COURT OF APPEALS

SECOND DISTRICT OF TEXAS

FORT WORTH

NO. 2-08-455-CV

CONCENTRA HEALTH SERVICES, APPELLANTS

INC., GORDON MCWATT, D.O.,

NORMAN MCCALL, M.D., ANGELA

DEFORREST, P.A., AND ANGELA

DEFORREST, P.A., INDIVIDUALLY

V.

AMANDA G. EVERLY, A/K/A APPELLEE

AMANDA G. EVERLY

WAGENKNECHT

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FROM THE 17TH DISTRICT COURT OF TARRANT COUNTY

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MEMORANDUM OPINION1

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In this interlocutory appeal, Appellants Concentra Health Services, Inc.

(Concentra), Gordon McWatt, D.O., Norman McCall, M.D., Angela DeForrest,

1 See Tex. R. App. P. 47.4.
P.A., and Angela DeForrest, P.A., Individually, appeal the trial court’s denial of

their motion to dismiss the health care liability claims of Appellee Amanda G.

Everly, a/k/a Amanda G. Everly Wagenknecht (Everly) for failure to comply with

section 74.351 of the Texas Civil Practice & Remedies Code.

2 Appellants also

appeal the trial court’s denial of their request for attorney’s fees as a sanction

for Everly’s failure to tender an adequate expert report. Because we hold that

the expert report provided by Everly was adequate for some of Everly’s claims

but not for others, we affirm in part, reverse in part, render in part, and remand

in part.

Background Facts

Everly injured her left hip at work on January 22, 2006, while moving a

twenty-pound box from above her head. The next day, Everly went to

Concentra complaining of pain in her hip and a cold, tingling sensation in her

left leg and foot. DeForrest, a physician assistant at Concentra, examined

Everly and confirmed that her left leg and foot were cool to the touch. Hip and

pelvis x-rays were ordered, and Everly was assessed as having a hip strain and

hip and pelvic pain. Everly was given pain medication and a walking cane.

2 Tex. Civ. Prac. & Rem. Code Ann. § 74.351 (Vernon Supp. 2009).

2
DeForrest discussed the diagnosis and treatment plan with Everly and told

Everly to return to Concentra on January 26, 2006, or earlier if needed.

Everly returned to Concentra on January 26 and was again seen by

DeForrest, who Everly alleges was under the supervision of Dr. McWatt, a

family practice and occupational health physician at Concentra. Everly’s

pleadings and the expert report at issue do not address Everly’s complaints,

symptoms, diagnosis, care, or treatment at this visit. Everly returned to

Concentra for another follow-up visit the next day, and her left hip was

examined by Dr. McCall, a Concentra occupational health physician. Everly

stated that her left hip was not better and that her left leg was cold and numb.

Dr. McCall assessed Everly as having a left hip strain, prescribed a nonsteroidal

anti-inflammatory drug, and ordered an MRI. Dr. McCall instructed Everly to

return twenty-four hours after her MRI, but Everly never returned to Concentra.

Some time afterward, Everly developed a permanent foot drop.

Procedural History

On January 23, 2008, Everly filed this suit asserting health care liability

claims against Concentra, Dr. McWatt, Dr. McCall, and DeForrest arising from

the treatment she received in January 2006. Everly alleged that each

defendant had committed “one or more” of the following acts of negligence:

• failing to properly examine and diagnose Everly’s condition;

3
• failing to timely or properly or adequately govern and/or supervise

the quality of medical care and surgical care and treatment of

Everly; and

• failing to timely or properly or adequately provide such quality of

medical care and treatment necessary to prevent Everly’s injuries.

Everly also claimed that Concentra was vicariously liable for its employees’

negligence. Everly sought damages from each defendant for pain and suffering,

medical expenses, disfigurement, physical impairment, mental anguish, lost

earnings, and the loss of earning capacity.

On May 21, 2008, Everly filed the expert report and curriculum vitae of

Joseph H. Gaines, M.D., an orthopedic surgeon, stating that Appellants failed

to diagnose and treat Everly for reflex sympathetic dystrophy (RSD) and that

their negligence caused her to experience permanent foot drop. Appellants

jointly objected to the sufficiency of the report and moved to dismiss under

Texas Civil Practice and Remedies Code section 74.351.

3 The trial court

sustained Appellants’ objections and granted Everly thirty days to cure the

deficiencies and serve a sufficient expert report.

4

3 See id.

4 See id. § 74.351(c) (“If an expert report has not been

served . . . because elements of the report are found deficient, the court may

grant one 30-day extension . . . .”).

4
Everly served a supplemental report on September 2, 2008. Appellants

again jointly objected to the report as supplemented and moved to dismiss

under section 74.531, attacking Dr. Gaines’s qualifications, contending that his

report failed to adequately set forth his opinions regarding the applicable

standard of care, breach, and causation, and seeking attorney’s fees and costs.

The trial court denied Appellants’ motion by order dated November 13, 2008.

This interlocutory appeal followed.

