Affirmed and Memorandum Opinion filed May 24 , 2022

.

In The 

## Fourteenth Court of Appeals

NO. 14

- 21

- 00177

- CV

DHRUTI B. PATEL , M.D. , Appellant

V. MICHAEL BAKER, INDIV IDUALLY AND AS REPRE SENTATIVE OF THE ESTATE OF DEANNE BAKER , DECEASED , Appellee

On A p peal from the 189th District Court

Harris County, Texas Trial Court Cause No. 2020

- 30848

M E M O R A N D U M O P I N I O N

In this interl ocutory appeal, a ppellant Dhruti B. Patel, M.D

. , challenges the
trial court ’ s order denying her motion to dismiss a health care li a bi lity claim asserted by appellee Michael Baker, individ ually and a s representative of the estate
of Dea nne Baker, deceased. See Tex. Civ. Prac. & Rem. Code Ann. § 51.014(a)(9). For the reasons below, we affirm the trial court ’ s order.2 B ACKGROU ND

Dea nn e B aker arrived at the Houston Methodist Ho spit al emergency room on June 5, 2018 , complaining of generali zed weakness. Dr. Patel examined
Deanne and took her medical his tory. T h at same day, D r. Patel ordered that Deanne was permitted “ activity as tolerat e d ” and “ up with assista nc e. ”

Dr. Patel ordered that Deanne be discharged from the hospital on June 7,
2018. As part of her discharge orders, Dr. Patel said Deanne was to “ a mbulate
with assistance or [an] assistive device. ”

While she was be ing discharged f ro m the hospital, Deann e used a walker to get up from the bed and move into a wheelcha i r. As she moved towards the wheelchair, Deanne lost her balance , fell, and landed on her hi p

. Deanne suffere d

a pe lvic and hip fracture and was in severe pain

. Deanne w as transferred to a rehabilitatio n fa cility, where she continued to have severe pain and difficulty with mobility

. Deanne ’ s condition continued to deteriorate and she died of cardiac

arrest on June 24, 20 18.

Deanne ’ s husband , M ichael , file d suit in Ma y 2020, asserting health care liability claims again st Houston Me thodist Hospital and a registered nurse involv ed
in Deanne ’ s care. Michael amended his petition to add Dr. Patel as a defendant.

Pu rsuant to section 74.351 of the Te xas Me dical Liability Act , Michael
served the defendants w ith an expert report and a supplemental expert report from
D r. Benny Gavi

. Se e Tex. Civ. Prac. & Rem. Code Ann. § 74.351. In his report s , Dr . Gavi opined that Deanne “ had m ultiple risk factors ” in dicating that she “ was at h igh risk for falls. ” According to Dr. G avi, Dr. Patel had an obligation to identify
Deanne as a high fall risk and to communicate appropriate orders for her condition, including fall precautions. Dr. Gavi opined that Dr. Pate l breached t his standard3

by p lacing orders stating Deanne was permitt ed “ acti vity as tolerated ” and only required “ up with assistance

. ” Dr. Gavi conclud e d that Deanne ’ s fall would have been prevented if Dr. Patel had p rovided instructions ap propriate to D eanne ’ s condition.

Dr. Pate l objected to Dr. Gavi ’ s report s and moved to dismiss Michael ’ s health care liabi lity claim. Michael responded to Dr. Pate l ’ s objections and filed a
motion for an extension of time “ in the event that the Court shou ld fi nd any de ficiency in D r. Gavi ’ s repo rt

. ” See id . § 74.351(c). The trial court signed an orde r deny ing Dr. Patel ’ s motion to dismiss on March 15, 2021. The t rial court did not rule on Michael ’ s motion for an extension
of time

. Dr. Patel filed this inte rlocutory appeal. See id

. § 51.014( a) (9)

. A NALYSIS On appeal, Dr . Patel asserts the trial court erred in denying her motion to dismiss because Dr. Gavi failed to provide a fair summary of his opinions regarding the applicable standard of care, the al leged breach o f those standards,
and the ca usal relations hip between the alleged breach and the injuries claimed. We address these arguments below.

