Reversed and Remanded 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 County, Texas

Trial Court Cause No. 2018-20681

M A J O R I T Y O P I N I O N1

Appellant/defendant Aquatic Care Programs, Inc. asserts that the trial court 

abused its discretion in overruling objections to appellee/plaintiff Kathleen Denise

Cooper’s expert reports and in denying Aquatic Care’s motions to dismiss based 

on alleged violations of the Texas Medical Liability Act’s

2

expert-report 

1

Justice Bourliot concurs without opinion.

2

“Chapter 74” and “Texas Medical Liability Act” refer to sections 74.001 through 74.507 of the Texas 

Civil Practice and Remedies Code.
2

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

of dismissal. 

I. FACTUAL AND PROCEDURAL BACKGROUND

Cooper sought treatment for pain and numbness in her legs. Her doctor

prescribed a course of aquatic therapy and referred her to Aquatic Care. In early 

2016, Cooper began a regular program of pool exercise in Aquatic Care’s facility.

Cooper alleges that in late May 2016, she contracted a waterborne bacterial 

infection after exercising in Aquatic Care’s pool. According to Cooper’s doctor, 

cultures confirmed that her infection was pseudomonas—a bacteria known to be 

found in health care settings, and “in the environment, specifically in water.” The 

bacteria is resistant to antibiotics. Doctors admitted Cooper to the hospital, where 

she stayed for two weeks. Upon her discharge, doctors prescribed medications for 

treatment at home. Because of a worsening medical condition, in mid-October

2016, Cooper returned to the hospital for further care. A week later she received a 

discharge and transfer to another hospital that could better accommodate her

special needs. Cooper received treatment from Dr. Jason R. Bailey, who performed 

a lolipoma excision of her left lower extremity abscess. Cooper then moved to 

another hospital to continue management of an infection of the left lower-extremity 

wound and cellulitis of bilateral lower extremities.

Cooper’s Pleaded Allegations

Cooper filed this lawsuit against Aquatic Care asserting various negligence

theories and alleging that Aquatic Care (1) negligently permitted a dangerous 

condition to exist in its pool that caused her to get a water-borne bacterial

pseudomonas infection; (2) negligently failed to warn her of the dangerous 

condition before she entered the pool to exercise; (2) failed to inspect by testing the 
3

pool water to determine its bacteria level; (3) failed to correct the pool water’s 

dangerous bacterial level by adding additional chemicals to kill the bacteria in the 

pool water; (4) failed to warn invitees, including Cooper, that a dangerous bacterial 

condition existed before they entered the pool water; (5) failed to test Cooper to 

see whether she had contacted any virulent bacteria in Aquatic Care’s facility; and 

(6) engaged in a dangerous activity by promoting the growth of allegedly flesheating bacteria in the pool as opposed to stopping the growth of the organism.

Cooper’s Expert Reports and Aquatic Care’s Objections 

Cooper served Aquatic Care with (1) a report from her internist, Danny D. 

Cheng, M.D., with a printout from Cheng’s professional website containing his 

biographical information, and (2) a report from Laraine Enderle, P.T., a Californiaboard certified physical therapist, with Enderle’s curriculum vitae. Aquatic Care 

filed objections to the expert reports and a motion to dismiss Cooper’s lawsuit. 

Aquatic Care complained that both of Cooper’s expert reports failed to meet

the requirements of Chapter 74 of the Texas Medical Liability Act. As to Cheng’s 

report, Aquatic Care asserted (1) Cheng’s curriculum vitae was insufficient, (2) 

Cheng failed to address any of the required elements under Chapter 74, and (3) the

opinions expressed in Cheng’s report were conclusory. As to Enderle’s report, 

Aquatic Care complained that (1) Enderle lacked the qualifications to render 

opinions on the standard of care, (2) Enderle did not address required elements 

under Chapter 74 as to how Aquatic Care allegedly breached the standard of care, 

and (3) Enderle made conclusory statements in saying that it would be “unlikely” 

for someone to contract “flesh-eating bacteria” if various safeguards were 

followed.

Despite Cooper’s serving of expert reports on Aquatic Care, Cooper viewed 

her claims as not being health care liability claims, and she moved for summary 
4

judgment to bar application of Chapter 74 to her claims. Aquatic Care filed

supplemental objections to Cooper’s Chapter 74 expert reports and addressed in 

more detail whether Cooper’s claims fell within the scope of the statute. 

