Reversed and Remanded and Memorandum Opinion filed March 25, 2014.

In The

Fourteenth Court of Appeals

NO. 14-13-00617-CV

SJ MEDICAL CENTER, LLC, INDIVIDUALLY AND D/B/A ST. JOSEPH 

MEDICAL CENTER, HOSPITAL PARTNERS OF AMERICA, INC., SJ 

MEDICAL CENTER MANAGEMENT, LLC, IASIS HEALTHCARE 

CORPORATION, IASIS HEALTHCARE, LLC, Appellants

V.

REGINA WALKER, INDIVIDUALLY AND AS SURVIVING SPOUSE AND 

HEIR OF THADDAUS WALKER, DECEASED AND TRACY WALKER, 

THADDEUS WALKER, LARRY WALKER, REGINALD WALKER AND 

TIFFANY BRITTON AS CHILDREN AND HEIRS OF THADDAUS 

WALKER, DECEASED, Appellees

On Appeal from the 234th District Court

Harris County, Texas

Trial Court Cause No. 2012-20429

M E M O R A N D U M O P I N I O N

In this health-care liability case, the defendant hospital appeals the denial of 

its motion to dismiss the claims against it due to the inadequacy of the original and 
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amended expert reports. We agree that the expert’s opinion of the standard of care 

applicable to the hospital lacks specificity and that his discussion of the hospital’s

breach of that standard is conclusory. We therefore reverse and remand the case 

with instructions to the trial court to (a) sever the claims against the hospital from 

the remainder of the action, (b) assess and award to the hospital its reasonable 

attorney’s fees and costs incurred, and (c) dismiss the claims against it with 

prejudice.

I. FACTUAL AND PROCEDURAL BACKGROUND

After a motor-vehicle accident on January 27, 2010, Thaddaus Walker was 

admitted to St. Joseph Medical Center, LLC d/b/a St. Joseph Medical Center 

(“SJMC”). According to the reports of the claimants’ expert Dr. Brian Camazine,

Walker’s injuries included an orbital-floor fracture, a broken toe, a large bruise on 

one thigh, and “pulmonary contusion vs pneumonia with hemoptysis.” Walker

also had a history of coronary-artery disease, hypertension, diabetes, and obesity. 

We will focus on Walker’s cardiac, pulmonary, and glycemic conditions because 

in the reports at issue, Dr. Camazine attempted to relate only those conditions or 

symptoms to the claims against SJMC.

 Cardiac condition. At 3:45 a.m. on January 28, 2010, Walker experienced 

chest pain that was relieved with nitroglycerin. An EKG performed at 4:00 

a.m. showed premature ventricular contractions, but cardiac-enzyme tests 

performed at the same time did not suggest a myocardial infarction. Walker 

had a second episode of chest pain at 7:30 a.m., and again, it was relieved 

with nitroglycerin. Dr. Camazine does not indicate that Walker had any 

further chest pain, although Walker did have an episode of tachycardia on 

January 29, 2010.

 Pulmonary condition. Walker experienced sputum production, hemoptysis, 
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and wheezing at unspecified times during his stay at SJMC. On January 28, 

2010, he was reportedly short of breath upon exertion. At noon the next day, 

he had an oxygen saturation of 88% and was started on albuterol nebulizers 

for wheezing. When Walker was discharged later that day, he was not 

complaining of any shortness of breath. 

 Glycemic condition. During his two days at SJMC, Walker’s glucose level 

increased from 119 mg/dl upon his admission to a high of 421 mg/dl. At 

11:30 a.m. on January 29, 2010, his glucose level was 377 mg/dl, which Dr. 

Camazine described as being three times the normal level. Walker’s 

physicians started him on an aggressive insulin regimen at noon that day.

Walker was discharged at around 5:00 p.m. on January 29, 2010. During the 

ride home, he complained of shortness of breath, then stopped breathing. Walker 

was transported to Memorial Hermann Hospital, where cardiac-enzyme tests 

“showed an evolving myocardial infarct.” Walker died on January 31, 2010. 

