Reversed and Rem anded and Majority Opinion filed December 29 , 2020

.

In The 

## Fourteenth Court of Appeals

NO. 14

- 18

- 01108

- CV

AQUATIC CARE PROGRAMS, INC. , Appellant

V.

KATHLEEN DENISE COOPER , Appellee

On Appeal from the 133rd District Court

Harris Cou nty, Texa s Trial Court Cause No

. 2018

- 20681

M A J O R I T Y O P I N I O N 1

A ppellant /defendant Aquatic Care Programs, Inc. asserts that the trial court
abused its discretion in overruling objections to appellee/plaintiff Kathleen Denise Cooper ’ s exper t report s and in den ying Aqua tic Care ’ s motions to dismiss based

on alleged violations of the Texas Medi cal Liability Act ’ s 2 expert

- re port

1 Justice Bourl iot c oncurs without opinion

.

2 “ Chap ter 74 ” an d “ Te xas Me dical Liability Act ” r efer to section s 74.0 01 through 74 .507 of the Texas Civil Practice and Remedie s Code.2

requirements. We reverse and remand to the trial court for rendition of a judgment
of dismissa l.

I. F AC T UAL AN D P RO CEDURAL B ACKGROUND

C ooper sou ght treatment for pain and numbness in her leg s

. Her doctor prescribed a course of a quatic therapy and referred her t o Aquatic Care

. In ea r ly
2016 , Cooper began a regular program of pool exercise in Aq ua tic Care ’ s facility

. Coo pe r a lleges that in late M ay 2016, she contrac ted a waterborne bacterial
infection after exercising in Aquatic Care ’ s po o l

. A ccording to Cooper ’ s doctor ,

c ultur e s confirmed that her infection was pseudomo n as

— a bacteria known to be
found in health care se t tings, and “ in the environmen t, specifically in water

. ” The
bacteria is resista n t to antibiotics

. Doctors admitted Cooper to the hospital , where she stayed f

or two weeks . Upon h er discha r ge , doctors prescri be d m edications for
treatment at home. B ecau se o f a worseni ng medi cal conditi on, in mid

- October
2016 , Cooper returned to the ho spital for further care

. A week later she re c e i ved a discharge and transfer to another hospital that could better accommodate h er special needs

. Cooper received treatmen t from Dr. Jason R. Bai ley , w ho perf ormed

a lolipoma excision of her left lower extremity abscess

. Cooper then moved to another hosp i tal to c ontinue management of an infecti on of the left lower

- ex tremity
wound and cellulit is of bilateral lower extremities

. Coop e r ’ s Pleaded Allegations

Coo per filed this la wsuit against Aquatic Care asserting various negligence
theor ies and alleging that Aquati c Care (1) n eglige nt ly permitted a dangerous

c ondition to exist in its pool that caused her to get a water

- b orne bacterial

ps eudomonas infe ction ; (2) negl ige nt ly fail ed to warn her of the dangerous
condition before she ent ered the poo l to exercise ; (2) failed to inspe c t by tes ting the3

pool w ater to determine its bacteria level ; (3) failed to correct the pool water ’ s dangerous ba cterial level by adding addit ional chemicals to kill the bacteria in the pool water ; ( 4 ) failed to warn invitees, incl uding C ooper , t hat a dangerous bacterial
condition existed before they entered the pool water ; (5) failed to test Cooper to

see whether sh e had c onta cted any v irulent bacteria in Aq uatic Care ’ s facility ; a nd (6 ) engage d in a dangerous activity by promoting the grow th o f allegedly flesh

eating bacteria in the pool as opposed to stopping the growth of the organism.

Cooper ’ s Expert Reports a n d Aquatic Care ’ s Objections

Co oper served Aqua tic Ca re w ith (1 ) a report from her internist, Danny D. Cheng, M.D., with a printout f rom C h eng ’ s prof

essional website containing his biographical informatio n , and (2) a report from Laraine Enderle, P.T., a C a li fornia

board certified physic al therapist, w ith Enderle ’ s c urriculum vitae

. Aqu at ic C are filed objections to the e xpe rt r eports an d a m otio n to d ismiss Cooper ’ s lawsuit

. Aquatic Care complained t hat both of Cooper ’ s expert repo rts failed to meet the re quirements of Chapter 74 of t he Texas Medical Liability Act

. As to Che ng ’ s report, Aquatic Care ass erted (1) Cheng ’ s curri culum vitae was insufficient, (2) Cheng fai l ed t o address any of the r equired element s under Chapter 74, and (3) the opinions expr e ss ed in Cheng ’ s report were con clusory. As to Enderle ’ s rep ort, Aquatic Care complained t hat (1) Enderle lac ked the qualifica tio ns to render opinions on the standard of c are, (2) End erl e did not address required elements
under Chapter 74 as to how Aquati c C are al legedly breached the st andard of care , and (3) Enderle mad e conclusory statement s in s aying t hat it would be “unlikely”
for someone to cont ract “flesh

- eating bacteria” i f various safeguards were f ollowed

. Despite Cooper ’ s serving of expert reports on Aquatic Care, Cooper vi ewed
her claims as not being health care liability cl aims, and she moved for summa ry4

judgment to bar application of Chap ter 7 4 to her c laims

. A quat ic Ca re filed

s upplemental o bjections to Cooper ’ s Chapter 74 e xpert r eport s and ad d re ssed in
more detail whether C oope r ’ s claim s fell withi n t he scope of the statute

