NUMBER 13-11-00686-CV

COURT OF APPEALS

THIRTEENTH DISTRICT OF TEXAS

CORPUS CHRISTI - EDINBURG

RIO GRANDE REGIONAL HOSPITAL, HCA

HEALTH SERVICES OF TEXAS, INC., D/B/A

RIO GRANDE REGIONAL HOSPITAL, ET AL., Appellants,

v.

BELEM AYALA, INDIVIDUALLY AND AS

NEXT FRIEND OF HER MINOR DAUGHTER,

LONDON RIOS AND JUAN ANTONIO RIOS JR.,

INDIVIDUALLY, Appellees.

On appeal from the 370th District Court

of Hidalgo County, Texas.

MEMORANDUM OPINION

Before Chief Justice Valdez and Justices Rodriguez and Garza

Memorandum Opinion by Chief Justice Valdez

This is an interlocutory appeal from an order denying appellants’ request for relief 

under section 74.351(b) of the Texas Civil Practice and Remedies Code. See TEX. CIV.
2

PRAC. & REM. CODE ANN. § 51.014(a)(9) (West Supp. 2011); id. § 74.351(b) (West 

2011). We affirm.

I. BACKGROUND

Appellees

1

brought healthcare liability claims against appellants, Jasmine

Ignacio, R.N., and Rio Grande,2in connection with the hospitalization of London Rios in 

Rio Grande Regional Hospital. At two weeks old, London was transferred from 

Renaissance Hospital to the pediatric intensive care unit (“PICU”) at Rio Grande 

Regional Hospital for management of a medically-treatable rapid heartbeat. Appellees 

alleged that, during London’s stay in the PICU, her tracheostomy3tube became 

dislodged and that, during the response to the dislodgement, London was deprived of 

oxygen and suffered severe and permanent brain damage. 

Specifically, appellees allege that when London was in the PICU, the PICU 

nurse, Nurse Ignacio, asked Belem Ayala, London’s mother, to feed London. London 

became fussy almost immediately, so Belem called Nurse Ignacio for help; however, 

Nurse Ignacio did not respond. Belem attempted to comfort her child while urgently and 

repeatedly asking Nurse Ignacio for help. She saw what appeared to be an air bubble 

beginning to develop under London’s skin. When Nurse Ignacio still did not respond, 

Belem began yelling at Nurse Ignacio to help her baby. At this point, Nurse Ignacio left 

 

1 Appellees are Belem Ayala, individually and as next friend of her minor daughter 

London Rios, and Juan Antonio Rios, Jr., individually.

2 We use “Rio Grande” to refer collectively to Rio Grande Regional Hospital, HCA Health 

Services of Texas, Inc., d/b/a Rio Grande Regional Hospital, Columbia Rio Grande Healthcare, 

L.P., d/b/a Rio Grande Regional Hospital, and Rio Grande Regional Hospital, Inc., d/b/a Rio 

Grande Regional Hospital.

3 The term “tracheostomy” refers to a surgically created hole through the front of the 

neck into the windpipe or trachea. The term for the surgical procedure to create this opening is 

“tracheotomy.” The terms are commonly used interchangeably.
3

the nurse’s station, and when she arrived at London’s bedside, she saw that the infant 

was in severe distress. 

The “air bubble” under London’s skin was actually a subcutaneous air pocket that 

resulted from London’s tracheostomy tube becoming dislodged. Nurse Ignacio 

panicked. She tried but failed to replace London’s tracheostomy tube. She tried to 

suction the tube site, but she did not repeat the suction. She did not attempt to replace 

the tracheostomy tube with one of a smaller size. After approximately 30 minutes of 

attempting to resolve the situation on her own, Nurse Ignacio called a “code blue” and 

summoned the emergency response team, which was then able to resuscitate and 

stabilize the infant.

In addition to severe and permanent brain damage, London now suffers from 

seizures that cannot be controlled by medication, as well as spastic quadriparesis, a 

debilitating weakness in her arms and legs. London will never be able to work, care for 

herself, or manage her own affairs. She will require 24-hour a day medical care for the 

rest of her life.

Appellees sued Nurse Ignacio and Rio Grande, asserting six claims for 

negligence and breach of fiduciary duty, which appellees summarize as follows:

1. [Rio Grande] failed to provide properly trained and experienced PICU 

nurses to care for London;

2. [Appellants] failed to properly monitor London;

3. [Appellants] failed to provide the equipment London required;

4. [Nurse] Ignacio failed to timely intervene when London required 

nursing care;

5. [Nurse] Ignacio failed to properly respond once she suspected or 

discovered the displaced tracheostomy tube; and
4

6. [Nurse] Ignacio failed to timely [and] immediately initiate the 

emergency protocols London required.

Appellees also asserted claims for gross negligence, malicious injury to a child, 

and felony injury to a child. Appellees pleaded respondeat superior liability against Rio 

Grande, but also make allegations directly against the hospital. 

Attached as exhibits to appellees’ original petition were the expert reports and 

curricula vitae of Marguerite Fallon, R.N., M.S.N., and John Seals, M.D. Appellants

objected to the adequacy of those reports, detailing their perceived deficiencies and 

failures to satisfy the requirements of section 74.351. In response, appellees filed an 

additional report and curriculum vitae from William Clark, M.D. Appellants also objected

to this report as inadequate.

Appellees then filed supplemental reports from Drs. Seals and Clark. The 

supplemental reports retain the core of the original reports with some additional 

information provided. Appellants objected to the supplemental reports and filed motions 

to dismiss pursuant to section 74.351. Following a hearing, the trial court denied the 

motions to dismiss. This appeal ensued.

II. ANALYSIS

By seven issues, which we will reorganize and address as one issue, see TEX. R.

APP. P. 47.1., appellants complain that the trial court abused its discretion in denying 

their motions to dismiss appellees’ claims because the three expert reports produced by 

appellants do not represent an objective good faith effort to comply with the definition of 

an expert report in subsection (r)(6) of Texas Civil Practice and Remedies Code section 

74.351. See TEX. CIV. PRAC. & REM. CODE ANN. § 74.351(r)(6), (l).
5

A. Applicable Law

Chapter 74 of the Texas Civil Practice and Remedies Code entitles a defendant 

to dismissal of a healthcare liability claim if the defendant is not served, within 120 days 

of the date suit was filed, with an expert report showing that the claim has merit. See id.

§ 74.351(b).

1. Expert Report

The report must provide a fair summary of the expert’s opinions as of the date of 

the report regarding: (1) applicable standards of care; (2) the manner in which the care 

rendered by the healthcare provider failed to meet the standard of care; and (3) the

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

74.351(r)(6). 

Identifying the standard of care is critical: “Whether a defendant breached his or 

her duty to a patient cannot be determined absent specific information about what the 

defendant should have done differently.” Am. Transitional Care Ctrs. of Tex., Inc. v. 

Palacios, 46 S.W.3d 873, 880 (Tex. 2001). “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.

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

“magical words.” See Bowie Mem’l Hosp. v. Wright, 79 S.W.3d 48, 53 (Tex. 2002). The 

report can be informal in that the information in the report does not have to meet the 

same requirements as the evidence offered in a summary-judgment proceeding or at 

trial. Palacios, 46 S.W.3d at 879.
6

To avoid dismissal, the report must present an objective good faith effort to 

comply with these requirements. TEX. CIV. PRAC. & REM. CODE ANN. § 74.351(l). A 

“good faith effort” in this context simply means a report that does not contain a material 

deficiency. Samlowski v. Wooten, 332 S.W.3d 404, 409-10 (Tex. 2011). To constitute 

a good faith effort, the report must provide enough information to: (1) inform the 

defendant of the specific conduct the plaintiff has called into question; and (2) provide a 

basis for the trial court to conclude that the claims have merit. Bowie, 79 S.W.3d at 53.

To avoid dismissal, a plaintiff need not present evidence in the report as if it were 

actually litigating the merits. Palacios, 46 S.W.3d at 879. The report need not marshal 

all of the plaintiff’s proof, but it must include the expert’s opinion on each of the three 

elements: (1) standard of care; (2) breach; and (3) causal relationship. Bowie, 79 

S.W.3d at 53. A report cannot merely state the expert’s conclusions about these 

elements. Id. “Rather, the expert must explain the basis of his statements to link his 

conclusions to the facts.” Earle v. Ratliff, 998 S.W.2d 882, 890 (Tex. 1999).

A claimant is not required to satisfy the expert-report requirement by serving a 

single expert report, but may satisfy the requirement by serving any number of different 

reports from separate experts, which when construed together, are adequate to meet 

the requirement of providing non-conclusory expert opinions on the elements of (1) 

standard of care; (2) breach; and (3) causal relationship:

Notwithstanding any other provision of this section, a claimant may satisfy 

any requirement of this section for serving an expert report by serving 

reports of separate experts regarding different physicians or health care 

providers or regarding different issues arising from the conduct of a 

physician or health care provider, such as issues of liability and causation. 

Nothing in this section shall be construed to mean that a single expert 

must address all liability and causation issues with respect to all 
7

physicians or health care providers or with respect to both liability and 

causation issues for a physician or health care provider.

TEX. CIV. PRAC. & REM. CODE ANN. § 74.351(i).

2. Qualification as an Expert

An expert must establish that he is qualified to provide the opinions required by 

section 74.351(r)(6). Id. § 74.351(r)(5)(B). The qualifications must appear in the expert 

report and attached curriculum vitae; they cannot be inferred or provided by extrinsic 

evidence. See Baylor College of Med. v. Pokluda, 283 S.W.3d 110, 117 (Tex. App.—

Houston [14th Dist.]) 2009, no pet.).

In order to qualify as an expert in a particular case, a physician need not be a 

practitioner in the same specialty as the defendant physician. Kelly v. Rendon, 255 

S.W.3d 665, 674 (Tex. App.—Houston [14th Dist.] 2008, no pet.); Blan v. Ali, 7 S.W.3d 

741, 745 (Tex. App.—Houston [14th Dist.] 1999, no pet.); see also Broders v. Heise, 

924 S.W.2d 148, 153-54 (Tex. 1996). 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. Roberts v. Williamson, 111 S.W.3d 113, 121 (Tex. 

