COURT OF APPEALS 

SECOND DISTRICT OF TEXAS 

FORT WORTH 

NO. 02-15-00312-CV 

SCC PARTNERS, INC. D/B/A 

SENIOR CARE HEALTH AND 

REHABILITATION CENTER - 

BRIDGEPORT; AND 

FOURSQUARE HEALTHCARE, 

LTD. F/K/A SCC HEALTHCARE 

GROUP 

 APPELLANTS

V. 

BILLY ROBERT INCE, 

INDIVIDUALLY AND AS A 

REPRESENTATIVE OF THE 

ESTATE OF NORECCA “JOY” 

INCE, DECEASED 

 APPELLEE

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FROM THE 271ST DISTRICT COURT OF WISE COUNTY 

TRIAL COURT NO. CV14-04-225 

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OPINION 

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Appellants––SCC Partners, Inc. d/b/a Senior Care Health and 

Rehabilitation Center - Bridgeport and Foursquare Healthcare, Ltd. f/k/a SCC 
2 

Healthcare Group (Providers)––bring a single issue in this interlocutory appeal 

from an order denying their motion to dismiss1 in a healthcare liability case: that 

the trial court erred by denying their motion after overruling their objections to the 

expert report filed by appellee Billy Robert Ince. We affirm. 

Ince’s wife Joy resided at Senior Care Bridgeport’s nursing facility for 

almost a year before her death on April 27, 2012. Joy died six days after being 

admitted to a different hospital and receiving a diagnosis of gram negative 

septicemia, gram negative sepsis, and acute myeloid leukemia. After Joy died, 

Ince filed a wrongful death and survival suit alleging that Providers had been 

negligent in caring for her and that their negligence caused her predeath injuries, 

including pain and suffering, and eventually her death. Ince timely filed an expert 

report by Dr. E. Rawson Griffin, III, to which Providers objected, contending that 

Dr. Griffin was not qualified to render an opinion “regarding cancer or oncology” 

and that his opinion regarding causation was ambiguous and conclusory. 

Providers state in their objections, “While [Dr. Griffin’s opinion as to causation of 

pain and suffering from Joy’s injuries] may be sufficient to address [Ince’s] 

survival claim, it does not address causation as to the wrongful death claim.” 

After a hearing, the trial court denied Providers’ motion to dismiss. 

 1See Tex. Civ. Prac. & Rem. Code Ann. § 51.014(a)(9) (West Supp. 2015). 
3 

Health Care Liability Claims 

A health care liability claimant is required to serve a defendant with an 

expert report and curriculum vitae of the report’s author within 120 days of filing 

the claim. Tex. Civ. Prac. & Rem. Code Ann. § 74.351(a) (West Supp. 2015). 

The report must be written by an expert competent to give an opinion on the 

matters in the report, must inform the defendant of the specific conduct called 

into question, and must provide a basis for the trial court to determine that the 

claim has merit. Id. §§ 74.351(r)(5)(B), (r)(6), 74.402 (West Supp. 2015); Bowie 

Mem’l Hosp. v. Wright, 79 S.W.3d 48, 52 (Tex. 2002). If the defendant files a 

motion challenging the adequacy of the expert report, the court shall grant the 

motion only if it appears to the court that the report does not represent a good 

faith effort to comply with the statutory requirements. Tex. Civ. Prac. & Rem. 

Code Ann. § 74.351(l). We review a trial court’s denial of a motion to dismiss for 

an abuse of discretion. Jernigan v. Langley, 195 S.W.3d 91, 93 (Tex. 2006); 

Columbia N. Hills Hosp. Subsidiary, L.P. v. Alvarez, 382 S.W.3d 619, 623–24 

(Tex. App.––Fort Worth 2012, no pet.). 

