Reversed and Remanded, and Opinion filed November 22, 2011.

In The

Fourteenth Court of Appeals

NO. 14-11-00050-CV

KINGWOOD PINES HOSPITAL, LLC, HORIZON HEALTH CORPORATION, 

PSYCHIATRIC SOLUTIONS, INC. AND YOLANDA BASSETT, 

Appellants

V.

R. GOMEZ, INDIVIDUALLY AND A/N/F OF V.G., Appellee

On Appeal from the 127th District Court

Harris County, Texas

Trial Court Cause No. 2010-11961

O P I N I O N

This is a health care liability case governed by the Medical Liability Act.

1

 

Appellants bring an interlocutory appeal from the trial court’s order denying appellants’ 

motions to dismiss based on the asserted inadequacy of an expert report served by 

appellee R. Gomez, individually and as next friend of her daughter V.G. We reverse the 

trial court’s order denying the motions to dismiss and remand this cause to the trial court 

 

1 Tex. Civ. Prac. & Rem. Code §§ 74.001-.507. All references to the Act are to these provisions.
2

to consider whether a 30-day extension of the deadline for serving the report to allow 

Gomez to address deficiencies is appropriate.

Background

V.G., a minor, was admitted into Kingwood Pines Hospital for evaluation of a 

psychiatric condition relating to her past history of being raped and subjected to sexual 

molestation in two separate incidents. As alleged, while in the care of Kingwood Pines 

Hospital, V.G. was molested by another female patient.2 According to Gomez’s expert, 

Dr. Mark Blotcky, Gomez asserted in an affidavit that hospital staff knew the other 

patient was aggressive, had been sexually abused, and had sexually molested others, but 

allowed the two patients to share a room and, accordingly, did not prevent the other 

patient from having physical access to V.G.

3

 

Gomez filed suit on February 24, 2010, against appellants and others,4alleging 

that they failed to provide a reasonably safe environment for V.G. and the other patient 

by allowing them to share a room. Gomez asserted claims against appellants for 

negligence, aiding and abetting assault, assisting or encouraging assault, and medical 

malpractice. She seeks actual and special damages. 

On May 28, 2010, Gomez served an expert report and curriculum vitae prepared 

by Dr. Mark Blotcky, a board certified psychiatrist, in support of her claims. After 

appellants objected to the adequacy of the report, Gomez served a supplemental expert 

 

2 The other patient, also a minor, allegedly got into bed with V.G., ―made out with her,‖ touched 

her private parts, left visual marks (hickeys) on her, and threatened to beat her up if she told anyone.

3 The affidavit is not in the record, but the expert reported prepared by Dr. Mark Blotcky 

describes the affidavit and states that Blotcky relied on the affidavit in reaching his conclusions.

4 Gomez sued Kingwood Pines Hospital, LLC; Horizon Health Corporation; Psychiatric 

Solutions, Inc.; Psychiatric Solutions, P.C.; Fernando Guillermo Torres, M.D. and Yolanda Bassett. 

Gomez alleged that Kingwood Pines Hospital is owned by the other corporate defendants. Only 

Kingwood Pines Hospital, Horizon Health Corporation, Psychiatric Solutions, Inc., and Bassett filed this 

appeal.
3

report.5 Appellants objected to the adequacy of the supplemental report on the same 

grounds as their former objections and moved to dismiss the claims with prejudice 

pursuant to the Act.6 See Tex. Civ. Prac. & Rem. Code § 74.351(b). Appellants 

contended that the initial report was inadequate because Blotcky (1) did not establish his 

qualifications to opine regarding the standards of care for the admission, treatment, and 

care of patients in a psychiatric facility; (2) failed to articulate a fair summary of his 

opinions regarding the applicable standards of care, the manner in which those standards 

were breached by appellants, and the causal relationship between any breach and the 

injury and damages claimed; and (3) attempted to apply a single standard of care to 

multiple health care providers. After considering appellants’ challenges to the expert 

report and supplemental report and hearing arguments of the parties, the trial court 

entered an order denying appellants’ motions to dismiss.

