### T E X A S C O U R T O F A P P E A L S , T H I R D D I S T R I C T , A T A U S T I N

NO. 03-08-00217- CV

David Hayes, M.D.; Rober t Mor rison, M.D.; P hili p Ralid is, M.D.; Jor dan Wein garte n, M.D.; Maro Ohanian, D.O.; Li nds ay Coull, R.N.; Leah Delafield , R.N.; K risti Donau, R.N.; Nathan Lof

gren, R.N.; Kar la McK

inn ey, R.N.; Melissa Migl, R.N.; Sooncha S herm an, R.N.; Shonn a Tobi as, R.N.; and Kat ie Watson, R.N., Appellants

v. Janet Car roll, Appellee

F ROM TH E DISTRI CT COURT O F TRAVIS CO UNTY, 353 RD JUDICI AL DISTRICT NO. D-1 -GN-0 7-0 0136 7, H ONO RAB LE GUS J. STRAUSS JR., JUDGE P RESIDING

O P I N I O N

This appea l pres en t s issues arising from the expert repor t require ments of civil prac tice and r emedies c ode sec tion 74.351. See Tex. Civ. Prac. & Rem. Code Ann. § 74.351 (West Supp. 2009). Appellants—all of them phy sicians or nurses—a ppeale d the trial court’s order deny ing their motions to dismiss appelle e J an et C arr oll’s health care liability claims for failure to timely serve an expert re port. See id. § 74.351(b). We af firm the trial c ourt’s orde r.

Factual an d Procedural Background

I n September 2006, Carroll was found unconscious at her home and was transporte d by ambulance to Br acke nridg e Hospital for trea tment. Du ri n g h er initial trea tment,

emer g ency medical responde rs place d a bandag e just below Carroll’ s rig ht knee to secur e a needle inserted to supply intravenous fluids. Once at t he hospi tal, Carroll underwent treatment atthe car diac cathe terization lab and was transfe rre d to the intensive car e unit. Carroll was trea ted by

a number of phy sicians and nurses at Br acke nridg e. Ap p ro x i m ately 28 hours after arriving at t he

emer g ency room, one of her attending nurses noticed swelling around the bandag e below her rig ht knee. The bandag e was remove d and the are a was monitored. Ultimately , howeve r, due to necr osis of the skin, muscle, and tendons of Carroll’s rig ht leg below the knee, surg eons deter m i n ed t h at amputation of that leg was require d. The surg eon’s notes repor ted that the necr osis was “sec ondary
to a tourniquet-like eff

ect” of the bandag e applied by emer g ency responde rs attempting to resusc itate Carroll. I n her health car e l i ability claim, Carroll alleg es that while she was unconscious and in shock, s h e re ceive d over ten liters of intravenous fluids that cause d her to g ain approximately 20 pounds in less t h an 24 hours. She asser ts that during this time, no phy sician or health car e provider chec ked, loosened, or remove d the bandag e on her rig ht leg

. Carroll alleg es that, over time, the unattended bandag e bega n to act as a tourniquet, cutting off circulation to h er l eg and causing irreve rsible injury that ultimately require d amputation. Carroll alleg es that her injury resulted from the failure of eac h appellant to notice, document, chec k, loosen, or re move the banda g e in time to
preve nt the loss of her leg

.

Carroll initially filed suit o n M ay 8, 2007, asser ting a health car e liability claim
ag ainst Seton Hea lthcare Networ k as o p er at o r o f Br acke nridg e Hospital. Carroll attache d to this pleading the expert repor

ts of Don Patman, M.D. and There sa Posani, R.N. After the district court sustained Seton’s objections to the sufficie ncy of t h o s e reports, Carroll serve d Seton with supplemental repor

ts from both Patman and P o s an i i n J uly 2007. On October 30, 2007, Carroll filed an amended pe tition i n which she f irst named as de fenda

nts and asser

ted hea lth care liability cl aims ag ainst phy sicians David Hay es, Robert Morrison, Maro Ohanian, Phili p Ralid i s , an d 2J ordan Weinga rten and n u rs es L indsay Coull, L eah Delaf ield, Kristi Donau, Nathan L ofg ren, Kar la McKi n n ey , M elissa Migl, Sooncha Sherman, Shonna Tobias, and Katie Watson. Carroll attache d new repor

ts prepa red by Patman and Posani to the am en d ed p et i tion. I n J anuar y 2008, Carroll ser

ved def endants with a f

ourth repor

t prepa red by Patman. Appellants t i mely filed objections to the sufficie ncy of the expert repor ts. See id

. § 74.351(a) (phy sician or he alth car e provide r whose c onduct is impli cate d in report must file and

serve any objection to sufficie ncy of repor t not later than 21st day afte r date it was serve d). Certain of the appellants asser

ted that Carroll did not serve them with expert repor ts within the time period specifie d by section 74.351(a)

. See id. (re quiring service of expert repor ts “not later than the 120th day af t er t h e d at e the orig inal petition was filed”)