Certified EMS, Inc. v. Potts 

 Although Providers argue that even if Dr. Griffin’s report is sufficient as to 

Ince’s survival claim it is not sufficient as to his wrongful death claim, at oral 

argument they clarified that they had not conceded that the report was sufficient 

as to the survival claim. Ince responds that because Providers’ objections should 

be overruled, at least as to the survival claim, under Certified EMS, Inc. v. Potts, 
4 

he need not show that the report is independently sufficient as to the wrongful 

death claim, and none of the claims are subject to dismissal. 392 S.W.3d 625, 

626 (Tex. 2013). 

 In Certified EMS, a patient sued a hospital raising direct and vicarious 

liability theories of negligence after a nurse employed by a staffing service 

allegedly assaulted her. Id. Potts timely served expert reports from a doctor and 

a nurse, but Certified EMS objected to the reports on the ground that neither 

referenced its potential direct liability as alleged by Potts. Id. at 627. Citing a 

split in the courts of appeals, the supreme court held that the Texas Medical 

Liability Act does not require an expert report to address each alleged theory of 

liability and that a report that satisfies the Act’s requirements “even if as to one 

theory only, entitles the claimant to proceed with a suit against the physician or 

health care provider.” Id. at 630. 

 Providers contend that the holding in Certified EMS is limited to direct and 

vicarious liability theories of negligence against a party and not different causes 

of actions with separate injuries. We do not construe the holding in Certified 

EMS so narrowly. The El Paso Court of Appeals has agreed. See Tenet Hosps. 

Ltd. v. Bernal, 482 S.W.3d 165, 171–72 (Tex. App.––El Paso 2015, no pet.) 

(holding, after concluding that report was insufficient as to causation on survival 

claim, that “[t]his does not necessarily mean that plaintiffs’ survival claims fail” 

and, citing Certified EMS, addressing adequacy of report provided for wrongful 
5 

death claims).2 In Certified EMS, the supreme court rejected the lower court’s 

reasoning that the statute’s use of the phrase “cause of action” is dispositive and, 

thus, that the focus of a dismissal motion is the operative set of facts leading to 

various theories of liability within a cause of action. 392 S.W.3d at 630 (citing 

355 S.W.3d 683, 690–92 (Tex. App.––Houston [1st Dist.] 2011) (op. on reh’g) 

(“By focusing on a cause of action rather than particular liability theories that may 

be contained within a cause of action, the plain language establishes that the 

entire cause of action is dismissed with respect to the defendant when the 

claimant has failed to file an expert report that sets out at least one liability theory 

within a cause of action.”)). Instead, the supreme court held that a report that 

satisfies the statutory elements, “even if as to one theory only,” is sufficient to 

avoid dismissal of an entire case. Id. at 630–31 (“If the trial court decides that a

liability theory is supported, then the claim is not frivolous, and the suit may 

proceed.” (emphasis added)). This is consistent with the goal of avoiding 

frivolous suits: if at least one alleged claim, theory, or cause of action in a health 

care liability suit has expert support, then the legislative intent of deterring 

frivolous suits has been satisfied. See id. at 631. Carving out causes of action, 

 2As Providers point out, the court of appeals reversed in Bernal and 

remanded for the trial court to consider a thirty-day extension, but not, as 

Providers urge, because the plaintiff was required to produce an expert opinion 

on both the wrongful death and survival claims but because the plaintiff failed to 

provide an adequate expert opinion as to causation under either theory. Tenet 

Hosps. Ltd. v. Bernal, 482 S.W.3d 165, 171, 175 (Tex. App.—El Paso 2015, no 

pet.). 
6 

i.e., alternative “theories of liability,” at the beginning of the suit before discovery 

has occurred would be akin to requiring a plaintiff to meet the summary judgment 

standard of proof. See id. (citing Am. Transitional Care Ctrs. of Tex., Inc. v. 

Palacios, 46 S.W.3d 873, 879 (Tex. 2001)). 

 Accordingly, we conclude and hold that if the expert report served by Ince 

satisfies the statutory requirements as to either his alleged wrongful death or 

survival claims, then the trial court did not abuse its discretion by denying 

Providers’ motion to dismiss. See id. at 630–31. 