I. Overview of the Applicable Law and Standard of Review The Texas Medical Liability Act requires that plainti f fs a lleging a health care liability clai m serve each defendant with an expert report. See id . § 74.351(a); Miller v. JSC Lake Highlands Operation s, LP , 536 S.W.3d 510, 511 (Tex. 2017) (per curiam). An adequate expert report p rovi des a “fa ir summary” of the expert’s

o pinions regarding (1) the app licable standards of care, (2) the manner in which the care rendered failed to meet those standards, and (3) the causal relationship between that failure and the injury, harm, or damag e s cl aimed. T ex. Civ. Prac. &4

Rem. Code An n. § 74.351(r)(6); Naderi v. Ratnarajah , 572 S.W.3d 773, 778 (Tex. App.

— Houston [14th Dist.] 2019, no pet.). To determine whether an expert ’ s report provides a “ fair summary ” of the se elements, we are limited to the f our

corne rs of the report. C

- HCA, I nc . v. Cornett , 635 S.W.3d 295, 299 (Tex. App.

— Houston [14 th Dist.] 2021, no pet.). “The purpose of the expert report requirement is to weed out frivolous malpractice claims in the early stages of litigation, not to disp ose of po tentially
meritorious claim s. ” Tex. Children’s Hosp. v. K night , 604 S.W.3d 162, 169 (Tex. App.

— Houston [14th Dist.] 2020, pet. denied). Therefore, it is not nec essary that the expert report marshal all the plaint iff’s proof; rather, an expe rt re port is

a dequate if it constitutes a “ good faith effort” to comply with the statutory requirements. Abshire v. Christus Health Se. Tex. , 563 S.W.3d 219, 223 (Tex. 2018) ( per curiam); Jelinek v. Casas , 328 S.W.3d 526, 539 ( Tex. 2010). This requires t hat t he report “(1) inform[] the defendan t of the specific conduct calle d into question and (2) provid[e] a basis for the trial court to conclude the claims have merit.” E.D. v. Tex. Health Care, P.L.L.C. , No. 02

- 0657 , 2022 WL 1434658 , at * 3 (Tex. May 6, 2022) (per curiam) ; Baty v. Futrell , 543 S .W .3d 689, 693

- 94 (Tex. 2018). At this st age o f litigation, “ whether the expert ’ s explanations are

‘ believ able ’ is not relevant to the analysis of whether the expert ’ s opinion

c onstitutes a good

-

faith effort to comply ” with the Texas Medical Liability Act

. E.D. , 2022 WL 1434658 , at * 3 (em phasis in original).

We review a trial court’s deci sion to grant or deny a motion to dismiss b ased on the adequacy of an expert report for an abuse of discretion. Abshire , 563 S.W.3d at 223; Naderi , 572 S.W.3d at 778. T he tri al court abuses its disc retion if
it acts arbitraril y, unreasonably, or without refer ence to g uiding rules or principles. Bowie Mem’l Hosp. v. Wright , 79 S.W.3d 48, 52 (Tex. 2002)

. “ [U]nder an abuse

-5

of

- discretion standard, close calls must go to th e t rial court. ” E.D. , 2022 WL
1434658 , at * 3 (internal quotation omitted)

. II. Dr. Gavi ’ s R e ports

Dr. Patel ’ s arguments challenge the sufficien cy of Dr . Gavi ’ s reports on each of the three necessary elements: standard of care, bre ach, and causa tion. See Tex

. Civ. Prac. & Rem. Code Ann. § 74.351( r ) (6). We address standar d of care and
brea ch tog ether before turning to Dr. Patel ’ s challenge to Dr. Gav i ’ s op inion on causation

. A. Standard of Care and Breach

Standard of care is defined by what an or dinarily pr ude nt physician wo uld
have do ne u nder the same or similar circumstances

. Am. Transitional Care Ct rs. of Tex. , Inc. v. Pal acio s , 46 S.W.3d 873, 880 (Tex. 2001) ; Kingwood Pines Hosp., LLC v. Gomez , 362 S.W.3d 740, 747 (Tex. App.

