## In the

Cou rt of Appeals

Second Appellate District of Texas

at Fort Wo rth

___________

_ ______ _ ________

No. 02

- 23

- 00179

- CV

___________________________

On Appeal from the 67th District Court

Tarrant County, Texas

Trial Court No. 067

- 337383

- 22

Before Sudderth, C.J.; Kerr and Bassel, JJ.

Memorandum O pinion by Chief Justice Sudderth 

### T AMMY 

### R OE



### , AS THE 

### E XECUTRIX OF THE 

### E STATE OF 

### M ICHAEL 

### K EVIN



### R OE



### , Appellant

V



### .

E L



### - C ID 

### O RGANO 

### T AJON



### , M .D. AND 

### T EXAS 

### H E ALTH 

### H ARRIS 

### M ETHODIST



### H OSPITAL 

### , Appellees2 MEMORANDUM OPIN I ON

Afte r Decedent Mich ael Kevin Roe ’ s death , the executrix of his estate

,

Appellant Tammy Roe (the E state), filed health care liability claims against Appellees

Dr. E l

- Cid Organo T aj on and Texas Health Harris Methodist Hospital (the Hospital )

.

The E s tate served s everal e x pert report s pursuant to the Medical Liability Act, but the

trial court found the relevant report 1 to be inadequate

, so it dismissed the E s tate ’ s

cla ims against Dr. Tajon and the H ospital

. See Tex . Civ. Prac. & Rem. Code Ann.

§ § 51.014( a) (10), 74

. 351(b )

, ( l )

. B ecause the expert report is adequat e , we will reverse

and remand.

I. Background

Decedent was treated at t he Hospital for a heart attac k on M a rch 2, 2021, and

after undergoing surgery, he had a stroke

, which led to another surgery

. Fol l owing

the se operatio n s

, Decedent received preventative treatments for multiple medical

concerns

, one of which was venous t hromb osis ( i .e., development of a bloo d clot )

,

including deep venous thrombosis ( DVT) and a pulmonary embolism

. 2 H e was

1 The Estate served reports from multiple experts, but only one of those exper t s

a ddres sed Dr. Tajon ’ s and th e Hospital ’ s all eg ed breaches. That expe rt author ed three

expert reports

— an or iginal report

, an amended report

, and a second amended

report

— but the final amended report superseded the prio r two versions a nd w as the

relevant document before the trial court when it ruled on the mo tions to dismiss

.

2 Although the Estate ’ s expert reports do not define these terms

, M e rri am

Webst er ’s Medical Dictionary does

. I t defines :3

treated with “ compression devices for DVT prophylaxis [] and DVT

che moprophylaxis (e noxaparin 3 40 mg subcutaneous)

. ” Af ter his conditio n began to

improv e, on March 5, he was transferred out of the intensive care unit a nd in to the

progressive ca re unit

, where he was under the care of Dr. Tajon

.

During Decedent ’ s f

our days in Dr. Tajon ’s care, he was “ maintained on both

me chanical and chemical DVT prophylaxis daily. ” Then, D r. T a jo n discharged

• “ thrombosis ” as “the forma tion o r presence of a blood clot within a bloo d ve s sel

, ”

Thrombos is

, Merriam

- Webste r

, h ttps://www.merria m

webster.com/dictionary/thrombosis#medicalDictionary (last visit ed Dec. 8

, 2023) ;

see Thrombosis

, We bste r ’ s Th i rd New Internati onal Dictionary 2384 ( re p r t

. 2021)

(1961) (same) ;

• “ deep vein thro mbo s i s ” a s “ a condition marked by the for mation of a thrombus

w i thin a deep vein (as of the leg or pelv is)

. . . that is potent

ially life threa tening if

dislodgment of the thrombus results in pulmonary embolism

, ” D eep Vein

Thrombo sis

, M erriam

- Webster, http s:// w ww.m erriam

webster .com/medical/deep% 20vein%20thrombosis (la st visited Dec. 8

, 2023) ;

and

• “ pulmonary embolism ” as an “ obst ructi on of a pul monary ar tery or one of its

branches that is usu ally produced by a bloo d clot which has originated in a vein of

t he l e g or pelvis and tr aveled to the lung s and that is marked by labored breathing,

chest pain, fainting, rapid heart rate

, cya nosis

, shock

, an d sometim es deat h

, ”

Pulmonary Embolism

, Merriam

- Webste r, https://www.me rriam

webster.com/medical/pulmonary%20embo lism (las t visited Dec. 8

, 2023) ; see

Emb olism

, We bste r ’ s Th i rd New Internati onal Dictionary 740 ( rep r t

. 2021) (1961)

( defining “emb olism ” as “ the sudden obstruction of a blood vessel by an

embolus ” )

.

