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IN THE COUR T OF APPEALS

TWELFTH COURT OF APPEALS DISTRICT
TYLER, TEXAS

EAST TEXAS PHYSICIANS ALLIANCE, LLP, D/B/A MAGNOLIA HEALTH SYSTEMS URGENT CARE CLI NIC, AND K. MCWHERTER, FNP , APPELLANT S

V.

BRADLEY A. SUTTON , APPELLEE §

§

§ APPEAL FROM THE 369TH

J

UDICIAL DISTRI CT COURT

ANDERSON COUNTY, TEXAS

MEMORANDUM OPINION East Texas Physicians Alliance, d/b/a Magnolia Health Systems Urgent Care Clinic, and K. McWherter, FNP (collectively “Appellants”) appeal the trial court’s order denying their
motion to dismiss Bradley A. Sutton’s suit against them. We reverse and render.

B ACKGROUND On February 20, 2017, Su tton, a trooper with the Texas Dep artment of Public Safety, visited the Magnolia Systems Urgent Care Clinic in Palestine , seeking treatment for
hem orrhoids. Sutton was dressed in uniform when he approached the reception counter. When
asked what care he n eeded, Sutton told the receptionis t that he needed to see a doctor for a problem with his foot. Sutton then completed the required forms and asked for the location of the restroom. When he returned, Sutton asked the receptionist for a piece of paper on w hich he
wrote that his problem con cerned his “butt” rather than his foot. He then asked the receptionist to convey the true issue to the provider privately. Sutton then retired to the waiting room until he
was called for examination. Kay McWherter, a fa mily nurse practitioner, treated S utton for hemorrhoids. Sutton received a work release for February 20 through February 27.2 The next day, one of Sutton’s friends went to the same clinic

. The friend sent Sutton the following via text message:

Friend: Gu ess where we are? DaTaDa! Urgent Care, she should’ve went last week but she’s hard headed

Sutton: LOL
Friend: I’m outside cause there are sick peo ple in there...someone could make extra $ here, this place needs to be pressure washed. Rumor has it there was a Trooper here yesterday with hem roids [sic]
Sutton: Yep
Friend: Was it you?

Sutton: Yes
Friend: One of my customers was there for “Swollen Nuts” he said he really embarrassed because of the lady nurse practitioner until he was told about the Trooper.......tha t made him feel a lil better

Sutt on: LOL

In February 2019, Sutton brought a healthcare liability claim against Magnol ia Urgent
Care and McWherte r. Sutton’s suit alleges McWherter violat ed the Health Insurance Portability and Accountability Act (HIPAA) and the Texas Nursing Board Standa rds of Practice. The claims against Magnolia Urgent Care are via respondeat superior. In an attempt to comply w ith
Section 74.351 of the Texas Civil Practi ce and Remedies Code, Sutton served Appellants with an expert report and curriculum vitae of Jarrod Kanady, a family nurse practitioner. Appellants filed objections to Kanady’s report and a motion to dismiss Sut ton’s claim. The trial court allowed Kanady to supplement his report in accordance with Section 74.351(c) to cure
deficiencies regarding stand ard of care, breach, and causation. After Kanady supplemented his report, Appellants renewed their objections an d again moved for dismissal. The trial cour t denied Appellants’ motion. This appeal followed.

E XPERT R EPORT In two issues, Appellants conte nd the trial court abused its discretion when it denied the motion to dismiss. Specifically, their first issue u rges the report fails to adequately address3 c ausation and their second issue attacks the sufficiency of the report’s standard of care explanati on. Standard of Review
A trial court ’ s ruling on qualifications of a medical expert and the sufficiency of an

ex pert ’ s report under Chapter 74 is reviewed fo r an abuse of discretion. Van Ness v. ETMC First Physicians , 461 S.W.3d 140, 142 (Tex. 2015); Am. Transitional Care Ctrs. of Tex., Inc. v.
Palacios , 46 S.W.3d 873, 875 (Tex. 2001). A trial court abuses its discr etion if it acts without reference to guiding rules or principles. Van Ness , 461 S.W.3d at 142. However, in exercising its discretion, it is in cumbent upon the trial court to review the report, sort out its content, resolve any inconsistencies, and decide whether the report demonstrated a good faith effort to show that the plaintiff ’ s claims have merit. See id

. at 144. When reviewing factual matt ers committed to the
trial court ’ s discretion, an appellate court may not substitute its judgment for that of the trial

court. Gray v. CHCA Bayshore L.P. , 189 S.W.3d 855, 858 (Tex. App.