— Houston [14th Dis t.] 2011, no
p et .). The st at ed standard of care need not be complicated for it to be sufficient

. See Baty , 543 S.W.3d at 697; see also Keepers v. Bl essett , No. 01

- 18

- 01020

- CV , 2019 WL 1523 368, at * 5 (Tex. App.

— Houston [1st Dist.] Apr. 9, 2019 , no pet.) ( mem. op.) ( “ At t ime s , the s ta ndard of care c an be fairly basic. ” ).

Id entifying the sta ndar d of care is critical because whether a physician breached a duty of care cannot be determined without specific information abou t what the defendant should have done d ifferentl y. A b shire , 563 S. W.3d at 226;
Pa lacios , 46 S.W.3d at 880. “ While a fair s umma ry is something less than a full
statement of the applicable standard of care and how it was breached, it must set
out what care was ex pected but not given

. ” Naderi , 572 S.W.3d at 7 79 ; see also
E.D. , 2022 WL 1 434658, at *3.

H ere, D r. Gavi ’ s report begin s with a recitation of Deanne ’ s relev ant6

me dical h ist ory . Dr. Gavi state s that , when Deanne presented at th e hospital in June 2018, she had a history of stroke, myoca rdia l inf ar cti o n, and chronic left

- s ide

w eakn ess. Dr. Gavi note s t hat De anne used a walker and wheelchair a t home and require d dial ysis three times a week.
Dr. Gavi states that, after De anne was admitted to the hospital, her differential diagnosis included possible str o ke , s eizure, dehydration , and acute decompensation a fter dialysis. Deanne was visited by Dr. Boyareddigari , an
emergency room physi c ian , who recommended fall precautions.

Later that same day, Deanne was visited by Dr. Patel, who took Deanne ’ s history a n d performed a physical e xamina tion. Dr. Patel not ed that Deanne had generalized w eakness “ of unclear etiology , p ossibly related to a TI A /stroke, or possibly cardiac in origin

. ” D r. Patel ordered that Deanne w as permitted “ activity

as tolerated” and “ up w ith assistance

. ”

Two d ays af

ter she was admitted t o the hospital, Dr. Gavi states that Dea nne was assessed by an occupational therapist, who co ncluded that Deann e “ was unable to stand on her weak leg. ” A physical therapist also noted that Deanne “ had
i m paired gait and needed t o use a rolling walker and w heelchair. ” The physic al therapist approved Deanne for dis charge and noted that D e anne should co ntinue with ph ysical therapy. The same day, Dr. Patel o rdered that Deanne b e discharged from the hospita l . Dr. Patel also ordered tha t Deanne “ ambulate wi th assi stan ce or assistive
device. ” In the process of being disch arged , Deanne fell while moving from her
bed to a wheel c hair. A hospital transporter present i n the room when Deanne fell
stated that he w a s una ble to assist Deanne a s s he fell to the floor

. In hi s first expert report, Dr. Gavi opined as follows with resp ect to the7

standard of care and alleged breach : Medical Opinions regarding Standard of Care [De anne] had multiple risk factors th at suggest e d that she was at high risk f o r falls. The admitt in g int ernal medicine physician had an obligation to identify [ Dea nne] as a high fall risk and to communicate appropriate orders including fall risk precautions.

* * * The hospita l staff had an oblig a tion to develop protocols and appropriately im plem en t tho se protoc ols , to e nsure tha t patients who are at high risk for f

alls, and have appropriate interventions to prevent falls. The hospital staff had an obli gatio n that appropriate measures were in pla c e to prevent high risk for [si c] pa tients from falling. T his

w ould include personal assistance from trained personnel to assis t the patient in transferr ing from bed to wheelchair that includes personnel remaining at the patient ’s side at all times until she is safe l y situated in a cha ir or wheelchair.

