted the fir s t f all risk assessmen t which she recorded a “ 0 ” s core

. The report also states that
Nurse Lee assessed Mr. Varkey ’ s fall risk early in the same shift “ that Mr. Varkey was found do wn and went into cardiac a rrest ” recording a score “ a t a low level ” , but lat e r t hat Lee c hanged the score after the fall to an “ 8 ”

. The r eport notes that other assessments were made, t he time they were mad e, and the scores, but the report does not clearly connect any of these other assessment s to a ny particular

nurse

. Adding to t h e c onfusion, the combined repor ts refer to at least one other MHS nurse that cared for Varkey during his hospitalization

. Chollett ’ s r eport mentions Nurse Dizon by name only in the conclusion13

secti on of her report, but in that section o nly identifies Di z on in conjun ction with the other nurses, e.g., “ Nurse Hye Jung Lee, RN, Nurse Samuel Dizon, RN and Nurse Tenaka Basile, RN while caring for Mr. Varkey deviated from the standard of care by failing to perform a correct fall r isk assessment ”

. In none of t h e s e instanc es that Dizon ’ s name is mentioned, does the report point to any specific fall assessment Dizon performed for Mr. Varkey. The Varkey Parties argue that Chollett ’ s report sufficiently ide ntifies Dizon ’ s conduct, including the parti cular fall a sse ssment s h e performed by

r efere nce to medical records attached as an exhibit to her re port.
W hile Chollett ’ s report attaches an exhibi t that includes pages of medical records which contain Dizon ’ s name, the law precludes u s from conside r ing such

mater i als as withi n the “ four corne rs ” o f her report. Kingwood Specialty Hosp., Ltd. v. Barley , 328 S.W.3d 611, 617

– 18 (Tex. App.

— Houston [14th Dist.] 2010, no pet.) ; Norris v. Tenet Houston Health Sys. , 14

- 04

- 01029

- CV, 2006 WL 1459 958, at *2 (Te x . App.

— Houston [14 th Dist.] May 30, 2006, no pet. )

. By f ailing to describe any particular fall assessment performed by Dizon that constituted a d eviation from the standard of care, she has left Dizon ( Clark and th e courts) to speculate abou t what conduct forms the basi s of Varkey ’ s health care liab ility claim against Dizon

. This failure renders her opinions in adequate with respect to Dizon. See Kin gwood Pines Hosp., LLC v. Gomez , 362 S.W.3d 740, 748

– 50 (Tex. App.

— H ouston [14th Dist.] 2011, n o pet.) (concl uding that tria l

co urt erred in denying hospi tal ’ s motion to dismiss because export report did not adequately describe the alleged breaches of the standard of care)

. T hough there are some areas where we are free to review med ical records una ided by an exp ert witness ’ s o w n s ummations , nei ther we nor the t rial court are granted such latitude in this analysis

. See Norris , 2006 WL 1459958, at *2

. Un der the circumstances,14

the trial court did not ab use its discretion in dismissing the Varkey Pa rties ’ claims health care l ia b ili ty claims against Dizon.

2

. T he reports fai l to provide a good

- faith effort to link Nurse Lee ’ s breach in the improper adminis tration of medicine with an alleged injury

. To the extent that Vark ey complains that the trial court abused its discretion b y d ismissing his claims again st Nu rse Lee for negligence associated with her administration of this medication, we briefly address that issue here

. Omission of any of the statutory elements prevents the report from constitut i ng a good

- fait h effort. See J

e lin ek v. Cas as , 328 S.W.3d at 539

. According to Chollett ’ s report, Lee deviated from doctor ’ s orders by administering pain medicati on that was permitted only if Varkey had exhibited higher lev els of pain than determined at the time. Chollett ’ s report do e s n ot provid e a causation opini on, a nd Clark ’ s report fails to identify Lee , or casually link such conduct with an alleged injury

. In the causation section of Clark ’ s second report, with out reference to any specific N urse , Cla rk refers to t he “ administr a tio n of pain medication ” once b ut

on ly as causing the nurses to not know how long Mr. Varkey had been lying on the flo or

