### 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. 03-17-00740- CV

Dr. P aul Richter, Appellant

v. Steven K . Down ey, Appellee

F ROM TH E DISTRI CT COURT O F CO MAL CO UNTY, 207 TH JUDICI AL DISTRICT NO. C2016 -12 61B , H ONO RAB LE TO DD A. B LOM ERTH, JUDGE P RESIDING

O P I N I O N

Dr. Paul Richter, D.O., appea ls an order deny ing his motion to dismiss a health car e l i ability claim under the Texas Medica l L iability Act (TML A), Tex. Civ. Prac. & R em . C o d e §§ 74.001–.507, and overr uling his objec tion to the ex pert re port filed in support of the c laim, see id. § 74.351 (re quiring expert repor t and providing for dismiss al wher e court finds repor t untimely

or inadequa te). Be cause we conclude that the district court acte d within its discretion in overr uling Richter’s objec tion and deny ing his motion, we a ffirm.

BACK GR OUND 1 On October 27, 2014, Steven Downey felt stomach pain and visited the Emerg ency Depa rtment (ED) at Christus Santa Rosa Hospital in New Br aunfe ls. L ater that afte rnoon, Richter

T he expert repor

t at issue provides the backg round fac ts, and we acc ept the fa ct u al 1 st at em en t s t here in for the limit ed purpose of this appea l. See Bowie Mem ’l Hosp. v. W right , 79 S.W .3d 48, 53 (Tex. 2002).ex amined Downey and observe d that his lower- rig ht abdomen was tender to the touch

. R i ch t er

discharg ed Downey without perf orming any diag nostic testing. He i nstructed Downey t o return if his sy mptoms worsene d and noted in his file, “appe ndicitis prec autions g iven. Return to ED for any worsening of sy

mptoms.” Four day s later, Downey returne d to the ED and was diag nosed with acute appendic itis wit h perf

oration and pe ritonitis. That same day , Downey underw ent an opera tion for appendic itis which reve aled an intra- abdominal absce ss a nd bowel damag e requiring remova l of a portion of the bowel. Over the next s ev er al months, Downey develope d additional absce sses requiring draina g e, under went two lapar otomies, underw ent an ileostomy and re versa l, developed

a leak in his bowel requiring repa ir, experience d rena l failure , develope d an enter ocutane ous fistula,

was place d on intravenous fee ding three times and a cathe ter once, and was hospitaliz ed four times.

Downey alleg es that Richter wa s neg lige nt and bre ache d his duty of car e by failing
to test for, diag nose, and trea t acute appendic itis on October 2 7 , an d that the delay in diag nosis

cause d Downey ’s appendix to perf orate , resulting in the complications descr ibed above. To comply with the TML A’s expert-re port require ment, Downey serve d Richter with an expert repor t from Dr. Andre w Butler, M .D. (Origina l Report). See id. § 74.351(a) (re quiring service of ex p er t repor t to maintain health car e liability claim). Richter objected to the repor t as inadequa te under the TML A with respe ct t o standard of car e and causa tion. See id. § 7 4

. 3 5 1 (r) (6) (defining “expert report” as summarizing s tandar d of care, pr ovider’s departur e from that standard, and how depar ture caused injury). After a hearing , th e d i s t ri ct court ruled that the Original Report was inadequate and g ave Downey thirty day s to su b m i t an am ended repor t. See id. § 74.351(c) (allowing one 30-day

2extension if expert repor t is found defic ient). Downey timely serve d Richter with Butler ’s amende d
repor t (Amende d Report). The Amended R eport a sserts that Richter breac hed the standard of car e by : 1. Fa iling to o b tain a CT scan of the abdomen and pelvis in a patient prese nting with rig ht lower quadra nt abdominal pain and tender ness. 2
2. Fa iling to obtain labora tory testing in a patient prese nting with lower rig ht quadra

nt abdominal pain and tende rness. 3. Fa iling to re cog nize that Mr. Downey had ac ute appe ndicitis. 4. Fa iling to appr opriately trea t Mr. Downey ’s ac ute appe ndicitis. 5. Fa iling to consult a surg eon for Mr. Downe y ’s ac ute appe ndicitis. 6. Fa iling to initiate antibiotics for Mr. Dow ney ’s ac ute appe ndicitis. 7. Fa iling t o gi v e Mr. Downey appropr iate prec autions reg arding the possibili ty

of ac ute appe ndicitis on discharg e. The Amended R eport co n t i nues by noting that Downey ’s presentation was “consistent with acute appendic itis.” Butler bases this opinion on his experience that the prese n t at i o n o f rig ht-lower quadra nt pain and tender

ness on phy sical examination “is ty pical of the sy

mptoms cause d by acute appendic itis.” Fur

ther, the Amended Report cites the Americ an College of Emerg ency Phy sicians Clini cal Policy on Appendicitis and the J ournal of the Americ an Medica l Association in support of