3 “ E noxaparin ” is “ a fragment of heparin of l ow molecu la r weight that is

admi nistered by subcut aneous injection in the form of its sodium salt [,] especially to

prevent and t r eat dee p vein thrombosis and pulmonary embolism following surgery

. ”

E noxapar in

, Merriam

- Webster, https://www.merriam

webster.c om/medica l / enoxaparin (last visi ted Dec. 8

, 2023).4

Dece d ent to a rehabilitation faci lity

. In Decedent ’s dis charge documentation, Dr.

Tajon noted that DVT prophylaxis was addressed during Deceden t ’ s stay

, but the

discha rge medication reconciliation 4 did not list enoxaparin or any other DVT

prophylaxi s among the treatments to be administ ered after discharge

.

At the rehab ilitation facility, De cedent’s physi cian

— D r. William Brid ges

—

noted the need for DV

T prophyl a xis and listed DVT and pulmonary embolism

among Decedent ’s potential risk facto rs and com plications. But he did not administer

enoxaparin or any other preventative DVT treatments

. And w hen a cardiologist and a

cardiol ogy physician ’ s assistant reviewe d Decedent ’ s case a few days la ter

, neither

health care provider a dministered enoxa par in or any oth er DVT treatment

.

After a few days at the rehab ilitation facility, Decedent began experiencing

chest pain and sh ortness of breat h

. When these symptoms continued, Dr. Brid ges

o r dered severa l tests, including a CT scan of Dec edent ’s chest

. T h e radiologist who

interpreted this CT scan

— Dr. Jason Pond

— identified a “ [l]arge sa ddle embolus 5 in []

4 A t on e of th e hea ri ng s o n the health care providers ’ expert

- report objec tions

, the Hospital ’s counsel explained that “ [t]he reconciliation r eport

. . . is basically orders

going f orward[;] it ’s what the ord ers ar e to the n ext facilit y will be [sic ] for this

particular pa ti en t when they get there. ” The Estate ’s counsel did not dispute t hi s

summ ary

.

5 A “ sa d dle embolus ” is “ a n embolus t hat straddles the branching of an artery

blocking both branches

. ” Sadd le Emb o lus

, Merriam

- Webster, h ttps://www.merri a m

we bster.com/medical/s addle%20embolus (last visited Dec. 8

, 2023) ; s ee Saddle

Embolus

, We bste r ’ s Th i rd New Internati onal Dicti onary 1997 ( rep r t

. 2021) (1961)

(same)

.5

the

. . . pulmonary art eries ” and “ [m]odera te thrombus in the right atrium. ” How and

when Dr. Pond com municated these results to the re habilitation fac ili ty is dispute d,

but regardless, the next morning, a car diology physician ’s assi stant reviewed the CT

s can results and ini tiated Decedent ’ s transfer to the emerge n cy room.

From there, Decedent ’s condition r apidly deterior ated

. His blo od pressu re

began dec reasing, and just as his health care providers were about to beg i n a

“mechanical thrombectomy

, ” 6 Dece dent turned blue and had to be intub ated

. H e

d ied lat er that day fro m a “ sub

- massive pulmonary embol u s

. ”

The Estate sued many of the health care provid ers involv ed in this chain of

events , b ut Dr. Tajon a nd the Hospital a r e the only two providers relevant to t his

appeal

. 7 T he Estate alleged that Dr. Tajon negligently failed to require enoxaparin o r

any other prophylactic DVT treatment s as part of Decede nt ’ s disch a rge medication

reconciliation and that the Hospital negligently failed to implement or f ollow

pro c edures for accurate medicatio n reconciliation upon discharge

.

6 A “ thrombectomy ” is a “ surgical excision of a th rombus, ” which is “ a cl ot of

blood form e d wi thin a blood vessel

. ” Thrombectomy

, Merr iam

- Webster,

https://www .merriam

- webster.com/medical/thrombectomy (last visited Dec. 8

, 2023) ; Th rombus

, Merriam

- Webster, https://www.merriam

webster.com/dictionary /thromb us #medicalDictionary ( l ast visited Dec. 8

, 2 023) ; see

Th rombus

, We bste r ’ s Th i rd New Internati onal Dictionary 2384 ( rep r t

. 2021) (1961)

.

7 See Roe v. Tajon

, No. 02

- 23

- 00179

- CV, 2023 WL 6152621, at *1 (Tex. App.