At a hearing on September 10, 2018, the trial court ruled that Cooper’s 

claims fell under the Texas Medical Liability Act and granted Cooper’s oral 

request for a thirty-day extension to satisfy the expert-report requirements. The 

trial court reduced its ruling to a written order signed on October 8, 2018, reciting 

an effective date of September 10, 2018, the date of the hearing. A few months 

later, on December 4, 2018, Cooper filed and served documents purporting to be 

Jason R. Bailey, M.D.’s expert report. Cooper did not file or serve a curriculum 

vitae for Dr. Bailey. Days later Aquatic Care objected that Cooper had not filed 

Bailey’s report on time or included the requisite curriculum vitae. The next week 

the trial court signed an order, dated December 10, 2018, overruling Aquatic

Care’s objections and denying its motion to dismiss. From that order, Aquatic

Care timely filed this interlocutory appeal. 

II.ISSUES AND ANALYSIS

Aquatic Care presents a single issue: Did the trial court err in denying the

motion to dismiss based on Cooper’s failure to satisfy Chapter 74’s expert-report 

requirements? Cooper urges on appeal, as she did in the trial court, that her claims

do not fall within the scope of the Texas Medical Liability Act. Specifically, she 

asserts that Aquatic Care is not a “health care institution” under the statute. In its 

reply brief, Aquatic Care argues that Cooper’s scope argument is not properly 

before this court because Cooper failed to raise it in the trial court, and 

alternatively, that Cooper’s claims do fall within the scope of the statute because 

apart from whether Aquatic Care falls within the statutory definition of a “health 

care institution,” Aquatic Care is a “health care provider” under the statute. See
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Rehab. Care Sys. of Am. v. Davis, 73 S.W.3d 233, 234 (Tex. 2002); Skloss v. 

Perez, 01-08-00484-CV, 2009 WL 40438, at *6 (Tex. App.—Houston [1st Dist.] 

Jan. 8, 2009, no pet.) (mem. op.). The applicability of the Texas Medical Liability 

Act to Cooper’s claims is a threshold issue this court must address in disposing of 

this interlocutory appeal. 

Applicability of the Texas Medical Liability Act

Whether Cooper’s claim amounts to a health care liability claim is a 

question of law we review de novo. Bioderm Skin Care, LLC v. Sok, 426 S.W.3d 

753, 757 (Tex. 2014); see Johnson v. City of Fort Worth, 774 S.W.2d 653, 655–56 

(Tex. 1989). In construing a statute, our objective is to determine and give effect 

to the Legislature’s intent. See Nat’l Liab. & Fire Ins. Co. v. Allen, 15 S.W.3d 

525, 527 (Tex. 2000). If possible, we must ascertain that intent from the 

Legislature’s words in the statute and not look to extraneous matters for an intent 

the statute does not state. Id. Where the statutory language is unambiguous, we 

give the statute the interpretation supported by the plain meaning of the provision’s 

words. St. Luke’s Episcopal Hosp. v. Agbor, 952 S.W.2d 503, 505 (Tex. 1997). 

We must not engage in forced or strained construction; instead, we must yield to 

the plain sense of the words the Legislature chose. See id.

Chapter 74 defines a “health care liability claim” as 

a cause of action against a health care provider or physician for 

treatment, lack of treatment, or other claimed departure from accepted 

standards of medical care, or health care, or safety or professional or 

administrative services directly related to health care, which 

proximately results in injury to or death of a claimant, whether the 

claimant’s claim or cause of action sounds in tort or contract. The 

term does not include a cause of action described by Section 

406.033(a) or 408.001(b), Labor Code, against an employer by an 

employee or the employee’s surviving spouse or heir.
6

Tex. Civ. Prac. & Rem. Code Ann. 74.001(a)(13)(emphasis added).

Under the statute’s plain meaning, to be protected by Chapter 74’s 

procedures a defendant must be a health care provider or a physician, both of 

which are defined terms. The statute defines a health care provider as follows:

(A) “Health care provider” means any person, partnership, 

professional association, corporation, facility, or institution duly 

licensed, certified, registered, or chartered by the State of Texas to 

provide health care, including:

(i) a registered nurse;

(ii) a dentist;

(iii) a podiatrist;

(iv) a pharmacist;

(v) a chiropractor;

(vi) an optometrist;

(vii) a health care institution; or

(viii) a health care collaborative certified under Chapter 848, 

Insurance Code.

(B) The term includes:

(i) an officer, director, shareholder, member, partner, manager, 

owner, or affiliate of a health care provider or physician; and

(ii) an employee, independent contractor, or agent of a health 

care provider or physician acting in the course and scope of the 

employment or contractual relationship.

Tex. Civ. Prac. & Rem. Code Ann. 74.001(a)(12)(emphasis added).

