In the

Court of Appeals

Second Appellate District of Texas

at Fort Worth ___________________________

No. 02-19-00460-CV

___________________________

On Appeal from the 17th District Court

Tarrant County, Texas

Trial Court No. 017-307531-19

Before Sudderth, C.J.; Birdwell and Womack, JJ.

Memorandum Opinion by Justice Birdwell

THOMAS ALEXANDER MITCHELL, M.D., Appellant

V.

LESA SWANSON, Appellee
2

MEMORANDUM OPINION

Appellant Dr. Thomas Alexander Mitchell appeals the denial of his motion to 

dismiss appellee Lesa Swanson’s health care liability claims. Appellant cites deficiencies 

in Swanson’s expert reports—in particular, that they lack any explanation of how 

Appellant caused Swanson’s injuries.

We agree that the reports are deficient, and so we hold that the trial court abused 

its discretion by overruling Appellant’s motion. But Swanson’s reports are not so 

devoid of substance that they constitute no reports at all, and they are not patently 

incurable either. Swanson is therefore entitled to remand, rather than outright dismissal 

of her claims, so that the trial court may consider whether to grant a thirty-day extension 

to cure the deficiencies.

I. BACKGROUND

In 2016, Swanson was having pain in her lower back and legs, so she consulted 

Dr. Anil Kumar Kesani.1

 Dr. Kesani diagnosed her with various back conditions in the 

L4-5 and L5-S1 regions, and they discussed surgical and nonsurgical options for 

treatment. Dr. Kesani prescribed physical therapy and medication, and he 

recommended that she return to revisit the issue.

1

The facts recited are in accordance with those alleged in Swanson’s petition and 

expert reports. See Abshire v. Christus Health Se. Tex., 563 S.W.3d 219, 221 n.1 (Tex. 

2018) (per curiam).
3

Swanson returned six months later without improvement. Dr. Kesani suggested 

that she consider surgery. Ultimately, Swanson agreed to undergo a combination of 

two spinal-fusion surgeries. Dr. Kesani performed the first surgery without incident.

However, the second surgery—the placement of fixating screws and rods—

allegedly went awry: Dr. Kesani misplaced some of the screws so badly that they were 

drilled directly into the nerves in the center of the spine. Swanson alleged that upon 

waking from anesthesia, she immediately reported numbness, weakness, and extreme 

pain. According to Swanson, Dr. Kesani did not tell her the screws were misplaced, 

and he instead told her that any complications were due to her abnormal spinal 

anatomy. The next day, Dr. Kesani performed surgery to remove two of the screws 

and reposition others, but according to Swanson, her symptoms were not remedied.

Swanson filed suit against Dr. Kesani in 2019, alleging that his medical negligence 

left her with extensive, permanent injuries. In support of her claims against Dr. Kesani, 

Swanson submitted a seventeen-page expert report authored by Dr. Jerry Bob 

Blacklock.

She later amended her petition to allege claims against Appellant, a neurologist 

who participated in her second surgery remotely, and Dustin McHalffey, a technologist 

who assisted Appellant. To more specifically address Appellant’s conduct, Swanson 

submitted an expert report authored by Dr. Amit Verma, in which he discussed his 

credentials and Appellant’s role in Swanson’s second surgery. Swanson’s claims against 

Appellant and her expert reports are the subject of this appeal.
4

Appellant’s role, Swanson’s petition explained, was to monitor her neurological 

condition during the surgery using various techniques, including electromyography or 

“EMG,” and to report any concerning changes in her readings in order to avoid 

damaging Swanson’s nerves. According to the petition, Appellant’s entries in the 

medical records stated that all of Swanson’s neurological readings during the procedure 

were normal, but the fact that three screws went directly into her spinal nerves 

suggested that her readings could not have been normal. Thus, Swanson alleged that 

Appellant was negligent in monitoring and assessing her condition, in failing to notify 

the surgeon of changes in her condition to ensure that she received appropriate care, 

and in failing to properly document and preserve data relating to the neuromonitoring 

process.

Appellant objected to both of Swanson’s expert reports and moved to dismiss 

her claims against him. The trial court overruled his objections and denied his motion. 

This appeal followed.2

II. ADEQUACY OF THE REPORT

Appellant’s first, second, third, and fifth issues all share the same theme: that 

Swanson’s reports are inadequate. The first and second issues focus on inadequacies in 

Dr. Verma’s report—namely, that Dr. Verma’s report fails to adequately describe the 

2

The Legislature has provided for interlocutory appeal of the denial of a motion 

to dismiss under Texas Civil Practice and Remedies Code Section 74.351(b). Tex. Civ. 