The Amended Report further explains that when patients prese nt with rig ht lower quadra nt 2 abdominal pain and tender ness, “the Emerg ency Depa rtment standard of car e is to obtain a CT scan of the abdomen and pelvis to rule out acute appendic itis.” Acc ording to the Amended Report, three source s— Rosen’s Emerg ency Medicine text book, Tintanelli’s Emerg ency Medicine text book, and a rec ent study from the Annals of I nterna l Medicine—suppor t this approa ch. The Annals of I nterna l Medicine study involved 3000 patients with suspected appendic itis over a nine-y ea r p er i od and conclude d b y re co m m ending “routine use of [C T scan] as the standard of car e for suspected appendic itis i n adults.” 3Butler ’s opinion that the prese nce of rig ht lower quadra nt abdominal pain “is the most useful clinical finding for identify

ing patients at increa sed likelihood for a ppendicitis.” The Amended Report acknow ledg es that “some case s of ear ly appendic itis will not be evident on CT scan.” I t further states that “whe re a patient prese nts wi t h rig ht lower quadra nt abdominal pain and tender ness and a normal CT scan,” the standard of car e is to g ive t he patient

car eful discharg e instructions reg arding the possibili ty of a missed ear ly app en d i cit is. Downey ’s written discharg e instructions note “appe ndicitis prec autions g iven. Return to ED for any worsening of sy mptoms,” but the rema inder of the instructions conce rn musculoskeletal pain. Acc ording to Dr. Butler , “The re are no specific instructions telling Mr. Downey to return for persistent sy mptoms, or
to be evalua ted within a specific time course , or telling Mr. Downey what sy mptoms he should seek medical evalua

tion for.” The Amended Report claims that emer g ency phy sicians ty pically “re commend that a patient be ree valuated within 24 hours, and return within this time if sy mptoms persist or wor sen or if f

ever s or vomiting deve lop.” Wit h reg ard to c ausation, the Ame nded Report opines had Dr. Richter perf

ormed a CT scan on Steven Downey on [October 27, 2014], the diag nosis of acute appendic itis would have been made and Mr. Downey would have underg one an uncomplicated appende ctomy , and the complications, proce dures, opera tions and hospitaliz ations that Mr. Dow n ey later experience d rela ted to his perf orate d appendic itis would have been avoided. I n short, it is my opinion that Dr. Richter’s failure to perf

orm a CT scan on Steven Downey on [October 24, 2014] was a direc t and proxi mate cause of damag es sustained by Mr. Downey as a result of his perf orate d appendix.
I n support of this causa tion opinion, the Amended Report not es t hat “the risk for perf oration in ac ute appe ndicitis increase s with tim e” a nd that “a de lay

in diag nosis and trea tment of appendic itis is associate d with an incre ased risk of perf oration.” I t cites a s tudy published in

4the An n al s o f Surg ery , which “showe d that 65% of patients with perf orate d appendic itis had experience d sy

mptoms for longe r than 48 hours.” I t further re fe re n ce s the medical website UptoDate.c om, which states that “wound infec tions a nd intra-a bdominal absce sses occur ty pically in patients with per fo ra t ed appendic itis and are ‘ver y rar e’ in patients with simple appendic itis underg oing an uncomplicated appende ctomy .” Finally , it points to a U.S. Depa rtment of Hea lth and Human Service s re p o rt i ndicating that “appe ndicea l perf oration incre ases the risk of wound infec tion, absce ss formation, sepsis, wound dehisce nce, pneumonia, prolong ed ileus, hear t f ailure, and re nal insufficie ncy .”

Richter objected that the Amended Report was inadequa te with respe ct to causa tion 3 and moved for dismiss al under the TML A. See id. § 74.351(b) (providing for dismiss al wher e expert
repor t is untimely or i n adequate), (l) (providing that expert repor t is inadequa te if it does not
repr esent a g ood-fa ith eff ort to comply wi th subsection (r)(6)’ s definition of “ex pert report”)

. On October 17, 2017, the district court overr uled Richter’s objection to the Amended Report and denied his motion to dismiss

. Richter timely filed a notice of ap p eal. See id. § 51.014(a) (9) (providing interlocutory

revie w of district cour

t’s order deny ing r elief soug ht under § 74.351(b) ). 4

Richter did not object to the Amended Report’s adequa cy reg arding the standard of car e. 3 Richter subsequently filed a “Motion for Reconsider ation/Rehear ing of [hi s] Objections to 4 Plaintiff’s First Amended Ex pert Report and Motion to Dismiss,” which the district court denied. Richter filed a notice of interlocutory appeal fr om that denial, dockete d under this cause number. We do not addre ss the district court’s denial of Richter’s “Motion for Reconsider ation/Rehear ing” beca use we conclude that the cour t acted w ithin it s discretion in de ny ing the underly ing motion to dismiss

. See Tex. R. App. P. 47.1 (“The court of appea ls must hand down a written opinion that is as brief as prac ticable but that addre sses ever y issue raised and nece ssary to final dispositi on of the appea l.”). Moreove r, we find no support for an independe nt rig ht to an interlocutory appea l of such an order

