In the

Court of Appeals

Second Appellate District of Texas

at Fort Worth

___________________________

No. 02-18-00373-CV

___________________________

On Appeal from the 236th District Court

Tarrant County, Texas

Trial Court No. 236-296553-17

Before Sudderth, C.J.; Gabriel and Womack, JJ.

Memorandum Opinion by Justice Womack

CAREFLITE AND NATHAN TATON, Appellants

V.

JEROLD TAYLOR, Appellee
2

MEMORANDUM OPINION

I. Introduction

Appellants, Careflite and Nathan Taton, bring this interlocutory appeal from 

the trial court’s order denying their motion to dismiss the claim Appellee Jerold 

Taylor has asserted against them. In a single issue, Careflite and Taton contend that 

Taylor’s claims against them are health care liability claims governed by Texas Civil 

Practice and Remedies Code chapter 74 and that Taylor failed to comply with 

chapter 74’s expert report requirements. We agree with Careflite and Taton and 

reverse the trial court’s order denying their motion to dismiss and remand this case to 

the trial court for further proceedings in accordance with this opinion.

II. BACKGROUND

A. Pleadings

On November 28, 2017, Taylor filed his original petition against Careflite and 

Taton as well as Baylor Scott & White Health d/b/a The Heart Hospital Baylor 

Denton (Baylor).

1

 In the petition, Taylor alleges that he underwent a coronary artery 

bypass graft at Baylor on December 1, 2015. Baylor arranged for Taylor to be 

transferred to Select Rehab on December 5, 2015, for additional physical therapy and 

recovery. Careflite was hired to transport Taylor, and Taton,

2 who was alleged to be 

 

1The allegations against Baylor are not at issue in this appeal.

2The petition erroneously states that “Defendant, Nathan Taylor[,] was 

scheduled to pick up Plaintiff[.]” (emphasis added).
3

an employee or agent of Careflite, was scheduled to pick up Taylor at Baylor on 

December 5, 2015. 

According to the petition, Taylor was discharged from Baylor in a wheelchair, 

with his personal belongings placed in a plastic bag and hung on the back of the 

wheelchair. Careflite dispatched Taton to transport Taylor with a handicap accessible 

van. After accepting him into his care, Taton placed Taylor in his wheelchair in the

vehicle. Taylor asserts that Taton failed to remove the bag of personal possessions 

from the back of the wheelchair and failed to use straps to secure the wheelchair in 

place or to secure Taylor in the wheelchair prior to transport. When Taton drove 

onto the highway, Taylor’s wheelchair tipped over backward. Taylor allegedly struck 

his head and slid backward on the floor of the van. 

In his petition, Taylor alleges that Taton:

negligently, carelessly, and recklessly disregarded and breached his legal 

duty to exercise ordinary care in one or more of the following ways: 

(1) Failing to properly secure [Taylor’s] wheelchair in the vehicle; 

(2) Failing to properly secure [Taylor] in the wheelchair for transport; 

(3) Failing to remove the bag of personal possession[s] hung on the back 

of the chair to ensure that the [wheelchair] was properly balanced for 

transport; (4) Failing to use a vehicle adequate to the needs of [Taylor] 

given his current health condition; and (5) Failing to operate the vehicle 

at a reasonably safe speed to ensure the safety of [Taylor] as his 

passenger. 

With regard to Careflite, Taylor asserts that it “had a duty to hire, supervise, 

train, and retain competent employees[,]. . . [and] a duty to ensure that [Taton] was 

instructed in how to secure a wheelchair for transport, and how to drive a vehicle with 
4

a wheelchair in it without the wheelchair tipping over backwards.” In addition, Taylor

alleged that Careflite “had a duty to ensure that [Taton] was securing wheelchairs and 

passengers appropriately for transport and following proper safety guidelines for the 

transport of patients in wheelchairs.” In addition to stating that Careflite was 

vicariously liable for the actions of Taton “under the doctrine of Respondeat Superior,” 

Taylor contended that the negligence of Careflite, Taton and Baylor “separately 

and/or collectively” constituted a direct and proximate cause of his injuries and 

damages. 

Careflite and Taton responded with their answer on January 8, 2018, which 

included a general denial and numerous affirmative defenses. They specifically 

“invoke[d] their right to rely on all defenses, protections, provisions, and limitations 

authorized by Texas Civil Practice & Remedies Code, Chapter 74, Subchapter G, in 

full.” 