Breaches i n the Standard of Care The admitting hospitalist, internal medic ine physician Dr. [] Patel breached the standard of care by failing to properly identify [Deann e] as a high risk fo r falls. Although the e m ergency department physi cian recommended fall prec au tions , Dr. Patel breached the stand ard of care by placing admi ss ion orders which included “ activity as tolerated ” and “ up with assistance. ” This failed to tak e into account the patient ’ s particular susc e ptibility to falls and d irect staff to provide her g reate r assistance with transf

ers, and it was a breach of the sta ndard of care.

Dr. Gavi ’ s supplement al report expands on the standard of care and breach as fol lows: Medical Opinions regarding Standard o f Care In my initial rep ort, I noted that [Deanne ] h ad mult iple risk factors that suggested that she was a t high risk for falls. The admitting internal medicine physician , Dr. Patel, had an obligation to identify [Deanne ] as a high fall risk and to commu n icate appropr iate orders incl uding f

all risk preca ut ions. Those orders must be specific, and the8

physician must take care to avoid issuing contradictory guidance to nursing and hospital staff. Furthermore, the o bligation is that of the admitting physici a n. In my ini tial report , I o bserved that the

e mer ge ncy dep artment provider, Dr. Boyareddigari, recommended f all preca utions for this patient. H o wever, a recommendation does not amount to an order, and another ph ysician ’ s recommendation could not dischar g e Dr. Patel ’ s duty. Fur ther, a hospital ’ s [sic] simply pl acing s ome fall precaution measures in place does not relieve the admitting physician of his duty to make the ap propriate orders to ensure patient safety. Dr. P atel neede d to provide specific orders reg a rding transfe rs, n amely, that they should be prope rl y assis ted by appropriately trained person nel.
Breaches in the S tan dard of Care As I noted in my initial report, although the emerg ency departm ent physicia n re commended fall precautions, Dr. Patel brea c hed the

s tandard o f care by p lacing admission orde rs which included “ activity as tolerated ” and “ up with assistance. ” This effectively contradicted and minimized any notion that the patient was a serious fall risk and failed to take into account th e patient ’ s particular su s ceptib ility to falls, whi le directing staff to p r ovide her greater assistance with transfers. Furt he r, Dr. Patel did not specify that the patient should receive assis tance with transfers from appropriately tr a ined personnel, and the records and her unfor tunate fall show that she did not receive such as s istance. The hospital, opera ting without directio n from Dr

. Patel, put no such precautions into place. Reading these reports together, we conclude t he trial court did not abuse its
discretion in concluding that they pro vide a “ fair summary ” o f the applic a ble
standard s of care and the alleged breach

. See N aderi , 572 S.W.3d at 778

. After reciting the var ious health issues that Deanne presented with when she arrived at the hospital on June 5, 2018, Dr. G avi o pine d that Dr. Patel “ had an obligation to identi f

y [Deanne ] as a high fall risk and to communicate ap propria te orders including f

all risk precautio ns. ” Recognizing that Dr. Boyareddigari

recomme nd ed fall precautions for Deanne, Dr. Gavi asserted that Dr. Patel was9

obligated “ to avoid issuing contrad ict o ry guidance ” . Continuing on, Dr. Gavi
stated that D r. Pate l also was obligated to “ provide specific orders regarding transfers, namely, that they should be properly assisted by appropriately trained

person nel. ” These statements adequately describe the a p plicable standards of care in these circumstances, t o whom those standards applie d, and the steps that needed
to be tak en to ensure their performa nce. Dr. Gavi opined that these standards of care were bre ached when Dr. Patel (1) failed to identify Deann e a s having a high risk for falls, (2) placed admis si on orders that included “ acti vity as tolerated ” and “ u p with assistance ” , and (3) failed

to s pecify that Deanne should receive assistance with transfers f rom appropriate ly trained personnel. These alleg a tion s provide a fair summary of the conduct compla in ed of and what Dr. Patel should have done differently when evaluating a patient with multiple risk factors suggesting a high risk for falls. On appeal, Dr. Patel comp lains that Dr. Gavi ’ s reports are i n suff i ciently specific with respect to the complain ed

- of conduct. While Dr. Gavi ’ s reports could have been more specific as to exactl y what “ fall preca utions ” should have been in place or what “ greater assi stance with transfers ” required, we cannot say th e trial

court ’ s conclusion that they wer e sufficien t constitutes an abuse of discretion.
C o mpare Sanjar v. Turner , 252 S.W.3d 460, 468 (Tex. App.