Prac. & Rem. Code Ann. § 51.014(a)(9). We therefore have jurisdiction to hear this 

appeal.
5

standard of care that applied to Appellant and how Appellant’s breach of that standard 

caused Swanson’s injuries. In his third issue, Appellant contends that Dr. Blacklock’s 

report does not cure either of these inadequacies, because Dr. Blacklock’s report was 

primarily concerned with Dr. Kesani’s alleged negligence rather than Appellant’s. And 

his fifth issue is a summation, in which he argues that his motion to dismiss should have 

been granted.

A. Standard of Review and Applicable Law

The Texas Medical Liability Act (the Act) requires health care liability claimants 

to serve an expert report upon each defendant not later than 120 days after that 

defendant’s answer is filed. Tex. Civ. Prac. & Rem. Code Ann. § 74.351(a). An expert 

report is sufficient under the Act if it provides a fair summary of the expert’s opinions 

regarding applicable standards of care, the manner in which the care rendered failed to 

meet the standards, and the causal relationship between the failure and the injury. Id.

§ 74.351(r)(6). The trial court need only find that the report constitutes a “good faith 

effort” to comply with the Act’s requirements. Id. § 74.351(l). An expert report 

demonstrates a “good faith effort” when it “(1) informs the defendant of the specific 

conduct called into question and (2) provides a basis for the trial court to conclude the 

claims have merit.” Abshire v. Christus Health Se. Tex., 563 S.W.3d 219, 223 (Tex. 2018) 

(per curiam) (cleaned up) (quoting Baty v. Futrell, 543 S.W.3d 689, 693–94 (Tex. 2018)). 

A report need not marshal all the claimant’s proof, but a report that merely states the 
6

expert’s conclusions about the standard of care, breach, and causation is insufficient. 

Id.

We review the denial of a motion to dismiss based on the adequacy of an expert 

report for an abuse of discretion. Id. In analyzing a report’s sufficiency, we consider 

only the information contained within the four corners of the report. Id. A reviewing 

court may not fill gaps in a report by drawing inferences or guessing as to what the 

expert meant or intended. Moore v. Gatica, 269 S.W.3d 134, 140 (Tex. App.—Fort Worth 

2008, pet. denied). However, one expert need not address the standard of care, breach, 

and causation; multiple expert reports may be read together to determine whether these 

requirements have been met. Abshire, 563 S.W.3d at 223 (citing Tex. Civ. Prac. & Rem. 

Code Ann. § 74.351(i)).

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

“specific information about what the defendant should have done differently.” Id. at 

226 (quoting Am. Transitional Care Ctrs. of Tex., Inc. v. Palacios, 46 S.W.3d 873, 880 (Tex. 

2001)). Ergo, related to the standard of care and breach, the expert report must explain 

what the health care provider should have done under the circumstances and what he 

did instead. Palacios, 46 S.W.3d at 880.

The causation element requires an expert to explain how and why the alleged 

negligence caused the injury in question. Abshire, 563 S.W.3d at 224. The report need 

not use the words “proximate cause,” “foreseeability,” or “cause in fact” because a 

report’s adequacy does not depend on whether the expert uses any particular magic 
7

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

2017). But the expert report must make a good-faith effort to explain, factually, how 

proximate cause is going to be proven. Id. Proximate cause has two components: 

(1) foreseeability and (2) cause-in-fact. Id. 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, the harm would not have 

occurred. Id.

B. Discussion

By way of background, Dr. Verma’s and Dr. Blacklock’s reports together offer a 

clear picture of Swanson’s condition, the procedures she underwent, and Appellant’s 

role in the case. According to Dr. Blacklock’s report, Swanson was diagnosed with 

degeneration of the spine due to wear and tear (spondylosis), a chronic stress fracture 

in one of her vertebral bones that led to instability (spondylolysis), and a slippage of the 

disc that caused radiating nerve pain (spondylolisthesis). To treat her condition, 

Dr. Kesani performed a two-stage spinal-fusion procedure. On April 25, 2017, 

Dr. Kesani successfully performed the first surgery, an anterior discectomy and fusion 

at L4-5 and L5-S1, in which he placed synthetic cages packed with donor bone into the 

two disc spaces and attached metal fixation plates to the vertebral bodies. On April 27, 

2017, Dr. Kesani performed the second stage, in which he was to drill screws into the 

pedicle bones on the sides of the vertebrae and then connect those screws to rods 

running parallel to the spinal column. The result was meant to be a rigid metal structure 
8

that held the bones in place so that the fusion could occur. But Dr. Blacklock explained 

that Dr. Kesani misplaced some of the screws so badly that they did not touch the 

pedicle bones at all; instead, he placed some screws far off to the side, and he drilled 

others directly into the nerves in the center of the spine.