The term “health care institution,” incorporated within the definition of 

“health care provider,” expressly includes the following: 

(A) an ambulatory surgical center;

(B) an assisted living facility licensed under Chapter 247, Health and 

Safety Code;

(C) an emergency medical services provider;
7

(D) a health services district created under Chapter 287, Health and 

Safety Code;

(E) a home and community support services agency;

(F) a hospice;

(G) a hospital;

(H) a hospital system;

(I) an intermediate care facility for the mentally retarded or a home 

and community-based services waiver program for persons with 

mental retardation adopted in accordance with Section 1915(c) of the 

federal Social Security Act (42 U.S.C. Section 1396n), as amended;

(J) a nursing home; or

(K) an end stage renal disease facility licensed under Section 251.011, 

Health and Safety Code.

Tex. Civ. Prac. & Rem. Code Ann. 74.001(a)(11).

As Cooper points out, “aquatic therapy center” is not specifically listed in 

the definition of “health care provider” or “health care institution.” Nor are the 

terms “aquatic therapist”, “physical-therapy center,” or “physical therapist” listed

in Chapter 74.

Several other courts of appeals have concluded that the terms listed in

sections 74.001(a)(11) and (12) are not exclusive. See Skloss v. Perez, 01-08-

00484-CV, 2009 WL 40438, at *3 (Tex. App.—Houston [1st Dist.] Jan. 8, 2009, 

no pet.); Fudge v. Wall, 308 S.W.3d 458, 461 (Tex. App.—Dallas 2010, no pet.); 

Mike Norgaard, LPC v. Pingel, 296 S.W.3d 284, 288 (Tex. App.—Fort Worth 

2009, no pet.). Though some of our cases contain passing references to the 

exclusivity question, we have yet to address the issue directly. See Tex. Cypress 

Creek Hosp., L.P. v. Hickman, 329 S.W.3d 209, 214 (Tex. App.—Houston [14th 

Dist.] 2010, pet. denied) (noting in an obiter dictum that other courts have 

recognized that Chapter 74’s list of healthcare providers is not exclusive). So, 

today we consider as a matter of first impression in this court whether a particular 
8

entity that otherwise satisfies the statutory definition of “health care provider” but 

is not listed in either subsection (11) or (12) of section 74.001(a) falls within

Chapter 74’s definition of “health care provider.”

When given its ordinary meaning, the word “including” followed by a list of

common types of health care providers cannot fairly be read as “just including” or 

“including only.” A party who satisfies the criteria of being a “person, partnership,

professional association, corporation, facility, or institution duly licensed, certified, 

registered, or chartered by the State of Texas to provide health care” need not be 

anything else to be a “health care provider.” See Tex. Gov’t Code Ann. § 

311.005(13) (stating that “includes” and “including” are terms of enlargement and 

not of limitation or exclusive enumeration, and use of the terms does not create a 

presumption that components not expressed are excluded); Vision 20/20, Ltd. v. 

Cameron Builders, Inc., 525 S.W.3d 854, 857 (Tex. App.—Houston [14th Dist.] 

2017, no pet.). This statutory construction aligns with that of our Houston sister

court, and so provides a greater measure of certainty and predictability on this

point in cases within our shared jurisdiction. See City of Houston v. Houston, 608 

S.W.3d 519, 525 (Tex. App.—Houston [1st Dist.] Aug. 25, 2020, no pet. h.)

(collecting cases).

At least one Texas court of appeals has found that physical therapists and the 

facilities specializing in physical therapy satisfy the definition of health care 

provider. Trevino v. MC45 Holdings, L.L.C., No. 04-11-00839-CV, 2012 WL 

4577484, at *3 (Tex. App.—San Antonio Oct. 3, 2012, no pet.) (holding that a 

physical therapy facility is a health care provider under Chapter 74) (mem. op). In 

support of its contention that Aquatic Care satisfies the Chapter 74 definition of

“health care provider,” Aquatic Care provided an affidavit of its Chief Operating 

Officer, R. Brian Haden, in which he states: 
9

Aquatic Care Programs, Inc. provides comprehensive physical therapy 

and rehabilitation services to patients. Aquatic Care Programs, Inc. is 

a physical therapy facility registered with and licensed by the Texas 

Board of Physical Therapy Examiners. Aquatic Care Programs, Inc. 

employs and is directed by licensed physical therapists that provide 

therapy services to patients.

Patients at Aquatic Care Programs, Inc. are evaluated by licensed 

physical therapists.

All patients at Aquatic Care Programs, Inc, received treatment 

pursuant to a physician order. Patients received therapy services 

directed by a licensed physical therapist or physical therapy assist

[sic] (PTA). Records of the therapy services, including progress notes, 

medical 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 definition of “health care provider.” Under the Occupation Code, “[p]hysical 

therapist” is defined as “a person who is licensed by the board as a physical 

therapist and practices physical therapy,” and the definition specifically includes “a

hydrotherapist” among a list of statutorily recognized types of physical therapists. 