—

Fort Worth Sept. 21, 2023

, no pet. h.) ( per c u r iam) (mem

. op. ) (

gran ting voluntary

mot ion to dismiss filed b y two other health care providers )

.6

The Estate served three ex pert repor ts

, on e of which addressed Dr. Taj on ’ s and

the Ho s pi tal ’ s alleged breaches

. 8 In that report

, Dr. Aaron Gottes m an opi ne d that

Dr. Tajon ’s “f

ail[ure ] t o list enoxaparin or any other DVT prophylaxis as a medication

to be administ ered in [Decede nt ’s] discharge medication reconciliation ” fell below the

stand ard of care

, and that as a result, “ Dr. Tajon contri b uted to [Decedent] not

receiv ing DVT chemoprophylaxis in [the rehab ilitation facility]

. . . and contributed to

[Decedent ’ s] development of a popliteal 9 [DVT ] and sub

- massiv e saddle pulmonary

em bolus

, ” m aki ng De c edent ’s death a foreseeable outcome. Dr. Gottesman further

opine d that t he Hospital had a n independent

, organizational duty “ to develop,

implement [, ] and enforce clear policies for medicatio n reconciliatio n ” and that it was

“ clear from the o missi on of enoxaparin or other DVT pro p h ylaxis

. . . that discharge

medication re conciliation procedures were either not in place or were not followed by

the medical or nursing s taff at [the Hospi tal]

. ” He state d that the Hospital ’ s failure to

implement or fol low such procedures “ in c reased the likelihood of [Decedent] not

re ceiving DVT c hemoprophylaxis [in the rehab ilitation fac ili ty]

. . . and contributed to

8 In the other t

wo expert report s, Dr. Seth Glick

— a radiologist

— opined

regarding Dr. Po nd ’ s alleged breach of the standard of care

, and Dr. Brian Sw irs ky

— a

ca rdio logist

— opined regar ding the a lleged b reaches b y Decedent ’ s cardiolog ist and

cardiology physician ’s assistant

.

9 “Popliteal ” is defined as “ of or relating to t he back part of the leg behind the

knee joint

. ” Po pliteal

, Merriam

- Webster, https://www.merri am

webster.com/diction a ry/popliteal # medic al Dictionary (last visited Dec. 8

, 2023) ; see Popliteal

, We bste r ’ s T h i rd New Internati onal Dictionary 1765 ( rep r t

. 2021) (1961)

(same)

.7

[his] development of a popli teal [DVT] and s ub

- massive saddle pulmonary embolus

, ”

making D ecedent ’s dea th a foreseeable outcom e

.

Dr. Tajon and the Hospital filed separa te objections to Dr. Gottesman ’ s repor t,

and after the Estate filed ame nded r eport s

, 10 D r. Tajon and the Hosp ital each objected

again

. Dr. Tajon argued tha t th e final r eport did not ade quate ly addre ss causation,

while the H os pital a rgued that the report did not a dequately identify the st andard of

care that it had allegedly breached

. 11 T he trial court s us tained the objecti ons and

dismissed the Est ate ’ s cla ims agai nst both health care providers

.

10 Fo llowing Dr. Tajon ’s and the H ospital ’s initial obje ctions to Dr. Gottesman ’ s

report

, the Estate ser

ved an amended re p ort from Dr. Gottesman along with t he tw o

other expert re ports that addressed other health care providers ’ act ions. Then, later

,

t he trial court signed order s au t h orizing the Estate to file additio n al amended exper t

rep orts

. But because Dr. Gottesman ’s o riginal expert r eport s ha d been filed so early

in the litigation

, the trial co urt’s de adli ne for the amendment came before the Estate ’s

statu t o ry 120

- day deadline f or serving Dr. Tajon and the Hospita l wit h initi al expert

reports

. See Te x. Civ. Prac. & Re m. Code Ann. § 7 4.351(a). Regardless

, t he Estate

timely filed amended reports

, and Dr. Tajon and the Hospital objected again.

11 After the Estate responded to the renewed objections, the Hospit al filed a reply that a ttempted to assert a ne w challenge to the causation component of Dr.

Gottesman ’s report. But this new objection was served after “ the 21st day after t he

date the re port [wa] s served

, ” so it was untime ly. Id. ; Williams v. Mora

, 264 S.W.3d

888, 89 0

– 9 1 (Tex. App.