. See Central Tex. Spine Inst., LLP v. Brinkley , 344 S.W .3d 537, 542 (Tex. A pp.—Austin 2011, pet. denied) (conc luding that order deny ing motion to rec onsider denial of motion to dismiss 5LEGAL STANDARD The TML A require s “a claimant to serve an expert repor t ear ly in the proce eding s on

eac h party ag ainst whom a health car e liability claim is asser ted.” Baty v. Futrell , 543 S.W .3d 689, 692 (Tex. 2018) (citing Tex

. Civ. Prac. & Rem. Code § 74.351(a)). “[ T ] h e p u rpose of t he ex pert
repor t require ment is to we ed out frivolous malpra ctice c laims in the early stag es of litigation, not
to dis p o s e o f potentially meritorious claims.” Abshire v. Christ us Health Se. Tex. , No. 17-0386, 2018 WL 6005220, at *3 (Tex. Nov. 16, 20 1 8 ) (p er curia m) (citing American Transit ional Care Ctrs. of Tex. v. Palacios , 46 S.W .3d 873, 877 (Tex. 2001) (noting that “eliciting an expert’s opinions

ear ly in the litigation [i s] an obvious place to start in attempting to reduc e frivolous lawsuits”)). The
statute provides for dismiss al of claims on a health car e provider’ s motion if the require d expert
repor t is not timely serve d. See Tex. Civ. Prac. & Rem. Code § 74.351(b). I mportantly , “an expert
repor t has not been serve d within the period specifi ed by Subsection (a) [when] elements of the
repor t are found defic ient.” Columbia Valley Healthcare Sys., L.P. v. Zamarripa , 526 S.W .3d 453, 459 (Tex

. 2017) (quoting Lewis v. Funderburk , 253 S.W .3d 204, 207 (Tex. 2008) (alter ation in Zamarripa )). I n other words, both untimely expert repor ts and ti mely but defic ient expert repor ts provide a basis for dismiss al of health car e liability claims. See, e.g. , Lewis , 253 S.W .3d at 207–08 (noting that TML A “def

ines a timely but defic ient repor t as one that ‘has not been serve d’”) (quoting Tex. Ci v. Prac. & Rem. Code § 74.351(c) ).

When a litigan t o b

j ec t s under the TML A, the district court “shall g rant a motion challeng ing the adequa cy of an expert repor t only if it appea

rs to the co u rt , af

t er hear ing, that the

was not appe alable unde r Tex. Civ. P rac . & Re m. Code § 51.014(a) (9))

. 6repor

t doe s not r epre sent an objective g ood faith eff ort to c omply with the [TML A’s] de finition of an expert re port.” Te x . Civ. P rac . & Re m. Code § 74.351(l). Unde r that def inition: “Expert repor

t” means a written repor

t by an expert that provides a fair summary of the expert’s opinions as of the date of the repor t reg arding applicable standards of car e, the manner in which the car e rende red by the 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 da

mag es cla imed. Id. § 74.351(r) (6).

The S upreme Court of Tex as has held that an ex pert report represe nts a good-f aith eff ort to comply with thi s d ef i n i t i o n if it satisfies the two-par t Palacios test, which require s “(1) informing the defe ndant of the specific conduct c alled into question and (2) providing a basis for the trial court to conclude the claims have merit.” Baty , 543 S.W .3d at 693–94 (citing Palacios , 46 S.W .3d at 877). I t has also descr ibed “a ‘g ood faith eff ort’ in this context” as “a repor t that does

n o t contain a materia l defic iency

. There fore , an expert repor t that includes all the required elements[ ,] and that explains their connec tion to the defe ndant’s conduct in a non-conc lusor y fashion[,] is a g ood faith ef fort.” Miller v. JSC Lake Highlands Operations, LP , 536 S.W .3d 510, 513 (Tex. 2017) (per curia m) (alter ations orig inal) (quoting Samlowski v. W ooten , 332 S.W .3d 404, 409–10 (Tex. 2011)).

I n assessing adequa cy , courts are limit ed to the four corne rs of the repor t

. E

. g
. , Palacios , 46 S.W .3d at 878 (“B eca use the s t at u t e fo cu s es on what the repor t discusses, the only information rele vant to the inquiry is within the four corne rs of the document.”)

