NO. 04-15-00029-CV

IN THE FOURTH COURT OF APPEALS

SAN ANTONIO, TEXAS

DIAGNOSTICS RESEARCH GROUP, L.L.C. AND

JOHN R. HOLCOMB, M.D., APPELLANTS

V.

SUSHMA VORA, APPELLEE

BRIEF OF APPELLEE

SUSHMA VORA

` CHRISTOPHER J. DEEVES

 State Bar No. 00790575

THE LAW OFFICE OF

CHRISTOPHER DEEVES, P.C.

 1370 Pantheon Way, Suite 110

 San Antonio, Texas 78232

 (210) 445-8807

 (210) 501-0915 (telecopier)

 chrisdeeves@att.net (e-mail)

ATTORNEY FOR APPELLEE

SUSHMA VORA

ACCEPTED

04-15-00029-CV

FOURTH COURT OF APPEALS

SAN ANTONIO, TEXAS

4/8/2015 11:57:28 PM

KEITH HOTTLE

CLERK

 FILED IN 4th COURT OF APPEALS SAN ANTONIO, TEXAS 04/8/2015 11:57:28 PM KEITH E. HOTTLE Clerk
ii

TABLE OF CONTENTS

TABLE OF AUTHORITIES ....................................................................................iv

ISSUES PRESENTED..............................................................................................vi

STATEMENT REGARDING ORAL ARGUMENT ..............................................vi

STATEMENT OF FACTS ........................................................................................1

A. BACKGROUND FACTS .....................................................................1

B. PROCEDURAL HISTORY..................................................................1

SUMMARY OF THE ARGUMENT ........................................................................8

ARGUMENT AND AUTHORITIES........................................................................8

I. EXPERT REPORT REQUIREMENTS......................................................11

II. STANDARDS OF REVIEW ......................................................................11

III. THE CLAIMS AGAINST DIAGNOSTICS RESEARCH GROUP

ARE NOT HEALTH CARE LIABILITY CLAIMS ....................................14

IV. DR. MULROY WAS QUALIFIED TO OPINE IN THIS MATTER..........15

V. DR. MULROY PROPERLY EXPLAINED THE CAUSAL

RELATIONSHIP BETWEEN THE CONDUCT AT ISSUE

AND MS. VORA’S INJURIES.....................................................................16

VI. DR. MULROY’S REPORT WAS A GOOD FAITH EFFORT

TO COMPLY WITH THE STATUTE AND THUS MS. VORA 

HAS THE OPPORTUNITY TO CURE ANY DEFECTS 

FOUND BY THIS COURT UPON REMAND............................................19

CONCLUSION AND PRAYER .............................................................................20

CERTIFICATE OF COMPLIANCE.......................................................................20
iii

CERTIFICATE OF SERVICE ................................................................................22

APPENDIX..............................................................................................................23

ORDER AT ISSUE

DR. MULROY’S REPORT

DR. MULROY’S CV

SALVATO v. ANGELO
iv

TABLE OF AUTHORITIES

Page

CASES

Am. Transitional Care Ctrs. of Tex., Inc. v. Palacios, 46 S.W.3d 873 (Tex.2001)....

Birdwell v. Texarkana Memorial Hospital, 122 S.W.3d 473

(Tex.App.—Texarkana 2003, pet. den.)............................................................

Bowie Mem’l Hosp. v. Wright, 79 S.W.3d 48 (Tex. 2002)..........................................

Chandler v. Singh, 129 S.W.3d 184 (Tex.App.—Texarkana 2004, no pet.)...............

Longino v. Crosswhite, 183 S. W.3d 913 (Tex.App.—Texarkana 2006, no pet.) ......

Murphy v. Russell, 167 S.W.3d 835 (Tex. 2005) ........................................................

Philipp v. McCreedy, 298 S.W.3d 682 (Tex.App.—San Antonio 2009, no pet.)

Poindexter v. Bonsukan, 145 F.Supp.2d 800, 811 (E.D.Tex—Lufkin Div., 2001)

Salvato v. Angelo, No. 14-07-0748-CV, Tex.App.—Houston [14th Dist.] 

April 8, 2008, no pet.)..................................................................................................

Schmidt v. Dubose, 259 S.W.3d 213 (Tex.App.—Beaumont 2008, no pet.)..............

VHS San Antonio Partners v. Garcia, 2009 WL 3223178 (Tex.App.—San 

Antonio, Oct. 7, 2009, pet. den.)(mem.op.)................................................................. 
v

STATUTES

TEX. CIV. PRAC. & COMM. CODE § 74.351........................................................passim

RULES

TEX.R.APP.P. 39.........................................................................................................v
vi

ISSUES PRESENTED

Did the trial court properly hold that the claim against DRG was not a 

healthcare liability claim because (1) DRG was not a healthcare provider or 

physician and (2) DRG did not treat Ms. Vora but only studied a pre-market 

medication on her?

Did the trial court properly hold that Dr. Mulroy was qualified to opine 

about the standard of care, breach thereof and causation because she had conducted 

numerous similar studies of pre-market medications and was familiar with when 

patients should be removed from such studies following severe adverse events?

Did the trial court properly hold that Dr. Mulroy’s expert report adequately 

addressed the element of causation?

STATEMENT REGARDING ORAL ARGUMENT

Appellee believes oral argument will benefit the Court in this matter. While 

the applicable law in this area is clear, the application of the law to the facts of this 

case presents matters for which oral argument will benefit the court. TEX.R.APP.P. 

39. 
TO THE HONORABLE COURT OF APPEALS:

Appellee/Plaintiff, Sushma Vora (“Vora”), respectfully presents her

response brief. For the sake of clarity, Appellant John R. Holcomb, M.D. will be 

referred to as “Dr. Holcomb.” Appellant Diagnostics Research Group, L.L.C. will 

be referred to as “DRG.” Appellee Sushma Vora will be referred to as “Ms. Vora.”

STATEMENT OF FACTS

I. BACKGROUND FACTS

Ms. Vora participated in a pre-market study of linaclotide conducted by 

DRG, the studying facility, with Dr. Hoclomb serving as the principal investigator. 

During the study, Ms. Vora suffered a series of severe adverse events. On or about 

January 11, 2011, Ms. Vora suffered her first severe adverse event--ileus (a bowel 

condition related to the side effects of linaclotide) and was hospitalized. CR 30. In 

March 2011, Ms. Vora had second severe adverse event---another hospitalization 

from a bowel ailment. CR 30. In May 2011, Ms. Vora was hospitalized for a third 

time as a result of vomiting and distended abdomen, another severe adverse event. 

CR 31. Thereafter, Ms. Vora was removed from the study after the third 

hospitalization—her third severe adverse event. 

II. PROCEDURAL HISTORY

Ms. Vora filed suit against Dr. Holcomb and DRG amongst others on 

January 8, 2013. CR 1-6 . She then served the statutorily required expert report on 
8

May 8, 2013. TEX. CIV. PRAC. & REM. CODE § 74.351. On May 30, 2013, Dr. 