B. Expert Report

On April 17, 2018, Taylor filed his “Plaintiff’s Amended Notice of Filing 

Amended Expert Report Pursuant to Tex. Civ. Prac. & Rem. Code 74.351(a).”3 

Attached to the filing were the report and credentials of Robert C. Krause, M.S., 

EMT-P. Krause is a licensed paramedic. Krause’s report is four pages, and his 

credentials cover ten pages. 

 

3Taylor had filed the original report on February 23, 2018. After objections 

were filed, Taylor amended the original report. 
5

After setting out his credentials and some background facts in the report, 

Krause states his “opinion” as follows:

The care and transport of a patient safely and securely is a 

fundamental function of a medical transport company. A fundamental 

standard of care in healthcare is to do no harm. The phrase is 

sometimes recorded as primum nil nocere. Non-maleficence, which is 

derived from the maxim, is one of the principal precepts of bioethics of 

all healthcare providers and is a fundamental principle throughout the 

world. Failing to properly secure both the patient and the conveyance 

device, in this case a wheelchair, is below the standard of care of 

ensuring safe transportation. The expectation is a patient such as Mr. 

Taylor[] is transported safely, without falling or being toppled out of 

their [wheelchair] while in a moving vehicle. Falling backwards in a 

wheelchair[] while in the wheelchair van is unacceptable and falls below 

the standard of care of ensuring safe transportation. Section 37.173 of 

the DOT ADA regulations requires operators to train their personnel to 

properly assist and treat individuals with disabilities with sensitivity[] and 

to operate vehicles and equipment safely. Failing to properly secure 

both the wheelchair and Mr. Taylor with the use of a lap belt and 

shoulder belt is below the standard of care of ensuring safe 

transportation. Section 38.23(d) of the DOT ADA regulations requires 

all ADA-compliant buses and vans to have a two-part securement 

system, one to secure the wheelchair, and a seat belt and shoulder 

harness for the wheelchair user. The Careflite driver, Nathan Taton, 

failed to ensure Mr. Taylor was safely secured to the wheelchair and the 

wheelchair van, and as a result of his failures, Mr. Taylor flipped over 

backwards while being transported. This carelessness and inattention to 

detail for the safety and security of Mr. Taylor, on the part of Nathan 

Taton[,] resulted in an additional visit to an emergency department for 

Mr. Taylor. It is my opinion this fall was foreseeable[] (not securing a 

wheelchair could fall) and preventable (properly securing [wheelchair] 

would have prevented the flipping backwards).

C. Objections and Motion to Dismiss

In response, Careflite and Taton filed their objections to the amended report 

on May 8, 2018, and their motion to dismiss on May 10, 2018. In the motion, they 
6

argue that Taylor “wholly ignored the critical statutory requirement to serve a report 

that addressed the issue of causation.” Careflite and Taton contend that “a licensed 

physician who is otherwise qualified under the rules of evidence must opine on the 

issue of causation.” In addition, they urge that “[n]on-physician emergency medical 

technicians, paramedics, and registered nurses are statutorily disqualified from 

offering such opinions.”4 

D. Response to Objections and Motion to Dismiss

In his response to the objections, Taylor makes two arguments. First, Taylor 

contends that “this is a general negligence or safety standards based claim” and does 

not fall within the purview of section 74.351. Tex. Civ. Prac. & Rem. Code Ann. 

§ 74.351. He argues that he should not be held to a higher burden to provide an 

expert report simply because Careflite and Taton are healthcare providers; the 

standard should be no higher than it would be if “the transportation was on a city bus, 

taxicab, or ride share operator, like Uber or Lyft.” 

Second, he argues that the medical records should be considered in addition to 

the report by Krause. According to Taylor, his treating physician, Dr. James Guess, 

states multiple times in his records that the “[m]echanism of injury is as he was sitting 

in his wheelchair[,] it turned over.” Therefore, Taylor contends that, in determining 

 

4Careflite and Taton also note that they pointed out these same deficiencies in 

response to the original report. And, at that time, Taylor still had time to provide an 

additional report on causation that was authored by a licensed physician. 
7

whether he complied with the reporting requirements of section 74.351, the court can 

also consider Taylor’s other medical records. 