Issues

In their first issue, Appellants bring three separate grounds in support of

their contention that the trial court erred by denying their motion to dismiss

Everly’s claims. First, Appellants argue that Dr. Gaines’s report and curriculum

vitae fail to establish that Dr. Gaines, an orthopedic surgeon, is qualified to offer

standard of care opinions for each Appellant because he has not demonstrated

training or experience in each Appellant’s field of medicine. Second, Appellants

assert that the report fails to articulate a separate, applicable standard of care

for each Appellant or how each Appellant breached the standard of care. Third,

Appellants contend that the report fails to adequately explain Dr. Gaines’s

opinions regarding a causal connection between each Appellant’s conduct and

Everly’s claimed injuries. In their second issue, Appellants argue that the trial

5
court erred by denying their request for attorney’s fees and costs based on

Everly’s failure to tender an adequate expert report.

5

Expert Reports in Health Care Liability Claims

Texas Civil Practice and Remedies Code section 74.351 requires a health

care liability claimant to timely serve an expert report that provides a fair

summary of a qualified expert’s opinions as to the applicable standards of care,

the manner in which the care rendered by the physician or health care provider

failed to meet the standards, and the causal relationship between that failure

and the injury, harm, or damages claimed.

6 A defendant may challenge the

adequacy of a report, and the trial court must grant a motion to dismiss the

plaintiff’s claims if it finds, after a hearing, that “the report does not represent

an objective good faith effort to comply with the definition of an expert report”

in the statute.

7

To constitute an “objective good faith effort” to meet the statutory

definition, an expert report must “discuss the standard of care, breach, and

causation with sufficient specificity to inform the defendant of the conduct the

plaintiff has called into question and to provide a basis for the trial court to

5 See id. § 74.351(b)(1).

6 Id. § 74.351(r)(6).

7 Id. § 74.351(l).

6
conclude that the claims have merit.”

8 A report does not fulfill this requirement

if it merely states the expert’s conclusions or if it omits any of the statutory

requirements.

9 However, the report “need not marshal all the plaintiff’s

proof”

10

and “does not have to meet the same requirements as the evidence

offered in a summary-judgment proceeding or at trial.”

11

When reviewing the adequacy of a report, the only information relevant

to the inquiry is the information contained within the four corners of the

document.

12

 This requirement prevents a court from filling gaps in a report by

drawing inferences or guessing as to what the expert likely meant or intended.

13

Section 74.351 does not, however, prohibit experts, as opposed to courts,

8 Am. Transitional Care Ctrs. of Tex., Inc. v. Palacios, 46 S.W.3d 873,

875 (Tex. 2001) (construing former Tex. Rev. Civ. Stat. art 4590i, § 13.01);

see also Moore v. Gatica, 269 S.W.3d 134, 139–40 (Tex. App.—Fort Worth

2008, pet. denied) (applying Palacios to construction of section 74.351).

9 Palacios, 46 S.W.3d at 879.

10 Id. at 878.

11 Id. at 879.

12 Id. at 878.

13 See Austin Heart, P.A. v. Webb, 228 S.W.3d 276, 279 (Tex.

App.—Austin 2007, no pet.) (citing Bowie Mem’l Hosp. v. Wright, 79 S.W.3d

48, 53 (Tex. 2002)).

7
from making inferences based on medical history.

14

Furthermore, the analysis

of the expert’s qualifications under section 74.351 is limited to the four corners

of the expert report and the expert’s curriculum vitae.

15

Standard of Review

We review for abuse of discretion a trial court’s denial of a motion to

dismiss under section 74.351.

16 We also review for abuse of discretion a trial

court’s determination of a physician’s qualifications to offer an expert opinion

in a health care liability claim.

17

 To determine whether a trial court abused its

discretion, we must decide whether the trial court acted without reference to

any guiding rules or principles; in other words, we must decide whether the act

was arbitrary or unreasonable.

18 An appellate court cannot conclude that a trial

14 Benish v. Grottie, 281 S.W.3d 184, 195 (Tex. App.—Fort Worth

2009, pet. denied); see also Tex. R. Evid. 703 (providing that an expert may

draw inferences from facts or data); Tex. R. Evid. 705 (providing that an expert

may testify in terms of opinions and inferences).

15 Palacios, 46 S.W.3d at 878.

16 Jernigan v. Langley, 195 S.W.3d 91, 93 (Tex. 2006); Palacios, 46

S.W.3d at 877–78; Ctr. for Neurological Disorders, P.A. v. George, 261

S.W.3d 285, 290–91 (Tex. App.—Fort Worth 2008, pet. denied).

17 Moore, 269 S.W.3d at 139, 141.

18 Cire v. Cummings, 134 S.W.3d 835, 838–39 (Tex. 2004); Wright,

79 S.W.3d at 52 (citing Downer v. Aquamarine Operators, Inc., 701 S.W.2d

238, 241–42 (Tex. 1985), cert. denied, 476 U.S. 1159 (1986)).

8
court abused its discretion merely because the appellate court would have ruled

differently in the same circumstances.

19 However, a trial court has no

discretion in determining what the law is or in applying the law to the facts, and

“a clear failure by the trial court to analyze or apply the law correctly will

constitute an abuse of discretion.”

20

Dr. Gaines’s Qualification to Offer Standard of Care

Opinions Against Appellants

Within their first issue, Appellants contend that the trial court erred in

denying their motion to dismiss because Dr. Gaines’s report and curriculum

vitae fail to establish that he is qualified to offer expert opinions regarding the

standard of care applicable to each Appellant.

