## In the Court of Appeals Sec ond Appellate Dist rict of Texas at Fort Worth

___________________________ No. 02

- 20

- 00262

- CV

___________________________

On Appeal from the 271st District Court Jack County, Texas Trial Court No. 19

- 10

- 120

Before Birdwell, Bassel, and Womack, JJ. Memorandum Opinion by Justice Bassel 

### J ACKSBORO 

### N URSING 

### O PERATIONS 

### , LLC
, Appellant

V



### .

N ADINE 

### N ORMAN 

### , I NDIVIDU ALLY 

### ; AS THE 

### R EPRESENTATIVE OF THE 

### E STATE OF 

### A SHLEY 

### N ORMAN 

### , D ECEASE D 

### ; AS 

### N EXT 

### F RIEND OF 

### E.N.
AND 

### J.L., M INORS 

### ; AND ON 

### B EHALF OF ALL 

### W RONGFUL 

### D EATH 

### B ENEFICIARIES 

### , Appellee2 MEMORANDUM OPINION

I. Intr oduction

T hi s i s an appeal f rom th e trial court ’s denial of a motion to dism iss a health

care liability claim brought by Appellee Nadine Norma n , i ndividually ; as the

re presentative of the estate of Ashley Norman, d ece ased ; a s next friend o f E.N. and

J.L.
, m inors ; and on behal f of all wrongful

- deat h bene ficiaries ( collectively Plai ntiff)

. Appellant Ja c ksboro Nurs ing Operations, LLC d/b/a Faith Community Nursing &
Rehabilitation (F C N R) raises five is sues

— all based on the contention tha t Plaintiff ’ s

failure t o fi le an ex per t report meet ing the requ irement s of the Texas Medi cal L i ab ility

Act (MLA) require s dismissal o f the claim

. W e rej ect F C N R ’s contention tha t the

expert authoring the report was unqual ified to do so. W e also rej ect FCNR ’ s

contentions (1) tha t the claim should be dismi ssed because the expert f ailed to state

that t here was a causal link betw een the injury h e claimed that F C N R caused and the

patient’s death and (2) that the report failed to support a theory that F C N R was

vicariously liab le for the act ions of its employees

. An expert report need n ot
substantiate every theor y of lia bility that underlies a health care c laim, and at t his

point, it is prema ture to hold tha t def iciencies in the report might warrant dismissal of

the c laim. We do
, however
, h old t hat the expert ’s report is d eficient in on e regard : it

f

ails to ade q uately stat e what actions F C N R should have taken that would have

avo i ded a b reach of the standard of care it owed directly to Ashley

. The remedy for

this deficiency is not dismissal of t he claim . Inste ad, we rever se the trial court ’ s order3 denying FCNR ’ s motion to dismiss a n d remand this cas e to the trial court to

determine whether a thirty

- day extension should be granted to correct the deficiency

.

II. Factual a nd P rocedural B ackg round

Plaintiff file d suit again st two Doe D efendants and FCNR. 1 Without
distinguishing whether the reference to “ D efendants” is to the Doe Defendants,

FCNR, or both, t he “ Facts ” alleged in the peti t io n are as follows :

This lawsuit arises from the negli gent care Ashley Norma n rece ived as a patient of Defendants. On or about Oc tober 15, 2018, Ashley Norman was admitted into Defendants’ facil ity. It was Defendants’ duty to provide Ashley with a level of reasonabl e c are and to protect her by providin g a s afe environment. Inst ead, t he care provided by Defe ndants fell far below an y acceptable standard of care, and Ashley, a beloved mother and dau ghter, suffered severe personal injuries due to the lack of care provide d b y Defendants. Defendants’ treatm ent o f Ms. Norman

was conti nuousl y tortiou s and resulted i n her tragic and untime ly death.

The petition continues that the Doe Defendants alleged ly raped Ashle y while she was

a patient at F C N R. Based on t his act
, Plaintiff ’ s peti tion alleged caus es of action

against all the D efend ants for s exual assault
, f alse i mp risonme nt , a ssault a nd battery,

offensive physical contact, intention al infliction of emotional distress , and gross
negligence. Ag ainst F C N R
, the p etition alleged cause s of a ction for negligence,

neglig ent hiring, neglige n t training, negligent su pervi sion
, and negligent retention

.

The p etition sought survival dam ages , which included Ashley ’ s past physical pain and
suffering and mental angu ish. Plaintiff, on h er own behal f and on behalf of the

1 The Doe D efendants are not parties to th is ap peal
, a nd we assume that they remain defendants in the trial court.4 minors for whom she acted as next fri en d, sought va rious fo rms of wrongful

- death

damages
, such as pecuniary loss, l oss of con sortium
, and mental anguish.

The parties entered into a Rule 1 1 a greement extendi ng th e time for Plaintiff to

prov i de an expert repo rt pursuant to T e xas C ivil Prac tice and Remedies Co de S ection

74.351

. Plaintiff timely served an e xpert re port authored by Dr. David A. Smith and

Dr. S m ith ’ s cur riculum vi tae (CV)

.

I n the d iscussion that follows , w e w ill detail the provisions of Dr. Smith ’ s

report a nd his purp or t ed qualifications to author an expert report

. B ut , in summary , the report claims that Ashley was thirty years o f age and suffered from Mu ltip le

Sclerosis. At the time she was a patient at F C N R
, she provided a urin e sample that

tested neg at ive f or any sex ually transmitted disease. A test administer ed

approximately one month after Ashle y ’ s admission and after she had been tr ansferred

to anot her facility and then transf erred back t o F C N R stated tha t she had contracted

trichomonas

. Dr. Smith d es cribed trich omonas as a sexually transmitted disease

.

Dr. Smith r eported t hat notations in Ash ley ’ s medical record s that h e rev iewed

indi cated “ that the tr ichomonas was though t to be due to sexual contact that [had]

occurred at FCNR. ”

Dr. Smith ’ s r eport asserted tha t both Ashley ’ s medical records that he reviewed

an d A shley ’ s statement to her mother (Plaintiff) show ed th at Ashley h a d been sexually

assaulted while she was a patient at FCNR. The r eport outlined the standard of care

that Dr. Smith opine d was due a p ati ent such as Ashley. The r ep ort also generally5 outlined what Dr. Smith vie we d as nu merous br eache s of the sta ndard of care by the

Doe D efend ants who assault e d Ashley and breaches by FC NR ’ s failure to investig ate
Ashley’s outcries, to keep her safe, and to supervise its employees.

F C N R filed objections to Dr. Smit h ’ s r eport that challenged his qu ali fication s
to opine on the st andard of care due Ashley and the alleg ed breaches of the standard

of care by F C N R. F C N R also objected tha t the report failed to ade quately addre ss

causation a n d injury and was conc lusor y in its description of how F C N R had

breached t he st andard of care

. The trial c ourt overruled F C N R ’ s obj ec tions. When

F C N R filed a notice of appeal from the order denying its objection s, we sent the

p arties a l etter question ing whe ther an order denying objections made to an expert
report but not overruling a motion to dismi s s was an appealabl e int erloc utory order

.

F C N R then re newed the process of challenging D r . Sm ith ’ s report in the trial

court by fi ling a new pleading titled “ Defendant’ s Motion to Dismiss Under Section

74.351. ” This m otion incorporated t he prior pleadings that had been filed at the time

that F C N R made its original objections. Pl aintiff filed a resp on se and an ame n ded

r es ponse to th e motion to di s miss. The trial court denied the motion to dismis s

.6 III. Anal y sis

A. We set forth t he expert

- report re quirement that applies to a health

care liability claimant , th e substance that a n expert r eport mu st

co nt ain , and the standard and scope of review that we apply to determine a n expert report ’s sufficiency

.

