### NUMBER 13

- 18

- 0 0 638

- CV



## COURT OF APPEALS

THIRTEENTH DISTRICT OF TEXAS

CORPUS CHRISTI

– EDINBURG

ROSALINDA SOLIZ

, Appellant,

v.

MCALLEN HOSPITALS, L.P.

, Appellee.

On appeal from the 206th District Court

of Hidalgo County, Texas.



## MEMORANDUM OPINION

Before Justice s Benavides, Longoria

, and Perkes

Memorandum Opinion by Justice Longoria

Appellant Rosalinda Soliz was injured during a hysterectomy at the McAllen

Medical Center (MMC)

. After filing suit against appellee McAllen Hospitals, L.P. (the

Hospital), Soliz filed an expert report regarding the Hospital ’ s role in causing her injury

.

The Hospital objected to the expert report

. See T EX

. C IV

. P RAC

. & R EM

. C ODE A NN

.

§ 74.351

. The trial court sustained the Hospital ’ s objections

. In her sole issue on appeal,2 Soliz argues that the trial court abused its discretion in sustaining the Hospital ’ s objections

to her expert report

. We affirm

.

I. B ACKGROUND

On August 2, 2016, Maria Rodriguez De Lima (Rodriguez), M.D. performed a

surgical hysterectomy on Soliz at the MMC

. During the procedure, Soliz sustained several

injuries, including multiple bowel and bladder lacerations and a severed left ureter

. On

December 4, 2017, Soliz filed suit against Rodriguez

. On January 10, 2018, Soliz filed an

expert report by Jeffrey Wilkinson, M.D. that addressed Rodriguez ’ s negligence in

causing Soliz ’ s injuries

. No objections were made to Wilkinson ’ s report.

On April 23, 2018, Soliz joined the Hospital as a defendant to the suit, alleging that

Rodriguez ’ s negligent medical care would not have occurred if not for the Hospital ’ s

negligence in the selection and retention of physicians who are granted staff privileges

.

On August 1, 2018, Soliz filed an expert report written by Richard Bays, an expert in

“complex healthcare and development projects.” His report addressed the Hospital ’ s

negligence in credentialing Rodriguez at the MMC and how that negligence caused

Soliz ’ s injuries

. On August 21, 2018, the Hospital objected to Bay s ’ s expert report,

alleging that the report was “impermissibly vague and conclusory on causation.” See id.

§ 74.351( l )

. On November 13, 2018, the trial court signed an order sustaining the

Hospital ’ s objections to Bay s ’ s report

. This interlocutory appeal followed

. See id.

§ 51.014(a)(10) ; Lewis v. Funderburk

, 253 S.W.3d 204, 207 (Tex. 2008) (observing that

§ 51.014(a)(10) permits immediate interlocutory appeal if trial court sustains a challenge

to the adequacy of the expert report under § 74.351( l ) )

.

II. C HAPTER 74 E XPERT R EPORT3 Soliz argues on appeal that the trial court erred in sustaining the Hospital ’ s

objections to Bay s ’ s expert report.

A. Standard of Review and Applicable Law

We review a trial court ’ s ruling on the sufficiency of an expert ’ s report for abuse of

discretion

. See Van Ness v. ETMC First Physicians

, 461 S.W.3d 140, 142 (Tex. 2015);

Jelinek v. Casas

, 328 S.W.3d 526, 539 (Tex. 2010); Jernigan v. Langley

, 195 S.W.3d 91,

93 (Tex. 2006)

. “The trial court abuses its discretion if it acts unreasonably or arbitrarily

or without reference to any guiding rules or principles.” Walker v. Gutierrez, 111 S.W.3d

56, 62 (Tex. 2003); see Crawford v. XTO Energy, Inc.

, 509 S.W.3d 906, 910

– 11 (Tex.

2017) (same)

. The court of appeals cannot reverse a decision committed to the trial

court ’ s discretion if the court of appeals simply disagrees with the trial court ’ s judgment

.

Flores v. Fourth Court of Appeals, 777 S.W.2d 38, 41

– 42 (Tex. 1989) (orig. proceeding)

.

The trial court ’ s decision must result in a “clear and prejudicial error” to be reversible

. Id.

