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

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In The 

## Court of Appeals Fifth District of Texas at Dallas
No. 05-14-00056-CV COLUMBIA NORTH HILLS HOSPITAL, SU BSIDIARY, 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, S ubsidiary, L.P. appeal s the denial of its motion to dismiss made pursuant to Chapter 74 of the Texas Civ il Practice and Remedies Code. We hold that appellee Toni Gail Tucker’s expe rt report addressing th e 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 j udgment dismissing appellee’s claims against appellant, and remand for further proceedings as to appellant’s request for attorneys’ fees and
costs.–2– I. B ACKGROUND Appellee alleges the following f acts in her live pl eading. She checked into appellant’s hospital with severe abdominal pain on Septem ber 11, 2009. She was discharged on September 12, but she returned that same day. She unde rwent surgery in the early morning hours of September 13. After the surgery, appellant wa s transferred to Room 511 of the hospital. Appellant’s patient care plan incl uded the notation “High Risk to Fall.” On the morning of September 16, appellant used the restroom, be came dizzy when she stood up after using the toilet, and fell. A nurse found he r lying on the floor of the rest room. Nevertheless, appellant was discharged from the hospital later that day. The fall caused appellant to suffer multiple injuries, and she has since under gone several surgeries on her back and neck as a result of the fall. Appellee sued several defendant s, 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 objec tions 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 appell ee’s lawsuit pursuan t to section 74.351, asserting that the Dexter report di d not satisfy all of the requirement s of that section and that the Kjeldgaard report was late and c ould 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 sign ed an order sustaining appellant’s objections to the Dexter report, denying appellant’s motion to dism iss, and granting appellee thirty days to file–3– an expert report in compliance with Chapter 74. Appellee filed an ame nded pleading during that thirty-day window, and she attached the Dexter re port and the Kjeldgaard re port 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 signe d an order denying appellant’s second motion to dismiss. Appellant timel y filed its notice of accelerated appeal. 1
II. A NALYSIS In a single issue on appeal, appellant argues th at the trial judge abused his discretion by denying appellant’s second motion to dismiss. A ppellant presents three arguments in support of its issue, all centering on the question of whethe r the Kjeldgaard report adequately addressed the element of causation. We need discuss only a ppellant’s argument that Kjeldgaard’s causation opinion is insufficient becau se it is conclusory. A. Applicable law Within 120 days after filing the original petiti on, a claimant pursuing he alth 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 pr ovider 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 otherwis e qualified to render opinions on such causal

1 See T EX
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. C ODE A NN . § 51.014(a)(9) (West Supp. 2014). 2 See T EX
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. C ODE A NN . § 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 provide r within the deadline, th e defendant is entitled to dismissal of the claim with prejudi ce 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 represen t a good-faith effort to comply w ith the definition of “expert report” found in the statute. 8 In applying the good-faith-effort te st, courts are limited to the four corners of the report. 9 To be a good-faith effort, the re port 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 expe rt’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] cause d the injury based on the facts presented.” 13 We may not “fill gaps” in an expert repo rt by drawing inferences or gue ssing what the expert likely meant

5 T EX
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. C ODE A NN . § 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 T EX
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. C ODE A NN . § 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 th at 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 focu s on Kjeldgaard’s report with respect to causation. 19 In a one-paragraph section under the h eading “CAUSATION,” Kjeldgaard opines as follows: It is my opinion base d on a reasonable medica l 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 he rein resulted in the si gnificant in juries 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 opini on 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 malpr actice 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 risk s 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 T EX
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. C ODE A NN . § 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 w ould have survived this ordeal. 21 We concluded that the expert fa iled to explain how Ortiz’s deat h resulted from the breaches of the standard of care identified in the report, an d 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 ma terials 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, Kjeldgaar d 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 sec tion of the report fleshes out this statement or explains the basis for Kjeldgaar d’s conclusions about causation. Thus, the intr oduction does not render Kjeldgaard’s causati on opinion sufficient. Next, Kjeldgaard recites his qualifications, which have no bearing on the causation question before us. Then Kjeldga ard 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 appella nt’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 th e factual-background sectio n 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 Kjel dgaard’s ultimate opinion about causation. Accordingly, the fa ctual-background section of the report does not render Kjeldgaard’s causation opinion nonconclusory. Next in Kjeldgaard’s report is a secti on entitled “THE FALL INCIDENT.” The following excerpts are the parts of that section germane to our analysis: Ms. Tucker has [sic] been given Lo venox, a blood thinner for 3 days prior to her fall. Based on a reasonable medical probability, a cont ributing 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, wh ich 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 th e day of the fall, also likely was a contributing factor to Ms. Tucker’ [sic] fall.