Tex. Occ. Code Ann. § 453.001(4). Moreover, the Occupation Code defines 

“[p]hysical therapy” as “a form of health care that prevents, identifies, corrects, or 

alleviates acute or prolonged movement dysfunction or pain of anatomic or 

physiologic origin.” Tex. Occ. Code Ann. § 453.001(6). As someone licensed by 

the State to provide “a form of health care,” a licensed physical therapist (including 

a hydrotherapist) falls within Chapter 74’s definition of a health care provider. 

Tex. Civ. Prac. & Rem. Code Ann. 74.001(a)(12); see Trevino, 2012 WL 4577484, 

at *3. 

In his affidavit Haden sets out that (1) Aquatic Care is a physical-therapy

facility registered with and licensed by the Texas Board of Physical Therapy

Examiners, a state agency; and (2) Aquatic Care provides “comprehensive physical 
10

therapy [health care] and rehabilitation services to patients,” as directed by 

licensed physical therapists (health care providers) that provide therapy services to 

patients. We conclude that Aquatic Care meets the definition of a health care 

provider. See Tex. Civ. Prac. & Rem. Code Ann. 74.001(a)(12); see Trevino, 2012 

WL 4577484, at *3. 

We next consider whether Cooper’s claims against Aquatic Care meet the 

remainder of the definition of “health care liability claim”. Cooper originally

alleged that her doctor referred her to Aquatic Care “for comprehensive physical 

therapy.” Consistent with her original allegations, Haden’s affidavit states that all 

of Aquatic Care’s patients (which include Cooper) received “treatment pursuant to 

a physician order.” Cooper alleges that her infections were based on exposure to 

the allegedly harmful conditions at Aquatic Care, a physical therapist-directed 

facility, where she alleges the therapy occurred.

We conclude that Cooper’s claims are health care liability claims because 

she has asserted a claim against Aquatic Care, a health care provider, based on 

allegations that Aquatic Care departed from accepted standards of health care. See 

Rehabilitative Care Sys. of Am. v. Davis, 73 S.W.3d 233, 234 (Tex. 2002) (stating 

a suit against physical therapist is “no different from any other medical-malpractice 

suit in that the applicable standard of care must generally be established by expert 

testimony.”); Ponce v. El Paso Healthcare Sys., Ltd., 55 S.W.3d 34, 36–38 (Tex. 

App.—El Paso 2001, pet. denied) (finding a health care liability claim arose from 

physical therapist’s conduct where physical therapist acted as an agent to another

health care provider); Trevino, 2012 WL 4577484, at *3. That the environment

Cooper alleges to be harmful, pool water, also is found outside the health care 

setting does not, as Cooper contends, place it outside the scope of Chapter 74. See

Clark v. TIRR Rehab. Ctr., 227 S.W.3d 256, 260–62 (Tex. App.—Houston [1st 
11

Dist.] 2007, no pet.) (determining that health care liability claim arose from general 

conditioning and strength training when performed at a rehabilitation facility, 

assisted by a physical therapist, and pursuant to a prescription or based on the need 

for health care supervision even if those same activities could have been performed 

at “a local gym”). Having concluded that Cooper’s claim against Aquatic Care is a 

health care liability claim, we next consider whether Cooper has satisfied the

procedural requirements under Chapter 74.

Applicable Legal Standards

We review a trial court’s ruling on the adequacy of an expert report under 

the Medical Liability Act for an abuse of discretion. Van Ness v. ETMC First 

Physicians, 461 S.W.3d 140, 142 (Tex. 2015) (per curiam); Am. Transitional Care 

Ctrs. of Tex., Inc. v. Palacios, 46 S.W.3d 873, 877 (Tex. 2001). A trial court 

abuses its discretion if it acts arbitrarily, unreasonably, or without reference to 

guiding rules or principles. Bowie Mem’l Hosp. v. Wright, 79 S.W.3d 48, 52 (Tex. 