— Houston [1st Dist.] 2006, no pet.). Expert Report Requirements
The Te xas Medical Liability Act requires a claimant to serve an expert report early in the proceedings on each party ag ainst whom a health care liability claim is asserted. T EX

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. § 74.351(a) (West 2017 ). The Texas Supreme Court has exp lained that “eliciting an expert ’ s opinions early in the litigation [is] an obvious place to start in attempting to reduce frivolous lawsu its.” Palacios , 46 S.W.3d at 877. The purpose of evaluating expert reports is to deter frivolous claims, not to dispos e of claims regardless of their merits. See Certified EMS, Inc. v. Potts , 392 S.W.3d 625, 631 (Tex. 2013). A vali d expert report must fair ly summarize the applicable standard of care; explain how a physician or health care provider failed
to meet that stan dard; and establish a causal relationship between the failure and the harm alleged. T EX

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. § 74.351(r)(6) (West 2017 ); Potts , 392 S.W.3d at
630. A report need not cover every alleged liability theory to make the defendant aware o f the conduct at issue, nor does it require litigation ready evidence. Potts , 392 S.W.3d at 631

– 32. The report ca n be informal in that the information in the report does not have to meet the same requirements as the evidence offered in a summary

- judgment p roceeding or at trial. Id

. For the particular liability theory addressed, the report must sufficiently describe t he defendant ’ s alleged4 co nduct. Id

. Such a report both informs a defendant of the behavior in question and allows the
trial court to determine if the allegations have merit. Id

. If the trial court decides that a liability theory is supported, then the clai m is not frivolous, and t he suit may proceed. Id

. If a health care liability claim contains at least one viable liability theory, as evidenced by an expert report meeting the statutory requirements, the claim cannot be frivolous. Id

. Causation
A causal re lationship is established by proof that the negligent act or omission was a substantial factor in bringing about the harm, and that, absent thi s act or omission, the harm
would not have occurred. Costello v. Christus Santa Rosa Health Care Corp. , 141 S.W.3 d 245, 249 (Tex. App.

— San Antonio 2004, no pet.). Causation is often established in medical malpractice cases through evidence of a “reasonable medical probability” or “reasonable probability” that the alleged injuries were caused by the negligence of one or more defendant s. Jelinek v. Casas , 328 S.W.3d 526, 532

– 33 (Tex. 2010). In other words, the plaintiff must present
evidence “that it is ‘more likely than not’ that the ultimate harm or condition resulted from such negligence.” Id

. (quoting Kramer v. Lewi sville Mem ’ l Hosp

. , 858 S.W.2d 397, 399

– 400 (Tex. 1993)). An expert may show causation by explaining a chain of events that begins with a
defen dant doctor ’ s negligence and ends in injury to the plaintiff. See McKellar v. Cervantes , 367 S.W.3d 478, 485 (Tex . App.

— Texarkana 2012, no pet.). A report is deficient if it states only the expert ’ s conclusions about the standard of care,
breach of the st andard of care, or causation. See Ortiz v. Patterson , 378 S.W.3d 667, 671 (Tex. App.

— Dallas 2012, no pet.). An ex pert cannot simpl y opine that the breach caused the injury.
Van Ness , 461 S.W.3d at 142; Jelinek , 328 S.W.3d at 539. Rather, the report must ex plain, to a reasonable degree, how and why the breach of the standard of care caused the injury based on the
fact s presented. Van Ness , 461 S.W.3d at 142; Jelinek , 328 S.W.3d at 539

– 40. The report must explain the basis of the expert ’ s statements to link h is conclusions to the facts. Bowie Mem ’ l Hosp. v. Wright , 79 S.W.3d 48, 52 (Tex. 2002); see also Taylor v. Fosset t , 320 S.W.3d 570 , 575 (Tex. App.

— Dallas 2010, no pet.) (expert report must contain sufficiently specific information to
demonstrate causation beyond conjecture). In determining whether the expert report represents a good faith effort to comply with the

s tatutory requirem ents, the court ’ s inquiry is limited to the four corners of the report. Christian Care Ctrs., Inc. v. Golenko , 328 S.W.3d 637, 641 (Tex. App.

— Dallas 2010, pet. denied) (citing5 Palacios , 46 S.W.3d at 878). “We may not ‘fill gaps’ in an expe rt report by draw ing inferences or guessing what the expert likely meant or intended.” Hollingsworth v. Springs , 353 S.W.3d 506, 513 (Tex. App.

