COURT OF APPEALS

SECOND DISTRICT OF TEXAS

FORT WORTH

NO. 02-13-00218-CV

LAURA HATCHEL, AS NEXT 

FRIEND OF C.H.

APPELLANT

V.

MICHELLE HACKER, FNP-C APPELLEE 

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FROM THE 211TH DISTRICT COURT OF DENTON COUNTY

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MEMORANDUM OPINION1

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Appellant Laura Hatchel, as next friend of C.H., appeals the trial court’s 

order dismissing her health care liability claim against Appellee Michelle Hacker, 

FNP-C. See Tex. Civ. Prac. & Rem. Code Ann. § 51.014(a)(10) (West Supp. 

2013). We will reverse and remand.

 

1See Tex. R. App. P. 47.4.
2

According to Hatchel’s original petition, on March 16, 2010, C.H. cut open

the bottom of his left foot when he jumped into Lake Texoma and landed on an 

object. He presented at Minor Emergency of Denton with a 3 centimeter primary 

laceration, a .5 centimeter secondary laceration, and swelling and ecchymosis 

across the width of his foot. John Mulford, FNP, cleaned and removed dirt and 

wood from the “heavily contaminated” wound, sutured the lacerations, and 

applied antibiotic ointment. C.H. received a tetanus shot and several 

prescriptions and went home.

C.H.’s condition worsened over the next few days, so on March 18, 2010, 

he went to the McLeroy, Gibbs & Klein Medical Clinic, where he was treated by 

Hacker and diagnosed with an infected laceration. Hacker examined the wound 

without opening it, took a culture, prescribed an additional antibiotic, and

instructed C.H. to wash the wound, change the dressing, and apply ointment to it

two to three times per day.

Two days later, on March 20, 2010, C.H. returned to the McLeroy, Gibbs & 

Klein Medical Clinic with a persistent high fever and a swollen, red foot. He was 

referred to Texas Health Presbyterian of Denton, where he was admitted, 

diagnosed with cellulitis, and started on intravenous antibiotics. During a surgery 

two days later to debride the wound, Dr. Craig Glauser removed a 5 millimeter

piece of wood and a 4 centimeter by 8 millimeter piece of wood from the wound 
3

and irrigated and packed the wound. C.H.’s condition improved, and the hospital 

discharged him on March 26, 2010.

Hatchel sued Hacker in May 2012 for medical negligence in connection 

with the treatment of C.H.’s foot, and she timely served Hacker with an expert 

report authored by R. Robert Ippolito, M.D.2 Hacker objected to Dr. Ippolito’s 

report on several grounds and moved to dismiss Hatchel’s claim. The trial court 

granted the motion in part but also granted Hatchel a thirty-day extension to cure 

the deficiencies. Hatchel filed an amended expert report authored by Dr. Ippolito, 

Hacker objected that Dr. Ippolito’s opinions on breach and causation were

conclusory and speculative and moved to dismiss Hatchel’s claim, and the trial 

court granted the motion without specifying its reasons for doing so.

A plaintiff must serve an expert report for each physician or health care 

provider against whom a liability claim is asserted. Tex. Civ. Prac. & Rem. Code 

Ann. § 74.351(a) (West Supp. 2013). An expert report is a written report by an 

expert that provides a fair summary of the expert’s opinions regarding the 

applicable standard of care, the manner in which the care rendered by the 

physician or health care provider failed to meet the standard, and the causal 

relationship between that failure and the injury, harm, or damages claimed. Id.

§ 74.351(r)(6). If a claimant timely furnishes an expert report, a defendant may 

 

2Hatchel sued several other individuals and entities, but they are not 

parties to this appeal.
4

file a motion challenging the report’s adequacy. See id. § 74.351(a), (b). A trial 

court must grant a motion to dismiss based on the alleged inadequacy of an 

expert report only if it finds, after a hearing, that the report does not represent an 

objective good faith effort to comply with the definition of an expert report in the 

statute. Id. § 74.351(l).

The information in the report does not have to meet the same 

requirements as evidence offered in a summary judgment proceeding or at trial, 

and the report need not marshal all the plaintiff’s proof, but it must include the 

expert’s opinions on each of the elements identified in the statute—standard of 

care, breach, and causation. See Am. Transitional Care Ctrs. of Tex., Inc. v. 