2003). Section 74.401 provides in pertinent part:

(c) In determining whether a witness is qualified on the basis of training 

or experience, the court shall consider whether, at the time the 

claim arose or at the time the testimony is given, the witness:

(1) is board certified or has other substantial training or 

experience in an area of medical practice relevant to the 

claim; and

(2) is actively practicing medicine in rendering medical care 

services relevant to the claim.
8

TEX. CIV. PRAC. & REM. CODE ANN. § 74.401 (c).

B. Standard of Review

The denial of the motion to dismiss is reviewed for abuse of discretion. Jelinek v. 

Casas, 328 S.W.3d 526, 539 (Tex. 2010). The abuse of discretion standard also 

applies to the trial court’s determination of whether a witness is qualified to opine in a 

health care liability case. Larson v. Downing, 197 S.W.3d 303, 304 (Tex. 2006) (per 

curiam).

C. Discussion of Nurse Fallon’s Report

Appellants have not challenged the qualifications of Nurse Fallon to provide 

expert opinions on the elements of standard of care and breach. Nurse Fallon has been 

a registered nurse for more than 15 years. She has a bachelor’s degree in nursing, a 

master’s of science degree in nursing, and is pursuing a doctorate in nursing practice. 

Nurse Fallon has spent her entire career working in the PICU in positions held by 

nurses such as Nurse Ignacio, as well as positions in which she supervised employees 

such as Nurse Ignacio. She has served as a staff RN, a staff educator, a nurse 

manager, and as a director of women’s and children’s services for a hospital system. 

She has also taught the emergency nurse pediatric course in her hospital, as well as in 

the West Texas region. She has spent her entire career caring for critically ill infants 

and children in PICUs and has cared for patients with tracheostomies, such as 

London’s. 

1. Standard of Care

Appellants complain that Nurse Fallon’s report contains the following statements 

of “generic, overarching” standards of care, which according to appellants, are 
9

“unfounded, ‘stock’ standards” and “meaningless surplusage” and “contribute nothing to 

the process but obfuscation”: (1) “[A] PICU must provide definitive care for a wide 

range of complex, progressive, and rapidly changing medical, surgical, and traumatic 

disorders occurring in pediatric patients of all ages”; and (2) “The standard of care 

requires that a pediatric patient in a PICU be kept in an environment that is safe and 

appropriate to the specific physical, psychosocial, emotional, and spiritual needs of the 

patient with a life threatening condition and the family unit.”

According to appellants, these general statements do not accomplish the 

purpose of providing the trial court with the specific information required to make the 

threshold determination of whether appellees’ claims have merit. As appellants see it, 

“They are akin to reciting the umbrella standard that a healthcare provider must do what 

an ordinarily prudent hospital [or nurse] would do under the same or similar 

circumstances.”

Although the statements quoted above are of a general nature, we conclude that 

it is inappropriate to read only selective portions of Nurse Fallon’s report in isolation, as 

appellants urge, because the adequacy of an expert report depends on all the content 

“contained within the four corners of the document.” See Benish v. Grottie, 281 S.W.3d 

184 (Tex. App.—Fort Worth 2009, pet. denied) (“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.”); see also Bowie, 79 S.W.3d at 53 (explaining that “a 

report’s adequacy does not depend on whether the expert uses any particular ‘magical 

words’” and that “the only information relevant to whether a report represents a goodfaith effort to comply with the statutory requirements is the report itself”). Accordingly, 
10

we will read the report as a whole to determine whether Nurse Fallon has set forth 

adequate statements concerning the standards of care that apply to each of appellees’ 

claims.

With regard to the standard of care for appellees’ first claim (i.e., “that [Rio 

Grande] had a duty to provide properly trained and experienced PICU nurses to care for 

patients like London”), Nurse Fallon’s report states, “The standard of care for a nursing 

staff working in a PICU should have Pediatric advanced life support (PALS) or an 

equivalent course maintained for competency.” She continues, “An appropriately 

trained RN would . . . intervene[] based on clinical assessment findings and would . . . 

document[] findings in the nurse notes and responses to the patients to said 

interventions.”

With regard to the standard of care for appellees’ second claim (i.e., that both 

Nurse Igancio and Rio Grande “failed to properly monitor London”), Nurse Fallon’s 

report provides that “severe airway obstruction in children requires that practitioners call 

early for advanced help.” Nurse Fallon states that “[a]n appropriately trained RN would . 

. . intervene[] based on clinical assessment findings . . . .” Moreover, “findings [are to] 

be documented in the nursing notes and interventions [are to] be described.” Finally, 

Nurse Fallon states that “[a] reasonable and prudent nurse would . . . realize[] the 

infant’s critical assessment findings and initiate[] an emergency response immediately.”

With regard to the standard of care for appellees’ third claim (i.e., that 

“[appellants] failed to provide the equipment London required”), Nurse Fallon’s report 

states that a PICU must “have suction catheters, tracheal intubation equipment, endo 

tracheal tubes of all sizes, and tracheotomy trays available in the PICU.” Nurse Fallon’s 
11

report states specifically that when a PICU patient has a fresh tracheotomy, the PICU 

staff must keep “a replacement tracheostomy tube of the same size and one smaller at 

the bedside.” 

With regard to the standard of care for appellees’ fourth claim (i.e., that 

“[appellants] failed to timely intervene when London required nursing care”) and 

appellees’ fifth claim (i.e., that “[Nurse] Ignacio failed to properly respond once she 

suspected or discovered the displaced tracheostomy tube”), Nurse Fallon’s report sets 

forth the following standards:

If a displaced tracheostomy tube is suspected, the standard of care 

requires bilateral auscultation of breath sounds, observation of chest rise 

and fall, and use of an exhaled CO2 detector to assess for placement.

The standard of care requires that obstructed tracheostomy tubes are 

suspected with decreased breath sounds bilaterally, or decreased chest 

rise and fall.

The standard of care requires that saline be injected into the tracheostomy 

tube to thin secretions, then a properly sized suction catheter be passed 

into the tube and suction is applied to clear secretions from the 

tracheostomy tube.

The standard of care for nursing requires that if the obstruction is still 

present, you shall repeat this procedure one time after attempting 

ventilation between attempts. 

If there is no improvement in respiratory distress, the tracheostomy tube 

will be changed immediately.

The standard of care requires that if a tracheostomy tube does not pass 

easily, the attempt shall be made immediately with a smaller sized tube to 

re-establish an airway. 

After the tube is placed, assessing placement of the tube with at least two 

confirmatory measures such as listening to breath sounds, visualization of 

equal rise and fall of chest, and use of CO2 detector shall be documented 

by the RN.
12

The standard of care for severe airway obstruction in children requires that 

practitioners call early for advanced help.

A reasonable and prudent nurse . . . [is required to] realize[] the infant’s 

critical assessment findings and initiate[] an emergency response 

immediately.

With regard to the standard of care for appellees’ sixth claim (i.e., that “[Nurse]

Ignacio failed to timely initiate the emergency protocols that London required”), Nurse 

Fallon’s report states that “[t]he standard of care for severe airway obstruction in 

children requires that practitioners call early for advanced help” and that “[a] reasonable 

and prudent nurse . . . [is required to] realize[] the infant’s critical assessment findings 

and initiate[] an emergency response immediately.”

We conclude that the specific information provided by Nurse Fallon in her report

is a fair summary sufficient for determining whether appellants breached their duties to 

London Rios. See Palacios, 46 S.W.3d at 880 (“[A] fair summary is something less than 

a full statement of the applicable standard of care and how it was breached . . . .”).

Nurse Fallon’s report sets forth specific information about what was expected from 

appellants under the circumstances presented in this case. See id. (“[A] fair summary 

must set out what care was expected, but not given.”). By providing this detailed 

information about the applicable standards of care, Nurse Fallon’s report advises 

appellants of the specific conduct appellees have called into question. See Bowie, 79 

S.W.3d at 53. Accordingly, we conclude that the trial court did not abuse its discretion 

in denying appellants’ motions to dismiss insofar as the motions sought dismissal on the 

basis that Nurse Fallon’s report “does not represent an objective good faith effort to

comply with the definition of an expert report in Subsection (r)(6)” with regard to the 

element of standard of care. See TEX. CIV. PRAC. & REM. CODE ANN. § 74.351(l), (r)(6).
13

2. Breach

Next, appellants complain that Nurse Fallon’s report fails to represent an 

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

(r)(6) with regard to the element of breach of the standard of care. See TEX. CIV. PRAC.

& REM. CODE ANN. § 74.351(r)(6). According to appellants, Nurse Fallon’s report sets 

forth several purported standards of care that she never opines were breached. 

Specifically, appellants complain about the following portion of Nurse Fallon’s report:

The standard of care for a nursing staff working in a PICU should have 

Pediatric advanced life support (PALS) or an equivalent course 

maintained for competency. The nursing staff should have an established 

program for nursing orientation, yearly competency review of high-risk, low 

frequency therapies, core competencies based on patient population, and 

ongoing educational programs specific for pediatric critical care nursing. 

All nurses working in a PICU should complete a clinical and didactic 

pediatric critical care orientation before assuming full responsibility for 

patient care.

Appellants complain that, in her list of alleged breaches of the standard of care, Nurse 

Fallon does not assert the breach of any of these standards. For example, appellants 

argue that Nurse Fallon does not opine that Nurse Ignacio failed to have “PALS or an 

equivalent course maintained for competency.” In addition, appellants contend that 

Nurse Fallon does not opine that Rio Grande nursing staff lacked “an established 

program for nursing orientation” or that Nurse Ignacio failed to “complete a clinical or 

didactic pediatric critical care orientation.”

According to appellants, the “orphaned” standards of care recited in Nurse 

Fallon’s report cannot be considered in determining whether the report demonstrates a 

good faith effort to comply with the report requirements regarding breach of the 

standards of care. We conclude that Nurse Fallon’s report sets forth adequate 
14

statements concerning breaches of the standards of care that apply to each of 

appellees’ claims.

With regard to appellees’ first claim (i.e., “that [Rio Grande] had a duty to provide 

properly trained and experienced PICU nurses to care for patients like London”), Nurse 

Fallon’s report states that there was a breach of the applicable standard of care 

because “an appropriately trained RN would have intervened based on clinical 

assessment findings and would have documented findings in the nurse notes and 

responses of the patient to the said interventions.” In addition, as appellees point out,

Nurse Fallon’s report states that Nurse Ignacio failed to properly monitor London 

because “as clinical deterioration was documented, there is an absence of airway 

interventions described by the RN caring for the child.”

