Reversed and Rendered in part; Remand in part and Opinion Filed December 22, 2014 

S 

In The 

Court of Appeals 

Fifth District of Texas at Dallas 

No. 05-14-00056-CV 

COLUMBIA NORTH HILLS HOSPITAL, SUBSIDIARY, L.P., INDIVIDUALLY AND 

A/K/A AND D/B/A NORTH HILLS HOSPITAL, Appellant 

V. 

TONI GAIL TUCKER, Appellee 

On Appeal from the 193rd Judicial District Court 

Dallas County, Texas 

Trial Court Cause No. DC-11-15031 

MEMORANDUM OPINION 

Before Justices FitzGerald, Evans, and Brown 

Opinion by Justice FitzGerald 

Appellant Columbia North Hills Hospital, Subsidiary, L.P. appeals the denial of its 

motion to dismiss made pursuant to Chapter 74 of the Texas Civil Practice and Remedies Code. 

We hold that appellee Toni Gail Tucker’s expert report addressing the essential element of 

causation is conclusory as to that element. Accordingly, we reverse the trial court’s order 

denying appellant’s motion to dismiss, render judgment dismissing appellee’s claims against 

appellant, and remand for further proceedings as to appellant’s request for attorneys’ fees and 

costs. 
 –2– 

I. BACKGROUND

Appellee alleges the following facts in her live pleading. She checked into appellant’s 

hospital with severe abdominal pain on September 11, 2009. She was discharged on September 

12, but she returned that same day. She underwent surgery in the early morning hours of 

September 13. After the surgery, appellant was transferred to Room 511 of the hospital. 

Appellant’s patient care plan included the notation “High Risk to Fall.” On the morning of 

September 16, appellant used the restroom, became dizzy when she stood up after using the 

toilet, and fell. A nurse found her lying on the floor of the restroom. Nevertheless, appellant 

was discharged from the hospital later that day. The fall caused appellant to suffer multiple 

injuries, and she has since undergone several surgeries on her back and neck as a result of the 

fall. 

Appellee sued several defendants, including appellant, for her alleged injuries on theories 

of negligence and gross negligence. She attached a report by a nurse, Katherine L. Dexter, to her 

original petition. The defendants, including appellant, filed objections to the Dexter report. 

Appellee then filed and served a report by Larry Mitchell Kjeldgaard, D.O., but she did so after 

the 120-day deadline prescribed in Chapter 74 had expired. Appellee also amended her 

pleadings to nonsuit all defendants except for appellant. 

Appellant filed a motion to dismiss appellee’s lawsuit pursuant to section 74.351, 

asserting that the Dexter report did not satisfy all of the requirements of that section and that the 

Kjeldgaard report was late and could not be considered for any purpose. Appellee responded to 

the motion to dismiss and alternatively requested an extension of time to file a supplemental 

expert report. After a hearing, the trial judge signed an order sustaining appellant’s objections to 

the Dexter report, denying appellant’s motion to dismiss, and granting appellee thirty days to file 
 –3– 

an expert report in compliance with Chapter 74. Appellee filed an amended pleading during that 

thirty-day window, and she attached the Dexter report and the Kjeldgaard report to that pleading. 

Appellant then filed objections to the Kjeldgaard report and a second motion to dismiss. 

Appellee filed a response. After a hearing, the trial judge signed an order denying appellant’s 

second motion to dismiss. Appellant timely filed its notice of accelerated appeal.1

II. ANALYSIS

In a single issue on appeal, appellant argues that the trial judge abused his discretion by 

denying appellant’s second motion to dismiss. Appellant presents three arguments in support of 

its issue, all centering on the question of whether the Kjeldgaard report adequately addressed the 

element of causation. We need discuss only appellant’s argument that Kjeldgaard’s causation 

opinion is insufficient because it is conclusory. 