Palacios, 46 S.W.3d 873, 878‒79 (Tex. 2001); Polone v. Shearer, 287 S.W.3d 

229, 233 (Tex. App.—Fort Worth 2009, no pet.). In detailing these elements, the 

report must provide enough information to fulfill two purposes if it is to constitute 

a good faith effort: (1) the report must inform the defendant of the specific 

conduct the plaintiff has called into question and (2) the report must provide a 

basis for the trial court to conclude that the claims have merit. Palacios, 46 

S.W.3d at 879.

We review a trial court’s denial of a motion to dismiss for an abuse of 

discretion. Polone, 287 S.W.3d at 232. A trial court abuses its discretion when it 

acts in an arbitrary or unreasonable manner or without reference to any guiding 
5

rules and principles. Downer v. Aquamarine Operators, Inc., 701 S.W.2d 238, 

241‒42 (Tex. 1985), cert. denied, 476 U.S. 1159 (1986).

In part of her only issue, Hatchel argues that the trial court abused its 

discretion by granting Hacker’s motion to dismiss because Dr. Ippolito’s report 

adequately explained how Hacker breached the applicable standard of care. 

Dr. Ippolito opined that the standard of care for C.H.’s follow-up treatment on 

March 18, 2010, at the McLeroy, Gibbs & Klein Medical Clinic required (1) that 

his obviously infected wound be opened and fully debrided or (2) that he be 

referred to a qualified physician or facility to perform the debridement. In the

portion of the report titled “Deviations from the Standards of Care,” Dr. Ippolito 

wrote,

The standard of care required Robert R. McLeroy, M.D., and/or 

Michelle Hacker to open and fully debride the wound when the 

patient presented with the symptoms listed as this is an obviously 

infected wound . . . .

. . . .

The records indicate that the wound was not opened at 

McLeroy, Gibbs & Klein Clinic. This is a deviation from the standard 

of care since the wound was draining purulence, infected, and 

required full debridement. Full debridement is the process of 

removing foreign material or dead tissue from and around a wound 

to expose health[y] tissue. Given the size of the pieces of wood 

ultimately found in the wound, Nurse Hacker should have been able 

to locate the wood in Mr. Hatchel’s foot on either of the two visits to 

McLeroy, Gibbs & Klein Clinic. Failing to even open the wound in 

the face of such obvious signs of infection is a deviation from the 

standard of care in this case. [Emphasis added.]
6

Dr. Ippolito thus specifically opined that Nurse Hacker breached the applicable 

standard of care by failing to open and debride the wound.

Hacker directs us to our opinion in Polone and argues that the report does 

not specifically identify how she breached the standard of care because it does 

not differentiate between the standard of care applicable to her and the standard 

of care applicable to Dr. McLeroy, the supervising physician. See Polone, 287 

S.W.3d at 233‒35. Polone involved a failure-to-diagnose-cancer claim in which 

we held that the expert report inadequately set forth the applicable standard of 

care for a physician’s assistant because the report identified identical standards 

of care for both the physician’s assistant and a physician, and there was no 

specific recitation that the standards were identical. Id. Implicit in our reasoning 

was that in the absence of any indication otherwise, we were unable to 

conclude—based on the nature of the case and the facts involved—that the 

physician and the physician’s assistant shared the same standards of care. See 

id. That same circumstance is not present in this case. The claim here alleges 

negligence for failing to open and clean a wound, not failing to diagnose cancer. 

It is impossible to read Dr. Ippolito’s report and not conclude that the standard of 

care applicable to Hacker is the same standard of care applicable to 

Dr. McLeroy—whether the care was provided by a physician or a nurse 
7

practitioner, the standard of care simply required that the infected wound be 

debrided.3

We also note that Hacker’s second round of objections challenged 

Dr. Ippolito’s opinions regarding breach and causation only. To the extent that 

Hacker so argues, we refuse to disregard an otherwise adequate recitation 

regarding breach on account of a purported inadequacy regarding an aspect of 

Dr. Ippolito’s report that was not challenged in the trial court (standard of care). 

We sustain this part of Hatchel’s first issue.

Hatchel argues in another part of her only issue that the trial court abused 

its discretion by granting Hacker’s motion to dismiss because Dr. Ippolito’s report 

adequately explained how Hacker’s alleged failure to comply with the standard of 

care caused C.H.’s injuries or damages. There are no magic words required to 

establish causation. See Bowie Mem’l Hosp. v. Wright, 79 S.W.3d 48, 53 (Tex. 

2002). But the report must explain the basis for the expert’s causation opinions 

by linking the expert’s conclusions to the alleged breach. Id.