Qualifications3

 An expert report concerning standards of care for health care providers 

must be authored by one who qualifies as an expert. Tex. Civ. Prac. & Rem. 

Code Ann. §§ 74.351(r)(5)(B), 74.402; Davisson v. Nicholson, 310 S.W.3d 543, 

550 (Tex. App.––Fort Worth 2010, no pet.) (op. on reh’g). A person may qualify 

as an expert on the issue of whether a 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; 

 3Although Providers do not discuss their challenge to Dr. Griffin’s 

qualifications in the argument of their issue, they do repeat their trial court 

objections to his qualifications elsewhere in their brief; thus, we will address that 

complaint in an abundance of caution. 
7 

(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). Persons practicing health care 

include those serving as consultants while being licensed, certified, or registered 

in the same field as the health care provider. Id. § 74.402(a)(2). A person is 

qualified on the basis of training or experience if he is certified by a state or 

national professional certifying agency or has substantial experience in the field 

and is actively practicing health care services relevant to the claim. Id. 

§ 74.402(c). To determine whether the author of a report is qualified, we may 

look only at the four corners of the report and the author’s curriculum vitae. 

Barber v. Mercer, 303 S.W.3d 786, 794 (Tex. App.––Fort Worth 2009, no pet.) 

(citing Palacios, 46 S.W.3d at 878). 

 Providers argued in their motion to dismiss that Dr. Griffin is not qualified to 

render an opinion excluding leukemia as an alternative cause of Joy’s death 

because his report does not establish that he has specialized knowledge or 

training in oncology. Ince responded that Dr. Griffin’s curriculum vitae shows that 

he is qualified because he “regularly treats patients with conditions almost 

identical to [Joy’s]” and he opined solely that Providers’ negligence, which led to 

the development of Joy’s pressure sore, was a contributing factor in her death, 

not that their negligence caused her leukemia. 
8 

Pertinent to his qualifications, Dr. Griffin stated in his expert report, 

I am a practicing physician licensed by the States of Florida, 

Georgia and Virginia. I received my M.D. Degree from Medical 

University of South Carolina, Charleston, South Carolina, and 

interned at Tripler Army Medical Center, Honolulu, HI. I completed 

my residency at Martin Army Hospital, Ft. Benning, Georgia. I 

currently hold a certificate of added qualification in geriatrics and I 

was a certified director of long-term care facilities for 6 years in the 

past. I am also board certified in family medicine. I served as 

Director of Geriatric Services, Tandem Skilled Nursing Facility in 

Orange Park, Florida in 1998 and from 1999–2001. I was Attending 

Staff in Family Practice and Geriatrics at Orange Park Medical 

Center in Orange Park, Florida from 1985–2015. I was Director of 

Rehabilitation Services at Cedar Hills SNF in Jacksonville, Florida 

from 2005–2012. I served as a Consultant in Geriatric 

Neuropsychiatry at Holly Point Manor Skilled Nursing Home in 

Orange Park, Florida in 1998. I served as Associate Medical 

Director at Consultec SNF in Orange Park, Florida from 2006–2012. 

I was Medical Director at Health Ex Rehabilitation in Orange Park, 

Florida from 2004–2006. I was also the Medical Consultant for Long 

Term Care at Community Hospice in Jacksonville, Florida from 

2006–2012. I was credentialed as an expert witness in Family 

Practice and Geriatrics with the Florida Board of Medicine, 

Tallahassee, Florida from 1991–2015. At the time of the occurrence 

of this case, I was actively engaged in the practice of geriatrics. I 

continue to practice actively in this specialty as of this date. I have 

attached a copy of my current CV, which is incorporated in this 

report by this reference. 