Holcomb and DRG filed objections to the expert report. CR 7-37. Those 

objections were then considered by the Honorable Larry Noll who found (1) the 

claims against DRG were not health care liability claims and (2) that Dr. Mulroy’s 

expert report adequately notified Dr. Holcomb regarding the health care liability 

claims against him. CR 50-51.

SUMMARY OF THE ARGUMENT

The parties do not dispute the legal standards in this area which are well 

established. The issues before this Court are whether the trial court properly 

applied them to the facts of this case, which he did.

First, DRG does not qualify a “physician” or “healthcare provider.” While 

DRG cleverly presents this Court with new evidence never before the trial court to 

attempt to show that DRG so qualifies. This Court, however, may not consider this 

evidence because it is outside the four corners of the expert report and, most 

importantly, was never before the trial court. 

Next, the claim against DRG is not a “health care liability claim.” There 

was no care being provided to Ms. Vora as part of an experimental study conduct 

by DRG—which is a study facility. 

However, even if the causes of action against DRG were “health care 

liability claims,” the report as to DRG was sufficient just as it was to Dr. Holcomb. 
9

Dr. Mulroy was qualified to opine her because she conducts studies and looks for 

severe adverse events—such as hospitalizations related to side effects of the 

medication and then evaluates whether to continue the person in the study. Dr. 

Mulroy has conducted numerous such studies and was conducting such studies at 

the time of the event at issue. CR 24-32. 

Appellants’ argument that a person asserting a “health care liability claim” 

involving a side effect of a pre-market medication needs to provide an expert 

specifically trained in such side effects defies logic. A psychiatric medication 

could have side effects such as diarrhea, skin rash and heart murmur. Would Dr. 

Mulroy need to enlist a gastroenterologist, dermatologist and cardiologist to 

conduct a study of such a medication? Would Dr. Mulroy need to enlist the aid of 

such a lengthy crew of doctors in prescribing such a medication? Of course, not. 

If the patient appeared with a skin rash after being prescribed the medication then 

Dr. Mulroy, even though she is a psychiatrist, could determine the need to take the 

patient off the medication. She would not need to refer the patient to a 

dermatologist. However, Appellants want to avoid the real world and claim that 

only a doctor specifically familiar with linaclotide could serve as an expert. One 

must ask where would such a doctor be found given Ms. Vora was involved with a 

pre-market study of the drug? Indeed, on page 23 of their brief, Appellants, in 

essence, contend that Dr. Mulroy cannot testify because studies of the prolonged 
10

use of linaclotide is not a matter developed in various fields. Of course, it isn’t—

it’s a pre-market drug. The bar cannot be set so high for a claimant that she cannot 

overcome it. Dr. Mulroy is fully qualified to testify that when a study participant 

suffers severe adverse events (in this case, a hospitalizations) for a known side 

effect of the drug, that the participant should not continue in the study. The trial 

court did not abuse its discretion in finding Dr. Mulroy qualified.

Finally, Appellants contend that Dr. Mulroy’s opinion on causation is 

conclusory. Rather, Dr. Mulroy’s opinion in this regard is simply short and direct. 

If you remove a study participant from the study after severe adverse event(s) 

related to the study medication then the patient will not suffer another one. Indeed, 

Ms. Vora was pulled from the study after the third severe adverse event by 

Appellants for this very reason. 

In sum, Appellants want to make this case more complicated than it is. Dr. 

Mulroy conducts research studies, monitors participants for severe adverse events 

and then removes patients who incur them so that the severe adverse events do not 

continue. Dr. Mulroy, in her detailed report, then explained how Dr. Holcomb and 

DRG did not do that and how an unnecessary severe adverse event occurred. The 

trial court did not abuse its discretion in denying the motions to dismiss.
11

ARGUMENT AND AUTHORITIES

I. EXPERT REPORT REQUIREMENTS

Pursuant to § 74.351(a), a plaintiff asserting a health care liability claim is 

required to serve one or more expert reports and a curriculum vitae for each health 

care provider or physician against whom a liability claim is asserted. The expert 

report is to include: (1) a fair summary of the expert’s opinions about the standard 

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

causal relationship between the failure and the claimed injury. See TEX. CIV.

PRAC. & REM. CODE § 74.351(r)(6); Am. Transitional Care Ctrs. of Tex., Inc. v. 

Palacios, 46 S.W.3d 873, 879 (Tex.2001). The report must fulfill the dual purpose 

of notifying each defendant of the specific conduct called into question and 

providing support for the trial court to conclude that the claims have merit. Bowie 

Mem’l Hosp. v. Wright, 79 S.W.3d 48, 52 (Tex. 2002). The report should 

“represent an objective good faith effort to comply with the definition of an expert 

report in Subsection (r)(6).” TEX. CIV. PRAC. & REM. CODE § 74-351(l). The court 

looks only to the report in conducting a good faith inquiry. Palacios, 46 S.W.3d at 

878.

As is clear from the statute, § 74.351 merely “establishes a threshold over 

which a claimant must proceed to continue a lawsuit.” Murphy v. Russell, 167 
12

S.W.3d 835, 838 (Tex. 2005); see also Schmidt v. Dubose, 259 S.W.3d 213, 217 

(Tex.App.—Beaumont 2008, no pet.). These statutory provisions are virtually 

identical to the provisions of TEX. REV. CIV. STAT. ART. 4590i interpreted in 

American Transitional Care Centers of Texas v. Palacios, 46 S.W.3d 873 (Tex. 

2001). To constitute a good faith effort, the report must inform the defendant of 

the conduct the plaintiff has called into question as well as provide a basis for the 

trial court to conclude that the claims have merit. Palacios, 46 S.W.3d at 879. 

According to Palacios, the trial court should look no further than the four corners 

of the report itself to determine its adequacy. Id. at 878. While the report must 

address the statutory elements set forth in Art. 4590i Sec. 13.01(r)(6) (now TEX.

CIV. PRAC. & REM. CODE § 74.351(r)(6)), the Court held that the report need not 

marshal all the plaintiff’s proof, nor is a plaintiff required to present evidence in 

the report as if it were actually litigating the merits. Id. at 879. Stated another 

way, the expert report need not prove liability, but need only provide notice of 

what conduct provides the bases of the plaintiff’s complaints. Chandler v. Singh, 

129 S.W.3d 184, 188 (Tex.App.—Texarkana 2004, no pet.); Longino v. 

Crosswhite, 183 S. W.3d 913, 916 (Tex.App.—Texarkana 2006, no pet.). No 

magic words are necessary, and the report need only be a summary of the expert’s 

opinions. See Birdwell v. Texarkana Memorial Hospital, 122 S.W.3d 473 

(Tex.App.—Texarkana 2003, pet. den.). Finally, in determining whether an expert 
13

report adequately sets forth any particular element, the court is not limited to any 

given sentence in isolation, but, rather, the report should be read in its entirety. See 

Poindexter v. Bonsukan, 145 F.Supp.2d 800, 811 (E.D.Tex—Lufkin Div., 

2001)(arising out of TMLIIA); see also VHS an Antonio Partners v. Garcia, 2009 

WL 3223178 at *3 (Tex.App.—San Antonio, Oct. 7, 2009, pet. den.)(mem.op.); 

Philipp v. McCreedy, 298 S.W.3d 682, 690 (Tex.App.—San Antonio 2009, no 

pet.).