. They arg ued that the time period for serving expert repor

ts expired o n September 5, 2007, 120 day s afte r Carroll filed her “orig inal petition”

asser ting a health car e liability claim ag ainst Seton, even though they wer e not named as defe ndants and had no health car e liability claims asser ted ag ainst them until October 30, 2007. Severa l of the appellants also contende d that Patman and Posani fa iled to demonstrate that they wer e “experts”
q u al i fi ed to rende r opinions conce rning the applicable standards of car e. See id. §§ 74.351(r) (5 ), .401 (West 2005) (qualific ations for e x pert witness in suit ag ainst phy sician), 74.402 ( West 2005) (qualifica tions for expert witness in suit ag ainst health car e provider)

. All of the appellants objected
to Patman’s fourth repor t an d Posani’s third repor t on the g round that they failed to satisfy the statutory definition of an “expert repor t” by failing to provide a fair summary of the expert’s opinions
reg arding applicable standards of car e, t h e manner in which the car e rende red by eac h defe ndant failed to meet the applicable standards, and the causa l rela tionship betwee n such failur e a n d Carroll’s

3injury

. See id. § 74.351(a) , ( l ), (r)(6). The dist rict court overr uled all of ap p el l ants’ objections to the expert repor

ts. Appellants then moved to dismiss Carroll’s health car e liability claim s under section 74.351(b) of the c ivil practice and re medies code

. See id. § 74.351(b) ( court shall dismiss health car e liability claims ag ainst defe ndant phy sicians or health car e providers who have not been timely serve d with an expert repo r t) ; Bogar v. Esparza , 257 S.W .3d 354, 359-60 (Tex. App.—Austin 2008, no pet.) (plaint iff may fail to serve expert repor t within specifie d time period not only by failing to serve any expert repor t (an “abse nt” repor

t) within statutory deadline but also by providing within the deadline a repor t that does not satisfy statutory require ments (a “def icient” repor

t)). The trial court de nied the motions to dism iss, and this appeal followe d. 1

Tim eliness of Service

We first consider whether Carroll serve d Patman’s fourth repor t and Posani’s third repor

t w ithin the time pe riod require d by the statute. See Tex. Civ. Prac. & Rem. Code Ann. § 74.351(a)

. The controlli n g statute is the curr ent version of 74.351(a) , which provides in pertinent pa

rt:

I n a health car e liability claim, a claimant shall, not later than the 120th day afte r the date the orig inal petition was filed, serve on eac h party or the party ’s attorney one or

Whil e this interlocutory appeal was pending , the trial court g rante d a motion for 1 summary judgme nt filed by nurses Delaf ield, Donau, L ofg ren, McKinney , Migl, Sherman, Tobias, and Wat s o n . C arr oll’s claims ag ainst these defe ndants wer e sever ed out and assig ned a new cause number, re sulting in a final order dismiss ing Carroll’s claims ag ainst these def endants. The district court also g rante d Carroll’s motion to nonsuit her claims ag ainst phy sician Hay es. Consequently , Hay es, Delaf ield, Donau, L ofg ren, McKinney , Migl, Sherman, Tobias, and Watson are no longe r par

ties to this appeal. 4more expert repor ts, with a curr iculum vitae of eac h expert liste d i n t h e report for eac h phy sician or he alth car e provide r ag ainst whom a liability claim is asserte d.

Id. Coull, Ohanian, and R alidis cont en d t hat t he term “orig inal petition” means the first pleading filed by the plaintiff in a lawsuit, in this case the pleading Carroll filed on May 8, 2007, asser ting a health car e liability claim ag ainst Seton. That filing, they ar gu e, t rig g ere d the 120-day period for ser v i n g ex p er t repor

ts on ever y defe ndant, whether named in the first pleading filed or added by amendment l at er . Coull, Ohanian, and Ralidis asser t that Carroll was require d to serve them with e x pert repor

ts on or befor e September 5, 2007, despite the fac t tha t she had not y et asser ted a health ca re liability claim ag ainst them. Carroll counter s that the 120-day time pe riod for se rving 2 these defe ndants with an expert repor t commence d on October 30, 2007, the date she first asser ted health ca re liability

claims ag ainst them in her first amended pe tition. W e agree with Carroll.
I n construing a statute, our objective i s t o deter mine and g ive eff

ect to the leg islature’s intent as expressed by the lang uag e of the statute. State v. Shumake , 199 S.W .3d 279, 284 (T ex . 2 0 0 6 ). We use definitions presc ribed by the leg islature and any technica l or particula r meaning the words have acquir ed, but otherwise, we constru e the statute’s words acc ording to their plain and common meaning unless a contra ry intention is appar ent from the context, or unless such a construction leads to nonsensical or absurd results. FKM P’ship, Ltd. v. Board of Rege nts of Univ. of Houston Sys. , 255 S.W .3d 619, 633 (Tex. 2008); see also Tex. Gov’t Code Ann. § 311.011 (West 2005). We presume the leg islature intended a j u s t an d re as onable result by enac ting the
statute. Tex. Gov’t Code Ann. § 3 1 1

. 0 2 1 (3 ) (W est 2005). We may consider the object the

Morrison and Weing arte n do not join in t his arg ument. 2 5leg islature soug ht to obtain, the leg islative history , and the cons e q u e n c e s o f a p a

r ti c ular construction. See id. § 311.023(1), (3), (5) (West 2005). Our analy sis of the statutory text is also informed by the presumption that “the e ntire statute is intended to be e ffe ctive.” Id. § 311.021(2).