A. Applicable law 

Within 120 days after filing the original petition, a claimant pursuing health care liability 

claims must serve on each party one or more expert reports for each physician or health-care 

provider against whom such a claim is asserted.2

 The expert reports must provide a fair 

summary of the expert’s opinions regarding the applicable standards of care, the manner in 

which the particular physician or health-care provider failed to meet the standards of care, and 

the causal relationship between that failure and the injury, harm, or damages claimed.3

 If a 

defendant’s liability is purely vicarious, a report that adequately implicates the actions of the 

defendant’s agents or employees is sufficient.4

 With respect to the element of causation, the 

expert must be “a physician who is otherwise qualified to render opinions on such causal 

 1 See TEX. CIV. PRAC. & REM. CODE ANN. § 51.014(a)(9) (West Supp. 2014). 

2 See TEX. CIV. PRAC. & REM. CODE ANN. § 74.351(a) (West Supp. 2014). 

3 See id. § 74.351(r)(6). 

4 Ortiz v. Patterson, 378 S.W.3d 667, 671 (Tex. App.—Dallas 2012, no pet.). 
 –4– 

relationship under the Texas Rules of Evidence.”5

 If the claimant fails to serve an expert report 

as to a defendant physician or health-care provider within the deadline, the defendant is entitled 

to dismissal of the claim with prejudice and an award of attorneys’ fees.6 The trial judge can 

grant one thirty-day extension of time to a claimant who seeks to cure a timely but defective 

report.7

If the defendant challenges the adequacy of a report, the trial court shall grant the motion 

only if the report does not represent a good-faith effort to comply with the definition of “expert 

report” found in the statute.8

 In applying the good-faith-effort test, courts are limited to the four 

corners of the report.9 To be a good-faith effort, the report must provide enough information to 

fulfill two purposes: (1) to inform the defendant of the specific conduct the claimant has called 

into question and (2) to provide a basis for the trial judge to conclude that the claims have 

merit.10

A report is deficient if it states only the expert’s conclusions about the standard of care, 

breach, and causation.11 That is, the expert must explain the basis of his statements to link his or 

her conclusions to the facts.12 The expert must “explain, to a reasonable degree, how and why 

the breach [of the standard of care] caused the injury based on the facts presented.”13 We may 

not “fill gaps” in an expert report by drawing inferences or guessing what the expert likely meant 

 5

 TEX. CIV. PRAC. & REM. CODE ANN. § 74.351(r)(5)(C). 

6 See id. § 74.351(b); Sanchez v. Martin, 378 S.W.3d 581, 588 (Tex. App.—Dallas 2012, no pet.). 

7 See TEX. CIV. PRAC. & REM. CODE ANN. § 74.351(c). 

8 See id. § 74.351(l). 

9 Sanchez, 378 S.W.3d at 588. 

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

11 Ortiz, 378 S.W.3d at 671; see also Jelinek v. Casas, 328 S.W.3d 526, 539 (Tex. 2010) (stating that conclusory reports do not fulfill the 

two purposes of the good-faith-effort test). 

12 Bowie Mem’l Hosp., 79 S.W.3d at 52. 

13 Jelinek, 328 S.W.3d at 539–40. 
 –5– 

or intended.14 We review a causation opinion in the context of the entire report when assessing 

its sufficiency.15

Our standard of review is abuse of discretion.16 A trial judge has no discretion in 

determining what the law is or in applying the law to the facts.17 A trial judge’s clear failure to 

analyze or apply the law correctly constitutes an abuse of discretion.18

B. Application of the law to the facts

Because Dexter is not a physician, we focus on Kjeldgaard’s report with respect to 

causation.19 In a one-paragraph section under the heading “CAUSATION,” Kjeldgaard opines as 

follows: 

 It is my opinion based on a reasonable medical probability, and after 

reviewing the medical records from Ms. Tucker’s healthcare providers and 

physicians, that the above braches [sic] in this standard of care by the hospital 

nursing personnel identified herein resulted in the significant injuries she 

sustained to her left shoulder, neck and head. Had it not been for the failures 

outline [sic] above, Ms. Tucker would not have required the multiple surgical 

procedures and the prolonged medical care and treatment for these injuries. 

Standing alone, this causation opinion is conclusory. It is much like the opinion we held was 

conclusory in the Ortiz case. In that case, the patient sought treatment for respiratory complaints 

at a medical facility and died the next day.20 In the subsequent malpractice lawsuit, the claimants 

relied on an expert report that recited, in pertinent part: 

Failing to do the appropriate tests, make the correct diagnosis, and recognize the 

clinical severity and risks involved in not referring Mr. Ortiz for admission to a 

hospital did not meet the standard of care, and contributed to the premature death 

 14 Hollingsworth v. Springs, 353 S.W.3d 506, 513 (Tex. App.—Dallas 2011, no pet.). 

15 Ortiz, 378 S.W.3d at 671. 

16 Sanchez, 378 S.W.3d at 587. 

17 Id. 

18 Id. 

19 See TEX. CIV. PRAC. & REM. CODE ANN. § 74.351(r)(5)(C); Knightstep v. Jeffers, No. 05-12-01067-CV, 2013 WL 3487933, at *3 (Tex. 