. At a hearing on Septe mber 10, 2018 , the trial co urt ruled that Cooper ’ s claims fell under th e Texas Medical Liability Act and granted Cooper ’ s oral

reque st for a thir

ty

- d ay extension to satisfy the exp ert

- r ep ort require ment s

. The
trial court reduced its ru ling to a written order signed o n October 8, 2 018, reciting an effective date of Septem ber 10, 2018 , the date of the hearing

. A few months later, o n De cember 4, 2018, C oo per filed and served document s pur p o rti n g to be
Jason R. Bail ey, M.D. ’ s ex pert report

. Cooper did not file or se rve a cur riculum
vitae for Dr. B ailey

. Days later Aq uatic Care objected that Cooper had not filed
Baile y ’ s report on t ime or included the r e qu isite curr icul um vitae. T he n ex t week the trial court signed an order , date d December 10, 2018, overruling Aquatic
Care ’ s o bjections and denying its m otion to d ismiss. Fr om t hat order, Aquatic
Care timely fi led this interlocutory appeal.

II. I SSUES A N D A NALYS IS Aquatic Care present s a single is sue: Did the trial court err in denying the
motion to dismiss based on C ooper ’ s failure to s atis fy Chapter 74 ’ s expert

- report requirements ? Cooper urges on appe al , a s she did in the trial court, that her claim s d o not fall within the scope o f the Texas Medic al Liab ility Act

. Specifically, s he
asserts that Aquatic Care is not a “ h ealth c ar e i nst itutio n ” under the statu te. In its

r eply b rief

, Aquatic Care argues that Cooper ’ s scope argument is not properly
befo r e th is co urt because Cooper fai led to raise it in t he tr ial court , and alternatively, that Cooper ’ s cl ai ms do fall within the scope of th e statute because apart from whether Aquat ic Care falls within the statuto ry definition of a “ h ealth

c are i nstitution , ” A q

uatic Care is a “he alth care provider ” u nder the stat ute. See5

Rehab. Care Sys. of A m. v. Davis , 73 S.W.3d 233, 234 (Tex. 200 2) ; S kloss v.
Perez , 01

- 08

- 00484

- CV, 2009 WL 40438, at *6 (Tex. App.

— Houston [1st D ist.] Jan. 8, 2009, no pet.) (mem. op.)

. The ap plicability of the Texas Medi cal Liabil it y Act to Cooper ’ s claims is a threshold issue this cour t m ust address in disposing of
this interloc utory appeal

.

A pplicability of the Texas Me dical Liability Act

Wheth er Cooper ’ s claim amounts to a health care l i ab ility cla im i s a question of law we review de novo. Bioder m Skin C are, LLC v. Sok , 426 S.W.3d 753, 757 (Tex. 2014) ; s ee Johnson v. City of Fort Wor th , 774 S.W.2d 653, 655

– 56 (Tex. 1989). In construing a s tatute, our objective is to determine and give e ff ect to th e Legislature ’ s inte nt. See Nat ’ l Liab. & Fir e Ins. Co. v . Allen , 15 S.W.3 d
5 25, 527 (Tex. 2000). If poss ible, we must ascertain that int ent from the Legisla ture ’ s words in the statute and not look to extraneous matters for an intent
th e sta t ut e does not sta te. Id

. Wh ere the statutory la nguage is unambig uou s, we give the statute the interpretatio n supported by the plain meaning of the provision ’ s words. St. L uke ’

s Episcopal Hosp. v. Agbor , 952 S.W.2d 503, 505 ( Tex. 1997). We must not enga g e in forced or strained cons truct ion; instead, we must yiel d to the plain se nse of the words the Legislature chose. See id

. Chapter 74 defines a “ h ealth care liabili ty claim ” as
a cause of action against a health care provider or physician for tr eatment , l ack of treatment, or other claimed d eparture fro m accepted standa rds of medical care, or health c are, or safety or professional o r admin i strative services direc tly related to health care, which p roximately results in injury to or death of a claim ant, wh e th er the claimant ’ s claim or cause of action sound s in tort or cont rac t. The term does not include a cause of action described by S ection 4 06.033(a) or 408.001(b) , Labor Code, against an employer b y an employee or the employee ’ s surviving spouse or heir.6

T ex . Civ. Prac. & Rem. Co de A nn. 74. 001 (a) ( 13 ) (emphasis adde d)

. U nder the statute ’ s plain meaning , to be protecte d by Chapt er 74 ’ s
pro ced u res a defendant must be a health care provider or a physician , bo th of
which are defined terms

. The statute defines a health care pro vider as follows:
(A) “ Health care provi der ” means an y person, partnership, p rofessional association, corporation, facility, or instituti o n duly licensed, cer

tif ied, registered, or chartered by the State of Texas to provide health ca re , i n cluding: (i) a registered nurse; (ii) a dent ist; (iii) a podiatrist; ( iv) a pha rmacist; (v) a chiropractor; (vi) an optometrist; (vii) a health care insti t

ution; or (viii) a h eal th care collaborative certified u nder Chapter 848, Insurance Code. (B) T he te r m includes: (i) an officer, direc tor, shareh older, member, partner, ma nager,
ow ner, or affilia te of a health care provider or physician; and (ii) an emplo y ee, independent c ont rac tor, or agent of a health care pr ovid er or physician acting in the cours e and scope of the employment or contra ctual relat ionship. Tex. Civ. Prac. & Rem. Co de Ann. 74.001 ( a) (12) (emphasis added)

.
T he term “ h ealth care institution , ” incorporat ed with in the definit ion of
“he alth car e provider , ” expressly includes the f ollowing : (A) a n ambulatory surgical center; (B) an assi s ted living facility licensed under Chapter 24 7, Health and Safe ty Code; (C) an emerg ency medical services provider;7

(D) a health services distri ct created under Chapter 287, Health an d Safety Code ; (E) a home and c o mmunity support services agency; (F) a h o spice; (G) a hospit al; (H) a hospital system; (I) an intermedia te care facility for the m entally retarded or a home and c o mmunity

- based services waiver program for persons with mental retardation adopted in a ccorda n ce with Section 1915(c) of the federal S o cial Security Act ( 42 U.S.C. Section 1396n), as amended; (J) a nursing home; or (K) an en d stage renal disease facility l i censed under Section 2 51.011, Health and Safety Code. Tex. C iv. Prac. & Rem. Code Ann

. 74.00 1 (a) (11).