Reading section 74.351(a)’s requireme nt that rep o rt s b e serve d within 120 day s of the filing of the “ orig inal petition” as applying e x clusively to the first pleading filed by a cla imant in a health car e liabilit y s u i t re gar d l ess of whom that pleading makes a health car e liability claim
ag ainst (i.e., names as a defe ndant) runs into a number of interpre tational and logic al problems. As

a starting point we note that section 74.351(a) ’s use of the term “orig inal petition” does not indicate whether it wa s intended to mean the orig inal petition “filed in a particula r cause number” (the first document filed as a “petition” in a case ) or the orig inal petition “filed ag ainst a particula r defe ndant” (the first document initiating a suit ag ainst a defe ndant). E i t h er construction must be derive d from something other than the literal lang uag e of the statute. For tunately , there is g uidance from the leg islative history of section 74.351(a) that sheds some light on the leg islature’s intent in amending this section to use the term “orig inal petition.” The bill analy ses prepa red by both the House and Senate co m m i t t ees that handled the amendment to section 74.351(a) in 2005 that added the term “orig inal petition” stated the purpose of the a mendment as follows: 3

Since the passag e of [H.B. 4 in the 78th L eg islature], there has been some confusion reg arding the timing of when an expert repor t is due on a medical malprac tice case . Some have arg ued that the repor t is due 120 day s from the date of the statutory notice letter, instead of 120 day s from the da te of the filing of the orig inal petition. I t w as the intent of H.B . 4 that the re port be trig g ere d by the filing of the law suit.

The curr ent version of the statute is the result of a leg islative amendment in 2005 wher eby 3 the leg islature substitut ed the phrase “the date the orig inal petition was filed” for the phrase “the date the claim was filed.” Act of May 18, 2005, 79th L eg ., R.S., ch. 635, § 1, 2005 Tex. Gen. L aws 1590. 6Ho use Comm. on Civil Practice s, Tex. H.B

. 2645, 78th L eg ., R.S. (2005); Sen. Comm. on

State Affa irs, Tex. H.B. 2645, 78th L eg ., R.S. (2005).

Two things are notable from the bill analy ses. First, t h e p ri mary purpose of the amendment was to clar ify that the 120-day repor t deadline did not run from the date of the statutory notice letter. Second, the analy ses specific ally note that the intent of the statute cre ating the 120-day deadline was to have the deadline “trig g ere d by the filing of the lawsuit.” This is an indication that the amendme nt was intended to make the filing of a la wsuit the demarc ation event for starting the 120-day repor

t deadline. I f a defe ndant has not been a dded to a c ase, the re ha s y et t o be a lawsuit filed ag ainst that defe ndant. Even if the l aw suit ag ainst a particula r defe ndant comes in the 10th amende d petition filed in a cause number, that petition is the first document in which a lawsuit has bee n filed ag ainst that defe ndant. Reg ardle ss how that document is sty led, it is the orig inal or first petition bring ing a lawsuit as to tha t de fenda nt. Thus, a construction of section 74.351(a) that interpre ts the term “orig inal petition” as being the first document filed in a case that bring s a claim
ag ainst a defenda

nt or constit utes the fil ing of a lawsuit ag ainst a d ef en d an t i s consistent with the available leg islative history on the issue.
I n addition, inter

preting the term “orig inal petition” to r efe r to the first petition in a

cause number reg ardle ss of who is named as a defe nd an t i n that petition g ener ates an untenable
prac tical problem. I f the 120-day deadline runs from the filing of the first peti tion in a case reg ardle ss of who is named as a defe ndant, a plaint i ff could never add another phy sician or health car e provider as a defe ndant bey ond 120 day s of the filing beca use the plaintiff would never be able to serve an expert re p o rt as t o t h at defe ndant in a timely fashion. This would eff ectively function as a de fac to statute of limit ations or statute of repose on any further claims ag ainst unjoined 7parties even if the claims ag ainst those parties are unknown or undiscovera ble at the t i m e o f the filing of the initial petition aga i n s t k n o wn defe ndants. This would be a major chang e in the law rela ting to limit ations on claims. I t would also cre ate the potential for unrea sonable or unjust results in case s wher e a pl ai n t i ff h as no rea son to know of viable claims ag ainst a party until more than 120 day s has run from the filing of claims ag ainst other parties. We do not think the leg islature would have intende d to make such a major chang e to t he law w ith respec t to lim itations on health

car e liability claims in such an obscure manner . Nor do we think the leg islature would have intended

a construction of the expert repor t provisions of the statute t o p ro d uce the harsh result of exti ng uishing unknown claims that are still within applicable limit ati o n s p er iods without a more clea r statement of

intent to do so. 4
We construe section 74.351(a) to require that a health car e liability cl ai m an t must

serve an ex pert report on a phy sician or h ea l t h ca re p rovider not later than the 120t h day afte r t he date the claimant files the pleading that first asser ts a health car e liability claim ag ainst that phy sician or health car e provider. The ti tle of t he pleading is not dispositi ve in the s ense that an “orig inal ” 5