E. The Trial Court’s Ruling

On September 7, 2018, the trial court held a hearing on the objections to 

Krause’s report and motion to dismiss. At the conclusion of the hearing, the trial 

court stated that the expert report was “sufficient against Careflite.” On November 2, 

2018, the trial court signed an order denying the motion to dismiss and overruling the 

objections to the expert report of Krause as to Careflite and Taton.5 Thereafter, 

Careflite and Taton filed this interlocutory appeal. 

III. DISCUSSION

A. Law Governing Medical-Expert Reports

The Texas Medical Liability Act (Act) requires a claimant pursuing a “health 

care liability claim” to timely serve an adequate expert report. See Id. § 74.351(a) 

(requiring service of an adequate expert report within 120 days after the original 

answer is filed, absent a statutorily permitted exception). Failure to do so requires 

dismissal with prejudice. Id. § 74.351(b)(2); see also Scott and White v. Weems, No. 17-

0563, 2019 WL 1867916, at *1 (Tex. April 26, 2019). In the healthcare-liability 

 

5Prior to entering the order denying the motion to dismiss of Careflite and 

Taton, the trial court entered an order granting the motion. Subsequently, the trial 

court entered an order vacating the order of dismissal. 
8

context, an expert report is required to ensure that only claims with “potential merit” 

proceed. Samlowski v. Wooten, 332 S.W.3d 404, 410. (Tex. 2011).

The Act defines a health care liability claim as:

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 Ann. § 74.001(a)(13). Health care liability claims must 

satisfy the following three elements: (1) a physician or health care provider must be a 

defendant; (2) the claim or claims at issue must concern treatment, lack of treatment, 

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

professional or administrative services directly related to health care; and (3) the 

defendant’s act or omission complained of must proximately cause the injury to the 

claimant. Psychiatric Solutions, Inc. v. Palit, 414 S.W.3d 724, 725 (Tex. 2013) (quoting 

Tex. W. Oaks Hosp., LP v. Williams, 371 S.W.3d 171, 179-80 (Tex. 2012)).

In a suit involving a health care liability claim against a health care provider, a 

person may qualify as an expert witness on the issue of whether the health care 

provider departed from accepted standards of care only if the person:

(1) Is practicing health care in a field of practice that involves the 

same type of care or treatment as that delivered by the defendant 

health care provider, if the defendant health care provider is an 

individual, at the time the testimony is given or was practicing that 

type of health care at the time the claim arose;
9

(2) Has knowledge of accepted standards of care for health care 

providers 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 health care.

Tex. Civ. Prac. & Rem. Code Ann. § 74.402(b)(1)–(3). 

An expert who gives an opinion on causation must meet all of the following 

qualifications: (1) the expert must be a licensed physician; and (2) the expert must be 

otherwise qualified to give an opinion on the causal relationship under the Texas 

Rules of Evidence. Id. § 74.403(a). A “physician” is a person who is licensed to 

practice medicine in one or more states in the United States. Id. § 74.401(g)(1). An 

expert witness may be qualified to opine on one issue but not another. Id. § 74.351(i); 

In re Buster, 275 S.W.3d 475, 477 (Tex. 2008).

B. Standard of Review

A trial court’s decision whether to dismiss a health care liability claim based on 

a plaintiff’s failure to comply with section 74.351’s expert report requirement is 

reviewed for abuse of discretion. Tex. Civ. Prac. & Rem. Code Ann. § 74.351; see, e.g., 

Jernigan v. Langley, 195 S.W.3d 91, 93 (Tex. 2006) (per curiam); see also Van Ness v. 

ETMC First Physicians, 461 S.W.3d 140, 142 (Tex. 2015). Under this standard, we 

defer to the trial court’s factual determinations if supported by the evidence but

review its legal determinations de novo. See Van Ness, 461 S.W.3d at 142. An abuse 

occurs if the trial court rules without reference to guiding rules or principles or 
10

renders a decision lacking support in the facts or circumstances of the case. See 

Samlowski, 332 S.W.3d at 410.

When the issue presented requires statutory interpretation or a determination 

of whether chapter 74 applies to a claim, that is a question of law to which appellate 

courts apply a de novo standard of review. See Stockton v. Offenbach, 336 S.W.3d 610, 

615 (Tex. 2011). Whether a claim is a health care liability claim under the Act is a 

question of law we review de novo. Christus Health Gulf Coast v. Carswell, 505 S.W.3d 

528, 534 (Tex. 2016).