Discussion

In two issues, appellants contend the trial court abused its discretion in denying 

appellants’ motions to dismiss because the expert and supplemental reports neither

establish Blotcky’s qualifications to render an opinion regarding licensed professional 

counselors, nursing staff, and hospital personnel nor include a fair summary of Blotcky’s 

opinions in connection with the statutory elements required by section 74.351—the 

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

standards, and the causal relationship between the failure and the injury, harm, or 

damages claimed. See id. Gomez contends the reports meet the standards required by

section 74.351, but even if they do not, an expert report was not required because the 

doctrine of res ipsa loquitur applies.

 

5 The supplemental report was served on June 24, 2010, the 120th day after Gomez filed suit, so 

both reports were timely under the Act. See Tex. Civ. Prac. & Rem. Code § 74.351(a).

6 Kingwood Pines Hospital, Horizon Health Corporation, and Psychiatric Solutions, Inc. jointly 

filed their objections and motion to dismiss, and Bassett filed her objections and motion to dismiss 

separately. All of appellants’ objections were based on the same grounds.
4

A. Standard of Review and Applicable Law

The Act entitles a defendant to dismissal of a health care liability claim if he is not 

served with an expert report showing that the claim has merit within 120 days of the date 

suit was filed. Tex. Civ. Prac. & Rem. Code § 74.351(b); Scoresby v. Santillan, 346 

S.W.3d 546, 549 (Tex. 2011). The trial court’s refusal to dismiss may be immediately 

appealed. Tex. Civ. Prac. & Rem. Code § 51.014(a)(9); Scoresby, 346 S.W.3d at 549. 

We review a trial court’s denial of a motion to dismiss under section 74.351 for abuse of 

discretion. Jelinek v. Casas, 328 S.W.3d 526, 539 (Tex. 2010); Am. Transitional Care 

Ctrs. of Tex., Inc. v. Palacios, 46 S.W. 3d 873, 875, 878 (Tex. 2001); Group v. Vicento, 

164 S.W.3d 724, 727 (Tex. App.—Houston [14th Dist.] 2005, pet. denied). Similarly, we 

review a trial court’s determination of whether a physician is qualified to opine in a 

health care liability case under an abuse of discretion standard. Larson v. Downing, 197 

S.W.3d 303, 304–05 (Tex. 2006) (per curiam); Mem’l Hermann Healthcare Sys. v. 

Burrell, 230 S.W.3d 755, 757 (Tex. App.—Houston [14th Dist.] 2007, no pet.). A trial 

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

reference to any guiding rules or principles. Larson, 197 S.W.3d at 304–05; see also 

Jelinek, 328 S.W.3d at 539.

The Act specifies requirements for an adequate report and mandates ―an objective 

good faith effort to comply‖ with the requirements. Tex. Civ. Prac. & Rem. Code 

§ 74.351(l), (r)(6); Scoresby, 346 S.W.3d at 549. It also authorizes a trial court to give a 

plaintiff who meets the 120-day deadline an additional 30 days to cure any deficiencies in 

the report. Tex. Civ. Prac. & Rem. Code § 74.351(c); Scoresby, 346 S.W.3d at 549. The 

trial court should err on the side of granting the extension and must grant it if the 

deficiencies are curable. Scoresby, 346 S.W.3d at 549. When determining if a good faith 

effort has been made, the trial court is limited to the four corners of the report and cannot 

consider extrinsic evidence. See Jelinek, 328 S.W.3d at 539; Palacios, 46 S.W. 3d at 

878.
5

An expert must establish that he is qualified to provide an acceptable report. Tex. 

Civ. Prac. & Rem. Code § 74.351(r)(5)(B). Qualifications must appear in the expert 

report and cannot be inferred. Baylor Coll. of Med. v. Pokluda, 283 S.W.3d 110, 117 

(Tex. App.—Houston [14th Dist.] 2009, no pet.). Additionally, an expert report must 

provide a fair summary of the expert’s opinions regarding (1) the applicable standard of 

care; (2) the manner in which the care provided failed to meet that standard; and (3) the 

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

Tex. Civ. Prac. & Rem. Code § 74.351(r)(6); Palacios, 46 S.W. 3d at 879. In compliance 

with these standards, the expert report must incorporate sufficient information to inform 

the defendant of the specific conduct the plaintiff has called into question and provide a 

basis for the trial court to conclude the claims have merit. Patel v. Williams, 237 S.W.3d 

901, 904 (Tex. App.—Houston [14th Dist.] 2007, no pet.) (citing Palacios, 46 S.W. 3d at 

879). A report may not merely contain the expert’s conclusions about these elements. 