Dr. Verma’s report stated that Appellant’s function during this second procedure 

was to oversee monitoring of Swanson’s neurological signals to alert Dr. Kesani of any 

alarming changes which could indicate that the surgery was damaging Swanson’s nerves. 

To that end, Appellant monitored Swanson’s neurological condition using 

“somatosensory evoked potentials, H-reflex, EEG, EMG [and] train of four” 

techniques.

Dr. Verma’s report also briefly described how Appellant breached the standard 

of care. Appellant’s entries in the medical records stated that some of the 

neuromonitoring showed normal results with no dramatic changes during the 

procedure, but other monitoring results were missing—specifically, the records lacked 

“the printouts showing absence of stimulated EMG below the thresholds that are 

mentioned in the report or the printouts of the train of 4 responses showing the 

presence of actual twitches.” In Dr. Verma’s view, Appellant’s account that all was well 

in the neuromonitoring was most likely inaccurate: as Dr. Verma saw it, the fact that 

Dr. Kesani drilled multiple screws directly into Swanson’s spinal nerve roots would 

have likely produced significant changes in the neuromonitoring results, and it was 

“highly improbable” that no changes would be shown on the monitoring. Dr. Verma 
9

believed that Appellant breached the standard of care by not alerting Dr. Kesani that 

there were significant changes in the neuromonitoring. Dr. Verma thought that 

Appellant also breached the standard of care by “fail[ing] to produce these waveforms,” 

referring to Appellant’s failure to produce the missing neuromonitoring results.

However, Dr. Verma’s report lacks any specific discussion concerning what the 

standard of care required. We are left to work backward from Dr. Verma’s assertion 

that Appellant breached the standard of care by not doing certain things; the report 

implies that, apparently, the standard of care required those things in the first place. See 

Scoresby v. Santillan, 346 S.W.3d 546, 557 (Tex. 2011) (“For example, [the report] did not 

state the standard of care but only implied that it was inconsistent with the Physicians’ 

conduct.”). Thus, strictly speaking, while Dr. Verma explains what Appellant did not 

do (in terms of breach), Dr. Verma does not explain what Appellant should have done 

to begin with (in terms of the standard of care). See Palacios, 46 S.W.3d at 880.

Furthermore, completely absent from the report is any mention of how 

Appellant’s alleged breaches caused harm to Swanson. Dr. Verma simply discusses the 

alleged breaches and then ends his report. He does not explain, for example, how 

Appellant’s failure to report changes in the neuromonitoring led to Swanson’s harm. 

We do not require an expert to incant the magic phrase “proximate cause,” see Zamarripa, 

526 S.W.3d at 460, but we do require him to draw a line, in the form of factual 

allegations, between the physician’s conduct and the plaintiff’s injury, see Abshire, 563 

S.W.3d at 225. That line is absent from Dr. Verma’s report.
10

Swanson contends that any gaps in Dr. Verma’s report can be resolved by 

reading it in conjunction with Dr. Blacklock’s report. See, e.g., Miller v. JSC Lake 

Highlands Operations, LP, 536 S.W.3d 510, 515 (Tex. 2017) (per curiam) (holding that one 

report remedied potential deficiencies in another). We disagree. Dr. Blacklock’s report 

does not aid Swanson’s case against Appellant with respect to the standard of care, 

breach, or causation. Indeed, Dr. Blacklock’s report detracts from her case on the 

standard of care. According to that report, the standard of care did not require any of 

the neuromonitoring that Appellant performed on Swanson:

There were four types of neuromonitoring used in the surgeries described 

in this report. Only one of these four was actually of any potential value. 

That was EMG, electromyography, but this is just an adjunct that is 

sometimes useful but sometimes not. . . . The standard of care does not 

require the use of neuromonitoring for the type of surgery performed on 

Ms[.] Swanson.

Dr. Blacklock later reiterated that EMG monitoring was “purely adjunctive” and that 

while it is “potentially useful” in the typical case, it was “useless” in Swanson’s case. He 

continued, “It would have not been below the standard of care to not use it at all in this 

case. Dr[.] Kesani was entirely responsible for placing the screws correctly and for 

verifying this with imaging, regardless of what the EMG showed or did not show.” 