“ C h a p t e r 7 4 o f t he Civil Practice and R emedies Code, also known as the

[ M LA ] , requires health care liability c laimants t o serve an expert report up on e ach

defendant not later than 120 da ys after that defendant ’ s answer is filed. ” Abshire v.

Christus Health Se. Tex.
, 563 S.W.3d 219, 223 (Tex. 2018) (citing Tex. C i v. Prac. &

Rem. Code Ann. § 74.351( a ) )

. The re po r t requirement functions “ to w eed out

frivolous malpractice claims in the earl y stages of litigation, not to dispose of

potentially meritorious cla ims. ” Id

.

The MLA requires a n expert report to

p rovide [ ] a fair summary of the expert ’ s opinions as of the date of the report regardi ng a pplicable standards of care [;] the manner in whic h the care rendered by the

. . . healt h care provider failed to meet the standards [;] and the causal rel ationship b etween that fai lure and the injury, harm, or damage s claimed.

T e x. Civ. Prac. & R em. Co de A nn. § 74. 351(r)(6).

The test a pplied by the trial c o u rt in determi ning the sufficien cy of the report is

one o f objecti ve good faith. Id. § 74.351( l ) ( “ A court shall grant a motion challenging

the adequacy o f an ex pert report only if it appears to the cou rt, after hearing, that the

rep ort does not repres ent an objective good [

- ] faith effort to com p ly with the

definition of an expert report in Subsection (r )(6). ” )

. The T e xas Supreme C ourt h as7 held that a good

- faith e ff ort occurs when a report “ (1) inf orm [s] t he defend ant of the

specific co nduct cal l e d into question and (2) provid[es] a basis fo r the tr ial court to

conclude the claims have merit. ” Abshire 5 63 S.W.3d at 223 (quoting B aty v. Futrell
, 543 S.W.3d 689, 693

– 9 4 (Tex. 2018) )

.

Va rious general prin cip les guide the d etermination of wh ether a n expert r eport

is sufficient

. “ A report ‘ need not marshal all the claimant ’ s proof, ’ but ‘ a report that

merely states the expert ’ s conclusions a bout the standard of care, br each, and

causation ’ is insu fficient. ” I d

. (quoting Am. Transit ional Care Ctrs. of Tex. v. Palacios , 46

S.W.3d 8 7 3, 877 (Tex. 2 001) )

. Nor does a report have to meet the s tan dard s of

summary

- judgment evidence. Miller v . JSC Lake Highl ands Operations , 536 S.W.3d 510,

51 7 (Tex. 2017) ( “ We rem a in mindful that an ‘ adequate ’ expert report ‘ does not have

to meet the same requireme n t s as the ev idence offered in a summary

- judgment

pro ceeding or at trial. ’ ” (q uoting Scoresby v. Santillan , 346 S.W.3d 546, 556 n.60 (Tex.

20 11) ) ). Also, a n exper t repor t ne ed not convince th e reader tha t i ts conclusions ar e

believable and reasonable

. See Abshire
, 5 63 S.W.3d at 22 6 ( stating that at the

“ preliminary [ expert

- report] stage, whether th [ e] stand ards [referenced in the report ]

a ppea r reasonable is not re levant to t he analysis of whether the expert ’ s opinion

const itutes a good

- faith effo rt ” ( quoting Miller , 536 S.W.3d at 516

– 17 ) )

.

T h e following statu tory provisions guide the det ermination of wh ether the

expert making the report is qualified a n d w hether the report a dequately describes the
applicable standard of car e and explains causation :8 • The M LA provides specific criteria to determine if the expe r t making a

report is qualified

. “ ‘ Expert ’ means [] w i th respect to a person giving

opinion t estim ony regard in g whether a health care provider departed

fr om accepted stand a rds of health care, an expert qualified to testif y

u nder the requirements of Section 7 4.402.” Tex. C iv . Prac. & Rem.

Code Ann. § 74.351 (r) (5 )(B ). In turn
, S ection 74.402 provi des that

[i] n a s uit invo lving a health care liability claim against a health c are provider, a person may qualify as an expert witness o n the issue of whether the healt h care provider de parted from accepted standards of ca re only if the person:
(1) is p racticing h ealth ca re in a field of practice that involves the same type of care or treatment as that delivered by the defenda nt health care provider, if the defendan t health care pr ov ider is an individual, at the tim e the testimony is given or was pra cticing tha t type of he alth car e at the time the claim arose;

(2) has knowledge o f a ccepted standards of care for health car e provide rs for the diagnosis, care, or

t r e atment of the i llness, injury, or condition invo lve d in the claim; and

(3) is qual ifi ed on th e basis of traini ng or ex perience

to offer an expert opinion regarding t hose ac cepted standards of health care.9 Id

. § 74. 402(b )

. 2 In m a king t he determination of whether an expert is
qualified on the basis of trai ni ng or experi ence , the trial court con siders

whether the w itness

( 1) is certified by a licen sing agenc y of one or more s tates of the United State s or a national prof essional cer t i fying agency, or has other substantial training or e xperience, in the area of hea lth care releva nt to the claim; a nd

(2) is activel y practic ing health care in rendering health c are services relev ant to the claim.

I

d. § 74.402( c )

.

The expert ’ s qualifications mus t appear in the report or in the CV

and ca nnot be i nferred. S ee S avaseniorcare Admin

. Serv s

. , L.L.C. v. Cantu
,

No. 04

- 14

- 003 29

- CV, 2014 WL 5352093, at *2 (Tex. App.

— San

Antonio Oct. 22, 2014, no p et.) (mem. op.).

• “ To a dequately identify the st andard of care, an expert report must set

forth ‘ speci fic informati on about what the defendant should h ave done

differentl y. ’ ” Ab shire
, 563 S.W.3d at 22 6 (quoti ng Palacios , 46 S.W. 3 d at

880 )

. “ Whil e the Act r equires onl y a ‘ fair s ummary ’ of the standard o f

care and how it was breached, ‘ even a fair summ ary m ust set out what
care was expected [] but not give n. ’ ” Id

.

2 Su bs ect ion ( 1 ) o f S ec tion 74.402(b) applie s only if the provide r is an in div idual

. See Premieant Inc. v. Snowden ex rel. Snow d

en , No. 04

- 19

- 00238

- CV, 2020 WL 1159055, at

* 3 n.4 ( Tex . App

. — S an Anto nio Mar. 11, 2020, no p et.) (mem. op.)

.10 • O n the iss ue of causatio n, the r eport must “ e xplain ‘ how an d why ’ th e
alleged neglige n ce caused t he injur y in questio n

. ” Id. at 224. Conclusory

descriptions of causation are no t ade quate; “ the expert mus t explain the

basis of his statements a nd link conclusi on s to specific facts. ” Id

. But

“ [i] n satis fying th [ e] ‘ how a nd why ’ r e quiremen t , the exper t need not

pr ove the entir e case or account for every known fact; the repor t is

sufficient if it makes ‘ a good

- faith effort to explain, factu ally, h ow
proximate ca us e is going to be proven. ’ ” Id

. (quoting Co lumbia Va lley

Healthcare S y s ., L.P

. v . Zamarripa
, 526 S.W.3d 453, 46 0 (Tex . 2017) ).

Further, “ [t ] he sufficiency of the exp ert r eport ’ s causation stateme nt

should be viewed in the context o f the e ntire report. ” C olumbia Med. Ctr.

of Arlington Subsidiary L.P. v. L. M. , No. 02

- 17

- 001 4 7

- CV, 201 8 WL

1095746, at * 7 (Tex. App.

— Fort Wo rth Mar. 1, 2018, no pet. ) (mem.

op.)