An expert report in a health care liability claim is not required to be an allencompassing text that addresses every factual aspect of the claim. Instead, the 

report need only provide a “fair summary of the expert’s opinions.” The system of 

challenging an expert report is not intended to be a forum to debate the facts of the 

case or of an attorney’s opinions of the case. See Palacios, 46 S.W.3d at 878 (trial 

court should look no further than the four corners of the report). The fact that the 

defendant may disagree with the expert’s opinions, while perhaps proper for a 

motion for summary judgment, is not an appropriate basis for challenging the 

experts Chapter 74 report. The Methodist Hospital v. Shepherd-Sherman, 296 

S.W.3d 193, 199 n. 2 (Tex.App.—Houston [14th Dist.] 2009, no pet.)(whether an 

expert’s opinions are correct is an issue for summary judgment, not a motion to 

dismiss under Chapter 74); see, e.g., Sanjay v. Turner, 252 S.W.3d 460, 467 n. 6 

(Tex.App.—Houston [14th Dist.] 2008, no pet.)(concluding that doctor’s 
14

arguments that he did not owe duty to patient as described in expert report was an 

issue for summary judgment rather than a motion to dismiss); Wissa v. Voosen, 243 

S.W.3d 165, 169-170 (Tex.App.—San Antonio 2007, pet. den.)(same). Instead, 

the plaintiff’s burden is much lower at this stage of the litigation.

II. STANDARDS OF REVIEW

This Court reviews whether a claim is a “health care liability claim” de 

novo as it is a question of law. Bioderm Skin Care, LLC v. Sok, 426 S.W.3d 753 

(Tex. 2014). Thereafter, the court applies an abuse of discretion standard.

The standard of review on an appeal of an order either granting or denying a 

motion to dismiss on the grounds of an insufficient expert report is abuse of 

discretion. Hillcrest Baptist Med. Ctr. v. Wade, 172 S.W.3d 55, 60 (Tex.App.—

Waco 2005, pet. dism’d by agr.). Likewise, abuse of discretion is the standard by 

which a trial court’s determination of whether an expert is qualified to give an 

opinion in a health care liability claim is reviewed. Larson v. Downing, 197 

S.W.3d 303, 304-305 (Tex. 2006)(per curiam); Baylor Coll. of Med. v. Pokluda, 

283 S.W.3d 110, 116-117 (Tex.App.—Houston [14th Dist.] 2009, no pet.). An 

abuse of discretion occurs when a trial court acts in an arbitrary or unreasonable 

manner or without reference to any guiding rules or principles. Bowie Mem’l 

Hosp. v. Wright, 79 S .W.3d 48, 52 (Tex.2002). Only clear failure by the trial 

court to analyze or apply the law correctly will constitute an abuse of discretion. 
15

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

III. THE CLAIMS AGAINST DIAGNOSTICS RESEARCH GROUP ARE 

NOT HEALTH CARE LIABILITY CLAIMS

The trial court correctly found that the statutory expert report requirement

did not apply to DRG because Ms. Vora did not assert a “health care liability 

claim.” A “health care liability claim" means a cause of action against a health 

care provider or physician for treatment, lack of treatment, or other claimed 

departure from accepted standards of medical care, or health care, or safety or 

professional or administrative services directly related to health care, which 

proximately results in injury to or death of a claimant, whether the claimant's claim 

or cause of action sounds in tort or contract. TEX. CIV. PRAC. & REM. CODE

74.001(13) (emphasis added). Thus, to be a healthcare liability claim, it must be 

shown that (1) the defendant is a health care provider or physician; (2) the claim at 

issue concerns treatment, lack of treatment, or other claimed departure from 

accepted standards of medical care, or healthcare, or safety or professional or 

administrative services directly related to health care; and (3) the defendant's 

alleged act or omission proximately caused the injury. Loaisiga v. Cerda, 379 

S.W.3d 248, 255 (Tex. 2012). 

First, DRG is not a physician or healthcare provider. “Health care" is "any 

act or treatment performed or furnished, or that should have been performed or 

furnished, by any health care provider for, to, or on behalf of a patient during the 
16

patient's medical care, treatment, or confinement." TEX. CIV. PRAC. & REM. CODE 

ANN. § 74.001(a)(10). DRG does not provide health care but conducts analysis of 

pre-market medications on participants—not patients. It is a study facility. 

Presenting new evidence on appeal, DRG now tries to argue that it is a 

physician or physician affiliate. This evidence, not before the trial court, cannot be 

considered. DRG also makes the argument that because DRG and Dr. Holcomb 

are subject to the same standards that they are somehow one and the same and thus 

DRG is then somehow an entity subject to the statute. However, the mere use of 

the word “and” between discussing two entities does not join them. If Dr. Mulroy 

referenced the other unrelated study sponsor, Forest Research Institute, in one of 

these sentences, it is doubtful that the logic that everyone is one and the same 

would be so willingly applied by DRG. Furthermore, Dr. Mulroy did not clump 

these entities together when stating her conclusions. CR 31. In her report Dr. 

Mulroy outlines each parties role (principal investigator, studying facility and 

study sponsor). While the duties and standards may be similar, the entities do not 

become joined as a result thereof.

Based upon the evidentiary record developed in the trial court, DRG is not 

an entity subject to the statutory expert requirements and thus Ms. Vora did not 

have to produce a report as to it. However, even if such a report was required, the 

report at issue was more than sufficient as to DRG.
17

IV. DR. MULROY WAS QUALIFIED TO OPINE IN THIS MATTER

To be able to provide a report under Section 74.351, an expert must have 

"knowledge, skill, experience, training, or education" regarding the specific issue 

before the court which would qualify the expert to opine. Broders v. Heise, 924 

S.W.2d 148,153 (Tex. 1996). The issue before the Court is the duties owed to a 

participant in a study of a pre-market medication. 

As Dr. Mulroy states in her report that standard is the same whether the 

medication is an anti-depressant or a gastroenterological drug. CR 29. From her 

CV and report, it is abundantly clear that Dr. Mulroy has the qualifications to opine 

about how to conduct a study of a pre-market medication. CR 24-37. She 

conducted such studies for ten years and was doing so at the time of the study in 

question. CR 25. The list of studies she has done is immense. CR 25-28. 

Additionally, in conducting the studies of the medications she has done, Dr. 

Mulroy monitors for severe adverse events just as Dr. Holcomb and DRG would. 

CR 29. Clearly, psychiatric medications have gastroenterological side effects 

which must be monitored. It does not though require take the involvement of a 

gastroenterologist to conduct such studies. Thus, even though the ailments Ms. 

Vora incurred were gastroenterological this does not make Dr. Mulroy unqualified 

to opine on them. Ms. Vora would direct the Court to the Houston Court of 

Appeals decision in Salvato v. Angelo, No. 14-07-0748-CV, (Tex.App.—Houston 
18

[14th Dist.] April 8, 2008, no pet.) In that similar case involving a research study, 

the court held that the key qualification for a qualified statutory expert was 

conducting studies and knowing how to identify potential adverse outcomes. Just 

as the doctor in Salvato was qualified so is Dr. Mulroy here.