A s Cooper points ou t , “ a quat ic therap y center ” is n ot sp ecifically listed in
the definition of “health care provider ” or “health c are institution

. ” Nor are the

terms “ aquatic therapi st ” , “ physical

- therapy center , ” or “ physical the rapist ” listed
i n Chapter 74

. Several other courts of appeals have conclude d that the terms listed in
section s 74.001 (a) (1 1) and ( 12) are no t exclusive

. See S kloss v. Perez , 01

- 08

- 00484

- CV, 2009 WL 40438, at *3 (Tex. App.

— Houston [1st Dist.] Jan. 8, 2009, no pet. ) ; Fud

g e v. Wall , 308 S.W.3d 458, 461 (Tex. App.

— Dallas 2010, no pe t.) ; Mike Norgaard, LPC v. Pingel , 296 S.W.3d 284, 288 (Tex. App.

— Fort Worth 2009, no pet.)

. Th ough some of our cases contain pass i ng references to the exclusivity question , we h ave yet to addre ss the issue directly. See Tex. Cypress
Cr eek Hosp., L.P. v. H

ickman , 329 S.W.3d 209, 21 4 (Tex. App.

— H ouston [14th
D ist.] 2010, pet. denied) ( n o ti ng in an ob iter dictum th at other court s have recognized that Chapter 74 ’ s list of healthca re providers is not e xcl usive )

. So, today we cons ider as a matter of first impre ssion in th is court w hethe r a parti cular8

enti ty that otherwise satisfies th e statutory definition of “health care provider ” but
is not listed in either sub section (11) or (12) of section 7 4.001( a) falls within Chapter 74 ’ s definiti on of “health care pro vid er

. ”

W hen g iven its ordi na ry meaning, the wor d “inc ludin g ” followed by a li st of common types of health car e providers cannot fai rly be read as “ just including ” o r “including only

. ” A party who s atis fies the criteria of being a “ person, partnership , profe ssional ass ociation, corpo ration, facility, o r institut ion duly licensed, c ertified, registered, or chartered by the State of Texas to provide he alth care ” ne ed n ot be anything else to be a “hea lt h ca re provider. ” See Tex. Gov ’ t Code Ann. §
311. 005 (13) ( s tating that “ i ncludes” and “including” are t erms of enlargeme nt and
not of limitation or exclusive enumeration, and use of the terms does not create a presumption tha t components not expressed a re exc luded ) ; Vision 20/20, Ltd. v.
Cameron B uilders, Inc

. , 52 5 S.W.3d 854, 857 (Tex. Ap p.

— Houst on [14th D ist.] 2017, no pet.)

. This statutory construction a l igns with t hat of our Houston sister

court , and s o provides a greater measure of certainty and pr ed ictability on this point in cas es within our shared jurisdi ction

. See Ci ty of Housto n v. Houston , 608 S.W.3d 519, 525 (Tex. App.

— Houston [1st Dist .] Aug. 25, 20 20, no pet. h. ) (collecting cases )

. A t least one Texas court of appeals has found that physic al therap ists and the
faciliti es specializing in physica l therapy satisfy the definition of he alth care provi der. Trevino v. MC45 Holdings, L.L.C

. , No. 04

- 11

- 00839

- C V, 2012 WL 4577484, at * 3 ( Tex. App.

— San Antonio Oct. 3, 2012, no pet.) (holding that a phy si cal therapy facility is a he alth care provider u nder C hapter 74 ) (mem

. op )

. In support of its contention that Aqua tic Care sati sfies the Chapter 74 definiti on of

“ health care provider , ” Aquatic Ca re provided an affidavit o f i ts Chief Operating Officer, R. Brian Haden , in which he st ates:9

Aquatic Care Progra ms, Inc. provides comprehensive physical therapy and rehabilitation services to p atients. Aquati c Car e Programs, Inc. is a physical therapy facility registered wit h and licensed by the Texas Board of Ph ysical Therapy Examiners

. Aq uatic Care Programs, Inc. employs and is directed by licensed physical therapists that provide therapy serv ices to patient s. Pa tients at Aquatic Care Programs, Inc. are evaluated by license d physical therapists. All patients a t Aquatic Care Programs, Inc, received treatment pursuan t to a physician order. Patients received therapy services directed by a licensed physical thera pist or physical therapy assist [sic] (PTA). Records of the therapy servi ces, including progress notes,
me dical history summaries, S.O .A.P. notes, are generated by the caregivers. Against this record, we consider whether Aquatic Care falls within Chapter
74 ’ s d e fini tion of “ health care provider. ” U nder the Occupation Code, “ [p ] hysical therapist” is defined as “ a person who is licensed b y the board as a physical therapist a nd practices physical therapy , ” and the definition specifically includes “ a hydrotherapist ” amo ng a list of statutorily recognized types of physical therapist s. Tex. Occ. Code Ann. § 453.00 1 ( 4)