. Neve rtheless, form does not trump substance: “[C] ourts must view the repor t in its entirety , rathe r than isolating specific portions or sections, to deter mine whether it includes” the require d information. Baty , 543 S.W .3d

7at 694 (citing Van Ness v. ETMC First Physicians , 461 S.W .3d 140, 144 (Tex. 2015); Austin Heart,

P.A. v. W ebb , 228 S.W .3d 276, 282 (Tex. App.—Austin 2007, no pet.) (“The form of the repor t and the l ocation of t h e i nformation in the report are not dispositi ve.”) ). The four-cor ners requireme nt

never theless “pre cludes a court from filling g aps in a repor t by draw ing infere nces or g uessing as to what the e x pert likely

meant or intende d.” Austin Heart , 228 S.W .3d at 279. A report is adequate wit h respe ct to causa tion if it ex plains, “base d on fac ts set out in the repor

t, how and why a health car e provider’ s brea ch of the standard of car e cause d the injury .” Zamarripa , 526 S.W .3d at 459–60 (citation and punctuation marks omitted). “A bare expert opinion that the bre ach cause d the i njury will not suffice .” Id. at 460. “‘ [R ]ather, the expert must expl ain the b asis of his statements to link his conclusions to the fac ts.’” Id. (quoting Earle v. Ratliff , 998 S.W .2d 882, 890 (Tex. 1999)). “I n showing how and why a brea ch of the s t an d ar d o f car e

cause d injury , the expert repor t must be a g ood-fa ith eff ort to ex p l ai n , fac tually , how proxi mate

cause is g oing to be proven.” Id. Prox imate cause has two elements: fore seea bility and cause in fac t. Id. (citing Rodriguez-Escobar v . Goss , 392 S.W .3d 109, 113 (Tex. 2013) (per curia m)). We revie w denial of a motion to dismiss under Section 74.351 for abuse of d iscretion. See, e.g. , TTHR L t d

. P ’s h i p v. Moreno , 401 S.W .3d 41, 44 (Tex. 2013). “Unde r that standard, appellate courts defer to the t rial court’s fac tual deter minations if t h ey are supported by evidenc e, but revie w its leg al deter minations de nov o . ” V

a n N es s , 461 S.W .3d at 142. “I n the absenc e of finding s of fac t or co n clusions of law, a trial court’s judgme nt will be upheld on any theory supported by the rec ord, and any nece ssary finding s of fac t will be implied.” Rosemond v. Al-Lahiq , 331 S.W .3d 764, 766 (Tex. 2011).

8DISCUSSIO N Richter arg ues that the Amended Report is i n ad equate with respe ct to causation beca use it fails to addre ss cause in fac t and fore seea bility

. Downey responds that the repor t, viewed in its entirety , adequately addre sses causa tion by identify ing fac ts in Downey ’s medical rec ord and medical studies which support the conclusion that Richter’s failure to perf orm a CT scan on October 27, 2014, “wa s a direc t and proxi mate cause of damag es sustained by Mr. Downey as a result of his perf orate d appendix.” Downey points to the repor t’s statements that Downey exhibi ted appendic itis
sy mptoms on his October 27 ED visit, that the standard of car e for those sy mptoms is to pe rfor

m a CT scan, and that Richter discharg ed Downey without perf orming a C T scan. Downey also highlig hts the repor

t’s rec itations that a delay in di agn o s i s i ncre ases the risk of appendic eal perf oration; that most patients with perf orate d appendic itis experience sy mptoms for longe r than 48 hours; that infec tions and absce sses are very rar e in patients with uncomplicated appendic itis; and that perf oration in appendic itis incre ases the risk of infec tion, absce sses, prolong ed ileus, and rena l insufficienc y

—most of which Downey suffe red. I n reply , Richter contends that the repor t does not establi sh proxi mate cause beca use it fails to descr ibe what a CT scan conducte d on October 27 would have show n and ar g ues that the re port does not addre ss causa tion for any alleg ed breac h of the standar d of ca

re othe r than the f

ailure to pe rfor

m a CT scan. The fi rs t prong of Palacios require s us to deter mine whether the Amended Report
repr esents a g ood-fa ith eff ort to inform Richter “of the specific conduct called into question.” Baty , 543 S.W .3d at 693 (citation omitted). We “view the repor t in its entirety , rathe r than isolating specific portions or sections, to deter mine whether it includes” the require d information. Id. at 694.

9The Ame nded Report spe cifies that “[i ]n patients prese nting with rig ht lower qua drant a bdominal pain and tender

ness, the Emerg ency Depa rtment standard of car e is to obtain a CT scan of the abdomen and pelvis to rule out acute appendic itis.” I t then cites medical literature to support this

asser tion and concludes, “I t is my opinion that Dr. Ri chter violated t he st andar d of care by failing to perfor m a CT scan on Steve n Downey on [October 27, 2014].”
T h e Amended Report alludes to other brea ches but does not opine that any of Richter’s conduct other than the failure to perf orm a CT scan violated the st an d ar d of car e with
respe ct to Downey . I t list s additional alleg ed breac hes, but never mentions them in the remainder of t h e re p o rt , save one: “F ailing to g ive Mr. Downey appropr iate prec autions reg arding the possibili ty of acute appendic itis on discharg e.” The repor t states that “whe re a patient prese nts with rig ht lower quadra

nt abdominal pain and tender ness and a normal C T scan, most emer g ency phy sicians