Instead, Appellants seek to apply an impossible standard, as set forth in the 

brief on page 22, that because Dr. Mulory is not familiar with adverse effects of the 

long term use of linaclotide that she cannot opine here. There is no way to meet 

that standard as the drug at issue was experimental at the time Ms. Vora used it. 

Of course, there is not a body of research that Dr. Mulroy can rely upon from 2011 

on this issue. While the bar may be high for an expert to qualify under Chapter 

74, the bar cannot be set where not party can achieve it. 

What qualifies Dr. Holcomb and DRG to conduct such studies is that they 

adhere to the standard of care for a physician or institute conducting such studies—

not that the condition the drug is being used to treat. Dr. Mulroy knows those 

standards of care and they are the same for whatever drug is being studied. The 

trial court did not abuse its discretion in denying the motion to dismiss on Dr. 

Mulroy’s qualifications.
19

V. DR. MULROY PROPERLY EXPLAINED THE CAUSAL 

RELATIONSHIP BETWEEN THE CONDUCT AT ISSUE AND MS. 

VORA’S INJURIES

Appellants complain that Mulroy’s report is conclusory. In reality, what is 

at issue is that Dr. Mulroy’s opinion is so straightforward. When a patient is 

hospitalized, in this case repeatedly, for the side effect of the medication being 

studied then you remove the patient from the study. For Dr. Holcomb and DRG to 

now challenge that conclusion is wholly spurious as that is what did after Ms. 

Vora’s third hospitalization for gastrointestinal issues while on the study 

medication. What Dr. Mulroy makes clear in her report is that it never should have 

taken three hospitalizations to reach this point and that after the first hospitalization 

or the second hospitalization for the side effects being studied, Ms. Vora should 

have been removed from the study. Dr. Mulroy states, “a hospitalization for a 

potential side effect of a drug that is under study and not yet FDA approved is 

enough to warrant a decision to remove the patient from the study” (CR 30) and if 

removed from the study the side effects leading to hospitalization would not have 

occurred. It does not get much simpler than that—do not let the patient remain in 

the study to incur the repeated severe adverse events and removing the patient from 

the study will stop them. The trial court did not abuse its discretion in concluding 

Dr. Mulroy sufficient explained the causal relationship between the breach of the 
20

standard of care and the damages Ms. Vora suffered.

VI. DR. MULROY'S REPORT WAS A GOOD FAITH EFFORT

TO COMPLY WITH THE STATUTE AND THUS MS. VORA 

SHOULD BE GIVEN THE OPPORTUNITY TO REQUEST TO 

CURE ANY DEFECTS FOUND BY THIS COURT UPON REMAND

If this court finds that Dr. Mulroy’s report is deficient, it was clearly a good 

faith effort to comply with the statutory. Thus, this matter should be remanded to 

allow Ms. Vora to ask the trial court for thirty days to cure any defects in the 

report. TEX. CIV. PRAC. & REM. CODE § 74.351(c).

CONCLUSION AND PRAYER

WHEREFORE, PREMISES CONSIDERED, Appellee Sushma Vora, asks

the Court to affirm the denial of John Holcomb, M.D. and Diagnostics Research 

Group’s motion to dismiss. Alternatively, should the Court find that Dr. Mulroy’s 

report is, in any way, defective that Sushma Vora would ask the Court to remand 

the matter for consideration of a motion to allow Ms. Vora to cure any defects

under Section 74.351(c). Appellee further prays for such other relief to which they 

may be entitled consistent with this Court’s opinion.
21

Respectfully submitted,

/s/ Christopher J. Deeves

CHRISTOPHER J. DEEVES

State Bar No. 00790575

THE LAW OFFICE OF

CHISTOPHER DEEVES, P.C.

1370 Pantheon Way, Suite 110

San Antonio, Texas 78232

(210) 445-8807 (Telephone)

(210) 501-0915 (Facsimile)

chrisdeeves@att.net (e-mail)

ATTORNEY FOR APPELLEE,

SUSHMA VORA
22

CERTIFICATE OF COMPLIANCE

Pursuant to Texas Rule of Appellate Procedure 9.4(i)(3), I hereby certify that 

this brief contains 3,522 words (excluding the caption, table of contents, table of 

authorities, signature, proof of service, certification, and certificate of compliance). 

This is a computer-generated document created in Microsoft Word, using 14-point 

typeface for all text, except for footnotes which are in 12-point typeface. In 

making this certificate of compliance, I am relying on the word count provided by 

the software used to prepare the document.

/s/ Christopher J. Deeves

CHRISTOPHER J. DEEVES

CERTIFICATE OF SERVICE

This will certify that a true and correct copy of the above and foregoing 

document was served as indicated to the following counsel of record listed below 

on April 8, 2015:

Brett B. Rowe

Matthew M. Edwards

Christine Herrera

Evans, Rowe & Holbrook, P.C.

10101 Reunion Place, Suite 900

San Antonio, Texas 78216

Via Facsimile or Electronic Service:

ATTORNEY FOR APPELLANTS

DIAGNOSTIGS RESEARCH GROUP, L.L.C. AND

JOHN R. HOLCOMB, M.D.

/s/ Christopher J. Deeves

CHRISTOPHER J. DEEVES
23

APPENDIX

ORDER

MULROY REPORT

MULROY CV

SALVATO
50
51














PATRICIA D. SALVATO, M.D. AND DIVERSIFIED

MEDICAL PRACTICES, PA, Appellants v. FAUSTINA ANGELO, INDIVIDUALLY AND AS

REPRESENTATIVE OF THE ESTATE OF

ARTHUR LEON ANGELO, JR., DECEASED, LUCAS ANGELO, SOFIA ANGELO, ARTHUR

ANGELO, SR. AND CONNIE ANGELO, Appellees

No. 14-07-00784-CV

Court of Appeals of Texas, Fourteenth District

April 8, 2008

 On Appeal from the 281st District Court Harris County, Texas Trial Court Cause No. 2007-02024.

 Panel consists of Chief Justice Hedges, and Justices

Anderson and Boyce.

MEMORANDUM OPINION

 William J. Boyce, Justice

 In this interlocutory appeal, appellants Patricia D. Salvato, M.D. and Diversified Medical Practices, PA

(collectively "Dr. Salvato") appeal the trial court's denial

of a motion to dismiss a medical malpractice action. See

Tex. Civ. Prac. & Rem. Code Ann. ' 74.351 (Vernon

2005). Dr. Salvato contends the expert report served by

appellees Faustina Angelo, individually and as

representative of the estate of Arthur Leon Angelo, Jr.,

deceased, Lucas Angelo, Sofia Angelo, Arthur Angelo,

Sr., and Connie Angelo (collectively "Angelo") was

insufficient. Finding no abuse of discretion, we affirm.

I. Background

 On December 14, 2000, Arthur Angelo, a body-builder with a history of anabolic steroid use, came

to Dr. Salvato for treatment of low testosterone levels and

generalized anxiety disorder. Mr. Angelo was informed

that he could receive prescriptions for anabolic steroids

only if he joined a clinical study being conducted by Dr.