In the regular course of my medical practice I have had 

occasion to diagnose and treat patients with conditions similar to or 

identical to those affecting [Joy]. Specifically, during the course of 

my career I’ve provided medical care to thousands of patients in 

hospitals, nursing homes and assisted living facilities. I have 

provided care to patients who, like [Joy], were suffering from type II 

Diabetes, congestive heart failure, coronary artery disease, 

hypertension, hyperlipidemia, gastroesophageal reflux disease, 

arthritis, COPD, cellulitis, depression, atherosclerosis, abnormal liver 

study, impetigo, spondylosis and Myocardial Infarction, and Vitamin 

D Deficiency. I have written orders for the care and treatment of 

those patients and have supervised the execution of these orders by 

RN[’]s[,] LVN’s[,] and CNA’s who were assigned to provide the 
9 

hands-on care to my patients. These orders included orders for the 

prevention and treatment of pressure ulcers. As my CV shows I am 

a published author on pressure ulcers. I am therefore intimately 

familiar with the standards of care for the facilities involved in this 

claim as well as the RN[’]s, LVN’s and CNA’s who provid[ed] care to 

[Joy]. 

. . . . 

It is my opinion that the failures set forth above were the 

proximate cause of [Joy’s] injuries. It is my opinion that to a 

reasonable degree of medical probability, had Defendants, and each 

of them, provided a safe environment for [Joy], prevented her from 

developing pressure ulcers, [Joy’s] life would not have been subject 

to pain and suffering leading up to her death from said pressure 

ulcer. In addition had proper wound care protocols been in place 

which provided for arterial and vascular studies to identify vascular 

lesions that could have been repaired she more likely than not would 

not have been subject to pain and suffering from her lower extremity 

wound resulting in an improved quality of life as a result of requiring 

lower doses of pain medication. 

Specifically, when prolonged pressure, i.e. longer than two 

hours is present only [sic] body part and this pressure exceeds 

approximately 32 mmHg, the capillaries are compressed and the 

blood flow to the affected part is shut off. Capillaries are the 

smallest vessels that connect the arteries and the veins. Capillaries 

have very thin walls and it is through the walls of these tiny blood 

vessels that oxygen and nutrients pass into the surrounding tissue to 

be utilized. All living tissue in the body requires oxygen and 

nutrients to stay alive and to function. When the tissues are 

deprived of blood flow, oxygen and nutrients, then the death of 

tissue occurs, the medical term for this is necrosis, and in layman’s 

terms, the tissue simply dies and decays. This is precisely what 

happened in this case. Unrelieved pressure on a capillary is just like 

placing one’s foot on a garden hose, compressing it, and shutting off 

the flow. This is what happened in [Joy’s] case: her capillaries were 

compressed; the blood flow was shut off from the tissues; the tissues 

died and became necrotic or decayed. This is one process by which 

pressure ulcers become larger and this is what happened in this 

case. 
10 

The conduct called into question is the failure by [Providers] to 

prevent [Joy] from developing pressure ulcers, maintain clinical 

records and provide [her] with a safe environment. Defendants, and 

each of them, breached the standard of care by allowing [Joy to] 

develop[] a stage III pressure ulcer on her coccyx that became 

necrotic. It is abundantly clear that Defendants failed to maintain 

clinical records, because there is no mention of [Joy] ever having a 

pressure ulcer on her coccyx until it was found during her 

hospitalization. Had Defendants, and each of them, not breached 

the standards of care as defined herein, it is my opinion that to a 

reasonable degree of medical certainty, [Joy] would not have been 

subjected to pain and suffering leading up to her death. 

 Ince alleged in his original petition that Providers breached their duty of 

care in the following ways: 

a. Failing to observe, intervene, and care for [Joy]; 

b. Neglecting [Joy] to such a degree that she suffered multiple 

illnesses, pressure ulcers and death; 

c. Failing to provide the medical and nursing care reasonably 

required for [Joy’s] known conditions[; and] 

d. Failing to provide the appropriate supervision and training to its 

staff and personnel that were providing care to [Joy] including 

appropriate care related to [her] wound treatment needs at all 

relevant times. 