The Texas Medical Liability Act (the Act), codified in Chapter 74 of the Texas Civil

Practice and Remedies Code, governs the process of serving expert reports in health

care liability suits. See T EX

. C IV

. P RAC

. & R EM

. C ODE A NN

. § 74.351. Under the Act, an

interlocutory appeal is permissible in just two circumstances.

First, an immediate appeal can be taken if a trial court denies relief sought

under subpart (b). Second, an immediate appeal is allowed when a trial

court grants relief under subpart ( l )

. . . . [S]ubpart (b) provides for dismissal

and fees. Subpart ( l ) provides for challenges to inadequate reports, but says

nothing about dismissal or fees. That is because some challenges

— specifically those filed within the first 120 days

— cannot seek dismissal or

fees until the 120

– day window has closed.

Lewis

, 253 S.W.3d at 207

. And according to subpart ( l ), a court should only grant a motion

challenging the sufficiency of an expert report “if it appears to the court, after hearing, that4 the report does not represent an objective good faith effort to comply with the definition

of an expert report.” T EX

. C IV

. P RAC

. & R EM

. C ODE A NN

. § 74.351( l ).

The Act states that the plaintiff in a medical liability suit has 120 days to serve each

defendant with an expert report. Id. § 74.351(a)

. An expert report is defined in the Act as:

a written report by an expert that provides a fair summary of the expert ’ s

opinions as of the date of the report regarding applicable standards of care,

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

provider failed to meet the standards, and the causal relationship between

that failure and the injury, harm, or damages claimed.

Id. § 74.351(r)(6); see Certified EMS, Inc. v. Potts

, 392 S.W.3d 625, 630 (Tex. 2013) (“A

valid expert report has three elements: it must fairly summarize the applicable standard

of care; it must explain how a physician or health care provider failed to meet that

standard; and it must establish the causal relationship between the failure and the harm

alleged.”). To qualify as an objective good faith effort, the report must provide enough

information regarding the expert ’ s opinions on the three statutory elements of standard of

care, breach, and causation to fulfill two purposes: (1) inform the defendant of the specific

conduct the plaintiff questions, and (2) provide a basis for the trial court to conclude that

the plaintiff’s claims have merit. See THN Physicians Ass’n v. Tiscareno

, 495 S.W.3d

914, 919 (Tex. App.

— El Paso 2016, no pet.); Clapp v. Perez

, 394 S.W.3d 254, 258 (Tex.

App.

— El Paso 2012, no pet.).

“To satisfy the required element of causation under chapter 74, an expert report

must include a fair summary of the expert ’ s opinion regarding the causal relationship

between the breach of the standard of care and the injury, harm, or damages claimed.”

Bakhtari v. Estate of Dumas

, 317 S.W.3d 486, 496 (Tex. App.

— Dallas 2010, no pet.).

The Texas Supreme Court has elaborated:5 [W]ith respect to causation, the court’s role is to determine whether the

expert has explained how the negligent conduct caused the injury. Whether

this explanation is believable should be litigated at a later stage of the

proceedings. T he ultimate evidentiary value of the opinions proffered [in an

expert report] is a matter to be determined at summary judgment and

beyond.

Abshire v. Christus Health Se. Tex

. , 563 S.W.3d 219, 226 (Tex. 2018). In addition, a trial

court’s disagreement with an expert’s opinion “does not render the expert report

conclusory.” Id.

Section 74.351(a) states that defendants have twenty

- one days upon receipt of the

report to object to any deficiencies; failure to object results in waiver of all objections to

the expert report. Id. § 74.351(a)(1). Under § 74.351(b), if no report is filed, the trial court

shall enter an order dismissing the suit and awarding the affected physician or health care

defendant with attorney ’ s fees and costs. Id. § 74.351(b). However, “if an expert report

has not been served within the period specified by Subsection (a) because elements of

the report are found deficient,” the court may grant a thirty

- day extension for the plaintiff

to cure the deficiencies. Id. § 74.351(c). As the Texas Supreme Court has noted, the Act ’ s

purpose is to strike a delicate balance between deterring frivolous lawsuits without

needlessly disposing of meritorious claims. Leland v. Brandal

, 257 S.W.3d 204, 208 (Tex.