Salvato focusing on the efficacy of anabolic steroids in HIV/AIDS patients suffering from wasting syndrome. Mr. Angelo volunteered and was enrolled as a member of

the control group in Dr. Salvato's clinical study. The

initial study included the prescription of anabolic steroids

and human growth hormone over a nine-month period,

beginning on December 14, 2000. Following the initial

nine-month study, Dr. Salvato enrolled Mr. Angelo in

extensions over the next several years. In addition to

anabolic steroids and human growth hormone, Dr. Salvato also prescribed Valium to Mr. Angelo for pain.

 Mr. Angelo exhibited side effects of steroid use during the study, including hypertension, testicular atrophy, worsening anxiety, and insomnia. Mr. Angelo

also complained of chest discomfort and exhibited signs

of left ventricular hypertrophy in ECG readings that

showed elevated QRS voltage attributable to left

ventricular hypertrophy.[1] Dr. Salvato continued to

prescribe anabolic steroids and human growth hormones

to Mr. Angelo.

 Mr. Angelo last communicated with Dr. Salvato

concerning his treatment sometime between March 1, 2004 and September 7, 2004. Mr. Angelo was found dead

in his home on October 31, 2004. Mr. Angelo's death was attributed to hypertensive and atherosclerotic

cardiovascular disease.[2]

 Suit was filed on January 11, 2007, contending that

Dr. Salvato was negligent in prescribing medications

which were inappropriate, unlawful, and not in

accordance with the standards of medical care in and

around Harris County, Texas at the time. It was further

alleged that these acts and omissions were the proximate

cause of Arthur Angelo's death.

 Pursuant to statute, an expert report from Nancy

Campbell, M.D. was timely served on May 3, 2007. See

Tex. Civ. Prac. & Rem. Code Ann. '' 74.351, 74.401

(Vernon 2005). In that report, Dr. Campbell opined that

Dr. Salvato departed from the normal standard of care by

(1) failing to obtain IRB approval[3] and continuing

review of the clinical study; (2) failing to maintain an

adverse event log; (3) failing to maintain records of

proper oversight and monitoring by another party; (4)

continuing to prescribe anabolic steroids for more than

three years despite the appearance of known side effects

of anabolic steroid use in Mr. Angelo's examinations; (5)

failing to conduct necessary lab work related to known

side effects of anabolic steroid use; and (6) failing to

conduct further tests when medical examinations

indicated and Mr. Angelo reported signs of heart disease.

Dr. Campbell further opined that Dr. Salvato's continued

prescription of anabolic steroids led to cardiomegaly[4]

with left ventricular hypertrophy and stenosis of 70% of

the left anterior descending coronary artery, which in turn

led to Mr. Angelo's death from hypertensive and

atherosclerotic cardiovascular disease.

 Dr. Salvato moved to dismiss Angelo's suit in trial

court under section 74.351(b).[5] The trial court denied

the motion to dismiss.

 Dr. Salvato contends on appeal that Dr. Campbell's

expert report does not satisfy sections 74.351 and 74.401.

Dr. Salvato contends that (1) Dr. Campbell is not

qualified to opine on key issues in this case; and (2) Dr.

Campbell's report is deficient because it is conclusory
with regard to the standard of care and causation.

II. Appellate Jurisdiction

 We first consider this court's appellate jurisdiction.

This is a question of law reviewed de novo. State v. Holland, 221 S.W.3d 639, 642 (Tex. 2007).

 When, as here, a trial court has not signed a final

and appealable order, we may not proceed unless an

interlocutory appeal is allowed. Tex. A&M Univ. Sys. v. Koseoglu, 233 S.W.3d 835, 840 (Tex. 2007). When

reviewing a statutory grant of interlocutory appellate

jurisdiction, we look to the legislature's intent as expressed in the statute's plain words and consider disputed provisions in context. See id.; Tex. Dep't of

Transp. v. Needham , 82 S.W.3d 314, 318 (Tex. 2002).

Civil Practice and Remedies Code section 51.014 governs

appeals from interlocutory orders; it should be strictly

construed as "a narrow exception to the general rule that

only final judgments and orders are appealable." Bally

Total Fitness Corp. v. Jackson, 53 S.W.3d 352, 355 (Tex.

2001).

 Section 51.014(a)(9) allows an immediate appeal

from an interlocutory order that "denies all or part of the

relief sought by motion under section 74.351(b), except

that an appeal may not be taken from an order granting an

extension under Section 74.351."[6] Tex. Civ. Prac. &

Rem. Code Ann. ' 51.014(a)(9) (Vernon Supp. 2007). In

turn, section 74.351(b) states:

(b) If, as to a defendant physician or health care provider, an expert report has not been served within the period

specified by Subsection (a), the court, on the motion of

the affected physician or health care provider, shall, subject to Subsection (c), enter an order that:

(1) awards to the affected physician or health care provider reasonable attorney's fees and costs of court

incurred by the physician or health care provider; and

(2) dismisses the claim with respect to the physician or health care provider, with prejudice to the refiling of the

claim.

Tex. Civ. Prac. & Rem. Code Ann. ' 74.351(b) (Vernon

Supp. 2007).

 Angelo argues that an interlocutory appeal is not

available for the denial of Dr. Salvato's motion to

dismiss. Angelo seizes on this statement from Dr. Salvato's brief: "This interlocutory appeal seeks relief

from the August 6, 2007 denial of Appellants' Motion to

Dismiss filed pursuant to Tex. Civ. Prac. & Rem. Code ' 74.351(c) for failure to serve a competent expert report as

required by ' 74.351(a) in this healthcare liability claim."

Based on this statement, Angelo contends that Dr. Salvato challenged the sufficiency of Dr. Campbell's

report only under section 74.351(c). Angelo seeks dismissal of this appeal, arguing that the interlocutory

appeal statute authorizes immediate appellate review of an order denying dismissal under section 74.351(b) based

on the failure to file a report - but not an order denying

dismissal under section 74.351(c) based on the filing of a deficient report.

 Angelo's argument fails for two reasons. First, Dr.

Salvato specifically invoked section 74.351(b) in the motion to dismiss filed in the trial court. Second, this court already has held that the denial of a motion to

dismiss based upon an assertedly deficient report under

section 74.351(c) is appealable under section

51.014(a)(9), reasoning that "[a]n expert report 'has not

been served, for purposes of section 74.351(b), if

elements of the report are found to be deficient.'" Group

v. Vicento, 164 S.W.3d 724, 726 n.2 (Tex. App.-Houston

[14th Dist.] 2005, pet. filed). Therefore, this court has

jurisdiction to review the denial of Dr. Salvato's motion

to dismiss a timely served but allegedly deficient expert

report.[7]

III. Sufficiency of the Expert Report

A. Standard of Review

 Dr. Salvato contends the trial court erred in failing

to dismiss the case with prejudice because Angelo's expert report from Dr. Campbell is deficient. Dr. Salvato

contends the report is deficient because Dr. Campbell is

not qualified to opine in this case, and because portions

of her expert report are conclusory.