C. Analysis

1. Whether This is a Health Care Liability Claim

Taylor does not dispute that Careflite and Taton qualify as “health care 

providers.” In addition, he “agrees that there is a causal relationship between the 

alleged act or omission and the complained of injury which satisfies the third 

element.” Rather, he disputes whether section 74.351’s second element—whether the 

claim concerns treatment, lack of treatment, or a departure from accepted standards 

of medical care, or health care, or safety or professional or administrative services 

directly related to health care—is met. 

Careflite and Taton contend that “Taylor’s claim involves an alleged departure

from accepted standards of health care because Taylor was a patient in and under the 

care of Careflite and Taton at the time of the alleged incident.” Alternatively, they 

argue that “Taylor’s claim involves an alleged departure from accepted standards of 
11

safety because the underlying facts and Taylor’s allegations demonstrate that a 

substantive nexus exists between the allegedly violated safety standards and the 

provision of health care.” 

The determination of whether a cause of action is a health care liability claim is 

based on an evaluation of the facts alleged and the underlying nature of the claim. 

Diversicare Gen. Partner, Inc. v. Rubio, 185 S.W.3d 842, 847, 851 (Tex. 2005). “A cause of 

action alleges a departure from accepted standards of medical care or health care if the 

act or omission complained of is an inseparable part of the rendition of medical 

services.” Id. at 848. If the essence of the suit is a health care liability claim, a party 

cannot avoid the requirements of section 74.351 through artful pleading. Id. at 851.

At issue here is the nature of Taylor’s cause of action, a phrase that refers to 

the “fact or facts entitling one to institute and maintain an action, which must be 

alleged and proved in order to obtain relief.” Scott and White, 2019 WL 1867916, at *4 

(citing In re Jorden, 249 S.W.3d 416, 421 (Tex. 2008) (quoting A.H. Belo Corp. v. Blanton, 

133 Tex. 391, 129 S.W.2d 619, 621 (1939))). We focus on whether or not the 

gravamen of Taylor’s complaint is a “claimed departure from accepted standards of 

medical care, or health care, or safety or professional or administrative services 

directly related to health care.” Id. (citing Tex. Civ. Prac. & Rem. Code Ann.

§ 74.001(a)(13) and Christus Health, 505 S.W.3d at 534).

Careflite and Taton argue that the underlying factual background of Taylor’s 

December 5, 2015, medical transport, as set out in his original petition, states a claim 
12

premised upon departures from accepted standards of health care and departures 

from accepted standards of safety. In his petition, Taylor alleges that Careflite “failed 

to dispatch an appropriate vehicle to transport [him] commensurate with his health 

status three days after having open heart surgery.” In addition, Taylor states that 

Taton “accepted [Taylor] into his care, although he should have recognized that 

[Taylor’s] health condition required a higher degree of care than he and his vehicle 

were equipped to provide.” And, after accepting Taylor into his care, Taton “failed to 

remove the bag of personal possessions from the back of the wheelchair and failed to 

use straps to secure the wheelchair in place or to secure [Taylor] in the wheelchair 

prior to transport.” 

At least one of our sister courts has addressed claims similar to those here and 

found that they met the definition of a health care liability claim. Sherman v. 

Healthsouth Specialty Hosp., Inc., 397 S.W.3d 869 (Tex. App.—Dallas 2013, pet. denied). 

In Sherman, the plaintiff claimed injuries after a medical clinic employee allegedly failed 

to properly secure her and her wheelchair in a van to her home. The plaintiff argued 

that her “medical dealings” with the rehabilitation hospital had been completed, and 

the tangential relationship “does not somehow transform a mere van ride into an 

integral part of health care services.” Id. at 874. In determining the claim to be a 

health care liability claim, the court pointed out that a direct connection between the 

act or omission causing injury and the provision of health care is not necessary for 

purposes of determining whether a claim is a health care liability claim. Id. While the 
13

health care provider was not providing the plaintiff medical care or treatment at the 

time its driver suddenly applied his brakes, the health care provider was still 

responsible for the plaintiff’s safety during transport from the clinic to her home. Id.; 

see Bain v. Capital Senior Living Corp., No. 05-14-00255-CV, 2015 WL 3958714, *4 (Tex. 

App.—Dallas June 30, 2015, pet. denied) (mem. op.) (holding that claims alleging 

failure to secure a claimant into her wheelchair and applying the brakes with excessive 

force causing the claimant to fall from her wheelchair were health care liability claims); 

see Omaha Healthcare Ctr., LLC v. Johnson, 344 S.W.3d 392, 395 (Tex. 2011) (holding 

that the term “health care” encompasses any act or treatment performed or furnished 

by a health care provider).

