Fourth Court of Appeals

San Antonio, Texas

MEMORANDUM OPINION

No. 04-12-00551-CV

SSC PLEASANTON SOUTH OPERATING COMPANY LP

d/b/a Retama Manor Nursing Center/Pleasanton South,

Appellant

v.

Joyce PENNINGTON, 

Individually and on behalf of the Estate of Billy Joe Pennington 

and on behalf of all wrongful death beneficiaries,

Appellee

From the 81st Judicial District Court, Atascosa County, Texas

Trial Court No. 11-11-1123-CVA

Honorable Donna S. Rayes, Judge Presiding

Opinion by: Sandee Bryan Marion, Justice

Sitting: Sandee Bryan Marion, Justice

Steven C. Hilbig, Justice 

Marialyn Barnard, Justice

Delivered and Filed: December 12, 2012

AFFIRMED

This is an interlocutory appeal of the trial court’s denial of SCC Pleasanton South 

Operating Company’s (“Pleasanton South”) motion to dismiss this health care liability claim. 

Pleasanton South filed a motion to dismiss asserting appellee, Joyce Pennington, failed to timely 

serve expert reports complying with Texas Civil Practice and Remedies Code section 74.351. 

On appeal, Pleasanton South argues the trial court abused its discretion in denying the motion to 
04-12-00551-CV

- 2 -

dismiss because (1) Michael Zeitlin, M.D., was not qualified to render an expert report, and (2) 

Zeitlin’s expert report did not set forth the applicable standard of care, how Pleasanton South 

breached the standard of care, or the causal connection between the alleged breach and the 

appellee’s damages. We affirm.

BACKGROUND

Joyce Pennington’s husband, Billy Joe Pennington, a seventy-three year old man, was 

admitted to Pleasanton South, a nursing home facility, as a resident on November 9, 2009. At 

the time of his admission, Mr. Pennington required the help of the staff for all of his daily living 

needs. Due to dementia, he was unable to participate in decision making. Mr. Pennington was 

noted as a “fall risk” when he was admitted, and his physician ordered a “tab alarm” to be placed 

on Mr. Pennington while he was in bed or in his wheelchair to alert staff of his movements. 

On November 11, 2009, two days after he was admitted as a resident, a nurse found Mr. 

Pennington on the floor of his room next to his bed. Mr. Pennington’s injuries were minor. One 

day later, on November 12, Mr. Pennington fell a second time while attempting to use the 

restroom unassisted. Later that same day, he fell a third time. He was then moved to a 

temporary room for closer observation by nursing staff. On the next day, November 13, Mr. 

Pennington was again found out of his bed. Approximately thirty minutes later, Mr. Pennington 

suffered a fourth fall and was found on the floor calling out for help. There was no indication of 

the staff having monitored or being informed of any “tab alarm” warnings.

Mr. Pennington was transferred to the South Texas Regional Medical Center for 

evaluation due to injuries sustained from his fourth fall and it was discovered he had a fractured 

hip. He was then transferred to Wilford Hall Medical Center where he underwent surgery on 

November 15, 2009, to repair the fractured hip. He died on November 27, 2009. 
04-12-00551-CV

- 3 -

Almost two years later, Pennington filed suit against Pleasanton South alleging medical 

negligence resulting in injuries to her husband that lead to his death. Pennington filed the expert 

report of Dr. Michael Zeitlin. Pleasanton South’s subsequent motion to dismiss was denied and 

this appeal followed.

STANDARD OF REVIEW

On appeal, Pleasanton South asserts Dr. Zeitlin’s expert report fails to meet the 

requirements of Texas Civil Practice and Remedies Code chapter 74 and thus the trial court erred 

in denying its motion to dismiss. We review a trial court’s ruling on a motion to dismiss a case 

under section 74.351 for an abuse of discretion. Am. Transitional Care Ctrs. of Tex., Inc. v. 

Palacios, 46 S.W.3d 873, 875 (Tex. 2001). A trial court abuses its discretion if its decision is 

arbitrary, unreasonable, and without reference to any guiding principles and rules. Bowie Mem’l 

Hosp. v. Wright, 79 S.W.3d 48, 52 (Tex. 2002). 

“A court shall grant a motion challenging the adequacy of an expert report only if it 

appears to the court, after hearing, that the report does not represent an objective good faith effort 

to comply with the definition of an expert report in Subsection (r)(6).” TEX. CIV. PRAC. & REM.

CODE ANN. § 74.351(l) (West 2008). If a trial court fails to analyze or apply the law correctly, it 

has abused its discretion. Jorgensen v. Tex. MedClinic, 327 S.W.3d 285, 287 (Tex. App.—San 

Antonio 2010, no pet.).

