NUMBER 13-17-00621-CV

COURT OF APPEALS

THIRTEENTH DISTRICT OF TEXAS

CORPUS CHRISTI – EDINBURG

FERNANDO JAVIER OTERO, M.D., Appellant,

v.

RACHEL SALDIVAR AND ROBERTO

GARZA, JR., INDIVIDUALLY AND AS

NEXT FRIENDS OF XXX, A MINOR, Appellees.

On appeal from the 370th District Court

of Hidalgo County, Texas.

MEMORANDUM OPINION

Before Justices Rodriguez, Contreras, and Hinojosa

Memorandum Opinion by Justice Contreras

In this interlocutory appeal, appellant Fernando Javier Otero, M.D., challenges the 

denial of his motion to dismiss the health care liability claim of appellees Rachel Saldivar 
2

and Roberto Garza Jr., individually and as next friends of P.G.,

1 a minor. See TEX. CIV.

PRAC. & REM. CODE ANN. §§ 51.014(a)(9); 74.351(a), (b) (West, Westlaw through 2017 

1st C.S.). By one issue, Dr. Otero argues that the trial court should have dismissed the

health care liability claim because the plaintiffs’ expert report did not adequately address 

proximate causation. We affirm. 

I. BACKGROUND

On October 8, 2014, Rachel was admitted emergently at 11:45 p.m. to Doctors 

Hospital at Renaissance in Edinburg, Texas. Rachel was over thirty-seven weeks 

pregnant with P.G. and complained of vaginal bleeding and lower right abdominal pain. 

Rachel, however, was not evaluated in person by a physician until almost nine hours after 

her admission. During that time, P.G.’s vitals deteriorated and indicated that P.G. was 

not receiving enough oxygen. P.G. was eventually delivered via cesarean section at 

9:22 a.m. on October 9, 2014, but without a heartbeat, and she was successfully 

resuscitated. Subsequent MRI scans showed P.G. sustained hypoxic ischemic 

encephalopathy (HIE)—a severe, permanent brain injury caused by a lack of oxygen and 

blood flow. P.G. spent forty-six days after birth in neonatal intensive care and was 

diagnosed with HIE, epilepsy, bronchiolitis, and uncontrolled seizures.

Two physicians oversaw Rachel’s care from the time she was admitted at the 

hospital until P.G. was delivered: (1) Carlos Eduardo Puig, M.D., who was the 

obstetrician and gynecologist responsible for Rachel from the beginning of her emergency 

care on October 8, 2014 until early the next morning; and (2) Dr. Otero, an obstetrician 

and gynecologist, who was called to evaluate Rachel at 8:19 a.m. on October 9, 2014, 

 

1 The plaintiffs’ lawsuit is styled “Rachel Saldivar and Roberto Garza, Jr., individually and as next 

friends of XXX, a minor.” However, we will refer to the baby by her initials throughout this memorandum 

opinion.
3

evaluated her at 8:31 a.m., and subsequently performed a cesarean section on her at 

9:22 a.m. Three hospital nurses also looked after Rachel during this time. 

Rachel and Roberto filed suit against Doctors Hospital at Renaissance, Dr. Puig, 

and Dr. Otero for negligence resulting in the injuries suffered by P.G.; however, only their 

claim against Dr. Otero is relevant for the purpose of this appeal. 

Pursuant to the Texas health care liability statute, Rachel and Roberto served 

Dr. Otero with an expert report authored by Mark D. Akin, M.D. See id. § 74.351(a). 

Dr. Otero filed objections to Dr. Akin’s report and a motion to dismiss, and Rachel and 

Roberto then obtained leave from the trial court to file an amended expert report. 

According to Dr. Akin’s amended report, Dr. Otero should have ordered a cesarean 

section immediately at 8:20 a.m. when he was informed over the phone of Rachel’s 

condition and P.G.’s vitals. Instead, Dr. Otero examined Rachel at her bedside at 

8:31 a.m. and decided to perform an elective surgery on another patient before 

performing Rachel’s cesarean section at 9:22 a.m. Dr. Akin explains Dr. Otero’s actions 

resulted in a delay of thirty-two minutes in P.G.’s delivery, after accounting for the thirtyminute window it takes from “decision to incision.”2

 Dr. Otero again filed objections to 

Dr. Akin’s report, which were overruled, and a second motion to dismiss, which was 

denied. This interlocutory appeal followed. 