Drs. McWatt and McCall

Appellants contend that, although Dr. Gaines is an orthopedic surgeon,

he is not qualified to address the standard of care applicable to family and

occupational health practitioners such as Drs. McWatt and McCall. Appellants

specifically argue that neither Dr. Gaines’s affidavit nor his curriculum vitae

“establishes that he practiced medicine in the same field of practice as the

19 E.I. du Pont de Nemours & Co. v. Robinson, 923 S.W.2d 549, 558

(Tex. 1995); Downer, 701 S.W.2d at 242.

20 Walker v. Packer, 827 S.W.2d 833, 840 (Tex. 1992); Ehrlich v.

Miles, 144 S.W.3d 620, 624 (Tex. App.—Fort Worth 2004, pet. denied).

9
physicians . . . whom he criticizes in his report,” that “he has any experience

in the Defendant physicians’ same or similar field,” or that “his diagnosis and

treatment of patients such as [Everly], from the perspective of an orthopedic

surgeon, is in any way similar to how [Everly] is to be treated by Concentra, a

family practice or occupational health physician.”

Civil practice and remedies code section 74.351 sets out specific

requirements for a person to qualify to give an opinion on the elements required

in an expert report.

21 To give an opinion about whether a physician breached

the relevant standard of care, the expert giving the report must meet the

requirements of section 74.401.

22 Among other things, section 74.401

requires that the expert be someone who is practicing medicine at the time the

testimony is given or was practicing medicine at the time the claim arose; “has

knowledge of accepted standards of medical care for the diagnosis, care, or

treatment of the illness, injury, or condition involved in the claim”; and “is

qualified on the basis of training or experience to offer an expert opinion

regarding those accepted standards of medical care.”

23

21 See Tex. Civ. Prac. & Rem. Code Ann. § 74.351(r)(5).

22 Id. § 74.351(r)(5)(A), § 74.401 (Vernon 2005).

23 Id. § 74.401(a).

10
Under the requirements set out in section 74.401, therefore, the proper

inquiry concerning whether a physician is qualified to testify is not the

physician’s area of practice but the stated familiarity with the issues involved

in the claim before the court.

24 Thus, a physician “who is not of the same

school of medicine [as the defendant] . . . is competent to testify if he has

practical knowledge of what is usually and customarily done by a practitioner

under circumstances similar to those confronting the defendant.”

25

Here, the fact that Dr. Gaines is not a family practice or occupational

health physician, as are Drs. McWatt and McCall, does not affect his

qualifications to offer expert opinions regarding the standard of care applicable

to their diagnosis, care, and treatment of Everly.

26 The relevant inquiry

concerns Dr. Gaines’s knowledge of and experience with the condition involved

24 See id.§ 74.401(a)(2) (requiring expert to have “knowledge of

accepted standards of medical care for the diagnosis, care, or treatment of the

illness, injury, or condition involved in the claim,” not knowledge of the

defendant doctor’s area of speciality (emphasis added)); see also Granbury

Minor Emergency Clinic v. Thiel, 296 S.W.3d 261, 267 (Tex. App.—Fort Worth

2009, no pet.); Collini v. Pustejovsky, 280 S.W.3d 456, 464 (Tex. App.—Fort

Worth 2009, no pet.); Blan v. Ali, 7 S.W.3d 741, 745–46 (Tex. App.—Houston

[14th Dist.] 1999, no pet.).

25 Ehrlich, 144 S.W.3d at 625; see also Davisson v. Nicholson, No. 02-

09-00169-CV, 2010 WL 1137031, at *7 (Tex. App.—Fort Worth Mar. 25,

2010, no pet. h.) (op. on reh’g).

26 See Thiel, 296 S.W.3d at 267; Collini, 280 S.W.3d at 464; Blan, 7

S.W.3d at 745–46.

11
in Everly’s claim—hip pain and a cold, numb leg and foot due to RSD.

27 Dr.

Gaines’s report sets forth his knowledge and experience in diagnosing, caring

for, and treating people with RSD:

The opinions given here are based upon the medical records

submitted; and my experience in treating and examining hundreds

of patients with the same or similar conditions as suffered by

Amanda Everly.

. . . I . . . keep abreast of pertinent professional literature on

topics regarding surgery and reflex sympathetic dystrophy “RSD”

including, but not limited to and [sic] the care and treatment of

patients such as Ms. Amanda Everly. I am familiar with the

appropriate medical standards of care related to patients who suffer

from foot drop, [and] RSD . . . .

. . . I have substantial and extensive knowledge and

experience in the practice of medicine, including work related

injuries and the diagnosis and treatment of RSD, herniated and

ruptured disc[,] the performance of surgical procedures, . . . and

the physicians who treat said conditions . . . .

. . . I have performed hundreds of back and spine surgeries

in my career as an orthopedic surgeon and treated numerous

patients with RSD. I have been responsible for the examination,

diagnosis, assessment, treatment, surgery, and pre and post

operative patient care, and the oversight of hospital personnel

regarding my patients who suffer the same type of injuries

sustained by Ms. Everly and I have treated patients during my

career under circumstances and conditions like or similar to those

experienced by Ms. Everly. I have extensive knowledge and

experience in the diagnosis and evaluation of RSD, patients with

foot drop including candidates for surgical problems, including

27 See Tex. Civ. Prac. & Rem. Code Ann. §§ 74.351(r)(5)(A),

74.401(a)(2)-(3); Thiel, 296 S.W.3d at 267; Ehrlich, 144 S.W.3d at 625.

