NUMBERS 13-14-0700-CV and 13-15-0119-CV

COURT OF APPEALS

THIRTEENTH DISTRICT OF TEXAS

CORPUS CHRISTI - EDINBURG

 

HARLINGEN MEDICAL CENTER,

LIMITED PARTNERSHIP, Appellant,

v.

ROSA ANDRADE, AS NEXT FRIEND

OF MARY HELEN ANDRADE, A MINOR

CHILD; AND DOLORES RINCONES,

ACTING BY AND THROUGH AS POWER

OF ATTORNEY AND IN THE ALTERNATIVE

AS NEXT FRIEND OF RICARDO ANDRADE,

SURVIVING FATHER OF GEORGE ANDRADE,

DECEASED, AND SERJIO ANDRADE,

AS REPRESENTATIVE OF THE ESTATE

OF GEORGE ANDRADE, DECEASED,

AND ON BEHALF OF HEIRS OF THE

ESTATE AND ON BEHALF OF ALL

THOSE ENTITLED TO RECOVER

UNDER THE TEXAS WRONGFUL

DEATH ACT FOR THE DEATH OF

GEORGE ANDRADE, DECEASED, Appellees.
2

 

On appeal from the 404th District Court

of Cameron County, Texas.

 

MEMORANDUM OPINION

Before Justices Garza, Benavides, and Longoria

Memorandum Opinion by Justice Benavides

In this consolidated appeal, appellant Harlingen Medical Center, L.P. (“Harlingen 

Medical Center”) asserts by three issues, which we construe as one, that the trial court 

abused its discretion in denying its two motions to dismiss the medical negligence suit 

brought by appellees (collectively “Andrade”).

1

 We affirm.

I. BACKGROUND

Andrade alleges that on December 18, 2011, George Andrade (herein “George”) 

arrived at Harlingen Medical Center’s emergency room complaining of severe chest 

pains. Shortly thereafter, doctors admitted George and diagnosed him with a dissected 

aorta extending from the thoracic aorta to the iliac crests. The next day, doctors 

concluded that George required surgery to address his condition, and Dr. Ruben M. 

Lopez, a surgeon, recommended that George be transferred from Harlingen Medical 

Center to Memorial Hermann Hospital in Houston; however, Memorial Hermann declined 

the transfer request. According to Andrade’s lawsuit, no other attempts were made to 

 

1 The full list of appellees is as follows: Rosa Andrade, as next friend of Mary Helen Andrade, a 

minor child; and Dolores Rincones, acting by and through as power of attorney and in the alternative as 

next friend of Ricardo Andrade, surviving Father of George Andrade, deceased, and Serjio Andrade, as 

representative of the estate of George Andrade, deceased, and on behalf of heirs of the estate and on 

behalf of all those entitled to recover under the Texas Wrongful Death Act for the death of George Andrade, 

deceased. 
3

transfer George despite the fact that he was “facing a life or death emergency.” On 

December 20, 2011, doctors entered an order of transfer “for emergent surgery” to treat 

his “ascending aortic [dissection],” but George was never transferred. Harlingen Medical 

Center personnel also made other unsuccessful attempts to transfer Andrade to hospitals 

in Galveston and San Antonio. Andrade alleges that on December 21, 2011, no further 

attempts were made to transfer George to another hospital. On December 22, 2011, 

George died at Harlingen Medical Center. 

On March 3, 2014, Andrade filed a wrongful death lawsuit against Harlingen 

Medical Center, David Yardley, M.D., Nataraj Desai, M.D., M. Shereef Hilmy II, M.D., and 

Dr. Lopez, alleging various acts of medical negligence related to George’s death. On 

June 27, 2014, Andrade filed her statutorily-mandated expert reports, see TEX. CIV. PRAC.

& REM. CODE ANN. § 74.351 (West, Westlaw through 2015 R.S.), prepared by C. Warren 

Adams, M.D. and Daniel DeBehnke, M.D. At some point after filing these two expert 

reports, Andrade served an additional expert report by Ralph Cross, a hospital 

administrator. On July 18, 2014, Harlingen Medical Center filed a motion to dismiss 

Andrade’s cause of action against it by alleging that none of Andrade’s three expert 

reports gave an opinion as to how it violated the applicable standards of care, and that 

the reports were “conclusory and speculative” with regard to causation of any breach by 

Harlingen Medical Center or its agents. On November 12, 2014, the trial court granted 

in part and denied in part Harlingen Medical Center’s motion to dismiss. In its order, the 

trial court granted Andrade a thirty-day extension to supplement its expert reports with 

“an expert qualified to render an opinion concerning the applicable standard of care for 

Harlingen Medical Center and whether that standard of care was breached.” 
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On December 10, 2014, Andrade filed an expert report written by Gerald “Craig” 

Felty, R.N., who opined as to the standards of care applicable to Harlingen Medical Center 

and its agents in this case, as well as how those standards of care were breached. 