With regard to appellees’ second claim (i.e., “that both [appellants] failed to 

properly monitor London), Nurse Fallon’s report explains that the standard of care was 

breached when “[Nurse] Ignacio failed to act upon the airway emergency of the infant 

for a minimum of 15 minutes and up to 30 minutes from the time of critical determination 

to cardiac arrest and initiation of code.” Nurse Fallon’s report also explains that the 

standard of care was breached when Nurse Ignacio “failed to immediately call for 

physician assistance when the airway obstruction in this infant [London] was realized.”

With regard to appellees’ third claim (i.e., that “[appellants] failed to provide the 

equipment London required”), Nurse Fallon’s report explains that the standard of care 

was breached when Nurse Ignacio failed to have “at her disposal a replacement 

tracheostomy tube of the same size as the one placed in the operating room, and a size 

smaller at the bedside of this infant on 1/30/09.” 
15

With regard to appellees’ fourth claim (i.e., that “[appellants] failed to timely 

intervene when London required nursing care”), Nurse Fallon’s report explains that the 

applicable standard of care was breached when Nurse Ignacio failed to take any 

“confirmatory measures such as C02 detector usage.” According to Nurse Fallon’s 

expert report, the standard of care was breached when “repeated suctioning of the 

tracheostomy tube was not performed, nor was an attempt made to replace the tube 

with a smaller sized tracheostomy tube.” Furthermore, the standard of care was 

breached when Nurse Ignacio “failed to immediately call for physician assistance when 

airway obstruction in this infant was realized.” Nurse Fallon explains that the standard 

of care was breached when Nurse Ignacio “failed to act upon the airway emergency of 

the infant for a minimum of 15 minutes and up to 30 minutes from the time of critical 

determination to cardiac arrest and initiation of code.”

With regard to appellees’ fifth claim (i.e., that “[Nurse] Ignacio failed to properly 

respond once she suspected or discovered the displaced tracheostomy tube”), Nurse 

Fallon’s report states that Nurse Ignacio breached the applicable standard of care when 

she failed to properly respond once she suspected or discovered the displaced 

tracheostomy tube. Specifically, she opines that Nurse Ignacio breached the applicable 

standard of care when “[n]o confirmatory measures such as C02 detector usage was 

documented.” Nurse Fallon explains that Nurse Ignacio failed to perform “repeated 

suctioning of the tracheostomy tube.” Furthermore, there was no “attempt made to 

replace the tube with a smaller sized tracheostomy tube.” Nurse Fallon opines that 

Nurse Ignacio breached the applicable standard of care when she “failed to immediately 

call for physician assistance when airway obstruction in this infant was realized.” Nurse 
16

Fallon explains that the standard of care was breached when Nurse Ignacio “failed to 

act upon the airway emergency of the infant for a minimum of 15 minutes and up to 30 

minutes from the time of critical determination to cardiac arrest and initiation of code.”

With regard to appellees’ sixth claim (i.e., that “[Nurse] Ignacio failed to timely 

initiate the emergency protocols that London required”), Nurse Fallon’s report states 

that Nurse Ignacio breached the applicable standard of care when she “failed to 

immediately call for physician assistance when airway obstruction in this infant was 

realized.”

We conclude that the specific information provided by Nurse Fallon is sufficient to 

provide a basis for determining whether appellants breached their duties to London 

Rios. See Palacios, 46 S.W.3d at 880 (“[A] fair summary is something less than a full 

statement of the applicable standard of care and how it was breached . . . .”). Nurse 

Fallon’s report sets forth specific information about what care was expected from 

appellants, but not given. See id. (“[A] fair summary must set out what care was 

expected, but not given.”). By providing this detailed information about the breaches of 

the applicable standards of care, Nurse Fallon’s report advises appellants of the specific 

conduct appellees have called into question and what appellants should have done 

differently. See Bowie, 79 S.W.3d at 53. Accordingly, we conclude that the trial court 

did not abuse its discretion in denying appellants’ motions to dismiss insofar as the 

motions sought dismissal on the basis that Nurse Fallon’s report “does not represent an 

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

(r)(6)” with regard to the element of breach of the applicable standards of care. See

TEX. CIV. PRAC. & REM. CODE ANN. § 74.351(l), (r)(6).
17

3. Causation

Finally, with regard to the element of causation, the last remaining requirement 

for an expert report under Chapter 74, appellants complain that Nurse Fallon, as a nonphysician, is categorically unqualified to provide an expert opinion. See TEX. CIV. PRAC.

& REM. CODE ANN. § 74.403(a) (West 2011) (“[I]n a suit involving a health care liability 

claim against a physician or health care provider, a person may qualify as an expert 

witness on the issue of the causal relationship between the alleged departure from 

accepted standards of care and the injury, harm, or damages claimed only if the person 

is a physician and is otherwise qualified to render opinions on that causal relationship 

under the Texas Rules of Evidence.”) (emphasis added). Appellees agree that nonphysicians are not qualified to provide opinions regarding causation. See HealthSouth 

of Houston, Inc. v. Parks, 329 S.W.3d 885, 889 (Tex. App.—Beaumont 2010, no pet.)

(“From this provision it follows that a nurse is not statutorily qualified to provide an 

expert report on the issue of causation in a health care liability claim.”).

In addition to arguing that Nurse Fallon, as a non-physician, is categorically 

unqualified from opining on causation, appellants also contend that the causation 

opinions in Nurse Fallon’s report are entirely conclusory because she “uses generalities 

and does not connect the alleged breaches to the alleged injuries.” Instead, according 

to appellants, “she simply opines that the breach caused the injury.” See Jelinek, 328 

S.W.3d at 539-40 (“An expert cannot simply opine that the breach caused the injury.”).

We conclude that, because Nurse Fallon is a non-physician, her report does not

satisfy the requirement of an expert report summarizing the causal relationship between 

the breaches of the applicable standards of care and the injuries, harm, and damages 
18

alleged by appellees. See TEX. CIV. PRAC. & REM. CODE ANN. § 74.351(r)(6). Although 

the trial court denied appellants’ motions to dismiss, which argued, inter alia, that Nurse 

Fallon’s report did not represent a good faith effort to provide an expert report 

summarizing the causal relationship between the breaches of the applicable standards 

of care and the injuries, harm, and damages claimed, it is does not necessarily follow 

that the trial court concluded that Nurse Fallon’s report was adequate on the element of 

causation or that the trial court abused its discretion in denying the motions to dismiss. 

See Wall v. Parkway Chevrolet, Inc., 176 S.W.3d 98, 104 (Tex. App.—Houston [1st 

Dist.] 2004, no pet.) (“A trial court abuses its discretion only if the record (1) clearly 

shows that the trial court misapplied the law to the established facts, (2) does not 

reasonably support the ruling, or (3) shows that the trial court acted arbitrarily or 

unreasonably.”). In order to establish that the trial court abused its discretion by 

denying the motions to dismiss, appellants are required to establish that neither of the 

other two expert reports proffered by appellees represented a good faith effort to 

provide an expert report on causation. See id.

Accordingly, we will examine the expert reports of Drs. Clark and Seals to 

determine whether they constitute a good faith effort to provide an expert report on 

causation. See TEX. CIV. PRAC. & REM. CODE ANN. § 74.351(i) (permitting claimants to 

use separate reports from different experts to meet the requirement of providing an 

expert report on (1) standard, (2) breach, and (3) causation).

D. Discussion of Dr. Clark’s Report

Dr. Clark is board certified in otolaryngology, the area of medical practice 

concerned with the ear, nose, and throat. He is a professor of otolaryngology and a 
19

practicing pediatric otolaryngologist. In addition to his experience as an ear, nose, and 

throat doctor, Dr. Clark’s curriculum vitae indicates that he also has experience as the 

Chairman of the Department of Surgery at Lyster Army Hospital. In his expert report, 

Dr. Clark explained that he regularly performs tracheotomies on infants and children 

and that, in his practice, he depends on members of the PICU to care for postoperative 

patients like London. Dr. Clark also states in his expert report that he has experience 

treating patients like London who have had their tracheostomy tubes dislodged and 

have suffered brain damage caused by a lack of oxygen as a result.

1. Standard of Care

Appellants complain that Dr. Clark’s report is inadequate on the standard-of-care 

element, for which we have already concluded Nurse Fallon’s report is adequate. 

Nevertheless, out of abundance of caution and to ensure we have adequately 

addressed all issues raised by appellants that are necessary for final disposition of this 

appeal and provided the basic reasons for our decision, we will address appellants’ 

complaints about the statements of the standards of care in Dr. Clark’s report. See TEX.

R. APP. P. 47.1.

Appellants complain that Dr. Clark’s report contains the following statements of 

“generic, overarching” standards of care, which according to appellants, are 

“unfounded, ‘stock’ standards” and “meaningless surplusage” and “contribute nothing to 

the process but obfuscation”: (1) “[T]he PICU provide a safe environment for the infant 

and be ready to initiate emergency measures should the need arise”; (2) “[T]he PICU 

staff [must] be trained to understand the risk of tube displacement in order to minimize 

the risk of its occurring and to manage the patient should it occur”; and (3) “The PICU 
20

staff must have a ‘plan,’ which is ‘appropriate protocols in place in a reasonable and

prudently operated PICU.’”

According to appellants, these general statements “do not provide specific 

information about the particular conduct at issue that is the essence and purpose of the 

section 74.351 expert report.” “Instead,” appellants say, “they amount to no more than 

stating the healthcare provider did not take sufficient precautions to avoid the injury to 

the patient.” As appellants see it, “Because [these] statements of generic standards of 

care do not assist the courts in determining whether [appellees’] claims are frivolous, 

they contribute nothing toward the statutory report requirements.”

We disagree with appellants’ assertion that Dr. Clark’s expert report is 

inadequate to provide a fair summary of the standard-of-care element.

With regard to the standard of care for appellees’ first claim (i.e., “that [Rio 

Grande] had a duty to provide properly trained and experienced PICU nurses to care for 

patients like London”), Dr. Clark opines that the standard of care required the following:

[1] [W]hen an infant with a fresh tracheostomy tube is sent to a PICU, 

that PICU must provide a safe environment for the infant and be 

ready to initiate emergency measures should the need arise.

[2] All measures involving the patient must consider the possibility of 

accidental dislodgment of the tube and be done in such a way to 

minimize such risks.

[3] [PICU staff must] be trained to understand the risk of tube 

displacement in order to minimize the risk of its occurring and to 

manage the patient should it occur.

