Reversed and Remanded and Memorandum Opinion filed April 16, 2024

In The

Fourteenth Court of Appeals

NO. 14-22-00911-CV

MICHAEL TODD KOSAR, INDIVIDUALLY AND AS INDEPENDENT 

ADMINISTRATOR FOR THE ESTATE OF BETTY KOSAR, DECEASED; 

CRISANTOS G. LOPEZ; GENEVIEVE R. LOPEZ; AND SEBASTIAN 

RODRIGUEZ, Appellants

V.

KPA-CONSOLIDATION, D/B/A KINGWOOD MEDICAL CENTER, 

Appellee

On Appeal from the 190th District Court

Harris County, Texas

Trial Court Cause No. 2017-48084-A

MEMORANDUM OPINION

Appellants Michael Todd Kosar, Individually as Independent Administrator 

for the Estate of Betty Kosar, Deceased; Crisantos G. Lopez; Genevieve R. Lopez; 

and Rafael Sebastian Rodriguez, appeal from the trial court’s order dismissing 

their claims against appellee KPH-Consolidation, Inc. d/b/a Kingwood Medical 
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Center (Kingwood) pursuant to section 74.351 of the Civil Practice and Remedies 

Code. See Tex. Civ. Prac. & Rem. Code § 74.351. We hold that the trial court 

abused its discretion when it granted Kingwood’s motion to dismiss because 

appellants’ expert report states with sufficient detail the causal relationship 

between the alleged failure to meet the standard of care and the alleged harm 

resulting in Betty Kosar’s injuries and death. We therefore sustain appellants’ 

second issue, reverse the trial court’s final judgment, and remand the case to the 

trial court for further proceedings.1

BACKGROUND

We have seen this dispute before. See Kosar v. KPH-Consolidation, Inc. 

d/b/a Kingwood Medical Center, No. 14-19-00401-CV, 2020 WL 7074223, at *1 

(Tex. App.—Houston [14th Dist.] Dec. 3, 2020, no pet.) (mem. op.) (dismissing 

appeal for lack of jurisdiction). Our prior opinion sets forth the pertinent 

background information and we do not repeat it here. After the case was remanded 

to the trial court, appellants’ claims against Kingwood were severed into a separate 

case and a final judgment was signed soon thereafter. This appeal followed.

ANALYSIS

Appellants argue, among other issues, that the trial court abused its 

discretion when it dismissed their case against Kingwood because Dr. Bedolla’s 

April 4, 2018 expert report (First Report) met the Chapter 74 expert report 

requirements. As explained below, we agree.

I. Standard of review and applicable law

We review for an abuse of discretion a trial court’s ruling on a motion to 

1 Appellants raised four issues on appeal. Because we sustain appellants’ second issue, 

we need not reach their remaining issues challenging the trial court’s final judgment. See Tex. 

R. App. P. 47.1.
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dismiss for failure to comply with section 74.351. Am. Transitional Care Cntrs. of 

Tex., Inc. v. Palacios, 46 S.W.3d 873, 878 (Tex. 2001); Univ. of Tex. Med. Branch 

at Galveston v. Callas, 497 S.W.3d 58, 62 (Tex. App.—Houston [14th Dist.] 2016, 

pet. denied). A trial court abuses its discretion if it acts arbitrarily or unreasonably 

or without reference to guiding rules or principles. Bowie Mem’l Hosp. v. Wright, 

79 S.W.3d 48, 52 (Tex. 2002) (per curiam).

The Texas Medical Liability Act requires a party asserting a healthcare 

liability claim to file an expert report and serve it on each party not later than 120 

days after each defendant files an answer. Tex. Civ. Prac. & Rem. Code 

§ 74.351(a). Under the statute, an expert report means a written report 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 . . . failed to meet the standards, and the causal relationship between 

that failure and the injury, harm, or damages claimed.” Tex. Civ. Prac. & Rem. 

Code § 74.351(r)(6); Abshire v. Christus Health Se. Texas, 563 S.W.3d 219, 223 

(Tex, 2018). If a plaintiff does not timely serve an expert report meeting the 

required elements, the trial court must dismiss the healthcare claim on motion of 

the affected healthcare provider. See Tex. Civ. Prac. & Rem. Code. §§ 74.351(b), 

(l); Miller v. JSC Lake Highlands Operations, LP, 536 S.W.3d 510, 513 (Tex. 