According to Dr. Camazine’s expert reports, the autopsy showed acute myocardial 

infarction, severe coronary-artery disease, and “an undiagnosed squamous cell 

carcinoma of the right upper lobe”; however, Dr. Camazine did not specifically 

identify Walker’s cause of death. 

Walker’s wife and children sued SJMC and others,

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then served the 

defendants with Dr. Camazine’s first expert report. SJMC moved to dismiss the 

claims against it on the grounds that the expert report was vague and conclusory, 

and thus, was not a good-faith effort to fulfill the statutory requirements governing 

expert reports in health-care-liability claims.

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 The trial court denied the motion 

 

1

SJMC is the only defendant that is a party to this appeal.

2

SJMC also challenged Dr. Camazine’s qualifications, but does not reurge that objection 

on appeal.
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“for the time being” and gave Walker’s survivors a thirty-day extension to amend 

the expert report to address SJMC’s objections. After the amended expert report 

was served, SJMC again moved to dismiss. The trial court denied the motion.

II. STANDARD OF REVIEW

When reviewing the trial court’s ruling on a challenge to an expert report, 

we apply the abuse-of-discretion standard. Am. Transitional Care Ctrs. of Tex., 

Inc. v. Palacios, 46 S.W.3d 873, 875 (Tex. 2001). A trial court “‘abuses its 

discretion when it acts in an arbitrary or unreasonable manner without reference to 

guiding rules or principles.’” Jelinek v. Casas, 328 S.W.3d 526, 539 (Tex. 2010) 

(quoting Bowie Mem’l Hosp. v. Wright, 79 S.W.3d 48, 52 (Tex. 2002) (per 

curiam)). When determining whether the trial court abused its discretion, we may 

not substitute our judgment for that of the trial court. Wright, 79 S.W.3d at 52. 

III. ANALYSIS

A claimant under the Texas Medical Liability Act must serve each defendant 

health-care provider with one or more expert reports and with the curriculum vitae 

of each expert listed in the report. TEX. CIV. PRAC. & REM. CODE ANN. § 74.351(a)

(West Supp. 2013). The expert report must provide a fair summary of the expert’s 

opinions regarding the applicable standard of care, the manner in which the healthcare provider failed to meet that standard, and the causal relationship between that 

failure and the injury or harm alleged. Id. § 74.351(r)(6); Wright, 79 S.W.3d at 52; 

Palacios, 46 S.W.3d at 878–79. In setting forth the expert’s opinions on each of

these three elements, the report must (a) inform the defendant of the specific 

conduct the plaintiff has called into question, and (b) provide a basis for the trial 

court to conclude that the claims have merit. Palacios, 46 S.W.3d at 879. A report 

does not fulfill these requirements if it merely states the expert’s conclusions about 

the standard of care, breach, and causation. Id. The expert instead “‘must explain 
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the basis of his statements to link his conclusions to the facts.’” Jelinek, 328 

S.W.3d at 539 (quoting Wright, 79 S.W.3d at 52).

A. Dr. Camazine’s discussion of the standard of care lacks specificity.

Dr. Camazine opined that under the standard of care applicable to SJMC, the 

hospital and its nursing staff were required to

[e]nsure that a patient is not discharged prematurely. The nursing 

staff, as a result of constant contact with a patient, are in a unique 

position to know when a patient is stable for discharge. The nurses 

are usually acutely aware of a patient’s cardiac-pulmonary status and 

a patient[’]s glycemic control. Although nursing staff are not in a 

position to write the orders to discharge a patient, there are means by 

which the nursing staff can prevent the discharge of a patient if they 

feel that the patient is not ready for discharge. Such means may be as 

simple as contacting the attending surgeon and voicing concerns. 

Other means to prevent a discharge involve contacting a nursing 

supervisor or even the Chief of Staff of the hospital. By no means are 

nurses at the mercy of following an order that would put the patient in 

danger.

We agree with SJMC that Dr. Camazine failed to specify what care SJMC was 

required to give. 

“While a ‘fair summary’ is something less than a full statement of the 

applicable standard of care and how it was breached, even a fair summary must set 

out what care was expected, but not given.” Palacios, 46 S.W.3d at 880 (quoting 

Palacios v. Am. Transitional Care Ctrs. of Tex., Inc., 4 S.W.3d 857, 865 (Tex. 