. Finally, “ the detail needed to establis h a causal link generally is

proport ional t o the complexi ty of the negligent act giving rise to the

claim. ” Id

. In other wor d s, a “ cau sat i on opin ion is not conclu sory
simply be cause it is not complex. ” Id

.

W e apply an abuse

- of

- di scretion standard to te st the trial court’s decision to

gra nt or deny a motion to d ismiss that challenges the adequacy of an expert repo rt

.

Abshire , 563 S.W.3d at 2 2 3

. The scope of our revie w is limited to “the information

contained with in the four corners o f the report.” Id

.11 B. Dr. Smith’s report adequately states hi s qualification s .

I n its fourth issue, F C N R claims that Dr. Smith is not q ualified to author an

e x pert r eport on the standa r d of car e that F C N R ow ed A shley. Th oug h Dr. Smith is

a licensed physici an , F C N R contends t ha t his r eport and his CV fa il to sh ow with in

thei r four cor ners that he is familiar with the standard of care for a skilled nursing

facil i ty

. T he cr ux of the argu ment i s as follows :
In other words, it is familiarity with the care expected of the par ti cular health ca re provider

— not familiar ity with how the exp ert would ca re for a similar patient in [ his] field

— which d etermines whether that e xpert is qualified. Dr. Smith did not est a bli sh that he is fa milia r with the standard o f care of a skilled nursi ng facil ity in t he context of this case. While he is a phys icia n with exp erience treating patients such as Ms. Norman, he has not shown withi n the four corners of his report or [his] [CV] that he has expe rience or expertise w ith policies or procedure s for

se curity at a skilled nursi ng facility and inde ed [] admitted that he had not even reviewed [ FCNR] ’s polici es and procedures. D r. Smith provi ded

no qualifi cation to opine on [ FCNR ] ’ s standard of care or alleged breach reg arding negligent hiring, re tentio n, sup ervision or vicarious l iability. [Footnote om itted.]

F C N R ’ s a rgument simply turns a blind e ye to the qu alifications t hat Dr . Smith

lis ted in his report . H is report establishes his qualifications to opine not only on the

stan da rd of care for a physician treating a p atient such as Ashley b ut also on the

standard of care for a health care provid er such as FCNR.

Un der the tit le “P rof ession al Activitie s,” Dr. Smith’s report state s , I am David A. Smith MD, CMD, a geriatrici an in privat e prac tice in Brownwood [ ,] TX. For many years I practic ed family medicine as an academic physician with special re sponsibilitie s in th e areas of geriat rics, lo ng [

- ] term care [,] and psychiatry. I am a Certif ied Medical Director (in Long [

- ] Term Care). At a ll relevant times I have b een licen sed to practice12 medicin e in the [S] tate of Texas. I have been board certified by the Am erican Boar d of Family Practice

. I previously held the Certificate of Added Qualifications in Geriatrics. Since 1999 [,] my practice is as a consulti ng geriat rician fo r community [

- ] dwelling el ders, attending physici an for long [

- ] term care residents [,] and as a Medica l Director for

s evera l n ursing homes.

In addition to my medical practice, as my [CV] reflects, I have been a Professor of F amily & C om mu nity Medi cine at Texas A&M Unive rsity. Prior to Texas A&M, I was a Professor with tenure t eaching Family Me d icine and Psyc hiatr y at the Univer sity of South Dakota School of Medicine.

I am current ly an Associate Editor for the Journal of Amer ican Medi cal Directors Association. I was th e Managing Editor of the Annu al of Nursing Home Medicine an d was on the Edit ori al Board for the J ournal of Long [

- ] Term Care Administration.

Since 1981 [,] I have been a me mber of the American Medical Directors Associa tion (n o w AM D A: Th [e] Society for Post

- Acute and Long [

- ] Term Care). I am al so a member of the Am erican Geriatrics Society, the Texas M edic al Associa tion, and the Texas Medical Directors Association.

I have worke d in numerous healthcare and rehabilitation ce nte rs, inclu ding as the medical dir ector []

. This includes prior experienc e as a regional medi cal director for a hospice organiz ati o n [,] and [] the refore, I have experience in estimating life expectancy.

I have also been an integral part of many committees as m or e ful ly ou tlined in my CV. I have received the Faye Smith Award for Exc ellence in Fami ly Practice, been honored as a Pionee r i n Develo pmen t of Certification of Medical Directors of Nursing Homes, the Pattee A ward for Excellence in Education [, ] and AMD A : [ ] The Society for Post [

- ] Acute and Long [

- ] Term Care ’ s Distinguished Service Award []

. I ha ve been honored by

. . . Adult Prote c tive Service [ s]

r eflectin g a long and continuing history as a consultant to that [s] tate agency.

Sin ce 1984 [,] I have spent a l arge a mount of time st udying and
g aining knowledge in my respective areas of practice and e xper tise and13 ha ve been published in n umerous refer eed medica l journ als and several medical textbooks, many of which are focused on areas rela ted to nursing and rehab ilitat ion, cognitive a nd psychia tr ic conditions, as well as ethical and legal issues. Furt hermo re, I have done presentations o n these topics at over 11 5 profe ssional meetings since 1992. The presentations have included topics such a s nursing home residen t [s ’ ] rights, abuse, physi cian a ccount ability, psychiatry in nursing homes, nursing [

- ] facil ity litiga tion and liability, and cr e ating a cultu re of safety in long [

- ] te rm care.
Later in his report, Dr. Smith specifically st a tes that he is f amilia r with the s tandard of

c ar e due Ashl ey in a nursing faci lity that provides the typ e of care th at Ashley

received :

I a m very familiar with the relevant c ondit ions experienced by Ashley Norman, to include her sexual assault, multiple sclerosis (MS )
, and

t richomonas. More importa n tly, I have dedicated my life to treating people like Ashle y Norman and am we ll aware of the s ta ndard of care requi red of physici ans, n urses, and nursing facilities that provide treatment to patients with such conditions. F urther , I am very familiar and e xperienced i n reading and interpreting data related to a ur inalysis.

In additi on to being wel l acquainted with the medical condi tions

s uffered by Ashley Norman, I also know the outcomes that can reasonably be expected in pa tients with such a condition tha t receive

ca re at nursing and rehabilitation centers. I am also well awar e of t he expected ou tc omes and standard o f care for pat ients in nursing and rehabilitation centers in general, regardless of any particul ar condition. Thes e subjects a re an inextric ab le part of m y clinical practice and my academic activitie s.
It is my un derstand ing that the standard of care is the same acros s the co untry for physicians, nurses, and facilities holding themselves out as qua lified to tr eat or otherwise p rovide medical c are to patie nts like Ashley Norman.

The par agraphs quoted above show Dr. Sm i th’ s qualificat ions not only a s a
ph ysician but al so a s an administrator of health care provider s like FCNR a n d reveal14 that he is a Certif ied Medical Dire c tor. In deed, he indic ates th at he is the editor of the

journal of t he American Medical Directo rs Associ ation. The quoted paragraphs sho w

much broader experience than merely being a phy sician who treat s patients in facilities

simil ar to F C N R. But even w ithou t th is broader exper i e nce , Dr. Smith notes that his

medical prac tice involve s the long

- term care of patients

.

D ealing with an argume nt similar to the one raised b y F C N R challenging

Dr. Smith ’ s qualifications , t he Austin Co urt of Ap pe als appl ied t h e standard s of the

M LA to determine whether a p hysician w as qualified t o opine abou t the standard of

care owed by a nurs ing home to a dementi a patien t who was sexually assaulted. See

Gracy Woods I Nurs ing Home v. Mahan
, 520 S.W. 3d 17 1 (Tex. Ap p.