Harlingen Medical Center subsequently filed its second motion to dismiss alleging that 

because Felty is not a physician, he cannot provide an opinion on causation, and that his

opinions regarding causation are conclusory and insufficient. After holding a hearing, 

the trial court denied Harlingen Medical Center’s second motion to dismiss. This 

interlocutory appeal followed. See id. § 51.014(a)(9) (West, Westlaw through 2015 

R.S.).

II. EXPERT REPORTS

By three issues, which we treat as one, Harlingen Medical Center asserts that the 

trial court abused its discretion in denying its second motion to dismiss based upon the 

alleged inadequacies of Andrade’s expert reports.

A. Standard of Review and Applicable Law

A trial court's ruling on the sufficiency of an expert's report is reviewed for an abuse 

of discretion. Van Ness v. ETMC First Physicians, 461 S.W.3d 140, 142 (Tex. 2015). 

Under this review, we defer to the trial court’s factual determinations if they are supported 

by the evidence, but review its legal determinations de novo. Id. A trial court abuses 

its discretion if it acts without reference to guiding rules or principles. Id. However, in 

exercising its discretion, it is incumbent upon the trial court to review the reports, sort out 

their content, resolve any inconsistencies, and decide whether the reports demonstrated 

a good faith effort to show that the plaintiff’s claims have merit. See id. at 144; see TEX.

CIV. PRAC. & REM. CODE ANN. § 74.351(l) (“A court shall grant a motion challenging the 
5

adequacy of an expert report only if it appears to the court, after hearing, that the report 

does not represent an objective good faith effort to comply with the definition of an expert 

report . . . .”). 

An “expert report” is a written report by an expert that provides a fair summary of 

the expert’s opinions as of the date of the report regarding applicable standards of care, 

the manner in which the care rendered by the physician or health care provider failed to 

meet the standards, and the causal relationship between that failure and the injury, harm, 

or damages claimed. Id. § 74.351(r)(6). In his report, an expert must explain, based on 

facts set out in the report, how and why the breach caused injury. Van Ness, 461 S.W.3d 

at 142. Finally, only a physician may render an opinion about the causal relationship 

between the injury, harm, or damages claimed and the alleged departure from the 

applicable standard of care. See TEX. CIV. PRAC. & REM. CODE ANN. § 74.351(r)(5)(C); 

Henry v. Kelly, 375 S.W.3d 531, 535 (Tex. App.—Houston [14th Dist.] 2012, pet. denied). 

B. Discussion

Harlingen Medical Center first argues that Andrade’s expert reports are inadequate 

because the opinions regarding causation were “impermissibly conclusory and 

speculative.” As a preliminary matter, we note that Harlingen Medical Center challenges 

only the issue of causation on appeal and does not challenge the opinions offered by 

Andrade’s experts regarding the applicable standards of care and the failures to meet 

these standards of care. Thus, we will solely examine the issue of causation. See TEX.

R. APP. P. 47.1. 

We agree with Harlingen Medical Center’s argument that non-physicians cannot 

render opinions regarding causation, see TEX. CIV. PRAC. & REM. CODE ANN. § 
6

74.351(r)(5)(C); Henry, 375 S.W.3d at 535; accordingly, we will only review the opinions 

offered by Dr. Adams and Dr. DeBehnke regarding causation for purposes of this 

analysis. First, Dr. Adams, who is a board-certified cardiovascular and thoracic surgeon, 

opined that George presented to Harlingen Medical Center with a “Type 1 aortic 

dissection,” which is “a tear in the wall of the aorta from above or at the level of the aortic 

valve, thru the aortic arch and down thru the descending aorta.” Dr. Adams further 

labeled George’s condition as a “cardiovascular surgical emergency” due to the “high 

incidence of rupture or pericardial tamponade resulting in immediate mortality.” Dr. 