— Waco 2008, no pe t.) (h olding that provider waived untimely

ob j e cti ons to expert report )

.8 I I. G o v erni ng L aw and Standa rd of R e vi ew

Under the Medica l Liability Act , a plaintiff a sserting a hea lth care li ability

c laim 12 mu s t serve each he alth care provider with a timel y

, adequate exper t report

relatively early in the litigation. See Tex. C i v. Pra c. & Rem. Co de Ann. § 74.351 (a) ;

Baty v. F utre ll , 543 S.W.3d 689, 692

– 93 (Tex. 2018) ; Nazarian v. Remarkable Healthcare o f

Carrol lton, LP , No. 02

- 22

- 00324

- CV, 2023 WL 3370721, at *2 ( Tex. App.

— Fort

Worth May 11, 2023, no pet.) (mem. op.)

. I f the expert re port is unti mely or

in adequate, 13 then upon the health care provider ’ s motion, the trial court must dismiss

the health ca r e liabil i ty claims against that provider

. T ex. Civ. Pr ac. & Rem. Code

Ann. § 74.351 (b) , ( l

) ; see Baty , 543 S.W.3d at 692

– 93

.

A n exp ert repor t is inadequate if “ it ap pears to the [tr ial] court, aft er he aring,

that the report does not represent an objec tive good fa i th effor t to comp ly with the

[ stat utory ] de finition of an expert report

, ” i.e., to provide “ a f air summary of the

expert ’ s opi nions

. . . reg arding applica bl e standar ds of c are, the mann er in which the

care rendered by the physician or health care provide r failed t o mee t t he standards,

an d the causal relations hip between that failure and th e injury, harm, or damages

12 The parties do not dispute that the E s tate ’s claim s are healt h care liability

claims

. S ee Tex. Civ. Prac. & Rem. Code Ann. § 74 .00 1 (a) ( 13 ) (defini ng “ [ h ] ealth care liability claim ” )

.

13 If the report is inad equate but the def iciencie s are curable, the t rial court “ may

grant one 30

- day extension to the claimant in order t o cure the deficiency

. ” Id.

§ 74.351 (c)

.9

cl aimed

. ” Te x. Civ . Prac. & Rem. Code Ann. § 74.351 ( l ), ( r) (6) ; B aty , 543 S.W.3d at

6 93

.

This is a “lenient standard. ” Scoresby v. Santill a n , 346 S .W.3d 546, 549 (Tex.

2011)

. T he purpose of the expert report “ is to ‘ in form the defe ndant of the specific

conduct the plain tiff has called into ques tion, ’ and to ‘ p rovide a basis for the trial

court to conclude that the claims have merit. ’ ” Jack s on v. Ki ndred Hosps. Ltd. P ’

ship , 565

S.W.3d 75, 8 0 (Te x. App.

— Fort Worth 2018, pet. denied) (quoting Am. Transitional

Care Ct rs. of Tex., Inc. v. Palac

ios

, 46 S.W.3 d 873, 8 79 (Tex. 2001) ) ; see Nazarian

, 2023

WL 3370721, at *2 (similar)

. The report ne ed n o t mars h al all of t he plaint iff ’ s proof

,

nor rise to th e level of summary judgment e vidence, nor c on vin ce the reader that t he

expert ’s conclusions are reason able. Abshir e v

. Christus Health Se. Tex. , 563 S.W.3d 219,

223, 22 6 (Tex. 2018) ; Miller v. JSC La k e High la nds Ope rations, LP , 536 S.W. 3d 510, 51 6

–

1 7 (Tex

. 2017) ; Nazarian

, 2023 WL 3370721, at *2

. “ [A] trial court ’ s job i s t o be a

gatekeeper

— not to determ ine the truth or falsity of an expert ’ s opinion

. ” Jackson , 565

S.W.3d at 81

.

A tr ial cour t ’s de c ision to d ism iss a claim based on an inad equate expert report

is re view ed for an abuse of discretion

. Baty , 543 S.W.3d at 693 ; Rose mond v. Al

- Lahiq

,

331 S.W .3d 764, 766 (Te x. 2011) ; Nazarian

, 2023 WL 3370721, at * 3

. W e will aff irm

the trial court ’ s deci s ion on a ny preserv ed, meritorious legal th eory supported by the

record

. S ee Rosemond

, 331 S.W.3d at 766

.10 I I I. Discussio n

T he Est ate argues that the trial court abused it s discretion by (1) dis missing its

claims against Dr. Tajon based on Dr. Tajon ’s o b jection to the causation portion of

Dr. Gottesman ’ s expert r epo rt ; and (2) dismissing its claims against the Hospital

based on the H ospital’s objection to th e standard of ca re portion of Dr. Gottesman ’ s

repo rt

. 14

A. The report causally connects Dr. Tajon ’ s breach to Dec edent ’ s death

.