— Aust in 2017, no

pe t .). Mah a n con cluded tha t the physician in question had the n ecessary qualifica tions

to make an expert report on the nu rsing home ’ s standard of c are

. Id. at 181, 186

. Summarizing the stand ards of t he MLA, Mahan posed the f ollowing test to determine

wheth er a physician who authored an expert repo rt on t he nursing h ome ’ s standard of

care was qualifie d :
This case, at its c ore, concerns the standa rds of care applicabl e to nursing homes in order to protect patients from harming each oth er. T hus
, [the physicia n ’ s ] report and CV must articulate a factua l basis that suffi ciently demonstrates (1) his “knowl edge of [the] accepted stan dards of care” appli ca ble to nursing home s, and (2) his qualificatio ns “on the basis of training or e xperienc e to o ffe r an expert opi nion regarding [these] accepted standards,” e.g. , his relevan t licensing certifications, his “ot her substantia l trainin g or experie nce,” and hi s “actively practicin g health care in rendering health care services relevant to the clai m.”15 I

d. at 183

– 8 4 (quot ing Tex. Civ. Prac. & Rem. Code Ann. § 74.40 2(b) (2)
, (b) (3), (c) (1)
, (c) (2) ) (footnotes omitte d )

. T he Aust i n C ourt of Appeals co nc lu ded that the

physici an was qualified to o pine on a nursing home ’ s st andard of care

. Id. at 181, 186

.

The court looked t o such experi ence and training as the doctor ’ s certification in
geriatric medic i ne, his tr eatmen t of patients in long

- term care , his experience as a
prof esso r of geriatrics and as a c onsultant for gover nment agencies re gardi ng nursin g
home opera tions
, and his lecture s on releva nt topics. Id . at 185

– 8 6.

Here, Dr. Sm it h ’ s report an d CV show tha t he has train ing an d e xperience

beyond wha t the Austin C ourt of Appe als determined was necessary to be qualified as

a physic ian to o ffer an op i nion on a nursing ho m e ’ s standard of care. Dr. S mith is

not only a ph ysician who had trea ted patient s i n a long

- term ca r e setting , but he also

had actuall y been e mploye d a s an administrator of those type o f facilities and wrote

a nd lectur ed on the administrat ion of such facilitie s

. Dr

. Sm ith also n ote s th e “ special

responsibilities ” of his me dical practice in the field of l ong

- term care

. S pecifically, he

catalog s his e xperience
, including his s ervice as an attending physician for l o ng

- te rm

care p atients ; his service a s a medical di rector in se veral nursing homes ; his service as

editor of seve ral journals that address med i cal directors
, nurs ing homes, and l o ng

term care ; h is recognition in developin g the certification for medical directors of

nur si ng homes ; an d his publ i cation on nur sing ho me patient s ’ righ ts and how to

creat e a culture of safe ty for lo n g

- term care patients

. Dr. Smith specif ically states in

his report th at he has “ dedicated [ his ] life to t reating peo ple like Ashley ” an d is “ well16 awa re of the s tandard of care require d of physician s , nurses , and nursing facilitie s t hat

provide trea tment t o patients with such c onditions. ”

The c ase that FCNR re li es on to arg u e that Dr. Sm ith is unqualified f ails to

su pport it s argument

. F C N R r elies on Tawa v. Gentry and it s holding t hat a physician

cannot testify abou t the standard of c are of health care provide rs unless the expert has

kno wledge of the stan dard s or has worke d with o r supervised such health care

provi ders

. No. 01

- 12

- 00407

- C V, 2013 WL 1694869, at *13 (Tex. A p p.

— Houston

[1st Dist. ] Apr. 18, 2013, no pet. ) (mem. op.)

. The holding of Tawa states a trui sm,
just n ot one applicable to Dr. Sm ith ’ s repo rt in vi ew of his statemen ts that he is aware

of the standard of care and the exp erience hi s report catalog s to su b stantiate that

claim. See M ethodist Health Ctrs. v. Crawford , No . 01

- 1 4

- 00291

- CV, 2014 WL 55 00492,

at * 3 (Tex. App.

— Houston [1s t Di st.] Oct. 30, 201 4, no pet.) (me m. op.)

(di s tinguishing Tawa and holding expert sufficien tly stated his qualifications when he

s aid that he understood “ not just what the standard of care re quires [] but also what is

likely to oc c ur if the standard of c are is not met ” and m ade spe cific re ferences to the

applicable standard of care).

Accordin gly, we hold t hat Dr. Smith is quali f ied to author an expert r eport on

the standar d of car e that F C N R o w ed A shley. We therefore overrule FCNR ’s fourth

issue

.17 C. T h e suit should n ot be dismisse d a t this point for the failu re of Dr. Smith ’ s report t o state that a breach of the standard of ca r e caused Ash ley’s death

.

I n its f ifth issu e, F C N R argues tha t Dr. Smith ’ s report is defi cie nt because i t

fail s to “ provi de an y meaningful dis cussi on o f med ical causati o n or how any alleged

br each in the standa r d of c a r e pro ximately caused an injury to [ Ashley] , mu ch less

‘ resulted in her tragic an d untimely death

. ’ ” The mai n f oc us of the argument is that

th e report f ail s to ide ntify As hley ’ s c ause of de a th or lin k her death to F C N R ’ s breach

of th e stan dar d of care. In a l a te r portion of this opinion , we will hold tha t

Dr. Smith ’ s report is de ficie nt in its statemen ts regarding how FCNR breached the

standard of care and will rev erse and remand this case to t he trial court

. But to the

extent that F C N R ask s us to immediat ely dis miss the w rongful

- death claim bec ause

Dr. Smith ’ s report d oes not st ate how F C N R ’ s acti o n caused Ashley ’ s death, we wil l

not do so . A s explained below, a report is tested by whet her it is adequate as to

one

— instead of e v ery — t heory of recovery alleg ed. He r e, the report is ad equa t e if it

can be amended t o s upport the su rvi val claim alleged , and we will no t dismiss the

wrongf ul

- death claim bef ore there is an opportunity to c orrect p resent deficiencies in

the report that would ma ke the report suffic ie nt a s t o one theory of recov ery.

The Texas S upre me C ourt was clear in Certi fied EMS, Inc. v. Potts that an expe rt

report mee ts t he requirements of th e MLA if the report supports at least one t heory

of recovery. 392 S.W.3d 625 , 630 ( Tex. 2013)

. In Pot ts , the questio n was whether a

report th at support ed a theory o f vicarious liab ility was an adequate report to av oid18 dismissal o f th e health care liability claim whe n the report di d not support a n

additional plead ed theor y of direct liab ility of the health care p r ovide r

. Id . at 627.

T he Texas Su preme C o ur t offered its own stra ightf orward rationale fo r holdin g

that a rep ort need o n ly support one th eory : t he MLA does not require a re port to

suppor t each theory alleged b ut to support the existence of a “health c a re liability

claim. ” Id . at 630. Succinctly, t h e Texas Su preme C our t he ld that a report that

satisfies the req uirements, “ even if as to one theory only
, entit les the claimant to
proceed wi th a suit against the physician or healt h care pro vider. ” Id

. W h en a r eport

supports on e theory of l iability , the du a l purposes of the ML A h ave been served : t he

repo rt tells t he defendant what co nduct has been called into q uestion a nd prov i des the

trial court with the assuran ce th at the claim h as merit

. Id

. I n the T exas S upreme

C ourt ’ s view, requiring a report to support only one th e ory of r ecovery a lso satisfi e s
the legis lative i ntent of the MLA by deterr ing baseless claims bu t not blocking e arnest

on es. Id . at 631. Further, a rule requiring a n expert r eport to suppor t each theory

would ensnare the court s in satellite litigation and use a m echanis m that is i ll

- suited to

res olve the viability of subsets of lia bility th eories t hat may be later honed by

discovery and better tested by summary

- judgme nt motion s or trial. Id

. at 632.