II. STANDARD OF REVIEW 

We review a trial court’s decision on the sufficiency of an expert’s report and on a 

motion to dismiss under the expert-report rule for an abuse of discretion. Jelinek v. 

 

2 Dr. Otero disputes that P.G’s delivery was delayed by thirty-two minutes and instead contends it

was delayed by nineteen minutes. Dr. Otero’s argument is premised on the idea that the delay is measured

from the time when he examined Rachel by her bedside, as opposed to when he first received the phone 

call informing him of Rachel’s and P.G.’s conditions. As we explain below, Dr. Akin’s report explains that 

the decision to perform a cesarean section should have been made when Dr. Otero was first informed of 

the situation during the phone call. 
4

Casas, 328 S.W.3d 526, 539 (Tex. 2010); see also TEX. CIV. PRAC. & REM. CODE ANN.

§ 74.351. A court abuses its discretion if it acts in an arbitrary or unreasonable manner 

and without reference to any guiding rules or principles. Crawford v. XTO Energy, Inc., 

509 S.W.3d 906, 911 (Tex. 2017). “When reviewing matters committed to the trial court’s 

discretion, ‘the reviewing court may not substitute its judgment for that of the trial court.’” 

Miller v. JSC Lake Highlands Operations, LP, 536 S.W.3d 510, 512–13 (Tex. 2017) 

(quoting Walker v. Packer, 827 S.W.2d 833, 839 (Tex. 1992)).

III. APPLICABLE LAW

Section 74.351 of the Texas Civil Practice and Remedies Code provides that a 

plaintiff in a health care liability suit must serve the defendant with a statutorily-compliant 

expert report accompanied by the expert’s curriculum vitae. See TEX. CIV. PRAC. & REM.

CODE ANN. § 74.351. If a plaintiff fails to do so within 120 days of filing suit, the statute 

provides that the trial court must dismiss the claim with prejudice on the defendant’s 

motion. See id. § 74.351(a), (b)(2). The report must include the expert’s opinion on each 

of the three elements: standard of care, breach, and causation. Jelinek, 328 S.W.3d at 

539. The goal is “to deter frivolous lawsuits by requiring a claimant early in litigation to 

produce the opinion of a suitable expert that his claim has merit.” Columbia Valley 

Healthcare Sys., L.P. v. Zamarripa, 526 S.W.3d 453, 460 (Tex. 2017) (quoting Scoresby 

v. Santillan, 346 S.W.3d 546, 552 (Tex. 2011)). Therefore, “[a]n expert report . . . is a low 

threshold a person [bringing a claim] against a health care provider must cross merely to 

show that his claim is not frivolous.” Loaisiga v. Cerda, 379 S.W.3d 248, 264 (Tex. 2012).

“A trial court must sustain a challenge to a report’s adequacy if the report does not 

represent an objective good faith effort to provide a fair summary of the applicable 

standard of care, the defendant’s breach of that standard, and how that breach caused 
5

the patient’s harm.” Miller, 536 S.W.3d at 513 (internal quotation marks omitted); see 

TEX. CIV. PRAC. & REM. CODE. ANN. § 74.351(l), (r)(6). “A good-faith effort must ‘provide 

enough information to fulfill two purposes: (1) it must inform the defendant of the specific 

conduct the plaintiff has called into question, and (2) it must provide a basis for the trial 

court to conclude that the claims have merit.’” Miller, 536 S.W.3d at 513 (quoting Bowie 

Mem’l Hosp. v. Wright, 79 S.W.3d 48, 52 (Tex. 2002) (per curiam)). All information 

needed for this inquiry is found within the four corners of the expert report, which need 

not marshal all of the plaintiff’s proof. Jelinek, 328 S.W.3d at 539 (quoting Am. 

Transitional Care Ctrs. of Tex., Inc. v. Palacios, 46 S.W.3d 879, 879 (Tex. 2011)). 