Similarly, we conclude that Taylor’s claims involve allegations of departures

from accepted standards of care because Taylor was a patient in and under the care of 

Careflite and Taton at the time of the alleged incident. In addition, Taylor’s pleadings 

allege that Careflite and Taton failed to recognize that a patient in Taylor’s medical 

condition was not medically qualified to undergo a wheelchair transport and should 

have instead been transported via a stretcher in a supine position. Taylor also 

contends that the transport should have been completed by an ambulance unit with 

the necessary medical equipment to care for a patient in Taylor’s condition. All of the 

allegations involve an alleged departure from accepted standards of health care.

Taylor also relies upon Nexus Recovery Ctr. v. Mathis, 336 S.W.3d 360 (Tex. 

App.—Dallas 2011, no pet.) for the proposition that his claim does not concern 
14

treatment or lack of treatment as defined by the Act. However, Nexus involved 

allegations of an inappropriate intimate, sexual and financial relationship between a 

patient of a residential drug and alcohol treatment facility and an employee counselor 

of the facility which began after the patient left the care of the treatment program. Id.

at 363. In Nexus, unlike here, the plaintiff never raised complaints related to her care 

as a patient. Id. Rather, the only relationship to health care was in the sense that the 

plaintiff and former employee counselor first met when the plaintiff was a patient at 

Nexus. Id.

In addition, Taylor’s claims implicate duties to provide for patient safety 

because a substantive nexus exists between the allegedly violated safety standards and 

the provision of health care. In Ross v. St. Luke’s Episcopal Hospital, 462 S.W.3d 496, 

502 (Tex. 2015), the supreme court set forth a list of non-exclusive considerations to 

help courts determine whether there is a substantive nexus between the safety 

standards allegedly violated and the provision of health care:

(1) Did the alleged negligence of the defendant occur in the course of 

the defendant’s performing tasks with the purpose of protecting 

patients from harm;

(2) Did the injuries occur in a place where patients might be during 

the time they were receiving care, so that the obligation of the 

provider to protect persons who require special, medical care was 

implicated;

(3) At the time of the injury was the claimant in the process of 

seeking or receiving health care;
15

(4) At the time of the injury was the claimant providing or assisting in 

providing health care;

(5) Is the alleged negligence based on safety standards arising from 

professional duties owed by the health care provider;

(6) If an instrumentality was involved in the defendant’s alleged 

negligence, was it a type used in providing health care; or

(7) Did the alleged negligence occur in the course of the defendant’s 

taking action or failing to take action necessary to comply with 

safety-related requirements set for health care providers by 

governmental or accrediting agencies?

Id. at 505.

Several of these factors further support our conclusion that Taylor’s claim is a 

health care liability claim. For example, and similar to the facts in Bain, Taton’s 

alleged misuse of the straps to secure the wheelchair in place or to secure Taylor in 

the wheelchair prior to transport was a task performed with the purpose of protecting 

a patient from harm. Bain, 2015 WL 3958714, at *4. And the instrumentality 

involved—Taylor’s wheelchair—is the type of instrumentality used in providing 

health care. Taylor’s argument that his transport by Careflite and Taton is no 

different than the services provided by a taxi company or Uber or Lyft ignores his 

status as a post-heart-surgery patient and disregards the status of Careflite and Taton 

as licensed health care providers.

Therefore, we conclude that Taylor’s allegations not only involve departures 

from accepted standards of care but also implicate duties to provide for patient safety. 
16

Therefore, they are health care liability claims and are governed by the provisions of 

chapter 74. Tex. Civ. Prac. & Rem. Code Ann. § 74.001 et seq.

2. Whether Medical Records Suffice for an Opinion on Causation

Taylor’s only expert report was provided by Krause. It is undisputed that he is 

not a physician, but rather, as described by Taylor, “an expert in the field of EMT –

Paramedics qualified to give expert opinions on patient transport and handling.” If 

Krause’s report is insufficient, Taylor argues that he has “complied with the 

requirements [of chapter 74] by proffering the report of a qualified expert in 

conjunction with the medical records provided in response to Requests for 

Disclosures.”6 Indeed, in his response to the motion to dismiss, Taylor attached as 

exhibits over one hundred pages of medical records from healthcare providers seen 

on or after December 5, 2015. 