In Dr. Tajon ’ s objection to Dr. Gottesman ’s final re port

, he argue d that the

repo rt did not su ffi cie ntly explain the causal link between his alleged breach and

Decedent ’ s developm e nt of DV T or a p ulmonary embolus

. H e reiterates this

a rgument on appeal, c laiming that Dr. Gottesman ’ s attempt to link Dr. Tajon ’ s

actions to Dece dent ’ s death is “not fa ctuall y tenable gi ven Dr. Bridges ’ documented

knowledge of [

Deced ent ’s ] nee d for DVT prophylaxis and r isk of pulmonary

embolism at the time of his admission

. ” According to Dr. Tajon, his actions were too

atte nuated from Dece de nt ’ s death to have caused it.

But w hether Dr. Go t tesman ’ s opinion is factually tenable is not for the trial

court to resolve at this sta ge

. The Estate was permitted to plead multiple th eories of

liability “reg ardless of c onsistency

. ” Tex. R. Civ. P. 48

. The trial court was not t ask ed

14 T he Estate r aises an other issu e re lat ed to the trial court ’s discretion t o gra nt it

an extension to cure any d eficiencies in Dr. Gottesman ’s f inal expert report

, but thi s

issue is mooted by our conclusion that the report is adequate

. See Tex. R. App. P.

47.1.11

wit h fact

- checki n g the ex pert report , nor was it ta s ked with determin ing which of the

E s tate ’s va rious theories of liability

— theories that may or may not be born e out in

disc overy

— shows the most promise

. See Jackson , 565 S.W.3d at 86 (rejec ting

argu men t that expert ’s cau s ation opi nion was undermined by his own state ments in

second repor t addressing alternative theory of liability ; reiter ating that “ it is not proper

for the tr ial court or a r eviewing court to act as a factfinder ”); Christus Santa Rosa

He alth S ys. v. Baird

, No. 03

- 14

- 00521

- CV, 2016 WL 462759, at *4

– 6 (Tex. App.

—

Austin Feb. 4, 2016, no pet.) (mem. op.) (rej ecting challenge to expert report based on

its alleged cont radictio n with s econd expert report that addressed alternative theory of

l iab ility) ; Christus Spoh n Health S ys. Corp. v. Lopez

, No. 13

- 13

- 00165

- CV, 2014 WL

3542094, at *6

– 7 (Tex. App.

— Corpus Christi

– Edinburg July 17, 2014, no pet.) (mem.

op.) (similar

) ; cf

. Certified EMS, Inc. v. Potts , 392 S.W.3d 625, 632 (Tex. 2013) ( noting

th at “[d]isco very allows a claimant to refine her pleadings to abandon untenable

theories and pursue supported ones

, ” and while “ a full development of all liability

theories may be req uired for pretri al motions or to convince a judge or jury during

trial, th ere is no s uch requireme n t at the expert [

- ] report stage ” )

.

Rather, “ w

ith respect to cau sation, the [trial] court ’ s role is to determine

whether the expert has explained how the n eg ligent conduct c aused the injury [;

w] hether this explanat ion is believable sh ould be litigated at a later st age of th e

proceedings. ” Abshire , 563 S.W.3d at 226

. Dr. Gottesman ’ s report explain s the chain

of events that

— in his opinion

— began with Dr. Tajon ’s allege dly negligent fa ilure to12

require post

- discharge DVT proph ylaxis and e n ded with Decede nt developing DVT

and d ying from a pulmonary em bol us

. See Denduluri v. Bravo , No. 01

- 22

- 00230

- CV,

2023 WL 4003520, at *5 (Tex. App.

— Houston [1st D ist.] June 15, 2 023, no pet.)

(mem. op .) ( “ An expert may show causation by explaining a chain of e v ents that

begins with the defendant physician ’ s negligence and ends in injury to the plaintiff. ” ) ;

F ernandez v. Gonzales

, No. 03

- 21

- 00586

- CV, 2022 WL 3691679 , at *6 (Tex. Ap p.

—

Austin Aug. 26, 2022, pet. denied) (me m. op.) (similar) ; Keepers v. S m ith

, No. 0 1

- 20

-

0046 3

- CV, 20 22 WL 2347744, at *16 (Tex. App.