. . . will rec ommend that a patient be ree valuated within 24 hours, and return within this time if sy mptoms persist or worsen of if feve rs or vomiting develop.” Crucially , howeve r, the repor t does not specify that this is the standard of car e. And even if it did, it is untethere d to the fac ts: since Richter did not order a CT scan, he did not confr ont a situation wher e “a patient prese nts with rig ht lower quadra

nt a bdominal pa in a

nd tender ness and a normal CT scan .” (Emphasis added.) Thus, the re port satisfies the first element of Palacios , but only insofar as it state s that failure to perfor m

a CT scan on October 27, 2014 is the brea ch called into question. “A repor t that s at i s fi es [ t h e TML A’s require d elements], even if as to one theory only , entitles the claimant to proce ed with a suit
ag ainst the phy sician or health care provider.” Certified EMS, Inc. v. Pott s , 392 S.W .3d 625, 630 (Tex. 2013). Acc ording ly , we pr ocee d to the second pr ong of the Palacios test.

10I n as s essi ng the second prong —whether the Amended Report provides a basis to

co n cl u d e t hat Downey ’s claims have merit—we consider whether the repor t explains how fore seea bility and cause in fac t will be proven. See Zamarripa , 526 S.W .3d at 459–60. “The repor t need not use the words ‘proximate cause ,’ ‘for esee ability ,’ or ‘ca use in fac t’” to be adequate; indeed, “mer ely incanting words d o es n o t suffice .” Id. at 460 (citing Bowie Mem ’l Hosp. v. W right , 79 S.W .3d 48, 53 (Tex

. 2 0 0 2 ); E a r l e , 998 S.W .2d at 890). The repor t must, howeve r, provide a fac tual explanation of how the expert intends to prove that the brea ch proxi mately cause d the injury

. Id . I n evalua

ting the A mended Repor

t, we ar e mindful of

the Texas Supreme Court’s most rec ent decision involving the adequa cy of a TML A-re quired expert repor t, Abshire , 2018 WL 6005220. There , the C ourt emphasiz ed that our i nquiry is limit ed to “whe ther the expert has ex plained how the neg lige nt conduct ca

used the injury ,” and tha t “[t] he ultimate evidentiar y value of the [ex pert] opinions [ ] i s a matter to be deter mined at summary

judgme nt and bey ond.” Id. at *6.

A. F orese eability “A p h y s ic ia

n ’ s o r h ealth car e provider’ s brea ch is a fore seea ble cause of the plaintiff’s injury if a phy si ci an or health car e provider of ordinary intelligenc e would have anticipated the dang er cause d by the neg lige nt act or omission.” Curnel v. Houston Methodist Hosp.-W illow brook , No. 01-17-00088- CV, 2018 WL 3883402, at *5 (Tex. App.—Houston [1st Dist.] Aug

. 16, 2018, no pet.) (mem. op.) (citing Price v. Divita , 224 S.W .3d 331, 336 (Tex. App.—Houston [1st Dist.] 2006, pet. denied)). The most rec ent Tex as S upreme Court decision addre ssing f orese eability

under the
TML A, Miller v. JSC Lake Highlands Operations , involved a patient who aspirate d on a dislodge d dental bridg e. 536 S.W .3d at 512. The expert repor t repr esente d a g ood-fa ith eff ort to show

11fore seea

bility , as i t “m a[ d e] clea r that failing to identify the lodge d dental bridg e and aler t
appropr iate per sonnel could re sult in harm.” Id. at 515. 5

Richter arg ues that the Amended Report does n o t addre ss fore seea bility

. We disag ree . An expert “re port need not use the words ‘proximate cause ,’ ‘for esee ability ,’ or ‘ca use in fac t’” and its “ade quacy does not depend on whether the expert uses any particula r ‘mag ical words.’” Zamarripa , 526 S.W .3d at 460 (citing Bowie , 79 S.W .3d at 53). The Amended Report states plainly that on his October 27 ED visit “Downe y ’s prese ntation was consistent with acute appendic itis” and that “[ i ] n p atients prese nting with rig ht lower quadra nt abdominal pain and tender ness, the Emerg ency Depa

rtment standard of car e is to obtain a CT scan of the abdomen and pelvis to rule out
acute appendic itis.” I n fac t, the repor t states that “rig ht lower quadra nt abdominal pain is the most useful clinical finding for identify ing patients at incre ased likelihood for appendic itis.” (Emphasis added.) I t f

urther asser

ts tha t “ The risk for perf

oration in a cute appendic itis incre ases with time; a delay in diag nosis and trea tment of appendic itis is associate d with an incre ased risk of perf oration.” And t he report i d en tifies medical lit era ture corre lating perfor ated appendicitis with incre ased risk of wound infe ction, absce ss formation, prolong ed ileus, and r enal insuff iciency

. Citi ng this literature in support, the Amended Report explains that a d elay in diag nosis and trea tment of appendic itis is associate d with an incre ased risk of perf oration; that “65% of patients with pe rfor ated appendic itis had experience d sy mptoms for longe r than 48 hours”; that “wound infec tions and intra-a bdominal absce sses occu r t y pically in patients with perf orate d