EXPERT QUALIFICATION

In its first issue on appeal, Pleasanton South asserts Dr. Zeitlin was not qualified to 

render an expert report on the liability of a nursing home facility such as Pleasanton South. 

Specifically, Pleasanton South argues Dr. Zeitlin cannot be qualified because he is a “Regional 

Director of Cosmetic and Weight Loss Centers of America,” and “he is not a nurse, has never 

practiced as a nurse, has never taken nursing courses, does not teach nursing students, and has 
04-12-00551-CV

- 4 -

never published or researched on any matters dealing with the practice of nursing.” Therefore, 

Pleasanton South concludes, Dr. Zeitlin is not qualified to offer opinions related to nursing home 

nurses, nursing home management, nursing home administration, or nursing home care or 

operations. 

A person may qualify as an expert witness on the issue of whether a health care provider 

departed from accepted standards of care only if the person (1) is practicing health care in a field 

of practice that involves the same type of care or treatment as that delivered by the defendant 

health care provider; (2) has knowledge of accepted standards of care for health care providers 

for the diagnosis, care, or treatment of the illness, injury, or condition involved in the claim; and 

(3) is qualified on the basis of training or experience to offer an expert opinion regarding those 

accepted standards of health care. TEX. CIV. PRAC. & REM. CODE § 74.402(b). 

Pleasanton South argues that because Dr. Zeitlin is the “Regional Director of Cosmetic 

and Weight Loss Centers of America” he cannot be qualified. However, a closer read of Dr. 

Zeitlin’s curriculum vitae demonstrates not only is he the Regional Director in that capacity, but 

he also currently serves as Regional Medical Director for Travelers Medical Center as well as the 

Center Medical Director for Talecris Plasma Services. Additionally, Dr. Zeitlin currently has 

hospital staff appointments at six area hospitals. Dr. Zeitlin states in his report: “I am actively 

practicing medicine and rendering medical care services relevant to the issues presented in Billy 

Joe Pennington’s claim which includes the prevention and treatment and care of geriatric patients 

who present signs of dementia and exhibit signs of being a fall risk.”

Dr. Zeitlin’s curriculum vitae also demonstrates that he is certified by the American 

Board of Family Practice and has his certification in geriatric medicine. Since 2003, Dr. Zeitlin 

has served as the chairman of the Geriatric Medicine Sub-Committee of the Bexar County 

Medical Society. He has also authored or co-authored multiple papers on issues pertaining to the 
04-12-00551-CV

- 5 -

elderly and has given multiple lectures on the same issue. Regarding his qualifications, Dr. 

Zeitlin states:

During the course of my career, I have served as a primary care physician 

for hospitalized and nursing home patients. I have had patients who were at a 

high risk of falling, who exhibited signs of dementia or an altered mental state, 

who were confused, and presented essentially the same type of problems as Mr. 

Pennington. I have written orders for the prevention and treatment of falls, i.e. 

fall prevention programs and I have supervised the execution of these orders by 

the RNs, LVNs, and CNAs who were assigned to provide the hands-on nursing 

care for my patients. I am therefore familiar with the standards of care in cases 

like these. 

Dr. Zeitlin’s curriculum vitae and report demonstrate he is actively practicing medicine 

involving the treatment of geriatric patients like Mr. Pennington “who present signs of dementia 

and exhibit signs of being a fall risk.” He has knowledge of the accepted standards of care for 

dealing with elderly patients with high fall risks, and has also written fall prevention orders and 

supervised the execution of those orders by nurses. Dr. Zeitlin’s curriculum vitae demonstrates 

he has the necessary training and experience to qualify him to opine on the standards of care 

regarding the treatment of elderly patients. Accordingly, we conclude Dr. Zeitlin was qualified 

to opine on whether Pleasanton South departed from accepted standards of care.

FAIR SUMMARY

In its second issue on appeal, Pleasanton South contends Dr. Zeitlin’s report was not a 

fair summary because it was deficient as to standard of care and breach, and deficient as to 

causation. Pleasanton South argues the trial court, therefore, abused its discretion in denying 

Pleasanton South’s motion to dismiss. 

Section 74.351(r)(6) requires an “expert report” to contain the expert’s opinions as of the 

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

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

relationship between that failure and the injury, harm, or damages claimed. TEX. CIV. PRAC. &
04-12-00551-CV

- 6 -

REM. CODE § 74.351(r)(6). A report need not marshal all the plaintiff’s proof, but it must include 

the expert’s opinion on each of the elements identified in section 74.351(r)(6). Palacios, 46 

S.W.3d at 878–79 (citing Hart v. Wright, 16 S.W.3d 872, 877 (Tex. App.—Fort Worth 2000, pet. 

denied)).