— Houston [1st Dist.] June 30, 2022,

pet. denied) (mem. op.) (s imilar)

. H e opine s that “ DVT prophylaxi s was a required

medic ation to prevent [Decedent] from forming DVTs post discharge ” and that “ [a] s

a re s ult of omit ting enoxaparin on the discharge document from the list of

medications to continue, Dr. Tajon contributed to [Decedent] not receiving DV T

ch emoprophyla x is in [the rehabilitation facility]

, . . . and contributed to [Decedent ’s]

develop m ent o f a p oplitea l [D VT] and sub

- massive saddle pulmonary embolus

. ” He

further state s that Decedent ’ s “ death from a sub

- massive pulmonary embolu s was a

foreseea ble outcome of Dr. Tajon ’ s breach. ” While Dr. Tajon may disagree with t h e

factual basis f

or this op inion

, such disa greement is not for the trial co urt to resolve at

this preliminary sta ge.

The same is true of Dr. Tajon ’s argumen t that his a ctio ns were too attenuated

from Decedent ’s in juries. A lthough a negligent act can ind e ed be “ to o attenua te d

from the r esulting in juries to the pl aintiff to be a substantial factor in bringing about13

the harm

, ” 15 Rodriguez

- Escobar , 392 S.W.3d at 113 (quoting Providence Health Ctr. v.

Dowell

, 262 S.W.3d 324, 329 (Tex. 2008) )

, a t this stage, the plaint iff ’s burden “ is not to

p r ove a cau sal link by a preponderan ce of the evidence to the satisfaction of a

factfinder or to rule out all other possible causes of injury

, ” Woodla nd Nursing

Opera tions, LLC v. Vaughn , No. 02

- 22

- 00169

- CV, 2022 WL 17494603, at *1 4 (Tex.

App.

— F ort Wor th De c . 8, 2022 , pet. denied) (mem. op.) (quoting P innacle Health

Facilities XV, LP v. Chase , No. 01

- 18

- 00979

- CV, 2020 WL 3821077, at *12 (Tex.

App.

— Houston [1st Dis t.] July 7, 2020 , no pet.) (mem. op.)) ; see Davis v. Swai m , No.

01

- 21

- 00596

- CV, 2022 WL 281 2064, a t *8 (Tex. App.

— Houston [1st Dist.] July 19,

2022, no pet.) (mem. op.) (recognizing that “[a] n expert report ‘ need not anticipate or

rebut all possible defens ive theories tha t may ultimately be presented ’ ” (quoting Owens

v. Han dyside , 478 S.W .3d 172 , 187 ( T ex. App.

— Houston [1st Dist.] 2015, pet. den ied)

(op. on reh ’g)))

. Dr

. Gottesman ’ s report not only expla in s the chain of events that

allegedly link ed Dr. Ta jon ’s actions to Dece de nt ’ s death but also state s that “Dr

.

Tajon ’s b reach o f the sta ndard o f ca re was a substantial factor in the death of

[D ec edent]

, ” clarifying t hat Dr. Gottesman does not consider Dr. T ajon ’ s breach to

be “ t oo att enuated from [De cedent ’ s] resulting injuries. ” See Rodriguez

- Escobar , 392

15 Generally, a n expert r e port ’s discussion of causa tion must expl a in how the

plaintiff will pr ove both foreseeabilit y and cause

- in

- fact

, and “ [f] or a ne gligent act or

omission to have been a cause

- in

- fact of the harm, [it] must have been a substantial

factor in bringing about th e harm

. ” Columbia Valley He althcare Sys., L.P. v

. Zamarripa

, 526 S.W.3 d 453, 460 (Tex. 2017) (quotin g Rodriguez

- Esco bar v. Goss

, 392 S.W.3d 109,

113 (Tex. 2013) ).14

S.W.3d at 113 ( quotin g P r ovidence Healt

h Ctr

. , 26 2 S.W.3d at 329 )

. A t a later stage , t he

factfinder can resolve the parties ’ factual dispute s regarding what did or did not cause

De cedent ’ s death and whether intervening factor s a ttenuated the link between Dr.

Tajon ’s ac t

io ns and D ecedent ’s sub

- massi ve pul monary embol us

. C f

. Benish v. Grottie

,

281 S.W.3d 184, 20 4 n

. 12 (Tex. App.

— Fort Worth 2009, pet. denied) (rejecting

de fen da nts ’ challenge to expert causation opinions when defend ant s claimed that

“ intervening act after d ischarge ” could have cau sed t he death and stating that

“ [w] hether [ the prov

ider is ] entitled to a new and independe nt cause inferential

rebuttal instructi on will be determin ed by evidence introduced at trial ” )

. F o r now,

though

, D r. Gottesman ’ s report is s ufficient to “ ‘ inform th e def e ndant of the specific

conduct the plaintiff h as call ed into question, ’ and to ‘ provide a basis for the trial

court to conclud e t hat the claims h ave merit. ’ ” Jackson , 565 S.W.3d at 80 ( quoting

Palacios , 46 S.W.3 d at 879 )

.