He further alleged that Joy “would have been entitled to bring a suit for damages 

had she lived” and sought damages for past physical pain, mental anguish, 

disfigurement, and physical impairment. 

Dr. Griffin’s statements that he has treated thousands of patients with 

conditions similar to Joy’s before her death, that he is familiar with the standard 

of care involved in treating those patients, that he has given orders for the 

treatment of patients in similar situations and supervised nurses in that treatment, 
11 

and that he is a published author regarding pressure ulcers are sufficient to show 

his qualifications to opine regarding Ince’s claim that Providers were allegedly 

negligent in their treatment of Joy as it relates to the development of the pressure 

ulcer. See Mem’l Hermann Healthcare Sys. v. Burrell, 230 S.W.3d 755, 759 

(Tex. App.––Houston [14th Dist.] 2007, no pet). Accordingly, we conclude and 

hold that the trial court did not abuse its discretion by denying Providers’ motion 

to dismiss as to their complaint regarding Dr. Griffin’s qualifications. 

Causation 

 Providers also complained that Dr. Griffin’s report was inadequate on the 

issue of causation. Their specific arguments in the trial court were that Dr. Griffin 

did not rule out leukemia as the cause of Joy’s death and that any statement that 

the pressure sore caused her death as opposed to her other injuries is 

ambiguous and conclusory. However, in their brief Providers argue that Dr. 

Griffin did not adequately explain how Joy’s pressure ulcer was not inevitable 

considering that she showed signs of skin deterioration on admittance to the 

Senior Care Bridgeport facility or how Providers’ alleged breach of the standard 

of care caused the pressure ulcer to develop. Because Providers raised the 

report’s alleged failure to address Joy’s existing skin deterioration in their 

objections even though they did not articulate the complaint in the same way as 

they do on appeal, we will nevertheless review it. See Tex. Civ. Prac. & Rem. 

Code Ann. § 74.351(a); Tex. R. App. P. 33.1(a); G.T. Leach Builders, LLC v. 

Sapphire V.P., L.P., 458 S.W.3d 502, 517 n.12 (Tex. 2015). 
12 

 An expert is required to link his or her conclusions to the facts, but no 

“magical words” are required. Bowie Mem’l Hosp., 79 S.W.3d at 53. Dr. Griffin’s 

report (1) explains how pressure ulcers form, (2) notes that Providers’ medical 

records do not show that they followed any pressure ulcer prevention program 

while Joy was a resident and that, immediately upon her arrival at the hospital 

from Providers’ facility, the pressure sore was found by the hospital staff, and 

(3) states that the failure to monitor and identify “fixable” lesions results in greater 

pain and suffering to patients and that Providers’ failure to provide such 

identification and monitoring “more likely than not” subjected Joy to greater pain 

and suffering, necessitating higher doses of pain medication. We conclude and 

hold that Dr. Griffin’s report is therefore sufficient on the issue of causation of 

Joy’s alleged injuries related to the pressure ulcer. See, e.g., Select Specialty 

Hosp.-Houston Ltd. P’ship v. Simmons, No. 01-12-00658-CV, 2013 WL 3877696, 

at *11 (Tex. App.––Houston [1st Dist.] July 25, 2013, no pet.) (mem. op.);

Alexander v. Terrell, No. 09-07-198-CV, 2007 WL 2683536, at *3–4 (Tex. App.––

Beaumont Sept. 13, 2007, no pet.) (mem. op.); Gallardo v. Ugarte, 145 S.W.3d 

272, 280 (Tex. App.––El Paso 2004, pet. denied). 
13 

 Accordingly, we overrule Providers’ sole issue and affirm the trial court’s 

order denying Providers’ motion to dismiss. 

/s/ Terrie Livingston 

TERRIE LIVINGSTON 

CHIEF JUSTICE 

PANEL: LIVINGSTON, C.J.; WALKER and MEIER, JJ. 

DELIVERED: June 2, 2016