[4] [Part of the PICU’s plan] must provide for careful handling of the 

patient, close monitoring of the patient to plan for immediate 

recognition of the tracheostomy tube being displaced, and several 

plans for securing the airway should accidental dislodgment occur.
21

[5] With any deterioration in the patient’s condition, or when a patient 

exhibits signs and symptoms of respiratory distress as London Rios 

did, dislodgment or obstruction of the tube must be considered as 

the possible cause, even if external parts of the tube visually 

appear to be normally positioned.

[6] When a tracheostomy tube becomes displaced or obstructed and 

there is a deterioration in the patient’s condition, all applicable 

professional help must be immediately mobilized to remove any 

obstruction or correct any dislodgment. This must include 

immediate contact of the physician in attendance and the surgeon 

who placed the tracheostomy and immediate initiation of 

emergency code procedures.

[7] A tracheostomy tube of the same type and size as the one used, 

plus one of size smaller must be at the bedside. An obturator for 

the tube in place must be placed at the bedside in a highly visible 

location.

[8] The PICU team must understand that a tracheostomy tube should 

never be subjected to being bag ventilated unless it is known to be 

in the trachea.

With regard to the standard of care for appellees’ second claim (i.e., that “both 

[appellants] failed to properly monitor London”), Dr. Clark’s report states that the 

applicable standard of care required that appellants “provide a safe environment for the 

infant and be ready to initiate emergency measures should the need arise.” In addition, 

PICU staff must “plan for immediate recognition of the tracheostomy tube being 

displaced, and several plans for securing the airway should accidental dislodgment 

occur.” Dr. Clark also states that “[w]ith any deterioration in the patient’s condition, or 

when a patient exhibits signs and symptoms of respiratory distress as London Rios did, 

dislodgment or obstruction of the tube must be considered as the possible cause, even 

if external parts of the tube visually appear to be normally positioned.”

With regard to the standard of care for appellees’ third claim (i.e., that 

“[appellants] failed to provide the equipment London required”), Dr. Clark’s report states 
22

that “[a] tracheostomy tube of the same type and size as the one used, plus one of one 

size smaller must be at the bedside.” He also states, under the applicable standard of 

care, the PICU staff were required to have “several plans for securing the airway should 

accidental dislodgment occur.” 

With regard to the standard of care for appellees’ fourth claim (i.e., that 

“[appellants] failed to timely intervene when London required nursing care”), Dr. Clark’s 

reports states that “[w]ith any deterioration in the patient’s condition, or when a patient 

exhibits signs and symptoms of respiratory distress as London Rios did, dislodgment or 

obstruction of the tube must be considered as the possible cause, even if external parts 

of the tube visually appear to be normally positioned.” Furthermore, “[w]hen a 

tracheostomy tube becomes displaced or obstructed and there is a deterioration in the 

patient’s condition, all applicable professional help must be immediately mobilized to 

remove any obstruction or correct any dislodgment. This must include immediate 

contact of the physician in attendance and the surgeon who placed the tracheostomy 

and immediate initiation of emergency code procedures.”

With regard to the standard of care for appellees’ fifth claim (i.e., that “[Nurse]

Ignacio failed to properly respond once she suspected or discovered the displaced 

tracheostomy tube”), Dr. Clark’s report states that “[w]hen a tracheostomy tube 

becomes displaced or obstructed and there is a deterioration in the patient’s condition, 

all applicable professional help must be immediately mobilized to remove any 

obstruction or correct any dislodgment. This must include immediate contact of the 

physician in attendance and the surgeon who placed the tracheostomy and immediate 

initiation of emergency code procedures.”
23

With regard to the standard of care for appellees’ sixth claim (i.e., that “[Nurse]

Ignacio failed to timely initiate the emergency protocols that London required”), Dr. 

Clark’s report states that “[w]hen a tracheostomy tube becomes displaced or obstructed 

and there is a deterioration in the patient’s condition, all applicable professional help 

must be immediately mobilized to remove any obstruction or correct any dislodgment. 

This must include immediate contact of the physician in attendance and the surgeon 

who placed the tracheostomy and immediate initiation of emergency code procedures.”

We conclude that the specific information provided by Dr. Clark’s report is a 

sufficient basis for determining whether appellants breached their duties to London 

Rios. See Palacios, 46 S.W.3d at 880 (“[A] fair summary is something less than a full 

statement of the applicable standard of care and how it was breached . . . .”). Dr. 

Clark’s report sets forth specific information about what was expected from appellants 

under the circumstances presented in this case. See id. (“[A] fair summary must set out 

what care was expected, but not given.”). By providing this detailed information about 

the applicable standards of care, Dr. Clark’s report advises appellants of the specific 

conduct appellees have called into question. See Bowie, 79 S.W.3d at 53. Accordingly, 

we conclude that the trial court did not abuse its discretion in denying appellants’ 

motions to dismiss insofar as the motions sought dismissal on the basis that Dr. Clark’s

report “does not represent an objective good faith effort to comply with the definition of 

an expert report in Subsection (r)(6)” with regard to the element of standard of care. 

See TEX. CIV. PRAC. & REM. CODE ANN. § 74.351(l), (r)(6).
24

2. Breach

Appellants complain that Dr. Clark’s report is inadequate on the element of 

breach of the standard of care, for which we have already concluded Nurse Fallon’s 

report is adequate. To ensure we address all issues raised and necessary for final 

disposition of this appeal, we will nonetheless address appellants’ complaints about the 

statements in Dr. Clark’s report concerning breaches of the applicable standards of 

care. See TEX. R. APP. P. 47.1.

Appellants complain that Dr. Clark’s report sets forth several purported standards 

of care that he never opines were breached. Appellants complain that “Dr. Clark opines 

that ‘PICU staff [must] be trained to understand the risk of tube displacement,’ but he 

never opines that Rio Grande’s PICU staff or Nurse Ignacio was not so trained.” 

Appellants also fault Dr. Clark’s report because “he contends that PICU staff must have 

a ‘plan,’ which he generically defines as including ‘both reasonable and prudent nursing 

protocols as more specifically described in this report and Nurse Fallon’s report, as well 

as implementation of any and all physician’s orders provided upon the patient’s arrival in 

the PICU setting,” “but he never opines that Nurse Ignacio or Rio Grande failed to have 

a plan in place.”

According to appellants, the “orphaned” standards of care recited in Dr. Clark’s 

report cannot be considered in determining whether the report demonstrates a good 

faith effort to comply with the report requirements regarding standards of care.

Appellants also complain that, “[i]n addition to opining on several standards of 

care that he never alleges were breached, Dr. Clark reverses course and opines about 

several breaches that are not linked to any purported standard of care.” For example, 
25

appellants fault Dr. Clark because “he opines that ‘PICU staff’ breached the standard of 

care by allowing London Rios to be fed at the bedside by her mother[,] [b]ut nowhere in 

his report does he opine that the standard of care forbid bedside feeding of an infant by 

her mother.” In addition, appellants fault Dr. Clark because “he opines that a breach 

occurred when ‘there was a delay in recognition of the tracheostomy tube’s becoming 

non-functional . . . [,] [b]ut his standard of care does not require immediate recognition 

of a tracheostomy tube’s becoming non-functional.” According to appellants, Dr. Clark 

merely states that, “[w]ith any deterioration in the patient’s condition[,] dislodgment or 

obstruction of the [tracheostomy] tube must be considered as the possible cause.”

We disagree with appellants’ assertion that Dr. Clark’s expert report is 

inadequate to provide a fair summary of the element of breach of the applicable 

standards of care.

With regard to appellees’ first claim (i.e., “that [Rio Grande] had a duty to provide

properly trained and experienced PICU nurses to care for patients like London”), Dr. 

Clark’s report states that the applicable standard of care was breached when “[t]he 

infant was allowed, by the PICU staff at Rio Grande . . . , to be fed at bedside by her 

mother, who has no medical training and did not understand the risks of London being 

moved.” He further opined that Rio Grande breached the standard of care because 

“there were no replacement tracheotomy tubes, at least one of the same size and at 

least one of a smaller size, at the patient’s bedside.” Dr. Clark also explains that Rio 

Grande breached the standard of care when Nurse Ignacio failed to “immediate[ly] 

recogni[ze] . . . the tracheostomy tube’s becoming non-functional.” Dr. Clark explains

that the standard of care was further breached when “[t]here was a significant delay, 
26

rather than immediately mounting a response to a life threatening emergency.” 

Specifically, in the opinion of Dr. Clark, the standard of care was breached when Nurse 

Ignacio failed “to immediately initiate the code.” Finally, Dr. Clark opines that the 

standard of care was breached when “[t]he tracheostomy tube was subjected to 

vigorous bag ventilation without insuring its proper position in the trachea, thus 

producing bilateral pneumonthoracies.” We agree with appellees that these statements 

demonstrate Dr. Clark’s opinion that Nurse Ignacio was not properly trained or 

adequately experienced when she instructed Belem to feed London and mishandled the 

emergency that was created as a result.

With regard to appellees’ second claim (i.e., “that both [appellants] failed to 

properly monitor London), Dr. Clark’s report states that the applicable standard of care 

was breached when Nurse Ignacio “delay[ed] recognition of the tracheostomy tube’s 

becoming non-functional, be it from tip displacement or obstruction.” According to Dr. 

Clark’s report, “[o]nce the emergency occurred, there was unacceptable delay in 

recognition of the source of the patient’s deterioration and a very slow response to the 

emergency.”

With regard to appellees’ third claim (i.e., that “[appellants] failed to provide the 

equipment London required”), Dr. Clark’s report states that the applicable standard of 

care was breached when “there were no replacement tracheotomy tubes, at least one of 

the same size and at least of a size smaller, at the patient’s bedside.”

With regard to appellees’ fourth claim (i.e., that “[appellants] failed to timely 

intervene when London required nursing care”), Dr. Clark’s report states that the 

applicable standard of care was breached when “[t]here was delay, rather than 
27

immediate recognition of the tracheostomy tube’s becoming non-functional, be it from 

tip displacement or obstruction.” According to Dr. Clark’s expert report, the breach of 

the applicable standard of care occurred when “[t]here was a significant delay, rather 

than immediately mounting a response to the life threatening emergency.” Again, Dr. 

Clark states in his report that the standard of care was breached by the “[f]ailure to 

immediately initiate the code.” Elsewhere in the report, Dr. Clark opines that “[o]nce the 

emergency occurred, there was unacceptable delay in recognition of the source of the 

patient’s deterioration and a very slow response to the emergency.”