App.—Dallas July 10, 2013, no pet.) (mem. op.). 

20 Ortiz, 378 S.W.3d at 670. 
 –6– 

of this man. If Mr. Ortiz had received appropriate evaluation and treatment it is 

more likely than not that he would have survived this ordeal.21

We concluded that the expert failed to explain how Ortiz’s death resulted from the breaches of 

the standard of care identified in the report, and accordingly the trial judge properly granted the 

defendants’ motion to dismiss.22

The question, then, is whether the remainder of Kjeldgaard’s report supplies the missing 

“how and why” of causation.23 In the introductory section of his report, Kjeldgaard generally 

describes the factual and legal materials he reviewed, as well as the scope of the task he was 

asked to perform. After saying that he reviewed appellee’s medical records and that he has 

personally examined and treated appellee, Kjeldgaard states, “I . . . have determined that there 

were significant deviations, breaches and omissions from the acceptable standards of care for 

nurses which caused multiple permanent and serious injuries to Ms. Tucker’s left shoulder, neck 

and head.” Nothing else in the introductory section of the report fleshes out this statement or 

explains the basis for Kjeldgaard’s conclusions about causation. Thus, the introduction does not 

render Kjeldgaard’s causation opinion sufficient. 

Next, Kjeldgaard recites his qualifications, which have no bearing on the causation 

question before us. Then Kjeldgaard recites the factual background of the case. This recitation 

focuses on the period of time before appellee’s surgery, the procedures performed during the 

surgery, and appellee’s transfer to a room in appellant’s hospital. In this section of his report, 

Kjeldgaard also remarks in passing, “While under the care of North Hills Hospital, Ms. Tucker 

sustained injury to her head, neck, and left shoulder when she became dizzy and fell on the 

bathroom floor in her hospital room.” But the factual-background section of the report does not 

 21 Id. at 673 (emphasis omitted). 

22 Id. at 675. 

23 See Jelinek, 328 S.W.3d at 539–40. 
 –7– 

otherwise address causation or provide any explanation for Kjeldgaard’s ultimate opinion about 

causation. Accordingly, the factual-background section of the report does not render 

Kjeldgaard’s causation opinion nonconclusory. 

Next in Kjeldgaard’s report is a section entitled “THE FALL INCIDENT.” The 

following excerpts are the parts of that section germane to our analysis: 

 Ms. Tucker has [sic] been given Lovenox, a blood thinner for 3 days prior 

to her fall. Based on a reasonable medical probability, a contributing factor to 

Ms. Tucker’s foreseeable fall was her low blood pressure during the night before 

the incident and on the day of the fall, which ranged from 80/40, with the high of 

[sic] day just after the fall of 112/70. Moreover, her low potassium level during 

the night before the incident and on the day of the fall, also likely was a 

contributing factor to Ms. Tucker’ [sic] fall. 

 . . . 

 On the date in question, Mr. [sic] Tucker was on a cardiac telemetry strip. 

[footnote omitted] There is no date or time of telemetry strips in the chart (North 

Hills Hospital –MRA-00016) on the day of the fall from midnight to the time 

Nurse Novak recorded the fall at 11:45 am. This is highly speculative since one 

of their duties, as a registered nurse, is to measure all strips and record the date 

and time as in the bottom one (North Hills Hospital-MRA-00014). There were no 

strips printed off when Ms. Tucker fell and the incident should have triggered the 

monitor to make a strip. The CNA who was assigned to work the area of [room] 

511 did not reflect anything in the medical chart unordinary at the time of Ms. 

Tucker’s fall. 

 . . . 

 Based on my review of these records, it is my opinion, based on a 

reasonable degree of medical probability that the nursing care received by Ms. 

Tucker fell below the standard of care required. My review of the records have 

[sic] found conclusive evidence that there were in fact significant deviations and 

breached [sic] of the standards of nursing care on September 15, 2009 until Ms. 

Tucker’s discharge on September 16, 2009. 

Immediately following the last-quoted paragraph is a section called “STANDARDS OF CARE,” 

in which Kjeldgaard states the following: 

 The standard of care crosses many different healthcare practice areas. For 

example, institutes [sic] acceptable fall precautions for hospital patients crosses 

almost all nursing and physician specialist area [sic]. Monitoring a patient for 

safety and responding timely with appropriate medical treatment in the event of 
 –8– 

an incident/injury is an aspect of medicine that crosses almost every specialty 

area. 