— Houston [14th Dist.] 2008, no pet.) (that expert report “ cou l d have bee n more specific ” d id not
render trial c ourt ’ s conclusion that it wa s adequate an abuse of d iscretion) with CHCA Mainland, L.P. v. Dickie , No. 14

- 07

- 00831

- CV, 2008 WL 3931870, at * 8 (Tex. App.

— Houston [14th Dist.] Aug. 21, 2008, no pet.) (mem. op .) (expert report insuff

iciently specific as to b r each because it st ated only that the def e ndant

“ did no t meet these standards of care and was negligent ” ). Viewing Dr. Gavi ’ s reports in their enti re t y, the standard of care sufficiently descri bes the actio ns Dr.10

Patel should have take n when presented with a patient like Deanne, who was a high risk for fall s.
Dr. Gavi ’ s reports provided Dr. Patel with notice of the conduct complained
of and what sh e should have done differently in these circumstances

. The refore,
the trial court did not abuse its discretio n in concluding that the reports provided a

“ fair s um mary ” of the applicable standards of care and the alleged breach of those
standards. See Ab s hire , 563 S.W.3d at 226; Naderi , 572 S.W.3d at 77 8

- 7 9

. B. Cau s ation To provide a fair summary of causat ion, an ex p er t must explain “ how and why ” t he physician ’ s all eg ed breach caused the injuries claimed. C o lu mbia Valley Healthcare Sys., L.P. v. Zamarripa , 5 26 S.W.3d 453, 459

- 60 (Tex. 2017). A conclusory statement of causation is inadequate; rather, the e xp ert must explain the
basis of his stateme nts and link concl us ions to specific facts. E.D. , 2022 WL 1434658, at *3

. Satisfying the “ how and why ” standard d oes not require that the expert prove the entire case or account for every known fact

— the report i s suffici ent i f it makes “ a good

- faith effo rt to explain, fac tu ally, how proximate cause is going to be pro ven. ” Id

. Proxim ate cause has two components: (1) foreseeability, and (2) cause

- in

fact. Humble Surgi cal Hosp. , LLC v. Davis , 542 S.W.3d 12, 23 (Tex. App

. — Houston [14th Dist.] 2017, pet. denied). For a ne gl igent act or omiss ion to have
been a cause

- in

- fact of the alleged harm, the act or omission must have been a substantial factor in bringing about the ha rm. Id

. Dr. Gavi ’ s first report stated as follo ws with respect to the causal relationship at issue he re: On June 7, 201 8, [Deanne] suffered a traumatic fa ll which resulted in the pelvis a nd hip fractur e. Unfort unately, she continued to have11

severe pa i n , disability, and cont inued physical decline. She required continued opiate medications and was mostl y in bed. S he gradually declined and on June 24, 2018 suffered sequelae of pelvic/hip f racture and a co nsequent cardiopulmonary arrest. The cause of t he cardiopulmonary arres t on June 24, 2018, was a co nsequence of severe deconditioning that followed the p elvic and hip fracture suffered on June 6, 2018. Pro longed required bed rest and inab ility to tolerat e act ivity can and will lead to deconditioning i n th e form of weake ning of the pulmonary and cardiov ascula r systems, and this decondition ing makes a pat ie nt more susceptible to cardiopulmonary disease and ar rest. It is reasonably probable that the decondi tioning [Deanne] suffered following her fracture s substantially contribu ted to her sub sequent cardia c arrest. The breaches in the standard of care by Dr . [] Patel w [ere] a substantial c ontributing factor t o [Deanne ’ s] injury and subsequen t death.