However, medical records have consistently been rejected as constituting an 

adequate chapter 74 expert report. See Maxwell v. Seifert, 237 S.W.3d 423, 427 (Tex. 

App.—Houston [14th Dist.] 2007, pet. denied); see also Milton v. Nguyen, No. 01-11-

00958-CV, 2012 WL 3228835, at *1 (Tex. App.—Houston [1st Dist.] August 9, 2012, 

pet. denied) (mem. op.); Univ. of Tex. Med. Branch at Galveston v. Callas, 497 S.W.3d 58, 

67 (Tex. App.—Houston [14th Dist.] 2016, pet. denied). In addition, even though 

 

6Specifically, Taylor contends that the medical records from OrthoTexas of 

Dr. James Guess and Dr. Richard Burg “state that the mechanism of Taylor’s injuries 

were the incident in which his wheelchair turned over.” 
17

required by section 74.351(a), no curriculum vitae of Guess or any other licensed 

physician affiliated with the hundreds of pages of medical records was supplied. Tex. 

Civ. Prac. & Rem. Code Ann. § 74.351(a).

While Taylor cites to Kettle v. Baylor Medical Center, 232 S.W.3d 832 (Tex. App.—

Dallas 2007, pet. denied) for his proposition that medical records can be considered in 

conjunction with a report, neither Kettle nor chapter 74 allow medical records to be 

substituted in place of a section 74.351 expert report. Rather, both support the 

conclusion here that only an expert report by a licensed physician can satisfy the 

requirements of chapter 74. 

In Kettle, the plaintiffs brought a health care liability claim against a number of 

health care providers. Id. at 836. To satisfy the expert report requirements of article 

4590i, the predecessor statute to chapter 74, the plaintiffs served reports from an 

internist/cardiologist and a registered nurse. Id. at 837–41. In addition to other 

matters, both reports stated opinions on medical causation. In response to objections 

to the adequacy of the reports, the Dallas court held that the registered nurse was not 

qualified to testify on medical causation. Id. at 841. However the court did consider 

the causation opinions included within the doctor’s report. Id. at 841–42. 

In this case, unlike in Kettle, Taylor submitted only a report from a nonphysician. He did not submit a report from any physician. Moreover, the Kettle

plaintiffs did not attempt to rely upon medical records to satisfy the mandatory 

minimum requirements of an expert report.
18

In addition, in deciding whether a report is compliant with chapter 74, the trial 

court is to examine only the four corners of the expert’s report and may not draw 

inferences or otherwise supply links in the causal chain. See Bowie Mem’l Hosp. v. 

Wright, 79 S.W.3d 48, 52 (Tex. 2002); Am. Transitional Care Ctrs. of Tex., Inc. v. Palacios, 

46 S.W.3d 873, 878 (Tex. 2001). Examining medical records outside the report does 

not comply with this four-corner requirement. 

Therefore, we conclude that Taylor’s allegations concern claimed departures 

from accepted standards of health care and safety services directly related to health 

care, and the trial court abused its discretion by denying Careflite and Taton’s motion 

to dismiss. We sustain this portion of Appellants’ issue. 

3. Whether Appellee is Entitled to a Thirty-Day Extension

In his brief, Taylor requests that in the event we sustain Careflite and Taton’s 

issue, he be granted a thirty-day extension to remedy any deficiencies “since he filed 

his reports in good faith.” In response, Careflite and Taton argue that Taylor “elected 

to wholly ignore and disregard causation, one of the three mandatory elements of a 

section 74.351 report, by serving a non-compliant report from a non-physician who is 

statutorily disqualified from offering medical causation opinions.” Therefore, they 

contend that “Taylor’s report from Krause, EMT-P was not a good faith effort 

because it omitted one of the three statutory requirements,” and therefore, he is not 

entitled to any extension of the section 74.351 expert report deadline. In addition, in 
19

their motion to dismiss, Careflite and Taton urged that Taylor’s “purported expert 

report” is “akin to no report at all.” 

Section 74.351 does distinguish between a report that is timely served but 

deficient and when no report is served. If a report is timely served but deficient, the 

trial court may grant an extension to cure the deficiency, and no appeal lies from the 

extension order. Villarreal v. Fowler, 526 S.W.3d 633, 635 (Tex. App.—Fort Worth 

2017, no pet.); see Tex. Civ. Prac. & Rem. Code Ann. § 74.351(c) (“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 one 30-day extension to the 

claimant in order to cure the deficiency.”).