 We review a trial court's determination under section 74.351 for abuse of discretion. Larson v. Dowing, 197 S.W.3d 303, 304-305 (Tex. 2006); Mem'l Herman

Healthcare Sys. v. Burrell, 230 S.W.3d 755, 757 (Tex.

App.-Houston [14th Dist.] 2007, no pet.). Similarly, we

review a trial court's ruling regarding the adequacy of an

expert report for abuse of discretion. Am. Transitional

Care Ctrs. of Tex., Inc. v. Palacios, 46 S.W.3d 873, 877

(Tex. 2001); Group, 164 S.W.3d at 727. A trial court

commits an abuse of discretion when it acts in an

arbitrary or unreasonable manner without reference to

guiding rules or principles. See Dowing , 197 S.W.3d at

304-305; Jernigan v. Langley , 195 S.W.3d 91, 94 (Tex.

2006). Under this standard, an appellate court may not

substitute its judgment for that of the trial court. Gray v. CHCA Bayshore L.P., 189 S.W.3d 855, 858 (Tex. App.-Houston [1st Dist.] 2006, no pet.).

 Analysis of expert qualifications under section

74.351 is limited to the four corners of the expert's report

and the expert's curriculum vitae. See Palacios, 46

S.W.3d at 878; Mem'l Herman Healthcare Sys., 230

S.W.3d at 758; Gray, 189 S.W.3d at 859. Qualifications

cannot be inferred, but must be present in the expert

report. See Olveda v. Supulveda , 141 S.W.3d 679, 683

(Tex. App.-San Antonio 2004, pet. denied); Hansen v. Starr, 123 S.W.3d 13, 19 (Tex. App.-Dallas 2003, pet.

denied). To be qualified to provide opinion testimony
regarding whether a physician departed from the accepted

standard of health care, an expert must satisfy section

74.401. See Tex. Civ. Prac. & Rem. Code Ann. ' 74.351(r)(5)(A) (Vernon 2005). Section 74.401 provides:

(a) In a suit involving a health care liability claim against a physician for injury to or death of a patient, a person

may qualify as an expert witness on the issue of whether

the physician departed from accepted standards of

medical care only if the person is a physician who:

(1) is practicing medicine at the time such testimony is given or was practicing medicine at the time the claim

arose;

(2) has knowledge of accepted standards of medical care

for the diagnosis, care, or treatment of the illness, injury,

or condition involved in the claim; and

(3) is qualified on the basis of training or experience to

offer an expert opinion regarding those accepted

standards of medical care.

Tex. Civ. Prac. & Rem. Code Ann. ' 74.401(a) (Vernon

2005).

 Under section 74.351, health care liability claimants

must provide an expert report to the defendant no later

than 120 days after filing the original petition. See Tex.

Civ. Prac. & Rem. Code Ann. ' 74.351(a) (Vernon Supp.

2007). A defendant may file a motion challenging the

adequacy of the report; the trial court should grant the motion only when it appears that the report does not

represent a good faith effort to comply with the statutory

definition of an expert report. See Tex. Civ. Prac. & Rem.

Code Ann. ' 74.351(l) (Vernon Supp. 2007).

 When determining if a good faith effort has been

made, the trial court is limited to the four corners of the

report and cannot consider extrinsic evidence. See

Palacios, 46 S.W.3d at 878; Mem'l Herman Healthcare

Sys., 230 S.W.3d at 758; Gray, 189 S.W.3d at 859 ("in

assessing the report's sufficiency, the trial court may not

draw any inferences, and must instead rely exclusively on

the information contained within the report's four corners"). An expert report must provide a fair summary

of the expert's opinion regarding (1) the applicable

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

relationship between the failure and the injury, harm or damages claimed. See Tex. Civ. Prac. & Rem. Code Ann.

' 74.351(r)(6) (Vernon Supp. 2007); Patel, 237 S.W.3d at

904.

 To satisfy these standards, the expert report must

include enough information to satisfy two requirements.

The report must (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 the claims are meritorious. Palacios, 46 S.W.3d at 879; Patel, 237

S.W.3d at 904. "A report merely expressing the expert's

conclusions concerning the standard of care, breach, and

causation fails to fulfill these purposes." Patel, 237

S.W.3d at 904 (citing Palacios, 46 S.W.3d at 879). The

expert's report need not identify all evidence necessary to

litigate the merits of the plaintiff's case, but it must link

the expert's opinions on these elements to the facts in the

case. Wright, 79 S.W.3d at 52; Palacios, 46 S.W.3d at

879.

B. Dr. Campbell's Qualifications

 Angelo contends that Dr. Salvato was negligent in

prescribing anabolic steroids to Mr. Angelo as part of her

clinical study of the effects of anabolic steroids on HIV/AIDS patients suffering from wasting syndrome. Angelo further contends that these acts and omissions were the proximate cause of Mr. Angelo's death. Angelo

relies on Dr. Campbell to support these contentions.

 Angelo retained Dr. Campbell to review the medial

records from Dr. Salvato's office, the autopsy report from

the medical examiner, and the death certificate. Based

upon these records, and her experience, training, knowledge, and qualifications as a physician, Dr. Campbell opined that Dr. Salvato departed from the normal standard of care by (1) failing to obtain IRB

approval and continuing review of the clinical study; (2)

failing to maintain an adverse event log; (3) failing to maintain records of proper oversight and monitoring by

another party; (4) continuing to prescribe anabolic

steroids to Mr. Angelo for more than 40 months despite

the appearance of known side effects of anabolic steroid

use; (5) failing to conduct necessary lab work related to

known side-effects of anabolic steroid use; and (6) failing

to conduct further tests when medical examinations

indicated and Mr. Angelo reported signs of heart disease.

Dr. Campbell further opined that Dr. Salvato's continued

prescription of anabolic steroids led to cardiomegaly with

left ventricular hypertrophy and stenosis of 70% of the

left anterior descending coronary artery; this in turn

caused Mr. Angelo's death from hypertensive and

atherosclerotic cardiovascular disease.

 Under section 74.401(a), only a physician can opine

as an expert against another physician. It does not follow,

however, that every physician is a qualified expert. See

Broders v. Heise, 924 S.W.2d 148, 152 (Tex. 1996). While "expert qualifications should not be too narrowly

drawn . . . given the increasing specialization and

technical nature of medicine, there is no validity, if there

ever was, to the notion that every licensed medical doctor

should be automatically qualified to testify as an expert on every medical question." Larson, 197 S.W.3d at 305

(citing Broders, 924 S.W.2d at 152). However, when a

subject matter is common to and equally recognized in all

fields of practice, any physician familiar with the subject

may testify as to the standard of care. See Keo v. Vu, 76

S.W.3d 725, 732 (Tex. App.-Houston [1st Dist.] 2002,

pet. denied). Likewise, where two fields of medicine

overlap, and a procedure is common to more than one
field, a physician in one of these fields may opine as to

the standard of care for that procedure in the other field.

Id.