As to the causation element, the expert report must explain how and why the 

healthcare provider’s breach proximately caused the plaintiff’s injury. Zamarripa, 526 

S.W.3d at 460. “Unquestionably, a plaintiff asserting a health care liability claim based 

on negligence, who cannot prove that her injury was proximately caused by the 

defendant’s failure to meet applicable standards of care, does not have a meritorious 

claim.” Id. There is no requirement that the expert use any particular words, such as 

“proximate cause,” “foreseeability,” or “cause in fact”; however, the expert’s explanation 

of the plaintiff’s injuries must be more than a mere conclusory assertion. See id. Thus, 

“the expert must explain the basis of his statements to link his conclusions to the facts.” 

Id. (quoting Earle v. Ratliff, 998 S.W.2d 882, 890 (Tex. 1999)); Jelinek, 328 S.W.3d at 

539. In our inquiry, we are precluded from filling gaps in a report by drawing inferences 

or guessing as to what the expert likely meant or intended. Fulp v. Miller, 286 S.W.3d 

501, 509 (Tex. App.—Corpus Christi 2009, no pet.). 

IV. DR. AKIN’S EXPERT REPORT
6

By his sole issue, Dr. Otero makes several arguments in support of his claim that 

Dr. Akin’s expert report does not adequately address proximate causation. Dr. Otero, 

however, does not dispute the applicable standards of care or breaches thereof as 

articulated by Dr. Akin. Thus, to aid our analysis and provide context for Dr. Otero’s 

argument on appeal, we quote portions of Dr. Akin’s amended report.

A. Standard of Care and Breach of Standard of Care

Dr. Akin’s amended report states: 

Dr. Otero was informed by nursing staff of [Rachel’s] admission for 

abnormal vaginal bleeding. He had a duty to evaluate the patient with a 

pelvic exam and diagnose the cause of her bleeding. His failure to do so 

was a violation of the standard of care. 

The Standard of Care requires that the physician adequately insure fetal 

well-being based upon interpretation of fetal monitoring. This would require 

Dr. Otero to recognize:

1) Loss of heart rate variability

2) bradycardia

3) Repetitive late decelerations

His failure to assess fetal well-being was a violation of the standard of care.

The Standard of Care requires that a patient with abnormal uterine bleeding 

and evidence of a fetus [in] jeopardy be delivered emergently. His failure 

to recognize fetal jeopardy and his lack of due diligence to stay with the 

patient and deliver her as soon as possible violates the standard of care.

At 8:20 am Dr. Otero knew that [Rachel] was in active labor with category 

III fetal heart rate tracings. He also knew that Rachel had vaginal bleeding 

with contractions and high blood pressure readings. Despite this 

knowledge, at 8:20 am Dr. Otero did not make any orders or tell the nurses 

to be prepared for an emergency C-Section. 

At 8:31 am Dr. Otero was at Rachel’s bedside. At this point, it was the 

standard of care for Dr. Otero to examine Rachel and recognize the 

following: 

• The baby has minimal variability and [decelerations], which are 

category III tracings. 
7

• At 08:17 Ochoa, RN starts IV bolus, oxygen 10 liters non rebreather 

and turns the patient to the left lateral position. These nursing 

interventions to restore oxygenation failed and the baby continued to 

have category III tracings. 

• The baby is in breech position.

• Rachel has vaginal bleeding.

• Rachel’s contractions began at 3 am the prior day.

• Rachel had a previous C-Section. 

• Rachel has insulin dependent diabetes. 

• Rachel has pregnancy induced hypertension. 

• Rachel has a history of pre-eclampsia.

• Rachel’s blood pressure was 167/98 at 07:30.

Dr. Otero should have recognized that there were category III fetal heart 

rate tracings, which are abnormal and convey increased risk for fetal 

acidemia. These tracings are associated with increased risk of neonatal 

encephalopathy, cerebral palsy, and neonatal acidosis. Considering the 

tracings and the failed nursing intervention, and [Rachel’s] conditions listed 

above, the standard of care required immediate delivery. Dr. Otero had an 

opportunity to recognize the deteriorating fetal status at 0831, but decided 

to perform an elective surgery on another patient prior to performing 

[Rachel’s] Cesarean section. Dr. Otero should have performed an 

immediate C-Section on [Rachel] before the elective surgery. [Rachel’s] 

condition and her baby’s condition required immediate delivery. Since the 

prior nursing interventions failed, the only way to restore adequate oxygen 

to the baby was through delivery via C-Section. Every minute that the baby 

does not receive adequate oxygen causes more brain damage. Elective 

surgeries are not emergencies. Elective surgeries never take priority over 

situations where the mother in active labor is bleeding[], has irregular 

contractions, hypertension, diabetes, and high blood pressure and the baby 

has strong evidence of fetal distress. The decision to perform the elective 

surgery first, and deliver [Rachel’s] baby later, was below the standard of 

care. 