2017) (per curiam); Gannon v. Wyche, 321 S.W.3d 881, 885 (Tex. App.—Houston 

[14th Dist.] 2010, pet. denied). If elements of the report are found deficient, as 

opposed to absent, the court may grant a thirty-day extension to cure the 

deficiency. Tex. Civ. Prac. & Rem. Code § 74.351(c); Gannon, 321 S.W.3d at 

885.

“The purpose of the expert report requirement is to deter frivolous claims, 

not to dispose of claims regardless of their merits.” Scoresby v. Santillan, 346 
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S.W.3d 546, 554 (Tex. 2011). The medical expert’s report need not marshal all the 

plaintiff’s proof, nor prove the plaintiff’s claim. Columbia Valley Healthcare Sys.

L.P. v. Zamarripa, 526 S.W.3d 453, 460 (Tex. 2017). It must, however, include 

the expert’s opinions on the three statutory elements of standard of care, breach, 

and causation. Palacios, 46 S.W.3d at 878-79; Kelly v. Rendon, 255 S.W.3d 665, 

672 (Tex. App.—Houston [14th Dist.] 2008, no pet.). The report need not use 

“magic words” and does not have to meet the same standards as evidence offered 

in a summary-judgment proceeding or trial. See Zamarripa, 526 S.W.3d at 460 

(stating that a medical expert need not use “any particular magical word”); Jelinek 

v. Casas, 328 S.W.3d 526, 540 (Tex. 2010) (stating no magic words are required). 

Bare conclusions or speculation, however, will not suffice. See Wright, 79 S.W.3d 

at 52, 53; Humble Surgical Hosp., LLC v. Davis, 542 S.W.3d 12, 23 (Tex. App.—

Houston [14th Dist.] 2017, pet. denied). 

To constitute a good-faith effort to comply with the expert report 

requirement, the report must provide enough information to fulfill two purposes of 

the statute: (1) inform the defendant of the specific conduct the plaintiff has called 

into question, and (2) provide a basis for the trial court to conclude that the claims 

have merit. Baty v. Futrell, 543 S.W.3d 689, 693–94 (Tex. 2018). This constitutes 

a low threshold that a person bringing a claim against a health care provider must 

cross to show that his or her claim has merit. North Cypress Med. Ctr. Operating 

Co., Ltd. v. White, No. 14-20-00004-CV, 2022 WL 120706, at *3 (Tex. App.—

Houston [14th Dist.] Jan. 13, 2022, no pet.) (mem. op.); see Loaisiga v. Cerda, 379 

S.W.3d 248, 264 (Tex. 2012) (Hecht, J. concurring in part and dissenting in part) 

(“We have held that the standard for adequacy of a report is lenient, and that leave 

to cure any deficiencies in a report must be freely given.”). “Whether the expert’s 

explanations are believable is not relevant to the analysis of whether the expert’s 
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opinion constitutes a good-faith effort to comply with the Act.” E.D. v. Tex.

Health Care, P.L.L.C., 644 S.W.3d 660,664 (Tex. 2022) (per curiam) (emphasis in 

original, internal quotations omitted).

II. Dr. Bedolla’s First Report meets the section 74.351 requirements.

Among other arguments raised on appeal, appellants assert that the trial 

court abused its discretion when it dismissed their claims against Kingwood for an 

inadequate expert report because Dr. Bedolla’s First Report crossed the low 

threshold to show that appellants’ claims have merit. 

In his First Report and attached C.V. Dr. Bedolla summarized his 

qualifications to render his expert opinion on Kingwood’s handling of Kosar.2 

Kingwood did not challenge those qualifications, so they are not at issue in this 

appeal.