Bo th our court an d the First Court of Appe a l s have applied P ott s to a situation

si milar to the one enco untered in t h is cas e . In Bay Oaks and Ince
, a health care liab ility

cla imant alleg ed both survival an d wrongful

- deat h cl aim s , but the ex pert report d id19 not tie the breach of the standard of care to the patient’s de ath

. 3 See Bay Oaks SNF,

LLC v. Lancaste r , 555 S.W.3d 2 68, 278

– 84 (Tex. App.

— Houston [1s t Dist.] 2018, p et.

deni e d ) ; SCC Partners, Inc. v

. Ince , 4 96 S.W.3d 11 1, 114

– 15 (Tex. Ap p.

— For t Wo rth

2016, pet. dism ’ d)

. I n Bay Oaks
, the def en dant sought dismissal o f a wrongf ul

- death

cla im because the e xpert rep ort did not link the patient ’ s death to t he inj u r y descri bed

in t h e repo rt o r opine as to a cause o f death. 55 5 S.W.3d at 278. I n I n c

e , we

confronted a similar argument

. 496 S.W.3d at 114. Both Bay O ak s an d I n ce applied

Potts ’ s holding to reject the ar gument t hat the wrongful

- death cl a im shou ld be

dismissed. In esse nce, both opi nio ns h eld that when a r eport i s adequate to sustai n

the survival claim, the purpose of the MLA i s served , even though the repor t f a iled to

address the bas is for the wrongful

- d eath cla im. Thus, i f Plaintiff f ile d an a dequate

report t o support the claim of a breach of the standard of Ash ley ’ s care and her

3 The distinction between su rvival claims and wr ongfu l

- death c laims is as follows : Surviva l cla ims resul t from Texas Civil Practice and Rem edies Code S ection 71. 02 1 , which pr ovides that a claim for inj ury t o a p e rson ’ s hea lth does not abate on death and m ay be prosecuted by “ heirs , legal representatives
, and the est at e of the injured pe r s on. ” T e x. Civ. P rac. & R e m. C o de A nn. § 71.021 ( a), (b). A wrongful

death clai m is generally co ver ed by th e T e xas Wr ongfu l D ea th Ac t , and “ d amages recoverable in a wrongful [

- ] death action are for the exclu sive benefit of the defined statutory beneficiar i es and are m eant to compensate t hem f or their own personal loss. ” Cunningham v. H aroona , 382 S.W.3d 492, 508 (Tex. Ap p.

— Fo rt Wo rth 2 012, pet. denied) (citing Tex. Civ. Prac. & Rem. Code Ann. § 71.002
, defining wro ngful

- death cause of action)

. “ Damages r e coverab le by the st atutory beneficiari e s und er the Wrong f ul Death Act include pecunia ry losses to the benef iciaries, s uch a s l os s of inher itan ce and non

- economic damages to compensate for the losses caused by the d estruction of the fa milial r elationship. ” Id

.20 survi v al claim, the n the repor t need not go further and support the wrongful

- de ath

claim to avoid dismissal

. Accordingly, we overrule FCNR ’ s fifth issue.

D. The suit should not be di smissed, at this point , for the failure of Dr. Smith ’ s report to state a bas i s f or F C N R to be held both directly and vicariously liable for the clai ms m ade for the assault against Ash ley.

In its first an d second issue s , F C N R cha llenges Dr . Smith ’ s report because it

allege dl y “ lumps ” all potentiall y culpabl e parties into one g r oup and provides no b asis

for the reader to conclude that F C N R is liabl e for the intent ional acts of the persons

who allegedly abus ed A s hley. In essence, FCNR argues that Dr. S m ith ’ s report fails
to adequately do cument that it is eith er vica riously or di r ectly liable. F C N R once

again s imply ignores the provisions of Dr. Sm ith ’ s r e port that undermine it s argument

and the impact of th e rule e nunciated in Pott s ( which w e have just disc ussed)

— th at a
report need support only a s ingle theor y of liabili ty

. As n oted, we are remanding this

matter for the trial court to determine whether t o grant an extension for Plaintiff to
file an amended report addressing how FCNR breached the standard of care it owed

directly to Ash ley. If an amended report adequately docume n ts that theory, then the

report will meet the Potts standard by supporting at least one theory of liability.

F C N R b egins its argu ment by citing cases tha t stand f or the propo sition that a

r e port “may not asse rt that multiple defen dan ts are all negligent f or failing to meet the

standard of care without providing an explanat ion of h ow each defendant specifically21 breached the standard [ of care ] and how that breach caused or contributed to the

ca use of injury.” See, e. g. , Taylor v. Ch r istus Spohn Health Sys. Corp. , 169 S.W.3d 2 41, 244

( T ex. App.

— Cor pus Christi

– Edinburg 2004, no pet.) . Its argu ment th en p ivots to

contend that an as sault committed by a n employee is outside the scope of th e

emp l oye e ’ s employment dutie s and that th e emplo yer is not vicariously liable for those

ac ts. See NC E D Mental Health, Inc. v. Kidd , 214 S.W.3d 28, 34 n.8 (Tex. App.

— El Paso

2 006, no pet.) ; Bu ck v. Blum , 130 S.W.3d 2 85 , 2 88 (Tex. App.

— H ous ton [14th Dist.]

2004, no pe t.)

. With these two premises in plac e , F C N R argues that

Texas law is cle ar tha t an employ e r cannot be held vicariously liable for sexual assaults allegedly committ ed b y its employees because such actions ar e not within the cour se and scope of employmen t. If such a claim has no merit under t he law, an ex p ert report premised on this

same m eritl e ss theory is inadequate. The entire purpose of Chapter 74.351 is to serv e as a gatekeeping function so the trial co urt can form a basis to conclude that the clai m has merit. The Smith Report is fatall y deficient bec a use it attributes the a lle ged crim ina l sexual ass ault [by] two alleged employe es to their

. . . employer.

But as w e have di scussed
, P otts h eld that a report need only be suf ficient to

suppo rt on e th eory of liabilit y

. 392 S.W.3d at 630. In Potts
, the r eport s u pporte d a

theory o f vic arious liab ility and was sufficient to avoid dismissa l of the suit even

though it did no t supp ort a theory of d irect liability

. Id. Logically
, the converse i s also

t rue : w hen an exper t report supports a th eory of di rect liability for ne gligen ce, i t is

sufficient even th ough it doe s not support a theory of vicarious liabilit y

.

F C N R d oes not discuss Potts . In st ead, F CNR appea rs to argue that Dr. Smith ’ s

stateme nts direc ted to F C N R ’ s direct liability for a breach of the standard of care are22 deficie n t because “ [t] h e remai ning claims of br each made b y Dr. S m ith

. . . are so

broad as to be no opi ni on at all and, therefore , inadeq uate. ” The argument then

quotes brie f sn ippet s from the r eport and concludes that “ [b] ecause these alleged

b reaches are not specific and [are] not t i ed to th e facts of the case, the S mith Report is
inadequate. ” T his argumen t is s im ply a short form of F C N R ’ s argument that

Dr. Smith ’ s report is con clu sory on whether F C N R breach ed the standard of care

—

the issue t h at we will discuss next. 4 Again , as we discuss below, we are remanding this

4 In bo th its opening brief and i ts rep ly brief, F C N R challenges Dr. Sm ith ’s repor t because he does not detail how Ashl e y w as all egedly as saul te d and posits a rhetorical question : “ W orse yet, the alleged employee s [who allegedly assaulte d Ashley] rem a in uni denti fi ed, and the other detail s of the a lleged as sault, including when and where it happened, remain a mystery. S ur e l y such a n expert report b ased on no facts c annot form the basis for a viable Chapter 74 repo rt? ” T h e Dallas and A ustin Court s of Appe als have reject ed the pr e mise of F C N R ’ s rhe torical question intimating tha t a r eport m ust outline the d e t ai l s of th e ass ault