12
appropriate post operative care and diagnosis, and the duties and

obligations and standards of care expected of hospital staff,

employees and doctors.

In addition, the report states that Dr. Gaines has knowledge and experience

working in “usual and customary office . . . settings involving patient care

matters” including

consulting with and interacting with other medical practice areas

for the appropriate care and treatment of patients with symptoms

of RSD and the problems as were encountered in the care and

treatment of Ms. Everly, including the diagnosis and treatment of

RSD and the that [sic] conditions associated problems requiring

appropriate care, diagnosis, treatment, and potential surgery.

Dr. Gaines’s report and curriculum vitae establish that he has knowledge

and experience with the diagnosis, care, and treatment of RSD including

interaction with other practice areas in office settings. In this case, Everly

claims that Drs. McWatt and McCall negligently diagnosed and treated her RSD

and negligently governed or supervised the quality of medical or surgical care

and treatment of her RSD. Accordingly, we hold that Dr. Gaines is qualified on

the basis of training or experience to offer an expert opinion regarding accepted

standards of medical care applicable to the diagnosis, care, and treatment of

Everly’s claimed injury, RSD, including standards applicable to Drs. McWatt and

McCall in this case. We overrule this part of Appellants’ first issue.

13
DeForrest

Appellants next argue that Dr. Gaines is not qualified to offer an expert

opinion on the standard of care applicable to DeForrest because Dr. Gaines’s

report and curriculum vitae do “not establish[] that he is aware of, or that he

has developed, any protocols or scope of practice for physician assistants

working under a family practice/occupational medicine physician.” Appellants

cite Texas Occupation Code section 204.202, which provides:

(a) The practice of a physician assistant includes providing

medical services delegated by a supervising physician that are

within the education, training, and experience of the physician

assistant.

. . . .

(e) A physician assistant is the agent of the physician

assistant’s supervising physician for any medical services that are

delegated by that physician and that:

(1) are within the physician assistant’s scope of practice; and

(2) are delineated by protocols, practice guidelines, or

practice directives established by the supervising physician.

28

Appellants also argue that the report fails “to state whether [Dr. Gaines] has

knowledge of the standard of care applicable to physician assistants such as

28 Tex. Occ. Code Ann. § 204.202 (Vernon 2004).

14
P.A. DeForrest, or whether he has ever worked with or supervised physician

assistants under these circumstances.”

For a person giving an opinion about whether a health care provider, as

opposed to a physician, breached the relevant standard of care, the expert must

meet the requirements of civil practice and remedies code section 74.402.

29

Under that section, the expert must be someone who 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”; “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 “is qualified on the

basis of training or experience to offer an expert opinion regarding those

accepted standards of health care.”

30

Dr. Gaines’s report expressly states that he has

substantial knowledge of the reasonable, prudent, and accepted

standards of medical care for the diagnosis, care and treatment

and/or management of patients involving diagnosis and treatment

and/or surgery of medical problems under circumstances and/or

conditions that are like or similar to those experienced by Ms.

Everly, including the doctors, hospital staff and employees.

[Emphasis added.]

29 Tex. Civ. Prac. & Rem. Code Ann. § 74.351(r)(5)(B), § 74.402

(Vernon 2005).

30 Id. § 74.402(b).

15
The report continues by stating that Dr. Gaines is familiar with the “reasonable,

prudent and accepted standards of care in the diagnosis, care and treatment

and management of patients who have received or are receiving care and follow

up patient care were applicable to all physicians and surgeons, including the

physicians involved in the type of care received by Ms. Everly.” [Emphasis

added.] However, there is nothing in Dr. Gaines’s report or curriculum vitae

stating or demonstrating that he has any experience specifically working with

or supervising physician assistants, that his knowledge of accepted standards

of medical care applicable to “doctors, hospital staff and employees” extends

to physician assistants generally or those such as DeForrest who do not

practice in a hospital setting, that he has knowledge of accepted standards of

care for physician assistants’ diagnosis, care, or treatment of RSD, or that he

is qualified on the basis of training or experience to offer an expert opinion

regarding those accepted standards of care.

31

31 See Tex. Civ. Prac. & Rem. Code Ann. §§ 74.351(r)(5)(B), 74.402.

Compare Simonson v. Keppard, 225 S.W.3d 868, 871–72 (Tex. App.—Dallas

2007, no pet.) (holding neurosurgeon was not qualified to offer expert opinion

about conduct of nurse practitioner because “[n]owhere in his affidavit does

[neurosurgeon] state that he either has knowledge of the standard of care

applicable to nurse practitioners or that he has ever worked with or supervised

nurse practitioners”), and HN Tex. Props., L.P. v. Cox, No. 02-09-00111-CV,

2009 WL 3337190, at *3–4 (Tex. App.—Fort Worth Oct. 15, 2009, no pet.)

(mem. op.) (holding physician was not qualified to offer expert opinion about

nursing standards because his “report and curriculum vitae demonstrate that he

16
Although Dr. Gaines is not automatically disqualified from giving an expert

opinion regarding the accepted standards of care for a physician assistant such

as DeForrest simply because he is an orthopedic surgeon instead of a physician

assistant, we may not, through inferences or otherwise, fill in the gaps in his

report where he fails to detail why or how he is qualified to offer an opinion

about the applicable standard of care for a physician assistant or even expressly

state that he is so qualified.