The repor

t w as adequate as to c ause in f act beca use it e x plained that such a de lay cause d 5 a series of pulmonary issues that cause d the patient’s aspiration and death. See Miller v. JSC Lake Highlands Operations, LP , 536 S.W .3d 510, 517 (Tex. 2017) (per curia m). 12appendic itis and are ‘ very rar e’ in patients with simple appendic itis underg oing a n uncomplicated appende ctomy ”; and that “appe ndicea l perf oration incre ases the ris k of wound infec tion, absce ss formation, sepsis, wound dehisce nce, pneumonia, p ro l o n ged ileus, hear t failure , and rena l insufficienc y .” Ba sed upon the for eg oing, the district court reasona bly could have conclude d that the repor t repr esents a g ood-fa ith eff ort to demonstrate that an ED phy sician of ordinary intelligenc e

wo u l d h ave anticipated that there was dang er associate d with failing to perf orm a CT sca n o n a patient with Downey ’s sy mptoms.

B. Cause in f

act “F or a neg lige nt act or

omission t o have be en a c ause- in-fac t of” injury , “the a ct or omission must have bee n a s u b s tantial fac tor in bring ing about the harm, and absent the act or omissio n— i.e. , but for the act or omission—t he harm would not have occur red.” Zamarripa , 526 S.W .3d at 460 (quot ing Rodriguez-Escobar v. Goss , 392 S.W .3d 109, 113 (Tex. 2013) (per curia m)). Cause in fac t—along with fore seea bility —“is the causa l rela

tionship betwee n brea ch and injury that an expert re port must ex plain to satisfy the Act.” Id. Three rec ent Texas Supreme Court cases considering motions t o dismiss under the
TML A inform our analy sis. I n Van Ness , the Court considere d the adequa cy of an expert repor t with conflicting statements about pertussis (colloqu ia ll y , whooping coug h) afte r two-month-old Nicholas Van Ness died from the disease

. See 461 S.W .3d at 142–43. The expert repor t stated that “the applicable standard of car e” for a patient with Nichol a s ’ s sy mptoms was to “per form labora tory tests, administ er an t i b i otics prophy lactica lly while the tests are pending and/or to admit the infant to a medical fac ility ,” but that the phy sician had not done so. Id. at 142. The repor t opined that, had the

13phy sician “per formed any of these tests, it would have shown [pertussis] at a trea table stag e and but

for the failure to trea t Ni ch o l as Va n Ne ss as outlined above he would have had a 51% or more chanc e of survival.” Id

. The Court considere d the hea l thcar e provider’s objection that elsewhe re in the repor

t the expert indicated “tre atment [for pertussis] is of littl e benef it to the person infec ted,” but “antibiotics may shorten the duratio n o f i nfec tiousness and are thus rec ommended.” Id. at 143–44. Thus, the provid er ar gu ed , t h e repor t did not establish that failure to provide antibiotics

cause d Nichola s ’s d eath. The Court reje cted this arg ument beca use considering the entire
repor t—including potentially conflicting statements—“the trial court did not abuse its discretion by deter mining that the repor

t was not conclusory , but was a g ood faith eff ort to comply with the [Act] ’s require ments.” Id. at 144.

Two y ear s later, in Zamarripa , the Court made clea r that a repor

t must speak to both fore seea b i l i t y an d cause in fac t to adequately addre ss causa tion. 526 S.W .3d at 460 (abr og ating l o we r co urt holdings that expert repor ts need not addre ss proxi mate cause to satisfy TML A’s

ca usation require ment). I n Zamarripa , Yolanda I ris Flore s died from complications of childbirth while she was being transfe rre d, during labor, from Valley Reg ional to another hospital on order of Dr. Patrick Ellis. Id. at 456–57. Valley Re gi o n al ch al l en g ed the adequa cy of an expert repor t opining that by “‘pe rmitting and fac ilitating the transfe r,’ Valley Reg ional cause d Flore s to be in an ambulance when she suffe red a place ntal abruption and car diac arr est, leading to her death.” Id. at 461. The Court found t his in s u ff i ci en t to show that Valley Reg ional proxi mately cause d Flore s’s death beca

use it does not “explain[ ] how Valley Reg ional had either th e ri g ht or the means to

14persua de Dr. Ellis not to order the transfe r or to stop it when he did.” Id. I t there fore failed to show

proxi mate ca

use. Most rec ently , in Abshire , the Supreme Court cautioned that “the court’s role” in considering a motion to dismiss under the TML A “is to deter mine whether the expert has explained how the neg lige nt conduct cause d the injury ,” and that “[w]hether this explanation is b elievable should be litigated at a later stag e of the proce eding s.” Abshire , 2018 WL 6005220, at *6. Abshire considere d an expert repor t’s adequa cy to establish that a hospital’s nursing staff cause d para pleg ia and incontinence when, over six hospital visits, the spinal fra cture that led Abshire to develop those injuries was not diag nosed. On two of her six visits, nursing staff failed to note on Abshire’ s char t that she suffe red from brittle bone disease (OI ), which rende red her more vulnera ble to fra cture s and altere d the standard of car e. Id. at *1–2. The expert repor t stated that “had [C hristus] followed the Standard of Care for patients with OI , Ms. Abshire in medical probability would not have develope d
para pleg ia and bowel and bladder i ncontinence .” Id. at *2 (a lteration orig inal). The district c ourt denied the hospital’s motion to dismiss under the TML A. Id. The court of appea ls reve rsed, holding that the repor