In order to be considered a good-faith effort to provide a fair summary of an expert’s 

opinions, an expert report must discuss the standard of care, breach, and causation with sufficient 

specificity to (1) inform the defendant of the conduct the plaintiff has called into question, and 

(2) provide a basis for the trial court to conclude the claims have merit. Palacios, 46 S.W.3d at 

879. A report with mere conclusions does not represent a good-faith effort to provide a fair 

summary and is thus deficient for failing to comply with the statutory requirements. See id. To 

go beyond mere conclusions, an expert must explain the basis of his statements and link his 

conclusions to the facts. Bowie, 79 S.W.3d at 52. As to causation, the expert must explain, to a 

reasonable degree, how and why the breach caused the injury based on the facts presented. 

Jelinek v. Casas, 328 S.W.3d 526, 539–40 (Tex. 2010). 

In his report, Dr. Zeitlin sets out the standard of care owed by Pleasanton South and the 

breach thereof. Dr. Zeitlin opines, in relevant part, that the “minimum standards of care” 

applicable to Pleasanton South included, “[t]raining and supervising its nursing personnel to 

ensure that they follow the nursing interventions for fall precautions in the nursing care plan and 

the recommendations of other disciplines,” and “[t]raining and supervising its nursing personnel 

to ensure that they follow physician’s orders regarding fall precautions.” 

Mr. Pennington’s physician had orders in place that included instructions to the nursing 

staff to use and monitor a “tab alarm” and to ensure Mr. Pennington wore proper footwear to 

prevent falls. Dr. Zeitlin’s report states that upon review of the records provided him “there were 

no mentions of the nursing staff responding to the tab alarms when Mr. Pennington fell . . . 
04-12-00551-CV

- 7 -

rather, Mr. Pennington was discovered yelling for help.” In reference to the physician’s orders to 

ensure Mr. Pennington wore proper footwear, Dr. Zeitlin’s report states his review of Mr. 

Pennington’s medical records showed that out of the four falls Mr. Pennington suffered at 

Pleasanton South he was twice noted as wearing socks and twice noted as not wearing any 

footwear. After the fourth fall, for which Mr. Pennington was transferred to a medical center for 

evaluation and it was determined he had a fractured hip, Dr. Zeitlin states that his review of the 

records show that Mr. Pennington was noted as not wearing any footwear when he was 

discovered. 

Dr. Zeitlin states that the failure of the nursing staff to monitor the tab alarm and to 

ensure Mr. Pennington had on proper footwear was a breach of the standard of care: “[Pleasanton 

South] failed to adequately train and supervise its nursing personnel to prevent a fall from 

occurring as demonstrated by the fact that the nursing personnel failed to follow the care plan 

and the physician’s orders which collectively required Mr. Pennington’s tab alarm be in place 

and monitored and ensuring that Mr. Pennington was wearing proper footwear.”

Regarding causation, Dr. Zeitlin states:

[I]n reasonable medical probability, the failure of Retama Manor 

Pleasanton South Nursing Center to comply with the minimum standard of care is 

a proximate cause of the fall, traumatic injuries, including the hip fracture, and 

resulting death of Mr. Pennington. If Retama Manor Pleasanton South Nursing 

Center had followed the full prevention interventions in the nursing care plan and 

physician’s orders, then, in reasonable probability, Mr. Pennington would not 

have fallen and sustained the hip fracture. 

Dr. Zeitlin went beyond mere conclusions by linking his conclusions to the facts: If the 

nursing staff of Pleasanton South had not breached the standard of care and had instead followed 

the fall preventions measures by ensuring Mr. Pennington wore proper footwear and by 

monitoring the “tab alarm” the physician ordered, Mr. Pennington would not have suffered a fall 

that required surgery to repair a hip fracture—a surgery from which he never recovered. The 
04-12-00551-CV

- 8 -

report explained, to a reasonable degree, how Pleasanton South’s breach caused Mr. 

Pennington’s injuries, resulting in his death. Dr. Zeitlin’s report, therefore, constitutes a goodfaith effort to provide a fair summary because it both informs Pleasanton South of the conduct 

the plaintiff has called into question, and provides a basis for the trial court to conclude the 

claims have merit. Palacios, 46 S.W.3d at 879. Accordingly, we conclude Dr. Zeitlin’s report 

was sufficient as to standard of care, breach, and causation.

CONCLUSION

We overrule Pleasanton South’s issues on appeal and we conclude the trial court did not 

abuse its discretion in denying Pleasanton South’s motion to dismiss. We affirm the trial court’s 

judgment.

Sandee Bryan Marion, Justice