B. Proximate Causation

Proximate cause has two components: (1) cause-in-fact and (2) foreseeability. 

Zamarripa, 526 S.W.3d at 460. Dr. Otero first argues Dr. Akin’s report is deficient as to 

the “cause-in-fact” element. “For a negligent act or omission to have been a cause-infact of the harm, the act or omission must have been a substantial factor in bringing about 

the harm, and absent the act or omission—i.e., but for the act or omission—the harm 
8

would not have occurred.” Id. (quoting Rodriguez-Escobar v. Goss, 392 S.W.3d 109, 113 

(Tex. 2013) (per curiam)). “This is the causal relationship between breach and injury that 

an expert report must explain to satisfy” the Texas health care liability act. Id.

Dr. Otero argues that the damage to P.G.’s brain had already occurred prior to his

decision not to immediately perform a cesarean section, and, therefore, his delay could 

not have been a “substantial factor” in bringing about the harm. We find this argument 

unpersuasive. In his amended report, Dr. Akin notes that: 

If Dr. Otero had not breached the standard of care, [P.G.] would have been 

delivered sooner (he was notified at 8:20 but did not deliver[] the baby until 

over an hour later) thus substantially decreasing her injuries. Dr. Otero 

should have ordered a C-Section at 08:20 am when he was notified of 

Rachel and the baby’s conditions. Decision to incision is maximum of 30 

minutes. Dr. Otero should have ordered a C-Section at 08:20 am. 

Therefore, if Dr. Otero ordered a STAT C-Section at 08:20 then the baby 

would have been born by 08:50. However, since Dr. Otero breached the 

standard of care by failing to recognize the fetal distress and delayed 

delivering the baby until 09:22 am, the baby suffered at least an extra 32 

minutes of fetal distress from lack of adequate oxygen. I believe within 

reasonable medical probability that each minute of further delay before 

09:22 until [P.G.] was delivered increased the extent of her permanent 

injuries. 

. . .

Category III tracings were present on the fetal monitor strip before taking 

[Rachel] to the OR for cesarean section, and the absence of a fetal heart 

beat at birth, within reasonable medical probability, confirms that the fetal 

condition was worsening during the delay in delivery. Thus, Dr. Otero’s 

unreasonable 32 minute delay caused substantial brain damage to the 

baby, which were confirmed by radiological manifestations of HIE after birth. 

The actions and inactions of Dr. Otero were a proximate causative effect of 

[P.G.’s] brain injury (HIE). 

Dr. Akin explains how Dr. Otero’s delay resulted in a prolonged deprivation of oxygen to 

P.G. and how prompt treatment would have immediately provided P.G. with the oxygen 

needed to prevent further injury to her brain. Therefore, according to Dr. Akin’s expert 

opinion, the extent of P.G.’s brain injury would not have occurred but for Dr. Otero’s failure 
9

to act. See Zamarripa, 526 S.W.3d at 460. Furthermore, even if we were to assume that 

Dr. Akin’s opinion could later be proved incorrect, it does not make his report inadequate. 

See Fagadau v. Wenkstern, 311 S.W.3d 132, 139 (Tex. App.—Dallas 2010, no pet.) (“The 

possibility that facts may later be discovered that prove Dr. Goldman’s opinions on 

causation are incorrect is not a basis for holding the report insufficient under section 

74.351.”); Methodist Hosp. v. Shepherd-Sherman, 296 S.W.3d 193, 200 (Tex. App.—

Houston [14th Dist.] 2009, no pet.) (noting that although discovery could later prove that 

a doctor’s opinion is wrong, that is not a basis for holding report insufficient under chapter 

74). 

Dr. Otero also argues that his decision could not have been a “substantial factor” 

in the injury because Dr. Puig and the hospital were the parties who caused the majority 

of the harm suffered by P.G. However, contrary to Dr. Otero’s argument, there can be 

more than one proximate cause of an injury. See Lee Lewis Constr., Inc. v. Harrison, 70 

S.W.3d 778, 784 (Tex. 2001) (noting that there may be more than one act or omission 

that is the proximate cause of an injury); Rodriguez v. Moerbe, 963 S.W.2d 808, 819 (Tex. 