2008). In general, trial courts should “err on the side of granting claimants ’ extensions.”

Samlowski v. Wooten

, 332 S.W.3d 404, 411 (Tex. 2011). A s long as there is “at least one

viable liability theory, as evidenced by an expert report,” the claim is not frivolous and

should proceed forward. See Potts

, 392 S.W.3d at 627.

“[A]lthough Texas may not formally recognize an independent, common law, cause

of action for negligent credentialing, such allegations are recognized by Texas courts and

by statutory authority as actionable theories of liability in medical negligence cases.”6 Moreno v. Quintana

, 324 S.W.3d 124, 134 (Tex. App.

— El Paso 2010, pet. denied); see

Romero v. KPH Consol., Inc.

, 166 S.W.3d 212, 220 (Tex. 2005); Garland Cmty. Hosp. v.

Rose

, 156 S.W.3d 541, 546 (Tex. 2004). Hospitals have a duty to patients to exercise

reasonable care in the “selection of its medical staff and in granting privileges to them.”

See St. Luke ’ s Episcopal Hosp. v. Agbor

, 952 S.W.2d 503, 508 (Tex. 1997).

One of a hospital ’ s primary functions is to provide a place in which doctors

dispense health care services. The quality of a health care provider ’ s

medical staff is intimately connected with patient care. A hospital ’ s

credentialing of doctors is necessary to that core function and is, therefore,

an inseparable part of the health care rendered to patients

. . . . When a

plaintiff ’ s credentialing complaint centers on the quality of the doctor ’ s

treatment

. . . the hospital ’ s alleged acts or omissions in credentialing are

inextricably intertwined with the patient ’ s medical treatment and the

hospital ’ s provision of health care.

Garland

, 156 S.W.3d at 545

– 46. In making a claim for negligent credentialing, the plaintiff

must show how the defendant ’ s failure to meet the specialized standard of care for

credentialing proximately caused the complained of injury. See Rose v. Garland Cmty.

Hosp.

, 168 S.W.3d 352, 356

– 57 (Tex. App.

— Dallas 2005, no pet.); see also Johnston v.

Christus Spohn Health Sys. Corp.

, No. 13

- 14

- 00418

- CV, 2015 WL 10574287, at *5 (Tex.

App.

— Corpus Christi

– Edinburg Mar. 31, 2015, no pet.) (mem. op.). In addition, a hospital

will not be held liable for improperly credentialing a physician unless the hospital acts with

malice. See Moreno

, 324 S.W.3d at 134

.

B. Discussion

This is an appeal of a challenge to an expert report. See T EX

. C IV

. P RAC

. & R EM

.

C ODE A NN

. § § 51.014(a)(10); 74.351( l ). Soliz argues that Bay s ’ s expert report clearly

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

standard of care, the Hospital ’ s breach of that standard, and how that breach caused7 harm to Soliz

. Thus, Soliz asserts that the trial court erred in sustaining the Hospital’s

challenge to the expert report. The Hospital d id not challenge Bays ’ s description of the

applicable standard of care or Bays ’ s allegation of the Hospital ’ s breach of said standard

.

Rather, t he Hospital mainly attacked the causation element of the expert report

. The

Hospital argues that Bays ’ s expert report “failed to link the alleged negligent credentialing

to [Soliz ’ s] damages.”

Bay s ’ s expert report consisted of a series of questions and answers, including:

Question 1:

In credentialing [Dr. Rodriguez], did [the Hospital] act as a

reasonably prudent hospital would have acted under the same or similar

circumstances?

Answer:

No

. [The Hospital] did not act as a reasonably prudent hospital would

have acted in credentialing Dr. Rodriguez, because [the Hospital] did not

reasonably establish a professional liability insurance coverage (PLIC)

requirement for such credentialing, and therefore did not reasonably apply

a reasonably established PLIC requirement.

. . .

Based upon the things produced to me to date, it appears [the

Hospital] required that Dr. Rodriguez have PLIC with a minimum liability

limit per occurrence of $100,000

. . . . Because Dr. Rodriguez is an OB

- GYN,

such PLIC is not reasonable

. In particular, $100,000 is substantially less

than the mean cost of resolving malpractice claims against OB

- GYN ’ s.