Jelinek, 328 S.W.3d at 539; Palacios, 46 S.W. 3d at 879. The expert must explain the 

basis for his statements and must link his conclusions to the facts. Jelinek, 328 S.W.3d at 

539. However, a plaintiff need not present all the evidence necessary to litigate the 

merits of his case. Palacios, 46 S.W. 3d at 879; Patel, 237 S.W.3d at 904. The report 

may be informal in that the information need not fulfill the same requirements as the 

evidence offered in a summary judgment proceeding or at trial. Palacios, 46 S.W. 3d at 

879; Patel, 237 S.W.3d at 904.

B. Dr. Blotcky’s Qualifications

Within their second issue, appellants argue that the expert and supplemental 

reports do not establish that Blotcky was qualified to render an opinion regarding a 

licensed professional counselor7or nursing staff and hospital personnel. 

To be qualified to provide opinion testimony regarding whether a health care

provider departed from the accepted standard of health care, an expert must satisfy 

 

7 Bassett is a licensed professional counselor.
6

section 74.402. See Tex. Civ. Prac. & Rem. Code § 74.351(r)(5)(B). Section 74.402 lists 

three specific qualifications an expert witness must possess to provide opinion testimony 

on how a health care provider departed from accepted standards of health care. The 

expert must:

(1) [be] 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, if the defendant health care provider is an individual, at the time 

the testimony is given or was practicing that type of health care at the time 

the claim arose;

(2) [have] 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) [be] qualified on the basis of training or experience to offer an expert 

opinion regarding those accepted standards of health care. 

Id. § 74.402(b) (emphases added).

The above emphasized terms are specifically defined in subsections (a) and (c) of 

section 74.402. ―Practicing health care‖ includes:

(1) training health care providers in the same field as the defendant health 

care provider at an accredited educational institution; or 

(2) serving as a consulting health care provider and being licensed, 

certified, or registered in the same field as the defendant health care 

provider.

Id. § 74.402(a). To determine whether an expert is ―qualified on the basis of training or 

experience,‖ a court must consider whether the expert:

(1) is certified by a licensing agency of one or more states of the United 

States or a national professional certifying agency, or has other substantial 

training or experience, in the area of health care relevant to the claim; and 

(2) is actively practicing health care in rendering health care services 

relevant to the claim.

Id. § 74.402(c). 
7

Blotcky has been a licensed physician for 40 years and has practiced psychiatry 

for almost 35 years. He also has been a clinical professor in the Department of 

Psychiatry of The University of Texas Southwestern Medical Center at Dallas for almost 

35 years. He is board certified in child and adolescent psychiatry and general psychiatry. 

When the expert report was served, he maintained a private practice, and approximately 

66% of his patients were children and adolescents.8 He previously served on the 

managing board of directors of a psychiatric hospital, was director of the hospital’s Child 

and Adolescent Psychiatry Residency Program, and clinical director of the hospital. He 

examined child psychiatrists for certification by the American Board of Psychiatry and 

Neurology for over ten years and served as Chair of the Committee for Certification of 

Child and Adolescent Psychiatry for that board.

Based on Blotcky’s education, training, and experience in treating patients

similarly situated to V.G.—an adolescent who was seeking treatment for her psychiatric 

conditions—and in working in a hospital setting, the trial court acted within its discretion 

in concluding that Blotcky is qualified to render an opinion on the standard of care at 

issue in this case. See Pokluda, 283 S.W.3d at 120. Similarly, Blotcky’s hospital 

experience qualifies him to opine on the standards of care required for nursing staff and 

hospital personnel. See Tex. Civ. Prac. & Rem. Code § 74.402(c)(2); see also Pokluda, 

283 S.W.3d at 118–19 (―The test is whether the report and curriculum vitae establish the 

witness’s knowledge, skill, experience, training, or education regarding the specific issue 

before the court that would qualify the expert to give an opinion on that particular 

subject.‖).