Dr. Blacklock repeated this thought yet again toward the end of the report, stating, “It 

would not be below the standard to not use neuromonitoring in this case. It was of no 

use in this case.”
11

Nor does Dr. Blacklock’s report add anything to Swanson’s argument that 

Appellant’s breaches caused her injuries. In the section of his report labeled 

“Causation,” Dr. Blacklock opined that Swanson’s injuries were caused by Dr. Kesani’s 

actions alone: his negligent placement of the screws, his failure to immediately perform 

tests and recognize the problem when Swanson presented with extreme pain, his delay 

in performing corrective surgery, and the damaging effects of the corrective surgeries 

that he did eventually perform. Dr. Blacklock did not mention Appellant or his alleged 

breaches as potential causes.

With only an implied opinion on the standard of care, a brief opinion on breach,

and no opinion at all on causation, Swanson’s case somewhat resembles Intra-Op 

Monitoring Services, LLC v. Causey, No. 09-12-00050-CV, 2012 WL 2849281, at *3 (Tex. 

App.—Beaumont July 12, 2012, no pet.) (mem. op.). In that case, a doctor performed 

a gland-removal surgery while another physician remotely conducted neuromonitoring 

to locate and avoid a facial nerve, and the surgeon nevertheless accidentally cut the 

nerve. Id. at *1. The injured party sued the neuromonitoring physician, but in her 

expert report, the plaintiff offered only a cursory opinion on causation, stating a onesentence conclusion that the breaches related to neuromonitoring had caused the nerve 

to be cut. Id. at *2. The court held that because the expert failed to explain his causation 
12

opinion with factual specificity, the report did not meet the requirements of the Act.3

 

See id. at *3–4.

A similar conclusion is called for here. Because the reports do not adequately 

address the required elements, they are deficient, and the trial court abused its discretion 

by overruling Appellant’s motion. See Tex. Civ. Prac. & Rem. Code Ann. § 74.351(r)(6); 

Abshire, 563 S.W.3d at 223. We sustain Appellant’s first, second, third, and fifth issues.

III. OPPORTUNITY TO CURE

We next consider Appellant’s fourth issue, in which he maintains that the 

inadequacies in Swanson’s reports are so complete that she effectively filed no report 

at all, such that she should be denied the opportunity to amend her reports.

The Act distinguishes between situations where a report is timely served but 

deficient and those where no report is served. Taton v. Taylor, No. 02-18-00373-CV, 

3

Nonetheless, the court ordered a remand rather than a dismissal. Causey, 2012 

WL 2849281, at *4. The court concluded that remand was appropriate because the 

report’s deficiencies were not patently incurable, because the report implicated the 

defendants’ conduct, and because the plaintiff had served the report by the statutory 

deadline. Id.

On remand, the plaintiff served a supplemental report that outlined at least seven 

specific steps that were required by the standard of care and factually explained why the 

failure to take those steps caused the plaintiff’s injury: by mishandling the 

neuromonitoring and misstating its results, the monitoring physician misled the surgeon 

into believing there was no risk in making certain incisions, and those incisions severed 

the nerve. Intra-Op Monitoring Servs., LLC v. Causey, No. 09-12-00597-CV, 2013 WL 

1790875, at *3–4 (Tex. App.—Beaumont Apr. 25, 2013, no pet.) (mem. op.). In a

subsequent appeal, the Beaumont court held that this specific, factual explanation was 

sufficient to satisfy the Act’s dictates. Id. at *4.
13

2019 WL 2635568, at *8 (Tex. App.—Fort Worth June 27, 2019, no pet.) (mem. op.). 

If a report is timely served but deficient, the trial court may grant a thirty-day extension 

to cure the deficiency. Id.

“In distinguishing between a deficient report and no report, we are guided by the 

supreme court’s decision in Scoresby . . . .” Id. (citing Scoresby, 346 S.W.3d at 546). Under 

Scoresby, a thirty-day extension to cure deficiencies in an expert report may be granted if 

the report is served by the statutory deadline, if it contains the opinion of an individual 

with expertise that the claim has merit, and if the defendant’s conduct is implicated. 

Scoresby, 346 S.W.3d at 557. “[T]his is a minimal standard,” id., and thus we have held 

that “[w]hen we conclude that an expert report is deficient,” we generally “do not 

render” judgment; instead, we usually “remand for the trial court to consider whether 

to grant a thirty-day extension,” UHP, LP v. Krella, No. 02-19-00136-CV, 2019 WL 

3756203, at *1 (Tex. App.—Fort Worth Aug. 8, 2019, no pet.) (per curiam) (mem. op.); 

see Mangin v. Wendt, 480 S.W.3d 701, 706 (Tex. App.—Houston [1st Dist.] 2015, no pet.) 