. It states :
T he failure to provide this patient with a room sitter, the f ailure to pl ace the patient in d irect view of the nursing s t ati on (when possible), the fail ure t o activate the patient ’ s bed alarm, and the failure to adhere to physicians orders when ad ministering pain medications were each substantial acts of negligence that individually or collectivel y increased th e risk of fal l s a nd result ed in the nursing s taff having no idea just how long Mr. Varkey had been lying on the floor of his hospital roo m i n cardiac arrest before the nurses found him and called a Code Blue

. E ve n presuming for the sake of ar gument that Cl ark ’ s referen c e t o the “ th e failure to adhere to p hysicians orders when adm inistering pain medications ” adequately identifies Lee (by ref erence to C hollett ’ s report) , Clark ’ s sole reference15

to such co nduct is i nsufficient as a causation opini on because i t fails to conn e ct the breac h to any injury

. T he Va rkey Parties had been granted an extension to amend the report as to their claims again st Lee , and their amended report s do not explain how her alleged breach i n the administration of medicati on caused any injury allege d by the Vark ey Parties , and thu s fai led to provide the trial court with a basis that a claim under that the or y had merit.
3. The report s are globally deficient on the element of causation

. One overarching deficiency in Clark ’ s cau sation op inion s le a d s u s t o conclud e the trial court did not abuse its discretion in granting the two motions to dismiss. P roximate ca us e encompa sses two components: (1) foreseeability and (2)

caus e

- in

- f

act. Colu mbia Valley Hea lthcare S y s. , L.P. v. Zamarripa , 52 6 S.W. 3d 453, 4 60 (T ex . 201 7 ). For a neglige nt act or omission to have been a cause

- in

- fact of the harm, the act or omission must have be en a substantial factor in bringing about the harm, a n d ab sent the act o r omission

— i .e
. , but for the act or omission

— t he harm would n ot ha ve occu rred

. Id

. For th e amend ed report to suffic e as to
causat ion , in it Dr. Clark must ex plain “ how and wh y ” the a llege d negligence in assessing Varkey ’ s fall risk cause d Varkey to suffe r a brain injury and die , set fo rth

t he basis for his statem e nts , an d l in k his conclusions to spec ific fa cts. See Abshire , 563 S.W.3d at 224. Thus, f or the amended report to su rv ive the ch allenge, Dr

. Clark w o uld h av e to explain how the alleged ly negligent c ondu ct cause d Varkey to suffe r a brain injury and di e

. S e e i d . at 226

. N either report concludes that any of the health care provider s ’ ac ts caused or result ed in Mr. Varkey ’ s heart attack or death

. Instead, the report s inversely formulate ca usation by sta ting in various wa ys that were it not f or the appell ee s ’ s br eaches Mr . Varkey ’ s care would have improved and he would have had a n increa sed chance of survival and decreased risk of brain inju ry

. Texas cases16

analy zing causation with similar ca usal formulati o ns have been held to be in adequate

. See Wright , 79 S.W

. 3d at 52

– 53 (concluding report which stated

- “ if the x

- rays would have b een correctly read and the appropriate med ical personnel acted upon those find ings then Wrig h t would have had the possibility of a better
outcome ”

- failed to represent a good

- faith eff ort to su mmarize the causal relationship between plaintiff ’ s failure t o meet the applicable standards of care an d Barbara ’ s injury); Hutchinson v. M ontemayor, 144 S.W.3d 614, 617

– 18 (Tex. App

. — Sa n Antonio 200 4, no p et.) (concluding that expert report d i scu ssi ng tha t injury “ may have been avoided ” was insufficient to meet sta tute); Estate of Allen v. Polly Ryon Hosp. Auth., No. 01

– 04

– 00151

– CV, 2005 WL 497291, at *3, 5 (Tex. App.

— Houston [1st Dist.] Mar. 3, 2005 , no pe t.) (mem. op.) (finding that expert

r e por t di scuss ing what was “ more likely ” or “ could have contributed ” constit uted mere possibilities and thus were not statements of causation).
Clark f ails to state w hat the response time would have been had car dia c

mo nitoring been ordered and properly ut i liz ed, or wh a t the response time would have been had Varkey been properly asses sed as a high fall risk , o r even say that it was more likey than not Var key would not h ave suffered severe damage to critical
organs ha d he properly been assessed a s a high f al l ri sk or ord ered for cardiac monitoring.

W hen giving the words and terms in C lark ’ s report their plain and ordinary meaning, Clark ’ s report alleges a loss of chan c e theory of m alpractice

. Texas does
not recog nize lo ss of chance as an independent common law cause of action. Hodgkins v. Bryan , 99 S.W .3d 669, 675 (Tex. App.