We hold that the trial court acted within its discretion by denying appellants’ 

motions to dismiss as to Blotcky’s qualifications, and we overrule that portion of 

appellants’ second issue attacking the expert and supplemental reports on that basis.

 

8 We assume this is still the case, but the record reflects only Blotcky’s qualifications when the 

report was served.
8

C. Standard of Care and Breach

In both issues, appellants contend that the expert and supplemental reports do not 

adequately address each element required by subsection 74.351(r)(6) (standards of care, 

breach, causation and damages) because the reports are conclusory as to each element 

and do not represent an objective good faith effort to comply with the statutory definition 

of an expert report. We first address whether the reports set forth the applicable 

standards of care and how appellants breached these standards. We conclude that they do 

not.

As set forth above, the two-fold purpose of an expert report under section 74.351 

is to inform the defendants of the specific conduct the plaintiff has called into question 

and to provide the trial court with a basis to determine whether or not the plaintiff’s 

claims have merit. Kelly v. Rendon, 255 S.W.3d 665, 679 (Tex. App.—Houston [14th 

Dist.] 2008, no pet.). A report that merely states the expert’s conclusions about the 

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

S.W.3d at 879. Rather, the expert must explain the basis of his statements to link his 

conclusions to the facts. Jelinek, 328 S.W.3d at 539; see also Earle v. Ratliff, 998 

S.W.2d 882, 890 (Tex. 1999) (―An expert’s simple ipse dixit is insufficient to establish a 

matter; rather, the expert must explain the basis of his statements to link his conclusions 

to the facts.‖); Davis v. Spring Branch Med. Ctr., 171 S.W.3d 400, 406 (Tex. App.—

Houston [14th Dist.] 2005, no pet.) (―[T]he expert report has to set out, in nonconclusory 

language, the expert’s opinion about [the] three [statutorily required] elements of the 

claim.‖).

Standard of care is defined by what an ordinarily prudent health care provider or 

physician would have done under the same or similar circumstances. Palacios, 46 

S.W.3d at 880; Strom v. Mem’l Hermann Hosp. Sys., 110 S.W.3d 216, 222 (Tex. App.—

Houston [1st Dist.] 2003, pet. denied). Identifying the standard of care is critical: 

whether a defendant breached his or her duty to a patient cannot be determined absent 
9

specific information about what the defendant should have done differently. Palacios, 46 

S.W.3d at 880. While a ―fair summary‖ is something less than a full statement of the 

applicable standard of care and how it was breached, even a fair summary must set out 

what care was expected, but not given. Id. When a plaintiff sues more than one 

defendant, the expert report must set forth the standard of care for each defendant and 

explain the causal relationship between each defendant’s individual acts and the injury. 

CHCA Mainland L.P. v. Burkhalter, 227 S.W.3d 221, 227 (Tex. App.—Houston [1st 

Dist.] 2007, no pet.). While it is possible that a single standard of care may apply to 

several defendants, generic statements that the same standard of care attaches to each 

defendant without further explanation are conclusory. See Gray v. CHCA Bayshore L.P., 

189 S.W.3d 855, 859 (Tex. App.—Houston [1st Dist.] 2006, no pet.); see also Tenet 

Hosps. Ltd. v. Love, 347 S.W.3d 743, 753 (Tex. App.—El Paso May 27, 2011, no pet.) 

(―If the standard of care is the same for each defendant, then the report must state so.‖).