With regard to appellees’ fifth claim (i.e., that “[Nurse] Ignacio failed to properly 

respond once she suspected or discovered the displaced tracheostomy tube”), Dr. Clark 

states that a breach of the applicable standard of care occurred when “[t]here was 

delay, rather than immediate recognition of the tracheostomy tube’s becoming nonfunctional, be it from tip displacement or obstruction.” He explains that “[t]here was a 

significant delay, rather than immediately mounting a response to the life threatening 

emergency.” Again, Dr. Clark states in his report that the standard of care was 

breached by the “[f]ailure to immediately initiate the code.” According to Dr. Clark, a 

breach of the standard occurred because “[o]nce the emergency occurred, there was

unacceptable delay in recognition of the source of the patient’s deterioration and a very 

slow response to the emergency.”

With regard to appellees’ sixth claim (i.e., that “[Nurse] Ignacio failed to timely 

initiate the emergency protocols that London required”), Dr. Clark’s report states that 

there was a breach of the applicable standard of care when “[t]here was delay, rather 

than immediate recognition of the tracheostomy tube’s becoming non-functional, be it 
28

from tip displacement or obstruction.” Furthermore, “[t]here was a significant delay, 

rather than immediately mounting a response to the life threatening emergency.” 

According to Dr. Clark, Nurse Ignacio breached the standard of care by her “[f]ailure to 

immediately initiate the code.”

We conclude that the specific information provided by Dr. Clark’s report is a 

sufficient basis for determining whether appellants breached their duties to London 

Rios. See Palacios, 46 S.W.3d at 880. Dr. Clark’s report sets forth specific information 

about what care was expected from appellants, but not given. See id. By providing this 

detailed information about the breaches of the applicable standards of care, Dr. Clark’s 

report advises appellants of the specific conduct appellees have called into question 

and what appellants should have done differently. See Bowie, 79 S.W.3d at 53. 

Accordingly, we conclude that the trial court did not abuse its discretion in denying 

appellants’ motions to dismiss insofar as the motions sought dismissal on the basis that 

Dr. Clark’s report “does not represent an objective good faith effort to comply with the 

definition of an expert report in Subsection (r)(6)” with regard to the element of breach of 

the applicable standards of care. See TEX. CIV. PRAC. & REM. CODE ANN. § 74.351(l), 

(r)(6).

3. Causation

Finally, with regard to the element of causation, for which we concluded that 

Nurse Fallon’s report was inadequate, appellants make a threefold attack on the 

adequacy of Dr. Clark’s report, arguing the following: (a) Dr. Clark’s report does not 

establish his qualifications to opine on causation; (b) Dr. Clark’s report fails to link the 
29

alleged breaches to the alleged injuries; and (c) Dr. Clark’s report fails to address 

foreseeability.

a) Qualifications

In their challenge to Dr. Clark’s qualifications, appellants point out that on the first 

page of his report, Dr. Clark discusses his purported qualifications to provide opinions in 

this case:

As a result of my education, training, and experience, I have knowledge of 

and am familiar with the standards of care for the care and treatment of 

pediatric patients such as London Rios and therefore am qualified to 

render an expert opinion regarding such standards of care as they pertain 

to London Rios.

Appellants complain, “That statement tells us nothing about his qualification to testify 

with regard to causation. His choice to affirmatively state that he is qualified to opine on 

standards of care implies that he is not qualified to opine on other issues.” According to 

appellants, “This missing qualification is not supplied by the rest of his report or his CV.”

In response, appellees tell us that Dr. Clark’s qualifications to opine on causation 

are supplied by his expert report and “his 22 page-long CV where he described his 

qualifications to render an expert report on breach and causation.” Appellees draw our 

attention to Dr. Clark’s experience treating patients who have had their tracheostomy 

tubes dislodged and have suffered brain damage caused by lack of oxygen as a result. 

According to appellees, “[t]hat experience qualifies him to provide an expert opinion 

linking London Rios’ injuries to the failures by Nurse Ignacio and Rio Grande Regional 

Hospital to comply with the standard of care.”

We agree with appellees. An expert is qualified to give opinion testimony about 

the causal relationship between the injury claimed and the alleged departure from the 
30

applicable standard of care if he is “otherwise qualified to render opinions on such 

causal relationship under the Texas Rules of Evidence.” See TEX. CIV. PRAC. & REM.

CODE ANN. § 74.351(r)(5)(C), § 74.403(a). The Texas Rules of Evidence provide that 

“[i]f scientific, technical, or other specialized knowledge will assist the trier of fact to 

understand the evidence or to determine a fact in issue, a witness qualified as an expert 

by knowledge, skill, experience, training, or education may testify thereto in the form of 

an opinion or otherwise.” TEX. R. EVID. 702; see also Roberts v. Williamson, 111 

S.W.3d 113, 121-22 (Tex. 2003) (recognizing that while a medical license does not 

automatically qualify holder to testify as expert on every medical question, the test is not 

whether expert practices in a particular field of medicine, but rather whether offering 

party has established that expert has knowledge, skill, experience, training, or education 

regarding specific issue before court that would qualify expert to give opinion on 

particular subject and holding that based on qualifications and experience, pediatrician 

was qualified to opine on cause and effect of neurological injuries). We agree with 

appellees’ assertion that Dr. Clark’s qualifications to opine on causation are adequately 

supplied by his expert report and his 22-page curriculum vitae.

We conclude that the trial court did not abuse its discretion in determining that 

Dr. Clark was qualified by his knowledge, training, and experience to give opinion 

testimony on the issue of causation. See Mem'l Hermann Healthcare Sys. v. Burrell, 

230 S.W.3d 755, 757 (Tex. App.—Houston [14th Dist.] 2007, no pet.) (citing Broders v. 

Heise, 924 S.W.2d 148, 151-52 (Tex.1996)).

Next, appellants point out that, in his report, Dr. Clark “purports to offer causation 

opinions linking alleged breaches with, among other things, ischemic brain injury, and 
31

severe neurological impairment.” Appellants complain that Dr. Clark is a pediatric 

otolaryngologist, “not a neurologist or otherwise trained in brain injuries.” Therefore, 

appellants contend, Dr. Clark has failed to establish that he is qualified to opine about 

the causes of brain and other neurological injuries.

In response, appellees note that there is no challenge being made to Dr. Clark’s 

qualification to opine that the dislodgement of the tracheostomy tube stopped the 

delivery of air to London’s lungs. As appellees see it, the challenge to Dr. Clark’s 

qualification is essentially that Dr. Clark is not able to opine that a lack of oxygen to the 

brain caused London’s brain damage. Appellees tell us, “Certainly a Fellow in the 

American College of Surgeons, the International College of Surgeons, the American 

Academy of Otolaryngology, and a Charter Member of the American Society of 

Pediatric Otolaryngology is qualified to provide an opinion that when London Rios was 

deprived of oxygen for a substantial period of time, that caused her [to suffer] brain 

damage.” 

We agree with appellees. Dr. Clark is qualified to give these opinions based on 

his knowledge, training, and experience, particularly his experience treating patients 

who have had their tracheostomy tubes dislodged and have suffered brain damage 

caused by lack of oxygen as a result. See McKowen v. Ragston, 263 S.W.3d 157, 164 

(Tex. App.—Houston [1st Dist.] 2007, no pet.) (holding that standard of care expert “is 

qualified to testify in an area, as here, in which [he] has knowledge, skill, training, and 

experience, and where the subject of the claim (here, an infection from an AV graft) falls 

squarely within his medical expertise”).
32

We conclude that the trial court did not abuse its discretion in determining that 

Dr. Clark was qualified by his knowledge, training, and experience to give opinion 

testimony on the issue of causation. See Mem'l Hermann Healthcare, 230 S.W.3d at

757 (citing Broders, 924 S.W.2d at 151-52).

Finally, appellants complain that “Dr. Clark prefaces each of his causation 

opinions with the conclusory statement that the opinions are based generically on 

‘medical literature, studies, and my professional training and experience.’” Appellants 

say “that is far too general.” For appellants, this “is not remedied by the reference that 

Dr. Clark ‘has treated pediatric patients who have had tracheostomy tube dislodgment 

and subsequent hypoxic events.’” “This reference does not demonstrate his 

qualifications,” according to appellants, because Dr. Clark failed to provide “any 

explanation of the timing of this treatment (i.e., before or after the ‘subsequent hypoxic 

events’) or the level of his involvement in that treatment.” 

We have already concluded that the trial court did not abuse its discretion in 

determining that Dr. Clark is qualified to opine on the issue of causation. Accordingly, 

we find no merit in appellants’ complaint that Dr. Clark relied on medical literature, 

studies, and his professional training and experience in supplying his opinions on the 

issue of causation.

b) Link between Breach and Injury

Appellants complain that Dr. Clark’s report fails to link the alleged breaches to 

the alleged injuries. In particular, appellants complain about Dr. Clark’s opinion that 

PICU staff breached the standard of care because “the displaced tracheostomy tube 

was subjected to vigorous bag ventilation without insuring its proper position in the 
33

trachea, thus producing bilateral pneumonthoracies.” Appellants complain that Dr. 

Clark failed to opine that this breach “proximately caused any of the alleged injuries.” It 

is not enough, according to appellants, that Dr. Clark makes the “global statement” that 

“as a result of [what appellants call] the [“unspecified”] breaches of the standard of care 

by the PICU staff, London Rios was deprived of oxygen for a substantial period of time 

resulting in cardiopulmonary arrest.” According to appellants, “Dr. Clark was required 

to, but did not, explain how any particular breach deprived London Rios of oxygen for a 

substantial period of time.”

According to appellants, “It is not sufficient for Dr. Clark to state his conclusions 

about causation without explaining how or why each alleged breach links to the alleged 

injuries.” Appellants say, “The ‘how’ and ‘why’ are missing entirely from Dr. Clark’s 

opinions on causation.” Therefore, according to appellants, “His causation opinions do 

not present a good faith attempt to comply with the statutory requirements.”