B eca u se Dr . Go ttes man ’ s expe rt re port adequately inform s Dr. Tajon of how

his a ctions allegedl y caused Decedent ’ s in jury, it “ repres ent [ s ] an objec tive good faith

effort ” to prov

ide “ a f air summary of

. . . the causal r elationship between [ Dr. Tajon ’ s ]

failure and th e i njury, harm, o r dam ages cl aimed

. ” 16 Tex. Civ . Prac. & Rem. Code

16 Dr. Tajon al so notes Dr. Gott esman ’s u se of the phrases “increased the

likelihood ” a nd “c o n tribut ed t o ” r ather than “ caus ed

. ” To th e ex te nt that Dr. Tajon

intends to argue that such phrases are insufficie nt to explain causation, we disagre e

.

“ [A] report ’ s adequacy doe s not depend on whether the expert uses any particu l a r ‘magical words.’ ” Columbi a Valley Healthcare Sys.

, 526 S.W.3d at 4 60 (quoting Bowie

Mem ’ l Hosp. v. Wright

, 79 S. W.3d 48, 53 (Tex. 2002) ); see Bowi e Mem ’ l Hosp.

, 79 S.W.3d15

A nn. § 74.351 ( l

), ( r) (6) ; see Jackson , 565 S.W.3d at 80 ; Baty

, 543 S.W.3d at 6 93

– 94

.

Therefore, the tria l court abused its discretion b y sustain ing Dr. Tajon ’ s causation

related objection to the report and by d ismissing th e health care liability claims

asserted against him.

B

. The report identifi es th e Hosp ital ’ s all egedly breached standard of care

.

As fo r the Hospital, it objected to Dr. Gottes m an ’ s expe rt repor t by a rguing

that the repo rt failed to s pecif y the releva nt standard of c a re that the Hospital had

breach ed

. 17 B ut th e substanc e of the Hospital ’ s argument was not t hat Dr.

at 53 ( agreeing with court of appeals that “magical wo rds ” do not d etermine expe r t

report ’s adequacy when report used the word “p ossibility ” rather tha n “reasonable

medical probability ” ) ; Davis

, 20 22 WL 281206 4, at *8 ( c oncluding that “ [a] lthough [the

expert report

] did not expressly use the term ‘ causation, ’ such ‘ magic words ’ are no t

required ”)

. In M

iller

, the Te xas Supreme Court rejected a challe nge to an expert

report based on the e x p e r t ’ s use of the word “ca n

, ” and it cautioned th a t the report

must be read as a whole

. 536 S.W.3d at 515 ( discussing expert report that opined that

c e rtain actions “ ‘can ’ lead to a spiration, which ‘can ’ be dea dly ” ) ; see W illiams

, 264

S.W.3d at 892 (holding e xpert r eport suffic ient despit e use of “could have ” because

other portions o f th e report “provi de[d] unequivocal, non

- speculative

, statements

relat i n g to causation ”)

. Here

, Dr. Gottesman ’s report identifie s Dr. T ajon ’ s breach as

“ a substantial factor in the deat h o f [Dec eden t], ” a nd it state s that “ De cedent ’s

death

. . . was a f

oresee able outcome of Dr. Tajon ’s breach

. ” R eading Dr

. Gotte s m a n ’ s report as a w hole, h i s opinion i s clear that Dr. Tajon ’s actions c ause d

Dece dent ’s sub

- massi

ve pulmonary e mbolus. His u se o f the phras es “ increased the

likelihood ” and “ contributed to ” do not render his report inadequate

.

17 The H ospital has not briefe d the standard

- of

- care object

ion that it raised in

the trial court. In stea d, it filed a joint appellate brief wit h Dr. Tajon

, an d the join t

brief focuses on the causation component of the relevant expert report

— even though

the Hospital did not timely rais e this issue before the t rial court. See supra note 11 ; see

also Tex. Civ. Prac

. & Rem. Code A n n. § 74.351(a) ( establishing deadli ne for

obje ctions to expert r eport). Nonetheless, because we must aff irm the trial court ’ s16

Got tesman had failed to identify the breached standard of care ; r ather, th e Hospital

disputed whether the sta ndard of care ident ified by Dr. Got tesman actually existed

.