App.—Houston [1st Dist.] 1999) (Taft, J., dissenting)). Dr. Camazine 

acknowledged that “nursing staff are not in a position to write the orders to 

discharge a patient,” but paradoxically, he opined that SJMC and its nursing staff 

nevertheless were required to “[e]nsure that a patient is not discharged 

prematurely.” This presupposes not only that the patient’s discharge was 

premature, but also that SJMC had some way of knowing that the discharge was 
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premature, despite a physician’s orders to the contrary. Nevertheless, Dr. 

Camazine does not identify any actions that SJMC or its staff were required to take 

to determine whether Walker’s physicians’ discharge orders were premature, and 

he does not identify what “concerns” should have been voiced by SJMC’s staff in 

the absence of such a determination. 

Walker’s survivors argue that this case is like San Jacinto Methodist 

Hospital v. McCoy, No. 14-12-00682-CV, 2013 WL 3009318 (Tex. App.—

Houston [14th Dist.] June 13, 2013, no pet.) (mem. op.), in which this court found 

a standard of care sufficiently specific where the expert opined that the standard 

required “the operating room nurse to examine the specimen that was removed and 

verify that is [sic] the entire appendix. If it was not, the operating room nurse 

needs to bring it to the attention of the surgeon performing the operation.” 2013 

WL 3009318, at *3. Thus, the expert in that case opined that the nurse had a duty 

to make an independent determination based on his or her own examination of a 

specimen. That case is distinguishable because Dr. Camazine does not contend 

that SJMC’s staff had a similar duty to “examine,” to “verify,” or to perform any 

act to independently determine whether discharge was appropriate. 

The claimants also cite Bidiwala v. Cockerell, No. 05-08-01156-CV, 2009 

WL 866380 (Tex. App.—Dallas Apr. 1, 2009, no pet.) (mem. op.), stating that the 

court in that case found the expert’s standard of care sufficiently specific where the 

expert opined that “‘[s]tatements made by the patient regarding difficulty breathing 

should be reported and or charted and brought to the attention of the appropriate 

physician.’” 2009 WL 866380, at *2. According to the expert in that case, if the 

defendant—a consulting physician—“‘was present when the patient stated that she 

could not breathe or was having difficultly [sic] breathing, . . . then [the defendant] 

breached the standard of care by not reporting those statements to the attending 
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physicians and by not taking actions to assure that appropriate interventions were 

begun.’” Id. Contrary to the claimants’ characterization of the case, the authoring 

court did not address the question of whether the stated standard of care was 

sufficiently specific; it addressed the question of whether the description of the 

breach was based on improper inferences. Id. Moreover, the case is factually 

distinguishable in that the expert in that case cited evidence that the defendant was 

present when the patient complained of difficulty breathing but failed to document 

the complaint or report it to the treating physician. Here, no one contends that 

SJMC failed to document anything or that it possessed any information that 

Walker’s physicians lacked.

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B. Dr. Camazine’s discussion of the breach of the standard of care is 

conclusory.

According to Dr. Camazine, SJMC breached the standard of care by 

“[a]llowing Mr. Walker to be discharged prematurely despite known unresolved 

cardiac-pulmonary issues and poor glycemic control.” We agree with SJMC that 

Dr. Camazine’s opinion that it breached the standard of care is conclusory.

Dr. Camazine does not identify the “cardiac-pulmonary issues” that were 

both “known” by SJMC and “unresolved” at the time of Walker’s discharge. 

Although the only conditions he related to Walker’s death were myocardial 

infarction and pneumonia, he does not contend that these conditions were “known”

to SJMC. As Dr. Camazine himself points out, even Walker’s physicians did not 

detect these conditions. Dr. Camazine does not contend that SJMC’s staff had an 

independent duty to “know” or “resolve”—that is, to diagnose and treat—

conditions that allegedly were not detected or sufficiently addressed by Walker’s

 

3 A second failure-to-document case cited by Walker’s survivors is factually 

distinguishable for the same reason. See Gannon v. Wyche, 321 S.W.3d 881 (Tex. App.—

Houston [14th Dist.] 2010, pet. denied).
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physicians, who—unlike SJMC’s nursing staff—were actually licensed to do so. 

