Opinion issued April 30, 2013

In The

Court of Appeals 

For The 

First District of Texas 

————————————

NO. 01-11-00074-CV

———————————

GRETCHEN HUEPERS, INDIVIDUALLY, AND AS INDEPENDENT 

EXECUTRIX OF THE ESTATE OF JAMES HUEPERS, Appellants

V.

ST. LUKE’S EPISCOPAL HOSPITAL, Appellee

On Appeal from the 334th District Court

Harris County, Texas

Trial Court Case No. 2009-04057

MEMORANDUM OPINION

In this interlocutory appeal, Gretchen Huepers, individually, and as 

independent executrix of the estate of James Huepers (“Huepers”), argues that, 

having satisfied the requirements for an expert report in this medical negligence 
2

case,

1 the trial court’s dismissal of her claims against St. Luke’s Episcopal 

Hospital’s (“St. Luke’s”) was error. We agree and reverse and remand.

Background

James Huepers was admitted to St. Luke’s on August 15, 2007 for suspected 

upper gastrointestinal bleeding. After an examination by gastroenterologist Dr. 

Susana Escalante-Glorsky, an endoscopy was scheduled for the next day to 

confirm her impressions. That night, however, Mr. Huepers’ blood pressure 

dropped to dangerously low levels, prompting resident physician Dr. Antonious 

Attallah to order intravenous saline and a blood count determination. The next 

morning Huepers vomited blood, passed blood rectally, entered cardiac arrest, and 

displayed no pulse. He was revived, however, and the endoscopy performed later 

that day identified a large ulcer with a visibly bleeding vessel. Although the 

bleeding was stopped, Mr. Huepers never regained neurological function from his 

cardiac arrest and died August 19, 2007. 

Huepers sued St. Luke’s for wrongful death resulting from the negligent 

conduct of “its resident physician, employee, agent and representative,” Dr. 

Attallah. St. Luke’s was timely served an expert report and curriculum vitae of Dr. 

David Sales, who opined that the failure to diagnose or recognize Mr. Huepers’ 

hypotension as a life-threatening hemorrhage and immediately advise his attending 

 1 TEX. CIV. PRAC. & REM. CODE. ANN. § 74.351 (West 2011).
3

physician and/or gastroenterologist of that hypotension, deviated from the standard 

of care. Had the condition been recognized and the gastroenterologist notified, the 

report states, an emergency endoscopy could have been performed to stop the 

hemorrhaging that ultimately caused Mr. Huepers’ death. 

During discovery, St. Luke’s disclosed that Dr. Attallah was not a St. Luke’s 

employee, as recited in Huepers’ Original Petition, but an employee of Baylor 

College of Medicine (“Baylor”). So informed, Huepers amended the pleadings, 

dropped St. Luke’s as a party, and named Baylor as vicariously responsible for the 

conduct of Dr. Attallah.2

 Subsequent to being added as a defendant, Baylor filed a 

motion to designate St. Luke’s as a responsible third party, arguing that despite 

having been directed to monitor Huepers’ blood pressure and hemoglobin levels 

and report any decline below a certain point to Mr. Huepers’ physicians, Dr. 

Attallah included, the St. Luke’s nursing staff failed to do so.3

The August 4, 2010 deposition testimony of Baylor’s expert, Dr. Hamat, 

noted that monitoring Mr. Hueper’s test results and alerting the doctors if his 

hemoglobin fell below a certain level was the responsibility of the St. Luke’s 

nursing staff. Their failure to follow the directives of the patient’s chart and notify 

 2 Huepers served St. Luke’s with a notice of “nonsuit” on August 3, 2009. 

Although characterized as a “nonsuit,” it was a voluntary partial dismissal of 

claims. See C/S Solutions, Inc. v. Energy Maint. Servs. Grp. LLC, 274 S.W.3d 

299, 306–07 (Tex. App.—Houston [1st Dist.] 2008, no pet.).

3 The motion was granted.
4

the physicians of the change in his hemoglobin level breached the standard of care. 

Had it not been for the nursing staff’s breach, Dr. Hamat testified, Mr. Huepers 

would have likely survived. The following month, Huepers amended her petition 

to reflect her claim that St. Luke’s was vicariously liable for Mr. Huepers’ death 

due to the negligent conduct of its nursing staff and, on November 22, 2010, served 

St. Luke’s with three additional expert reports authored by Keith Fiman, M.D., Dr. 

Hamat, and Bonnie Juneau, Ph.D. in support of the nursing negligence claims. St. 