(“[W]hen the court of appeals finds deficient a report that the trial court considered 

adequate, the plaintiff should be afforded one 30-day extension to cure the deficiency, 

if possible.” (internal quotation omitted)); Rosemond v. Al–Lahiq, 362 S.W.3d 830, 840 

(Tex. App.—Houston [14th Dist.] 2012, pet. denied) (“[M]ost purported expert reports 

are likely to fall into the deficient-report category and be eligible for a thirty-day 

extension . . . .”). The Scoresby court held that because the plaintiff’s report satisfied this 

minimal standard, the plaintiff was entitled to an opportunity to cure, even though the 
14

report did not state the standard of care but only implied that the standard was 

inconsistent with the physicians’ conduct, and even though there were potential 

problems with the expert’s qualifications as well. 346 S.W.3d at 557.

We arrive at a similar disposition. As in Scoresby, Dr. Verma’s report addressed 

the standard of care only through implication, if at all, and it suffered other problems 

as well. See id. Nonetheless, Swanson satisfies Scoresby’s three-part test. Swanson timely 

served Dr. Verma’s report just twenty-one days after Appellant filed his answer. See

Tex. Civ. Prac. & Rem. Code Ann. § 74.351(a). Dr. Verma’s report and curriculum 

vitae4 set out his qualifications and expertise as they were relevant to neuromonitoring: 

he was the director of clinical neurophysiology at Houston Methodist Hospital, he 

oversaw the hospital’s neuromonitoring program, and he had personally supervised 

thousands of cases since his graduation from Duke’s medical school in 1999. And 

Dr. Verma’s report suggested an opinion that Swanson’s claim had merit and implicated 

Appellant’s conduct by criticizing the neuromonitoring he performed, the results that 

he did and did not record, and his failure to communicate the significant changes in 

Swanson’s neurological readings to Dr. Kesani. Scoresby therefore instructs that despite 

the report’s deficiencies, remand is in order. See 346 S.W.3d at 557; Hernandez v. Christus 

Spohn Health Sys. Corp., No. 04-14-00091-CV, 2015 WL 704721, at *4 (Tex. App.—

4

When the question of adequacy hinges on the expert’s qualifications, the court 

also considers what is within the four corners of the expert’s curriculum vitae. See

Columbia N. Hills Hosp. Subsidiary, L.P. v. Alvarez, 382 S.W.3d 619, 626 (Tex. App.—

Fort Worth 2012, no pet.).
15

San Antonio Feb. 18, 2015, no pet.) (mem. op.) (holding that despite a report’s 

complete failure to address causation, among other deficiencies, remand was required 

because the report satisfied Scoresby’s three-prong test); Sanchez v. Martin, 378 S.W.3d 

581, 597 (Tex. App.—Dallas 2012, no pet.) (ordering remand because the report 

satisfied Scoresby, even though plaintiff’s report failed to address the standard of care); 

cf. Taton, 2019 WL 2635568, at *9 (collecting cases that genuinely failed the Scoresby test).

Another consideration is whether curing the report’s deficiencies appears to be 

impossible. The goal of the Act’s expert-report requirement is to deter frivolous claims, 

and an inadequate expert report does not indicate a frivolous claim if the report’s 

deficiencies are readily curable. Scoresby, 346 S.W.3d at 556. In Zamarripa, our supreme 

court determined that remand was appropriate because the court could not say that “it 

would be impossible” to cure the deficiencies. 526 S.W.3d at 461; see Jepson v. Wyrick, 

No. 02-18-00148-CV, 2019 WL 2042303, at *11 (Tex. App.—Fort Worth May 9, 2019, 

no pet.) (mem. op.) (ordering remand because “we cannot say that it is impossible for 

the deficiencies in the report to be cured”); Methodist Hosp. v. Addison, 574 S.W.3d 490, 

506 (Tex. App.—Houston [14th Dist.] 2018, no pet.) (same). Based on the content of 

Dr. Verma’s report, we cannot conclude that its defects are patently incurable, which 

further counsels in favor of remand.

We will therefore remand this case for the trial court to consider whether to grant 

Swanson an extension. “The trial court should err on the side of granting additional 

time”; the court “should be lenient in granting thirty-day extensions and must do so if 
16

deficiencies in an expert report can be cured within the thirty-day period.” Scoresby, 346 

S.W.3d at 549, 554. We overrule Appellant’s fourth issue.

IV. CONCLUSION

We reverse the trial court’s order denying Appellant’s motion and remand this 

case for further proceedings in accordance with this opinion. See Tex. R. App. P. 

43.2(d).

/s/ Wade Birdwell

Wade Birdwell

Justice

Delivered: October 15, 2020