. Moreover, the Occupation Code def ines

“ [ p ] hysical therapy” a s “ a form of health care that prevents, identifies, corrects, or alleviates acute or prolong ed m ovement dysfunction or pain of anatomic or physiologic origin

. ” Tex. Occ. Code Ann. § 453.001 ( 6)

. As someone l icensed by
th e State to provide “a form of health care,” a licensed physical therapist ( including

a hydrotherapist ) falls within Chapter 74 ’s def initio n of a health care provider

. Tex. Civ. Prac. & Rem. Co de Ann. 74.0 01 (a) (12) ; s ee Trevin o , 2012 WL 4577484,
at * 3

.
I n hi s affidavit Haden sets out t hat (1) A q uatic Care is a physical

- therapy facility regis tered wit h and licensed by the Texas Board of Physical Therapy
Examiners , a state agency ; and (2) A qua tic Care provide s “ comprehensive ph ys ical10

therap y [ he a lth care] a nd rehabilitation services to p atients , ” as directed by licensed physical therapists (health care providers) that provide therapy serv ices to patients

. We conclude that Aquatic Care meets the definition of a he alth c are
pro vi der. See Tex. Civ. Prac. & Rem. Co de Ann. 74.0 01 (a) ( 12) ; s ee Trevino
, 2012 WL 4577484, at * 3

. We next c o nsider whether Cooper ’ s claim s again st Aquatic Care meet the
remainder of the definition of “ health care liability claim ”

. C oo per originally alleged t hat her doctor refer red he r to Aquatic Care “ for co m prehensiv e physical
th erap y

. ” C onsis tent with her original allegation s, Haden ’s affidavit states that all
of Aqua tic Care ’ s patients ( which inclu de Cooper ) received “ treatme nt pursuant to

a phys ician or de r

. ” Cooper allege s that h er infec tion s were ba s ed o n exposur e to the allegedly harmful conditions at Aquatic Care , a physical therapist

- directed
f acility, where she alleges the therapy occurred

. We conc lude that Coope r ’s claims are health care liability claim s b ecause she has asserted a cl aim against Aquatic Ca re , a health care provider, based on
all egatio ns that Aquatic Care de parted from accepted sta ndards of health care

. S ee Reha bi litati ve Care S

ys. of Am. v. Davis, 73 S.W.3d 233, 234 (Tex. 2002) (sta ting

a s uit against physical therapi st is “no dif ferent from a

ny other medical

- malpractice suit in that the applicable standard of care must generally be established by expert testimony .” ) ; Ponce v. El Paso Healt hca re Sys., Ltd. , 55 S.W.3d 34, 36

– 38 (Tex. App.

— El Paso 2001, pet. denied) (fin ding a health care liabil i ty claim arose from physical therapist ’ s conduct where physical therapist ac ted as an agent to another health care pro vider ) ; Trevino , 2012 WL 4577484, at * 3

. That the e nvironment Cooper alleg e s to be harmful , pool water , also is found outside t h e health care setting does not , as Cooper contends, pl ace it outside the scope of Chapter 74

. See
C lark v. TIRR Rehab. Ctr. , 227 S.W.3d 256, 260

– 62 (Tex. App.

— Houston [1st11

Dist

. ] 2007, no pet.) ( determi n ing that hea lth care liabil ity claim arose from gene r al conditioning and strength tra ining when performed at a rehabilitation fac ility , assisted by a physical therapist, and pursuant to a prescription or based on the need
for hea lth care supervision even i f those same activities cou ld have been performed

at “a local gym ” )

. Having concluded that Cooper ’ s claim against Aquatic Care is a
health care li ability claim, we nex t consider whether Cooper has sa tisf ied the

pr ocedural requir ements under Chapt er 74.

A pp lica ble L eg al Standard s
We review a trial court ’ s ruling on the adequacy of an expert report under
the Medical Liability Act for an abuse of dis cretion. Van Ness v. ETMC F irs t Ph ysicians , 461 S.W.3d 140, 142 (T ex. 2015) (per curiam); Am. Transitional C are Ct rs. of Tex., Inc. v. Palacios , 46 S.W.3d 873, 8 77 (Tex . 2001). A trial cou rt abuses its discretion if it ac ts a rbitrarily , unreasonably, or without refere nce to
gu iding rul es o r principles. Bowie Mem ’ l Hosp . v. Wright , 79 S.W.3d 48, 52 (Tex. 2002) ( per c uriam); Lucas v. Clear lake Senior Living Ltd. P ’ ship , 34 9 S.W.3d 657, 660 (T ex. App.

—

H ouston [14th Dist.] 201 1, n o pet.). When revi ewing matters
committed to the tri al court ’ s discretion, a court of appeals may not substitut e its own judgment for the trial court ’ s judgment

. Se e Wright , 79 S.W.3d at 52 ; Lucas , 349 S.W.3d at 660

. U n der section 74.351, a c laim ant, not l ater than the 1 20th day after the date a
h ea lth

- ca r e lia bility claim is filed, mu st serve on each party one o r more expert witness re po r ts addressing liability and causation. Tex. Civ. Pr a c. & Rem. Code
Ann. § 74.351(a ), (j) (West, Westlaw t hrou gh 2017 R. S.) ; Lewis v. F underburk , 253 S.W .3d 204, 20 5 (Tex

. 2008 ). The statute defines a n “expert report” as
[A] wri tten report by an expert t h at provides a fair summary of the expert ’ s opinions a s of the date of the report re garding applicable12

stan dard s of care, the manner in which the care ren dered by th e phys i c ian or health care provider f ailed to meet the standards, and the causal relation sh i p between that failure and the injury, harm, or dama g es claimed.