 Dr. Campbell's curriculum vitae recites that she

spent three years in residency at Memorial Hospital

Southwest, and that she has been board certified in family

practice for more than 13 years. She states that her opinions in the report are based upon her experience,

training, knowledge, and qualifications as a physician. As a board certified family practitioner who has been an

active staff member of Memorial Hospital Southwest for more than a decade, has been Medical Director of Brenco

Research, and has conducted more than 100 clinical

studies, Dr. Campbell has experience in treating patients

with a wide range of maladies. Dr. Campbell described

her knowledge regarding the standard of care governing

clinical studies like the one conducted by Dr. Salvato,

and regarding the monitoring of cardiovascular health for

each participant as part of the overseeing physician's

responsibility. We cannot say that the trial court abused

its discretion in concluding that Dr. Campbell

demonstrated sufficient qualifications to opine about

standards of care in connection with monitoring the health, including cardiovascular health, of patients participating in clinical studies.

 Dr. Salvato concedes that Dr. Campbell may be qualified to opine about the standard of care governing

Dr. Salvato's research methodology and findings. Dr. Salvato nonetheless maintains that Dr. Campbell is not

qualified to opine about standards of care governing the

prescribing of anabolic steroids or about cardiovascular

disease. Dr. Salvato contends that Dr. Campbell is not a

cardiologist and lacks other experience that would qualify

her to give expert testimony on the treatment of

cardiovascular disease; Dr. Salvato also emphasizes that

Dr. Campbell is not an endocrinologist, and asserts that

she is not otherwise qualified to testify about the side

effects of anabolic steroids. While Dr. Salvato concedes

that some family practitioners might be qualified to opine

about steroid use or cardiovascular disease, Dr. Salvato

contends that Dr. Campbell's curriculum vita and report

fail to establish her particular experience or qualifications

to opine on these areas of medical expertise. Dr. Salvato's

contentions fall short of establishing an abuse of

discretion. "Despite the fact that we live in a world of

niche medical practices and multilayer specializations,

there are certain standards of medical care that apply to multiple schools of practice and any medical doctor." Blan v. Ali, 7 S.W.3d 741, 746 (Tex. App.-Houston [14th

Dist.] 1999, no pet.).

 The facts in Blan are instructive. The physician at

issue properly was able to opine about the standard of care for a stroke patient, and was not purporting to offer

expert medical opinions peculiar to the field of

cardiology. For that reason, the trial court in Blan abused

its discretion by excluding the expert's testimony about

the standard of care when his testimony concerned a

matter common to all physicians. Id.; see also McKowen

v. Ragston, S.W.3d, 2007 WL79330, at *5 (Tex. App.-Houston [1st Dist.] Jan. 11, 2007, no pet.) (when

"the subject of inquiry is common to and equally

recognized and developed in all fields of practice, then

any physician familiar with the subject may testify as to

standard of care") (citing Sears v. Cooper, 574 S.W.2d

612, 614 (Tex. App.-Houston [14th Dist.] 1978, writ ref'd

n.r.e.)).

 Here, the trial court acted within its discretion by

applying this teaching and concluding that Dr. Campbell

is qualified to opine about specific areas - such as the

conduct of a clinical study and cardiac health - that are

common to multiple fields of practice.

 Dr. Campbell's curriculum vitae and report also

provide a reasonable basis for the trial court to have

concluded that Dr. Campbell is qualified to opine about

the effects of hormones. Dr. Salvato acknowledged at

oral argument that one need not necessarily be an

endocrinologist to address issues regarding the effects of

hormones. Dr. Campbell's curriculum vitae demonstrates

experience with clinical studies involving

hormone-related research. These studies include research

regarding the prescription of Eclomiphene to treat low

testosterone in men and parathyroid hormone studies in women. Thus, while Dr. Campbell is not an

endocrinologist, she provides sufficient evidence of her knowledge in connection with studies prescribing and

monitoring hormones in patients. See McKowen , S.W.3d,

2007 WL79330, at *5 ("A medical witness from one practice area may be qualified to testify if he has practical

knowledge of what is customarily done by other practitioners under circumstances similar to those at issue

in the case"); Blan, 7 S.W.3d at 745 (the emphasis is on

the plaintiff's condition, not the defendant's expertise, and

physician expert need not be a specialist to opine).

 The trial court found that Dr. Campbell is qualified

to opine as an expert on medical treatment of Mr. Angelo.

The trial court's decision comported with guiding

principles and rules governing sufficiency of expert

reports. The trial court acted within its discretion. See

Larson, 197 S.W.3d at 304-05 ("expert qualifications

should not be too narrowly drawn;" in a close call, the decision as to whether expert testimony qualifies must go

to the trial court).

 We overrule Dr. Salvato's first issue.

C. Standard of Care and Causation

 Dr. Salvato argues next that the expert report is deficient. Dr. Salvato argues that Dr. Campbell's report

does not set forth the standard of care for conducting a

clinical study or for prescribing anabolic steroids. Dr. Salvato claims that Dr. Campbell's report does not

"convincingly tie the alleged departure from the standard

of care to specific facts of the case." Dr. Salvato argues
that because Dr. Campbell's report does not set forth a

standard of review, it does not inform Dr. Salvato as to

how he breached that standard of care. Dr. Salvato also

contends that Dr. Campbell's report does not link the

allegations of negligence to the damages Angelo claims.

Dr. Salvato therefore concludes that Dr. Campbell's opinions concerning causation are impermissibly

conclusory.

 An expert report need not marshal all of the plaintiff's proof, but it must include the expert's opinions on the three statutory elements - standard of care, breach,

and causation. Gray, 189 S.W.3d at 859. Likewise, a trial

court shall grant a motion challenging the adequacy of a

report only if it appears to the court that the report does

not represent a good faith effort to comply with the definition of an expert report in section 74.351(r)(6). See

Tex. Civ. Prac. & Rem. Code ' 74.351(l) (Vernon Supp.

2007); Palacios, 46 S.W.3d at 879 (if any of the three

statutory elements are missing, the report is not a good

faith effort). An expert report must provide enough

information to fulfill two purposes to constitute an

objective good faith effort. The report must inform the defendant of the specific conduct the plaintiff has called

into question, and it must provide a basis for the trial

judge to conclude the claims have merit. See Palacios, 46

S.W.3d at 878-79; Baylor Univ. Med. Ctr. v. Biggs, 237

S.W.3d 909, 916-17 (Tex. App.-Dallas 2007, pet. filed);

Gray, 189 S.W.3d at 859.

 Applying these precepts in light of the standard of

review, we conclude that the trial court acted within its

discretion in concluding that Dr. Campbell's report

provided sufficient specificity regarding the standard of

care and causation.

 Dr. Campbell's report addresses the standard of care

required for a clinical study in which the physician is prescribing a medication with known side effects. Dr. Campbell describes the proper conduct of a clinical

study, noting the FDA's requirement of IRB approval of

any clinical study; the need for oversight; the need to monitor the patient's health; the need to record potential

adverse effects; the preeminence of patient health

throughout; the need to determine the cause of apparent

adverse health indicators; and the need to withdraw a patient from a study when that patient demonstrates

indicators of adverse health. Dr. Campbell opines as to

the standard of care required for any doctor prescribing

medicine to a patient, especially with heart disease

symptoms like those exhibited by Mr. Angelo, including

the need for further tests, proper diagnosis, and cessation

of the test medication.