In the portion of the report titled “Proximate Cause,” Dr. Ippolito opined,

In this case, the actions of Michelle Hacker in merely wiping 

off the outside of the wound and providing an additional antibiotic, 

and not even opening the wound to attempt to debride the wound 

at that time, allowed the infection to continue to grow and attack 

surrounding healthy tissue. . . .

 

3

Indeed, the report states that the standard of care required Dr. McLeroy 

and Hacker “each” to open and debride the wound.
8

. . . .

Mr. Hatchel’s foot was likely saved by Dr. Glauser’s correct 

decision to immediately debride the wound and begin IV antibiotics 

when Mr. Hatchel was finally sent to him two days after he was 

initially seen at the McLeroy, Gibbs & Klein Clinic. The two day 

delay allowed the infection to grow exponentially and certainly 

contributed to the increased length of [the] hospital stay, to the 

ultimate loss of tissue in Mr. Hatchel’s left foot, which caused 

Mr. Hatchel to lose significant use of his foot and mobility for the 

following year. . . . This destruction is what caused the damage that 

Dr. Glauser had to repair. This destruction is what caused 

Mr. Hatchel’s recovery time to be so prolonged. This destruction 

could have been entirely avoided if the wound had been completely 

debrided and all foreign objects removed as the standard of care 

required, as more fully explained above. [Emphasis in original]

Thus, Dr. Ippolito opined that while C.H. presented at the McLeroy, Gibbs & Klein 

Medical Clinic with an already-infected laceration, it was Hacker’s failure to open 

and debride the wound that allowed the infection to grow exponentially, which 

caused the destruction of tissue in the foot, the need to surgically repair the 

destruction to the foot, and the loss of mobility and use of the foot that C.H.

experienced over the next year. Hatchel thus adequately linked Hacker’s alleged

failure to meet the applicable standard of care to the injuries and damages that 

C.H. allegedly sustained.

Hacker likens this case to Bowie and argues that, at most, Dr. Ippolito’s 

causation opinions (a) “are equivalent to a statement that [C.H.’s] injury might 

have been avoided or lessened if Nurse Practitioner Hacker had acted 

differently” and (b) are conclusory and require the court to draw inferences about 

the connection between Hacker’s conduct and C.H.’s injuries. The portions of 
9

the report above are not conclusory and do not require the court to make any 

inferences—it clearly factually alleges that by failing to open and debride the 

wound, Hacker allowed the infection to flourish, tissue was consequently 

damaged, and surgery was necessary to correct the damaged tissue.

Hacker contends that the report is insufficient because Dr. Ippolito did not

“provide a baseline as to what would have resulted from the previous health care 

provider’s care even had Nurse Practitioner Hacker done what the report said 

she should have done.” But section 74.351 does not require Dr. Ippolito to 

speculate about what would have happened had Hacker complied with the 

standard of care; it requires Dr. Ippolito to explain how Hacker’s failure to comply 

with the applicable standard of care caused C.H.’s injuries or damages. 

Dr. Ippolito did that—but for Hacker’s failure to debride the wound, C.H. would 

not have required surgery to repair the tissue that was destroyed by the infection 

that flourished exponentially between the time that Hacker cared for C.H. and 

when he went to the hospital.

Hacker argues that Dr. Ippolito did not explain how failing to open the 

wound allowed the infection to grow, but he actually did just that: “[T]he foot is a 

closed space and the pus and exudate attendant to the infectio[n] causes tissue 

necrosis and ischemia as it has nowhere else to go.” Hacker complains that she 

is not mentioned in several of the paragraphs that are relevant to Dr. Ippolito’s 

opinion on causation, but the excerpts that we set out above specifically identify
10

her. Hacker takes issue with the third to the last full paragraph of Dr. Ippolito’s 

report, but that paragraph is not essential to Dr. Ippolito’s opinion.4 We sustain 

this part of Hatchel’s issue.

Dr. Ippolito’s report represented an objective good faith effort to comply 

with the definition of an expert report. See Tex. Civ. Prac. & Rem. Code Ann. 

§ 74.351(l); Palacios, 46 S.W.3d at 879. Accordingly, we hold that the trial court 

abused its discretion by granting Hacker’s motion to dismiss Hatchel’s health 

care liability claim. We reverse the trial court’s judgment and remand the case to 

the trial court for further proceedings.

/s/ Bill Meier

BILL MEIER

JUSTICE 

PANEL: DAUPHINOT, GARDNER, and MEIER, JJ.

DELIVERED: MAY 8, 2014

 

4We did not refer to it above.