T ex . Civ. Prac. & Rem. Code Ann. § 74.351 (r)( 6) (West, Westlaw through 2017 R.S.)

. A tr ial cour t s hall g r a nt a motion challenging the a dequacy of the expert report if the report is not an o b jective good

- faith effort t o comply with the
definit i on of an expert report provide d in section 74.351(r)( 6). Id. §§ 74 .351( l ), (r)(6) . The law limits the tria l c ourt ’ s i nqui ry to the four corners of the report.
Jelinek v. Cas as , 328 S.W.3d 526, 539 (T e x. 2010).
The report mus t contain sufficient spec i ficity to inform the defendant of the conduct the pla inti ff has cal led into questi on and to provide a basis f or the t r i al

c ourt to conclude that the plaintiff ’ s claims have merit. S

ee i d. at 539 . Om is s ion of any of the statutory elements prevents the re p ort from being a good

- faith ef fort.
See i d. A report tha t merely s tates the exper t ’ s conclusions ab out the s ta ndard o f

car e, breach, and causation does not meet the st atutory requirements. S ee i d. In providing the expert ’ s opin ions on these elements, t h e claimant need not marshal

ev idence as if actually l itig ating the merits at trial or present suffic ient evid en ce to

a v oid summary judgment. S ee i d

. If a report is s erved, then each health care provi d er whose conduct is implic a ted must file and serve a n y objection to the suff

icie ncy of the report not lat er than the later of the 21 st d ay af ter t he date the report is ser ved or the 21st day
after the date the defendant ’ s a nswer is filed, “ failing which a l l objections are
waived. ” Tex. Civ. Prac. & Rem. Co d e Ann. § 74.351(a). If an exp ert report has not been p roperly served “be cause ele m e n ts of the r eport are found deficient , ” then
the trial court may grant a single th irty

- day extension to t he claimant to c ure the deficiency. Id. § 74.351(c).13

A trial court m ust grant a motion to d is miss a plaint i ff ’ s suit if it appears to
the co urt that t h e exper t rep ort does not represent an objective good

- faith effort to comply with the d efinitio n of an expert report. Id

. § 74.351(l), (r)(6). If the plaintiff fail s to se r

ve a tim ely and complia nt e xper t repor t , then the trial court shall
dismis s the cl a im with p rejud ice and shall award reaso nable attorney ’ s fees and
costs to the defendan t. Id. § 74.351(b)

. A comp l iant rep ort must inclu de an explana tion of the basis for th e expert ’ s
stat ements and lin k th e expert ’ s conclusions to the facts. Wright , 79 S.W

. 3d at 52;
Gann on , 321 S.W.3d at 897. A report that merely states the expert ’ s conclusi ons about the standard of care, br e ach, and causation does no t meet the statutory

requ i rements. Palacios , 46 S.W.3 d at 879; see Wright , 79 S.W.3d at 53

.
T o comply with th e se requir eme nt s, and constitute a “good

- faith effort, ” a report must provide enough in formation to fulfill two purposes : (1) it must inform
the def endant of the specific co n duct the plaintiff has call e d i nto questi on and (2) it must provide a basi s for th e t r ial co urt t o conclude that the claim s have merit.
Palacios , 46 S.W.3d at 879; Ga nno n v. Wyche , 321 S.W.3d 881, 889 ( T ex. App.

— Houston [14th Dist .] 2010, pet. denied). Th e report need not marshal al l of the plain tif f ’ s proof, but the report must incl ude the expe rt ’ s opin ion o n each of the
ele ments id entified in the statute: stan dard of ca re, b reach, and causation. Palaci o s , 46 S.W.3d at 878

– 79. Fi nally, we note “multiple e xpert reports may be read together ” to determine whether the statutory requir emen ts have b ee n met. Abshi re , 563 S .W.3d at 223 . T ex. Civ. Prac. & Rem. Code. § 74. 351

. A quatic Care cit es the following g r ounds for strikin g Cooper ’ s three expert report s and dismissing her lawsuit : Danny D. Cheng, M.D. • L ack of a s uffi cient c urriculum

v i tae14 • I na dequ ate proof of Cheng ’ s qualifications t o render opinions on aquatic therapeuti c services

• Fail ure to address any element (standard of care, breach , causation) of Coo p er ’ s claims
Laraine Enderle, P.T. • Ina dequat e proof of E nder le ’ s qua lifications to r ender opinions o n aquatic therapeutic services

• Failure to pr ovide report in good faith that address es the conduct i n question , and c a

usal conne ction

Jason R. Bailey , M .D. • Fai lure to provide any c urriculum

v i tae

• Fa il ur e to pr ovid e a timely report

• Failur e to pr ovide rep ort in good faith that address es the conduct i n question , and c a

usal connection

Timel iness of Bai l ey ’ s Report
Aquat ic Care asserts that C ooper failed to serve Bailey ’ s report timely

. Cooper provided B aile y ’ s re port on Decem ber 3 , 2018 , well beyond th e trial

cour t ’ s th i rty

- d ay exten ded deadli ne

. E v en assum ing for argumen t ’ s sake that the
extension ra n from t he trial c ourt ’ s written Oct ober 10, 2018 order (as o p posed to
the date of the o ral hearing i n Se ptember 2018 ) , the B ail e y report still would be
late