. See Mahan , 5 20 S.W .3d at 17 7

– 81; U H S o f Timberlawn, Inc. v. S.B. ex rel. A.B. , 281 S.W. 3d 207
, 212 (Tex. App

. — Dallas 200 9, pe t. denied). As the Au st in C ourt of Appe als explained
, [ T] he s tatute re quired [t he physician ’ s] report to p rovide “a fa ir

su mmary” of his opini ons regarding the requisite causal l ink, and the report wa s deficient only if it “[did] not repr e sent a n obj ectiv e good [

- ] faith e ffort to co mply with” this r equirement, i.e., if it d id not in form [the nursing home] of th e specif i c c onduc t called i nto quest ion and provide a basis for the tria l court t o conclude that [ the patient ’ s repres entative ’ s ] c l aims had merit

. In the context of this ca se, in which the alleged “harm” or “injury” was a se xual assault (which is n o t its elf a me d ic

a l

con dition and for whic h medical ly ascertainable evid ence may not even exist), we

con clude tha t [the phys ician ’ s] r epo r t need not est ablis h the fact of the assault it self in order to constit ute a “goo d

- faith” effort to provide “a fair summary ” of [the ph y sicia n ’ s] opini ons regar ding the causal li nk between [the nursing home ’ s] alleged breach and [the patient ’ s] alleged i n j

ury.23 m atter to allow the trial cour t to deci de w hethe r an am end ed report may be filed.

Should t hat repo rt be su ffic ient to establish the direct liability o f F C N R
, Plaintif f will

sati s fy her obligation to present a report establishing a health care liability cla im.

Th us, it is premature to deal wit h the arg ument that we should hold that the cl aim

sh ould be dismisse d because it fail s to support a theory of vicarious liabilit y

. We

ther e fore overrule FCNR ’ s first and second issues.

E. Dr. Smith ’ s re port is deficie nt in its statement that FCNR breache d the st andard of care.

W e tur n to what is the crux of t his appe al: F C N R ’ s a ttack in its third issue that

Dr. Smith ’ s repor t f ails to s uffi ciently describe how F C N R breached the standard of

care due Ashle y. W e ag r ee with F C N R tha t Dr. Smith ’ s report is de ficient in its

statements that there was a br each of the s tandard of care

. W e also co nclude that the

report is merely defi cient inste a d of being no r eport at all . Thus , w e will reverse the

trial court ’ s order d enyi ng t he motion to dismiss and remand this matter to t he trial

M ahan
, 52 0 S.W .3d at 180

– 81 ( emphasis added) (fo otnotes omitted)

. Mah an establis hes that F C N R ’ s premise tha t Dr. Smith ’ s repor t ha d to document h o w t h e

as sault occurred is flawed

. Here, Dr . Smith ’ s report goes fu rther t han the one in M a h a n and actu a lly de scribes the diseas e that Ashley alleged l y contrac ted f rom the sexual assault

. Further, the report documents w hat Dr. Smith relied on t o establis h th at an assault occurred : Plaintiff stated “ that Ashle y complained that she was ra ped numerous times b y t w o men [who] worked a t F C N R. ” The r eport also states that the records that Dr. Smith reviewed had “ not at ions that Ashl e y was re porte d to have

e x pe r ienced mu ltiple episode s of sexual assault at FCNR by FCNR employees

. ” Again
, a report is not challengeable bec aus e it is no t believ able or reasonable ; if the

a ssault did not oc cur , that issue can be litigated in the appropriate context of a mot ion for su mmary jud gment.24 court for it to deter mine whe ther to gran t P l aintiff a thirty

- day extension to cure th e

report ’ s defic ienci es

.

W e have outlined tha t a report must make only a good

- faith effort to explain

how an d why the alleged negligence caused the injury i n question. See Tex. Civ. Prac.

& Rem. Co de Ann. § 74.351 ( l )

. Aga in , t he r eport need not prove t he ent ire c as e or

account fo r every know n fact

. See Abshire , 563 S.W.3d at 224.

But n o matter how simply sta ted the underlying rule may be, its application to

specific cases involv in g th e sexual ass aul t of a patien t has pro duced inconsistent

results

. T he Corpu s Christi

– Edi nburg Co u rt of Appeals concl uded that a report was
adequate when, in essence , the report s tated that a health care provider had failed t o
adequately protect and provide safety to a pa t i ent

. See C hristus S pohn Health Sys

. Corp.

v. Sanchez , 299 S.W.3d 868 , 878 (Tex. A p p.

— C orpus Christi

– Edi nburg 2009, pet.

denied)

. The Te xarkana Court o f Appeals vi ewed the holding from the Corpu s

Christi

– Edi nb urg Cou rt of Appeals as being c lose to th e line of what w as permis sible

and contrasted that holding with those of ou r co urt and t h e Fourteenth Court of

Appeals that found a report inadequ ate when it did not ta k e an extra step of

descri bing wha t the h ealth ca re provide r should have done , but did n ot do , to carry

out the r equirement s of the standa rd of care. See Texarkana Nursing & H e al th care Ctr.,

LLC v. Lyle , 388 S.W.3d 314, 318

– 22 (Tex. App.

— Tex arkana 2012, no pe t.)
(discussing Kingwood Pines Hosp., LLC v. Gomez , 362 S.W .3d 740, 750 (Tex. App.

—

H ouston [14th Dis t.] 2011, no pet.) , and Baylor All Saints Med. Ctr. v. Martin , 3 4025 S.W. 3 d 529, 53 4 (Tex. App.

— Fort Worth 2011, no pet.) ). The Tex arkana C ourt of

A ppeals asked “ how much detail is needed in order for a n expert report to withstand

Chapter 74 scrutiny when t he harm a lleged ari ses from assaultive conduct
, ” a nd it

concluded that t he re p ort it reviewed was in adequate because the report failed to

articulat e what should have been done differently to pre vent the assault

. Id . at 3 20

–

22

.

Th e Austin Court o f Appeals crystali zed the different approaches as to how an

expert report mu st describe causation for a health care liabi lity claim based on sexual

assault as fol lows :
In cases against heal th care providers arising from the alleged failure to preven t an assault, ou r sister courts have held expe rt rep or ts deficient if they merely sta t e that the pr ovider “failed to provid e a safe a nd secure environment” without any i ndica tion of what the facil ity “should have done differently to prevent the assault.” On the other han d, this C ourt has held that an expert r eport is sufficient if it spec i fies what th e defendant “should have done” and w hat it “should have done differentl y.”

M ahan , 520 S.W.3d at 18 7 (footnotes omitted) ; see al so Tex

. San Marcos Treatmen t C tr.,
L.P. v. Pay ton , No. 03

- 14

- 00726

- CV, 2015 WL 7422989, at * 3

– 4 (Tex. App.

— Austin

N o v. 18, 2015, no pet.) (mem. op.) ( holding repor t adeq uate because it set out

standa rd and described what health care pr ovider should have don e but did not do to

meet sta n dard).

Followin g the hol ding of our court a nd of our sister courts holding similar l y ,

we c on clude that a n exper t report is deficient if i t merely stat es the conclusion that the26 health ca re pr ovider fai le d to prot ect a patien t in violation of t h e standard of care

wi th out some indi cation of what the provider should have done differently

.

Dr

. Sm ith ’ s report fails to adequately take this second step.

We conc ede that the secti on of D r

. S m ith ’ s report de aling with the breach o f

the standa rd of care is lengthy , b u t as we w ill explain, irrespective of its length, the

report is inadequate:

My opin i on is that John Doe, Richard Roe, Dr. Robert Cooper, [ 5 ] and FCNR, each breached the r equired standards of care applicable to the treatment of Ashley Norman, and that such b r eaches of th e standar d of care were the p roximate caus es of the sexual assau l t, tr i chomonas, and consequential pain and suffering experienced by Ashley.