2002) (per curiam); Lucas v. Clearlake Senior Living Ltd. P’ship, 349 S.W.3d 657, 

660 (Tex. App.—Houston [14th Dist.] 2011, no pet.). When reviewing matters 

committed to the trial court’s discretion, a court of appeals may not substitute its 

own judgment for the trial court’s judgment. See Wright, 79 S.W.3d at 52; Lucas, 

349 S.W.3d at 660.

Under section 74.351, a claimant, not later than the 120th day after the date a 

health-care liability claim is filed, must serve on each party one or more expert 

witness reports addressing liability and causation. Tex. Civ. Prac. & Rem. Code 

Ann. § 74.351(a), (j) (West, Westlaw through 2017 R.S.); Lewis v. Funderburk, 

253 S.W.3d 204, 205 (Tex. 2008). The statute defines an “expert report” as

[A] written report by an expert that provides a fair summary of the 

expert’s opinions as of the date of the report regarding applicable 
12

standards of care, the manner in which the care rendered by the 

physician or health care provider failed to meet the standards, and the 

causal relationship between that failure and the injury, harm, or 

damages claimed.

Tex. Civ. Prac. & Rem. Code Ann. § 74.351(r)(6) (West, Westlaw through 2017 

R.S.). A trial court shall grant a motion challenging the adequacy of the expert 

report if the report is not an objective good-faith effort to comply with the 

definition of an expert report provided in section 74.351(r)(6). Id. §§ 74.351(l), 

(r)(6). The law limits the trial court’s inquiry to the four corners of the report. 

Jelinek v. Casas, 328 S.W.3d 526, 539 (Tex. 2010). 

The report must contain sufficient specificity to inform the defendant of the 

conduct the plaintiff has called into question and to provide a basis for the trial 

court to conclude that the plaintiff’s claims have merit. See id. at 539. Omission 

of any of the statutory elements prevents the report from being a good-faith effort. 

See id. A report that merely states the expert’s conclusions about the standard of

care, breach, and causation does not meet the statutory requirements. See id. In

providing the expert’s opinions on these elements, the claimant need not marshal 

evidence as if actually litigating the merits at trial or present sufficient evidence to 

avoid summary judgment. See id.

If a report is served, then each health care provider whose conduct is 

implicated must file and serve any objection to the sufficiency of the report not 

later than the later of the 21st day after the date the report is served or the 21st day 

after the date the defendant’s answer is filed, “failing which all objections are 

waived.” Tex. Civ. Prac. & Rem. Code Ann. § 74.351(a). If an expert report has 

not been properly served “because elements of the report are found deficient,” then 

the trial court may grant a single thirty-day extension to the claimant to cure the 

deficiency. Id. § 74.351(c).
13

A trial court must grant a motion to dismiss a plaintiff’s suit if it appears to 

the court that the expert report does not represent an objective good-faith effort to 

comply with the definition of an expert report. Id. § 74.351(l), (r)(6). If the 

plaintiff fails to serve a timely and compliant expert report, then the trial court shall

dismiss the claim with prejudice and shall award reasonable attorney’s fees and 

costs to the defendant. Id. § 74.351(b).

A compliant report must include an explanation of the basis for the expert’s 

statements and link the expert’s conclusions to the facts. Wright, 79 S.W.3d at 52;

Gannon, 321 S.W.3d at 897. A report that merely states the expert’s conclusions 

about the standard of care, breach, and causation does not meet the statutory

requirements. Palacios, 46 S.W.3d at 879; see Wright, 79 S.W.3d at 53.

To comply with these requirements, and constitute a “good-faith effort,” a 

report must provide enough information to fulfill two purposes: (1) it must inform 

the defendant of the specific conduct the plaintiff has called into question and (2) it 

must provide a basis for the trial court to conclude that the claims have merit.

Palacios, 46 S.W.3d at 879; Gannon v. Wyche, 321 S.W.3d 881, 889 (Tex. App.—

Houston [14th Dist.] 2010, pet. denied). The report need not marshal all of the 

plaintiff’s proof, but the report must include the expert’s opinion on each of the 

elements identified in the statute: standard of care, breach, and causation. Palacios, 

46 S.W.3d at 878–79. Finally, we note “multiple expert reports may be read 

together” to determine whether the statutory requirements have been met. Abshire, 

563 S.W.3d at 223. Tex. Civ. Prac. & Rem. Code. § 74.351. 

Aquatic Care cites the following grounds for striking Cooper’s three expert

reports and dismissing her lawsuit:

Danny D. Cheng, M.D. • Lack of a sufficient curriculum 

vitae
14

• Inadequate proof of Cheng’s 

qualifications to render opinions on 

aquatic therapeutic services

• Failure to address any element 

(standard of care, breach, 

causation) of Cooper’s claims

Laraine Enderle, P.T. • Inadequate proof of Enderle’s

qualifications to render opinions on

aquatic therapeutic services

• Failure to provide report in good

faith that addresses the conduct in

question, and causal connection

Jason R. Bailey, M.D. • Failure to provide any curriculum 

vitae

• Failure to provide a timely report

• Failure to provide report in good

faith that addresses the conduct in 

question, and causal connection

Timeliness of Bailey’s Report

Aquatic Care asserts that Cooper failed to serve Bailey’s report timely. 