A corollar

y to this problem is that it could produce an incentive to eng ag e in unnece ssary 4 an d cost ly proce dural machinations not addre ssed in the statute to avoid losing a claim. For example, one wonder s if a claimant who discovers new claims ag ains t new defe ndants bey ond the 120-day expert repor

t period might file a separ ate lawsuit i n a d i ffe rent cause number ag ainst the new defe ndants—thus cre ating a new “orig inal petition” and a separ ate 120-day repor t period. The plaintiff might then seek to consolidate the case s for discovery and trial

. S u ch p otential proce dural maneuve rs highlig ht the unlikelihood that the leg islat u re intended its amendment of section 74.351(a) to limit the term “orig inal petition” to mean only the first filed document in a cause number rela ting to a health car e liability claim. I f the leg islature had intended such a construction, it would not have done so without any consideration of or provision for proc ed u ra l d evice s that might ef fec tively nullify the measur e. This holding is applicable to situations—such as this case —wher e the claims in que stion 5 rema in pending during the entirety of the rele vant 120-day period. The question of how the 120-day 8petition in a case is opera tive for the purposes of the dead l i n e an d an “ame nded” petition is not.

Rather, the substance of the petition with respe ct t o the health car e providers who are named as defe ndants is dispositi ve. I f the pleading is the first pleading naming a defe ndant, it is the “orig inal” petition as to that defe ndant reg ardle ss of its title, and the 120-day expert repor t deadline is trig g ere d by that filing a s to that defenda nt. Our interpre tation of the amende d section 74.351(a) is consistent with the approa ch taken by the other two Texas appellate cou rt s to confr ont the issue. The San Antonio court of
appea ls held in Osonma v. Smith that the operative pleading for purposes of trig g ering the 120-day
repor t de adline for a defe ndant was the pleading first naming that defe ndant as a party

. No. 04-08- 00841-CV, 2009 Tex. App. L EXI S 4959, at *4 (Tex. App.—San Antonio J uly 1, 2009, pet. denied) (mem. op.). L ess than a y ea r later, the Corpus Christi court of appea ls followed the San Antonio

co u rt ’s approa ch in Padre Behav ioral Health System, LLC v. Chaney , No. 13-09-00495- CV , 2010 Tex. App. L EXI S 1783, at *14-19 (Tex. App.—Corpus Christi Mar. 11, 2010, no pet. h.). We
ag ree with the conclusion re g arding the prope r construc tion of section 74.351(a ) in these c ases.

Our interpre tation is also consistent with case law addre ssing the is s u e under the version of the statute in eff ect befor e 2005. See Poland v. Grigore , 249 S.W .3d 607, 6 1 3 -1 4 (Tex. App.—Houston [1st Dist.] 2008, no pet.) (under former version of section 74.351, time period
to serve expert repor

t on phy sician was trig g ere d by filing of first amende d peti t i o n, which was first petition to contain health car e liability claim ag ainst that phy sician); Poland v. Ott , No. 01-07-

deadline applies in a si tuation involving a nonsuit of claims prior to the ex pirati on of t he 120-day period, and whether tolling may or may not a pply in suc h a situation, is not pr esente d in this case . We express no opinion as to that is sue. 900199-CV, 2009 Tex. App. L EXI S 3766, at *17-18 (Tex. App.—Houston [1st Dist.] 2009,

pet. denied) (mem. op.) (providing expert repor t befor e health car e l i ab i l i t y claim i s filed i n court
ag ainst phy sician or health car e provider does not meet former 74.351(a) ’s service require ment). Coull, Ohanian, and Ralidis contend these case s are not rele vant beca use they involve construction of the previous version of section 74.351(a) , and that the 2005 amendment “ef fec tively chang ed the law.” The Texas Supreme Court has, howeve r, reject ed t h e ar gument that the amendment to the
statute chang ed its meaning

. See Leland v. Brandal , 257 S.W .3d 204, 206 (Tex. 2008) (“[W] e

see nothing in the slight chang e in the statute’s lang uag e to indicate that a differ ent meaning

was intended.”)

. Fur

thermore , the leg islative history indicates that the amendment was intended to clar ify that the statutory notice letter did not trig g er the 120-day repor ting period and the period was trig g ere d by

the filing of a petition i n court. No me ntion is m ade in the le g islative history that the leg islature wa s intending to c reate a signific ant substantive chang e to the law on w hen hea lth care liability claims are exti ng uished. See House Comm. on Civil Practice s, Tex. H.B

. 2645, 78th L eg ., R.S. (2005); Sen. Comm . on State Affa irs, Tex. H.B. 2645, 78th L eg ., R.S. (2005).