Luke’s objected to these reports as untimely (669 days after the original petition 

was filed) 4 and moved to dismiss with prejudice, arguing that the claim as to the 

nurses’ conduct was separate and distinct from the vicarious liability claim asserted 

against St. Luke’s in the original petition and, as such, required a timely expert 

report. 

St. Luke’s further argued that the report authored by Dr. Sales, although 

timely, was so deficient as to Huepers claim of nursing misconduct, it constituted 

“no report at all”. Huepers filed a response and, in the event the trial court found 

any portion of her report to be deficient, requested a thirty-day extension to cure 

such deficiencies under section 74.351(c). See TEX. CIV. PRAC. & REM. CODE

§ 74.351(c) (West 2011).

 4 See TEX. CIV. PRAC. & REM. CODE § 74.351(a) (requiring health care liability 

plaintiffs serve expert reports within 120 days of date first petition naming 

defendant filed).
5

The trial court granted St. Luke’s motion, dismissed Huepers claims with 

prejudice, and this interlocutory appeal followed.

Jurisdiction

St. Luke’s challenges our jurisdiction to consider this interlocutory appeal, 

characterizing it as an appeal not from the grant of a motion seeking relief pursuant 

to section 74.351(l), but, rather, the grant of a motion to dismiss pursuant to 

74.351(b), from which interlocutory order there is no appeal. See TEX. CIV. PRAC.

& REM. CODE § 74.351(b), (l) (West 2011).

Huepers maintains this to be an interlocutory appeal filed pursuant to section 

51.014(a)(10) of the Texas Civil Practice and Remedies Code,5 which permits 

interlocutory appeal from the grant of a defendant’s motion challenging an expert 

report’s sufficiency if, after hearing, it appears to the trial court that the report 

“does not represent an objective good faith effort to comply with the definition of 

an expert report in Subsection (r)(6).” TEX. CIV. PRAC. & REM. CODE ANN. 

§ 74.351(l). 

Standard of Review

We review a challenge to our jurisdiction de novo. IFS Sec. Grp., Inc. v. 

Am. Equity Ins. Co., 175 S.W.3d 560, 562 (Tex. App.—Dallas 2005, no pet.); cf. 

Mayhew v. Town of Sunnyvale, 964 S.W.2d 922, 928 (Tex. 1998) (explaining that 

 5 See TEX. CIV. PRAC. & REM. CODE ANN. § 51.014(a)(10) (West Supp. 2012).
6

standard of review for appellate jurisdiction under ripeness doctrine is de novo). 

We must dismiss the appeal “[i]f the record does not affirmatively demonstrate 

[our] jurisdiction.” IFS Sec. Grp., 175 S.W.3d at 562.

Applicable Law

In the absence of the entry of a final and appealable order by the trial court,

our jurisdiction to consider an interlocutory appeal is limited to those specifically 

authorized by statute. Morris v. Umberson, 312 S.W.3d 763, 765 (Tex. App.—

Houston [1st Dist.] 2009, no pet.) (citing Stary v. DeBord, 967 S.W.2d 352, 352–

53 (Tex. 1998)). Appeal of interlocutory rulings on the expert reports required by 

Chapter 74 can proceed under two scenarios—only one of which is applicable 

here: when the trial court grants relief sought by a motion under section 74.351(l). 6

TEX. CIV. PRAC. & REM. CODE ANN. § 51.014(a)(10). Section 74.351(l) requires a 

trial court to grant a defendant’s motion challenging the report’s sufficiency if, 

after hearing, it appears to the court that the report “does not represent an objective 

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

(r)(6).” TEX. CIV. PRAC. & REM. CODE ANN. § 74.351(l). 

 6 Section 51.014(a)(9) of the Civil Practice and Remedies permits interlocutory 

appeals when a trial court denies all or part of the relief sought by a motion under 

section 74.351(b). TEX. CIV. PRAC. & REM. CODE § 51.014(a)(9) (West Supp. 

2012). The order here, however, was a grant of relief and section 51.014(a)(9) 

does not apply.
7

Analysis

Our determination of the jurisdiction issue is premised upon the nature of the 

relief sought from the trial court by St. Luke’s motion to dismiss, and is guided not 

merely by the motion’s title, but its substance. Castro v. Shell Oil Co., No. 01-10-

00609-CV, 2011 WL 1234382, at *1 (Tex. App.—Houston [1st Dist.] March 31, 

2011, no pet.) (mem. op.) (citing Surgitek, Bristol–Myers Corp. v. Abel, 997 

S.W.2d 598, 601 (Tex. 1999)). St. Luke’s motion to dismiss argues that no timely 

expert report was filed with respect to Huepers’ vicarious liability claim for 

nursing negligence since Fiman’s, Hamat’s, and Juneau’s reports addressing the 

nursing negligence claim were served 669 days after the original petition was filed. 