— Houston [14th Dist.] 2003, no pet.) ( “ In Kramer, the supreme court held that Texa s does not rec o gnize a

commo n law cause of action for lost c hance o f survival in a medical malpractice

c a se. The los t chance of survival doctrin e is a bar to recovery due to lack of17

causation, not an affirmative defense. ” ). Recovery for a loss of chance requires proof that at the t ime of the defendant ’ s alleged n egligen ce, there was less than a 50% chance t he claimed i njuries would have occurred witho ut that defendant ’ s negligence. Columbia Rio Grande Healthcare, L.P. v. Hawley , 284 S.W.3d 851, 859

– 61 (Te x. 2009) ( “ [P] r oof that a pat ient lost some chance of avoid i ng a me dical condition or of surviving the c a nce r because of a defendant ’ s negligence is no t enough for recovery of damages ” ). I f the Varkey Parties pursued a loss of chance theory , then as part o f their proxim a te cause showi ng , they would have need ed an

o pinion showing that there was less than a 50 % ch ance Vark ey would have died or suffere d a brain injury without the doctor ’ s and/or the nurse ’ s negligence. They did not offer such an opinion.

The two amended e x pert report s d o not contain sufficient i nform ation w ithin their respective four corners ( o r c ombined e ight corners ) to (1) inform N urse Dizon of the specific conduct called into question and (2) provide a basis for the trial court to conclud e that the Var k ey Parties ’ cl aims against Dr. Melhem and the
Nurses have merit. See Baty , 543 S.W.3d at 6 93

– 94; see a lso Pinnacle Health Facilitie s XV, LP v. Robles , No. 14

- 15

- 00924

- CV, 2017 WL 2698498, at *2

– 4 (Tex. App.

— Houston [14th Dist.] Jun. 22, 2017 , no pet.) ; Se e also Bowie Me m ’ l Hosp. v. Wright , 79 S.W.3d at 52

– 53 . Under the applicable standard of r e vie w we

conc lude that the tr ial court d id not abuse its discretion in determining that the two

am ended report s failed to provide an object ive good

- faith effort to com ply with the definition of an ex pert re port provided in section 74.351(r)(6). See Pinnacl e He alth
Faci lities XV, LP , 2017 WL 26 98498, at *2

– 4; Kingwood Pines Hosp., LLC , 362 S.W.3d at 748

– 50. Accordingly , we overrule the appelle e s ’ s sole appe ll ate issue

. II I. N O FURTHER E XTENSIONS
The Var key Par ties had been granted an extension to amend the r e por t as to18

t heir claims against the Nu rses , and therefore are entitled to no further extensions as to those claims

. Whether the Varkey Par ties are entit l e d to an oppor tun ity to

cure the ir report as t o claim s against Dr. Melhem is a slightly different ques t ion

. The Var key Partie s contend that t he trial court erred in refusing them an

o pportunity to cure reports after granting Dr. Melhem ’ s mot ion

. “ The Act a llows a trial court to grant one 30

- day exten sion to cure a deficiency in an expert report, and a cou r t m ust grant an extension if a report ’ s deficiencies are curable. ” Zamarripa , 526 S.W.3d at 461

. Th e court did n ot ru le on the timely objection or moti on filed by Dr. Melhem until after ruli ng on the Nurses objections ; thus, no
pr evious op portunity to cur e th e report( s) re levant to the clai ms against Dr. Melhem had yet been granted

. How ever, in amend in g the ir repor ts following the
Nurse s objectio ns , the Varkey Parties provided a second report from Dr. Clark which , as discussed above, uses the same deficie n t l anguage t o convey his causation opinion pertaining to the claims against the Nur se s as he did in his first

o p inion pertaining to the claims a gainst Dr. Melhem

. Under these circumstances, even if the deficiencies were curable, we canno t conclude that t h e t rial cour t abused its discretion in denying the Varkey Parties op portunity to cu re deficiencie s in Dr. Clark ’ s first and second repor t s

. I V
. C ONCL USION
For the reasons discussed here in w e affirm the trial court ’ s final judgment

.

/s/ Randy Wilso n Justice

Panel consis ts of Justic es Jewell , Spain , an d Wilson.