Blotcky’s expert report addresses standards of care and breach as follows:

Kingwood Pines Hospital was required to ―supervise[] closely and house[] safely‖ 

any ―aggressive [or] sexually aggressive 14 year old girl with a history of being 

both sexually molested and perpetrating sexual molestation herself so she could 

not harm another patient‖ 9and provide treatment of patients such as V.G. ―in a 

safe environment.‖ The hospital staff ―breached both these standards of care—

effective, careful supervision of a predator and careful, effective protection of a 

molestation victim.‖

 

9We note that Blotcky bases his opinion on Gomez’s affidavit stating that the patient who 

allegedly molested V.G. ―was known by the hospital staff to be aggressive, to have been sexually abused 

and to be a sexual molester.‖ We assume without deciding the accuracy of this allegation because we are 

confined to the four corners of the expert report in our consideration of its adequacy. See Palacios, 46 

S.W. 3d at 878. While an expert may rely on a statement that otherwise would not be admissible in 

evidence in formulating his opinions, see Gannon v. Wyche, 321 S.W.3d 881, 890–91 (Tex. App.—

Houston [14th Dist.] 2010, pet. denied), it is unclear how Gomez obtained this information. Cf. id. at 892 

(―[A]ll that is required is that [the] expert report informs the defendants of the specific conduct the 

plaintiffs have called into question and provides a basis for the trial court to conclude that the claims have 

merit.‖).
10

Dr. Torres10 and Bassett were required ―to ensure that there were appropriately 

trained and adequate staffing and milieu structure‖ so that a ―young‖ patient 

―would not be sexually molested.‖ They breached ―their duties to [V.G.]‖ by 

failing to do so.

The supplemental report further addresses these issues as follows:

While they ―may each have different standards of care in some areas,‖ Kingwood 

Pines Hospital, Torres, and Bassett ―share the most rudimentary responsibility for 

the safety and security of their patients . . . in whatever therapeutic milieu their 

patient is being treated. The safety and security of any patient is always a most 

basic element in the standard of care.‖ The ―treating team‖ must ―provide 

additional supervision‖ to patients with histories ―of hurting themselves and being 

vulnerable to being hurt by others.‖ Kingwood Pines Hospital, Torres, and Bassett

breached this standard of care, as ―[V.G.] was not afforded the most basic 

supervision under their care.‖

Kingwood Pines Hospital must not ―allow any harm to occur to any of its 

patients.‖ The standard of care for the hospital ―is to supervise the behavior of 

each and every patient.‖ ―Based on the facts contained in the medical records,‖ 

the hospital breached its standard of care by failing to provide ―a safe and secure 

environment‖ and ―allowing‖ V.G. ―to be molested by another patient.‖

Bassett was required to ―do anything necessary‖ to ―insure that any patient she 

treats in [the] hospital . . . has been admitted to a safe and secure milieu‖ by 

―be[ing] aware of the treatment milieu, patient population, and the structure and 

safety measures‖ in place. She breached the standard of care by failing to 

―insur[e] her patient’s basic safety using any number of measures available.‖

Appellants complain that Blotcky’s articulation of the applicable standards of care 

is deficient in two regards, first, that Blotcky improperly applies a single standard of care 

to multiple health care providers and second, that his articulation of the standard is 

conclusory.

Single Standard of Care Applied to Multiple Health Care Providers. In the 

expert report, Blotcky applies a standard of care to Kingwood Pines Hospital separate 

from the standard he applies to Bassett and Torres. He states that the hospital was 

 

10 As set forth above, Torres is a defendant in the underlying case, but not an appellant.
11

required to supervise known sexually aggressive patients and protect molestation victims 

from aggressive patients. By contrast, he applies a single standard of care to Torres and 

Bassett—to insure that the hospital had properly trained and adequate staffing so that a 

patient would not be molested. In the supplemental report, Blotcky clarifies that, 

although ―they may have different standards of care in some areas,‖ the hospital, Torres, 

and Bassett all shared the same responsibility for the safety and security of their patients. 

He further articulates the standard as to each party. The hospital was required to 

supervise every patient. Torres was required to ―admit patients only to . . . facilit[ies] that 

provide[] a safe and secure environment,‖ ―work with the treatment team to understand 

his patient’s treatment and other needs,‖ ―consult with . . . staff to insure . . . his orders 

are understood and followed‖ and ―know the inpatient program and how it implements a 

safe structure for patients who have been either victims or perpetrators of sexual assault.‖ 

Similarly, Bassett was required to insure her patients are being treated in a safe and 

secure environment by being aware of the environment, patient population, and safety 

measures taken by the hospital. 