 While Federal and State Regulatory Board Standards of Care (SOC) and 

Scope of Practice (SOP) may differ slightly, individuals associated with the 

Medical Profession have (2) two principal duties to the patient in their care: 

 • The obligation to provide a safe environment; and 

 • To provide reasonable and prudent care. 

 Which was designed to prevent injuries such as the injuries Ms. Tucker 

sustained at North Hills Hospital. 

 In an acute hospital setting, an integrated multidisciplinary team plans care 

for patients such as Toni Tucker who are at risk, hinged on findings from an 

individualized assessment (ECRI, 2006 Joint Commission on Accreditation of 

Healthcare Organizations (JCAHO)[)]. The process approach an individualized 

patient fall assessment (“PFA”) includes use of standardized measurement tools 

of patient risk in combination with a fall-focused history and physical 

examination, functional assessment, and review of medications. 

After that, the report concludes with the single-paragraph section about causation quoted at the 

beginning of our analysis above. 

We conclude that the remainder of Kjeldgaard’s report does not contain the factual 

explanation of the causal connection between appellant’s negligence and appellee’s injuries that 

is legally required to make his causation opinion nonconclusory. He identifies two physical 

conditions as “contributing factors” to appellee’s fall—appellee’s low blood pressure and her 

low potassium. In her brief, appellee also references the paragraph about the cardiac telemetry 

strip, but we see nothing in Kjeldgaard’s report to suggest that the use or nonuse of cardiac 

telemetry had any causal connection with appellee’s fall. So the question becomes whether 

Kjeldgaard explains (1) how and why appellee’s low blood pressure and low potassium were 
 –9– 

caused by breaches of the standard of care by appellant’s nursing staff24 and (2) how and why 

these conditions caused appellee to fall and suffer injuries.25

In our decision in Hollingsworth v. Springs, we rejected an expert report that was, if 

anything, more detailed on the subject of causation than Kjeldgaard’s is. In Hollingsworth, the 

patient suffered catastrophic injuries during surgery.26 In the subsequent professional negligence 

suit against the hospital administrators, the claimant relied on an expert report that contained the 

following passage about causation: 

[H]ad the nursing staff been appropriately supervised and had the policies and 

procedures been followed, then as I set forth above, the injuries would have been 

avoided.... It is my opinion that the administrative negligence identified by Mr. 

Brosseau with regard to the failure to ensure nursing competence, the failure to 

enforce the hospital’s policies and procedures, and the failure to ensure 

communication among the health care providers were proximate causes of Mr. 

Springs’ injuries. Had the nurses been competent and adequately assessed Mr. 

Springs, understood the significance of the assessment and communicated it to the 

other healthcare providers, the hypoxic brain injury would have been avoided. 

Further, had the policies and procedures in place been followed, the nursing staff 

or administration would not have allowed anesthesia to begin without a member 

of the surgical team being present. Thus the nursing negligence set forth in Nurse 

Rosenthal’s report and the administrative negligence set forth in Mr. Brosseau’s 

report were proximate causes of injury to Mr. Springs.27

We held that the report did not adequately explain why the patient’s result would have been 

better if the administrative personnel had acted differently.28 As a specific example, we noted 

that the expert did not explain why the patient’s outcome would have been better if the 

anesthesia had not been started until a member of the surgical team was present.29 In the instant 

 24 We do not decide whether Kjeldgaard or Dexter sufficiently stated that either conduct breached an applicable standard of care or 

identified what that standard of care is. We focus our opinion on the sufficiency of Kjeldgaard’s statement of causation. 

25 See TEX. CIV. PRAC. & REM. CODE ANN. § 74.351(r)(6) (requiring the expert report to address the causal relationship between the failure 

to meet the standard of care and the “injury, harm, or damages claimed”). 

26 353 S.W.3d at 512. 

27 Id. at 518. 

28 Id. at 519. 

29 Id. 
 –10– 

case, Kjeldgaard does not even identify any breaches of the standard of care by the appellant’s 

nursing staff, much less explain why avoidance of those breaches would have prevented 

appellee’s injuries. Hollingsworth dictates the conclusion that Kjeldgaard’s causation opinion is 

inadequate. Other cases from this Court and other courts of appeals further support our 

holding.30

Appellee argues that her expert is not required to rule out all other possible causes of a 

claimant’s injuries, citing our decision in Baylor Medical Center at Waxahachie v. Wallace.