Dr. Bedolla next detailed Kingwood’s handling of Kosar based on the 

medical records he reviewed. According to Dr. Bedolla, Kosar arrived at 

Kingwood complaining about abdominal pain and fever at 11:49 a.m., ten days 

after gastric-sleeve surgery. The hospital’s records indicate that Kosar was pale, 

sweating heavily, and had abnormal breathing. Kosar’s pulse rate was 152, well 

above the normal pulse rate. Dr. Becker, the Emergency Room physician, saw 

Kosar minutes after her arrival and he noted that Kosar had diffuse tenderness of 

her abdomen to palpitation. Laboratory testing showed that Kosar had elevated 

lactate levels, elevated glucose with no previous history of diabetes, and diffuse 

elevation of liver function tests. A chest X-ray was taken, and it revealed Kosar 

had a large amount of air in her abdominal cavity, “a very abnormal finding ten 

days out for abdominal surgery.” CT Imaging “was markedly abnormal with air 

2 References to “Kosar” are to the deceased.
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and fluid strongly suggestive of bowel perforation and intrabdominal abscess.”

The on-call surgeon was called in and examined Kosar. The surgeon 

recommended Kosar be transferred. The surgeon then consulted with Dr. Mehta, 

the original surgeon, who accepted the transfer to Memorial Hermann Hospital. 

The consult note states that Kosar was diagnosed with a perforated bowel. Dr. 

Bedolla states that the “consult note does not mention sepsis.” The transfer was 

arranged and at 2:14 p.m., Dr. Becker’s documentation gives the diagnoses of 

“abdominal pain” and “gastric perforation.” Kosar received broad spectrum 

antibiotics and about four liters of IV fluids. Pressors were not administered.

Kosar then remained in the Kingwood Emergency Room for three hours 

after the transfer had been accepted. There are no records indicating that Dr. 

Becker checked Kosar’s condition during this period of time. The “RN Notes” 

indicate that Kosar’s condition deteriorated during this period. The RN Notes 

document that Kosar developed hypotension and a pulse rate of 148. When Dr. 

Becker was notified by phone of Kosar’s hypotension, he declined to give Kosar 

pain medication due to her low blood pressure. Kingwood’s records state that 

Kosar left Kingwood at 5:26 p.m. in an ambulance. 

Kosar’s condition became critical during the ambulance transfer as she 

experienced an elevated heart rate and low blood pressure. Kosar experienced 

cardiac arrest during the transfer but the paramedics were able to resuscitate her 

prior to her arrival at Memorial Hermann Hospital. Kosar received surgery at 

Memorial Hermann where three liters of pus were drained and massive sepsis was 

discovered. Kosar later died due to sepsis and multi-organ failure. 

Dr. Bedolla summarized Kingwood’s treatment of Kosar as follows:

[Kosar] came in 10 days after abdominal surgery, with a post op leak, 

a massive amount of pus in her abdomen, and multiple markers for 
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sepsis. The surgeon at Kingwood Hospital recommended transfer to 

Memorial Hermann, and the transfer took over 3 hours to start from 

the time the decision was made. During this time, she was not 

rechecked by Dr. Becker and about 26 minutes before transfer, she 

became hypotensive, indicating deterioration to full-blown septic 

shock. She was not treated properly for septic shock. She was 

transferred in septic shock and had a cardiac arrest en route. Though 

she was resuscitated, she ultimately died from sepsis and multi-organ 

failure.

Dr. Bedolla’s expert report then detailed the required parts of a Chapter 74 

medical expert report:

 VII. The Standard of Care for Kingwood Hospital

A. A hospital must provide treatment to emergency patients 

within its capacity to minimize the patient’s risks.

B. When the hospital is going to transfer out, it should do so 

in a timely and appropriate fashion, and with proper monitoring 

and safeguards.

1. Providers initiating transfer should have training in 

EMTALA3and understand the requirements 

around transferring potentially or definitely 

unstable patients.

2. The patient must be carefully monitored prior to 

transfer.

3. The patient must be re-evaluated and the decision 

to transfer should be reconsidered if the patient 

becomes unstable or more unstable.

4. The hospital must have safeguards for 

inappropriate transfers. When the equipment to 

take care of the patient is present at the hospital, 

but the surgeon decides on his own to make a 

transfer, there must be safeguards to assure that the

transfer is necessary, especially in an unstable 

patient.