We conclude that Blotcky articulates a standard of care for each appellant, 

although conclusorily, as set forth below. In the supplemental report, he adequately 

explains why the standards of care overlap as to the parties, which cures any deficiencies 

with regard to his applying the same standard to Torres and Bassett in the expert report. 

See Tenet, 347 S.W.3d at 753. We thus find without merit appellants’ argument that 

Blotcky improperly applies the same standard of care to multiple health care providers.

Conclusory Articulation of Standard of Care. Other than containing conclusory 

statements regarding the provision of a secure environment, the supervision of patients,

and the prevention of harm to patients, the reports do not indicate what an ordinarily 

prudent health care provider would do under the same or similar circumstances. See 

Palacios, 46 S.W.3d at 880. They merely include Blotcky’s conclusion that appellants 
12

did not provide a safe and secure environment for V.G., but do not specify how this 

should have been accomplished. They are thus deficient in this regard. See id.

Breach of the Standard of Care. Blotcky’s statements regarding breach of the 

standard of care, such as Bassett’s ―failing to ensure that there were appropriately trained 

and adequate staffing and milieu structure such that a young girl (about whom they were 

forewarned was vulnerable) would not be sexually molested‖ and ―breach[ing] the 

standard of care by not insuring her patient’s safety using any of the number of measures 

available‖ and appellants’ failing to ―provide additional supervision‖ and ―not afford[ing]

[V.G.] . . . the most basic supervision‖ are similarly conclusory. (Emphases added.) 

Whether a defendant breached the standard of care cannot be determined without 

―specific information about what the defendant should have done differently.‖ Id. For 

example, the reports do not provide information about how Bassett was to insure that 

hospital staff were appropriately trained and adequately staffed or what ―measures‖ were 

available to her to insure her patient’s safety. Nor do the reports indicate what kind of

supervision by the hospital or Bassett was necessary or ―basic‖ to provide a secure 

environment for V.G.

11

 Blotcky, moreover, states that the hospital breached its standard 

of care ―[b]ased on the facts contained in the medical records,‖ but does not indicate on 

what ―facts‖ he relies to reach that conclusion. 

We conclude that Blotcky’s reports are deficient because they do not adequately

describe applicable standards of care or breaches of those standards by each appellant.

 

11 Gomez argues that this case is akin to Russ v. Titus Hospital District, 128 S.W.3d 332 (Tex. 

App.—Texarkana 2004, pet. denied), which held that an expert report was sufficient relating to a claim 

filed by a mentally ill patient who was allowed access to an unsecured window out of which she fell. Id. 

at 344. But the expert report in that case specifically outlined that the standard of care required a suicidal 

patient not to be placed in a room with unlocked windows and what steps the hospital, doctors, and nurses 

should have taken to secure the windows, id. at 342, whereas the reports in this case merely state that 

V.G. should have been placed in a secure environment where patients were supervised, without 

specifying how this should have been accomplished.
13

D. Causation

Conclusory statements also plague Blotcky’s efforts to satisfy the statutory 

element of causation. In the expert report, he simply states, ―In medical probability, V.G.

would be expected to suffer significant psychological damage especially from sexual 

molestation occurring to her in a treatment setting. The proximate cause of this was the 

hospital’s failure as well as that of . . . Ms. Bassett to meet the standard of care.‖ 

Likewise, he states in the supplemental report that appellants’ breaches of the standards 

of care caused V.G.’s damages and ―[h]ad [V.G.] and the other patients been properly 

supervised, [V.G.] would not have been assaulted.‖

These reports do not adequately describe the causal relationship between 

appellants’ failures to meet the standards of care and V.G.’s injury: Blotcky provided no 

explanation regarding how and why these failures resulted in the alleged molestation. 

Rather, he provided bare assertions that appellants’ failure to ―properly supervise‖ the 

patients resulted in V.G.’s damages. He did not attempt to explain what constitutes 

proper supervision. Because the reports do not contain this required information, they are 

deficient. See Jelinek, 328 S.W.3d at 539–40; Palacios, 46 S.W.3d at 879 (holding 

reports that merely state expert’s conclusions about causation are deficient). 