The study report entitled “Malpractice Risk According to Physician

Specialty”

. . . involved a review of data from 1991 through 2005

. The data

included the PLIC claim histories of more than 41,000 physicians, whose

PLIC insurer was a large national PLIC insurer

. The report indicated that

the mean claim settlement amount in 2008 dollars for the OB

- GYN specialty

was between $250,000 and $400,000

. The report also indicated that OB

GYNs accounted for the most claim settlement payments of $1,000,000 or

more among the 24 medical specialties considered

. The report also

indicated that 74% of OB

- YGN ’ s [sic] are expected to receive a malpractice

claim, by the time they reach the age of 45

. Similarly, Capson Physicians8 Ins. Co. (Capson), which provides PLIC in 27 states, reports that an average

indemnity payment of $375,000 was associated with malpractice claims

against OB

- GYNs in 2017

. Capson also reports that in 2017 OB

- GYNs had

the highest claim payment rate (greater than 38%) of any medical specialty

.

. . .

In recent years, PLIC insurers have modified their offering to insured

physicians, to lower premiums and garner greater market share

. One

increasingly popular modification of such kind, is making the limit of liability

an amount which is reduced by costs of defense

. . . . Given the high costs

of legal services, such an “eroding policy” might provide much less than

$100,000, perhaps nothing, with which to pay a malpractice claimant by the

time of settlement or judgment

. Therefore, in establishing an amount of

PLIC a medical staff member must maintain, a hospital should either

expressly disapprove the use of “eroding policies” to satisfy such a

requirement, or adopt a procedure for evaluating “eroding policies” and

making appropriate adjustments to the amounts of PLIC required

. [The

Hospital] did not act as a reasonably prudent hospital would act in

establishing the PLIC requirement for Dr. Rodriguez, because [the Hospital]

neither (1) expressly disapproved the use of “eroding policies” to satisfy

such requirement, nor (2) adopted a procedure for evaluating “eroding

policies” and making appropriate adjustments to the amounts of PLIC

required.

. . .

[The Hospital] did not act as a reasonably prudent hospital would act

in establishing the PLIC requirement for Dr. Rodriguez, because [the

Hospital] not only used a PLIC requirement for Dr. Rodriguez that was well

below the mean claim settlement amount for OB

- GYNs, but [the Hospital]

ostensibly made no adjustments to such requirement on account risk factors

[sic] such as length of time in practice, prior malpractice claims history, and

percentage of higher

- risk procedures comprisi ng Dr. Rodriguez ’ s medical

practice.

. . .

Question 2:

If [the Hospital] failed properly to credential Dr. Rodriguez, did such

failure cause or contribute to cause harm to [Soliz]?

Answer:9 Yes

. Based upon Dr. Wilkinson ’ s opinions, to which I defer, it is my

understanding that Dr. Rodriguez did not provide [Soliz] with care and

treatment satisfying pertinent OB

- GYN standards of care, and Dr.

Rodriguez ’ s failure to do so caused [Soliz ’ s] damages

. In my opinion, it is

reasonable to conclude that [the Hospital ’ s] failure to properly credential Dr.

Rodriguez probably contributed to sub

- standard care being provided to

[Soliz] by facilitating Dr. Rodriguez ’ s provision of care and treatment to

[Soliz] in place of a competent better credentialed OB

- GYN.

Question 3:

If you conclude that [the Hospital] failed properly to credential Dr.

Rodriguez, was such failure malice

. . . ?

Answer:

Yes

. The statistics that I reference above

. . . are statistics which

were in the public domain and could only have gone unappreciated by [the

Hospital] through intentional disregard of the relevant published literature

. Therefore, in my opinion, [the Hospital ’ s] application of the $100,000 PLIC

requirement in Dr. Rodriguez ’ s credentialing, and [the Hospital ’ s] failure to

adjust such requirement in any of the ways discussed above, indicate

malice in [the Hospital ’ s] negligent credentialing of Dr. Rodriguez.