In distinguishing between a deficient report and no report, we are guided by the 

supreme court’s decision in Scoresby v. Santillan, 346 S.W.3d 546 (Tex. 2011). In 

Scoresby, the court explained that when a trial court finds deficiencies within an expert 

report, it should “err on the side of granting the additional time and must grant it if 

the deficiencies are curable.” Id. at 549. Further, the court explained that an 

individual’s “lack of relevant qualifications and an opinion’s inadequacies are 

deficiencies the plaintiff should be given an opportunity to cure if it is possible to do 

so.” Id.

In describing when a claim should be dismissed instead of giving an 

opportunity to cure, the court stated,
20

We conclude that a thirty-day extension to cure deficiencies in an expert 

report may be granted if [1] the report is served by the statutory 

deadline, if [2] it contains the opinion of an individual with expertise that 

the claim has merit, and if [3] the defendant’s conduct is implicated. We 

recognize that this is a minimal standard, but we think it is necessary if 

multiple interlocutory appeals are to be avoided, and appropriate to give 

a claimant the opportunity provided by the Act’s thirty-day extension to 

show that a claim has merit. All deficiencies, whether in the expert’s 

opinions or qualifications, are subject to being cured before an appeal 

may be taken from the trial court’s refusal to dismiss the case.

Id. at 556–57; compare Villarreal, 526 S.W.3d at 636 (holding that a “Clinical Review” 

fails the minimal expert-report standard because instead of opining that a claim has 

merit, its author opined that several ethical rules were violated and recommended 

consultation with an attorney); Haskell v. Seven Acres Jewish Senior Care Servs., Inc., 

363 S.W.3d 754, 760 (Tex. App.—Houston [1st Dist.] 2012, no. pet.) (holding that 

letters from cardiologist, neurologist and psychologist that failed to state that a claim 

had merit did not constitute an expert report); Rivenes v. Holden, 257 S.W.3d 332, 339

(Tex. App.—Houston [14th Dist.] 2008, pet. denied) (holding that expert report that 

did not refer to physician by name or position and that offered no opinions 

concerning the physician’s conduct did not implicate that physician’s conduct); 

Apodaca v. Russo, 228 S.W.3d 252, 257 (Tex. App.—Austin 2007, no pet.) (concluding 

that if a report fails to address a defendant physician, it constitutes no report and an 

extension may not be granted); Garcia v. Marichalar, 198 S.W.3d 250, 255 (Tex. App.—

San Antonio 2006, no pet.) (concluding that report that did not name doctor or 
21

discuss how the treatment did not meet standard of care did not constitute good-faith 

effort).

In urging that Taylor is not entitled to an extension, Careflite and Taton also 

note that they put Taylor on notice of the “fatal omission of causation opinions from 

a licensed physician during the prescribed 120 day period,” yet he still did not comply. 

However, as this Court has previously noted, “[P]enalizing a plaintiff for declining to 

fix a report’s alleged deficiencies before a trial court rules on objections to the report 

would be unreasonable and contrary to the purpose of section 74.351(c), which is to 

grant an opportunity to cure after ‘elements of the report are found deficient.’” Gower 

v. Univ. Behavioral Health of Denton, No. 02-16-00245-CV, 2017 WL 3081153, at *12 

(Tex. App.—Fort Worth July 20, 2017, no pet.) (mem. op.) (quoting Tex. Civ. Prac. & 

Rem. Code Ann. § 74.351(c)).

Applying Scoresby’s standards here, we conclude that the trial court is in the best 

position to decide whether a cure for an inadequate expert report is feasible. Protzman 

v. Gurrola, 510 S.W.3d 640, 654–55 (Tex. App.—El Paso 2016, no pet.). Therefore, it 

is appropriate to remand the case to the trial court for consideration of whether the 

deficiencies in the expert report can be cured, and therefore, whether to grant an 

extension of time. Id. at 655.

IV. CONCLUSION

Having agreed with Appellants Careflite and Taton that the allegations of 

Appellee Taylor are health care liability claims governed by section 74.351 and that 
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Taylor failed to comply with chapter 74’s expert report requirements, we reverse the 

trial court’s order denying their motion to dismiss and remand this case to the trial 

court for further proceedings in accordance with this opinion. See Tex. R. App. P. 

43.2(d).

/s/ Dana Womack

Dana Womack

Justice

Delivered: June 27, 2019