Dr

. G avi ’ s supplemental report elaborated on his caus ation opinion as follo ws : Had Dr. Patel provided app ropriate instruction regarding transfers and avoided c ontradicting any such order, it is reasonably probabl e that reasonable hospital staff would have follo wed those in structions, ensured that [Deanne] re ceived appropriate assis tance during transfers from trained personnel, and that this would have prevente d her fall from occurring in the first p lace. Without this fall, obviously, she would n o t have suffered the pelvic and hip fracture that she did. This injury led to a lon g pe riod of bed rest and adminis tration of opiate medi cations. This, in turn, le d t o severe deconditioning. Prolonged required bed rest a nd inability to tolerat e activity can and will le ad to deconditioning in the form of weakening of the pulmonary and cardi ova scular systems, and this deconditioning makes a patient more susceptible to c ar diop ulmonary dis ease and arrest . It is re asonably pr obable that the deconditioning [D eanne] suffered following her fractures substa ntially cont ribute d to her subsequent card iac arrest

. Dr. Gavi ’ s rep orts provide a fair summary of causation in this cas e. See Harvey v. Kindred Healthcare Operating, Inc. , 578 S.W.3d 638, 653 (Tex. App.

— Houston [14th Dist. ] 2019, n o pet.) ( “ To determi ne whether the expe rt ’ s causation
conclusio ns are detailed enough

. . . , we read th e expert ’ s concl usions on causation12

in th e context of the entire report, not piecemea l or in a vacuum. ” )

. Dr. Gavi states
tha t , if Dr. Patel h a d “ provided appropriate instructi on regarding t ransfers , ” it is
reasonab ly probable that the attend i ng hospital staff would hav e followed those
instruc ti o ns . Read in conjunction with th e rem a inder of the reports , this reference

to “ appropriate in stru ctio n s ” refer s to the articulated standard s of care, i.e. , Dr.
Patel ’ s obliga tion to order fall precauti o ns and that Deanne ’ s transfer s be appropriately ass is t ed in light of her risk of falling

. Continuing on, Dr. Gavi opine s that , if Deanne had received app ropriate
assistance during her transfer, her fal l would have been prevent ed. Dr. Gavi then
delineat e s the consequ ences of Deanne ’ s fall, beginning with a pe lvic and hip
fracture that necessitated bed rest and opiate medications. Dr. G avi opines that t his
course of care led to “ severe deconditioning, ” which makes a patient “ mo re susceptible to cardiopul m onary disease and arrest. ” Dr. Gavi concludes it i s

“ reasonably probabl e ” that the decondi ti oning Deanne suf fered as a r esult of her
fall “ substantially c ontributed to her subsequent cardiac arrest. ”
In sum, Dr. Gavi ’ s repor ts adequately describe “ how and why ” Dr. Patel ’ s alleged breach es of the applic ab l e standards o f care caused a chain of events that
resulted in Deanne ’ s injuries and death. Se e, e.g. , Patel v. Wil liams ex rel. Estate of Mitchell , 237 S.W.3d 901, 906 (Tex. App.

— Houston [14th Dist.] 2 007, no pet.) (expert opinion on causation ade quate because expert o pined that defendant

physician ’ s “ decision to treat Mit chell ’ s dementia with Risperdal be gan a chain of events ultimately c ulminating i n M itchell ’ s dea th ” )

. T he trial court did not abuse
i t s discretion in concluding that the reports provide d a “ fair summary ” of the ca usa l relationship at issue here

. See E.D

. , 2022 WL 1434658, at *3 ; Ab shire , 563 S.W.3d at 226; Naderi , 57 2 S.W.3d at 77 8

- 7 9

. We overrule Dr. Patel ’ s issues.13 C ONCLUSION

W e affirm the trial court ’ s March 15, 20 21 order denying Dr. Patel ’ s motion
to d ismiss.

/s/ Me a gan Hass a n Justice

Pa n el consist s of Justice s Jewell, Z i mmerer, and Has san.