Cooper provided Bailey’s report on December 3, 2018, well beyond the trial 

court’s thirty-day extended deadline. Even assuming for argument’s sake that the

extension ran from the trial court’s written October 10, 2018 order (as opposed to 

the date of the oral hearing in September 2018), the Bailey report still would be 

late. Cooper seems to concede the untimeliness of the report, though she does not 

formally do so. According to Cooper, she did not offer the report to satisfy any 

required statutory component but to provide details about her treatment. The trial 

court indicated that it would not consider Bailey’s report in ruling on the objections 

and motion to dismiss, but issued no written order to this effect. The trial court’s 

order denying Aquatic Care’s motion to dismiss does not state the basis for 
15

denying the motion; the trial court did not indicate which experts were qualified or 

as to which element they were qualified, or which expert satisfied the good-faith

requirement as to as to any particular element. The trial court should have 

sustained Aquatic Care’s untimeliness objection to Bailey’s report. And, because 

Bailey’s report was not timely, to the extent Cooper offered it to satisfy Chapter 

74’s expert-report requirement on any element, Bailey’s report could provide no 

basis to support the trial court’s order denying Aquatic Care’s motion to dismiss.

See Nexion Health at Beechnut, Inc. v. Paul, 335 S.W.3d 716, 718 (Tex. App.—

Houston [14th Dist.] 2011, no pet.) (concluding the trial court had no discretion to 

take any action other than dismissing the claim where plaintiff filed report one day 

after the expiration of the thirty-day extension). 

Adequacy of Cheng’s Curriculum-Vitae 

Aquatic Care raises a relatively novel issue of curriculum-vitae adequacy, 

arguing that the printout from Cheng’s website containing biographical 

information is inadequate to serve the purposes of the curriculum-vitae 

requirement and thus renders Cheng’s report insufficient under the statute. 

Specifically, Aquatic Care claims that Cheng’s webpage printout containing 

biographical information is “not actually a CV” and that it fails to contain “all of 

the information that would normally be included in a CV.”

Section 74.351(a) requires that along with the expert report, the party files

the expert’s curriculum vitae. Tex. Civ. Prac. & Rem. Code Ann. 74.351(a). This 

court has not viewed the curriculum-vitae requirement as imposing rigid

requirements on the form or contents of the curriculum vitae. See Univ. of Tex. 

Med. Branch at Galveston v. Simmons, No. 14–09–00246–CV, 2009 WL 4810296, 

at *3 (Tex. App.— Houston [14th Dist.] Dec. 15, 2009, no pet.) (concluding there 

is no requirement in the statute that the report and the curriculum vitae be separate 
16

documents); see also Ibrahim v. Gilbride, 14-09-00938-CV, 2010 WL 5064430, at 

*2–3 (Tex. App.—Houston [14th Dist.] Dec. 9, 2010, no pet.) (describing 

paragraph summarizing expert’s education and background as “fairly scant” but 

finding it sufficient to qualify as a curriculum vitae) (mem. op.). 

The legible portions of the printout from Cheng’s webpage indicate he is 

board certified in internal medicine, that he taught and trained students in that 

subject area, and that he specializes in hypertension, diabetes mellitus, and heart 

disease, and that he holds advanced positions at University General Hospital. The 

printout also provides a summary of his professional experience and credentials. A 

curriculum vitae does not fail merely because it takes the form of a printout from a

webpage. See Ibrahim, 2010 WL 5064430, at *2–3. The content of the printout 

from Cheng’s webpage suffices to satisfy Chapter 74’s curriculum-vitae

requirement. See id. Therefore, we cannot conclude that the failure to provide more

information about Cheng’s professional background in a separate curriculum vitae,

contained within his expert report, renders the information Cheng provided so 

insubstantial as to amount to providing no curriculum vitae at all.

The trial court did not abuse its discretion in not sustaining Aquatic Care’s 

objection to Cheng’s report on the basis that the printout from Cheng’s webpage is

insufficient to meet the requirements under Chapter 74. 

Experts’ Qualifications

Aquatic Care argues that Enderle’s and Cheng’s reports and curricula vitae

fail to set forth their respective qualifications to render opinions on the designated 

subjects. The only opinion Cheng provided is that Cooper’s water-borne bacterial 

infection may have been contracted during aquatic therapy. Enderle was 

designated to opine as to (1) the standard of care pertinent to providing aquatic

therapy and (2) breach of that standard. 
17

In assessing the qualifications of an expert in a suit against a health care 

provider we look to section 74.402 of the Texas Civil Practice and Remedies Code, 

which provides: 

(b) In a suit involving a health care liability claim against a health care 

provider, a person may qualify as an expert witness on the issue of 

whether the 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;

(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.