Compare TEX. OCC. CODE ANN. § 151.002(a)(13) (West Supp. 2013) (“‘Practicing 

medicine’ means the diagnosis, treatment, or offer to treat a mental or physical 

disease or disorder or a physical deformity or injury by any system or 

method . . . .”) with id. § 301.002 (“‘Professional nursing’ . . . does not include acts 

of medical diagnosis or the prescription of therapeutic or corrective measures.”) 

and id. § 301.004 (“[The Nursing Practice Act] does not authorize the practice of 

medicine . . . .”).

Dr. Camazine’s statement about “poor glycemic control” suffers from the 

opposite problem: physicians did detect and treat this condition, initiating “an 

aggressive insulin regimen” five hours before Walker’s discharge. Dr. Camazine 

does not contend that the treatment that was instituted at that time was in any way 

inappropriate, and he does not explain why it was premature to discharge Walker 

after instituting appropriate treatment.

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Finally, Dr. Camazine listed some actions that SJMC’s staff could take “if

they feel that the patient is not ready for discharge,” but he does not contend that 

SJMC’s staff knew or should have known that Walker’s discharge was premature. 

In the absence of such actual or constructive knowledge, there were no “concerns” 

for SJMC’s staff to express.

Because we conclude that Dr. Camazine’s reports fall short of statutory 

standards on the interrelated issues of the standard of care and its breach, we 

sustain the sole issue presented without addressing SJMC’s arguments concerning 

causation.

 

4 Moreover, Dr. Camazine’s reference to “poor glycemic control” is a red herring, 

inasmuch as he does not relate that condition to Walker’s myocardial infarction, pneumonia, or 

death.
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C. SJMC is entitled to recover reasonable attorney’s fees and costs in an 

amount to be determined by the trial court.

Because Walker’s survivors failed to produce an expert report that satisfies 

statutory requirements, SJMC is entitled to recover its reasonable attorney’s fees

and costs incurred. See Lewis v. Funderburk, 253 S.W.3d 204, 207–08 (Tex. 

2008) (citing TEX. CIV. PRAC. & REM. CODE ANN. § 74.351); Hightower v. Baylor 

Univ. Med. Ctr., 348 S.W.3d 512, 521–22 (Tex. App.—Dallas 2011, pet. denied). 

SJMC asked that if we determined that the claimants failed to produce an expert 

report meeting statutory requirements, we either (1) reverse and render judgment 

assessing attorney’s fees and dismissing the claims against it with prejudice, or 

(2) reverse and remand the cause with instructions to the trial court to assess 

statutory attorney’s fees and dismiss the case with prejudice. 

Although this court can review an award of fees and costs, the initial 

determination of a reasonable amount falls in the first instance to the trial court. 

Cf. Awoniyi v. McWilliams, 261 S.W.3d 162, 166 (Tex. App.—Houston [14th 

Dist.] 2008, no pet.) (addressing sufficiency of the evidence presented to the trial 

court in determining the amount of the award). Where the trial court fails to 

consider the matter, remand is appropriate to allow the court to do so. See Rivenes 

v. Holden, 257 S.W.3d 332, 341 (Tex. App.—Houston [14th Dist.] 2008, pet. 

denied). We accordingly reverse and remand the case.

IV. CONCLUSION

Because the standard of care as stated in Dr. Camazine’s original and 

amended expert reports lacks specificity and his opinion that SJMC breached the 

standard of care is conclusory, we hold that the trial court abused its discretion in 

failing to assess attorney’s fees and costs and dismiss the claims against SJMC. 

We therefore reverse the judgment and remand the cause with instructions to the 
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trial court to (a) sever the claims against SJMC from the remainder of the action, 

(b) assess and award to SJMC its reasonable attorney’s fees and costs incurred, and 

(c) dismiss the claims against SMJC with prejudice in accordance with this

opinion.

/s/ Tracy Christopher

Justice

Panel consists of Justices Boyce, Christopher, and Brown.