I n the pre sent ca se, the event that trig g ere d the deadline for serving appellants with the expert repor

ts at issue in this case was the first pleading filed by Carroll stating claims ag ainst appellants on October 30, 2007. Consequently , Patm an ’s fourth and Posani’s third repor ts wer e timely serve d.
Sufficiency of

Expert Reports Under section 74.351(r) (6), the expert repor t must provide a fair summary of the expert’s opinions reg arding the applicable standards of car e, the manner in which the car e rende red

10by the defe ndant phy sician or health car e provider failed to meet the standards, and the causa l

rela tionship betwee n that failure and the injury , harm, or damag es claimed. Tex. Civ. Prac. & Rem. Code Ann. § 74.351(r )(6) . A cour t shall gr ant a motion challeng ing the adequa cy of a repor t only if the repor

t “ does not r epre sent an objective g ood faith ef fort to c omply ” with the definition of an “expert repor

t” in the statute. Id. § 74.351( l ). To constitute a g ood faith eff ort, the repor

t must provide enoug h information to fulfill two purposes: (1) it must inform the defe ndant of the specific conduct the plaintiff has called into question; and (2) it must provide a basis for the district court to conclude that the claims have merit. Bowie Mem ’l Hosp. v. W right , 79 S.W .3d 48, 52 (Tex. 2002) (citing American Transitional C are Ctrs., Inc. v. Palac ios , 46 S.W .3d 873, 879 (Tex. 2001)). The re p o rt n eed not marshal all of the plaintiff’s proof, but it must include the expert’s opinion on eac h of the elements define d in section 7 4

. 3 5 1

. P a l acios , 46 S.W .3d at 878; Constancio v. Bray , 266 S.W .3d 149, 155 (Tex. App.—Austin 2008, no pet.). A report cannot

mer el y s tate the expert’s conclusions about the statutory element. Palacios , 46 S.W .3d at 879; Constancio , 266 S.W .3d at 155. “Rather , the exp er t m ust explain the basis of his statements to link his conclusions t o the facts.” Bowie Mem ’l Ho sp. , 79 S.W .3d at 52 (quoting Earle v. Ratliff , 998 S.W .2d 882, 890 (Tex. 1999)). I n additio n , b ec au s e t h e statute focuse s on what is require d in the repor

t, the only information rele vant to deter mining whether a repor

t complies with the statute is “within the four corne rs of the document.” Palacios , 46 S.W .3d at 878. The court may
not fill g aps in a repor

t by draw ing infere nces or g uessing as to wh at t h e ex p ert likely meant or intended. Constancio , 266 S.W .3d at 1 5 5 ; Austin Heart P.A. v. W ebb , 228 S.W .3d 276, 279 (Tex. App.—Austin 2007, no pet.).

11We reviewa trial c ourt’s ruling on a motion to dismiss under se ction 74.351 for a n abuse of discretion. Palacios , 46 S.W .3d at 877-78; Constancio , 266 S.W .3d at 155. A trial court abuses its discretion when it acts in an arbitra ry or unrea sonable manner o r wi t h o u t ref ere nce to
any g uiding r ules or princ iples. Downer v. Aquam arine Operators, Inc

. , 701 S.W .2d 238, 241-42 (Tex. 1985). A trial court does not abuse its discretion simply beca use it may decide a matter within its discretion differ ently than an appellate court. Id. at 242. Howeve r, a trial court has no discretion in deter mining what the law is or apply ing the law to the fac ts. W alker v. Pack

er , 827 S.W .2d 833, 840 (Tex. 1992). A clea

r failure by the trial court to analy ze or apply the law corr ectly will constitute an abuse of discre tion. Id.

Appellants contend that the repor ts are i n s ufficie nt in sever al respe cts to meet the require ments for a

n expert repor

t under sec tion 74.351(a). They challeng e Patman’s a nd Posani’s qualifica tions a s “experts.” They also contend that the repor ts a re inadequa te beca

use (1) they fail
to state a st andar d of care for each phy sician or nurse, (2) the y fail to show how ea ch phy sician or

n u rs e b re ac hed the standard of car e applicable to him or her, and (3) they fail to show how eac h alleg ed bre ach w as the proximate cause of Carr oll’s injury

. Expe rt Qualifi cations Ralidis, an emer g ency medicine specia list, Weinga rten, a pulmonologist, Morrison,

a criti ca l ca re phy sician, and Coull, an intensive car e unit nurse, eac h contend that Patman has

n o t raining , cer

tification, or experience in their particula r medical specia lty and is, there fore , n o t qualified to g ive an opinion on the particula r standard of care ap p l i ca b l e t o them. Howeve r, a phy sician nee d not be a pr actitioner in the same spec ialty as t he defenda nt to be a qua lified expert

12in a particula r case . See Broders v. Heise , 924 S

. W

. 2 d 148, 153-54 (Tex. 1996); Blan v. Ali , 7 S.W .3d 741, 745 (Tex. App.—Houston [1st Dist.] 1999, no pet.) (if subject matter is common to and equally develope d in all fields of prac tice, any phy sician familiar with subject may testify as to standard of

car e). Under the Texas Rules of Evidence , the test is whether the expert has k nowledg e, skill, experience , training , or education reg arding the specific issue befor e the court. Tex. R. Evid. 702; see also Roberts v. W illiamson , 111 S.W .3d 113, 121 (Tex. 2003) (inquiry is whether proposed expert is qualified to g ive opinion on particula r subject befor e court). Whether a phy sician qualifies

as an expert is deter

mined by compar ing the are a in which the witness h as s u ch knowledg e, ski ll, experience , or training with the subject matter of the proposed testimony