32 We hold, therefore, that Dr. Gaines did not

demonstrate that he is qualified to offer an expert opinion about the standards

of medical care applicable to DeForrest in this case and that the trial court

abused its discretion by denying Appellants’ motion to dismiss each of Everly’s

claims against DeForrest.

33 We sustain this part of Appellants’ first issue.

has experience and expertise as an internal medicine physician and as a medical

administrator, but there is nothing in his report or curriculum vitae

demonstrating or explaining that he has knowledge of or is familiar with the

accepted standard of care in this case for nurses or that he is qualified on the

basis of training or experience to offer an expert opinion regarding the accepted

standard of care in this case for nurses”), with San Jacinto Methodist Hosp. v.

Bennett, 256 S.W.3d 806, 814 (Tex. App.—Houston [14th Dist.] 2008, no

pet.) (holding physician was qualified to offer expert opinion regarding nursing

care of decubitus ulcers because his report “specifically stated ‘I am familiar

with the standard of care for both nurses and physicians for the prevention and

treatment of decubitus ulcers’”).

32 See Cox, 2009 WL 3337190, at *4; Wright, 79 S.W.3d at 53.

33 See Tex. Civ. Prac. & Rem. Code Ann. § 74.402(b).

17
Concentra

A plaintiff asserting a health care liability claim against a principal does

not have to provide a separate expert report regarding the principal when the

claim is premised on the acts of the principal’s agent for which the plaintiff

seeks to hold the principal vicariously liable.

34 Accordingly, Everly did not have

to provide an expert report as to Concentra for those claims premised on

Concentra’s vicarious liability for the acts of Dr. McWatt, Dr. McCall, or

DeForrest.

35 Rather, Everly had to provide an adequate expert report only as

to Dr. McWatt, Dr. McCall, and DeForrest.

36 Because we have held that Dr.

Gaines’s report and curriculum vitae demonstrate that he is qualified to offer

standard of care opinions regarding Drs. McWatt and McCall, we hold that they

also demonstrate that he is qualified to offer standard of care opinions on

Everly’s vicarious liability claims against Concentra for the acts of Drs. McWatt

and McCall. But because we have held that Dr. Gaines’s report and curriculum

vitae do not demonstrate that he is qualified to offer standard of care opinions

34 See Gardner v. U.S. Imaging, Inc., 274 S.W.3d 669, 671–72 (Tex.

2008) (“When a party’s alleged health care liability is purely vicarious, a report

that adequately implicates the actions of that party’s agents or employees is

sufficient.”).

35 See id.

36 See id.

18
regarding DeForrest, we hold that they likewise do not demonstrate that he is

qualified to offer standard of care opinions on Everly’s vicarious liability claims

against Concentra for the acts of DeForrest. Accordingly, we sustain in part

and overrule in part this portion of Appellants’ first issue.

Dr. Gaines’s Articulation of the Applicable

Standards of Care and Appellants’ Breach

Appellants also argue in their first issue that Dr. Gaines’s report fails to

meet statutory requirements because it “does not differentiate between the

Defendants and articulate separate standards of care applicable to each

provider, or how and in what manner each Defendant provider allegedly

deviated from the applicable standard of care,” and because “the report fails to

identify even a single standard of care applicable to Appellants and the conduct

that was required of them, i.e., what assessments, work-ups, evaluations, or

treatment each Defendant should have undertaken, and how and in what

manner each Defendant failed to comply with that standard.” Having already

held that Dr. Gaines failed to demonstrate that he is qualified to offer an opinion

about the applicable standard of care for DeForrest, we address only the

adequacy of Dr. Gaines’s articulation of the standards of care and breach

applicable to Drs. McWatt and McCall and Concentra.

19
For the purpose of a statutory expert report, statements concerning the

standard of care and breach need only identify what care was expected, and

the care that was not given, with such specificity that inferences need not be

indulged to discern them.

37

In addition, the same standard of care may apply

to multiple defendants—even defendants that practice in different fields of

medicine—if they owe the same duty to the patient.

38 An expert report may

not, however, assert that multiple defendants are all negligent for failing to

meet the standard of care without providing an explanation of how each

defendant specifically breached the standard.

39

37 Benish, 281 S.W.3d at 198; Thomas v. Alford, 230 S.W.3d 853,

858 (Tex. App.—Houston [14th Dist.] 2007, no pet.).

38 Compare In re Stacy K. Boone, P.A., 223 S.W.3d 398, 405–06 (Tex.

App.—Amarillo 2006, no pet.) (holding report sufficiently set forth single

standard of care applied to physicians and physician assistant because all

participated in administering treatment), and Barber v. Dean, No. 02-07-00353-

CV, 2009 WL 3490952, at *10 (Tex. App.—Fort Worth Oct. 29, 2009, no

pet.) (“The report is not insufficient for ‘grouping’ Appellees together because

Dr. Wagner specifically states that they all owed the same duty to ensure the

proper positioning and padding of Malcolm’s arm.”), with Polone v. Shearer,

287 S.W.3d 229, 235 (Tex. App.—Fort Worth 2009, no pet.) (holding report

that set forth single standard of care applicable to physician and physician

assistant insufficient to represent a good faith effort because “[a]lthough the

standards of care might be the same for both [the physician and physician

assistant], the report does not specifically state as much”).