3 Emergency Medical Treatment and Active Labor Act (“EMTALA”), 42 U.S.C. § 

1395dd.
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VIII. Breaches of the Standard of Care: Kingwood Hospital.

Kingwood hospital failed to ensure an appropriate, safe and

timely transfer of Ms. Kosar[.]

A. The transfer delay of 3 hours was inappropriate for a 

patient with surgical sepsis.

B. There is no evidence that hospital staff took affirmative 

action to inform Dr. Becker of the patient’s deteriorating 

condition while awaiting transfer.

C. There is no evidence that the surgeon who initiated the 

transfer was appropriately trained in transferring. There 

is no evidence the surgeon considered the vital signs and

chance of death from delay in transfer. Hospital 

policies—or lack thereof—allowed the surgeon to decide 

on his own that he would initiate transfer.

D. There is no evidence the transfer was even appropriate to 

begin with. Exploring the abdomen for perforated bowel 

is a core surgical privilege, and there is not present any

justifiable reason for not operating at Kingwood when 

the risk of transfer exceeds the benefits—more so when 

the transfer is delayed.

E. As the patient deteriorated there was no attention or 

reconsideration of the transfer by the hospital or of 

revisiting the decision by the surgeon to not operate at 

Kingwood.

IX. Causation: Kingwood Hospital: Kingwood Hospital’s 

institutional failures as outlined above were also a proximate 

cause of Ms. Kosar’s death. The Hospital allowed the patient

to become critically ill by progressing from sepsis to severe 

sepsis and finally septic shock. Kingwood Hospital failed to 

treat the patient within its capacity to increase her chance of 

survival and ultimately transferred her out in an unstable 

condition where she went into code upon arrival, which 

condition caused her to die thereafter.

Kingwood lodged no objection to Dr. Bedolla’s statement of Kingwood’s 
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standard of care.4 As a result, Kingwood has waived any objections it may have 

had to Dr. Bedolla’s standard of care opinion. See Tex. Civ. Prac. & Rem. Code 

§ 74.351(a) (“Each defendant physician or health care provider whose conduct is 

implicated in a report must file and serve any objection to the sufficiency of the 

report not later than the later of the 21st day after the date the report is served or 

the 21st day after the date the defendant’s answer is filed, failing which all 

objections are waived.”).

Kingwood did object that Dr. Bedolla’s report on Kingwood’s alleged 

breaches of the standard of care and causation were inadequate. Specifically,

Kingwood objected that while Dr. Bedolla pointed out five alleged breaches of the 

standard of care by Kingwood, three of those breaches, C, D, and E quoted above,

addressed actions and decisions of the on-call surgeon. Kingwood objected that it 

had no control over the surgeon’s actions or decisions and therefore any breaches 

of the standard of care he committed could not be attributed to it. At this stage of 

the legal proceedings, however, the legal relationship between a doctor and a 

hospital is not relevant and therefore not a valid objection. See Harvey v. Kindred 

Healthcare Operating, Inc., 578 S.W. 638, 643, n.4 (Tex. App.—Houston [14th 

Dist.] 2019, no pet.) (stating that because the purpose of the expert report 

requirement is not to prove liability but instead to show that a claim is not baseless, 

it is not appropriate to dismiss a healthcare liability claim because one of the 

4 On appeal, Kingwood asserts that it objected to Dr. Bedolla’s statement of the standard 

of care during the oral hearing on their motion to dismiss. We disagree. Section 74.351(a)’s 

plain language requires a defendant objecting to a medical expert’s report to “file and serve any 

objection to the sufficiency of the report not later than the later of the 21st day after the date the 

report is served or the 21st day after the date the defendant’s answer is filed, failing which all 

objections are waived.” Tex. Civ. Prac. & Rem. Code § 74.351(a). Even if we assume without 

deciding that a defendant could orally lodge an objection, because the oral hearing occurred long 

after the statutory deadline to file and serve objections had passed, Kingwood waived any 

objection it may have had to Dr. Bedolla’s statement of the standard of care in his first expert 

report. 
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parties might have been an independent contractor). While a hospital is generally 

not vicariously liable for the acts or omissions of a physician over whom it lacks 

control, the fact that the on-call surgeon may have been an independent contractor 

would not be a proper basis for dismissing a healthcare liability claim under the 

expert report rule. Id. Because at this preliminary stage we do not distinguish 

between Kingwood’s employees and independent contractors, we conclude that Dr. 