See TEX. CIV. PRAC. & REM. CODE ANN. § 74.351(a) (West 2011). As to Dr. Sales’ 

report, although timely served, because it failed to address the conduct of the 

nurses, St. Luke’s argues it to have been so deficient as to constitute “no report at 

all” on the nursing negligence claim.7 Because the substance of St. Luke’s motion 

to dismiss challenged both the timeliness of the Fiman, Hamat and Juneau reports,

as well as the sufficiency of Sales report, we conclude that the trial court’s order 

granted the relief sought by the motion under section 74.351(l). See TEX. CIV.

 7 Although objections to the sufficiency of a report must be lodged with 21 days or 

are waived, see TEX. CIV. PRAC. & REM. CODE ANN. § 74.351(a), St. Luke’s 

motion complaining of Dr. Sales’ report challenges the sufficiency of his report 

and thus seeks relief pursuant to section 74.351(l). See TEX. CIV. PRAC. & REM.

CODE ANN. § 51.014(a)(10).
8

PRAC. & REM. CODE ANN. § 74.351(l) (challenge to sufficiency of expert report). 

As such, our consideration of Huepers’ appeal is pursuant to the statutory 

jurisdictional grant. See TEX. CIV. PRAC. & REM. CODE ANN. § 51.014(a)(10).

WAS THE GRANT OF ST. LUKE’S MOTION TO DISMISS ERROR?

Huepers’ sole issue contends that the trial court erred in granting St. Luke’s 

motion to dismiss since the requirements of section 74.351 were satisfied when Dr. 

Sales’ report was timely served because the allegations of nursing negligence are 

within the same cause of action to which Dr. Sales’ report speaks. 

Standard of Review

We review the trial court’s ruling regarding expert reports for abuse of 

discretion. Walker v. Gutierrez, 111 S.W.3d 56, 62 (Tex. 2003); 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 in an arbitrary or unreasonable manner without 

reference to any guiding rules or principles. See Walker, 111 S.W.3d at 62. A trial 

court does not abuse its discretion merely because it decides a discretionary matter 

differently than an appellate court would in a similar circumstance. Maxwell v. 

Seifert, 237 S.W.3d 423, 426 (Tex. App.—Houston [14th Dist.] 2007, pet. denied) 

(citing Downer v. Aquamarine Operators, Inc., 701 S.W.2d 238, 241–42 (Tex. 

1985)). However, if resolution of the issue requires statutory construction we 

apply a de novo standard of review. HCBeck, Ltd. v. Rice, 284 S.W.3d 349, 352 
9

(Tex. 2009); Stoud v. Grubb, 328 S.W.3d 561, 563 (Tex. App.—Houston [1st

Dist.] 2010, no pet.).

Applicable Law

Medical-malpractice plaintiffs must serve each defendant physician and 

health care provider with an expert report or voluntarily nonsuit the action. TEX.

CIV. PRAC. & REM. CODE ANN. § 74.351(a). If a claimant timely furnishes an 

expert report, a defendant may file a motion challenging the report’s adequacy. Id.

The trial court shall grant the motion only if, after a hearing, it appears that the 

report does not represent a good faith effort to comply with the statutory definition 

of an expert report. See id. § 74.351(l). “‘Expert report’ means 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 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); Jelinek v. Casas, 

328 S.W.3d 526, 540 (Tex. 2010) (“[T]he plaintiff need not marshal all of his 

proof in the [expert] report, but he must include sufficient detail to allow the trial 

court to determine if the claim has merit.”); Palacios, 46 S.W.3d at 877–78 (expert 

report must include expert’s opinions on three statutory elements—standard of 

care, breach, and causation); Gray v. CHCA Bayshore, L.P., 189 S.W.3d 855, 859 
10

(Tex. App.—Houston [1st Dist.] 2006, no pet.). “If an expert report has not been 

served . . . because elements of the report are found deficient, the court may grant 

one 30–day extension to the claimant in order to cure the deficiency.” TEX. CIV.

PRAC. & REM. CODE ANN. § 74.351(c).