t “did not show ho w the nurses’ failure to document Abshire’ s OI cause d her
para pleg ia.” Id. at *3. The Supreme Court d i s agr ee d , concluding that the “re port draw s a line direc tly from the nurses’ failure to p ro p er l y d o cu ment Abshire’ s OI and back pain, to a delay in diag n o s i s an d p roper trea tment (imag ing of her back and spinal fusion), to the ultimate injury (par apleg ia).” Id. at *5. I t emphasized that “with respe ct to caus ation, the court’s role is to deter mine whether the expert has explained how the neg lige nt conduct cause d the injury

. Whether this ex planation is believable should be litigate d at a late r stag e of the proce eding s.” Id. at *6.

15The district court rea sonably could have conclude d that the Amended Report

repr esents a g o od-fa ith eff ort to “explain, fac tually , how proxi mate cause is g oing to be proven.” See Zamarripa , 526 S.W .3d at 460. I t explains that Downey exhibi ted text book appendic itis
sy mptoms on October 27, that the standard of car e called for a CT scan, and that Richter discharg ed Downey without perf

orming a CT scan. I t offe rs the opinion, within a rea sonable deg ree of medical

cer tainty , that “had Dr. Richter perf ormed a CT scan [] on [ October 27], the diag nosis of acute appendic itis would have been made and Mr. Downey would have underg one an uncomplicated appende ctomy .” I t then connec ts delay ed diag nosis and trea tment of acute appendic itis to appendicea l p er fo ration, and explains that injuries Downey suffe red are more likely to occur in patients with perf

orate d appendic itis (as opposed to those with uncomplicated a ppendicitis). Our s i s t er courts have rea ched simil ar results in case s seeking rec overy for complications associate d with an alleg ed missed diag nosis of appendic itis. For example, in United Regional Health Care System v. Hardy , the Second C o urt of Appea ls considere d a patient who
prese nted in the emer g ency room with extreme pain i n t h e l o wer rig ht quadra nt of his abdomen. No. 02-11-00395- CV, 2012 WL 1624153, at *1 (Tex. App

. — For t Worth May 10, 2012, no pet.) (mem. op.). The t re ati ng phy sician order ed a plain (non-c ontrast) X-ra y of Har dy ’s abdomen, diag nosed him with a UTI , and discharg ed him home. Id. Six day s later, Har dy was diag nosed with

a ruptured appendix that had sprea d throug h his abdominal cavity and had erode d part of his colon, requiring remova l. Id. The expert repor t stated that, based on the patient Har dy ’s “tex t b o o k”
sy mptoms of appendic itis during his initial ED visit, “Ha rdy would have been or should have been diag nosed wit h appendic itis and an appende ctomy would have been or should have been ordere d.

16Be cause this was not done, Hardy ’s appe ndicitis was not diag nosed and w as allowe d to fester and develop into an absce ss, resulting in Har dy ’s injuries.” Id. at *3. The court of appea ls held that the
repor t “re prese nt s a good-f

aith eff ort to state t he causal relationship betwee n the allege d brea ches of the standard of car e and Har dy ’s injuries and is there fore sufficie nt as to causa tion.” Id. (citation omitted). The Nin t h Court of Appea ls rea ched a simil ar result in CHCA Mainland, L.P. v. W heele r , wher e hospital staff failed to appropr iately triag e a patient with appendic itis sy mptoms to

ensure that she was seen by a phy sician. No. 09-07-00634 CV, 2008 WL 9 6 0 7 9 8 , at *5 (Tex. App.—B eaumont Apr. 10, 2008, no pet.) (mem. op.). The expert repor t conclude d that the patient should have been triag ed as urg ent or emer g ent based on her sy mptoms, and that beca

use the hospital staff failed to do so, the patient’s appendix ruptured befor e she was seen by a phy sician. Id. at *1–2. The court of appeals concluded t hat t he ex pert report provided a b as i s to conclude the claims had merit wher e it stated that—if not for the hospital’s brea ch of the standard of car e by failing to have the patient’s appendic itis sy mptoms evalua ted by qualified medical personne l—the patient “would have been spare d the g ener alized intraper itoneal sepsis that nece ssitated more extensive surg ery and an extended hospitalization.” Id. at *5.