Bedolla’s report established these alleged breaches for Chapter 74 expert report 

purposes.

Kingwood objected that Dr. Bedolla’s alleged breach A, quoted above, was 

contradictory because he opined the transfer was delayed and that Kingwood 

“failed to treat the patient within its capacity.” As a result, Kingwood asserts Dr. 

Bedolla’s report is unclear whether he believed Kingwood should have treated 

Kosar or transferred her. Having reviewed Dr. Bedolla’s entire report, we 

conclude it clearly states that Kingwood had a duty to either promptly treat Kosar’s 

condition within the limits of its capacity, or promptly transfer her to a facility that 

could adequately treat her rapidly deteriorating condition. See Harvey, 578 S.W.3d 

at 651 (stating appellate courts review expert reports as a whole). In Dr. Bedolla’s 

view, Kingwood breached the standard of care because it did neither. We conclude 

this adequately stated an alleged breach of the standard of care by Kingwood for 

Chapter 74 expert report purposes. See Baty, 543 S.W.3d at 697 (explaining that 

challenged expert report met Chapter 74 requirements and that “additional detail is 

simply not required at this stage of the proceedings.”); Robles v. Pinnacle Health 

Facilities XV, LP, No. 14-18-00135-CV, 2020 WL 746720, at *6 (Tex. App.—

Houston [14th Dist.] Feb. 13, 2020, no pet.) (mem. op.) (concluding that expert 

report met statutory requirements because it informed the defendant of the specific 

conduct called into question and provided a basis for the trial court to conclude the 
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claims have merit); Baylor College of Medicine v. Pokluda, 283 S.W.3d 110, 122 

(Tex. App.—Houston [14th Dist.] 2009, no pet.) (concluding medical expert report 

provided a “fair summary” of how defendant breached standard of care). 

Turning to Dr. Bedolla’s causation opinion, Kingwood objected that it was 

conclusory. A conclusory statement is one that expresses a factual inference 

without providing the underlying facts to support that conclusion. See Padilla v. 

Metro. Transit Auth. of Harris Cnty., 497 S.W.3d 78, 85 (Tex. App.—Houston 

[14th Dist.] 2016, no pet.) (addressing allegation affidavit was conclusory). As 

quoted above, albeit in brief fashion, Dr. Bedolla linked Kingwood’s listed specific 

breaches of the standard of care with Kosar’s rapidly declining condition, which in 

turn led to her death from septic shock. Dr. Bedolla’s opinion set forth sufficient 

facts to reach this conclusion and therefore his causation opinion was not 

conclusory. See Robles, 2020 WL 746720, at *6 (concluding medical expert’s 

opinion on breach of the standard of care was not conclusory because the expert 

“set forth sufficient facts to support” his opinion); Bakhtari v. Estate of Dumas, 

317 S.W.3d 486 (Tex. App.—Dallas 2010, no pet.) (concluding medical expert 

adequately explained the basis for his conclusion and linked that conclusion to the 

facts); Mosely v. Mundine, 249 S.W.3d 775, 781 (Tex. App.—Dallas 2008, no pet.) 

(“We conclude Thompson’s opinion as to causation is not mere conjecture and 

speculation because he supported his statements with facts.”).

Because Dr. Bedolla’s report adequately addressed a theory of liability 

against Kingwood, we hold that the trial court abused its discretion when it 

dismissed appellants’ claims against Kingwood. See Harvey, 578 S.W.3d at 654 

(concluding trial court abused discretion when it dismissed plaintiff’s claims 

because plaintiff’s medical expert report met requirements established by section 

74.351). We therefore sustain appellants’ second issue on appeal.
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CONCLUSION

Having sustained appellants’ second issue on appeal, we reverse the trial 

court’s final judgment dismissing appellants’ claims against Kingwood and remand 

the case to the trial court for further proceedings.

/s/ Jerry Zimmerer 

Justice

Panel consists of Justices Bourliot, Zimmerer, and Spain.