The Texas Supreme Court recently affirmed our opinion in Certified EMS, 

Inc. v. Potts, albeit on different grounds. Certified EMS, Inc. v. Potts, 355 S.W.3d 

683, 691 (Tex. App.—Houston [1st Dist.] 2011), aff’d on other grounds, 392 

S.W.3d 625 (Tex. 2013) (Potts I). In that case, we held that if a medicalmalpractice claimant served a timely expert report that adequately addressed at 

least one theory of a defendant health care provider’s liability, that claimant could 

proceed with the entire cause of action against that defendant, including any 

particular liability theories not addressed by the initial expert report, as long as 

those liability theories were contained within the same cause of action (i.e., arose 

out of the same set of operative facts). See Potts I, 355 S.W.3d at 691. Noting that 

“[t]he focus on operative facts raises more questions than it answers,” the Supreme 

Court declined to follow this approach and held instead that a medical-malpractice 

claimant can proceed with its case against a defendant so long as it timely files an 

expert report that adequately addresses at least one pleaded theory of liability 

asserted against that defendant—period. See Certified EMS, Inc. v. Potts, 392 

S.W.3d 625, 630, 632 (Tex. 2013) (Potts II). After discussing the gate-keeping
11

function served by section 74.351 and important policy considerations, the Court 

concluded its approach was consistent with the legislative intent behind chapter 74. 

Id. at 631 (“[i]f a health care liability claim contains at least one viable liability 

theory, as evidenced by an expert report meeting the statutory requirements, the 

claim cannot be frivolous. The Legislature’s goal was to deter baseless claims, not 

to block earnest ones;” noting that if chapter 74 was interpreted to require 

claimants to serve new report each time new theory of liability was discovered, as 

Certified EMS argued, this would “effectively eliminat[e] a claimant’s ability to 

add newly discovered theories,” and there was no indication legislature intended 

such a result). The Court held that an expert report that “adequately addresses at 

least one pleaded liability theory satisfies the statutory requirements, and the trial 

court must not dismiss in such a case.” Id. at 632.

Analysis

Huepers’ service of an expert report and curriculum vitae of 

gastroenterologist Dr. David Sales upon defendant St. Luke’s within 120 days of 

filing her original petition complied with the statute. Critical of Dr. Attallah’s, 

failure to, inter alia, recognize Mr. Huepers’ life threatening condition and notify 

his physicians, Dr. Sales’ report mistakenly described Dr. Attallah as employed by 

St. Luke’s. Lodging no objection to the sufficiency of the report with 21 days as 

required, St. Luke’s waived any challenges to the adequacy of the report. 
12

When subsequently discovered that Dr. Attallah was an employee of Baylor, 

Baylor was named as a defendant and St. Luke’s dropped as a defendant and added 

as a responsible third party. Thereafter, further discovery established that St. 

Luke’s nursing staff was also responsible for monitoring Mr. Huepers’ test results 

and informing his physicians of declines of his hemoglobin or blood pressure, 

Huepers amended her pleading to add St. Luke’s as a defendant for its vicariously 

liability for Mr. Huepers death based upon the negligent conduct of its nursing 

staff. 

Huepers maintains that because Dr. Sales’ previous expert report detailed at 

least one viable theory of liability against St. Luke’s, the vicarious liability claim 

for nursing negligence set out in her amended petition required no additional 

expert report detailing the additional claim.

8

 

St. Luke’s argued to the trial court that Huepers’ nursing negligence 

argument was a new “health care liability claim” that required her to file a new 

expert report; the trial court agreed. Neither St. Luke’s nor the trial court, 

however, had the benefit of the opinions in Potts I and Potts II.

As the Supreme Court acknowledged in that case, “[i]t may be difficult or 

impossible for a claimant to know every viable liability theory within 120 days of 

filing suit, and the Act reflects this reality.” Potts II, 392 S.W.3d at 632. The 

 8 St. Luke’s appellate briefing focuses on the jurisdictional issue and does not 

address Huepers’ argument with respect to this issue.
13

Court further stated that chapter 74 only requires “the expert report to summarize 

the expert’s opinions ‘as of the date of the report,’ and thus, the statute recognizes 

that those “opinions are subject to further refinement.” Id. (citing TEX. CIV. PRAC.

& REM. CODE ANN. § 74.351(r)(6)). Moreover, “[d]iscovery can reveal facts 

supporting additional liability theories, and the [chapter 74] does not prohibit a 

claimant from amending her petition accordingly.” Id.

Such is the case here. Initially understanding that the St. Luke’s employee 

responsible for monitoring Mr. Huepers’ test results was Dr. Attalla, a timely 

expert report was served that addressed this theory of vicarious liability. St. 

Luke’s did not timely object to the sufficiency of the report, and, thus, it waived 

any challenge to the adequacy of the report. No further report was required when 

her petition was amended to add a new theory of vicarious liability against St. 

Luke’s based upon nursing negligence and the trial court erred in granting St. 

Luke’s motion to dismiss. Id.

Conclusion

We reverse and remand for further proceedings.

Jim Sharp

Justice 

Panel consists of Justices Jennings, Sharp, and Brown.