Dr. Gottesman ’ s report d escribe s th e Hos pital ’s “ organizational res ponsibility

t o ensure [that] accurate medication recon c i liation o ccur s ” and “ to develop,

implement [, ] and enforce clear policie s for medicatio n rec onciliatio n

. ” He state s that

it was “ clear fro m the omissio n o f enoxaparin or other DVT proph ylaxis

. . . that

discharge medication reconciliat i on proced ures were either not in place or were not

followed by the medical or nursing s taf f at [the Hospit al] ” 18 and t h at th is lapse caused

Decedent ’ s death

.

T he H ospital argue d , though, t hat because Dr. G ottesman blamed Dr. Tajon

for failing t o reconcil e Decedent ’ s medication s at the time of discharge

, and because

Dr. Tajon was not a Hospital e mployee, the Hos pital could not b e h eld responsible

for Dr. T ajon ’ s mist ake

. T he Hospital ’ s counsel told the trial cou rt that “ it ’ s

essentially a standard of care question [ : ]

. . . [s] hould this medication [i.e., DVT

prophylax is] have been put on t he list, perio d

. . . a nd that ’ s no t a hospital question. ”

judgment if there is a ny meritorious legal th eory supp orted by the reco rd

, we consider

the Hospital ’s unbrie fed s t andar d

- of

- care objection

. See Rosemond

, 331 S.W.3d at 7 6 6

.

18 In the Hospital ’s obj ec tion to Dr. Gottesman ’s final expert repo rt, it argued

that this inference was unreasonable. But “ the testing of whether [the ex pert ’s]

opinions are reasonab le is for a n other day. ” Wo odland Nursing Operation s

, 2022 WL

1 7494603, at *9 (

noting that expert “ was allowed to draw the inferences from the

records that he reviewed, and even if those infe rences appear flawed, a motion

cha llenging the adequacy of the re port i s not the proper v ehi cle to test the

reasonab l e ness of the inferences ”).17

But this argument “puts the cart b ef ore the horse

. ” Nazarian

, 2023 WL

3370721, at *3 n.6 (

re jecting argument that expert report was insufficient based on

disagreement that d uty existed )

. “ A t th is preliminary s tage, wh e ther [Dr. Gottes man ’ s

proposed] standards [of care] appear reasonable is not relev ant to the analysis of

whether the expert ’ s opin ion constitutes a good

- faith effort. ” Miller , 536 S.W.3d at

516

– 17 ; s ee Keeper

s

, 2022 WL 2347744, at * 13 ( rejecting chal leng e to expert repor t and

reitera ti ng that “[w] hether [the expert ’s] opinion s that the same or similar stan dard of

care applies to [the two physicians ]

. . . are correct is not the question at this stage in

the litigation ” ). While the H os pita l may di sagree t h at both it and D r. Tajon had

in dependent dutie s to ensure that accurate m edication recon ciliation occur r ed , Dr.

Gott esman opine d that such independent duties exist ed

, and th at is sufficient for

purposes of the expert

- report require me nt

. See Mille r , 536 S

. W.3d at 516

– 17

.

Thus, Dr . Gotte s man ’s expert report adequately “ inform [ s the Hospi tal] of the

specific conduct the [ Es tate] has call ed into question, ” Jackson , 565 S.W.3d at 80

(quoting Palacios , 46 S.W.3 d at 879 ) , and it “ represen t [ s ] an objec tiv e good f a ith effort ”

to p rovide “ a f

air summary of the expert ’ s opinions

. . . re g arding ap plica ble standar ds

of care [ and] the mann er in wh ich the care rendered by the physician or health care

provider failed to mee t t he standards

. ” Tex. Ci v . Prac. & Rem

. Code A n n. § 74.351 ( l ),

( r) (6) ; see Baty , 5 43 S.W.3d at 6 93

– 94

. Th e tria l court erred b y sustain ing the

H ospital ’ s objection to the report a nd by dismissing the health care liability claims

against it

.18 I II

. Conclusion

T h e trial court err ed by sustain ing Dr. T a jon ’ s and the H ospital ’ s objections to

Dr. Gottesman ’ s report

. S ee Tex. Civ. P r ac. & Rem . Code Ann. § 74.351. We reverse

the trial court ’ s order s dismissing the health c are liability claims against these tw o

h ealth care providers

, and w e remand the cas e for further p roceedings consistent wit h

this opinion. See Tex. R. App. P. 43.2 ( d).

/s/ Bonnie Sudderth

Bon n ie Sudde rth

Chief Justice

Delivere d: December 14, 2023