App.—San Antonio 1998, pet. denied) (“Proximate cause does not necessarily mean the 

last cause, or the act immediately preceding the injury.”); see also Taylor v. Christus 

Spohn Health Sys., 169 S.W.3d 241, 244 (Tex. App.—Corpus Christi 2004, no pet.) 

(noting that, in a health care liability suit against multiple defendants, an expert report 

must provide an explanation of how each defendant specifically breached the standard

and how that breach caused or contributed to the cause of injury). Thus, even if part of 

the injury had occurred prior to Dr. Otero’s involvement, Dr. Akin’s report makes it clear 

that Dr. Otero’s delay resulted in part of the injury sustained by P.G., and “but for” his 

decision to postpone the cesarean section, P.G. would not have suffered some of her 
10

injury. See Zamarripa, 526 S.W.3d at 460. Dr. Otero urges us to look at Dr. Akin’s 

original report to find that Dr. Akin initially blamed Dr. Puig and the nurses for P.G.’s injury. 

While Dr. Akin’s first report may have been deficient as to causation in regard to Dr. Otero, 

neither the original report nor the amended report indicate that Dr. Puig’s and the 

hospital’s failures were the sole cause of P.G.’s injury. Accordingly, we reject Dr. Otero’s

arguments that Dr. Akin’s report was deficient as to the cause-in-fact element. 

Next, Dr. Otero argues that Dr. Akin’s report does not rule out any other possible 

causes for P.G.’s injury and diagnoses. However, an expert does not need to disprove 

or discredit every possible cause and need not speculate about other possible unknown 

causes and then disprove them. See Bustamante v. Ponte, 529 S.W.3d 447, 457 (Tex. 

2017); Nexion Health v. Taylor, 294 S.W.3d 787, 797 (Tex. App.—Dallas 2009, no pet.). 

Thus, this argument is also without merit. 

Finally, Dr. Otero argues that Dr. Akin’s report is conclusory and fails to adequately 

explain how his delay in performing a cesarean section proximately caused P.G.’s injury. 

Here, Dr. Akin explains in scientific principles how the delay by Dr. Otero in performing 

Rachel’s cesarean section resulted in some of the harm suffered by P.G. In addition to 

the text previously quoted, Dr. Akin explains that a baby is dependent upon its mother for 

oxygen, and the longer the baby goes without adequate oxygen, the more brain cells die. 

He also explains the medical conditions and symptoms exhibited by Rachel and P.G. and 

how they indicated that P.G. was suffering from a life-threatening lack of oxygen. He 

states in his report “[e]very minute that the baby does not receive adequate oxygen 

causes more brain damage.” Dr. Akin goes on to state, “[t]herefore, in reasonable medical 

probability, the 32 minute delay was more time wherein the baby lacked adequate 

oxygen, which caused more brain cells to die”, and “I believe within reasonable medical 
11

probability that each minute of further delay before 09:22 until [P.G.] was delivered 

increased the extent of her permanent injuries.” Thus, Dr. Akin explained the basis of his 

statements and linked his conclusions to the facts. See Zamarripa, 526 S.W.3d at 460. 

The trial court could have reasonably concluded that the detailed opinions in the 

report informed Dr. Otero of the conduct called into question and provided a basis to show 

the claim’s merit. See Jelinek, 328 S.W.3d at 529. It was not arbitrary or unreasonable 

for the trial court to conclude that the report constituted a good faith effort to provide a fair 

summary of the expert’s opinion on causation. See id.; see also Crawford, 509 S.W.3d 

at 911. Therefore, we find no abuse of discretion in the denial of Dr. Otero’s motion to 

dismiss. See Jelinek, 328 S.W.3d at 539.3

We overrule Dr. Otero’s sole issue. 

V. CONCLUSION

We affirm the ruling of the trial court. 

DORI CONTRERAS 

Justice

Delivered and filed the

24th day of May, 2018.

 

3 Because we find no abuse of discretion in the trial court’s denial of Dr. Otero’s motion to dismiss, 

we need not address Dr. Otero’s argument that the trial court erred in not awarding him attorney’s fees 

upon the dismissal of the claim. See TEX. R. APP. P. 47.4.