The standard o f care demands that physicians, nurses, staff, and nursing facilities refrain from h av i ng any sexual contact with a patient, wh e ther or not s uch contact is consens u al. T his standard of care was breached by FCNR, John Doe, and Richard Roe when John Doe an d Richard Roe engaged in sexual intercourse with Ashley Norman. Ashley Norman was a pa t i e nt [,] and t he standa rd of care does no t perm it any sexual contact with caregive r s , regardless of cognitive functioning or the ability to consent.

The standard of car e deman ds that physicians, nurses, staff, and all nursing facilities must promote care f or r e sidents in a mann er and in an envir onment that maintai ns and enhances each r e s ident ’ s dignity and respect in full recognition of the patient ’ s individuality. FCNR
, John D oe, and Richard Roe breached this standard of care when Ashley Norman was sexua l ly a ss aulted by John D oe and Richard Roe

. This standard was further breached when A shley ’ s screams to stop were ignored by John Doe and Richard Roe. The decision, not only to e ngage in sexual intercourse [] but [als o ] to restrain Ashley and force her to

e ngage in se xu al interc ourse [,] is the op posite of enhancing the residen ce ’ s [sic] d ignity and respect of the patient ’ s individuality. John

5 Th is reference to Dr. Robert Cooper is the only one that ap p ears in the appe llate record

. We have no id ea of what role, if any, Dr. Cooper plays in this claim.27 Doe, Richard Roe, and FCNR t o ok away Ashley ’ s right to r efuse sexual contact and forced her to endure the sexual as s ault on multi ple

occas ion s.

The standar d of care for physicians, nurses, and n urs i ng facilities requ i res that when a patient makes an allegation of sexual assault, the authorities should be contac ted [,] and safety measures should be taken to ensure that n o subsequent assault o ccu rs. The standa rd of care requires any staff receiving th e allegation of sexual a ssault (no matter how credible or not credible) to report to t h e designated Abuse Coordinator. In most facilities [,] this is the Administrator. [Th e ] [ s ] tandard of ca re

a dditionall y requi r es suspension of any accused individual un t il an investi gation is completed. N o t to do this provides perpetrators the opportuni t y to “ pollute ” the investigation as well as exposing others to potential victimizat ion

. On the othe r hand, i t protects those f a lse ly accused by [e] nsuring a rigorous and h ig h [

- ] quality inv estigation.

The stand a rd of care also requires that an investigatio n be performed to determine the facts surrounding the sexual assault, such as how it o ccurred and w ho is res ponsible. The stand ard of care requires safety measures be ta k en to ensure the p atient ’ s safe ty.

This s tandard of care was breached when FCNR igno r ed Ashley ’ s accusations of sexual assault and instead chose to do nothing. This

stan dard of care was also breached when n o inv estiga tio n occurred and no additional safe t y measu res were take n, such as in creased s e curity, increased supervision, and prohibi t ing male contact with Ashley. The standard of care requires that the patient ’ s s afet y be the numb er one pr iority. This w as br eached n ot only when Ashley was sexually

a s saulted [] but [also] when FCNR chose not to take any safety precautions after the ini t ial accusation and allowed subsequent sexual assaults to occur.

As a volunteer m embe r of the Texa s Departm ent of Aging and Dis abi lity Services : N ursing Facility Admini s trators Advisory C ommittee from 2012

– 2016, I recall o u r committee sanctioning

numerou s [N] ursing Facility Administrators functioning as Abuse Coordinators for failing to i nvestigate va rious all egations of abuse rega rdl ess of the cre dib ility of the allegatio n

.28 Obviously, the standard of c are for any hea lthcare provider requires that they not sexually assault a patient. This standard of care was breached when John Doe and R ichard Roe he ld down A shley Norman and force d h er to engage in se xual intercourse agai n st her will after s he refused to do so willingl y.

It i s also important to note that A shley Norman su f fered from MS and numerous cognitive deficiencies which woul d rende r her mentall y incapac itated and unable to co nsent to sexual c ont act, further magnif y

ing the breach. As my CV reflects, I have authored

. . . a m edical textbook on the subj e ct of determining mental capacity [,] and I frequently perform these asse ssments fo r Texas Adult Protecti ve Services and as a co nsu ltant to other physic ian s. In my opini o n, Ashley was not able to give consent to have sexual i nterco u rse. The standard of

c a re required FCNR to ensure [that] no person, staff or otherwise, was per mitted to have sexual i ntercours e with Ashley.

FCNR al so breache d the standard of care whe n it f a iled to adequately supervise its e mployees and provide Ashley No rman w ith a safe envi r onment. Further, the standard of care requires that a patient receive s upervision so as to ens ure the p atient ’ s safety and to ensure at the absolute least that the pati e nt is not permitted to be sexually assaulted on numerous occasion s. By allowing the i nitial sexual assault [,] FCNR clearly breached the standard of care by f ailing to provide adequ ate super vision. If it had, Joh n Doe and Ric hard Roe would not have be en a llowed to be alone with Ashley and hold her down and sexually assault her o n numerous occasions. The actions of FCNR appear to establish a pattern of conscio us indiffe rence to pati ent safet y involving cover

- up an d have fallen well below the required st an d ard of care by allowing any additional se xual assaults

. After notificat ion o f the al l egation, FCNR staff with this knowledge became accessories after the fac t in my op inion as a ph ysician ( not a lawyer).

Sor ting through these paragraphs
, several theme s e merge . First, m any of the

paragraphs ar e directed aga inst the Doe D e fendan t s and st and for the obvious

proposition that no persons should be sexually assaulted

. Tha t proposition provides29 no indi c ation of how F C N R breached a standard of car e that it owed directly to

Ash l e y.
Many of t he paragraphs deal with the failure of F C N R to adequatel y investigate

wha t happened to Ashley. As a general propo sition
, whether F C N R adequ ately

inv e stigated what al legedly o ccurred is of doubtful relevance i n and o f i tself. A failure

to investigate after the ass ault would not have prevent ed an assault

. T h e r eport notes

that Plaintiff “ s tated that Ashley had inform ed two nurses of the assau lt [] but t hat

FCNR did not take a ny acti on to prevent additional ass a ults and tha t she continued to

be sexually assaulted

. ” The r eport conclu d es that

[t] his standard of care was breached when FCNR ignored Ashley ’ s

acc usations of sexual assault and instead chose to do n othin g. This standar d of care was also br e ac hed wh en no inves tigation occurred and no additional safe ty measures were taken, su ch a s i n creased security, increased supervision, and prohibiting male contac t with Ashley.

But what the report la c ks is som e i ndic at ion of why the actions o r p olicies of a health

care pro vide r , such as F C N R
, breached the standa rd of care and caus ed the contin u e d

assaults

. T he reader is not told what F C N R should have done differently to ensure

that reports to the nur ses were p rocess ed in a way that would have prevented

ad ditional assaults o f Ashley.

When the report reaches th e po int of desc ribing how F C N R breach ed the

standard of care in the concluding paragraph of t he paragra phs that we quote d, it, in

essence, repe a ts the sam e propo si tion in several sentenc e s : F C N R ’ s acts o f failing to

s u pervise it s employees and fa iling to ensur e patient saf ety allowed Ashley to be30 sexually assaulted

. But these sentences lack what the report should con tain

— a

descri ption of what F C N R should h ave done differe ntly

. Though t h e report

references that FCNR should have provided additional or increased measures, those

general statements, again, fail to state what specific steps should hav e been taken.