. C oo per seems to con cede the untimelin ess of the repor t , though she does not formally do so. Acc or ding to Coo per, she did not offer the r eport to satisfy a ny
requ i red stat

utory component but to pr ovide deta ils a bout her t reat ment. The trial

court indicated that i t would not cons ider Bail ey ’ s repo rt in ruling on the objections
and motion to dismiss , but issued no written order to this ef fec t. The trial court ’s
order den y ing Aquatic Care ’s motion to di s miss does not state the ba sis for15

denying the motion ; the trial court did not indicate wh ich experts were qua lified or as to which element they were q u alified, or which e xpert satisfied the good

- fai th

re q uirement as to as t o any par ticular element. The trial court should have

sust ained Aquatic Care ’ s un timeliness objection to Bailey ’ s report

. And , b ecau se Bail e y ’ s report was not timely , to th e extent Co oper offered it to sa tisfy Chapter
74 ’ s expert

- r e por

t requirem ent on any e l ement , Bailey ’ s report could provide no
basis t o supp ort the trial court ’ s order denying Aquatic Care ’ s motion to dismiss

. See Nexi on He a lth at Beechnut, Inc . v. Paul , 335 S.W.3d 7 16, 718 (Tex. App.

— Ho ust on [14th Di st.] 2011, no pet .) (conclu ding the tri a l court had no discretion to
take an y action other th an d ismis sing t he claim where plaintiff filed report one day
after th e expiration of th e thirty

- day ext ens ion)

.

Adequacy of C heng ’ s Curriculum

- Vit ae Aquatic Care raises a re lat iv ely novel is sue of c u rriculum

- vitae adequacy , arguing that the printout fr om C heng ’ s website cont aining biographical
informatio n is inadequate to serve the purposes of the curriculum

- vitae requi re me nt a

n d thus renders Chen g ’ s report insufficient unde r t he statute

. Specifica l ly, Aquatic Care claims that Cheng ’ s web page printout cont aini ng b iographical informatio n i s “ not actually a CV ” and that i t f ail s to contain “ all of
the information that would norma lly be included in a CV

. ”

S ection 74.351(a) requires th at along with the expert r eport, the party files
the e xpert ’ s curriculum vitae

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

. This

c o urt has not viewed the curriculum

- vitae requirement as imposing rigi d requirem ents on the form or conten ts of the curriculum vitae

. See Univ. o f Tex.
Me d. Br a nch at Galveston v. Simmons, No. 14

– 09

– 00246

– CV, 2009 WL 4810296, at *3 (Tex. App.

— Houston [14t h Dist.] Dec. 15, 2009, no pet.) ( concludin g th ere is no requirement i n the statute that the report and th e curriculum vitae be separa te16

docu ments ) ; s ee also I

b rahim v. G ilbride , 14

- 09

- 00938

- C V, 2010 WL 5064430, at *2

– 3 (Tex. App

. —

Houston [14th Dist.] Dec. 9, 2010, n o pet. ) ( des cribing

paragr aph summarizing expert ’ s ed ucatio n and background as “ fairly scant ” b ut finding it sufficient to qualif y as a curriculum v i ta e ) (mem. op.)

. The leg ible portions of the pr intout fr om C heng ’ s web page indicate he is
b oard certifie d in in ternal m edicine , that he t aught and trained student s i n that subject area , and that he spe cia lizes in h ype rt ension , dia betes mellitus , and h eart disease , and tha t he holds advanced positi ons at Univers ity Gen eral Hospita l. The printo ut also pro vide s a s ummary of his professional experience and credentials

. A
curriculum vitae does not fail m er ely becau se it takes the form of a pr int out from a webpage. See Ibrahim , 2010 WL 5064430, at *2

– 3

. The content of t he printo ut from Cheng ’ s webpa ge su ffices to sa tisfy Chapter 74 ’ s curriculum

- vita e requirement

. See i d

. Therefore , w e cannot concl ud e th at the failure to provide more
i n form ation ab out Cheng ’ s profe s sional b ackground in a separ ate cur riculum vitae ,

con tained with in his expert report , r e nders the infor mation Cheng provided so insubst antial as to amount to providing no curriculum vita e a t al l.

The trial court did not abus e i ts discretion in not sust a ining A quatic Care ’ s objection to Ch eng ’ s repor t on the basis that the pr intout from C h eng ’ s web page is
in sufficient to meet the requirements under Chapter 74

. Experts ’ Qualifications
Aquati c Care argues that Enderle ’ s a nd Ch en g ’ s reports and c u r ricul a vit ae fail to set forth their respe ctive qualifi cation s to render opinions on t he de sig nated

s ubjects

. The only opinion Cheng provided is that Cooper ’s water

- b orn e bacterial infection may have been contracted durin g aquat ic thera py. Enderle was designat e d to opine as to (1) the standard of care pertinent t o providing aquat ic therap y and (2) bre ach of that s ta ndard

.17

In assessing the qua lificat ions of an expert i n a suit agai nst a health care provider we look to sectio n 74.402 of the Texas Civil Practice a nd Remedies C ode , which pro vides:
(b) In a suit inv ol ving a heal th care liabili ty claim ag ainst a hea lt h car e provider, a person may q ualify as an e xpert witn es s on the issu e of whether the h ealth care provider departed from acc epted stand ards of

care o n l y if the person: (1) is practicing health care in a fi eld of prac tice that invol ves the

sam e type of c ar e or treatment as that delivere d by th e defen dant healt h care provider , if the defendant health ca re provider is an individua l, at the t ime the testim o n y is given or was practicing that type of health car e at the time the claim aros e; (2) has knowledge o f accep ted standards of care for health care pr oviders fo r the diagnosis , care, or treatme nt of the illness, injury, or conditi on involved in the claim; a nd (3) is qualified on the basis of training or expe ri ence to off er an expert op inion regar ding those ac cepte d standards of health care

. (c) I n deter mining whe th er a witness is qualified on th e basis of training or experience, th e court sha ll consider wh e t her, at the time the claim arose or at the time the te stimony is given, the witn ess: (1) is certified by a li censing agency of one or m ore sta tes of the United S tates or a na tional professiona l certifyi ng agency, or has other sub stantial tr aining or expe r i ence, in the area of health care relevant to the cla im ; and (2) i s actively prac ticing heal th care in re nderi ng health care services

re levant to the claim.
Tex

. Civ. Prac. & Rem. Code Ann. § 7 4.402 ; San Jacinto Methodist Hosp. v. Bennett , 2 56 S.W.3d 806, 8 12

– 13 (Tex. App.