E. Res Ipsa Loquitur

Gomez also contends she was not required to serve expert reports because the 

negligence alleged in this case rises to the level of res ipsa loquitur. 

Res ipsa loquitur is not a cause of action separate from negligence; rather, it is a 

rule of evidence by which the jury may infer negligence. Losier v. Ravi, ___ S.W.3d ___, 

No. 14-08-00399-CV, 2009 WL 3365867, at *2 (Tex. App.—Houston [14th Dist.] Sept. 

10, 2009, no pet.). It applies to situations in which two factors are present: (1) the 

character of the accident is such that it would not ordinarily occur in the absence of 

negligence, and (2) the instrumentality causing the injury is shown to have been under the 

management and control of the defendant. Id. Further, the doctrine applies only when 
14

the nature of the alleged malpractice and injuries are plainly within the common 

knowledge of laypersons, requiring no expert testimony. Id. 

The legislature limited the applicability of res ipsa loquitur in health care claims 

only to those instances in which the doctrine had been applied by Texas appellate courts

as of August 29, 1977. See Tex. Civ. Prac. & Rem. Code § 74.201. The three recognized 

areas in which res ipsa loquitur applies to health care claims are negligence in the use of 

mechanical instruments, operating on the wrong body part, and leaving surgical 

instruments or sponges inside the body. Losier, 2009 WL 3365867, at *2 (citing 

Haddock v. Arnspiger, 793 S.W.2d 948, 951 (Tex. 1990)); Hector v. Christus Health Gulf 

Coast, 175 S.W.3d 832, 837 (Tex. App.—Houston [14th Dist.] 2005, pet. denied).

While the nature of Gomez’s claims of malpractice and V.G.’s alleged injuries 

may be plainly within the common knowledge of laypersons, Gomez would still have to 

show that her claim fell within one of the pre-1977 categories of cases in order for res 

ipsa loquitur to apply. See Losier, 2009 WL 3365867, at *2; Hector, 175 S.W.3d at 837. 

Because it does not, we find without merit Gomez’s argument that she was not required 

to serve an expert report.

We hold that the trial court abused its discretion by denying the motions to dismiss 

because they do not adequately describe the elements required by subsection 

74.351(r)(6). We thus sustain that portion of appellants’ issues attacking the adequacy of 

the expert and supplemental reports because they are deficient.

F. Opportunity to Cure

In their second issue, appellants assert that because of the reports’ deficiencies, no 

―expert report‖ has been timely served and this case should be dismissed. As discussed 

above, Gomez’s reports are deficient. But even with these deficiencies, the trial court 

still has discretion to grant Gomez a thirty-day extension under section 74.351(c). See

Tex. Civ. Prac. & Rem. Code § 74.351(c); Scoresby, 346 S.W.3d at 554. Gomez

requested such an extension in the trial court, and the trial court has not ruled on this 
15

request. The appellants have not shown that Gomez is not entitled to a ruling on her

request for a thirty-day extension under section 74.351(c).12 See Tex. Civ. Prac. & Rem. 

Code § 74.351(c); Scoresby, 346 S.W.3d at 554. Therefore, while we agree with 

appellants that the reports are deficient, we conclude that this case should be remanded 

for the trial court to consider granting a 30-day extension to cure the reports’ deficiencies 

under section 74.351(c). Accordingly, we overrule appellants’ second issue. 

Conclusion

We reverse the trial court’s order denying the motions to dismiss filed by 

appellants and remand this cause to the trial court to consider whether a 30-day extension 

to allow Gomez to address the deficiencies in the reports is appropriate.

/s/ Martha Hill Jamison

Justice

Panel consists of Justices Frost, Seymore, and Jamison.

 

12

 Even if appellants had argued that Gomez’s reports amount to no report at all and even if it 

were appropriate to address that argument at this juncture, we would still conclude that the reports satisfy 

the minimal standard in Scoresby. See Scoresby, 346 S.W.3d at 557.