. The focus is on the “fit” between the s ubject matter at i ssue and the ex pert’s familiarity of t he subj ect matter, and not on a compar ison of the expert’s spec ialty or experienc e with that of the def endant. See Tex. Ci v. Prac. & R em. Code Ann. § 74.401(a) (2) (West 2005) (re quiring expert to have knowledg e of acc epted standards of ca re re l ated to illness, injury , or conditi on involved in claim); Blan , 7 S.W .3d at 745 (g ener al surg eon qualified to testify reg arding s t an d ard of car e for post-operative proce dures perf o rm ed b y g y

necolog ist beca

use post-operative proce dures are common to both fields) (citing Simpson v. Glenn , 537 S.W .2d 114, 116 (Tex. Civ. App.—Amar illo 1976, writ ref ’d n.r.e.) ). I f the subject matter is common to and equally rec o gn i z ed an d develope d in all fields of prac tice, any phy sician fa

miliar with the subject may testify as to the standar d of ca

re. Id.
I n the prese nt case , Carroll contends that the phy sicians and nurses who participa ted in her car e wer e neg lige nt in the basic car e of a patient who was not conscious and that, as a result, the bandag e place d on her leg during emer g ency trea tment was not detec ted, loosened, or remove d 13in time to preve nt the damag e to her leg that require d amputation. Carroll does not complain about

the manner in which any of the phy sicians or nurses car ried out particula

r specia li z ed medical
proce dures, and Patman’s repor t does not addre ss the stan dard of car e require d when providing specia liz ed medical service s such as car diac cathe terization. The test, t h en , is whether Patman is qualified to provide expert testimony reg arding the standard o f ca re appli cable to “the condition involved in the claim,” which in this case is a bandag e place d by an emer g ency responde r on the leg of a patient in an unconsc ious, semicomatose, or a ltered me ntal state and left unadjusted such that it alleg edly

cause d an unnec essar

y amputation of the leg

. Patman has been a licensed medical doctor since 1958. He is a prac ticing phy sician and g ener al and vascula

r surg eon and is board cer tifie d i n general surg ery and g ener al vascula r surg er y . Patman’s repor

t states that, throug h his medical training and his y ear s of prac tice, he is familiar with the appropr iate standard of car e applicable to phy sicians and nurses, reg ardle ss of their specia liz ation, when providing medical service s to a patient in circ umstances such as those alleg ed in this case . He further states that this standard of car e is “a basic medical skill” lear ned by all phy sicians and nurses as part of their basic medi cal training , and is require d of all phy sicians and

nurses re g ardle ss of whethe r they rec eive a dditional or advanc ed tra ining. Appellants do not challeng e Patman’s q ualifica tions as a vascula r surg eon, nor do they contend that he does not know how to car e for a patient in Carroll’s alleg ed condition. Rather, they arg ue that he may not opine reg arding the standard of car e as applied to their various specia lties. This arg ument ignor es the plain lang uag e of the statute, which focuse s not on the defe ndant doctor’s

are a of spe cialty , but on the medical c ondition invol ved in the claim. See Tex. Ci v. Prac. & Rem. Code Ann. § 74.401(a) (2). The arg ument that Patman is unqualified to g ive an opinion beca use he 14does not know the standard of car e applicable to emer g ency room p h y s i cians or pulmonologists

would be persua sive if he wer e p u rp o rt i ng to offe r expert medical opinions in matters peculiar to the fields of emer g ency medicine or pulmonology

. Howeve r, he is not. His repor t states that the standard of car e he descr ibes applies to any phy sician or nurse trea ting an unconsci o u s o r semicomatose patient reg ardle ss of th e phy sician’s or nurse’ s are a of expertise. We hold that the trial co u rt d i d not abuse its discretion in finding that Patman’s medical training and experience
g ained throug h y ear s of prac tice as a vascula r surg eon qualified him to provi d e expert testimony
reg arding the standard of car e require d of a phy sician or nurse whose patient is unconscious or in an impaired or altere d mental state with an alleg edly blood-flow-c onstricting bandag e applied to a leg

.

We als o reje ct Coull’s contention that Posani is not qualified to g ive an opinion
reg ard i n g the standard of car e that applies to an intensive car e unit nurse. Posani’s repor t states that she i s a certified as a critical car e reg istere d n u rse and clinical nurse specialist in adult health (medica l-surg ical) nursing

. Her curr iculum vitae indicates that she has been a reg istered nurse since 1975 and has signific ant experience as an intensive ca re u n i t n u rse. She states that throug h her training and experience she has knowledg e of t h e acc epted standard of car e applicable to a nurse working in the intensive ca re unit with an unconscious patient with health issues such as dia betes, intraosseous cathe ters, and p o t en t i al circ ulation problems. Posani’s opinions are direc ted to the
trea tment that should be provided to such a patient by any nurse reg ardle ss of whether they are working in the emer g ency room , t h e i n t en s i ve car e unit, or the car diac cathe terization lab. Her opinions do not rela te to techniques, decisions, or skills unique to a particula r nursing specia liz ation. The trial court did not abuse its discretion in concluding that Posani was qualified to g ive an opinion
reg arding the standar d of ca re a pplicable to the nur ses involved in Carroll’s c are .