— Houston [14th Dist.] 2008, no pet.)

. T h e la

w limits o ur analys is of an expert ’ s q ualific ations to the four corne rs of the expe rt ’ s report and curriculu m vitae. See Burrell, 230 S.W.3d at 758 ( describing analysi s of qualif ications un der section 74.351, which, in turn, cont ains
a refer en ce to section 74.402 ).18

A quatic Care c ontends that Cheng ’ s credentials , as p r ovided on the webp a ge printout and in Chen g ’ s tw o
- paragraph report , do not reflect that Cheng has an y

re levant expert ise in aquat i c t herapy

. To be qualified to opine that an institutional
health

- care provider breached the applicable standard o f care, one mu st have
“knowled ge of accepted standards of care for health care providers for the diagnosis, care, o r treatment of the illnes s , injury, or condition involved in the claim” and be “qualified on the basis of t raining or experience to o ffer an exper t opinion regarding those accepted stand ards of health care.” Tex. Civ. Prac. &
Rem. Code Ann

. § 74.402(b)(2) , (b)(3). Qualifications m ust appear in the expert report and cannot be inferred. Baylor Coll. of Med. v. Pokluda , 283 S.W.3d 110,
1 17 (Tex. A pp.

—

Houston [14th Dist.] 20 09, no pet.). Cheng ’s only opinion is that Coop er ’s water

- born e bacterial infection may have been contracted d urin g aquatic therapy. Cheng d i d not offer an opinion as to whether any alleged br each of the standard of care caused Cooper ’ s injuries. The re levant standards of care applicable to the case p ertain to Aquatic Care ’s car e

— pool

- based physica l therapy us e d to treat a back injury

. T he report and printout offered in support of Cheng ’s q

ualifications do not s h ow that Cheng has a n y relevant training or experience to render an opinion on the appropr iate standard of care for th e a quatic therapy , p oo l chemistry, or other related practices in pool sanitation

. See Ibrahim , 2010 WL 5064430, at *6

– 8 (concluding that expert was not qualified to render

expe rt opinion when hi s re port and cur riculum vitae fai led to describe how he acquired suffi cient knowledge, skill, e x perience, training or education to opine on the accepted standar d of care)

. In th e absence of evidence in the record to support
the trial cour

t ’ s implicit appro val of Cheng ’s qualifications , we hold that the trial
court abused its discretion by ruling Che n g qualified to opine on Cooper ’s claims against Aquatic Care. S

ee id

.19

In her rep ort , Ender le f

ocuses exclusively on the heal th and safety standards applic able to aqua t ic therapy and p ool sanit ation s

. Relying on published water

s afety guidel in es set out b y an array of different a gencies , Enderle state s in her report that “p hysical the ra py aquati c p rogr ams should strictly adhere to mandated guidelines to pro vide a s afe environment for their p ati ents

. ” The report details how such p rogra ms are ex pected to e n sure safety in three regu lated areas : (1) s afe

water , (2) safe p ool environment , a nd (3) prop er supervis ion

. Enderle ’ s curr iculum vit ae indicates that at the beginning of h er career as a ph ys ical therapist , while at the Northrid ge Hospital M e d ical Cente r from 1989 to 1992, she pr ovided “ aquatic thera py ” to patients in addition to an assortment o f
oth er phys ical

- the rapy modalit ies

. The document contains no deta ils as to the extent of her part i cipation in aq uatic care relative to the other physical therap y service s she provided at the ti me

. And , unlike th e other areas of he r practice listed
in her curricul um vitae , it does not appear that sh e ever had experience as an instructor , trainer, or ad ministrator with respect to aquatic t herapy

. This re mote

- in

ti m e re ference is the only indicat ion of any connection Enderle h as wit h aqua tic
the r apy

. E nderle offer ed no detail about how she became familia r with the
standar ds of care applicable to water sa fety at a facility like Aquatic Care.

Enderle ’ s curriculum vi t ae shows she has been c ertified as a p hysic al therapist in Ca lifornia by th e stat e ’ s physical t he rapy board for thirty years, that
she is a ce rtified clinical i nstructor , a member of the Ame ri c an National Physic a l Therapy Associat ion, and since 1987 has w o rked in phy sical therapy in an array o f

set tin gs ( hospital , c lin ical, a nd outpati ent )

. Yet, n eit he r her curriculum vita e nor her r epor t conta ins any indication that she has experience in the p ast twenty

- five

ye ars pr ov iding , teac hing , or admin istering aq u ati c therapy

. T hat En derle holds expertise as a phys ical ther apist do es not , with out more , establish that s he20

possesses the training or experi ence to offer an e xpert o pinion about the accepted
standards of healt h care involved in aquatic therap y. S ee In r e Windisch, 138
S.W. 3d 507, 514 (Tex. App.