Particularly in light of the Abshire Court’s admonition that we avoid addre ssing the beli ev abil ity of expert repor ts at this stag e, we find these other appendic itis case s persua sive. I n Abshire , as here, a pla intiff alleg es that a missed diagnosis delay ed treatment, resulting in injuries that wer e more serious than they would have been had the standard of car e been followed. And in revie wing a causa tion challeng e to the expert repor t in that case , the Court held that it is not proper

17for a co u rt at t his stag e in litigation t o assess whether the causa tion analy sis is “believa ble” in the

sense that it is supported by a robust and unimpeacha ble evidentiar

y rec ord. I nstead, “[t] he ultimate evidentiar y value of the [ex pert] opinions [] is a matter to be deter mined at summary judgme nt and bey ond.” Abshire , 2018 WL 6005220, at *6; see also, e.g. , Zamarripa , 526 S.W .3d at 460 (“While
t h e p laintiff is not require d to prove her claim with the expert repor t, the repor

t must s h o w t h at a qualified expert is of the opinio n s h e can.”); Jelinek v. Casas , 328 S.W .3d 526, 539 (Tex. 2010) (explaining that e x pert re port nee d not “marsha l all the plaintiff’s proof ”). We are not convinc ed otherwise by Richter’s arg ument that the repor t’s acknow ledg ment that “[s] ome cases of ear ly appendic itis will not be evident on CT scan” r ender s it insufficient on causa tion. The Texas Supreme Court re j ec t ed a simil ar arg ument in Van Ness , wher e it conclude d that an expert re port with potentially inconsistent sta tements is not ne cessa rily fata l to a plaintiff’s TML A claim. Rather, “the trial court ha[s] discretion—indee d it [i s] incumbent on the trial cour

t—to review the repor

t, sort out its contents, resolve any inconsistencies in i t, and decide whether the repor

t demonstrated a g ood faith ef fo rt t o show that the [] claims had merit.” Van Ness , 461 S.W .3d at 144. Simi larly here , the d istrict court had discretion to resolve any inconsistencies in the Amended Report in asses s i n g i t s adequa cy . The repor t’s indications that Downey had beg un experiencing sy mpto m s t h at morning and that most patients experience
sy mptoms for more than 48 hours befor e their appendix perf orate s provides a basis to conclude that the fa ilure to perf

orm a CT sca

n was a cause in fac t of his later injuries. Finally , both parties cite our si ster court’s deci s i o n in Adey emi v. Guerrero , which undersc ores the result we rea ch here

. 329 S.W .3d 241, 246 (Tex. App.—Dallas 2010, no pet.). I n

18Adey emi , Guer rer o st ru ck her head on a bathroom floor while in active labor. Over the next few day s, she exhibi ted unexplained vomiting and repe atedly complained of heada ches. On her third day in the hospital, Guer

rer o suffe red a seizure and was diag nosed with a signific ant hematoma requiring brain surg ery . Guer

rer o alleg ed that Ad ey em i wa s neg lige nt in failing to order a CT scan to investiga te t he fall and headac hes. Adey emi challeng ed ca usation, arg uing tha t Guerr ero’ s expert
repor t did not show “h o w t h e perf ormanc e of a CT scan or neurolog ical consultation would have
preve nted Guer

rer o’s injuries.” Id. The Dallas Court of Appea ls reje cted this arg ument, concluding that “the repor

t clear ly states that, base d on rea sonable medical probability , a CT sc an would have detec ted Guer

rer o’s initial hemorrha g e and, if identified ear ly , such hematomas are easily

reme diable.” Id. Simi larly here , Dr. Butler offe rs his opinion that, had a CT scan been perf ormed

on October 27, “the diag nosis of acute appendic itis would have been made and Mr. Downey would have underg one an uncomplicated appende ctomy , and th e c o mp li c a ti o n s , p roce dures, opera tions and hospitaliz ations that Mr. Downey later experience d rela ted to his perf orate d appendic itis would have been avoided.” I t then cites a study , a medical website, and a repor t from a fede ral ag ency to support this conclusion.

I n summary , the Amended Report “links conclus i ons to specific fac ts,” trac ing the decision to discharg e Downey without perf orming diag nostic testing to the ensuing delay that

occa sioned Downey ’s injuries. See Abshire , 2018 WL 6005220, at *4 (explaining that expert repor t
must “lin k co n cl usions to specific fac ts” to satisfy causa tion require ment). Putti ng aside, as we must, whether Downey will be able to prove causa tion, a district court could have rea sonably conclude d that his claims could have merit based on the fac ts set out in the Amended Report. See,

19e.g. , Palacios , 46 S.W .3d at 879 (explaining that “to avoid d i s m i s s al , a plaintiff need not prese nt

evidenc e in the repor

t as if it wer e actua lly litigating the merits

. . . the information in the repor t does
not have to meet the same require ments as the evidenc e offe red in a summary -judg ment proce eding or at trial.” ). Ac cording ly , we ove rrule Richte r’s sole issue.

CONCLUSION Having overr

uled the sole issue on a

ppeal, we aff

irm the district court’s or der.

________________________________________ Michae l Toth, J ustice Be fore J ustices Pury ear , Bour land, and Toth Affir med Filed: De cembe r 7, 2018

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