15Standard of Car e All appellants ar g ue that P atman’s ex pert report is defic ient beca use it does not set
out a separ ate st an d ard of car e for eac h particula r phy sician or nurse and fails to explain how

eac h individual phy sician or nur se bre ache d that standard of car e. See Kettle v. Baylor Med. Ctr

. , 232 S.W .3d 832, 839 (Tex. App.—Dallas 2007, pet. denied) (g ener alized statement without explanation that a uniform standard applies can rea sonably be deemed conclusory and deficient).
I n this case , howeve r, P at m an ’s repor t does explain that a uniform standard of car e applies to all phy sicians and nur ses par ticipating in Car

roll’s ca re. Patman opine s:

The applicable standard of car e for nurses (including E.R. and I CU nurses) and phy sicians (including E.R., internal/attending phy sicians, and consulting phy sicians) char g ed with the care, surveillance and treatment o f patients who are unconscious, semicomatose or with other signific ant altere d mental states is very basic and thus the same for all nurses a

nd phy sicians involved with such patients.

Patman’s repor

t then descr ibes what that standard of car e is: “the standard of car e require s both the

nurses and phy sicians involved in this case to assess, monitor, and document the patient’s condition, particula rly including the patient’s skin condition, and most particula rly for this case , those portions of the body with dressing s of any kind.” The repor t expands on the standard of car e by stating that “cir cumfe rential extremity pressure bandag es are to be examined f or draina g e, comfort, proper fit,

as well as preve nting such a bandag e from becoming too constrictive and causing circ ulatory impairment to the distal portion of the extremity of either a venous or

arte rial nature , or both.” Be cause the repor

t aff irmatively states that a uniform standard of car e applies to eac h
p h y s ician and nurse, and identifies what the standard of car e is, Patman’s repor t is suffi ci en t t o provide a fair summary to eac h phy sician and nurse of his opinion reg arding the standard of car e 16applicable to eac h. See Tex. Civ. Prac. & Rem. Co d e Ann. § 74.351(r) (6) (expert repor t means written repor

t that, among other things, provides summary of expert’s opinion reg arding applicable
sta n d ards of car e); Romero v. Lieberman , 232 S.W .3d 385, 391-92 (Tex. App.—Dallas 2007,

no pet.) (applying same standard of car e for all phy sicians participa ting in trea tment of patient as to

rec og nition and trea tment of sy mptoms of septic shock); In re Stacy K. Boone , 223 S.W .3d 398, 405- 06 (Tex. App.—Amar illo 2006, orig

. proce eding ) (discussing standard of car e applicable to all defe ndants involved in administration of trea tment).

Wit h reg ard to the manner in which the ca re r ender ed by

the phy sicians and nur ses failed to meet the standard, Patman names eac h individual phy sician and nurse and states that eac h “complete ly failed to: document the prese nce of the constrictive bandag e; examine, assess, monitor and document the condition of the cover ed are a; rec og nize and document the p o t ential hazard of such a bandag e and include the car e and vigilanc e of the are a in the compre hensive trea tment of Ms. Carroll.” I n Patman’s opi nion, these failures by eac h phy sician and nurse named represe nted

a “mar ked depar ture in the applicable standard of b as i c ca re for eac h and ever y one.” The repor

t plainly states that eac h of these phy sicians and nurses participa ting in Carroll’s car e did not take note of t he presence of t he bandag e on Carro l l ’s l eg an d, conseque ntly , did not observe or m onitor the ef fe ct of the bandag e throug hout her trea tment. The repor t provides a fair summary of Patm an ’s opini o n reg arding how eac h phy sician and nurse failed, in the same manner , to meet the uniform standard of car e. We hold that the trial court did not abuse its discretion when it denied appellants’ motions to dismiss based on their complaints that Carroll’s ex pert reports were deficient as t o the statement of the sta

ndard of car e and a lleg ed bre ach of the standar d by

the def endants.

17Coull challeng es P osani’s report on simil ar gr ounds , co n t en ding that Posani failed

to articula te the applicable standard of car e for eac h nurse. Howeve r, beca use we have deter

mined that Patman’s repor

t meets the statutory require ments on the issues of the standard of car e and failure
to meet that standard as to eac h appellant, we need not addre ss complaints reg arding the sufficie ncy of Posani’s re port on these issues. See Tex. R. App. P . 47.1.

Causation Ap pellants also arg ue that Patman’s report is defic ient beca use i t does no t p ro v i d e

a fair summary of his opinions reg arding causa tion as to eac h appellant. See Tex. Civ. Prac. & Rem. Code Ann. § 74.351(r) (6). Appellants contend that Patman’s repor t collectively addre sses causation

an d t h at Patman fails to link his causa tion opinions to specific conduct of eac h Appellant. They
arg ue that his collectiv e o p i n i o n as to causation is inadequa te and that he is require d to rende r an opinion as to causation by eac h appellant in a mor e spec ific manne r. Patman’s repor

t sta tes that eac h doctor and nurse f ailed to detec t and document the
prese nce of the bandag e on Carroll’s leg , and that eac h doctor and nurse failed to assess and monitor the condition of her bandag ed leg or examine the “cir cumfe rential extremity pressure dressing ” for “dra inag e, comfort, proper fit, as well as preve nting such a bandag e from becoming too constrictive and causing circ ulatory impairment to the distal portion of the extremity .” Patman’s repor t explains:
The purpose of such chec ks and documentation is to (1) ensure that the bandag e is not too tight and constricting circ ulation to the l eg, so that compar tment sy ndrome does n o t develop in the leg , and (2) to aler t personne l chec king the patient in the future of a potential proble m are a that nee ds monitoring. B oth are critica l.