— Dallas 2011, no pet.). “We determine whether a causation opinion is sufficient by considering it in the context of the entire rep ort.” Ortiz , 378 S.W.3d at 671. Analysis Appellants ’ second issue argue s that Kanady’s report is deficient because it does no t adequately establish the standard of care allegedly breached . Appellants further urge in their
first issue tha t Kanady’s causation analysis is based on unsupported allegations and not facts. Kanady’s amended report, in relevant part, states as follows :

Standard of Care
HIPAA’s Privacy and Security Rules were created by Congress to ensure patients’ personal h eal th information would be kept private and not published or disseminated to third parties and the public in general. HIPAA standards are recogniz ed as a standard of care by which to judge a health care provider’s actions, and these standards can also be u sed to establish a legal duty of care.
Such a standard of care has been promulgated and upheld in Texas through the Texas Nursing Board Position Statement 15.29

– “Professional Boundaries including use of Social Media:”
A. “The Texas Board of Nursing (BON or Board) in keeping with its mission to protect the public health, safety, and welfare, holds nurses accountable for knowing, recognizing, and m aintaining professional boundaries of the nurse

- patient/client relationship [22 TAC Section 217.11 (I) (J)]. T he term professional boundaries is as: The appropriate limits which should be established by the nurse/client relationship due to the nurse’s powe r and the patient’s vulnerability. Professional boundaries refers to the provision of nursing service within the limits of the nurse/client relations which promote t he client’s dignity, independence and best interests and refrain from inappropriate involve ment in the client’s personal relationships and/or the obtainment of the nurse’s personal gain at the client’s

ex pense [22 TAC Section 217. 1(29)].
B. “Duty of a Nurse in Maintenance of Professional Boundaries

– There is a power differential between the nu rse and the patient. The patient depends on the knowledge of the nurse and relies on the nurse to advo cate for th e patient and to ensure actions are taken in the patient’s best interest. The nurse has a duty to protect the patient, including establishing a nd maintaining professional boundaries in the nurse

- patient/client relationship. Under or over involve ment may be harmful to the patient and interfere with the nurse

- patient relationship. Visualizing the two ends of the spectrum may assist the nurse in kno wing, recognizing and maintaining the professional boundaries of the nurse

patient relationships.”

The re is a cle arly established standard of care, through both federal and state law, for nurses as it affects their patients when it concerns the public disc losure of a patient’s medical information, thus invading the patient’s privacy, resulting in harm and humiliation to the patient. A breach of such standard of care can be avoided by the nurse/medical provider by maintaining the privacy of the patient’s med ical history and not disclosing to third parties or those who [are] not involved with the patient’s me dical care.6 Deviation from the Standard of Care
The standard of care as to the confidentiality and the right to privacy of Trooper Sutton was not maintain ed by Nurse McWherter, an employee of Magnolia Health Systems Urgent Care and the person responsible f or examinin g and treating Trooper Sutton for his hemorrhoids, when she disclosed and informed others about Trooper Sutton’s condition and gave enough abou t this patient that it became public knowledge he had been treated by Nurse McWherter (and therefore, Magnolia He alth Systems Urgent Care) for “the worst hemorrhoids that she had ever seen.” In the nursing and medical profession, the first rule of treatmen t is always “Do No Harm,” first and foremost. Nurse McWherter and her employer breached thi s standard of care as to Trooper Sutton and violated his right to privacy.
Damages Caused by Breach of the Standard of Care
Trooper Sutton obviously did not want any one other than those treating his hemorrhoids to know about his condition. That was exhibit ed by the cautious man ner in which he acted toward the clinic receptionist and explained his problem. Nurse McWherter, who examined him and then gave him

a one
- week work release, caused harm to Trooper Sutton by disclosing the medical problem he was experi encing and making ligh t of it to another patient.
It is my opinion Nurse McWherter deviated from the standard of care and this deviation resulted in personal embarra ssment and mental anguish for Trooper Sutton. Nurse McWherter also breached confidentiality and failed to maintai n Trooper Sutton’s privacy and personal dignity, as outlined in the Texas Board of Nursing Position Statement 15.29, while treating Trooper Sut ton on February 20, 2017, and in her subsequent interactions with other patients in the fol lowing days. This

cons tituted a breach of HIPAA and confidentiality standards set her own credentialing board and standards within the nursing and medical community. Such disclosure resulted in humiliation and embarrassment for Trooper Sutton, particularly when friends learned about his medical problem. Such harm can lead to anxiety, depression and may even damage the trust Trooper Sutton has in the healthcare system.