. . . On the date in question, Mr. [sic] Tuck er 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 a nd the incident should have triggered the monitor to make a strip. The CNA who wa s 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 record s, it is my opinion, based on a reasonable degree of medi cal probability that the nursing care received by Ms. Tucker fell below the standard of care re quired. My review of the records have [sic] found conclusive evidence that there were in fact signifi cant deviations and breached [sic] of the standards of nu rsing 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 diffe rent 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 appropria te medical treatment in the event of–8– an incident/injury is an aspect of medi cine that crosses almost every specialty area. While Federal and State Regulatory Board Standards of Care (SOC) and Scope of Practice (SOP) may differ sli ghtly, individuals associated with the Medical Profession have (2) two principal duties to the patient in their care: • The obligation to prov ide 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 inte grated 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 Kjel dgaard’s report does not contain the factual explanation of the causal connection between appellant’s neglig ence and appellee’s injuries that is legally required to make his causation opini on nonconclusory. He identifies two physical conditions as “contributing factor s” to appellee’s fall—appelle e’s low blood pressure and her low potassium. In her brief, appellee also refe rences the paragraph about the cardiac telemetry strip, but we see nothing in Kj eldgaard’s report to suggest that the use or nonuse of cardiac telemetry had any causal connection with appelle e’s fall. So the question becomes whether Kjeldgaard explains (1) how a nd why appellee’s low blood pre ssure and low potassium were–9– caused by breaches of the standard of care by appellant’s nursing staff 24 and (2) how and why these conditions caused appelle e 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 catastrophi c 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 appropriatel y supervised and had the policies and procedures been followed, then as I set fo rth above, the injuries would have been avoided.... It is my opinion that the ad ministrative negligence identified by Mr. Brosseau with regard to the failure to ensure nursing competence, the failure to enforce the hospital’s policies and pro cedures, and the failure to ensure communication among the health care prov iders 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 w ould 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 ad ministrative negligence set forth in Mr. Brosseau’s report were proximate causes of injury to Mr. Springs. 27 We held that the report did no t adequately explain why the pati ent’s result would have been better if the administrative pe rsonnel had acted differently. 28 As a specific example, we noted that the expert did not explain why the patie nt’s outcome would have been better if the anesthesia had not been started until a me mber of the surgical team was present. 29 In the instant

24 We do not decide whether Kjeldgaard or Dexter sufficiently stat ed that either conduct breached an applicable standard of care or identified what that standard of care is. We focus our opini on on the sufficiency of Kjeldga ard’s statement of causation. 25 See T EX
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. C ODE A NN . § 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 breach es of the standard of care by the appellant’s nursing staff, much less expl ain why avoidance of those br eaches would have prevented appellee’s injuries. Hollingsworth dictates the conclusion that Kjeldgaard’s causation opinion is inadequate. Other cases from this Court an d other courts of appeals further support our holding. 30 Appellee argues that her expert is not required to rule ou t 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 Kjeldgaar d 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 a nd cannot change the fact that Kjeldgaard supplies nothing but bare conclusions on the e ssential element of ca usation. And although Dexter criticizes the nurses’ administration of potassium to appellee on the da y 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 T EX
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. C ODE A NN . § 74.351(i). 33 See id . § 74.351(r)(5)(C).–11– applicable standard of care, li nks such conduct to another repor t’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 re port on the essential element of causation and that th e trial judge abused his discretion by deny ing 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. D ISPOSITION For the foregoing reasons, we reverse the tr ial court’s order denying appellant’s second motion to dismiss, and we render judgment dism issing appellee’s claims against appellant with prejudice. We remand for a determination of th e amount of attorneys’ fees and costs to be awarded to appellant. 35

140056F.P05

34 See T EX
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. C ODE A NN . § 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 ti me was not based on insuffic iency of expert reports). 35 See T EX
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. C ODE A NN . § 74.351(b)(1). /Kerry P. FitzGerald/ KERRY P. FITZGERALD JUSTICE–12– 

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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 th is 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 attorn ey’s fees and costs of court incurred by appellant Columbia North Hills Hospital, Subsidiary, L.P., Individu ally 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.