Appellees disagree. According to appellees, Dr. Clark reviewed 3,340 pages of 

the medical records from Rio Grande, including the discharge summary, respiratory 

care notes, physician orders, progress notes, nursing documentation, history and 

physical, radiology reports, laboratory reports, and consultant notes as well as the 

expert reports of Dr. Seals and Nurse Fallon. Dr. Clark notes that London’s medical 

records show that London was exhibiting “circumoral cyanosis, mottled skin, and 

subcutaneous air of the head and upper chest” while she was intubated with a 

tracheostomy tube. Dr. Clark explains that those are recognized signs and symptoms 

of respiratory distress. Therefore, according to appellees, Dr. Clark linked his opinion to 

the conclusion that “[a]s a result of the breaches of [the] standard of care by the PICU 
34

staff, London Rios was deprived of oxygen for a substantial period of time resulting in 

cardiopulmonary arrest.” He further explains that London’s “brain was deprived of 

needed oxygen for far too long for her to enjoy a favorable neurological outcome.”

Dr. Clark states that this “chain of events would have been prevented by more 

careful handling of the patient.” He states his opinion that “[h]ad Jasmin Ignacio, R.N. 

and Rio Grande . . . properly recognized the signs and symptoms of respiratory distress, 

immediately acted to check the patency of the tracheostomy tube, immediately called 

for physician assistance and initiated emergency code procedures . . . the resulting 

injuries to London Rios would not have occurred in all reasonable medical probability.” 

According to Dr. Clark, “if the PICU nurse and Rio Grande had acted reasonably and 

prudently as set out in the above standard of care, or as set out in Nurse Fallon’s report, 

London Rios would not have suffered the cardiopulmonary arrest, ischemic brain injury, 

and neurologic impairment.” He describes his opinion that “the injuries to London Rios . 

. . were a direct result of the oxygen deprivation caused by the breaches as set out 

herein and in Nurse Fallon’s expert report.”

We disagree with appellants’ assertion that Dr. Clark’s report is merely 

conclusory on the issue of causation. See Arkoma Basin Exploration Co. v. FMF 

Assocs. 1990-A, Ltd., 249 S.W.3d 380, 391 n.32 (Tex. 2008) (defining conclusory as 

“[e]xpressing a factual inference without stating the underlying facts on which the 

inference is based”). Contrary to what appellants have represented to this Court, Dr.

Clark’s report does link the departures from the applicable standards of care to the 

complained of injuries. See TEX. CIV. PRAC. & REM. CODE ANN. § 74.351(r)(6). Among 

other things, his report plainly states “how” the injuries occurred: “the injuries to London 
35

Rios . . . were a direct result of the oxygen deprivation caused by the breaches as set 

out herein and in Nurse Fallon’s expert report.” His report also states “why” the injuries 

occurred: “the PICU nurse and Rio Grande had [not] acted reasonably and prudently as 

set out in the above standard of care, or as set out in Nurse Fallon’s report.” Finally, Dr. 

Clark opines that “if the PICU nurse and Rio Grande had acted reasonably and 

prudently as set out in the above standard of care, or as set out in Nurse Fallon’s report, 

London Rios would not have suffered the cardiopulmonary arrest, ischemic brain injury, 

and neurologic impairment.” 

To constitute a good faith effort to establish the causal relationship element, the 

expert report need not marshal all of the plaintiff’s proof, or present evidence as if the 

plaintiff was actually litigating the merits. See id. In this case, Dr. Clark’s report 

exceeds a good faith effort to establish the element of causation, arguably approaching 

the type of evidence marshalling that is not required at this stage of the proceedings. 

See Bowie, 79 S.W.3d at 53 (“The report need not marshal all the plaintiff’s proof . . . .”).

c) Foreseeability

Appellants complain that Dr. Clark’s report does not discuss the issue of 

foreseeability. See IHS Cedars Treatment Ctr. of Desoto, Texas, Inc. v. Mason, 143 

S.W.3d 794, 798 (Tex. 2004) (“The two elements of proximate cause are cause in fact 

(or substantial factor) and foreseeability.”). Without any opinion explaining why the 

alleged injuries were reasonably foreseeable, appellants argue, Dr. Clark’s report is not 

adequate to assist the court in determining whether appellees’ claims have merit.

Appellants cite no authority and we have found none to support their contention 

that an expert report must opine on whether the specific injuries sustained by the 
36

claimant could have been foreseen by the healthcare defendants; however, appellees 

have cited one decision by the Dallas Court of Appeals specifically declining to impose 

such a requirement. See Adeyemi v. Guerrero, 329 S.W.3d 241, 246 (Tex. App.—

Dallas 2010, no pet.) (“Finally, [defendant] argues that [plaintiff’s] expert report is 

insufficient because it never addresses foreseeability . . . . [Defendant] cites no 

authority, however, and we have found none, to support her contention that an expert 

report must opine on whether the specific injuries sustained by the claimant could have 

been foreseen by the defendant physician.”) (internal citations omitted). In light of the 

foregoing precedent, we hold that the trial court did not abuse its discretion in refusing

to impose a new requirement that the expert report address the element of 

foreseeability. See Bowie, 79 S.W.3d at 53 (“A trial court abuses its discretion if it acts 

in an arbitrary or unreasonable manner without reference to any guiding rules or 

principles.”) (citing Downer v. Aquamarine Operators, Inc., 701 S.W.2d 238, 241-42 

(Tex. 1985)).

Accordingly, based on the foregoing, we conclude that Dr. Clark’s report is 

sufficient because it (1) informs appellants of the specific conduct appellees have called 

into question—linking the departures from the standards of care to the alleged injuries—

and (2) provides a basis for the trial court to conclude the claims are meritorious. See 

id. at 52. 

4. Failure to Identify Particular Defendants

Finally, appellants complain that Dr. Clark opines about standards of care, 

alleged breaches, and causation “by the PICU staff at Rio Grande Regional Hospital.” 

He explains that “PICU staff” refers both to “any and all staff (agents, servants, or 
37

employees) of Rio Grande Regional Hospital” and specifically to “any and all staff 

(agents, servants, or employees) of Rio Grande Regional Hospital” and specifically to 

Nurse Ignacio. According to appellants, “by Dr. Clark’s own definition, ‘PICU staff’ 

reaches far beyond the nurses caring for London Rios’ care within the PICU doors to 

encompass ‘any and all staff of Rio Grande Regional Hospital.’”

Appellants offer the following argument:

By overreaching, Dr. Clark fails to identify which standards of care, 

breaches, and causation opinions apply to Nurse Ignacio (or even to 

nurses generally). He does not explain why the standards, breaches, or 

causation should be attributed to Nurse Ignacio rather than other staff 

members. He does not identify which standards of care, breaches, or 

causation opinions, if any, apply to Rio Grande directly.

According to appellants, the generality in Dr. Clark’s expert report violates the rule that 

an expert report must: (1) identify which standards of care apply to each defendant; (2) 

explain how each defendant breached a standard of care applicable to him; and (3) set 

forth the reasons that each breach proximately caused the plaintiff’s injuries. See 

Doades v. Syed, 94 S.W.3d 664, 671-72 (Tex. App.—San Antonio 2002, no pet.) (“We 

hold [the expert’s] report does not constitute a good faith effort to comply with the 

requirements of section 13.01 because it fails to set forth the standard of care for each 

of the defendant health care providers and contains mere conclusions regarding breach 

and causation.”). 

Although appellants are willing to concede “it is possible that an identical 

standard of care might apply to different defendants,” they maintain that generic 

statements that assume this fact without explanation should reasonably be deemed 

conclusory. See Gray v. CHCA Bayshore L.P., 189 S.W.3d 855, 859 (Tex. App.—

Houston [1st Dist.] 2006, no pet.) (“[M]edical malpractice plaintiffs must provide an 
38

expert report detailing standard of care, breach, and causation as to each defendant. 

Here, the report states, without explanation, that a single standard of care applied to 

both [the perioperative nursing staff] and [the anesthesiologist]. While it is possible that 

an identical standard of care regarding limb monitoring during and after surgery 

attaches to an anesthesiologist . . . and a perioperative nursing staff . . . , such generic 

statements, without more, can reasonably be deemed conclusory.”) (internal citations 

omitted). 

According to appellants, Dr. Clark’s general statements about “PICU staff,” 

particularly as he defines that term, do not constitute a good faith effort to comply with 

the statutory requirements. See Eichelberger v. St. Paul Med. Ctr., 99 S.W.3d 636, 639 

(Tex. App.—Dallas 2003, pet. denied) (concluding that report “does not represent a 

good faith effort to comply with the statutory definition of an expert report . . . [because 

the] report does not mention any of the [defendants] by name or summarize the ways in 

which any of the [defendants] breached the standard of care or caused [the plaintiff] any 

injury”); Doades, 94 S.W.3d at 671.

We have already concluded that Dr. Clark’s report is sufficient because it (1) 

informs appellants of the specific conduct appellees have called into question and (2) 

provides a basis for the trial court to conclude the claims are meritorious. See Bowie, 

79 S.W.3d at 52. Contrary to what appellants suggest, Dr. Clark’s report is not at all 

comparable to the report at issue in Eichelberger, where the “expert report [did] not 

mention any of the [defendants] by name or summarize the ways in which any of the 

[defendants] breached the standard of care or caused [the plaintiff] any injury.” See 

Eichelberger, 99 S.W.3d at 639. In his report, Dr. Clark makes appropriately specific 
39

references to each defendant and fairly summarizes how each defendant breached the 

standard of care and caused the complained-of injuries.

We conclude that the specific information provided by Dr. Clark’s report is a 

sufficient basis for determining whether appellants’ breach of their duties to London 

Rios caused the injuries alleged by appellees. See Palacios, 46 S.W.3d at 880 (“[A] fair 

summary is something less than a full statement of the applicable standard of care and 

how it was breached . . . .”). Dr. Clark’s report sets forth specific information about what 

care was expected from appellants, but not given, and it links the departures from the 

standards of care to the complained-of injuries. See id. (“[A] fair summary must set out 

what care was expected, but not given.”); Bowie, 79 S.W.3d at 52 (holding that a “goodfaith effort” must fairly summarize the causal relationship between the alleged breach 

and the injury). By providing this detailed information about the breaches of the 

applicable standards of care, Dr. Clark’s report advises appellants of the specific 

conduct appellees have called into question and what appellants should have done 

differently. See Bowie, 79 S.W.3d at 53. Accordingly, we conclude that the trial court 

did not abuse its discretion in denying appellants’ motions to dismiss insofar as the 

motions sought dismissal on the basis that Dr. Clark’s report “does not represent an 

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

(r)(6)” with regard to the element of causation. See TEX. CIV. PRAC. & REM. CODE ANN. § 

74.351(l), (r)(6).