39 Polone, 287 S.W.3d at 233–34; Taylor v. Christus Spohn Health Sys.

Corp., 169 S.W.3d 241, 244 (Tex. App.—Corpus Christi 2004, no pet.); see

also Wood v. Tice, 988 S.W.2d 829, 831 (Tex. App.—San Antonio 1999, pet.

denied) (stating that the report must specifically refer to the defendant and

20
Dr. Gaines’s report sets forth the following opinions regarding the

applicable standards of care and breach:

While at Concentra [Everly] utilized three different physicians in the

continuity of her care[,] Dr. McWatt, Dr. McCall and Angela Dr.

[sic] Deforest [sic], (“P.A.”). The records indicate that that [sic]

presented with some cardinal signs of RSD [reflex sympathetic

dystrophy] as well as a disk injury. Unfortunately she was only

partially worked up for hip strain, ruptured disks and including

intracranial pathology without specific findings. Concentra by and

through its physicians identified above misdiagnosed the condition

and failed to provide any treatment to anything other than the left

hip with their participation in her medical treatment.

. . . The literature generally available to physicians who

routinely treat patients with on the job injuries such as the

physicians who work for Concentra including the physicians in the

case[,] Dr. McWatt, Dr. McCall and physician assistant (“P.A.”) Dr.

Deforest [sic] indicates that the most successful treatment for RSD,

which in my opinion she exhibits, is treatment given within the first

six months from the time of the injury and after that the probability

of success diminishes significantly (see attached as Exhibit “B” an

article which is incorporated herein as if set forth at length).

. . . [I]t is my opinion that Concentra Medical [C]enter and

Dr’s. [sic] McWatt, McCall and (“P.A.”) Deforest [sic], within a

reasonable medical degree of certainty, breached the applicable

medical standards of care to Ms. Everly. Specifically, they failed

to provide treatment for RSD within the first six months of her

injury for the condition she was suffering, which resulted in a

permanent foot drop.

Exhibit “B,” attached to Dr. Gaines’s report, states that “early

sympathetic block combined with physical therapy is the most widely

discuss how that defendant breached the applicable standard of care).

21
recommended treatment” for RSD and that one published article “found that the

most important factor in predicting a favorable outcome was an interval

between onset and treatment [of RSD] of less than 6 months.”

Everly alleges that each Appellant committed “one or more” acts of

negligence—negligent diagnosis of Everly’s condition, negligent governance and

supervision of Everly’s care and treatment, and negligent care and treatment of

Everly. We will address the adequacy of Dr. Gaines’s articulation of the

applicable standards of care and breach with respect to each act of alleged

negligence in turn.

Negligent Diagnosis

Everly claims that Appellants were negligent by “[f]ailing to properly

examine and diagnose [her] condition.” Dr. Gaines’s report states that Everly

“presented with some cardinal signs” of RSD and that Appellants

“misdiagnosed the condition.” The report fails, however, to identify the

cardinal signs of RSD. Moreover, the report does not indicate what specific

tests, observations, or other diagnostic measures Drs. McWatt and McCall and

Concentra should have used to properly diagnose Everly’s RSD. Dr. Gaines’s

report therefore fails to discuss the applicable standards of care with sufficient

specificity to inform Drs. McWatt and McCall and Concentra of the conduct

Everly has called into question and to provide a basis for the trial court to

22
conclude that her claims against them of negligent diagnosis have merit. Thus,

the report does not constitute a good faith effort to comply with the statutory

definition of an expert report with respect to Everly’s claims that Drs. McWatt

and McCall and Concentra failed to properly examine and diagnose her

condition.

40 We hold that the trial court abused its discretion by denying

Appellants’ motion to dismiss Everly’s negligent diagnosis claims against Drs.

McWatt and McCall and Concentra. We sustain this part of Appellants’ first

issue.

Negligent Governance and Supervision

Everly also claims that each Appellant was negligent by “[f]ailing to timely

or properly or adequately govern and/or supervise the quality of medical and

surgical care and treatment of [Everly].” Dr. Gaines’s report, however, fails to

state any standard of care applicable to any Appellant’s governance or

supervision of the care and treatment Everly received. Accordingly, Dr.

Gaines’s report does not discuss the applicable standard of care with sufficient

specificity to inform Drs. McWatt and McCall and Concentra of the conduct

Everly has called into question and to provide a basis for the trial court to

conclude that her claims against them of negligent governance and supervision

40 See Palacios, 46 S.W.3d at 878.

23
have merit. Thus, the report does not constitute a good faith effort to comply

with the statutory definition of an expert report with respect to Everly’s claims

that Drs. McWatt and McCall and Concentra failed to timely or properly or

adequately govern and/or supervise the quality of Everly’s medical care and

surgical care and treatment.

41 We hold, therefore, that the trial court abused

its discretion by denying Appellants’ motion to dismiss Everly’s negligent

governance and supervision claims against Drs. McWatt and McCall and

Concentra. We sustain this part of Appellants’ first issue.