 Dr. Campbell opined that Dr. Salvato's continued

prescription of anabolic steroids when Mr. Angelo was experiencing "known toxic side-effects of those steroids" was a breach of the standard of care for a doctor conducting a clinical study and having the obligation to

put the health of the participant first. Dr. Campbell's

report gives Dr. Salvato adequate notice of the alleged

breaches of the standard of care in her treatment of Mr.

Angelo during his participation in Dr. Salvato's clinical

study. See Palacios , 46 S.W.3d at 878-79; Biggs, 237

S.W.3d at 916-17; Gray, 189 S.W.3d at 859.

 Dr. Campbell's report does not state conclusions

without reference to the underlying facts upon which she

has premised her opinion. Patel, 237 S.W.3d at 904

(citing Palacios, 46 S.W.3d at 879). She links each

element of the standard of care in the treatment of a participant in a clinical study to the facts of the case, noting where and how Dr. Salvato departed from that

standard of care. Dr. Campbell opined that Dr. Salvato

failed to correctly monitor Mr. Angelo. As an example,

she focused on Dr. Salvato's failure to monitor Mr. Angelo's lipid levels in light of the known increase in

lipid levels associated with anabolic steroid use that were noted in Dr. Salvato's notes. Dr. Campbell opined that Dr.

Salvato assessed Mr. Angelo's lipid levels in 2001, but

then failed to do so for the following three years. Dr. Campbell noted that Dr. Salvato failed to monitor lipid

levels even while aware that it was important for cardiac

health to watch them. Dr. Campbell's report noted that

Mr. Angelo suffered chest pains, elevated blood pressure,

and increased QRS voltage, all symptoms of heart

disease. Dr. Salvato's notes also revealed that Mr. Angelo

complained of worsening anxiety, insomnia, and

testicular atrophy, all known side effects of anabolic

steroid abuse. Dr. Campbell noted that no adverse event

log was maintained; that symptoms of cardiac disease were overlooked or mis-diagnosed; and that Mr. Angelo was prescribed additional steroids. Even when Mr. Angelo was diagnosed with hypertension, Dr. Salvato

continued to prescribe anabolic steroids to Mr. Angelo in

violation of the standard of care associated with a clinical

study and the prescription of a drug. The trial court acted

within its discretion in concluding that these opinions

suffice to identify specific conduct and to provide a basis

for concluding the claims have merit.

 As to causation, Dr. Campbell opines that the warning signs of cardiac disease should have led Dr. Salvato to (1) exclude Mr. Angelo from the study; (2) cease prescribing anabolic steroids to Mr. Angelo once

adverse health indicators were noted; and (3) conduct

further cardiovascular evaluation to properly diagnose

left ventricular hypertrophy, an abnormality related to the

abuse of anabolic steroids. Dr. Campbell opines that these

failures, and the continued prescription of anabolic

steroids, caused the left ventricular hypertrophy and

related chronic hypertension that proximately caused Mr.

Angelo's death - which the autopsy attributed to cardiac

disease. According to Dr. Campbell's report, Dr. Salvato

failed to accurately monitor Mr. Angelo's health and

withdraw him from the study given the harm that the

anabolic steroids were causing.

 The trial court found that Dr. Campbell's report was

sufficient to apprise Dr. Salvato of the specific conduct
Angelo alleges was a departure from the standard of care,

and the basis for establishing a causal link between the

departures and Mr. Angelo's death. Gray, 189 S.W.3d at

859. The trial court's decision was within the scope of its

discretion. Larson, 197 S.W.3d at 304-05; see also Mem'l

Herman Healthcare Sys., 230 S.W.3d at 757.

 We overrule Dr. Salvato's second issue.

IV. Conclusion

 The trial court found that Dr. Campbell's report,

coupled with her curriculum vitae, provided a sufficient

basis to conclude she is qualified to offer expert

testimony in this case. The trial court concluded that the

requisite specificity regarding standard of care and

causation are present in Dr. Campbell's report. The trial

court acted within its discretion in so doing.

 The trial court's order is affirmed.

 Judgment rendered and Memorandum Opinion filed

April 8, 2008. --------- Notes:

[1] The QRS complex is a structure on the

electrocardiogram (ECG) that corresponds to the Q, R, and S waves representing the depolarization of the ventricles. A proper ECG reading can measure the rate

and regularity of heartbeats, as well as determine the size

and position of the chambers. This enables a practitioner

to assess the presence of any damage to the heart and the

effects of drugs or devices to regulate the heart. Elevated

QRS readings have been linked to left ventricular hypertrophy - a condition that may occur naturally but

also has been linked to certain conditions. Left

ventricular hypertrophy is a thickening of the muscle on

the left ventricle of the heart, and has been linked to

aortic stenosis (a malfunction of the valve between the

left ventricle and the aorta which impedes blood flow);

aortic insufficiency (a malfunction of the valve between

the left ventricle and the aorta which allows blood to flow

in the wrong direction); and hypertension (chronic high

blood pressure).

[2] Atherosclerotic cardiovascular disease is a disease

that affects the arterial blood vessels, often referred to as "hardening" or "furring" of the arteries.

[3] All clinical studies are required to have Institutional

Review Board (IRB) approval before commencing. Universities and medical establishments that conduct

clinical trials appoint knowledgeable individuals to sit on

these boards and to screen all trials to insure that they are

ethical, protective of the health of the individuals, and

conducted in accordance with solid methodological

standards.

[4] Cardiomegaly is a medical condition wherein the heart is enlarged.

[5] Defendants' motion to dismiss, filed June 7, 2007,

sought dismissal pursuant to Texas Civil Practice and

Remedies Code section 74.351(b); the motion did not

assert that Angelo failed to file a report, but rather that

Angelo failed to file a "competent expert report by a qualified expert."

[6] Section 51.014(a)(10) also allows an interlocutory

appeal from the granting of a motion to dismiss under

section 74.351(l), which provides that a court "shall grant a motion challenging the adequacy of an expert report

only if it appears to the court, after hearing, that the

report does not represents an objective good faith effort

to comply with the definition of an expert report in Subsection (r)(6)." See Tex. Civ. Prac. & Rem. Code ' 74.351(l) (Vernon Supp. 2007).

[7] The following decisions adopt Group's reasoning or employ similar reasoning: CHCA Mainland, L.P. v. Burkhalter, 228 S.W.3d 221, 224-25 (Tex. App.-Houston

[1st Dist.] 2007, no pet.); HealthSouth Corp. v. Searcy , 227 S.W.3d 907, 908 (Tex. App.-Dallas 2007, no pet.);

Sides v. Guevara, S.W.3d, 2007 WL 2456882, at *2 (Tex.

App.-El Paso Aug. 30, 2007, no pet.). Other decisions

conclude there is no appellate jurisdiction under these

circumstances. See, e.g., Jain v. Stafford, 214 S.W.3d 94,

97 (Tex. App.-Fort Worth 2006, no pet.); Lewis v. Funderburk, 191 S.W.3d 756, 759 (Tex. App.-Waco, 2006, pet. granted) . The Texas Supreme Court has not

decided this issue, which is pending before the court in Funderburk. ---------