The Hospital argues that Bays ’ s expert report does not constitute a good faith effort

to comply with Chapter 74 because it fails to adequately explain a link between the

Hospital ’ s alleged negligent credentialing and Soliz ’ s injuries. We first note that Soliz’s

claim is somewhat unusual. We have already established that negligent credentialing is

generally recognized as a viable claim in Texas. See Moreno

, 324 S.W.3d at 134; Rose

,

168 S.W.3d at 356. However, in most negligent credentialing cases, the plaintiff calls into

question the medical malpractice history of a doctor and alleges that the health care

facility was thereby negligent in allowing such a doctor to practice medicine in their facility.

See Moreno

, 324 S.W.3d at 134; Rose

, 168 S.W.3d at 356. By contrast, without

challenging Rodriguez’s malpractice history, Soliz argues that establishing and

maintaining within a specific range of PLIC is a part of credentialing and is indicative of a10 physician’s qualifications

. Thus, Bays opined that the Hospital’s failure to properly

establish and maintain higher PLIC requirements caused Soliz’s injuries by allowing

Rodriguez, a doctor with allegedly low PLIC

— even though she had higher PLIC than what

the Hospita l required

— to treat S oliz in stead of a hypothetica lly more qualified doctor with

a higher PLIC

. Soliz has not cited, and we cannot find, any other cases where the plaintiff

has made this kind of negligent credentialing claim.

With that in mind, we look at Bays’s opinion to determine if it contained a fair

summary of the basis of his opinion concerning the statutory element of causation. See

Potts

, 392 S.W.3d at 630. Bays’s expert opinion focused largely on the standard of care

in establishing PLIC requirements and how the hospital breached those standards.

However, in a single paragraph, Bays’s report tersely addressed causation : “In my

opinion, it is reasonable to conclude that [the Hospital’s] failure to properly credential Dr.

Rodriguez probably contributed to sub

- standard care being provided to [Soliz] by

facilitating Dr. Rodriguez’s provision of care and treatment to [Soliz] in place of a

competent [,] better credentialed OB

- GYN.” While Bays’s opinion does address causation,

it does not “adequately explain[] the basis for his conclusion and link[] that conclusion to

the facts.” Bakhtari

, 317 S.W.3d at 499.

Bays’s report asserts that Soliz received sub

- standard care because of the

H ospital’s low PLIC requirements; however, B ays’s report fails to elaborate on how the

outcome would have changed if the Hospital would have acted more reasonably in

establishing and maintaining its PLIC requirements

. Bays’s opinion assumes that setting

a higher and more “reasonable” PLIC requirement would have led to Soliz being treated

by a more qualified doctor than Rodriguez ; h owever, this conclusion is speculative in11 multiple ways

. It assumes that Rodriguez could not simply purchase a higher PLIC to

remain with the Hospital

. It also assumes that there are plenty of “better

- credentialed”

doctors that would take Rodriguez’s place if the Hospital required a higher PLIC

. We also

note that Bays’s report does not specify what a reasonable PLIC requirement would have

been for the Hospital and how long ago the Hospital would have needed to change its

PLIC requirements to have prevented Soliz’s injuries. The report mentions national

averages concerning settlement costs in similar cases and it mentions general principles

to follow in setting PLIC requirements, but Bays does not specify what amount of PLIC

reasonable hospitals require

. Courts “should not have to fill in missing gaps in a report by

drawing inferences or resorting to guess work” to determine if an expert report meets the

necessary requirements. Tiscareno

, 495 S.W.3d at 919 ; see Methodist Hosp. v.

Shepherd

- Sherman

, 296 S.W.3d 193, 199 (Tex. App.

— Houston [14th Dist.] 2009, no

pet.) (holding that expert reports cannot be based on speculation)

. Thus, we conclude

that the trial court could have reasonably concluded that the report did not constitute a

good

- faith effort to comply with the definition of an expert report. See Tiscareno

, 495

S.W.3d at 919

. Accordingly, the trial court did not abuse its discretion in sustaining the

Hospital’s objections to the expert report. We overrule Soliz’s sole issue.

III. C ONCLUSION

We affirm the judgment of the trial court

.

NORA L. LONGORIA

Justice

Delivered and filed the

5th day of March

, 20 20

.