(c) In determining whether a witness is qualified on the basis of

training or experience, the court shall consider whether, at the time the 

claim arose or at the time the testimony is given, the witness:

(1) is certified by a licensing agency of one or more states of the 

United States or a national professional certifying agency, or has other 

substantial training or experience, in the area of health care relevant to 

the claim; and

(2) is actively practicing health care in rendering health care services 

relevant to the claim.

Tex. Civ. Prac. & Rem. Code Ann. § 74.402; San Jacinto Methodist Hosp. v.

Bennett, 256 S.W.3d 806, 812–13 (Tex. App.—Houston [14th Dist.] 2008, no 

pet.). The law limits our analysis of an expert’s qualifications to the four corners 

of the expert’s report and curriculum vitae. See Burrell, 230 S.W.3d at 758 

(describing analysis of qualifications under section 74.351, which, in turn, contains 

a reference to section 74.402).
18

Aquatic Care contends that Cheng’s credentials, as provided on the webpage 

printout and in Cheng’s two-paragraph report, do not reflect that Cheng has any

relevant expertise in aquatic therapy. To be qualified to opine that an institutional 

health-care provider breached the applicable standard of care, one must have 

“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 be “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)(2), (b)(3). Qualifications must appear in the expert 

report and cannot be inferred. Baylor Coll. of Med. v. Pokluda, 283 S.W.3d 110,

117 (Tex. App.—Houston [14th Dist.] 2009, no pet.). Cheng’s only opinion is 

that Cooper’s water-borne bacterial infection may have been contracted during 

aquatic therapy. Cheng did not offer an opinion as to whether any alleged breach 

of the standard of care caused Cooper’s injuries. The relevant standards of care

applicable to the case pertain to Aquatic Care’s care — pool-based physical 

therapy used to treat a back injury. The report and printout offered in support of 

Cheng’s qualifications do not show that Cheng has any relevant training or 

experience to render an opinion on the appropriate standard of care for the aquatic

therapy, pool chemistry, or other related practices in pool sanitation. See Ibrahim, 

2010 WL 5064430, at *6–8 (concluding that expert was not qualified to render 

expert opinion when his report and curriculum vitae failed to describe how he 

acquired sufficient knowledge, skill, experience, training or education to opine on 

the accepted standard of care). In the absence of evidence in the record to support 

the trial court’s implicit approval of Cheng’s qualifications, we hold that the trial 

court abused its discretion by ruling Cheng qualified to opine on Cooper’s claims 

against Aquatic Care. See id.
19

In her report, Enderle focuses exclusively on the health and safety standards 

applicable to aquatic therapy and pool sanitations. Relying on published water 

safety guidelines set out by an array of different agencies, Enderle states in her

report that “physical therapy aquatic programs should strictly adhere to mandated

guidelines to provide a safe environment for their patients.” The report details how 

such programs are expected to ensure safety in three regulated areas: (1) safe 

water, (2) safe pool environment, and (3) proper supervision. 

Enderle’s curriculum vitae indicates that at the beginning of her career as a 

physical therapist, while at the Northridge Hospital Medical Center from 1989 to 

1992, she provided “aquatic therapy” to patients in addition to an assortment of 

other physical-therapy modalities. The document contains no details as to the 

extent of her participation in aquatic care relative to the other physical therapy

services she provided at the time. And, unlike the other areas of her practice listed 

in her curriculum vitae, it does not appear that she ever had experience as an 

instructor, trainer, or administrator with respect to aquatic therapy. This remote-intime reference is the only indication of any connection Enderle has with aquatic 

therapy. Enderle offered no detail about how she became familiar with the 

standards of care applicable to water safety at a facility like Aquatic Care.

Enderle’s curriculum vitae shows she has been certified as a physical 

therapist in California by the state’s physical therapy board for thirty years, that 

she is a certified clinical instructor, a member of the American National Physical 

Therapy Association, and since 1987 has worked in physical therapy in an array of 

settings (hospital, clinical, and outpatient). Yet, neither her curriculum vitae nor 

her report contains any indication that she has experience in the past twenty-five 

years providing, teaching, or administering aquatic therapy. That Enderle holds 

expertise as a physical therapist does not, without more, establish that she 
20

possesses the training or experience to offer an expert opinion about the accepted 

standards of health care involved in aquatic therapy. See In re Windisch, 138 

S.W.3d 507, 514 (Tex. App.—Amarillo 2004, no pet.) (per curiam) (finding expert 

report inadequate for statutory purposes because report failed to indicate 

experience which could “reasonably be said to demonstrate that [expert] has

knowledge of the accepted standard of care for the procedure” at issue); Marente v. 