18This explanation of t h e appli cable standard of car e and why adher ing to it is require d provides

sufficie nt information to explain how brea ching that standard cause d Carroll’s injury

. Patman links brea ch of the standard of

car e with the injury

in his opini on reg arding causation:

I t is there fore my opinion, based upon rea sonable medical probability , that eac h o f t h e p hy sicians and the nurses listed above, who wer e char g ed with the ca re o f Ms. Carroll (who rema ined in a comatose state), brea ched the applicable standard of car e by failing to document the exis tence of t h e d re ssing, inspect the dressing , monitor the dressing and evalua te the condition of the distal extremity from 09/01/06 to . . . 09/02/06. As a

conseque nce, c irculation to the extremity was compromised, the extremity ’s condition went unmonitored, and the impediment to circ ulation was not remove d until afte r the damag e was done. Such actions cause d irreve rsible ischemia of the rig ht lower e x tremity with resultant amputation.

Patman opines that eac h phy sician’s and nurse’ s i n d i v i dual failure to notice the
prese nce of the bandage an d m o nitor the eff ect it had on Carroll’s leg cause d the bandag e and its eff ects to g o undetec ted, which cause d the d amage requiring amputation of her leg

. Moreove r, Patman’s repor

t includes his opinion reg arding what the proper course of action for eac h phy sician

an d n u rs e would have been—to notice the bandag e, make sure it was not too tight, and loosen or

remove it if it was. He also states that eac h phy sician and nurse should have documented the
prese nce of

the banda g e to ensure that subsequent car eg ivers would do the same. Patman’s repor t notifies eac h appellant that, in his opinion, eac h of them is responsible for the har m cause d by

the constrictive ba

ndag e bec ause none of them noticed, loosene d, or re moved it. The expert repor

t is not require d to prove the def en d an t ’s liability , but rathe r to provide noti ce o f wh at co nduct forms the basis for the plaintiff’s complaints. Apodaca v. Russo , 228 S.W .3d 252, 255 (Tex. A pp.—Austin 2007, no pet.). I t may be that the trier of fac t ultimately reje cts Patman’s opinion reg arding causation and deter mines that the damag e cause d by the bandag e 19beca

me irreve rsible at a point prior to the involvement of one or more of the appellants in Carroll’s

car e, such that his or her failure to intervene did not proxi matel y cause the harm. At this stag e of the case , howeve r, Carroll is not require d to marshal all of her evidenc e or prove her case ag ainst a particula r defe ndant. Rather, what the statute require s is that the repor t constitute a g ood faith eff ort
to provide a fair summary of the expert’s opinions reg arding causation. See Tex. Civ. Prac. & Rem. Code Ann. § 74.351(c) (6). The “g ood faith eff ort” require ment is met if the repor t provides enoug h information to (1) inform the defe ndant of the specific conduct the plaintiff calls into question and (2) provide a basis for the trial court to conclude that the claims have merit. American Transit ional Care Ctrs. , 46 S.W .3d at 879. Patman’s report sufficie ntly informs ea ch def

endant in this case of the specific conduct he believes was defic ient and what conduct on the part of eac h defe ndant cause d injur y to Carroll. Kee ping in mind that expert repor ts such as Patman’s are simply a method to show, at an ear ly stag e in the litigation, t h at a p l ai n t i ff has a viable cause of action that is not frivolous or without expert support, we hold the trial court did not abuse its discretion when it denied appellants’ motion to dismiss on the g round that Patman’s re port was de ficient a s to causation. 6

Conclu sion Patman’s fourth and Posani’s third repor ts wer e serve d on appellants within 120 day s of the date Carroll first asser ted a health car e liability claim ag ainst them in court and wer e timely

. See Tex. Ci v. Prac. & Rem. Code Ann. § 74.351(a)

. The trial court did not abuse its discr etion by

Coull also challeng es Posani’s qualifica tions to provide opinions reg arding m ed i ca l 6 causa tion. Carroll conce des that Posani is not so qualified and states that her repor t was not offe red for the purpose of addre ssing causation. Consequently , we do not addre ss complaints reg arding the sufficie ncy

of Posani’s re port in this reg ard. 20conclu d i n g that Patman’s fourth repor t repr esents an objective, g ood faith eff ort to comply with the definition o f an expert repor t provided in section 74.351(r) (6). See id. § 74.351(r) (6). The trial court’ s order

deny ing a

ppellants’ motions to dism iss is affirmed.

_ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ G. Alan Waldrop, Just ice Be fore J ustices Patterson, Waldrop and H enson Affir med Filed: May

14, 2010

21