The r eport d oes highlight one thin g that F C N R sh o uld ha ve done differently
,

wh i ch is t aking t he step of not permitting males to be in Ashley ’ s room. The problem

is t hat the report has a para graph that , tho ugh it is a mud dle, can be read to sugges t

that F C N R did take this step. The paragra p h states t hat

[t] he re are also notatio n s t h at Ashley was repor ted to have experienced multiple episodes of sexual assault at FCNR by FCNR employees. Importantly, it was also noted i n n umerous locations th at Ashle y did not want any males present and [that] she only wan ted fe male RNs and PCTs. It a ppea r s that th e facility com plied with this as there are notations of “ females only ” withi n the records.

The reader is left to g ue ss whether the “ fa c ility ” referre d to is F C N R or one of the

o ther facilities refer en c ed in t he report a s places where Ashley r eceived treatment

.

Cert ainly, even i f F C N R took the st ep of complying with Ashley’s request but delaye d
doing so after her outc ries
, leading to add itional assaults
, the re might be a n indication

of causation , but the re por t doe s no t say thi s

.

Dr. Sm i th ’ s report is deficien t because it is conclusory

. For a sexual

- assault

- of

a

- pat ient claim, a report must describe what the healt h care provider shoul d have

done to forestall a n assault, or it does not serve the purp os e of ens uring tha t only31 m e ri torious hea lth care claims su r v

ive dismis sal. Accordingly, we sustain FCNR ’ s

third issue.

F. W e r emand this claim to the trial court to de termine whether P lainti ff should receive a thirty

- day extension to c ure the de fici encie s in Dr. S m ith ’ s re port.

Ha vi ng conclu ded tha t Dr. Smith ’ s r eport is defic i ent in its description of h o w

FCNR breached the standard of care
, we turn to the question o f wh ether to remand

this matte r to the trial court to decide whether to grant a t hirty

- d ay extensi on to all ow

Plai n ti ff to corre ct the defici en cy. Dr. Sm ith ’ s report falls wel l with in the standard to

grant s uch relief be c a use his report is merely deficien t rather than b eing no r eport a t

all.

The MLA provide s that “ [i] f an expert report has not been s erved wit hin t h e
period spec ified by Subsection (a) be cause ele ments of the report are found deficient,

the co urt may grant one 3 0

- day extension to the clai mant in order to cure the

deficiency. ” See Tex. Civ. Prac. & Rem. Code Ann. § 74.351 ( c)

. The Texas S upreme

C o urt h a s held that minimal stand ard s appl y that allow a part y to be able to invoke the

extension pro vi sion. S ee S coresby
, 3 4 6 S.W.3d at 5 5 7

. Und er that standa rd, “ a thirt y

day extension to cure defic iencies in an expert report may be granted if the repo rt is

se rved by the statutory deadline , if it contains the opinion of an individual with

expertise th at the cla i m has merit, and if the defendant ’ s conduct is im plicated. ” Id

.

I n applying the st andard
, a fundamental questi on is whether the defic iency in the

r e po rt is curab le, i. e. , does i t appear impossible for the defic i ency to be cured.32 Zamarripa , 5 26 S.W .3d at 46 1 n.37

. A s our court has describe d the distinction
, “ [t] he
Act distinguishes between situa t io ns where a report is timely served but deficien t and

those where no report is served. ” See Mi tchell v. Swans on , No. 02

- 19

- 00460

- CV, 2020

WL 6065986, at *5 (Tex. A pp.

— Fort Worth Oct. 15, 2020, no pet.) (mem. op.) (citing

Taton v. Taylor , No. 02

- 18

- 003 73

- C V, 2019 WL 26 35568, at *8

– 9 ( Tex. App.

— Fort

Wort h June 27, 2019, no pet.) (mem . op.) )

.

When a report m eets the min imal stand ard tha t accor ds a party the opportunit y

to cure its deficiencie s , “ we gene rally ‘ do not render ’ judgment ; instead, we usually

‘ remand for the trial court to c o n sider w he th er to g rant a thirty

- day extension. ’ ” Id

. (quoting UHP, LP v. Krel la , No. 02

- 19

- 0013 6

- CV, 2019 WL 3756203, at *1 (Tex.

A p p.

— Fort Worth Aug. 8, 201 9 , no pet.) (per curiam) (mem. op.) )

.

Dr. S mith ’ s r eport meets the standard s that prom pt us to r em and this ma tter t o

the tria l court to determine whether to gran t a thirty

- day e xtension

. There is no

quest ion that Dr. Smith ’ s rep o rt was timely served. And w e have already concluded

that the r eport an d Dr. Smith ’ s CV ade quately state d his qualificati o ns

.

O n th e questio n of whether Dr. Sm ith ’ s report implicated F C N R
, we look to

an opinion from t h e San An tonio Cour t o f Appeals for g u idance . That court held
, in

a case remarkably similar to this one , that a tri al court abused its discretion by refusing

a thirty

- da y extensi on

. See Hernandez v. Christus Spo hn Health Sys. Corp. , No. 04

- 14

-

00091

- CV, 20 15 W L 704721, at *4 (Tex. App.

— San A n tonio Feb. 18 , 2 015, no pet.)

(mem. op.)

. In H ernandez
, the plaintiff alleged that a sexual assault had occurr ed in an33 e m e rgency ro om

. The ex pert repor t filed in Hernandez stated that the hospital ha d

failed to addres s sexual assault out cr ies and to pro t ect patients fr om pre dat ory sexual

conduct once t he conduct ha d b een reported. Id . at *4. Her nandez conclude d that the

e x pert r epo rt f a iled t o adequately address causati on but impli cated the hea lth care
provider and w as potentially curable:

A l though we a gree that the r eport is deficient w ith regard to causation,

as previously noted , “the causal relationship the plaintiff m u s t show ma y not alw ay s be so clear.” Kim [ v. Hoyt , 399 S.W.3 d 714, ] 718 [ (Tex. App.

— Dallas 2013, pet. denied)

. ] The report do e s sta t e that “the pat ient ’ s right to be protec ted in a vulnerable time of illness was not provided to Mrs. Hernandez,” which i m

p l ies that Hernandez w as injured due to the absence of the req uisite protection. This is similar to the Texas Supre me Court ’ s re v iew of the expert r eport in Scoresby , in which th e court noted that the re port “did

not st ate the standard of care but only i m p lied that it was i nc onsistent with the Physicians ’ conduct.” 346 S.W.3d at 557. Despite this d eficiency , the Texas Su p reme Court h e ld the report w as curable. [ Id. ] at 549; see also Wooten v. Samlowski , 2 82 S.W.3d 82, 90

– 91 (Tex. App.

— Waco 2008), aff ’ d a s modifie d , 332 S. W. 3d 404 (Tex. 2011) (holding trial

court abused its discretion in denying ext ension where report w as deficient on l y because of an inadequate cau sal link).

Id

. (emphasis a dded).

T hough Dr. Smith ’ s report is defi cient, his report cer t ai nly implic ates the

conduct of F C N R a s str ongly, if not more so, than the report i n Hernande z

. F u rther,

the nature of the deficiency d oes not i nd ic ate that it will be impossible to cure. Thus
,

t h e trial court should decide whether to g ra nt an ext en sion to allow Pla intiff to

attempt to cure the de fici ency

.34 IV. Conclusion

Having overrule d FCNR ’ s first
, sec o nd, fourth
, and fift h issues b ut having

sustained its third issue, we reverse the trial court ’s order denying FCNR ’ s motion to

dismiss and remand t hi s ca se to the trial cou rt for it to determine whet her to grant a
thirty

- day extension pursuant to Tex as Civ il P ractice and Remedies Code S ec tion

74.351 (c).
/s/ Dabney Bassel Dabney Bassel J ustice

Delivered: April 15, 2021