Kanady states in his report that he reviewed Sutton’s original petition, along with the at tached exhibits, and Appellants’ original answer. The attached exhibits were the work re lease and
screenshots of the text conversation. He did not review the medic al records. He did not review any witness s tatements. The evidence attached to the report includes screenshots of the text messages between
Sutton and his friend. The text message from Sutton’s friend states in pertinent part:

Rumor has it there was a Trooper here yesterday with hemroids [sic]

. . . One of my customers was there for “Swollen Nuts” he said he rea lly embarrassed because of the lady nurse practitioner until he was told about the Trooper

... ....that made him feel a lil better7 T he report also r eferences an alleged statement from McWherter in which she called Sutton’s
condition “the worse hemorrhoids that she had ever seen.” However, no evidence of this statement appears in the record or is atta ched to the report. Kanady’s repor t states that Mc Wherter breached the standard of care by “disclosing the medical problem he was experiencing and making light of it to another patient.” However, there is no evidence that McWherter made any such statemen t to another patient. Kanady does not
ref erence an y statement by the unnamed customer linking his knowledge of the unnamed Trooper ’ s condition to McWh erter. As co ntaine d in the report, Kanady speculates that McWherter breached a standard of care to keep medical conditions confidential because Sutton ’ s

un named frie n d learned through the unnamed custome r that an unnamed Trooper had hemorrhoids. There simply are too m any analytical gaps in Kanady ’ s report. Furthermore, Kanady opines that McWherter violated HIPAA ’s confidentiality rules without citing to th e m , explaining what they are , or stating how a violation occurred

. And the nursing standards cited by Kanady do n ot appear to conce rn patient confidentiality. An ex pert report cannot merely state the expert’s conclusions about the elements; it must expl a in the basis
of the statements and link the conclusions to the facts. Wright , 79 S.W.3d at 52 . And a report
tha t merely states th e expert’s conclusions about the st andard of care, breach, and causation is
deficient. Palacios , 46 S.W.3d at 879. Kanady’ s report is unsupported by facts and evidence. While an expert report at this stage of the case need not marshal all of the evidenc e, it should be based on some evide nce. As a result, Kanady’s report is conclusory and is based on unsupported assumptions. I t does no more

t han create conj ecture of a breach of the standard of care and causation of S utton ’ s injury. Se e Taylor , 320 S.W.3d at 575. Therefore, the trial court abused its discretion in denying the motion
to dismiss. Appellants’ second issue is s ustained.

D ISPOSITION Having sustained Appellants’ second issue, we reverse the trial court’s order denying Ap pellants’ motion to dismiss and render judgment dismissing Sutton’s claims against Appellants with prejudice and remand the cause to the trial c ourt to consider the amount of attorney ’ s fees and costs to be awarded to Appellants

. See T EX

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.8 § 74.351(b)(2) (West 2017 ) (providing for the dis missal of a healthcare liability claim with prejudice if the claimant fails to tim e ly serve a compliant expert report).

J AMES T. W ORTHEN Chief Justice
Opinion delivered November 3 , 2021. Panel c onsisted of Worthen, C.J., Hoyle, J., and Neeley, J.9 

## COURT OF APPEALS

TWELFTH COURT OF APPEALS DISTRI C T OF TEXAS

JUDGMENT

NOVEMBER 3 , 2021

NO. 12

- 21

- 00050

- CV

EAST TEXAS PHYSICIANS ALLIANCE, LLP, D/B/A MAGNOLIA HEALTH SYSTEMS URGENT CARE CLINIC, AND K. MCWHERTER, FNP , A ppellant s V. BRADLEY A. SUTTON , Appellee

Appeal from the 369th District Court

o f Anderson Cou nty, Texas (Tr.Ct.No. DCCV19

- 0814

- 369 ) THIS CAUSE came to be heard on the appellate record and briefs filed herein, and the same being considered, it is the opin ion of this Court that there was error in the order as entered by the court below and that same should be reversed and judgment rendered. It is therefore ORDERED, ADJUDGED and DECREED by this Court th at the trial court ’ s order denying Appellants’ motion to dis miss in favor of Appellee, BRADLEY A. SUTTON , be, and the same is, hereby rev ersed and judgment rendered that the Appellee ’ s claims against Appella nts are dismissed with prejudice and the cause be remanded to the trial court to consider the amount of attorney ’ s fees and court costs to be awarded to Appellants . All costs in this ca use e xpended in this Court be, and the same are, adjudged against the Appellee, BRADLEY A. SUTTON , for which let execution issue; and that this decision be certified to the

co urt below for observance. James T. Worthen , Chief Justi ce

. Panel consisted of Wor then, C.J., Hoyle, J., and Neeley, J.