E. Discussion of Dr. Seals’ Report

The parties agree that there is no challenge to Dr. Seals’ qualifications to render 

an expert opinion on causation. Dr. Seals’ report states that Dr. Seals is Board certified 
40

in Neurology with Special Competence in Child Neurology. Dr. Seals’ report also states 

that he has been in the continuous practice of Pediatric Neurology since 1971. 

1. Standard of Care

Appellants complain that Dr. Seals fails to address the applicable standard of 

care, for which we have already concluded the expert reports of Nurse Fallon and Dr. 

Clark are adequate. Nevertheless, out of abundance of caution and to ensure we have 

adequately addressed all issues raised by appellants that are necessary for final 

disposition of this appeal and provided the basic reasons for our decision, we will 

address appellants’ complaints about the statements of the standards of care in Dr. 

Seals’ report. See TEX. R. APP. P. 47.1.

With regard to the standard of care for appellees’ fourth claim (i.e., that 

“[appellants] failed to timely intervene when London required nursing care”), Dr. Seals’ 

report states that “if intervention is to be successful, it must occur early enough to allow 

reversal of the pathophysiologic sequence that otherwise will proceed inexorably to 

brain tissue changes and irreversible damage to the brain.”

With regard to the standard of care for appellees’ sixth claim (i.e., that “[Nurse]

Ignacio failed to timely initiate the emergency protocols that London required”), Dr. 

Seals’ report states that “if intervention is to be successful, it must occur early enough to 

allow reversal of the pathophysiologic sequence that otherwise will proceed inexorably 

to brain tissue changes and irreversible damage to the brain.”

We conclude that, as to appellees’ fourth and sixth claims against appellants, the 

foregoing standards of care are sufficiently specific to constitute a good faith effort 

because they provide enough information to inform appellants of the specific standards 
41

of care applicable to the conduct appellees have called into question and to allow the 

trial court to determine that appellees’ claims have merit. See Bowie, 79 S.W.3d at 53.

2. Breach

Next, appellants complain about Dr. Seals’ report with respect to the element of 

breach of the applicable standards of care, for which we have already concluded the 

expert reports of Nurse Fallon and Dr. Clark are adequate. Nevertheless, out of 

abundance of caution and to ensure we have adequately addressed all issues raised by 

appellants that are necessary for final disposition of this appeal and provided the basic 

reasons for our decision, we will address appellants’ complaints about Dr. Seals’ report 

with respect to the element of breach of the applicable standards of care. See TEX. R.

APP. P. 47.1.

Appellants complain that Dr. Seals fails to address any breach of the applicable 

standard of care. In his report, Dr. Seals states:

I would accept the expressed opinions of the experts, Marguerite Fallon, 

RN and William Clark, M.D., regarding the breaches in standard of care 

for an infant such as London Rios during the time interval that she 

incurred hypoxic-ischemic brain injury on 1/31/09.

According to appellants, there are at least four problems with this approach, which 

demonstrate that “Dr. Seals’ report fails the statutory requirements at virtually every 

fundamental level.” 

First, appellants complain that Dr. Seals’ acceptance of others’ opinions is, itself, 

conclusory. Appellants note that an expert must explain the basis for his statements 

and must link his conclusions to the facts. See Gray v. CHCA Bayshore L.P., 189 

S.W.3d 855, 859 (Tex. App.—Houston [1st Dist.] 2006, no pet.) (“The expert must 

explain the basis for his statements and must link his conclusions to the facts.”). Here, 
42

appellants complain, “Dr. Seals does not identify which opinions he is accepting.” 

Appellants complain further, “He does not explain why he agrees with each of those 

opinions. Nor does he explain why each of those opinions is correct.” Appellants note, 

“If no basis for an opinion is offered, the opinion is conclusory and is no evidence of 

anything.” See Jelinek, 328 S.W.3d at 539-40 (“An expert cannot simply opine that the 

breach caused the injury . . . . Instead, the expert must go further and explain, to a 

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

presented.”). According to appellants, Dr. Seals’ report “facially violates that rule.”

Second, appellants complain that “Dr. Seals’ report and CV do not demonstrate 

that he is qualified to opine on nursing standards of care or their breach, either generally 

or with regard to PICU nurses.” Appellants point out that his report limits his purported

qualifications to “render[ing] opinions on such medical and neurological conditions as 

are under consideration in a case such as London Rios.”

Third, appellants complain that “Dr. Seals purports to accept Dr. Clark’s and 

Nurse Fallon’s opinions regarding ‘the breaches in standard of care,’ but he does not 

state that he accepts their opinions regarding the applicable standards of care 

themselves.” Thus, according to appellants, “his report is not rooted in any identified 

standard of care he is shown to be familiar with.”

Fourth, appellants complain that “Dr. Seals does not link any of the others’ 

opinions on alleged breaches of the standards of care to the alleged injuries.” 

According to appellants, “His report does not detail the causal relationship between any 

alleged breach and London Rios’ injuries.” See Eichelberger, 99 S.W.3d at 639. 
43

Appellants complain that Dr. Seals’ report “does not even provide insight into 

[appellees’] claims, which would itself be inadequate.”

We agree with appellees that, by statute, appellees are permitted to fulfill 

different components of the expert report requirement with reports of different experts:

Notwithstanding any other provision of this section, a claimant may satisfy 

any requirement of this section for serving an expert report by serving 

reports of separate experts regarding different physicians or health care 

providers or regarding different issues arising from the conduct of a 

physician or health care provider, such as issues of liability and causation. 

Nothing in this section shall be construed to mean that a single expert 

must address all liability and causation issues with respect to all 

physicians or health care providers or with respect to both liability and 

causation issues for a physician or health care provider.

TEX. CIV. PRAC. & REM. CODE ANN. § 74.351(i); see also Walgreen Co. v. Hieger, 243 

S.W.3d 183, 187 n.2 (Tex. App.—Houston [1st Dist.] 2007, pet. denied) (“[U]nder 

section 74.351(i), expert reports may be considered together in determining whether the 

plaintiff has provided adequate expert opinion regarding the standard of care, breach, 

and causation.”). 

We have concluded that the expert reports of Nurse Fallon and Dr. Clark are 

adequate on the elements of (1) standard of care; (2) breach; and (3) causation. 

Accordingly, we find appellants’ complaints about Dr. Seals’ use of those reports to be 

without merit. We conclude that the specific information provided by Dr. Seals’ report is 

a sufficient basis for determining whether appellants breached their duties to London 

Rios. See Palacios, 46 S.W.3d at 880 (“[A] fair summary is something less than a full 

statement of the applicable standard of care and how it was breached . . . .”). Dr. Seals’ 

report sets forth specific information about what care was expected from appellants, but 

not given. See id. (“[A] fair summary must set out what care was expected, but not
44

given.”). By providing this detailed information about the breaches of the applicable 

standards of care, Dr. Seals’ report advises appellants of the specific conduct appellees 

have called into question and what appellants should have done differently. See Bowie, 

79 S.W.3d at 53. Accordingly, we conclude that the trial court did not abuse its 

discretion in denying appellants’ motions to dismiss insofar as the motions sought 

dismissal on the basis that Dr. Seals’ report “does not represent an objective good faith 

effort to comply with the definition of an expert report in Subsection (r)(6)” with regard to 

the element of breach of the applicable standards of care. See TEX. CIV. PRAC. & REM.

CODE ANN. § 74.351(l), (r)(6).

3. Causation

Next, appellants complain about Dr. Seals’ report with respect to the element of 

causation, for which we have already concluded the expert report of Dr. Clark is 

adequate. Nevertheless, to ensure we address all issues raised and necessary for final 

disposition of this appeal, we will address appellants’ complaints about Dr. Seals’ report 

with respect to the element of causation. See TEX. R. APP. P. 47.1.

Appellants make a twofold challenge to the adequacy of Dr. Seals’ report with 

regard to the element of causation: (a) Dr. Seals does not link his causation opinions to 

any alleged breach of any purported standards of care; and (b) Dr. Seals does not 

discuss foreseeability.

a) Link between Breach and Injury

Appellants complain that “Dr. Seals’ causation opinions are, themselves, 

insufficient . . . [because] [h]e does not explain how or why any conduct by Rio Grande 

or Nurse Ignacio proximately caused the alleged injuries.” Appellants fault Dr. Seals for 
45

his “attempts to link the alleged injuries with the reported events in the abstract” when 

he opines as follows:

I believe, within a reasonable degree of medical certainty, that all of 

London’s neurologic impairments, which include intractable seizure 

disorder, developmental delays and spastic quadriparesis, are the residual 

clinical expression of the hypoxic-ischemia encephalopathy and 

consequent brain damage incurred during the documented cardiorespiratory arrest of 1/31/09 which resulted from the dislodgement of her 

tracheostomy tube. 

Appellants ask this Court to “[n]ote carefully how Dr. Seals chose his language 

so as not to opine that the dislodgment of her tracheostomy tube was caused by the 

breach of any standard of care by Rio Grande or Nurse Ignacio.” Appellants argue that 

the report is inadequate because “[n]owhere [in it] does Dr. Seals offer any opinions 

regarding the legal responsibility for the underlying events.”

Appellants make the following argument:

[Appellees] cannot piggyback Dr. Seals’ report on to the reports of Dr. 

Clark and Nurse Fallon to supply this missing link. Even indulging Dr. 

Seals’ conclusory statement that he ‘would accept’ Dr. Clark’s and Nurse 

Fallon’s opinions about ‘breaches in standard of care,’ he does not take 

the next critical step to opine that those breaches caused the dislodgment 

of London Rios’ tracheostomy tube. And it does Dr. Seals little good to 

adopt the opinions of Dr. Clark and Nurse Fallon—neither of them opines 

that Nurse Ignacio or Rio Grande caused the ‘dislodgment’ of the 

trachestomy tube.

Cf. GMC v. Iracheta, 161 S.W.3d 462, 472 (Tex. 2005) (“[Plaintiff] attempts to borrow 

from each of her experts pieces of opinion that seem to match, tie them together in an 

ill-fitting theory, discard the unwanted opinions, disregard the fact that the experts 

fundamentally contradicted themselves and each other, and then argue that this is 

some evidence to support the verdict. Inconsistent theories cannot be manipulated in 

this way to form a hybrid for which no expert can offer support.”).
46

Based on the foregoing, appellants argue that because “Dr. Seals’ report does 

not link the alleged injuries to any defendant or to any alleged breach of the standard of 

care . . . [his report] is, in its entirety, a deficient report that does not constitute a good 

faith effort to meet the statutory requirements.”