— A m ari llo 2004, no p et.) ( per curiam) (f ind ing expert report inadequate for statutor y purposes becaus e report fai led to indicate experience which could “reasonab ly b e sai d to demonstrate th at [ expert ] has knowledge of the accepted standard o f care for the pr oced ure” at issue) ; Mare nte v. Asah , 4 86 S .W.3d 680, 691

– 92 (Tex. App.

— Texarkana 2 016, no pet.) ; Me thodist Hosp . Leve lland v. Kimbrell , 07

- 09

- 0104

- CV, 2009 WL 3101 31 5, at *1

– 2 (Tex. App.

— Amarillo Sept. 29, 2009, n o pet.) ; Christus Health Se. Tex. v. Brou ss ard , 267 S.W.3d 53 1, 536 (Tex. App.

— Be aumo nt 20 08, no pet.)

. A quatic therapy may fall under the um bre lla of physical therapy, but as t he facts of thi s case re veal , the pool environment i n which aquatic therapy t a kes place , pre sent s unique safety

concerns not c learly ass ociated with other form s of physical therapy

. Nothing in En derle ’ s report or cu rriculu m vitae re veal s how the roles she has had in ph ysic al th erapy over the pa st t went y
- f ive y ears c onvert to trai n ing, experience, or know

- how for the safety conce rns in the poo l en viron ment. In Savaseniorcare Admin. Services, L.L.C. v. Cantu , the court of appeals reversed the
trial court ’s order overruling objections to the qual ific ations of a p hysician boa r d certified in internal medicine, pulmonary medicine, cri tical care medicine, an d sleep medicine and who practiced in those fields of medi cine at a clinic, who
off er ed opinions that focused on t he care and treatment the plaint iff received or
should have r e ceived from a nursing and physical therapy staff

. 04

- 14

- 00329

- CV,
2014 WL 53520 93, at *3 (Tex. App.

— San Antonio Oct. 22, 2014, no pet.) (mem. op.)

. Despite the expert ’ s assertion that he was familiar with the usual standard of

c are for a facility based o n his professional activities and experiences , the crux o f
the court ’s hold ing w as that i t found nothing in the expert ’ s report or in his21

curriculum vitae tha t re veal ed how t he expert became f amiliar with this standard of

care

. Id. ; s e e also Renaissance Surgical Centers

- S. Tex., L.L.P. v. Jimenez , 13

- 07

- 12 1

- CV, 2008 WL 3971 096, at *7

– 8 (Tex. App.

— Corpus Christi Aug. 28, 2008, no pet.) (finding tha t despite hi s his tory o f employment in various administrative capacities at hospital s, expert wa s not qualifi e d to render opinions a bo ut standards for dischargi ng a patient or how t o properly monitor a patient, or the stand ards applicable to a nurse or other e mployee who h as dis charged a patient that r eceived
an anesthetic when his resume provided no indication t h at he ha d experience developing or implementing su ch standa rds) (mem. o p.)

. In the absence of any explanation of how the bare notation of “ aquatic therapy ” men tio ned in conjunction with an ass ortment o f oth er phys ical

- the rapy mod alities ( or anything
else in t he report ) establishes that Enderle has the relevant training and e xperience to prov ide opinions about the standard of care or breach in this case , Cooper fail s to d emonstrate En derle ’ s qua lification s to provide standard

- of

- ca re and breach

- of

standard opinions

. S

ee id

.
E ven if En derle holds such knowledge, her report and curri culum vitae
fail ed to show it to the tr ial court at any point in the pr oce ed ing s bel ow

. T he trial

court noted on the rec ord that the “ physical therapist does n ’ t seem to have any

expe r tise in aq

uatic the rapy

. ” Though the trial court se emed to acknowledge that
En derle ’ s opini ons w ere not consistent wit h the statutory requirements , th e tr i al

c ou rt no netheless admitted the rep ort, without noting a “ good reason ” f or doing so

. See Tex. Ci v . Prac . & Rem. 74. 4 0 2(d) ( stating that “ [t] he c ourt shall apply the
criter ia specified in Subsections (a), ( b), a nd (c) in determining whether an ex pert is qualif ied t o of fer e xpert testimony o n the issue of whether the defendant health care provider depa r ted from accept ed stan dards of health care but may d epart from
those crite ri a if, under the circumstances, t he co urt determines that there is good22

r eason t o admit the expe rt ’ s testi mony. The c o urt shall state on the record the

rea son for admitting the tes t imony if the co urt dep arts from the criteria ” ).

I n the absence of a quali fi ed expert with a report addressi ng th e essential liability component s of Co oper ’ s heal th ca re l iabil ity claims, the t rial court abused
its discretion in f

ailing to sustain Aquatic Care ’ s objections . Be cau se the tri al

court alr eady had granted Cooper one t hirty

- day extension to su pplemen t her expert reports , t he t rial co urt had no dis cretio n to over rule the object ion s ; i nstead, the law required the trial co urt to grant Aquatic Care ’ s motion to dismiss. W e theref ore sustain A q

uatic C are ’ s sole issue on a pp eal.

III. C ONCLU SION Having fo und t hat Cooper ’ s claims fall within the scope of th e T exas Med ical Liability Act an d having found merit in Aq uatic Care ’ s appe llate challenge , we r e verse the trial court ’ s o rder denying Aquatic Care ’ s m otion to d ismiss a nd remand this case to the tri al co urt for rendition of judgment dismissing Coope r ’ s cl aim s a gain st Aquatic Care.

/s/ Kem Thompson Frost Chief Justice

Panel consists of Chief Justice Fros t and Justices Christopher and Bourliot (Bourliot, J. concurring w ithout opinion)

.