Adams noted in his report that failure to receive surgical treatment within 72 hours of this 

condition “can cause immediate bleeding into the pericardium mediastinum or free rupture 

into the thoracic cavities.” With regard to the allegations of breaches of the standard of 

care by Harlingen Medical Center, Dr. Adams asserted that Harlingen Medical Center and 

its agents’

delay and failure to provide and arrange for providing immediate surgery 

within the capabilities of the hospital and medical staff, arranging for an 

emergent and proper transfer for [George] to a tertiary center as ordered by 

physicians . . . and in a timely manner resulted in progression of the 

dissection, with the known complication of rupture and death.

Dr. Adams further emphasized that Harlingen Medical Center and its staff failed to provide 

George with an emergent transfer in a timely manner, in a situation where “time [was] of 

the essence.” Finally, Dr. Adams opined that had Harlingen Medical Center facilitated 

this emergent transfer with time in mind, within reasonable medical probability, George 

would have “more likely than not survived.” Second, Dr. DeBehnke, who is an 

emergency medicine physician, similarly opined that George’s aortic rupture and ultimate 

death would not have occurred had Harlingen Medical Center and its agents not failed to 
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“implement and complete . . . two emergent transfer orders” to “another facility in a timely 

manner,” and that Harlingen Medical Center and its employees’ “delays adversely 

affected” George’s condition. 

Harlingen Medical Center argues, however, that despite these opinions offered by 

Dr. Adams and Dr. DeBehnke, it is nevertheless entitled to dismissal because their 

opinions fail to state how more efforts to accomplish Andrade’s transfer would have 

resulted in a successful transfer by pointing out that Andrade lacked financial resources 

and transportation to a possible transferee hospital. We find this argument unpersuasive 

because it places a higher burden on Andrade than that which is required at this stage of 

the proceeding. 

An expert report in a medical negligence case serves two purposes: (1) inform 

the defendant of the specific conduct the plaintiff has called into question; and (2) provide 

a basis for the trial court to conclude that the claims have merit. Certified EMS, Inc. v. 

Potts, 392 S.W.3d 625, 630 (Tex. 2013). In other words, the report need not cover every 

alleged liability theory to make the defendant aware of the conduct that is at issue, or 

require “litigation-ready evidence.” Id. at 630–31. The evidentiary burden borne by a 

plaintiff seeking to avoid dismissal at this stage of her case is a lower standard than that 

required in a summary-judgment proceeding or trial. See id. at 631. Thus, the report 

must sufficiently describe the defendant’s alleged conduct, inform the defendant of the 

behavior in question, and allow the trial court to determine if the allegations have merit. 

Id. If the trial court decides that the liability theory is supported, then the claim is not 

frivolous, and the suit may proceed. See id. This approach fulfills the Legislature’s 

intent of Chapter 74 by expeditiously weeding out claims that have no merit, deterring 
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frivolous claims, and not disposing of claims regardless of their merit. Id. (citing Loaisiga 

v. Cerda, 379 S.W.3d 248, 263 (Tex. 2012); Scoresby v. Santillan, 346 S.W.3d 546, 554 

(Tex. 2011)). 

Here, Andrade advanced at least one theory of liability against Harlingen Medical 

that had expert support: Harlingen Medical Center and its agents failed to effectuate a 

timely transfer order for Andrade, which prolonged the lack of emergent intervention 

necessary to treat his Type 1 dissected aorta that ultimately led to his death. 

Accordingly, the trial court did not abuse its discretion by denying Harlingen Medical 

Center’s motions to dismiss based on the alleged inadequacies of Andrade’s expert 

reports. 

Finally, Harlingen Medical Center appears to challenge the merits of one of 

Andrade’s theories of liability regarding whether it was negligent for not ensuring that 

Andrade’s surgery was performed at Harlingen Medical Center by Dr. Lopez. Harlingen 

Medical Center argues that because Dr. Lopez determined to transfer Andrade rather 

than operate on him at Harlingen Medical Center, Harlingen Medical Center cannot be 

held liable under such a theory. We decline to address the merits of this argument 

because we have already concluded that the trial court did not abuse its discretion in 

finding at least one theory of liability against Harlingen Medical Center supported by 

expert reports, which makes the claim not frivolous and permits the suit to proceed. See 

id.; see also TEX. R. CIV. P. 47.1. 

Harlingen Medical Center’s three issues are overruled.
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III. CONCLUSIONS

We affirm the trial court’s orders. 

GINA M. BENAVIDES,

Justice

Delivered and filed the

21st day of April, 2016.