Again, we agree with appellees that Dr. Seals was allowed to review the reports 

of the other experts, rely on them, and incorporate the opinions of the other experts into 

his report. See Christus Spohn Health Sys. Corp. v. Lackey, No. 13-10-00222-CV, 

2010 Tex. App. LEXIS 6720, at *10 (Tex. App.—Corpus Christi Aug. 19, 2010, no pet.) 

(mem. op.) (“[N]othing in the health care liability statute prohibits an otherwise qualified 

physician from relying on a nurse’s report in the formation of the physician's own 

opinion.”) (quoting Kelly v. Rendon, 255 S.W.3d 665, 676 (Tex. App.—Houston [14th 

Dist.] 2008, no pet.)); see also Martin v. Abilene Reg’l Med. Ctr., No. 11-04-00303-CV,

2006 Tex. App. LEXIS 897, at *14-15 (Tex. App.—Eastland Feb. 2, 2006, no pet.) 

(mem. op.) (“The trial court abused its discretion by not reading the reports of [nurse]

and [doctor] together to conclude that [plaintiff’s] reports provided a fair summary of the 

experts’ opinions regarding the causal relationship between [hospital’s] actions and the

stent reocclusion.”).

In his report, Dr. Seals incorporates the opinions of Nurse Fallon and Dr. Clark, 

which we have concluded are sufficient to establish all three elements: (1) standard of 

care; (2) breach; and (3) causation. Dr. Seals then opines in further support of the 

causal connection between the allegedly negligent conduct of Nurse Ignacio and Rio 

Grande Regional involving the dislodgement of the tracheostomy tube and the 

complained-of injuries by stating “[b]ased on my education, training, and professional 
47

experience as a pediatric neurologist I believe, within a reasonable degree of medical 

certainty, all of London’s neurological impairments . . . are the residual clinical 

expression of the hypoxic-ischemia encephalopathy and consequent brain damage 

incurred during the documented cardio-respiratory arrest of 1/31/09 which resulted from 

the dislodgement of her tracheostomy tube.”

Accordingly, based on the foregoing, we conclude that Dr Clark’s report is 

sufficient because it (1) informs appellants of the specific conduct appellees have called 

into question—linking the departures from the standards of care to the alleged injuries—

and (2) provides a basis for the trial court to conclude the claims are meritorious. See 

Bowie, 79 S.W.3d at 52.

b) Foreseeability

As with Dr. Clark’s report, appellants complain that Dr. Seals’ report does not 

discuss the issue of foreseeability. See Mason, 143 S.W.3d at 798. Without any 

opinion explaining why the alleged injuries were reasonably foreseeable, appellants 

argue, Dr. Seals’ report is not adequate to assist the court in determining whether 

appellees’ claims have merit. Again, we conclude that the trial court did not abuse its 

discretion by refusing to impose a new requirement that expert reports include opinions 

on the issue of foreseeability.

We conclude that the specific information provided by Dr. Seals’ report is a 

sufficient basis for determining whether appellants’ breach of their duties to London 

Rios caused the injuries alleged by appellees. See Palacios, 46 S.W.3d at 880. Dr. 

Seals’ report sets forth specific information about what care was expected from 

appellants, but not given, and it links the departures from the standards of care to the 
48

complained-of injuries. See id.; Bowie, 79 S.W.3d at 52 (holding that a “good-faith 

effort” must fairly summarize the causal relationship between the alleged breach and 

the injury). By providing this detailed information about the breaches of the applicable 

standards of care, Dr. Seals’ report advises appellants of the specific conduct appellees 

have called into question and what appellants should have done differently. See Bowie, 

79 S.W.3d at 53. Accordingly, we conclude that the trial court did not abuse its 

discretion in denying appellants’ motions to dismiss insofar as the motions sought 

dismissal on the basis that Dr. Seals’ report “does not represent an objective good faith

effort to comply with the definition of an expert report in Subsection (r)(6)” with regard to 

the element of causation. See TEX. CIV. PRAC. & REM. CODE ANN. § 74.351(l), (r)(6).

F. Discussion of Other Claims

In addition to the foregoing, appellants complain that the trial court erred in failing 

to dismiss appellees’ claims for gross negligence, malicious injury to a child, felony 

injury to a child, and direct liability against appellant Rio Grande. According to 

appellants, there are no opinions in any of the reports regarding malice or other required 

elements of these claims. See St. David's Healthcare P'ship, L.P., LLP v. Esparza, 348 

S.W.3d 904, 906 (Tex. 2011) (holding, in suit alleging premises liability, that “[t]he trial 

court should have dismissed Esparza’s claim for failure to comply with the expert report 

requirements of the TMLA”).

1. Gross Negligence

Appellees argue that their expert reports were not required to address the legal 

standards for gross negligence because opinions on these issues are not required by 

the statute and because they involve legal standards on which a healthcare provider 
49

would not be qualified to provide an expert opinion. Appellees note that both the 

Fourteenth Court of Appeals in Houston and the Second Court of Appeals in Fort Worth 

have recently rejected arguments similar to those made by appellants in this case. See 

Nowzaradan v. Ryans, 347 S.W.3d 734 (Tex. App.—Houston [1st Dist.] 2011, no pet.); 

Benish v. Grottie, 281 S.W.3d 184 (Tex. App.—Fort Worth 2009, pet. denied). 

In Nowzaradan, the Fourteenth Court of Appeals recognized that the medical 

standard of care is the same in claims of ordinary negligence and gross negligence, 

with the only difference between the two being “the extent to which the physician 

breached the standard.” Nowzaradan, 347 S.W.3d at 741. Noting that section 74.351 

is concerned only with “the manner in which the physician breach[ed] the applicable 

standard of care,” not with “the extent of the breach,” the Fourteenth Court of Appeals 

rejected the defendant’s argument that the plaintiff’s expert report was insufficient. Id. 

at 741 (emphasis in original).

The Second Court of Appeals also rejected claims that a gross negligence cause 

of action against a healthcare provider required a separate expert report, noting that it 

had not found any authority to support the defendants’ argument that such an expert 

report was required. Benish, 281 S.W.3d at 192. Additionally, the court questioned the 

practicality and workability of any such requirement, noting that the time constraints and 

limited discovery involved in filing a Chapter 74 expert report make it “doubtful that an 

expert preparing a section 74.351 report would ever be able to offer an opinion that a 

healthcare provider acted with the requisite state of mind to establish gross negligence. 

Id. 
50

We agree with appellees. To the extent appellants’ motions sought dismissal of 

appellees’ claims based on the failure of their expert reports to discuss the experts’

opinions on issues other than the three elements that are required (i.e., (1) standard of 

care, (2) breach, and (3) causal relationship), the trial court did not abuse its discretion 

in denying the motions. See Bowie, 79 S.W.3d at 53. 

2. Injury to a Child

With regard to appellants’ complaint that appellees’ expert reports fail to discuss 

appellees’ claims for malicious or criminal injury to a child, appellees contend that these 

claims allege intentional torts and criminal conduct, which Chapter 74 does not cover. 

See Nexus Recovery Ctr., Inc. v. Mathis, 336 S.W.3d 360, 365 (Tex. App.—Dallas 

2011, no pet.) (“Not every cause of action for personal injuries or death arising in a 

health care setting is a health care liability claim.”). According to appellees, these 

claims fall outside the ambit of Chapter 74 because criminal and intentionally tortuous 

behavior is not “an inseparable part of the rendition of medical care or a departure from 

the accepted standards of health care.” Holguin v. Laredo Reg’l Med. Ctr., L.P., 256 

S.W.3d 349, 353 (Tex. App.—San Antonio 2008, no pet.); see also Drewery v. Adventist 

Health System/Texas, Inc., 344 S.W.3d 498, 505 (Tex. App.—Austin 2011, pet. filed) 

(“In the present case, however, no reasonable argument could be made that the nurses’

alleged conduct—which included painting Drewery’s nails and writing their names on his 

feet—was a necessary part of preparing him for surgery to remove his tonsils.”).

We agree with appellees. To the extent appellants’ motions sought dismissal of 

appellees’ claims based on the failure of their expert reports to discuss the experts’

opinions on issues other than the three required elements of (1) standard of care, (2) 
51

breach, and (3) causal relationship, the trial court did not abuse its discretion in denying 

the motions. See Bowie, 79 S.W.3d at 53.

3. Direct Liability Against Rio Grande

Finally, appellants argue that the reports do not support a conclusion that any 

direct liability claim against Rio Grande has merit. Appellants contend that Nurse Fallon 

did not opine about any standard or breach that applied to Rio Grande. Furthermore, 

according to appellants, Dr. Clark did not establish any qualification to testify regarding 

the standards of care applicable to an institutional healthcare provider. Finally, 

appellants argue that Dr. Seals did not provide any opinions about Rio Grande 

whatsoever. According to appellants, to the extent that appellees allege any claims of 

direct liability against Rio Grande, the trial court abused its discretion in refusing to 

dismiss them.

Appellees disagree. According to appellees, their expert reports detail the 

standard of care, breach, and causation elements specific to the three claims asserted 

directly against Rio Grande:

1. [Rio Grande] failed to provide properly trained and experienced PICU 

nurses to care for London;

2. [Rio Grande and Nurse Ignacio] failed to properly monitor London; and

3. [Rio Grande and Nurse Ignacio] failed to provide the equipment 

London required;

We agree with appellees. For the reasons set forth above, we conclude that the 

trial court did not abuse its discretion in denying appellants’ motions to dismiss insofar

as the motions sought dismissal on the basis that Nurse Fallon’s, Dr. Clark’s, and Dr. 

Seals’ report do “not represent an objective good faith effort to comply with the definition 
52

of an expert report in Subsection (r)(6)” with regard to the elements of standard of care, 

breach, and causation as to each of the three claims of direct liability asserted against 

Rio Grande. See TEX. CIV. PRAC. & REM. CODE ANN. § 74.351(l), (r)(6).

Appellants’ seven issues, which we have reorganized and addressed as one 

issue, see TEX. R. APP. P. 47.1., are overruled because appellants have not established 

that the trial court abused its discretion in denying their motions to dismiss.

III. CONCLUSION

The order of the trial court is affirmed.

____________________

ROGELIO VALDEZ

Chief Justice

Delivered and filed the 

24th day of August, 2012.