31 

Although appellee accurately states the law, that proposition does not aid her case. The 

Kjeldgaard report is not deficient because Kjeldgaard fails to rule out other possible causes of 

appellee’s injuries. It is deficient because Kjeldgaard does not explain how or why anything 

appellant’s nurses did or failed to do caused appellee’s injuries. 

Finally, appellee argues that we should read Kjeldgaard’s report together with Nurse 

Dexter’s report in assessing the sufficiency of the reports. This is also correct as a statement of 

law.32 But this rule does not aid appellee’s cause. Because Dexter is not a physician, she cannot 

supply the necessary causation opinion.33 Although Dexter provides some opinions regarding the 

standards of care applicable to appellant’s nurses and the manner in which those standards were 

breached, her opinions on these subjects do not and cannot change the fact that Kjeldgaard 

supplies nothing but bare conclusions on the essential element of causation. And although 

Dexter criticizes the nurses’ administration of potassium to appellee on the day of the fall, 

Kjeldgaard never refers to Dexter’s report in any way, states that such conduct breached the 

 30 See, e.g., Kocurek v. Colby, No. 03-13-00057-CV, 2014 WL 4179454, at *3–5 (Tex. App.—Austin Aug. 22, 2014, no pet.) (mem. op.); 

Knightstep, 2013 WL 3487933, at *3–4. 

31 278 S.W.3d 552, 562 (Tex. App.—Dallas 2009, no pet.). 

32 See TEX. CIV. PRAC. & REM. CODE ANN. § 74.351(i). 

33 See id. § 74.351(r)(5)(C). 
 –11– 

applicable standard of care, links such conduct to another report’s statement that such conduct 

violated the standard of care, or states that there was a causal relationship between appellee’s low 

potassium and anything the nurses did or failed to do. 

C. Conclusion 

We conclude that appellee failed to furnish an adequate expert report on the essential 

element of causation and that the trial judge abused his discretion by denying appellant’s second 

motion to dismiss. Because the trial judge has already granted appellee one extension of time to 

cure defects in her expert reports, no further extension is available.34 Accordingly, we must 

dismiss appellee’s claims. 

III. DISPOSITION

For the foregoing reasons, we reverse the trial court’s order denying appellant’s second 

motion to dismiss, and we render judgment dismissing appellee’s claims against appellant with 

prejudice. We remand for a determination of the amount of attorneys’ fees and costs to be 

awarded to appellant.35

140056F.P05 

 

 34 See TEX. CIV. PRAC. & REM. CODE ANN. § 74.351(c); see also Sanchez, 378 S.W.3d at 594–95 (holding that an additional extension of 

time is potentially available if prior extension of time was not based on insufficiency of expert reports). 

35 See TEX. CIV. PRAC. & REM. CODE ANN. § 74.351(b)(1). 

/Kerry P. FitzGerald/ 

KERRY P. FITZGERALD 

JUSTICE 
 –12– 

S 

Court of Appeals 

Fifth District of Texas at Dallas 

JUDGMENT 

COLUMBIA NORTH HILLS HOSPITAL, 

SUBSIDIARY, L.P., INDIVIDUALLY 

AND A/K/A AND D/B/A NORTH HILLS 

HOSPITAL, Appellant 

No. 05-14-00056-CV V. 

TONI GAIL TUCKER, Appellee 

 On Appeal from the 193rd Judicial District 

Court, Dallas County, Texas 

Trial Court Cause No. DC-11-15031. 

Opinion delivered by Justice FitzGerald. 

Justices Evans and Brown participating. 

 In accordance with this Court’s opinion of this date, the December 23, 2013 order of the 

trial court is REVERSED and judgment is RENDERED DISMISSING appellee Toni Gail 

Tucker’s claims with prejudice to their refiling. This case is REMANDED solely for a 

determination of reasonable attorney’s fees and costs of court incurred by appellant Columbia 

North Hills Hospital, Subsidiary, L.P., Individually and A/K/A and D/B/A North Hills Hospital. 

 It is ORDERED that appellant Columbia North Hills Hospital, Subsidiary, L.P., 

Individually and A/K/A and D/B/A North Hills Hospital recover its costs of this appeal from 

appellee Toni Gail Tucker. 

Judgment entered December 22, 2014.