Negligent Care and Treatment

Everly further claims that each Appellant was negligent by “[f]ailing to

timely or properly or adequately provide such quality of medical care and

treatment necessary to prevent [Everly’s] injuries.” Dr. Gaines’s report states

that “[t]he literature generally available to physicians who routinely treat

patients with on the job injuries such as the physicians who work for Concentra

including the physicians in the case[,] Dr. McWatt, Dr. McCall and physician

assistant (“P.A.”) Dr. Deforest[,] [sic] indicates that the most successful

treatment for RSD, which in my opinion she exhibits, is treatment given within

the first six months from the time of the injury and after that the probability of

41 See George, 261 S.W.3d at 292–93.

24
success diminishes significantly (see attached as Exhibit “B” an article which

is incorporated herein as if set forth at length).” Exhibit “B” states that “early

sympathetic block combined with physical therapy is the most widely

recommended treatment” for RSD and that one published article “found that the

most important factor in predicting a favorable outcome was an interval

between onset and treatment [of RSD] of less than 6 months.” Dr. Gaines’s

report also states that “Concentra Medical [C]enter and Dr’s. [sic] McWatt,

McCall, and (“P.A.”) Deforest [sic] . . . breached the applicable medical

standards of care to Ms. Everly. Specifically, they failed to provide treatment

for RSD within the first six months of her injury.”

Dr. Gaines’s report expressly states that “[w]hile at Concentra [Everly]

utilized” Dr. McWatt and Dr. McCall “in the continuity of her care.” It also

recites that the standard of care for Dr. McWatt and Dr. McCall requires that

treatment for RSD be given within the first six months from the time of the

injury. The report further states Dr. Gaines’s opinion that Drs. McWatt and

McCall and Concentra breached that standard by failing to provide treatment

for Everly’s RSD within the first six months of her injury.

42 Thus, the report

42 See Barber, 2009 WL 3490952, at *10 (holding that the same

standard of care may apply to more than one defendant if they owe the same

duty to the patient); see also Polone, 287 S.W.3d at 235.

25
discusses the standards of care specific to Drs. McWatt and McCall and

Concentra and states how they breached that standard with sufficient

specificity to inform them of the conduct Everly has called into question and to

provide a basis for the trial court to conclude that her claims of negligent care

and treatment have merit. The report, therefore, constitutes a good faith effort

to comply with the statutory definition of an expert report with respect to

Everly’s claim that Drs. McWatt and McCall and Concentra failed to timely or

properly or adequately provide such quality of medical care and treatment

necessary to prevent Everly’s injuries.

43 We hold that the trial court did not

abuse its discretion by denying Appellants’ motion to dismiss Everly’s negligent

care and treatment claims against Drs. McWatt and McCall and Concentra. We

overrule this part of Appellants’ first issue.

Dr. Gaines’s Causation Opinion

Also within their first issue, Appellants argue that the causation opinion

contained in Dr. Gaines’s report fails to meet statutory requirements because

it “is conclusory and fails to detail how and in what manner the conduct of

each of the Defendant health care providers caused [Everly’s] claimed injuries.”

43 See George, 261 S.W.3d at 292–93.

26
Section 74.351 requires an expert report to provide a fair summary of the

expert’s opinions regarding the causal relationship between the defendant’s

failure to meet the standard of care and the injury, harm, or damages claimed.

44

To do this, the report must not be conclusory in its explanation of causation;

it must explain the basis of its statements sufficiently to link its conclusions to

the facts.

45 And an expert report may not assert that multiple defendants are

all negligent without providing an explanation of how each defendant’s specific

breach of the standard of care caused or contributed to the cause of injury.

46

Dr. Gaines’s report sets forth his causation opinion as follows:

[The defendants] failed to provide treatment for RSD within the

first six months of [Everly’s] injury for the condition she was

suffering, which resulted in a permanent foot drop. This will

require subsequent lifelong medical attention and probably surgical

intervention to correct the problems created by Concentra and the

physicians identified above.

. . . It is my opinion, based upon reasonable medical

certainty, my review of the records and my knowledge, skills,

training and experience, that the deviations and breaches of the

applicable medical standards of care by Concentra [M]edical

44 See Tex. Civ. Prac. & Rem. Code Ann. § 74.351(r)(6).

45 Polone, 287 S.W.3d at 236; see Wright, 79 S.W.3d at 52–53; see

also Arkoma Basin Exploration Co. v. FMF Assocs. 1990-A, Ltd., 249 S.W.3d

380, 389–90 n.32 (Tex. 2008) (defining conclusory as “[e]xpressing a factual

inference without stating the underlying facts on which the inference is

based”).

46 Polone, 287 S.W.3d at 233–34; Taylor, 169 S.W.3d ay 244.

27
[C]enter by and through its physicians Gordon McWatt, D.O.,

Norman McCall, M.D. and Angela Deforest [sic], P.A. caused Ms.

Everly’s extensive damages, injuries, unnecessary physical and

mental pain and suffering. These deviations and breaches of the

applicable medical standards of care will further result in needless

and unnecessary medical treatment and potential surgery along

with its inherent risk, medical charges, care, treatment, and billing

that would not have been required, but for these deviations and

breaches in the applicable medical standard of care. [Emphasis

added.]

Dr. Gaines’s report specifically states that Drs. McWatt and McCall and

Concentra each failed to treat Everly’s RSD within six months of her injury and

that this failure resulted in Everly’s permanent foot drop. Although Appellants

argue that the report “fails to detail how and in what manner” their actions

caused Everly’s claimed injury, it is enough that Dr. Gaines set forth his opinion

that their breaches in the standard of care by delaying treatment of Everly’s

RSD for at least six months caused Everly’s permanent foot drop.