Asah, 486 S.W.3d 680, 691–92 (Tex. App.—Texarkana 2016, no pet.); Methodist 

Hosp. Levelland v. Kimbrell, 07-09-0104-CV, 2009 WL 3101315, at *1–2 (Tex. 

App.—Amarillo Sept. 29, 2009, no pet.); Christus Health Se. Tex. v. Broussard,

267 S.W.3d 531, 536 (Tex. App.—Beaumont 2008, no pet.). Aquatic therapy may 

fall under the umbrella of physical therapy, but as the facts of this case reveal, the

pool environment in which aquatic therapy takes place, presents unique safety

concerns not clearly associated with other forms of physical therapy. 

Nothing in Enderle’s report or curriculum vitae reveals how the roles she has 

had in physical therapy over the past twenty-five years convert to training, 

experience, or know-how for the safety concerns in the pool environment. In 

Savaseniorcare Admin. Services, L.L.C. v. Cantu, the court of appeals reversed the 

trial court’s order overruling objections to the qualifications of a physician board 

certified in internal medicine, pulmonary medicine, critical care medicine, and 

sleep medicine and who practiced in those fields of medicine at a clinic, who 

offered opinions that focused on the care and treatment the plaintiff received or 

should have received from a nursing and physical therapy staff. 04-14-00329-CV, 

2014 WL 5352093, 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 

care for a facility based on his professional activities and experiences, the crux of

the court’s holding was that it found nothing in the expert’s report or in his 
21

curriculum vitae that revealed how the expert became familiar with this standard of 

care. Id.; see also Renaissance Surgical Centers-S. Tex., L.L.P. v. Jimenez, 13-07-

121-CV, 2008 WL 3971096, at *7–8 (Tex. App.—Corpus Christi Aug. 28, 2008, 

no pet.) (finding that despite his history of employment in various administrative 

capacities at hospitals, expert was not qualified to render opinions about standards 

for discharging a patient or how to properly monitor a patient, or the standards 

applicable to a nurse or other employee who has discharged a patient that received 

an anesthetic when his resume provided no indication that he had experience 

developing or implementing such standards) (mem. op.). In the absence of any 

explanation of how the bare notation of “aquatic therapy” mentioned in

conjunction with an assortment of other physical-therapy modalities (or anything 

else in the report) establishes that Enderle has the relevant training and experience 

to provide opinions about the standard of care or breach in this case, Cooper fails

to demonstrate Enderle’s qualifications to provide standard-of- care and breach-ofstandard opinions. See id. 

Even if Enderle holds such knowledge, her report and curriculum vitae

failed to show it to the trial court at any point in the proceedings below. The trial 

court noted on the record that the “physical therapist doesn’t seem to have any

expertise in aquatic therapy.” Though the trial court seemed to acknowledge that 

Enderle’s opinions were not consistent with the statutory requirements, the trial 

court nonetheless admitted the report, without noting a “good reason” for doing so. 

See Tex. Civ. Prac. & Rem. 74.402(d) (stating that “[t]he court shall apply the 

criteria specified in Subsections (a), (b), and (c) in determining whether an expert 

is qualified to offer expert testimony on the issue of whether the defendant health 

care provider departed from accepted standards of health care but may depart from 

those criteria if, under the circumstances, the court determines that there is good 
22

reason to admit the expert’s testimony. The court shall state on the record the 

reason for admitting the testimony if the court departs from the criteria”).

In the absence of a qualified expert with a report addressing the essential 

liability components of Cooper’s health care liability claims, the trial court abused 

its discretion in failing to sustain Aquatic Care’s objections. Because the trial

court already had granted Cooper one thirty-day extension to supplement her

expert reports, the trial court had no discretion to overrule the objections; instead,

the law required the trial court to grant Aquatic Care’s motion to dismiss. We

therefore sustain Aquatic Care’s sole issue on appeal. 

III. CONCLUSION

Having found that Cooper’s claims fall within the scope of the Texas

Medical Liability Act and having found merit in Aquatic Care’s appellate 

challenge, we reverse the trial court’s order denying Aquatic Care’s motion to 

dismiss and remand this case to the trial court for rendition of judgment dismissing

Cooper’s claims against Aquatic Care. 

/s/ Kem Thompson Frost

Chief Justice

Panel consists of Chief Justice Frost and Justices Christopher and Bourliot 

(Bourliot, J. concurring without opinion).