47

47 Compare Thiel, 296 S.W.3d at 273 (“It is enough that Dr. Spangler

opined that Dr. Salas’s breaches of the standard of care delayed the diagnosis

of Thiel’s appendicitis so that Thiel’s appendix ruptured after Dr. Salas’s

September 6, 2006 examination and caused Thiel’s colon to become

gangrenous.”), and Simonson, 225 S.W.3d at 875–76 (holding causation

opinion not conclusory where “Dr. Thomas explained in his report that an early

diagnosis [of cerebellar infarction or hemorrhage] would have either prevented

neurological deterioration or at least Keppard would have been admitted into the

hospital where life-saving measures could have been taken to save her life”),

with Estorque v. Schafer, 302 S.W.3d 19, 28 (Tex. App.—Fort Worth 2009,

no pet.) (holding that the expert report was not sufficient because “Dr. Miller’s

report does not explain the basis of his opinions as to causation; his report

leaves gaps by not explaining how or why the physicians’ failure to consult a

28
Accordingly, we hold that the report provides a fair summary of Dr. Gaines’s

opinion regarding the causal relationship between the failures of Drs. McWatt

and McCall and Concentra to meet the standard of care and the injury, harm,

or damages claimed in this suit.

48 We overrule this part of Appellants’ first

issue.

Attorney’s Fees

In Appellants’ second issue, they contend that the trial court erred by

failing to award them attorney’s fees under section 74.351(b)(1) of the Texas

Civil Practice and Remedies Code as a sanction for Everly’s failure to provide

an expert report as required by statute.

49

Section 74.351(b)(1) states:

(b) If, as to a defendant physician or health care provider, an

expert report has not been served within the period specified by

Subsection (a), the court, on the motion of the affected physician

or health care provider, shall, subject to Subsection (c), enter an

order that:

urologist or gynecologist caused worsening or progression of Shirley’s listed

conditions”).

48 See Tex. Civ. Prac. & Rem. Code Ann. § 74.351(r)(6).

49 Aviles v. Aguirre, 292 S.W.3d 648, 648 (Tex. 2009) (enforcing

mandatory attorney’s fees award under former Texas Revised Civil Statute

article 4590i and noting similar mandatory provision under Texas Civil Practice

and Remedies Code § 74.351(b)(1)).

29
(1) awards to the affected physician or health care

provider reasonable attorney’s fees and costs of court

incurred by the physician or health care provider . . . .

50

A report “has not been served” within the meaning of section 74.351(b) if it is

timely but deficient following a thirty-day extension under section 74.351(c) for

the plaintiff to cure any deficiencies.

51

Although Everly served Dr. Gaines’s report, we have held that his report

is not an “expert report” under section 74.351 with respect to Everly’s claims

against DeForrest because Dr. Gaines’s report does not show that he is

qualified to render standard of care opinions for DeForrest.

52 Section

74.351(b)(1), therefore, requires that the trial court “shall” award reasonable

attorney’s fees and costs of court to DeForrest.

53 Accordingly, we sustain

50 Tex. Civ. Prac. & Rem. Code Ann. § 74.351(b)(1) (emphasis added).

51 Lewis v. Funderburk, 253 S.W.3d 204, 207–08 (Tex. 2008) (holding

that “an expert report has not been served” within the meaning of section

74.351(b) when an inadequate report has been served following a 30-day

extension under section 74.351(c)); see also Tex. Civ. Prac. & Rem. Code Ann.

§ 74.351(c) (“If an expert report has not been served within the period

specified by Subsection (a) because elements of the report are found deficient,

the court may grant one 30-day extension to the claimant in order to cure the

deficiency.”).

52 See Tex. Civ. Prac. & Rem. Code Ann. § 74.351(r)(6); Palacios, 46

S.W.3d at 878.

53 See Tex. Civ. Prac. & Rem. Code Ann. § 74.351(b)(1).

30
Appellants’ second issue with respect to each of Everly’s claims against

DeForrest.

But we also have held that Dr. Gaines’s report is an “expert report” under

section 74.351 with respect to Everly’s negligent care and treatment claims

against Drs. McWatt and McCall and Concentra.

54 Accordingly, they are not

entitled to receive attorney’s fees and costs of court from Everly under section

74.351(b)(1).

55 We overrule Appellants’ second issue with respect to Everly’s

claims against Drs. McWatt and McCall and Concentra.

Conclusion

We affirm in part, reverse in part, render in part, and remand in part.

We reverse the trial court’s order denying Appellants’ motion to dismiss

as to all claims against DeForrest, and we remand this cause to the trial court

for entry of a judgment dismissing Everly’s claims against DeForrest and

awarding reasonable attorney’s fees and court costs to DeForrest.

We reverse the trial court’s order denying Appellants’ motion to dismiss

as to Everly’s negligent diagnosis claims and negligent governance and

supervision claims against Drs. McWatt and McCall and Concentra and render

judgment dismissing those claims with prejudice.

54 See id. § 74.351(l).

55 See id. § 74.351(b)(1).

31
We affirm the trial court’s order denying Drs. McWatt and McCall and

Concentra’s motion to dismiss as to Everly’s negligent care and treatment

claims and denying their requests for attorney’s fees and costs, and we remand

this case for further proceedings regarding those claims.

LEE ANN DAUPHINOT

JUSTICE

PANEL: DAUPHINOT and MEIER, JJ.

DELIVERED: April 1, 2010

32